Nr. 61
Frankfurt am Main Higher Regional Court appeals to the ECJ regarding the effects of insolvency proceedings against an online gaming provider based in Curaçao on enforcement measures in the EU
The Frankfurt am Main Higher Regional Court (OLG) has submitted to the ECJ the question of whether the opening of insolvency proceedings over the assets of a gaming operator based in Curaçao precludes compulsory enforcement of accounts suspected of being in Cyprus.
The creditor had participated in online gambling with the debtor, who was in Curaçao is entered in the commercial register. With her lawsuit, she sought repayment of gambling losses amounting to almost €60,000.00. In this respect, a legally binding (default) judgment has now been issued against the debtor. The creditor now wants to enforce the debtor’s suspected accounts in Cyprus. She claims that the debtor has one or more accounts in Cyprus because her betting stakes were passed on to the debtor via Cypriot companies. The regional court had rejected the request for information about any accounts the debtor had in Cyprus.
The creditor’s immediate complaint is directed against this. She claims that as a rule, gambling operators based on Curacao are shell companies with no assets on the island. These and other intermediary companies served to conceal gambling income in order to avoid enforcement. She also points out that in the meantime the debtor’s assets in Curaçao insolvency proceedings were opened.
The responsible 7th Civil Senate has now appealed to the ECJ as part of a preliminary ruling procedure on the interpretation of Article 2 c of the EU Regulation on the provisional seizure of accounts in the event of cross-border debt collection (VO (EU) 655/2014). Accordingly, the EU regulation on the provisional seizure of accounts sought here does not apply to claims against debtors against whom insolvency proceedings have been opened. According to the recitals of the Regulation, this covers insolvency proceedings in an EU member state. However, there are insolvency proceedings in a third country. In this respect, the question arises as to what effects the opening of insolvency proceedings in a third country has on the applicability of the Regulation. It is possible that the law of a member state, in this case Germany, will then be examined to determine whether the insolvency proceedings have been effectively opened. If this is the case – as here – it cannot be enforced any further. However, it is also possible that insolvency proceedings outside the EU would generally not be recognized by the regulation and would therefore not prevent provisional enforcement.
Since this question is relevant to the decision here, the ECJ should be referred to the ECJ to interpret the regulation.
Frankfurt am Main Higher Regional Court, decision of October 10, 2024, case number 7 W 13/24
(previously Frankfurt am Main Regional Court, decision of June 5, 2024, no. 2-12 O 232/23)
The full text of the decision is below
www.rv.hessenrecht.hessen.deOpens in a new window available.
Explanations:
Article 2 Regulation (EU) 655/2014 Scope
(1) 1This regulation applies to monetary claims in civil and commercial matters in cross-border legal cases within the meaning of Article
3Opens in a new windowregardless of the type of dish. 2In particular, it does not apply to tax and customs matters as well as administrative law matters or the liability of the state for actions or omissions in the exercise of sovereign rights (“acts of the law of government”).
(2) This regulation does not apply to:
- a) matrimonial property regimes or property regimes based on relationships which, according to the law applicable to these relationships, have effects comparable to marriage;
- b) the area of will and inheritance law, including maintenance obligations that arise upon death;
- c) Claims against a debtor against whom insolvency proceedings, settlements or similar proceedings have been opened;
- …
