Theoretical and Practical Aspects relating to the EU Regulation Applicable in the case of Requests with the Object of Attracting Liability for the Entry into Insolvency

(Based on the Provisions of Art. 169 of Law No. 85/2014) in view of the Execution of Decisions Obtained in this Matter

Abstract

The purpose of this study is to identify the applicable regulation in the case of claims with the object of incurring liability for insolvency, claims based on the provisions of art. 169 of Law no. 85/2014. This legal issue arose as a result of the requests made by creditors for the issuance, in the case of judgments rendered in this matter, of a certificate, in accordance with the provisions of Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 regarding judicial competence, the recognition and execution of judgments in civil and commercial matters or in accordance with the provisions of Regulation (EU) 848/2015 of the European Parliament and of the Council of 20 May 2015. Although it has been consistently established that the imposition of liability for the company's entry into insolvency represents an action that cannot be exercised independently of the insolvency procedure, the insolvency procedure being otherwise the premise of the exercise of the action in the imposition of liability, there were also situations in which it was held that the decisions circumscribe the notion of “civil and commercial matter”. In the content of the Judgment delivered by the CJEU on February 6, 2019, in case C535/17, it was a determining criterion for the Court, to identify the field in which an action falls, not so much the procedural context in which that action is registered, but the legal basis of the latter. Thus, it must be established whether the right or obligation that represents the legal basis of the action derives from the common rules of civil and commercial law or from derogatory rules.