The Court of Justice delivered today its judgment in case C–535/17 (NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and of PI v BNP Paribas Fortis NV).
The facts : « PI was a bailiff from 2002 until his removal from office in December 2008. For the purposes of his bailiff practice, PI was the holder of a current account opened in Belgium with Fortis. That account was the one which was intended to credit the persons whose debts he sought to recover.
10 In 2006 PI established PI Gerechtsdeurwaarderskantoor BV (‘PI.BV’), a company governed by Netherlands law, of which he was the sole shareholder and administrator. The purpose of that company was to run PI’s bailiff practice, the assets of which he contributed to PI.BV, including the current account with Fortis. PI.BV was also the holder of a third-party account with another bank, established in the Netherlands, which held the funds of about 200 clients of the bailiff practice.
11 In the period from 23 to 26 September 2008, PI transferred, by way of electronic transfer, a total sum of EUR 550 000 from that third-party account to the account with Fortis. A few days later, from 1 to 3 October 2008, PI withdrew EUR 550 000 in cash from the current account with Fortis. That act was classified as embezzlement of funds and PI was sentenced to imprisonment in that respect.
12 The bankruptcy of PI.BV was declared on 23 June 2009 and was followed by the personal bankruptcy of PI, which was declared on 2 March 2010.
13 Within the context of those bankruptcy proceedings, the liquidator brought an action before the Rechtbank Maastricht (District Court, Maastricht, Netherlands) seeking an order that Fortis pay the sum of EUR 550 000. In support of his claim, the liquidator stated that Fortis had incurred liability towards the general body of creditors of PI.BV and PI by fully cooperating, in breach of its statutory obligations, with the cash withdrawals made by PI, thereby causing loss to the creditors of the two bankrupt estates ».
The reasoning: “such an action is based not on derogating rules specific to insolvency proceedings but, on the contrary, on the ordinary rules of civil and commercial law, and therefore does not fall outside the scope of Regulation No 44/2001” (paragraph 37).
The decision: “Article 1(1) and (2)(b) of Council Regulation (EC) No 44/2001 […] must be interpreted as meaning that an action […] concerning a claim for damages arising from liability for a wrongful act, brought by the liquidator in insolvency proceedings and the proceeds of which, if the claim succeeds, accrue to the general body of creditors, is covered by the concept of ‘civil and commercial matters’ within the meaning of Article 1(1), and therefore falls within the material scope of that regulation”.