Where a liquidator assigned a claim to have a transaction set aside derived from the national law applicable to the insolvency proceedings, the claim subsequently made by the assignee against a third party to have the transaction set aside came within the concept of “civil and commercial matters” within the meaning of article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L12, p1) and was no longer covered by the exception in article 2(b) for insolvency proceedings.

The Court of Justice of the European Union (First Chamber) so ruled on a reference for a preliminary ruling pursuant to article 267FEU of the FEU Treaty in proceeding between the claimant, F-Tex SIA and the defendant, Lieutuvos-Anglijos UAB „Jadecloud-Vilma“, concerning the issue of whether a claim to set a transaction aside brought by an assignee of the claim against a third party, where the claim had been assigned to the claimant by a liquidator in insolvency proceedings, either (1) derived directly from the insolvency proceedings and therefore came within Regulation No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L160, p1) or (2) whether it came within the meaning of civil and commercial matters as set out in article 1(1) of Council Regulation (EC) No 44/2001.

THE COURT (First Chamber) ruled that whilst article 1(2)(b) of Regulation No 44/2001 excluded from the concept of civil and commercial matters those proceedings relating to the winding-up of insolvent companies or other legal persons from its remit, an action was related to winding-up only where there was a close link between a court action and the insolvency proceedings. Consequently an action was included within the scope of insolvency proceedings within the meaning of Regulation No 1346/2000 if it derived directly from the insolvency proceedings. The subject matter of the assignment was the right to have a transaction set aside which the German Insolvency Code conferred upon the liquidator in respect of acts undertaken before the insolvency proceedings had been opened and which were detrimental to the creditors participating in those proceedings. The liquidators right to assign that right was not in dispute and once the assignment had been made, although the assignee’s right was derived from the insolvency of the debtor, the assignee was not acting as liquidator. Unlike a liquidator, the assignee could freely decide whether to exercise the right to have the transaction set aside. Furthermore the assignee acted in his own interest and for personal benefit, and the proceeds of the action became his own. By comparison a liquidator acted to recover assets of the undertaking which was subject to the insolvency. The fact that the assignee was obliged to pay a percentage of the proceeds to the liquidator did not alter this analysis. Finally the closure of the insolvency proceedings had no effect on the exercise by the assignee of the right to have the transaction set aside. Consequently, taking into account these factors, an action brought by an assignee of a right to set a transaction aside, assigned by a liquidator in insolvency proceedings, was not closely connected with the insolvency proceedings and was therefore a civil and commercial matter within the meaning of article 1 of Regulation No 44/2001.