Request for a preliminary ruling from the Østre Landsret (C-716/17)

Contents

Judgment of the Court (Fourth Chamber)11 July 2019^note(Reference for a preliminary ruling — Free movement of workers — Restrictions — Opening of a debt relief procedure — Residence condition — Admissibility — Article 45 TFEU — Direct effect)In Case C‑716/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Østre Landsret (High Court of Eastern Denmark, Denmark), made by decision of 19 December 2017, received at the Court on 22 December 2017, in the proceedings brought byTHE COURT (Fourth Chamber),composed of M. Vilaras, President of the Chamber, K. Jürimäe, D. Šváby, S. Rodin (Rapporteur) and N. Piçarra, Judges,Advocate General: M. Szpunar,Registrar: C. Strömholm, Administrator,having regard to the written procedure and further to the hearing on 16 January 2019,after considering the observations submitted on behalf of:– A, by C. T. Hermann, advokat,– the Danish Government, by J. Nymann-Lindegren, M. S. Wolff and P. Z. L. Ngo, acting as Agents,– the European Commission, by H. Støvlbæk and M. Kellerbauer, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 27 March 2019,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 45 TFEU.

2The request has been made in proceedings brought by A seeking debt relief.

Legal framework

European Union law

3Article 84(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19, and corrigendum OJ 2016 L 349, p. 9) provides:‘The provisions of this Regulation shall apply only to insolvency proceedings opened after 26 June 2017. Acts committed by a debtor before that date shall continue to be governed by the law which was applicable to them at the time they were committed.’

Danish law

4Under Article 3 of the konkursloven (Law on bankruptcy):1. Applications for debt restructuring, bankruptcy or debt relief shall be lodged with the bankruptcy court at the place from where the debtor's business activity is pursued.2. If the debtor does not pursue business activity [in Denmark], the application shall be filed with the bankruptcy court in the legal district in which the debtor is domiciled.…’

5Under Article 197(2)(1) of the Law on bankruptcy:2.An order for debt relief will not be granted where:(1) the debtor’s financial situation is unclarified;…’

6Under Article 229(1) of the Law on bankruptcy:‘The debt relief order can, at the request of a claimant, be cancelled by the bankruptcy court:(1) if it comes to light that the debtor has committed fraud in the course of the debt relief proceedings; or(2) if the debtor is grossly negligent in disregarding his obligations under the debt relief order.’

7Article 235 of the retsplejeloven (Law on the administration of justice) reads as follows:1. Legal proceedings are to be instituted where the defendant is domiciled, unless otherwise provided for by legislation.2. The domicile shall be in that legal district where the defendant has a residence. If the defendant has a residence in more than one legal district, each of them shall constitute a domicile.3. If the defendant has no residence, the domicile shall be in that legal district where he lives.4. If the defendant has neither a residence nor a known place where he lives, the domicile shall be in that legal district where he most recently had a residence or place where he lived.’

The main proceedings and the questions referred for a preliminary ruling

8A is a Danish citizen who lives in Sweden but is employed in Denmark, where he has unlimited tax liability under Danish legislation.

9On 8 February 2017, A lodged an application for debt relief with the Sø-og Handelsretten (Maritime and Commercial Court, Denmark).

10His application related to debts contracted since 1999 with Danish creditors, one being a public-law corporation and the others individuals.

11By order of 6 April 2017, the Sø-og Handelsretten (Maritime and Commercial Court) dismissed that application on the ground that the Danish courts had no jurisdiction to hear and determine a debt relief procedure brought by A, who for the purposes of Danish law did not carry on any business activity in Denmark and, in addition, did not have his permanent address there. Accordingly, that court did not examine whether the substantive conditions for debt relief under the Law on bankruptcy were satisfied.

12The Østre Landsret (High Court of Eastern Denmark, Denmark), which is to give a ruling as a court of second instance in the main proceedings, considers that a Danish court could have jurisdiction to hear A’s application for debt relief if the Danish rules on jurisdiction in debt relief were contrary to EU law, in particular Article 45 TFEU.

13In that regard, the referring court states that, under the applicable Danish legislation, the debt relief procedure requires an in-depth examination of the applicant’s financial situation and lifestyle. That legislation provides that that assessment should be guided by clear rules which are drawn up taking into account the socio-economic circumstances prevailing in Denmark and which are intended to ensure a reasonably modest lifestyle while the debt relief arrangement is in place. However, those rules might not be appropriate in the case of an applicant living in another Member State whose social and financial situation would be different and unfamiliar to the competent Danish courts, which would have no way of verifying the information communicated in that regard by the applicant himself.

14In that context, the Østre Landsret (High Court of Eastern Denmark), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Does Article 45 TFEU, as interpreted following the EU Court of Justice’s judgment of 8 November 2012 in Case C‑461/11[, EU:C:2012:704], Radziejewski, preclude a rule on jurisdiction such as the Danish one, the aim of which is to ensure that the court hearing a case involving debt relief has knowledge of and can take account in its assessment of the specific socio-economic situation in which the debtor and his or her family live and must be assumed will continue to live going forward, and that the assessment may be carried out according to previously determined criteria establishing what can be deemed to be an acceptably modest standard of living under the debt relief arrangement?…(2) [If the answer to question 1 is that the restriction cannot be regarded as justified] must Article 45 TFEU be interpreted as also having direct effect as between private parties in a situation such as the present one, with the result that private creditors must accept reductions or total loss of amounts owed to them by a debtor who has moved to another country?’

The questions referred for a preliminary ruling

The first question

15By its first question, the referring court asks, in essence, whether Article 45 TFEU must be interpreted as meaning that it precludes a rule of jurisdiction laid down by the legislation of a Member State, such as that at issue in the main proceedings, which makes the grant of debt relief subject to the condition that the debtor has his permanent address or resides in that Member State (‘the residence condition’).

16In that regard, it should be noted that all provisions of the FEU Treaty relating to the freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union and preclude measures which might place nationals of the Member States at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (judgment of 8 November 2012, Radziejewski, C‑461/11, EU:C:2012:704, paragraph 29 and the case-law cited).

17Furthermore, national provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute restrictions on that freedom, even if they apply without regard to the nationality of the workers concerned (judgment of 8 November 2012, Radziejewski, C‑461/11, EU:C:2012:704, paragraph 30 and the case-law cited).

18National legislation, such as that in the main proceedings, which makes the grant of debt relief subject to a residence condition is capable of dissuading an insolvent worker from exercising his right to freedom of movement (see, to that effect, judgment of 8 November 2012, Radziejewski, C‑461/11, EU:C:2012:704, paragraph 31).

19It must therefore be held, as the referring court, A, the Danish Government and the European Commission submit, that the legislation in the main proceedings, in so far as it makes the submission of an application for debt relief subject to a residence condition, constitutes a restriction on the freedom of movement for workers which is, as a rule, prohibited by Article 45 TFEU.

20Such legislation is permissible only if it pursues a legitimate objective which is compatible with the FEU Treaty and is justified by overriding reasons of public interest. It is also necessary, in such a case, that its application be appropriate for ensuring the attainment of the objective thus pursued and not go beyond what is necessary to attain that objective (see, to that effect, judgment of 14 March 2019, Jacob and Lennertz, C‑174/18, EU:C:2019:205, paragraph 44).

21In that regard, it must be borne in mind that it is legitimate for a Member State to wish to monitor the debtor’s financial and personal situation before adopting a measure in his favour which would relieve him of all or part of his debts (judgment of 8 November 2012, Radziejewski, C‑461/11, EU:C:2012:704, paragraph 46).

22That legitimate objective may mean that a national court hearing such an application carries out an assessment, such as that provided for by the applicable legislation and described in paragraph 13 above, on the basis of predetermined criteria drawn up in the light of the circumstances prevailing in the Member State in which the application was made.

23However, if the means of achieving that aim is the setting of a residence condition based solely on the date on which the application for debt relief is submitted, such a condition cannot be regarded as appropriate for ensuring the attainment of that objective (see, to that effect, judgment of 8 November 2012, Radziejewski, C‑461/11, EU:C:2012:704, paragraph 47).

24In accordance with the Court’s settled case-law, national legislation is appropriate for ensuring the attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55, and of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 76, and order of 30 June 2016, Sokoll-Seebacher and Naderhirn, C‑634/15, EU:C:2016:510, paragraph 27).

25In a situation, such as that at issue in the main proceedings, in which the assessment of the competent national court is based on criteria which take account of the social and financial situation of the debtor and his family not only at the time when the application for debt relief is made but also at a later stage, until that court adopts its decision, a consistent approach would entail the mandatory dismissal of an application for debt adjustment in the event that the applicant transferred residence from the Kingdom of Denmark to another Member State during the proceedings, before the competent court gave final judgment on that application.

26However, subject to verification by the referring court, it appears that the transfer of the debtor’s residence from the Kingdom of Denmark to another Member State during debt relief proceedings or thereafter does not have the immediate effect of depriving that debtor of the right to be granted debt relief.

27Moreover, it is apparent from the request for a preliminary ruling that that legislation provides for the debt relief order to be cancelled only where the debtor has acted fraudulently or has gravely breached the obligations which that order imposed on him, and not when he has merely transferred his residence abroad.

28It should also be noted that the legislation at issue in the main proceedings provides that a person pursuing a business activity, for the purposes of Danish law, in Danish territory may file an application for debt relief with the bankruptcy court in whose jurisdiction he carries out that activity without fulfilling the residence condition.

29In those circumstances, it must be held that the residence condition in Denmark laid down by the legislation at issue in the main proceedings cannot, as such, be considered to reflect a concern to attain the objective referred to in paragraph 22 above in a consistent and systematic manner.

30Moreover, making debt relief subject to the provision by a debtor, who has his permanent address in a Member State other than the Member State where the application for debt relief was filed, of credible information relating to his own social and financial situation and that of his family, and to the social circumstances in the Member State in which they have their permanent address, should that information be required by the national court, would be less restrictive than the absolute prohibition on lodging that application.

31Furthermore, it should be noted that, as the Danish Government confirmed at the hearing, the Danish legislation provides that the Danish court may refuse to issue a debt relief order if it considers that the debtor’s socio-economic situation can no longer be determined with sufficient precision, which might be the case should the debtor transfer his residence from the Kingdom of Denmark to another Member State.

32Thus, that legislation allows such an application to be dismissed where the assessment described in paragraph 13 above is impossible owing to the applicant having transferred his residence outside the Kingdom of Denmark before his application was filed or in the course of the proceedings. It is therefore unnecessary to make it absolutely impossible for such an application to be lodged by an applicant who does not live in Denmark at the time of the lodging thereof.

33Consequently, the setting of a residence condition such as that provided for in the legislation at issue in the main proceedings goes beyond what is necessary in order to attain the objective referred to in paragraph 22 above.

34As regards the Danish Government’s argument, put forward in its written observations, that the effective implementation of Regulation 2015/848 would be impeded if Article 45 TFEU were to be interpreted as precluding national legislation such as that at issue in the main proceedings, it is ineffective in the context of the main proceedings since, under Article 84(1) of that regulation, its provisions are applicable only to insolvency proceedings opened after 26 June 2017, that is to say, after the debt relief application was lodged by A.

35It follows from all the foregoing that Article 45 TFEU must be interpreted as precluding a rule of jurisdiction provided for in the legislation of a Member State, such as that at issue in the main proceedings, which makes the grant of debt relief subject to the condition that the debtor has his permanent address or resides in that Member State.

The second question

36By its second question, the referring court asks, in essence, whether Article 45 TFEU must be interpreted as requiring the national court to disapply the residence condition laid down by a national rule of jurisdiction, such as that at issue in the main proceedings, irrespective of whether the debt relief procedure, also provided for by that legislation, could result in debts owed to individuals under that legislation being affected.

37In that regard, it should be noted at the outset that Article 45 TFEU confers on individuals rights which are enforceable by them and which the national courts must protect (judgment of 11 January 2007, ITC, C‑208/05, EU:C:2007:16, paragraph 67).

38By reason of the primacy principle, where it is unable to interpret national law in compliance with the requirements of EU law, the national court hearing a case within its jurisdiction is, as an organ of a Member State, under a duty to disapply any national provision which is contrary to a provision of EU law which has direct effect in the dispute before it (see, to this effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 58 and 61).

39That obligation is not affected by the fact that national legislation, such as that at issue in the main proceedings, may possibly change the legal situation of individuals once the referring court disapplies a national provision on jurisdiction and rules on an application for debt relief lodged by a debtor.

40Therefore, Article 45 TFEU must be interpreted as requiring the national court to disapply the residence condition laid down by a national rule of jurisdiction, such as that at issue in the main proceedings, irrespective of whether the debt relief procedure, also provided for by that legislation, could result in debts owed to individuals under that legislation being affected.

Costs

41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules:

1.Article 45 TFEU must be interpreted as precluding a rule of jurisdiction provided for in the legislation of a Member State, such as that at issue in the main proceedings, which makes the grant of debt relief subject to the condition that the debtor has his permanent address or resides in that Member State.

2.Article 45 TFEU must be interpreted as requiring the national court to disapply the residence condition laid down by a national rule of jurisdiction, such as that at issue in the main proceedings, irrespective of whether the debt relief procedure, also provided for by that legislation, could result in debts owed to individuals under that legislation being affected.