Enforcement in Norway: Insolvency related foreign judgments
According to the Lugano Convention Article 1 item 2 b, the convention does not apply «bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings». This implies that the convention does not apply to judgments deriving from such proceedings neither, and those judgments cannot be enforced in Norway.
In a decision of 28 June 2017 (HR-2017-1297-A), ING Bank v. The Bankruptcy estate of Bergen Bunkers, the Norwegian Supreme Court stated that one had to consider whether each claim in a case was sufficiently bankruptcy related to fall within the scope of the exemption. The Supreme Court further stated that the assessment of the claims should be made in accordance with the guidance found in the ECJ judgment Gourdain v. Nadler (C-133/78), where the Court inter alia stated that
«it is necessary, if decisions relating to bankruptcy and widing-up are to be excluded from the scope of the convention, that they must derive directly from the bankruptcy or winding-up and be closely connected with the proceedings».
In a decision of 20 March 2019 (LA-2019-16503), Agder Court of Appeal considered whether a German judgment could be enforced in Norway, when the claim was brought in an ordinary suit, but based on the insolvency related rule in GmbHG Paragaph 64.
The Bankruptcy estate of Emerald Biodiesel Neubrandenburg GmbH had filed a claim of damages against the former CEO of the company, based on that the CEO had made payments from the company after the company was insolvent. Pursuant the GmbHG Paragraph 64 the CEO could then be held liable. The claim was decided in the estate’s favour by a default judgment by the Landgericht Berlin in Germany. The judgment was then sought enforced in Norway.
The question before Agder Court of Appeal was whether the German judgment was enforceable in Norway in accordance with the Lugano Convention, or if the judgment was excluded due to the bankruptcy exemption. The Court of Appeal found, seemingly decisive, guidance in a ECJ judgment of 4 December 2014 (C-295/13), where the Court stated the following related to the GmbHG Paragraph 64:
«23. Under Paragraph 64 of the GmbHG, the managing director of a debtor company must reimburse the payments which he made on behalf of that company after it became insolvent or after it was established that the company’s liabilities exceeded its assets. That provision therefore clearly derogates from the common rules of civil and commercial law, specifically because of the insolvency of the debtor company.
24. An interpretation of Article 3(1) of Regulation No 1346/2000 to the effect that an action based on Paragraph 64 of the GmbHG, brought in insolvency proceedings, is not an action deriving directly from insolvency proceedings and closely connected with them, would therefore create an artificial distinction between that action and comparable actions, such as the actions to set transactions aside at issue in the cases which gave rise to the judgments in Seagon (EU:C:2009:83) and F-Tex (EU:C:2012:215), on the sole ground that the action based on Paragraph 64 of the GmbHG could theoretically be brought even if there were no insolvency proceedings. Such an interpretation, which has no basis in the relevant provisions of Regulation No 1346/2000, cannot be accepted.
25. It must be stated, on the other hand, that an action based on Paragraph 64 of the GmbHG and brought outside the context of insolvency proceedings may fall within the scope of the Lugano II Convention or, as the case may be, that of Regulation No 44/2001. However, that is not the situation in the case in the main proceedings.»
The Court of Appeal stated that the default judgment from Landgerich Berlin was based on GmbHG Paragraph 64, and therefore fell inn under the bankruptcy exemption in the Lugano Convention. The Lugano Convention could then not be relied upon for enforcing the judgment in Norway, which implied that the judgment could not be enforced in Norway at all.
The decision from the Court of Appeal could be challenged. The opinion given in C-295/13 is related to «an action based on Paragraph 64 of the GmbHG, brought in insolvency proceedings». The opinion does not relate to actions «brought outside the context of insolvency proceedings». The Court of Appeal should have considered whether the judgment from Landgerich Berlin was an action brought in insolvency proceedings, or an action outside the context of such proceedings. Furthermore the Court of Appeal should have considered whether the claim «derive[d] directly from the bankruptcy or winding-up» and were «closely connected with the proceedings», ref. Gourdain v. Nadler.
The fact that the claim is brought by the Bankruptcy estate is not in itself sufficient for that the claim fall within the bankruptcy exemption of the Lugano Convention. With reference to German Graphics Graphische Maschinen GmbH v. Alice van der Schee decision (C-292/08), the Norwegian Supreme Court stated that «[i]t is expressly stated that it is not sufficient that the bankruptcy estate was a party to the dispute» for the bankruptcy exemption to apply. One should also note that the opinion given by the Court in C-295/13 is related to Article 3(1) of Regulation No 1346/2000, which governs the member states’ international jurisdiction to open insolvency proceedings. It is not related to the bankruptcy exemption in the Lugano Convention, even though one might argue that the rules should be harmonized.
In any case, however, the decision from the Court of Appeal shows that one should think carefully on how the claim is argued when filing insolvency related claims in courts outside of Norway, if you might have to enforce the judgment in Norway at a later stage. There is a risk that insolvency related judgments, including claims that are based on insolvency related rules, cannot be enforced in Norway.