I. – INTRODUCTION
After the declaration of bankruptcy of the companies Cacaolat, S.A. and Clesa, S.L. (both of them forming part of the holding “Nueva Rumasa, S.L.”) the different courts started to work on the insolvency proceedings of both companies. In such situation, where one company’s board owns the majority of the other’s rights to vote, questions arising from the accumulation of procedures, competence and confusion regarding capital should be considered.
The Commercial Court of Madrid number 6 raised some of those questions to the Supreme Court of Spain, which gave its ruling on October 4th 2011.
II.- CASE BACKGROUND
The holding “Nueva Rumasa” filed for the bankruptcy of Clesa, S.L. and Cacaolat, S.A., Clesa, S.L. being the parent company of Cacaolat, S.A. During the insolvency procedure, the Commercial Court of Madrid number 6 agreed, by virtue of the court order dated 3rd August 2011, to summon the Commercial Court of Barcelona number 6 to stand down in the voluntary insolvency procedure of Cacaolat, S.A.
The Commercial Court of Barcelona refused to be stand down and confirmed it’s objective competence to hear all actions relevant to the insolvency procedure of Cacaolat, S.A. by court order dated 5th August 2011.
On October 4th 2011, the Supreme Court of Spain ruled on the objective competence of the case, granting competence to the Commercial Court of Barcelona number 6 with the legal reasoning and consequences set forth below.
The petition of the Commercial Court number 6 of Madrid for the Commercial Court of Barcelona to stand down was based on both Courts having authorised the initiation of the procedures for the sale of the assets of both of the insolvent companies and the administration of Clesa,S.L. holding 95% of Cacaolat’s rights and votes. Consequently both of the sale projects would include duplicated, overlapping and accumulated elements in it’s valuations, and as a result a double valuation of assets and common expectations may arise.
The arguments of the Court of Barcelona for refusing to stand down were, firstly, that neither of the parties questioned the objective or functional competence of said organ to hear the procedure corresponding to Cacaolat, S.A., and furthermore a petition for the accumulation of both procedures had not been formulated, and therefore, because of the union of the insolvency procedures and the exclusive and exclusionary competence of the insolvency Judge, the actions in this particular procedure cannot be separated from the main procedure of insolvency.
III.- OBJECTIVE COMPETENCE OVER THE ACTS CONNECTED TO THE BANKRUPTCY
The line of argument of the Supreme Court of Spain to concede the objective competence to the Court of Barcelona is simple, given that it is recognised that a situation of accumulation exists, although the questions related to said question are not assessed.
According to the Supreme Court of Spain, the competence belongs to the Commercial Court of Barcelona according to Articles 10.5 and 8 of the Spanish Bankruptcy Act, which establish that the competence to declare and process the bankruptcy procedure corresponds to the commercial judge of the territory wherein the debtor has his main interests, the jurisdiction of the bankruptcy judge being exclusive and exclusionary.
Therefore, the Supreme Court of Spain limits itself to establish the objective competence of the Judge to perform actions connected to the bankruptcy procedure, consequently it is made clear that the objective competence of the judge is imperative, despite the parent company holding the majority of the right to vote. Likewise, it establishes Barcelona as the centre of the main interests of Cacaolat, S.A., without prejudice to the possible accumulation of procedures, which was filed later by the Commercial Court of Madrid.
IV. – CONCLUSION
In such cases, where a parent company and its subsidiary have both declared insolvency in two separate procedures, it is possible to file the accumulation of both procedures according to former Article 25.1 of the Spanish Bankruptcy Act, as recognised by the Supreme Court of Spain. Nevertheless, it is clear that until the accumulation of procedures is declared, the territorial competence is imperative and exclusive, and is even above the overlap of actions, as we have seen. According to the new Article 25 bis of the Spanish Bankruptcy Act, the situation would not change at all, inasmuch as the Commercial Court of Madrid would not be competent to hear the accumulation, until it is declared, and the objective competence to hear the actions of the Cacaolat, S.A. bankruptcy proceedings would correspond to the judge of Barcelona.
It should also be noted that the Supreme Court of Spain understands that the Commercial Judge of Madrid is not competent to file the accumulation of both procedures, it is necessary for the competent individuals according to the Spanish Bankruptcy Act, that is to say is the insolvency administration or the creditors, to file for the accumulation together with a report justifying the petition.
