On 8 January 2018 the Landgericht Berlin has, on the basis of an immediate appeal against the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law, the debtor) overruled the decision of the District Court of Charlottenburg of 13 December 2017, confirmed by that court on 4 January 2018 (see http://www.bobwessels.nl/blog/nikis-comi/, with the result that international jurisdiction is not in Germany, but in Austria. (I am thanking my collegue prof. Stephan Madaus for providing me with this decision). Where it is possible to appeal this decision of the Landgericht to the Federal Court of Justice, the aforementioned decision of the District Court Charlottenburg still applies.
In support of its decision, the Landesgericht explained its view on the debtor's center of main interest (‘COMI’) and the way the European Insolvency Regulation (EIR 2015) has stuctured this requirement for international jurisdiction, as well as the way in which the presumption (that a debtor-company has its COMI in the Member State of its registered office) can be rebutted and the criteria that apply to refute this presumption (see Article 3 EIR 2015, second paragraph: ‘… in the absence of proof of the contrary’).
NIKI brings forward 12 point of departure for its argument that its COMI is in Germany. Creditors, however, present 10 points of view, resulting in their statement that COMI is in Austria.
After having decided that the objections are well-founded, admissible and submitted in time and the objecting party is competent, the Landesgericht struggles with the fact that not all factors presented (on either side) are decisive, that the factors that matter do not provide a uniform picture and that a clear dominance of certain factors, pointing to German or Austria, can not be detected. It then presents 12 (a-k, with twice an ‘h’) points of departure for its assessment, based on CJEU court cases (Eurofood, Interedil, Rastelli) and German literature (specifically Mankowski and Paulus). Its arguments require further study. Here it suffices to say that the Landesgericht Berlin adheres to the view that the various factors should be considered in their entirety. The place from which the essential business activities of the NIKI would be controlled, namely Berlin, was not a solely decisive criterion. The fact that Air Berlin had been practically the only customer, and thus the sales generated especially in Germany, was not automatically influential. For having COMI in Austria arguments are that the debtor maintains offices in Vienna, in which the financial accounting is conducted. Likewise, the location of the competent supervisory authority is in Vienna, as the debtor has an Austrian operating license and the airworthiness of the aircraft is monitored from there. In addition, approximately 80% of the employment contracts concluded by the debtor are subject to Austrian employment law. Also NIKI’s own behavior indicates that she assumes a COMI in Austria. She had not informed her creditors and the public that she had relocated her COMI to Germany. Furthermore, in an insolvency proceedings opened for several months at the request of a creditor before the Korneuburg Regional Court in Austria, it did not raise the objection that there was no international competence in Austria.
The latter points do not seem to me ‘objective’ factors. Anyway, we wait and see what the Federal Court of Germany will decide, because this case typically will go through the full German Court system. In its core the legal question is: what is neccesary to rebut the presumption that the registered office is the COMI. This feels like a Eurofood question, so may we expect that the Court of Justice of the EU will have the final word?