6 mai 2019
The German Federal Court of Justice (Bundesgerichtshof) gave a decision on international jurisdiction that sheds light on the importance of the new presumptions in article 3 of (recast) Regulation (EU) 2015/848.
Unlike the previous Insolvency Regulation (EC) No 1346/2000 the recast Regulation contains presumptions for the centre of main interests (COMI) of natural persons as well.
If an individual is exercising an independent business or professional activity, the COMI shall be presumed to be that individual's principal place of business according to article 3(1) paragraph 3. In the case of any other individual, the presumption favours the place of the individual's habitual residence according to article 3(1) paragraph 4.
When a creditor filed for insolvency in 2015, the debtor purported that he had been living in Germany only until 2010. After that, he had undisputedly rented an apartment in London where his partner and a daughter were living.
The German lower courts confirmed their jurisdiction even though it could not be established that the debtor was still exercising a business or professional activity in Germany. The Bundesgerichtshof upheld this decision as the debtor was using a German mobile phone and was receiving a German pension. Furthermore, his mother was living in Berlin.
Although the judgment was still rendered under the previous insolvency regulation, it is a remarkable case, as it might indicate under which circumstances German courts find the presumptions to be rebutted.