The liquidator within the framework of the european insolvency regulation

• Autore: Antonio Leandro
• Pagine: 257-265

ANTONIO LEANDRO

THE LIQUIDATOR WITHIN THE

FRAMEWORK OF THE EUROPEAN

INSOLVENCY REGULATION

Summary: 1. General overview of the liquidator’s tasks in the European Insolvency

Regulation («EIR»): items in common between principal and secondary insol-

vency proceedings. – 2. The «main liquidator». – 3. ...and the «secondary liqui-

dator». – 4. Coordination and co-operation between the liquidators so as to

achieve the primary aims of the EIR. – 5. Concluding remarks given the prospect

of EIR revision.

1. According to the European Insolvency Regulation («EIR»), the liqui-

dator is «any person or body whose function is to administer or liquidate as-

sets of which the debtor has been divested or to supervise the administration

of his affairs» (Article 2 (b))1.

It is worth bearing in mind that the EIR allows the opening of two kinds

of proceedings: the main proceedings, to be opened in the Member State

where the debtor has his centre of main interests («COMI»), and second-

ary proceedings, to be opened in a Member State where the debtor (whose

COMI is in another Member State) has an establishment2. Secondary pro-

ceedings may even be opened prior to main proceedings, in compliance with

Article 3, para. 4.

Given that the debtor may have only one COMI and several establish-

ments, the EIR allows for the coexistence, within a cross-border insolvency

phenomenon related to the same debtor, of one main proceedings and several

secondary proceedings.

1 The persons who carry out the function of liquidator (according to the law of the Member

States) are listed in Annex C to the EIR (updated from time to time by ad hoc EU Regulations).

Some Courts appoint more than one liquidator in the same proceedings given that a single function

does not necessarily mean that only one person may perform it. This practice would not seem to be

contrary to EIR provisions.

2 For a recent characterization of the EIR heads of jurisdiction, see European Court of Justice,

20 October 2011, C-396/09, Interedil, respectively paras. 41 ff. and 64. The judgment, not yet pub-

lished, is available on the ECJ website www.curia.europa.eu.