The following explanations include the objectives as well as the scope and special features of the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (EuInsVO/EIR) which are illustrated by means of a practical example.
The aim, to avoid bogus companies in order to move assets in other countries at the expense of creditors or to affect the International jurisdiction by relocation of registered office could thus be implemented within the EU. This was most recently confirmed by the case law (ECJ, Judgement from 24.03.2023 – C-723/20).
Table of Contents
1 Introduction
2 Objectives of the regulation
3 Insolvency law cross-border issues
3.1 Outside the EU (Matters relating to foreign countries (Third Countries)
3.2 Inside the EU (Matters relating to foreign countries (EU-countries)
4 Scope of application of the EIR (Reg. 2015/848)
4.1 Material scope
4.2 Temporal scope
4.3 Spatial-personal scope
5 Determination of COMI – practice example
5.1 Example and problem statement
5.2 Ascertainment of the COMI
5.3 Jurisdiction
5.3.1 Eurofood / Parmalat
5.3.2 BRAC
5.3.3 COMI of Siemens AG
6 Conclusion
Objectives & Core Themes
This assessment examines the application of Regulation (EU) 2015/848 (EIR) on insolvency proceedings, focusing on determining the Center of Main Interest (COMI) within a multinational corporate group structure to prevent forum shopping and ensure creditor protection.
- Legal framework and objectives of the EU Insolvency Regulation.
- Distinction between cross-border insolvency issues inside and outside the European Union.
- Criteria for establishing the material, temporal, and spatial-personal scope of the EIR.
- Practical application of COMI determination using the example of Siemens AG.
- Analysis of key ECJ case law (Eurofood, BRAC) and its influence on insolvency jurisdiction.
Excerpt from the Book
5.3.3 COMI of Siemens AG
In the example, we have to investigate the located administrative headquarter of Siemens AG -in compliance with the case law- in order to determine the COMI for rebutting the presumption i.s.o. Art. 3 (1) subpar. 2 S. 1 EIR (registered office). Considering the Parmalat case law it contains a comprehensive assessment of all relevant facts and circumstances. Also, the objective figure, if the Siemens company does not carry on any business in the territory of the Member State of his registered office in Munich/Berlin. The objective figures includes the actual center of management and supervision and of the management of its interest. These objective figures must be ascertain for all third parties (especially creditors/stakeholders)25.
The segment report of Siemens AG includes Digital Industries, Smart Infrastructure, Mobility and Siemens Healthineers as well Siemens Financial Services26. The Siemens AG itself employs appr. over 100.000 employees and generated sales itself of 16.389 Mio. EUR in 202027. The company has his own operating business in Germany. Supervisory Board and Executive Board are mainly located in Munich (as well in Berlin). These objectives figures are located in Germany and are ascertain to third parties. The presumption of Art. 3 par. 1 subpar. 2 S. 2 EIR cannot rebutted, in result the COMI of Siemens AG is located in Munich/Berlin (registered office/headquarter).
Summary of Chapters
1 Introduction: Provides an overview of the scope and objectives of Regulation (EU) 2015/848 regarding insolvency proceedings.
2 Objectives of the regulation: Explains the necessity of international standardization to prevent illegal forum shopping and protect creditor interests.
3 Insolvency law cross-border issues: Examines legal distinctions and applied insolvency principles for proceedings involving third countries versus EU member states.
4 Scope of application of the EIR (Reg. 2015/848): Defines the material, temporal, and spatial-personal criteria required for the regulation to be applicable.
5 Determination of COMI – practice example: Analyzes the practical challenges of locating the Center of Main Interest using the Siemens AG case study and established ECJ jurisprudence.
6 Conclusion: summarizes the successful harmonization of European insolvency law through the EIR and confirms its efficacy in preventing cross-border relocation of assets.
Keywords
Regulation (EU) 2015/848, EIR, Insolvency Law, COMI, Center of Main Interest, Forum Shopping, European Union, Cross-border Proceedings, Jurisdiction, ECJ, Eurofood, Parmalat, Siemens AG, Creditor Protection, Registered Office.
Frequently Asked Questions
What is the primary focus of this document?
The document provides an assessment of Regulation (EU) 2015/848, specifically analyzing how it regulates cross-border insolvency proceedings in the European Union.
What are the core areas covered in the text?
It covers the objectives of the regulation, the scope of application, definitions of insolvency, and the complex process of determining the Center of Main Interest (COMI) for multinational entities.
What is the main goal or research question?
The work aims to explain how the EU regulates insolvency jurisdiction and how courts determine the COMI to prevent companies from manipulating insolvency proceedings for unfair legal advantages.
Which scientific methods are employed?
The author uses a normative legal analysis combined with a practical case study (Siemens AG) and reflects on established European Court of Justice (ECJ) case law.
What aspects are addressed in the main part?
The main part details the legal requirements for the material, temporal, and spatial-personal scope of the regulation, and applies these rules to hypothetical and real corporate scenarios.
How can one define the work using keywords?
The work is defined by terms like COMI, cross-border insolvency, EU regulation, jurisdiction, and creditor protection.
How does the regulation treat the Center of Main Interest for legal persons?
The regulation presumes that, for legal persons, the COMI is located at the registered office of the company, unless evidence is provided to the contrary.
Why is the Siemens AG example significant in this study?
The Siemens AG case demonstrates the practical application of the regulation for a globally operating listed company, illustrating how factual management and organizational structures are evaluated against the registered office presumption.
- Quote paper
- Anika Petzold (Author), 2023, Cross-border insolvency proceedings, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/1496338
