The Helsingin hovioikeus (Court of Appeal, Helsinki, Finland) referred several questions to the CJEU in a case between Nike European Operations Netherlands BV (‘Nike’, incorporated in the Netherlands) v Sportland Oy, in liquidation (‘Sportland’, incorporated in Finland), concerning an action to have certain transactions declared void by virtue of insolvency.
Sportland was a retailer of goods supplied by Nike under a franchising agreement, which by a choice of law clause was governed by the laws of the Netherlands. Sportland paid Nike outstanding debts arising from the purchase of stocks set out in the agreement in 10 separate instalments made between 10 February 2009 and 20 May 2009, with a total of € 195 108.15. Two week prior to the last payment, with an application of 5 May, the District Court of Helsinki opened insolvency proceedings in respect of Sportland on 26 May 2009.
Sportland brought an action before the court seeking an order that the payments be annulled and that Nike be required to make restitution of the amounts paid plus interest in accordance with Paragraph 10 of the Finish Law on recovery of assets (takaisinsaannista konkurssipesään annettu laki). The provision says that the payment of a debt within three months of the prescribed date may be challenged if it is paid with an ‘unusual’ means of payment, is paid prematurely, or in an amount which, in view of the amount of the debtor’s estate, may be regarded as significant.
Nike, on the contrary, sought an order that the action be dismissed. It relied, inter alia, on Article 13 of EU Insolvency Regulation No 1346/2000 (EIR), claimed that the payments at issue were governed by Dutch law, and that Article 47 of the Bankruptcy Act (Faillissementswet) (providing that the payment of an outstanding debt, so a claim which is due, may be challenged only if it is proven that when the recipient received the payment he was aware that the application for insolvency proceedings had already been lodged or that the payment was agreed between the creditor and the debtor in order to give priority to that creditor to the detriment of the other creditors) does not apply. So, thus Nike, those payments were not able to be annulled.
The legal context of the case is formed by the interplay between Articles 4 and 13 EIR. For my commentary, see further the attachment: 2015-oct-10-wessels-comment-nike-bv-v-sportland-oy.pdf