European Court of Justice adopted a decision under reference for preliminary ruling of Supreme Court of Lithuania, Case C‑213/10

Having regard an action brought by the creditor acting on the basis of an assignment of claims which has been granted by the liquidator appointed in liquidation proceedings, ECJ ruled that the right acquired by an assignee is subject to rules other than those applicable in insolvency proceedings and jurisdiction should be determined in accordance with the provisions of Regulation No 44/2001.

Facts

The Supreme Court of Lithuania, after hearing the case which concerns the claim of F-Tex SIA brought against Lithuanian-English company UAB „Jadecloud-Vilma“ (‘Jadecloud-Vilma’) to return, with interest, a sum of LTL 523 700.20 which was paid Jadecloud-Vilma by Neo Personal Light Clothing GmbH (‘NPLC’), which at that time was insolvent, has made a reference for preliminary ruling to European Court of Justice. Lithuanian court seeking to determine jurisdiction in this case has asked ECJ whether an action brought against a third party by the creditor (F-Tex SIA) of a debtor who is the subject of insolvency proceedings, in circumstances where that creditor is acting on the basis of an assignment of claims which has been granted by the liquidator appointed in those proceedings, is covered by Regulation No 1346/2000 on insolvency proceedings, inasmuch as such an action derives directly from those proceedings and is closely connected with them, or is covered by Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, inasmuch as that action falls within the concept of a civil or commercial matter.

1. unlike the liquidator, who is, as a rule, required to act in the interest of the creditors, the assignee can freely decide whether to exercise the right of claim he has acquired;
2. the assignee, when he decides to exercise his right of claim, acts in his own interest and for his personal benefit; the proceeds of the action which he brings become owned by him personally; and the consequences of his action are different from those of an action to set a transaction aside brought by a liquidator, which is intended to increase the assets of the undertaking which is the subject of insolvency proceedings (Seagon, par. 17);

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