In the first case discussed, a creditor filed a petition for bankruptcy of its debtor, the commercial partnership (“vennootschap onder firma”) Handelskwekerij Lidia & Willem van Kester v.o.f., on 28 April 2009 [Supreme Court 22 December 2009, LJN: BK3574, NJ 2010 / 15, RvdW 2010 / 38, JOR 2010 / 247]. However, on 6 May 2009 it was registered in the chamber of commerce that Handelskwekerij Lidia & Willem van Kester v.o.f. had discontinued its business activities on 1 January 2009. Nevertheless during the hearing of the bankruptcy request, the winding-up of Handelskwekerij Lidia & Willem van Kester v.o.f. was not yet formally completed, although the business activities had already relocated to Poland. The Supreme Court had to determine whether the COMI of Handelskwekerij Lidia & Willem van Kester v.o.f. was (still) in the Netherlands.
The Supreme Court ruled that the COMI of Handelskwekerij Lidia & Willem van Kester v.o.f. was in the Netherlands since the winding-up was not fully completed during the hearing of the bankruptcy request. The mere circumstance that the business activities were relocated to Poland, did not mean that the COMI was no longer in the Netherlands.
In this case the Supreme Court ruled – in accordance with the ruling of the European Court of Justice in the case (ECJ 17 January 2006, Staubitz-Schreiber) – that based on Art. 3 para 1 of the EIR the court of the member state within the territory of which the COMI was situated at the time when the creditor filed the request to open insolvency proceedings retained jurisdiction to open those proceedings even if the debtor moved the COMI to the territory of another member state after lodging the request but before the proceedings were opened.
Furthermore the EIR presumes, unless proved to the contrary, that the debtor’s COMI is the place of its registered office. Since partnerships do not have a registered office, it is still unclear whether the presumption of the registered office also applies to partnerships.
A number of companies had filed an application for a moratorium (“surseance van betaling”) at the District Court of Roermond while their registered offices were in Belgium and Germany [District Court of Roermond 17 November 2008, JOR 2009 / 55]. Therefore the District Court of Roermond had to determine whether the presumption in favour of the registered office of these companies could be rebutted based on the factual circumstances.
The District Court of Roermond ruled that the presumption of the registered office could be rebutted in this case since:
- companies that had registered offices in Belgium and Germany were members of the Henzo-concern and were controlled by the company Henzo Internationale Group B.V., which had its principal place of business in the Netherlands. This also appeared from the consolidated annual accounts of 2006;
- the foreign companies were only sales offices, while the delivery to the customers was made from the Netherlands;
- the company registered in Belgium was in fact a letterbox company. The office of the company registered in Germany was currently unoccupied pending the expiration of a tenancy agreement; and,
- the foreign employees that worked from their homes were instructed and controlled by the Dutch director.
The District Court of Roermond ruled in this case that the head office functions were carried out in a member state other than that in which the registered office was located.
X and Y were declared bankrupt by the court at first instance following a petition of Rabobank [Appellate Court Amsterdam 13 November 2009, LJN: BL1967, JOR 2010 / 169]. They appealed that decision arguing that the Dutch courts did not have jurisdiction because their COMI was not situated in the Netherlands but in Italy. X and Y argued that, even though they were registered in the Netherlands, at the time Rabobank filed the petition they were living and had been registered in Italy for a number of years, where they had economic activities, and that they had no (economic) activities in the Netherlands other than the winding up of a number of old and inactive companies. The liquidator appointed in the bankruptcy of X and Y, who was present at the hearing on the appeal, stated that he had only come across economic activities and creditors of X and Y in the Netherlands. Rabobank submitted evidence indicating that X and Y used their Dutch address in official documents, that they had carried out economic activities in the Netherlands and that X was sole shareholder and director of a number of Dutch companies.
After observing that according to paragraph 13 of the preamble of the EIR the COMI should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties, the court decided that the COMI of X and Y was situated in the Netherlands on the basis of the facts brought before the court by Rabobank and the liquidator. These facts were:
- no documentation demonstrating that X and Y were living in Italy;
- the Dutch creditors in the bankruptcy followed from economic activities in the Netherlands.
The Dutch Court of appeal decided that the COMI was situated in the Netherlands and that the facts put forward by X and Y were not enough to rebut the presumption of Art. 3 para 1 of the EIR.
Jaya had filed a petition to have X declared bankrupt [Appellate Court Arnhem 23 July 2009, LJN: BJ5603]. The first instance court denied jurisdiction because it held that the COMI of X was situated in Germany and not in the Netherlands based on a statement by X that she lived in Germany (where she was also registered) and was about to start a new job. Jaya appealed that decision arguing that X had her COMI in the Netherlands because X was still (also) registered in the Netherlands, in her contacts with Jaya consistently used her address in the Netherlands and counsel of Jaya had spoken to X on her Dutch landline after she had allegedly moved to Germany. X argued that she had moved to Germany with her husband, while continuing to use their Dutch house for recreational purposes.
The court found that the mere fact that X was also registered in Germany was insufficient to assume that the COMI of X was situated in Germany. As the arguments advanced by Jaya that the COMI of X was situated in the Netherlands had not been refuted by X, the court concluded that the Dutch courts had jurisdiction. The Court of appeal decided that the presumption was not rebutted enough in order to decide that the COMI was situated in Germany.
Altrecht Holding BV was declared bankrupt by the court of first instance in Leeuwarden, the Netherlands, at the request of Rabobank [Appeallate Court Leeuwarden 21 July 2011, JOR 2011 / 314]. Altrecht Holding BVBA (a Belgian Company) appealed this decision by stating that the registered office of Altrecht Holding BV had been moved to Belgium and that therefore the Dutch judge did not have the jurisdiction to declare Altrecht Holding BV bankrupt. Because the registered office had been moved to Belgium, the latter was the competent court and jurisdiction.
The Dutch judge decided that it was competent because the movement of the registered office had not been completed as in the Dutch Chamber of Commerce Altrecht Holding BV was still known. Moreover the trustees decided that there were not any economic activities in Belgium and the creditors of the Dutch company were situated in the Netherlands. The presumption has not been rebutted enough in order to decide that the COMI is not placed in the same country as where the registered office is situated.
NSCB was declared bankrupt by the court of first instance in Leeuwarden, the Netherlands, at the request of Lok and others [Appellate Court Leeuwarden 9 april 2009, www.insolvencycases.eu]. On appeal NSCB, inter alia, argued that the Dutch courts did not have jurisdiction to open insolvency proceedings in respect of NSCB because its COMI was located in Estonia: Its registered office was situated in Estonia, the company was managed from Estonia, the working capital of the company was located in Estonia, the costs for setting up the Dutch establishment were funded out of Estonia and the company was active in Estonia as a securities’ broker. Lok and others argued that they could not establish where NSCB performed its activities but pointed out that it was clear that NSCB in any event operated in the Netherlands and that it was not clear that the same was true for Estonia. Furthermore, Lok and others argued that, if the Dutch courts did not have jurisdiction on the basis of Art. 3 para 1 of the EIR, their petition should be regarded and dealt with as a petition to open insolvency proceedings in respect of NSCB’s Dutch establishment on the basis of Art. 3 para 2 of the EIR.
The court decided that the petitioners had not succeeded in presenting a reasonable case, let alone provided proof, that NSCB’s COMI was in the Netherlands. Consequently, NSCB’s COMI was presumed to be situated in Estonia where its registered office was located and the Dutch courts did not have jurisdiction to open insolvency proceedings in respect of NSCB on the basis of Art. 3 para 1. The court found that it would contravene rules of proper procedure to deal with the petition as a petition to open insolvency proceedings in respect of NSCB’s Dutch establishment on the basis of Art. 3 para 2 of the EIR and denied the request. The presumption had not been rebutted enough in order to decide that the COMI was not situated in the same country the registered office.