Article 6(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, read in conjunction with Article 2(12) and Article 3(1) thereof,
Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 4 June 2026 ( 1 )
Case C ‑ 41/25
HX, as insolvency administrator of Orsay GmbH
v
Skarb Państwa, Naczelnik II Urzędu Skarbowego Warszawa-Śródmieście
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) 2015/848 – Insolvency proceedings – Article 6(1) – International jurisdiction of the courts of the Member State of the opening of insolvency proceedings – Avoidance action – Action brought against the tax authority of another Member State – Principle of State immunity from jurisdiction )
Table of contents
I. Introduction
II. Legal framework
A. International law
B. European Union law
C. German law
III. The facts in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
IV. Analysis
A. Material scope of Regulation 2015/848
1. The relationship between Regulation 2015/848 and Regulation No 1215/2012
2. The application of Regulation 2015/848 to an avoidance action relating to payments made to a tax authority under a tax law
3. Interim conclusion
B. Impact of the principle of immunity from jurisdiction, when raised in an avoidance action, on the exercise of the jurisdiction of the Member State in which insolvency proceedingshave been opened
1. Preliminary remarks
(a) The relationship between EU law and international law
(b) The classification of the act providing the basis for the payments to which the avoidance action relates as an act performed in the exercise of public powers
2. Whether the EU legal order contains mechanisms for adjusting immunity from jurisdiction
3. The application of mechanisms for adjusting immunity from jurisdiction within the EU legal order
(a) Reasons based on Regulation 2015/848
(b) Reasons based on primary EU law
4. Final observations
5. Proposed answer
V. Conclusion
I. Introduction
1. Par in parem non habet imperium , or ‘an equal has no authority over an equal’, is the expression of a principle of customary international law concerning immunity from jurisdiction. Can that principle be invoked to oppose the application of EU law? In particular, can that principle be invoked to oppose the application of secondary EU law, as set out in Regulation (EU) 2015/848 ( 2 ) governing international jurisdiction in insolvency proceedings, including in actions brought against the public authorities of a Member State other than the State of the opening of insolvency proceedings? The essence of the case brought before the Court may be summarised in that way.
2. In this case, the Court is thus asked to provide clarification on the relationship between a principle of customary international law concerning immunity from jurisdiction and an instrument of EU private international law which is applicable in cross-border insolvency proceedings and, in general, to consider the extent of the competences transferred by the Member States to the European Union, in particular in the area of its policy on the establishment of an area of freedom, security and justice.
II. Legal framework
A. International law
3. In the request for a preliminary ruling, reference is made to the European Convention on State Immunity. ( 3 ) Certain interested parties also refer to the United Nations Convention on Jurisdictional Immunities of States and Their Property, ( 4 ) Articles 5 to 8 of which will be relevant to this analysis. ( 5 )
B. European Union law
4. For the purposes of the present analysis, the following provisions of Regulation 2015/848 are relevant: recitals 2 to 5, 8, 35, 63 and 66, Article 2(12), Article 3(1) and (2), Article 6(1) and (2), Article 7(1) and (2)(m), Article 16, Article 53, Article 54(1) and Article 55(1).
C. German law
5. Paragraph 129 of the Insolvenzordnung (Insolvency Code), entitled ‘Principle’, provides:
‘(1) The Insolvenzverwalter (insolvency administrator) may, under the conditions laid down in Paragraphs 130 to 146, challenge legal acts which were performed prior to the opening of the insolvency proceedings and are detrimental to creditors.
(2) An omission is treated as a legal act.’
6. Paragraph 130 of the Insolvency Code, which is headed ‘Congruent coverage’, provides:
‘(1) A legal act which grants an insolvency creditor or enables an insolvency creditor to obtain security or satisfaction may be challenged:
1. where that act was performed in the three months preceding the request for the opening of insolvency proceedings and, at the time it was performed, the debtor was insolvent and the creditor had knowledge of the insolvency; or
2. where that act was performed after the request for the opening of proceedings and, at the time it was performed, the creditor had knowledge of the insolvency or of the request for the opening of proceedings.
…
(2) Knowledge of the insolvency or of the request for the opening of proceedings is equated with knowledge of circumstances necessarily indicating the fact of the insolvency or of the request for the opening of proceedings.
(3) A person who was closely connected with the debtor at the time of the act (Paragraph 138) is presumed to have had knowledge of the insolvency or of the request for the opening of proceedings.’
III. The facts in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
7. Orsay GmbH, a company established in Germany, lodged a request for the opening of insolvency proceedings with the Amtsgericht Offenburg (Local Court, Offenburg, Germany) on 25 November 2021. By letter of 29 November 2021, Orsay informed the Polish State Treasury of that request.
8. On 17 and 24 December 2021, Orsay paid the Polish State Treasury sums amounting, respectively, to 2 773 179 zlotys (PLN) (approximately EUR 590 000) and PLN 3 557 487 (approximately EUR 768 000). Those sums were due by way of value added tax (‘VAT’) for the months of October and November 2021 in respect of goods imported into Poland from third countries.
9. On 26 January 2022, the Amtsgericht Offenburg (Local Court, Offenburg) opened insolvency proceedings in respect of Orsay. On 1 November 2022, that court appointed HX as the insolvency administrator of Orsay.
10. Before the German court of first instance, HX brought an action against the Polish State Treasury for partial repayment of the sums paid by way of VAT after the request for the opening of insolvency proceedings. According to HX, those payments reduced the insolvency estate to the detriment of Orsay’s other creditors. The sums paid should therefore be repaid and restored to that estate.
11. The courts of first instance and of appeal held, however, in the light of the plea of immunity from jurisdiction advanced by the Polish State Treasury before them, that the action was inadmissible on the ground that the German courts did not have jurisdiction to rule on it because of the immunity from jurisdiction enjoyed by the Polish State Treasury. HX appealed on a point of law to the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court.
12. That court is uncertain as to the exercise of its jurisdiction to hear an avoidance action brought against a Polish tax authority. In particular, it refers to the principle of customary international law under which a State is not subject to the jurisdiction of a court of another State, in particular where acts iure imperii representing the exercise of the sovereignty of another State are concerned. The referring court also observes that, in accordance with its case-law, State immunity may be waived by means of an international treaty, a private law contract or an express declaration made in specific legal proceedings before the court. It states that Regulation 2015/848 does not take precedence over those general rules of international law. It therefore asks whether Article 6(1) of Regulation 2015/848 contains an implied waiver by the Member States of their immunity from jurisdiction as regards insolvency proceedings and proceedings closely linked thereto, such as avoidance actions.
13. In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 6(1) of [Regulation 2015/848] be interpreted as meaning that, in view of the recognition of foreign insolvency proceedings, it contains an implied waiver by the Member States … of the principle of State immunity for actions in which the insolvency administrator, in accordance with the applicable insolvency law, claims that legal acts in relation to a Member State are voidable because they are to the detriment of the general body of creditors?’
14. The order for reference was received at the Registry of the Court of Justice on 23 January 2025. Written observations were submitted by the Austrian, Italian and Polish Governments and by the European Commission. At the hearing on 9 February 2026, oral argument was presented on behalf of those interested parties, of the Commission and of the Spanish and French Governments.
IV. Analysis
15. By the single question it has referred to the Court in the present case, the referring court seeks to ascertain, in essence, whether Article 6(1) of Regulation 2015/848 must be interpreted as meaning that it contains an implied waiver by the Member States of the principle of immunity from jurisdiction in respect of actions such as an avoidance action.
16. In their written and oral observations, the interested parties and the Commission disagree on the answer to be given to the question referred for a preliminary ruling.
17. Before turning to the analysis of the question referred in the present case, I would note that its distinctive feature lies in the circumstances relating to the basis of the debt which the debtor paid after the lodging of the request for the opening of those proceedings, which was a tax debt, and to the nature of the creditor, now the defendant in the main proceedings, which is a tax authority of a Member State other than the State in which the insolvency proceedings were opened. ( 6 )
18. In order to provide a useful answer to the referring court, I will, in the first place, resolve all the uncertainties surrounding the application of Regulation 2015/848 to an avoidance action brought against a tax authority of a Member State other than the State of the opening of insolvency proceedings. In particular, I will demonstrate that Article 6(1) thereof does indeed apply to such an action. In the second place, I will examine the impact of the principle of immunity from jurisdiction, when raised in an avoidance action, on the exercise of the jurisdiction of the Member State of the opening of insolvency proceedings. In particular, I will describe the relationship between EU law and international law and confirm that the avoidance action at issue in the main proceedings concerns payments made pursuant to an act in the exercise of public powers. Thus, I will set out not only the reasons that lead me to consider that adjustments may be made to the principle of immunity from jurisdiction within the EU legal order, but also the reasons that lead me to conclude that such an adjustment is made by Regulation 2015/848.
A. Material scope of Regulation 2015/848
19. The Italian Government submits, in essence, as it confirmed at the hearing, that a situation such as that at issue in the main proceedings falls outside the scope of Regulation 2015/848, as it would conflict with the limits laid down by Regulation (EU) No 1215/2012, ( 7 ) which, that government argues, are transposable to Regulation 2015/848 because Regulation No 1215/2012 is a general regulation. Moreover, tax authorities are concerned by insolvency proceedings only in so far as they relate to their active role as creditors.
20. In that regard, it will be necessary to examine, first of all, the relationship between Regulation 2015/848 and Regulation No 1215/2012 and, in particular, the question of whether the limitation of scope provided for by Regulation No 1215/2012 applies to Regulation 2015/848, only then going on to analyse whether the situation at issue in the main proceedings falls within the scope of the latter regulation.
1. The relationship between Regulation 2015/848 and Regulation No 1215/2012
21. It is obvious that if Regulation 2015/848, which the referring court asks the Court to interpret, did not apply to an avoidance action brought by an insolvency administrator in the Member State of the opening of proceedings against the tax authority of another Member State, there would be no need to analyse whether that tax authority was entitled to oppose the exercise of international jurisdiction by the referring court on the basis of its immunity from jurisdiction. However, as I will explain below, I do not share the Italian Government’s reservations regarding the applicability of Regulation 2015/848 to the situation at issue in the main proceedings.
22. The issue of the relationship between Regulation 2015/848 and Regulation No 1215/2012 appears to me to be expressly governed by those regulations and by the relevant case-law. Article 1(1) of Regulation No 1215/2012 provides that that regulation applies in civil and commercial matters. It stipulates that its scope does not extend to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority ( acta iure imperii ). Furthermore, Article 1(2)(b) expressly excludes bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings from the scope of the regulation. Such proceedings do however fall within the scope of Regulation 2015/848, as provided by Article 1(1) thereof, entitled ‘Scope’.
23. In that regard, I would observe that, with regard to those matters, that exclusion was already provided for by the Brussels Convention ( 8 ) and the later regulations that succeeded it, namely Regulation (EC) No 44/2001 ( 9 ) and Regulation (EC) No 1215/2012, which is currently in force, and, as regards insolvency proceedings, by Regulation No 1346/2000, ( 10 ) which has been replaced and repealed by Regulation 2015/848.
24. Furthermore, the Virgós-Schmit Report ( 11 ) emphasises that insolvency proceedings, which are collective actions, require legal positions to be clearly determined, which can only be achieved by a suitable legal instrument adopted by the contracting Member States. ( 12 ) In view of the fact that the rules governing insolvency matters are specific and derogatory with respect to the general rules of civil and commercial law, it is entirely justified for the rules of international jurisdiction concerning insolvency proceedings and those applicable in civil and commercial matters to be clearly delimited.
25. Thus, it is clear from the Court’s case-law, in essence, that legal instruments relating to the determination of international jurisdiction in civil and commercial matters, on the one hand, and in insolvency proceedings, on the other, must be interpreted in such a way as to avoid any overlap between the rules of law that those texts lay down and any legal vacuum. ( 13 ) Actions excluded under the regulation concerning international jurisdiction in civil and commercial matters fall within the scope of the regulation concerning international jurisdiction in insolvency proceedings. Conversely, actions that fall outside the scope of the latter regulation fall within the scope of the regulation concerning civil and commercial matters, ( 14 ) provided that it is applicable. ( 15 )
26. That approach was codified when the legislation was recast by Regulation 2015/848, which, in addition to defining the scope of the legislation concerning insolvency proceedings, on the one hand, and civil and commercial matters, on the other, now expressly provides that the interpretation of Regulation 2015/848 should as much as possible avoid regulatory loopholes between that regulation and Regulation No 1215/2012. ( 16 ) Logically, therefore, the limits corresponding to the matters excluded from the scope of Regulation No 1215/2012, referred to in point 22 of this Opinion, should not be transposed to the application of Regulation 2015/848.
27. However, the fact remains that before that conclusion can be applied, it must be confirmed that the situation at issue in the main proceedings does in fact fall within the material scope of Regulation 2015/848.
2. The application of Regulation 2015/848 to an avoidance action relating to payments made to a tax authority under a tax law
28. Under Article 6(1) of Regulation 2015/848, concerning the jurisdiction of the courts of the State of the opening of proceedings to hear an avoidance action, the two-fold test to be applied in determining whether that action falls within the scope of that regulation concerns the legal basis of the action and the closeness of the link between the legal action and the insolvency proceedings, such that those courts have jurisdiction to hear an action which derives directly from the insolvency proceedings and is closely linked with them. ( 17 )
29. In other words, there is nothing the wording of Article 6(1) of Regulation 2015/848, read in conjunction with Article 1(1) and Article 3(1) thereof, to indicate that, for the purposes of determining its scope, any relevance attaches to the factual circumstances that present themselves in the main proceedings, namely those relating to the basis of the debt that was discharged (a tax debt) or the nature of the creditor (a tax authority, the defendant in the main proceedings). ( 18 ) It is common ground that the main proceedings concern an action that derives directly from insolvency proceedings, and avoidance actions are in fact the only example of such an action given in Article 6(1) of Regulation 2015/848. Consequently, that action falls within the scope of that regulation.
30. In my view, that conclusion is supported by the context and objectives of Regulation 2015/848.
31. It should be borne in mind that the term ‘avoidance action’ encompasses a wide range of actions which, on the basis of the debtor’s insolvency, seek to invalidate transactions entered into by and to the benefit of the debtor. Clearly, those transactions, which may be of a civil or commercial nature, occupy an important place in the life of the debtor, influencing his or her finances and potentially having consequences when the debtor is faced with insolvency. However, in so far as they engage in civil and commercial activities, debtors are also subject to a broader set of obligations, including tax obligations. It therefore seems entirely conceivable that, in addition to debts arising out of civil and commercial transactions, debts arising out of other obligations, including tax obligations, also fall within the scope of Regulation 2015/848 once they are the subject of an avoidance action.
32. In that regard, Article 2(12) of Regulation 2015/848, which defines ‘foreign creditor’, expressly includes in that definition the tax authorities of Member States other than the State of the opening of insolvency proceedings. It is true that, in that regulation, that definition is used in the provisions which relate, in particular, to the right to lodge claims, and thus concern situations which contrast with that in which the Polish tax authority finds itself in the main proceedings. However, I do not think there is any relevant distinction to be drawn, in applying the rules on jurisdiction in insolvency proceedings, on the basis of the nature of the foreign creditors in the court proceedings, or on the basis of the right exercised by those foreign creditors, namely the right to lodge claims or the right of defence where proceedings are brought against them seeking repayment of debts paid by the divested debtor. ( 19 )
33. Furthermore, the objectives pursued by Regulation 2015/848 seem to me to run counter to any exclusion of the application of Article 6(1) in the case of an avoidance action brought against a tax authority with a view to recovering VAT payments, in the sense of the application of that provision being made to depend on a test relating to the nature of the foreign creditors or on the right exercised by those creditors. That regulation seeks to ensure the effective administration of insolvency proceedings, ( 20 ) favouring the general creditors, ( 21 ) and promotes the principle of equal treatment of creditors. ( 22 ) Those objectives could not be achieved if the test mentioned above was used to determine the applicable legal rules.
34. Lastly, the objectives of predictability of jurisdiction in insolvency matters, and therefore of legal certainty, militate in favour of an interpretation on which Regulation 2015/848 applies where an avoidance action is based on insolvency and brought against a defendant that is the tax authority of a Member State other than the State of the opening of insolvency proceedings. Harmonisation, in the European Union, of the rules governing jurisdiction in respect of avoidance actions based on insolvency contributes to the attainment of those objectives, ( 23 ) which could be impeded if a distinction was drawn, in applying the rules laid down by that regulation, on the basis of the nature of a tax claim and the nature of the creditor.
35. It follows that to exclude from the scope of Regulation 2015/848 an avoidance action brought against a tax authority of a Member State other than the State in which the proceedings were opened would unduly narrow the scope of that regulation and be contrary to the objectives it pursues.
3. Interim conclusion
36. In the light of all the foregoing considerations, I consider, first, that the limitations laid down by Regulation No 1215/2012 are not transposable to insolvency proceedings, which are subject to rules derogating from those laid down for civil and commercial matters and are covered by Regulation 2015/848. Second, Article 6(1) of the latter regulation applies where an avoidance action is brought in respect of a payment made to a tax authority of a Member State other than the State of the opening of insolvency proceedings.
37. In the light of the foregoing conclusion, I will proceed, below, to analyse the scope of immunity from jurisdiction in the EU legal order and its relationship with Article 6(1) of Regulation 2015/848, in order to determine whether such immunity from jurisdiction precludes the exercise, by the referring court, of the jurisdiction provided for by that regulation.
B. Impact of the principle of immunity from jurisdiction, when raised in an avoidance action, on the exercise of the jurisdiction of the Member State in which insolvency proceedings have been opened
38. In order to answer the question posed by the referring court in the present case, I must examine the existence of means of waiving immunity from jurisdiction within the EU legal order and their consequences. That examination will need to take account of a number of aspects of EU law, drawn both from primary law and from Regulation 2015/848, beginning, however, with some preliminary remarks.
1. Preliminary remarks
39. In that regard, it is necessary first of all to describe the way in which EU law approaches general international law, in its customary form, ( 24 ) as well as the particular features of EU law. It will then be necessary to make some more detailed observations on the characterisation of the act which serves as the basis for the payments which the insolvency administrator is seeking to recover through the avoidance action.
(a) The relationship between EU law and international law
40. It should be recalled that the European Union is a subject of international law and that, as such, it is a holder of international rights and is subject to international obligations. In particular, it is required to observe general international law, of which it forms part. Furthermore, it must ensure compliance with international rules for its Member States, so as not to compel them to breach obligations arising from the codifying instruments to which they are party. ( 25 )
41. In that regard, Article 3(5) TEU, which now codifies the Court’s case-law, ( 26 ) states that, in its relations with the wider world, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union. ( 27 )
42. That being so, the European Union, which certainly shares the ‘genetics’ of international organisations by virtue of its creation by treaty, its international legal personality, the fact that it is composed of States, and the definition of its competences or its international action, is a unique subject of international law, with a particular nature that cannot be reduced to a mere international organisation but still does not constitute a State. ( 28 )
43. The Court has repeatedly held that the founding Treaties of the European Union ( 29 ) endowed it with a new autonomous legal order, with which it must ensure compliance. ( 30 ) That autonomy of EU law with respect both to the law of the Member States and to international law is justified by the essential characteristics of the European Union and its law, relating in particular to the constitutional structure of the European Union and the very nature of that law. EU law is characterised by the fact that it stems from an independent source of law, namely the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. Those characteristics have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the European Union and its Member States reciprocally as well as binding its Member States to each other. ( 31 )
44. That autonomy, which is, above all, characteristic of the relationship between EU law and the laws of the Member States, ( 32 ) also has a significant impact on the framing of the legal relationships between Member States within the European Union and, ultimately, on the conclusion to be drawn regarding the consequences for those legal relationships of the interplay between customary international law and EU law. The Member States of the European Union have obligations both from the point of view of the EU legal order and from the point of view of international law.
45. In that regard, I am not the first to recognise that there is a delicate relationship between the European Union’s obligations, on the one hand, to comply with international law and, on the other hand, to ensure its autonomy, or that it is important to maintain a balance between safeguarding the European Union’s constitutional identity and making sure that EU law does not become hostile to the international community, but is an active part of it. ( 33 ) If the obligations and legal norms deriving from two different legal orders are to coexist harmoniously, therefore, neither EU law nor international law – and in particular customary international law – can be used to avoid commitments in the other legal order concerned.
46. As regards international custom in general, this can be defined as a ‘normative process leading to the creation of a norm of international law, initially unwritten. … [the] custom results from the combination of an actual practice and the acceptance by States of the legal – and therefore mandatory – nature of that practice ( opinio juris sive necessitatis )’. ( 34 ) It is therefore a creation of a specific nature, to the extent that its existence does not depend on the consent of those to whom it applies. ( 35 ) As regards derogation from international custom, this is conceivable only in the context of inter partes relations since, being universally applicable, such custom always binds third parties who have not agreed to apply a rule departing from customary international law. ( 36 )
47. As regards, in particular, immunity from jurisdiction, it must be borne in mind that, enshrined in customary international law, it protects States from suit before foreign courts. That immunity, based on the par in parem non habet imperium principle, which holds that an equal has no authority over an equal, has been held by the Court, in the light of international practice, not to be absolute in nature. Its operation is dependent on the nature of the acts carried out. In particular, it may be excluded if the legal proceedings relate to acts which do not fall within the exercise of public powers, namely acts performed iure gestionis , but is generally applied where the dispute concerns sovereign acts performed iure imperii . That interpretation of the scope of the principle of immunity from jurisdiction follows from settled case-law. ( 37 )
48. That having been set out, I will now provide some clarification on the classification of the act which serves as the basis for the payments which the insolvency administrator seeks to recover in the main proceedings and its consequences in terms of how the issue arising in the present case is addressed.
(b) The classification of the act providing the basis for the payments to which the avoidance action relates as an act performed in the exercise of public powers
49. As already stated, it is apparent from the case-law of the Court that immunity from jurisdiction can be invoked only where there is an act performed in the exercise of public powers.
50. In that regard, there is no doubt that the avoidance action and the right of restitution exercised through it fall within the scope of the rules governing insolvency matters. There is equally no doubt that the payments due by way of VAT and made to the tax authorities, which the insolvency administrator seeks to set aside, are based on a tax law of a Member State of the European Union other than the State of the opening of insolvency proceedings. It is self-evident that the power to impose and collect VAT is a paradigmatic example of a sovereign power of a State. Such powers are vested in a public authority with a view to organising its tax revenue, on which, more generally, public finances are dependent. Thus, both legal relationships are present in the present case, in that the avoidance action seeks to recover payments received pursuant to an act in the exercise of public powers.
51. The referring court draws the Court’s attention to the view – which it does not share – expressed in some of the German academic commentary, which suggests that, where an avoidance action is brought in respect of a payment made pursuant to tax law, it may be considered that the situation does not involve an act in the exercise of public powers. In essence, the right of restitution exercised through the avoidance action is not derived from the previous legal relationship between the insolvent debtor and the defendant in the avoidance action.
52. I consider, however, that such a view cannot withstand the application of the criteria derived from the case-law of the Court, as set out in point 47 of this Opinion. In classifying the act, the decisive factor is the source of the claimant’s claim. In particular, it is necessary to determine whether that claim arises from an act in the exercise of public powers. In contrast, the nature of the action brought by the claimant is irrelevant for the purposes of that classification. Thus, an action seeking monetary compensation for the material and non-material damage caused to the applicants – a civil action par excellence – was held to be excluded from the scope of the Brussels Convention, precisely because it was directed against an act in the exercise of public powers. ( 38 )
53. I consider that that case-law is perfectly transposable to the situation at issue in the main proceedings. In determining whether an act is to be classified as iure imperii or iure gestionis , the touchstone is not the nature of the right exercised in proceedings, nor that of the action brought before the national courts, but that of the act that is sought to be set aside. ( 39 )
54. In that regard, it is important to emphasise that the existence of the tax debt, and more generally the State’s power to determine the amount of that debt, would not be affected by an action such as that in the main proceedings. The courts of the Member State of the opening of insolvency proceedings would not need to assess the legality of the tax, since its legality is irrelevant in the context of an avoidance action. Nevertheless, the exercise of that power would depend on the law of the Member State of the opening of insolvency proceedings, which would thus determine the point in time when its exercise could take effect. That is the only basis on which the tax authority of another Member State could be ordered to repay sums collected in the exercise of its public powers.
55. It would thus, at the very least, be artificial to focus on the nature of the right exercised through the avoidance action, or even the nature of that action itself, so as to neutralise the true nature of the act sought to be set aside, here the collection of VAT. To adopt a different view would also have highly questionable consequences for the scope of the principle of immunity from jurisdiction in the EU legal order.
56. First, there would be a risk of depriving the distinction between acts iure imperii and iure gestionis of its meaning, by focusing instead on the nature of the right exercised or of the action brought against such acts. In particular, to depart, in a manner entirely unprecedented in insolvency proceedings, from the well-established practice as regards the characterisation of such acts would cause the State invoking immunity from jurisdiction to disappear from the legal analysis. ( 40 ) Secondly, such a conclusion would thus create legal uncertainty, because the characterisation of acts iure imperii or iure gestionis could vary depending on the field in question. ( 41 )
57. That having been said, I would note that, if the practice of distinguishing between acts iure imperii and iure gestionis were followed in the present case, the analysis would stop at the conclusion that immunity from jurisdiction precludes the exercise, by the referring court, of the jurisdiction provided for by Regulation 2015/848, because the payments which the insolvency administrator is seeking to set aside, for the benefit of the insolvency estate, were made pursuant to an act iure imperii adopted by a Member State other than the State of the opening of proceedings. I consider nonetheless that, for the reasons I will set out below, the situation in the main proceedings is manifestly more complex, and thus the classification of an act as iure imperii does not automatically rule out the exercise of the international jurisdiction of the referring court.
58. In the analysis below, I will examine, first, whether the EU legal order contains mechanisms for adjusting immunity from jurisdiction and, secondly, whether any such mechanisms apply in the situation at issue in the main proceedings.
2. Whether the EU legal order contains mechanisms for adjusting immunity from jurisdiction
59. It is common ground that, in customary international law, an express waiver of immunity may take three forms, which form can result from an international agreement, from a written contract, or from a declaration before the court or a communication in a specific proceeding. It is also common ground that, again in the context of customary international law, such a waiver may be implied if it can be inferred from an international agreement or from a treaty.
60. The governments of the Member States submitted at the hearing that, in the EU legal order, only an express waiver of immunity from jurisdiction, expressed by the Member States themselves, can be valid. Thus, such a waiver cannot be contained in an act of secondary legislation, nor can it be implied. The European Union, which has legal personality, does not have a general competence to waive that immunity on behalf of the Member States.
61. In that regard, in the first place, I would observe that the European Union is the creation of its Member States. It originates from the will of the Member States, as expressed in the binding agreements concluded by them, currently the TEU and the TFEU, which define the objectives pursued by the European Union, the rules governing the functioning of its institutions, the decision-making processes, and relations between the European Union and the Member States. ( 42 ) That will of the Member States is also the basis on which the European Union has been progressively endowed with the competences that the Member States have decided to transfer to it, and with a legal personality distinct from that of its members.
62. Again on the basis of their will, the Member States have thus agreed to limit their sovereign rights for the benefit of the EU legal order, and have done so in ever wider fields. ( 43 ) That limitation of sovereign rights is a direct consequence of the transfer, from their internal legal order to the EU legal order, of competences in the fields provided for by the Treaties. While the Member States’ limitation of their rights, which would take precedence over any subsequent unilateral act incompatible with EU law, is definitive, it is nonetheless circumscribed by the Treaties.
63. Clearly, the limitation of the sovereign rights of the Member States for the benefit of the EU legal order, by means of the transfer of competences, does not make the European Union a State or deprive the Member States of their sovereignty in absolute terms. The Member States become integrated, in the sense that they have committed themselves ‘to a process of joint exercise of sovereignty, including in areas touching on its essential attributes’. ( 44 )
64. That having been said, the Member States remain ‘masters of the Treaties’ because they have sole power to amend them, ( 45 ) and, more generally, they are sovereign in the traditional sense, having the power to take a decision on membership of the European Union. ( 46 ) Similarly, the Member States retain their sovereignty, in particular as regards ‘their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government … [and] their essential State functions ’. ( 47 )
65. In that regard, whilst immunity from jurisdiction undoubtedly constitutes an important aspect of State sovereignty from both an internal ( 48 ) and an external ( 49 ) perspective, it lies somewhere between the limitation of sovereign rights by the transfer of certain competences to the European Union, and the sovereignty which ‘persists and subsists in the EU Member State’. ( 50 ) Logically, accession to the European Union may be understood as acceptance by the Member States of the limitation of their internal sovereignty or, in other words, of the freedom of internal organisation of the Member State, which depends from that time onward on a collective decision, in the areas determined by the Treaties.
66. In particular, the fact that normative powers are exercised by the European Union in place of its Member States means that the provisions of the Treaties in various areas of EU policy authorise it to act so as to adopt substantive rules on the basis of those powers. In other words, in order for the provisions on the competences of the European Union to produce effects, the European Union is empowered to adopt acts of secondary legislation.
67. That being so, the adoption of acts of secondary legislation does not divest the Member States of all decision-making power, nor does it cause those States to disappear behind the European Union, in the sense that those acts are not adopted in the absence of their State participation. The ‘triangular’ institutional structure of the European Union ( 51 ) and the processes for adopting secondary legislation are designed in such a way that the legal adoption of such acts is impossible without the institutional participation of the Member States. In particular, such participation is ensured within the Council.
68. Consequently, while it is true that the Member States have transferred their competences to the European Union in order for it to adopt acts of secondary legislation, it would not be legally correct to conclude, as the governments of the Member States seem to suggest before the Court, that when such acts are adopted, the European Union is acting entirely independently of its Member States, as a separate legal entity, so as to rule out any possibility that a waiver of immunity from jurisdiction may not only exist in the EU legal order, but may arise from an act of secondary legislation. In particular, I am of the view that the fact that a waiver may be contained in an act of secondary legislation does not mean, in itself, that the waiver is not legally valid, as the European Union acts within the confines of the will of its Member States and in accordance with a decision-making structure which, in particular, confers on those States a power of co-decision.
69. In the second place, therefore, the question arises of whether an implied waiver, inferred from an act of secondary legislation, is possible. In that regard, a requirement that any derogation from immunity from jurisdiction must be express might not seem well-adapted to EU law, which is made up of a very broad set of rules which cannot be reduced to a special regime of limited material scope, namely a number of international treaties and a large body of rules of secondary legislation. Thus, it might simply prove impossible to lay down a categorical requirement that any derogation from an international custom must be express. ( 52 ) Furthermore, I would note that, given this implied nature, the intention to waive need not necessarily relate directly to the immunity itself, but may also appear from the terms of an act or its logic. Thus, such an intention may be inferred from the act or its logic, if its application has no effect in the absence of the waiver.
70. I would also note that, as reflected in the positions of the governments of the Member States, it is common ground that there is similarly no requirement in international law for a waiver to be express, as an implied waiver of immunity from jurisdiction exists in law. In a situation where the European Union acts within the limits of the competence granted by the Treaties, I differ from the governments of the Member States in seeing no reason to rule out the possibility that, as in the case of an international agreement concluded between two or more States in international law, a tacit waiver may exist in the EU legal order.
71. In my view, the argument based on the European Union having a legal personality distinct from that of its members, which was advanced by the governments of the Member States at the hearing, does not invalidate the foregoing conclusion. That legal personality is expressed through that which corresponds to the objectives assigned to the European Union, whose field of competence is governed by the Treaties. In particular, it enables the European Union to act, both internally (through the right to contract, acquire and sell goods and bring legal proceedings) and at international level (through, inter alia, the power to conclude international agreements). Thus, the conferral of legal personality was based on the idea of enabling the European Union to ‘speak with one voice’ on the international stage and to be coherent and effective in its external action, ( 53 ) but it does not prevent the European Union’s competences from being exercised in accordance with the will of the Member States, which means that the Member States do not disappear entirely behind the European Union , although it is endowed with legal personality.
72. That having been said, within the EU legal order, which is characterised by what may be described as a ‘reconfigured’ sovereignty of its Member States, ( 54 ) the limitation of sovereign rights resulting from accession to the Union, which is reflected in that exercise of competences, does not automatically entail a waiver of immunity from jurisdiction across the entire EU legal order. Such a conclusion, applied absolutely to all areas governed by EU law, and preventing the Member States from objecting to the courts of another Member State passing judgment on them, would have no legal basis in the Treaties and would be, at the very least, disproportionate.
73. In other words, it does not follow from the fact that the Member States have limited their sovereign rights for the benefit of the EU legal order that there has been any general waiver of their immunity from jurisdiction, in that that limitation could apply in all areas determined by the Treaties as regards the organisation of certain areas of those States’ internal policies.
74. However, in order to achieve the objectives pursued by the European Union, ( 55 ) ensure its autonomy and respect its system of mutually interdependent principles, rules and legal relationships reciprocally binding the European Union itself and its Member States, and the Member States inter se , ( 56 ) it is reasonable to conclude that customary international law, in so far as it concerns the principle of immunity from jurisdiction, is adjusted within the EU legal order. In particular, it cannot be excluded, first, that a specific waiver of immunity from jurisdiction may be provided for in EU law or, second, that such a waiver need not be express, but, paralleling the types of waiver recognised in international law, may also be implied. That conclusion is all the more compelling in view of the need to ensure the harmonious coexistence of obligations and norms deriving from two different legal orders, as described in point 45 of the present Opinion.
3. The application of mechanisms for adjusting immunity from jurisdiction within the EU legal order
75. I consider that there are reasons based on both Regulation 2015/848 and primary EU law that justify the conclusion that a specific and implied waiver of immunity from jurisdiction can be inferred from that regulation, which it is appropriate to examine below.
(a) Reasons based on Regulation 2015/848
76. As a preliminary point, I would observe that neither Article 6(1) of Regulation 2015/848, read in conjunction with Article 3(1) thereof, nor that regulation as a whole contain any reference to an express waiver of the principle that the Member States of the European Union have immunity from jurisdiction where an avoidance action is brought against a tax authority of a Member State other than the State of the opening of proceedings. That having been said, I consider that there are several reasons underlying the context and objectives of that regulation which suggest that an implied waiver can be inferred.
77. In the first place, I would observe that the stipulations concerning the determination of jurisdiction, under Regulation 2015/848, are, in essence, that the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated have jurisdiction to open insolvency proceedings ( 57 ) and to hear any action which derives directly from the insolvency proceedings and is closely linked with them, such as avoidance actions. ( 58 ) The law applicable to insolvency proceedings and their effects is that of the Member State within the territory of which such proceedings are opened. ( 59 ) That law determines the claims which are to be lodged against the debtor’s insolvency estate and the treatment of claims arising after the opening of insolvency proceedings. ( 60 ) Furthermore, any creditor may lodge its claim in the main insolvency proceedings and in any secondary insolvency proceedings, ( 61 ) including the tax authorities of a Member State. ( 62 ) The regulation thus aims to ensure the equal treatment of all creditors. ( 63 )
78. The consequence of accepting that a tax authority, which is, moreover, expressly included in the definition of foreign creditors in Article 2(12) of Regulation 2015/848, may invoke its immunity from jurisdiction in the context of a dispute such as that in the main proceedings, would be precisely to create inequality between creditors, contrary to the objectives of Regulation 2015/848. The Polish tax authority would obtain, in advance of the general creditors, full payment of its claim, whereas all the other creditors would be entitled only to a payment proportionate to their claim and, moreover, dependent on their rank. Furthermore, it is clear that the national tax authorities – unlike the Polish tax authority – would not be able to claim immunity before their own national courts. ( 64 )
79. More generally, such an approach would undermine the uniform and consistent application of the rules of jurisdiction laid down in Regulation 2015/848, since the exercise of jurisdiction under the rules of that regulation would vary depending on the nature of the defendant and the State of the opening of proceedings concerned, when there is nothing in that regulation to justify such a difference in treatment based on that nature. ( 65 )
80. In the second place, it is apparent from Regulation 2015/848 that its adoption was regarded as necessary to achieve the objective of efficient and effective operation of cross-border insolvency proceedings, ( 66 ) and to improve the efficiency and effectiveness of insolvency proceedings having cross-border effects. ( 67 ) Having regard to the cross-border effects of undertakings’ activities, and therefore of insolvency proceedings relating to them, the regulation emphasises the need to coordinate the measures taken in respect of the assets of an insolvent debtor. In particular, it was considered necessary for the provisions on jurisdiction, recognition and applicable law in this area to be contained in an EU act that is binding and directly applicable in all Member States.
81. In that regard, it is clear that if an authority of a Member State other than the State of the opening of proceedings could rely on its immunity from jurisdiction, that effectiveness might be undermined. Such an objection to the exercise of jurisdiction, in the context of Regulation 2015/848, would result in payments made to a foreign creditor, in the present case, a tax authority of another Member State, not being returned to the insolvency estate, and would be detrimental to that estate.
82. Moreover, Regulation 2015/848 provides for some derogations from the rules it sets out. Those derogations are exceptional, however. ( 68 ) In particular, the regulation as a whole appears to me to reflect a clear intention on the part of the EU legislature to avoid any obstruction to judicial cooperation between Member States in the context of insolvency proceedings and suggests that acts iure imperii have no impact on the exercise of jurisdiction as provided for in Regulation 2015/848.
83. The conclusion that acts iure imperii have no impact on that exercise of jurisdiction seems to me, moreover, to be supported by other legal instruments relating to the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, in which the EU legislature has been careful to insert express provisions excluding, from the scope of those instruments, actions brought against a State for the purpose of holding it liable for acts or omissions in the exercise of State authority. ( 69 ) Thus, I consider that the absence of any such express exclusion in Regulation 2015/848 indicates an intention not to attach any effect to acts in the exercise of public powers in the context of the rules laid down by that regulation.
84. More generally, as regards the certainty and foreseeability of EU law, I turn my mind to the logic underlying Regulation 2015/848, as an act of secondary law intended to implement the objectives laid down in Article 81 TFEU. In particular, what would remain of the principles governing conflicts of international jurisdiction in insolvency proceedings if Member States were permitted to depart from them in circumstances where, first, that regulation is binding on them in its entirety and, second, it does not contain any derogation based on the public and foreign nature of the creditor permitting reliance on immunity from jurisdiction?
85. In the third place, and lastly, I would point out that the Court has confirmed that the international jurisdiction to hear actions which derive directly from insolvency proceedings and are closely connected with them, such as avoidance actions, is exclusive in nature. ( 70 )
86. In that regard, I must consider the question of respect for effective judicial protection. In particular, if the referring court could not exercise its jurisdiction to hear an avoidance action brought against a tax authority of another Member State, the insolvency administrator would risk being deprived of the right of access to a tribunal, which is one of the elements of the right to effective judicial protection in Article 47 of the Charter of Fundamental Rights of the European Union. An action before the Polish courts would be inadmissible on account of exclusive jurisdiction. The opening of secondary insolvency proceedings in a Member State other than the State of the opening of main proceedings constitutes an exception, conditional on the debtor having an establishment ( 71 ) in that other Member State. ( 72 )
87. In my view, the issue of whether immunity from jurisdiction can be invoked cannot possibly depend on whether or not secondary proceedings can be opened. Furthermore, even if secondary proceedings could be opened in the case before the referring court, to open them for the sole purpose of bringing an avoidance action would be contrary to their objective, which is, in essence, to contribute to the efficient administration of the debtor’s insolvency estate or to the effective realisation of the total assets. ( 73 ) In the absence of an establishment, the insolvency administrator would be deprived of an effective remedy. Such a consequence cannot be justified by the nature of the act in the exercise of public powers that formed the basis for the payments that the insolvency administrator is seeking to set aside.
88. In that regard, before the Court, the governments of certain Member States submit that the possibility of invoking immunity from jurisdiction is not dependent on whether it is possible to open secondary proceedings or on the existence of another remedy in respect of the acts of the tax authority of a Member State other than the State of the opening of proceedings. The other governments claim that, in the situation arising in the present case, there is no deprivation of the right of access to a tribunal, since a competent court is designated, but declares the action inadmissible.
89. I am not convinced by those arguments of the governments of the Member States, which were presented, inter alia, at the hearing.
90. In cases where immunity from jurisdiction has been invoked, the Court has held that the referring court must satisfy itself that, if it upheld the plea based on immunity from jurisdiction, individuals would not be deprived of their right of access to the courts, which is one of the elements of the right to effective judicial protection in Article 47 of the Charter of Fundamental Rights of the European Union. ( 74 ) If it were to be held that there was access to a tribunal, in circumstances where immunity from jurisdiction prevented the exercise of international jurisdiction, I would question, amongst other things, the scope of that right to effective judicial protection and, in particular, whether that right would be reduced to nothing by such an analysis. In my view, if the position adopted by the governments of the Member States was endorsed, there would be a risk that the insolvency administrator would be effectively denied access to the courts, with no foreseeable alternative enabling him to bring an avoidance action against the Polish tax authority.
91. All the considerations based on Regulation 2015/848 lead me to conclude that that regulation contains an implied waiver of immunity from jurisdiction. That conclusion on the implied waiver of immunity from jurisdiction in the instrument of secondary legislation that is Regulation 2015/848 is also consistent with primary law, thus demonstrating the clear and unequivocal will of the Member States to give precedence to the principles governing the conflicts of jurisdiction that may arise given the different legal systems and their individual rules of jurisdiction in insolvency proceedings as they relate to immunity from jurisdiction.
(b) Reasons based on primary EU law
92. In my view, the existence of an implied waiver of immunity from jurisdiction, in the context of the application of Regulation 2015/848, is not only consistent with primary law, which reflects the will of the Member States of the European Union, but can also be corroborated by its rules.
93. As a preliminary remark, I would point out that adjustments to immunity from jurisdiction are already made within the European Union. All the Member States have accepted the compulsory jurisdiction of the Court of Justice, including in relation to matters which might bring them before it, in defined areas. ( 75 ) Thus it is possible, in certain cases, for such adjustments to be made to State immunity from jurisdiction in order to conform to the particular features of the EU legal order.
94. With that in mind, in the first place, I would observe that Article 3(2) TEU, which concerns the objectives of the European Union, provides that the Union is to offer its citizens an area of freedom, security and justice. The creation of that area is provided for in Title V TFEU. In particular, Article 81(1) TFEU, which constitutes the legal basis of Regulation 2015/848, provides that ‘the Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States’. That matter falls within the scope of the competences that are shared between the European Union and its Member States, with Member States limiting their sovereign rights, in the sense described in points 62 to 66 of the present Opinion, in so far as the European Union exercises its competence.
95. Thus, by agreeing, at the time of ratification of the Treaties, to participate in the area of freedom, security and justice, to comply with EU law in that area and to grant shared competences to the European Union, the Member States have also accepted that acts of secondary legislation adopted in order to develop that area, in particular under Article 81(2) TFEU, determine the principles governing the conflicts of jurisdiction that may arise given the different legal systems and their individual rules of jurisdiction.
96. It must be inferred therefore that that acceptance extends, in accordance with the conflict-of-jurisdiction principles laid down by the legal instruments in that field, to disputes, arising in particular from insolvency proceedings, being resolved by the courts of other Member States, including disputes which derive directly from insolvency proceedings and are closely linked with them.
97. In that regard, I would note, first, that, in accordance with Protocol No 21 to the EU Treaties, which relates, in particular, to Ireland, ( 76 ) that Member State has a derogation concerning its position in respect of the area of freedom, security and justice, in that measures adopted in relation to that area are not automatically binding on it but are dependent on its voluntary participation. ( 77 ) Second, under Protocol No 22, which concerns the Kingdom of Denmark, that Member State does not take part in measures adopted in relation to the area of freedom, security and justice. ( 78 ) Thus, no obligation can be imposed on those States in that field. The same is not true of the Member States participating unreservedly in that area. If it were to be accepted that it is possible, when the regulation governing conflicts of international jurisdiction relating to insolvency proceedings is applied, to rely on the customary international law principle of immunity from jurisdiction, that might prove manifestly incompatible with the obligations incumbent on all the States, which have adhered to the Treaties on the same conditions, without any reservations other than those set out in the supplementary protocols. ( 79 )
98. In the second place, the conclusion that there is an implied exception to immunity from jurisdiction in insolvency proceedings, supported by primary law, is all the more compelling in view of the principle of equality of Member States before the Treaties, compliance with which is ensured by the European Union. ( 80 )
99. That principle originated, even before it was incorporated into the Treaties, in the case-law of the Court. ( 81 ) The Court held that adherence to the European Union (formerly the Communities) enables its members to enjoy the benefits of membership, but also imposes obligations upon them. In particular, it stated that it cannot be accepted that a Member State should apply in an incomplete or selective manner provisions of a regulation, so as to ‘render abortive certain aspects of [EU] legislation … which it considers contrary to its national interests … while at the same time taking an undue advantage to the detriment of its partners’. ( 82 )
100. Thus, in the present case, to allow the Polish tax authority to rely on its immunity from jurisdiction and thus frustrate the exercise of the international jurisdiction of the referring court by reason of the basis for the payments which the insolvency administrator is seeking to set aside, namely an act in the exercise of public powers, would be, in practice, to give national interests precedence over EU law and would jeopardise the equality of the Member States with respect to the obligations arising under EU law.
101. In that regard, frustrating the exercise of the international jurisdiction provided for by Regulation 2015/848, through the possibility of relying on immunity from jurisdiction, could be regarded as a disguised way of giving precedence to national law over EU law. However, such precedence cannot be justified in the light of the principles governing the legal order of the European Union, as explained in point 62 of the present Opinion.
102. It is true that, in accordance with Article 4(2) TEU, the European Union must respect, inter alia, essential State functions. There is no doubt that the imposition of VAT falls within the scope of those essential functions, and indeed within the scope of public prerogatives. However, whilst Member States remain the masters of their sovereign functions, they must exercise them in compliance with EU law. ( 83 )
103. By virtue of their membership of the European Union, the Member States undertake to cooperate sincerely and in a spirit of solidarity, even in areas falling within their essential functions, as stated in Article 4(3) TEU. That principle applies to all national institutions. Whilst, in the case-law, that principle is often used to undergird the obligations of Member States and the institutions of the European Union as regards cooperation, ( 84 ) the central idea behind that principle is to guarantee the reach and effectiveness of EU law through mutual respect and assistance in the fulfilment of the tasks set out in the Treaties. Logically, that cooperation principle entails not only positive obligations (taking measures to ensure the effectiveness of EU law), but also negative ones (refraining from adopting measures that would be contrary to its effectiveness, or even to the objectives of the European Union). It is clear that a plea of immunity from jurisdiction constitutes a negative act that impedes the German court in exercising its jurisdiction under EU rules and thereby undermines the effectiveness of those rules through the exercise of public prerogatives. ( 85 )
104. Lastly, I would note that such pleas might undermine the capital market, one of the key policies that the European Union aims to put in place in order to promote its economic development, and thus also that of its Member States. The uncertainty surrounding the treatment of claims in the event of cross-border insolvency, created by the possibility of invoking immunity from jurisdiction, might weaken investment and thus also reduce the efficiency of the single market as a whole. Thus, if the immunity from jurisdiction of a Member State were to be upheld in the main proceedings, the interests of one EU Member State would be given preferential treatment to the detriment of the collective interests of the Member States as a whole, those latter interests being, moreover, inherent in the very concept of the European Union.
105. For all the foregoing reasons, I am of the opinion that primary EU law, resulting from the will of the Member States, permits specific implied adjustments to the principle of customary international law regarding immunity from jurisdiction, which leads me to conclude that there is an implied waiver of immunity from jurisdiction in Regulation 2015/848. ( 86 )
4. Final observations
106. That being so, let us suppose that it was necessary to accept the position advanced by the governments of the Member States before the Court, according to which, in essence, immunity from jurisdiction, as relied on by the Polish tax authority in respect of an avoidance action brought before the German courts with a view to recovering payments made to that authority in respect of VAT, precludes the referring court from exercising the jurisdiction established by Regulation 2015/848, because that regulation does not provide for any possibility of implied waiver.
107. In that regard, apart from the fact that such a position cannot withstand the arguments based on primary law concerning the objectives and rules of conduct which the Member States have imposed upon themselves within the legal order of the European Union, in reality it would lead, if followed, to a paradoxical result . The sovereignty of a Member State other than the State of the opening of insolvency proceedings would be protected to the detriment of that State’s own sovereignty, in so far as the application of its substantive insolvency law, in accordance with the conflict-of-law rules laid down for insolvency proceedings in Regulation 2015/848, would be frustrated by the immunity from jurisdiction of another Member State.
108. Furthermore, I would note that, beyond its financial or accounting dimension, insolvency law also has a societal, more human and fundamental dimension, as it aims not only to contribute to the smooth functioning of the market, economic stability and confidence in the credit system, but also to protect the interests that Member States, in the exercise of their sovereignty and through the adoption of substantive insolvency rules, deem to be essential. Thus, those rules express social concerns, in particular those of workers and fiscal, environmental and other concerns. In particular, all those dimensions are reflected in the system of ranking of creditors, as that is what emerges from the rules of substantive insolvency law of the Member States of the European Union.
109. It does not take a great deal of imagination to understand that to accept immunity from jurisdiction in respect of an avoidance action would be to extend an open invitation to act in the same way as the Polish tax authority. If that authority was allowed to recover the tax debt in a manner inconsistent with the creditor ranking provided for by German law, with no risk of exposure to review under the law of the Member State of the opening of insolvency proceedings, then what is to prevent the tax authorities of the other Member States following suit in all other cross-border insolvency proceedings? The Member States might then be very surprised to find themselves confronted not only with the disruption of the system for managing cross-border insolvency proceedings created by Regulation 2015/848, but also the frustration of all the priority considerations laid down in their national insolvency law, because the insolvency estate might be diminished by the exercise of the tax prerogatives of another Member State to the detriment of other creditors and with no possibility of review by the courts of the State of the opening of insolvency proceedings.
110. In my view, the position taken by the governments of the Member States before the Court neutralises insolvency law in all its dimensions, in favour of immunity from jurisdiction as an element of their sovereignty. However important that element may be, it is problematic in terms of respect for the sovereignty of another Member State, whose substantive law should legally apply and in respect of which the citizens of that State may have legitimate expectations.
5. Proposed answer
111. I therefore propose that the answer to the question referred to the Court for a preliminary ruling in the present case should be that Article 6(1) of Regulation 2015/848, read in conjunction with Article 2(12) and Article 3(1) thereof, must be interpreted as permitting the inference of an implied waiver of immunity from jurisdiction where, in accordance with that regulation, the courts of the State of the opening of proceedings have international jurisdiction to hear insolvency proceedings brought against public authorities of Member States of the European Union.
112. Furthermore, in the event that the Court does not accept my proposed answer to the question referred for a preliminary ruling, I think it is important to state that, in order to avoid obstructing the insolvency administrator’s access to justice, it would then be necessary to reconsider the exclusive nature of the international jurisdiction provided for by the rules set out in Regulation 2015/848.
V. Conclusion
113. In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
Article 6(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, read in conjunction with Article 2(12) and Article 3(1) thereof,
must be interpreted as meaning that it contains an implied waiver of immunity from jurisdiction where, in accordance with that regulation, the courts of the Member State within the territory of which insolvency proceedings have been opened have international jurisdiction to hear actions which derive directly from the insolvency proceedings and are closely linked with them, brought against public authorities of the Member States of the European Union.
1 Original language: French.
2 Regulation of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19).
3 Council of Europe, European Treaties Series, No 74. That convention was drawn up within the Council of Europe and opened for signature by the States in Basel (Switzerland) on 16 May 1972. That convention has not been ratified by the Republic of Poland.
4 That convention, adopted on 2 December 2004 by the United Nations General Assembly and opened for signature by States on 17 January 2005, has not yet entered into force.
5 The provisions of that convention are sometimes regarded as an expression of the principles of customary international law (see Crawford, J., Brownlie’s Principles of Public International Law , Oxford University Press, Oxford, 2019 (9th ed.), p. 473 and the case-law cited).
6 For the sake of completeness, I would note that the law applicable to the insolvency proceedings at issue in the main proceedings is that of the Member State in which those insolvency proceedings were opened (Article 7(1), read in conjunction with recital 66, of Regulation 2015/848), which is German law. According to the referring court, Paragraph 129(1) and point (2) of the first sentence of Paragraph 130(1) of the German Insolvency Code provide that a legal act which was performed before the opening of the insolvency proceedings and is detrimental to creditors, by which a creditor obtained a payment, may be reversed if it was performed after the request to open insolvency proceedings and if, at the time of the act, the creditor had knowledge of that request. It is common ground that the Polish tax authority was informed of that request and that the payments made to that authority were made during the period which elapsed between the lodging of the request for the opening of proceedings and the opening of the insolvency proceedings.
7 Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).
8 Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the successive conventions on the accession of new Member States to that convention (‘the Brussels Convention’).
9 Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
10 Council Regulation of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).
11 Explanatory report by Virgós, M. and Schmit, E. of 8 July 1996, on the Convention on Insolvency Proceedings of 3 May 1996, document of the Council of the European Union, 6500/96, DRS 8 (CFC) (‘the Virgós-Schmit Report’).
12 Regulation No 1346/2000, which has been repealed and replaced by Regulation 2015/848, succeeded the European Convention on Insolvency Proceedings (Council document CONV/INSOL/X1, which was itself the culmination of more than 25 years of debate and negotiation. That convention did not enter into force because the United Kingdom of Great Britain and Northern Ireland failed to sign it by the agreed deadline of 23 May 1996. Nonetheless, the wording of the first of those regulations, which is reproduced, in essence, in the second, is essentially identical to that of that convention. In those circumstances, the Virgós-Schmit Report can provide useful guidance on the interpretation of the latter regulation.
13 I would also note that it is apparent from the case-law that, unlike the scope of Regulation No 1215/2012, that of Regulation 2015/848 is not to be interpreted broadly (judgment of 6 February 2019, NK , C‑535/17, EU:C:2019:96, paragraphs 24 to 26).
14 Judgments of 4 September 2014, Nickel & Goeldner Spedition (C‑157/13, EU:C:2014:2145, paragraph 21 and the case-law cited), and of 11 June 2015, Comité d’entreprise de Nortel Networks and Others (C‑649/13, EU:C:2015:384, paragraph 26 and the case-law cited). In that regard, I would note that the points to be taken from that case-law need to be put in their proper context. Thus, notwithstanding that practical difficulties may arise in the case, in particular, of pre-insolvency or hybrid proceedings (see The Implementation of the New Insolvency Regulation, Recommendations and Guidelines , JUST/2013/JCIV/AG/4679, Max Planck Institute, pp. 36 to 40 and 63 to 65), that approach to the interpretation of Regulation 2015/848 and Regulation No 1215/2012 applies only if the situation in question is expressly excluded from the latter regulation and expressly included in the former.
15 Article 1 of Regulation No 1215/2012 contains an autonomous definition of the scope of that regulation.
16 Recital 7 of Regulation 2015/848.
17 See, to that effect, judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau , (C‑641/16, EU:C:2017:847, paragraphs 22 and 28 and the case-law cited). In order to identify the area within which an action falls, it is necessary to identify the source which provides the basis of the action (see, to that effect, judgment of 4 December 2014, H , C‑295/13, EU:C:2014:2410, paragraph 21 and the case-law cited).
18 I would also observe that those circumstances can undoubtedly be relevant in determining whether or not a matter falls within the scope of Regulation No 1215/2012, as elements characterising the nature of the legal relationships between the parties to the dispute or the subject matter thereof (see, to that effect, judgment of 7 May 2020, Rina , C‑641/18, ‘the judgment in Rina’, EU:C:2020:349, paragraph 32). However, having regard to the wording of Article 6(1) of Regulation 2015/848 and, as will be seen below, the context and objectives of that regulation, they are not relevant for the purposes of determining the scope of Regulation 2015/848.
19 At the very least, such a test would inevitably complicate the implementation of the jurisdictional rule laid down in Article 6(1), read in conjunction with Article 3(1) of Regulation 2015/848, and could even render that rule ineffective.
20 Recital 1 of Regulation 2015/848.
21 Recitals 41 and 48 of Regulation 2015/848.
22 Recital 63 of Regulation 2015/848.
23 Judgment of 16 January 2014, Schmid (C‑328/12, EU:C:2014:6, paragraph 33).
24 In that regard, I would point out that the conclusions of my analysis relate solely to customary international law.
25 Delile, J.F., ‘Les effets de la coutume internationale dans l’ordre juridique de l’Union européenne’, Cahiers de droit européen , 2017, pp. 159 to 192.
26 The academic commentary emphasises the evolution that has taken place in the Court’s case-law regarding its position on the incorporation of rules of international law into the legal order of the European Union, dividing it into three ‘eras’. The first era was favourable to international law, in the sense, in essence, that the European Community was bound by any rule of general international law from which its Member States had not derogated, so that, when faced with a lacuna in Community law, the Court was implicitly required to apply customary rules of international law. The second was distinguished from the first by a reluctance to apply rules of international law, leading to an insistence on the autonomy of Community law and a clear separation between Community and international law – undoubtedly due to the absence, at that time, of any express provision in the founding Treaties requiring compliance with international law, but also to encourage national courts to refer questions to the Court for preliminary rulings, preference being given to an approach under which Community law drew more on national laws than on international law. Lastly, the third period, which began in the 1990s, has been characterised by an opening up of EU law to international law, now codified in Article 3(5) TEU (Malenovský, J., ‘Le juge et la coutume internationale: perspective de l’Union européenne et de la Cour de justice’, The Law and Practice of International Courts and Tribunals , Vol. 12, 2013, p. 218).
27 Judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 101 and the case-law cited).
28 See for example: Dubouis, L., ‘La nature de l’Union européenne’, Cohen-Jonathan, G. and Dutheil de la Rochère, J. (eds.), European Constitution, Democracy and Human Rights, Bruylant, Brussels, 2003, p. 84.
29 Formerly the European Communities.
30 Opinion 1/91 (First Opinion on the EEA Agreement) , of 14 December 1991 (EU:C:1991:490, paragraph 35).
31 Judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 45 and the case-law cited).
32 See View of Advocate General Kokott in Opinion 2/13 (Accession of the European Union to the ECHR) , EU:C:2014:2475, point 159).
33 Opinion of Advocate General Szpunar in Rina (C‑641/18, EU:C:2020:3, paragraph 141).
34 Salmon, J. (ed.), Dictionnaire de droit international public , Bruylant, Brussels, 2001, pp. 283 and 284.
35 Soussan, A. ‘Droit international non conventionnel et ordre juridique de l’Union européenne’, Union européenne et droit international, en l’honneur de P. Daillier , Ėditions Pedone, Paris, 2012.
36 Leray, E. and Potteau, A. ‘L’intégration du droit international coutumier dans l'ordre juridique communautaire’, La Semaine juridique , édition générale No 5, 3 February 1999, II 10022, p. 5.
37 See, in particular, judgment of 19 July 2012, Mahamdia (C‑154/11, EU:C:2012:491, paragraph 55), in Rina (paragraph 56 and the case-law cited), and of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 59 and the case-law cited).
38 See judgment of 15 February 2007, Lechouritou and Others (C‑292/05, EU:C:2007:102, paragraph 41). Similarly, in the judgment in Rina , it was not on the basis of the action for damages brought before the national court, but on the basis of the classification and certification operations carried out by the companies concerned that the Court held, subject to the checks to be carried out by the referring court, that those operations were not carried out in the exercise of public powers (paragraph 49 of that judgment).
39 In that regard, I would observe that the nature of the acts to which the avoidance action relates is not altered by the nature of the party, be it a natural or legal person, that fulfils its obligation, or by the fact that the tax debts are not recovered by the tax authority itself. Payment of the tax debt also involves acceptance of that payment by that authority. Furthermore, non-payment may have consequences, provided for by tax legislation, that are alien to private law relationships, such that the payment of taxes is inextricably linked with the exercise of public powers.
40 By way of a reminder, the distinction between acts iure gestionis and iure imperii rests on whether the State is acting as a private person, in the sense that the performance of the act involves no exercise of public powers or, in other words, that the act is of a kind that any private individual could have performed, or whether the act falls within the exercise of public powers.
41 As is apparent from the case-law cited in point 47 of this Opinion, in determining whether immunity from jurisdiction applies, the decisive criterion is the nature of the act in respect of which the action has been brought. In my view, there is no objective reason to establish, in the context of insolvency proceedings, for the purposes of classifying the act concerned, a new criterion relating to the nature of the right exercised or of the action brought against that act.
42 Article 1 TEU.
43 See, to that effect, judgment of 5 February 1963, van Gend & Loos (26/62, EU:C:1963:1 ) and Opinion 2/13 (Accession of the European Union to the ECHR) , of 18 December 2014 (EU:C:2014:2454, paragraph 157).
44 Mouton, J.D., ‘Vers la reconnaissance de droits fondamentaux aux États dans le système Communautaire ?’ Les dynamiques du droit européen en début de siècle. Mélanges en l’honneur de J.-C. Gautron , Paris, Pedone, 2004, p. 473.
45 Article 48 TEU.
46 Article 50 TEU.
47 Article 4(2) TEU. My emphasis. However, as is well known, the distinction between these different policy areas of the European Union and of the Member States is not always as clear in practice.
48 I refer to the exclusive authority of a State over its territory and population, which is reflected in its independence, the principle of non-interference and its freedom of internal organisation.
49 I refer to the fact that States, as international subjects, are all equal, with none being subject to the authority of another.
50 Gaudin, H., ‘L’identité de l’Union européenne au prisme de la souveraineté de ses États membres’, Revue générale du droit, Chronique de droit de l’Union , 2021.
51 In the sense that the Council looks after the interests of the Member States, the Commission looks after those of the European Union and the Parliament looks after those of the citizens.
52 Malenovsky, J., ‘A la recherche d’une solution intersystémique aux rapports du droit international et du droit de l’union européenne’ , Annuaire français de droit international , Vol. 65, 2019. pp. 201 to 234.
53 Blin, O., ‘La personnalité juridique de l'Union européenne après Lisbonne: véritable acquisition ou simple reconnaissance ?’, Bioy, X. (ed.), La personnalité juridique. Traditions et évolutions , Series ‘Les Travaux de l’IFR Mutation des normes juridiques’ No 14, Presses de l’Université Toulouse 1 Capitole, LGDJ – Lextenso Éditions’, Toulouse, 2013, pp. 131 to 142.
54 Gaudin, H., op. cit.
55 It is worth noting that these objectives are fixed by the Member States themselves.
56 See point 43 of the present Opinion.
57 Article 3(1) of Regulation 2015/848.
58 Article 6(1) of Regulation 2015/848.
59 Article 7(1) of Regulation 2015/848.
60 Article 7(2)(g) of Regulation 2015/848.
61 Article 45(1) of Regulation 2015/848.
62 Article 2(12), of Regulation 2015/848.
63 Recital 63 of Regulation 2015/848.
64 It is self-evident that immunity from jurisdiction can only be invoked before the courts of another State.
65 In that regard, I would note that the only Member State which is, in general, not bound by the application of that regulation is the Kingdom of Denmark, as stated in recital 88 of Regulation 2015/848.
66 Recital 3 of Regulation 2015/848.
67 Recital 8 of Regulation 2015/848.
68 Among the derogations, I would mention those arising from Articles 20 and 33 of Regulation 2015/848, read together, concerning the effects of the exercise of international jurisdiction under that regulation. In the present case, although reliance on immunity from jurisdiction would obstruct the exercise of a jurisdiction validly established on the basis of the rules set out in that regulation, it is not the subject of a derogation provided for in that regulation.
69 Article 1(1) of Regulation 1215/2012 and Article 2(1) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (OJ 2014 L 189, p. 59). Clearly, the question of the scope of an EU legal instrument must be distinguished from that of the exercise of the jurisdiction derived from that instrument. Thus, in the present case, the example relates solely to the lack of effect of acts iure imperii on the exercise of international jurisdiction under Regulation 2015/848.
70 Judgment of 14 November 2018, Wiemer & Trachte (C‑296/17, EU:C:2018:902, paragraph 36). It is true that that judgment concerned the interpretation of the scope of international jurisdiction in the context of insolvency proceedings under Regulation No 1346/2000, which has been replaced, in almost identical terms, by Article 3(1) of Regulation 2015/848. Although Article 6(1) of the latter regulation has introduced an additional rule, I consider that that case-law on the scope of international jurisdiction in the context of the former regulation can be transposed by reason of the fact that such actions fall, under Regulation 2015/848, within the same international jurisdiction as the insolvency proceedings themselves.
71 Article 3(2) of Regulation 2015/848.
72 For the sake of completeness, I would note that, when questioned on this point at the hearing, the insolvency practitioner in the main proceedings stated that it had not been possible to establish that such an establishment existed.
73 Recital 48 of Regulation 2015/848.
74 Judgment in Rina , paragraph 55.
For the sake of completeness, I would note that the judgment of the European Court of Human Rights of 27 November 2025, Renouard v. France , (CE:ECHR:2025:1127JUD004691121, §§ 53 and 54), relied upon by the French Government at the hearing, similarly provides no basis for a contrary conclusion. It is apparent, in essence, from that judgment that the upholding of the plea of immunity from jurisdiction before the French courts was not regarded as a disproportionate restriction on the applicant’s right of access to a tribunal, because the applicant had a remedy before the courts of the United Arab Emirates. That is unlike the present case, in which, if immunity from jurisdiction precluded the exercise of jurisdiction, there would be no other remedy. It is true that, in a case where it was called on to consider whether immunity from jurisdiction could be invoked irrespective of the existence of other remedies enabling reparations to be obtained, the International Court of Justice held that whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation. However, it should be emphasised that the latter case arose in a very particular context relating to reparations for victims of war crimes and crimes against humanity, which was also connected to the specific circumstances of the negotiations conducted on that subject between the States concerned ( Jurisdictional Immunities of the State ( Germany v. Italy : Greece intervening) , Judgment, I.C.J. Reports 2012, pp. 99 to 102).
75 See Articles 258 to 260 TFEU.
76 Although that protocol originally bound the United Kingdom and Ireland, that is no longer the case following Brexit. Thus, that protocol now applies only to Ireland.
77 Recital 87 of Regulation 2015/848 records that Ireland had nonetheless notified its wish to take part in the adoption and application of that regulation.
78 Recital 88 of Regulation 2015/848 records that the Kingdom of Denmark did not take part in the adoption of that regulation, and is not bound by it and is not subject to its application.
79 See, to that effect, order of 22 June 1965, Acciaierie San Michele v Haute Autorité (9/65, EU:C:1965:63 ) .
80 Article 4(2) TEU.
81 Judgment of 7 February 1973, Commission v Italy (39/72, EU:C:1973:13).
82 See, in particular, paragraphs 20, 24 and 25 of the judgment of 7 February 1973, Commission v Italy (39/72, EU:C:1973:13). Ultimately, the Court held that the Member State concerned had failed to fulfil the obligations it had assumed by virtue of its adherence to the European Union.
83 See, in particular, by analogy, judgment of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 28 and the case-law cited).
84 See, for example, judgment of 27 June 2000, Commission v Portugal (C‑404/97, EU:C:2000:345, paragraph 40) and order of 6 December 1990, Zwartveld and Others (C‑2/88-IMM, EU:C:1990:440, paragraphs 17 to 21). That order is also interesting from the point of view of interpretation by analogy. In that order, the Court held that the Protocol on the Privileges and Immunities of the European Communities could not, under any circumstances, be interpreted as allowing the Community institutions not to comply with the obligation of sincere cooperation. If that is the case for the European Union, why would the Member States be able to plead immunity from jurisdiction so as to escape that obligation, as in the present case, when the rules of jurisdiction come to be applied?
85 Clearly, it is the fact that EU law contains specific provisions relating to international jurisdiction in insolvency proceedings that drives that conclusion. It is true that, in the absence of provisions of EU law on that point, reference would have to be made to national law and the principles of international law (see, by analogy, judgment of 16 December 1981, Foglia , 244/80, EU:C:1981:302, paragraph 24).
86 Of course, that conclusion applies only to Member States. Although the courts of the State of the opening of proceedings also have jurisdiction to hear actions brought against residents of third countries (see judgment of 16 January 2014, Schmid , C‑328/12, EU:C:2014:6, paragraph 33 and operative part), those countries are not participating in the European project and cannot be regarded as having waived immunity from jurisdiction. It is true that that situation represents a break in equal treatment as between the tax authorities of a Member State and those of a third State. However, this is an inherent consequence of the system created by that regulation. Moreover, as a third country would not be bound by the rules on jurisdiction laid down in Regulation 2015/848, an avoidance action could be brought in that country, which would remedy the unequal treatment.