Judgment of the Court (Second Chamber) of 11 April 2024

European Union law

3 Recitals 1, 78 and 81 of the Restructuring and Insolvency Directive state:

‘(1) The objective of this Directive is to contribute to the proper functioning of the internal market and remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures concerning preventive restructuring, insolvency, discharge of debt, and disqualifications. Without affecting workers’ fundamental rights and freedoms, this Directive aims to remove such obstacles by ensuring that: viable enterprises and entrepreneurs that are in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; honest insolvent or over-indebted entrepreneurs can benefit from a full discharge of debt after a reasonable period of time, thereby allowing them a second chance; and that the effectiveness of procedures concerning restructuring, insolvency and discharge of debt is improved, in particular with a view to shortening their length.

…

(78) A full discharge of debt or the ending of disqualifications after a period no longer than three years is not appropriate in all circumstances, therefore derogations from this rule which are duly justified by reasons laid down in national law might need to be introduced. …

…

(81) Where there is a duly justified reason under national law, it could be appropriate to limit the possibility of discharge for certain categories of debt. It should be possible for Member States to exclude secured debts from eligibility for discharge only up to the value of the collateral as determined by national law, while the rest of the debt should be treated as unsecured debt. Member States should be able to exclude further categories of debt when duly justified.’

4 Article 1(1) of the Restructuring and Insolvency Directive provides:

‘This Directive lays down rules on:

1. preventive restructuring frameworks available for debtors in financial difficulties when there is a likelihood of insolvency, with a view to preventing the insolvency and ensuring the viability of the debtor;

2. procedures leading to a discharge of debt incurred by insolvent entrepreneurs; and

3. measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt.’

5 Article 20 of that directive, entitled ‘Access to discharge’, provides:

‘1.

Member States shall ensure that insolvent entrepreneurs have access to at least one procedure that can lead to a full discharge of debt in accordance with this Directive.

Member States may require that the trade, business, craft or profession to which an insolvent entrepreneur’s debts are related has ceased.

2.

Member States in which a full discharge of debt is conditional on a partial repayment of debt by the entrepreneur shall ensure that the related repayment obligation is based on the individual situation of the entrepreneur and, in particular, is proportionate to the entrepreneur’s seizable or disposable income and assets during the discharge period, and takes into account the equitable interest of creditors.

…’

6 Article 23 of that directive, entitled ‘Derogations’, provides, at paragraph 4:

‘Member States may exclude specific categories of debt from discharge of debt, or restrict access to discharge of debt or lay down a longer discharge period where such exclusions, restrictions or longer periods are duly justified, such as in the case of:

1. secured debts;

2. debts arising from or in connection with criminal penalties;

3. debts arising from tortious liability;

4. debts regarding maintenance obligations arising from a family relationship, parentage, marriage or affinity;

5. debts incurred after the application for or opening of the procedure leading to a discharge of debt; and

6. debts arising from the obligation to pay the cost of the procedure leading to a discharge of debt.’

7 Article 34(1) of the Restructuring and Insolvency Directive provides:

‘1.

Member States shall adopt and publish, by 17 July 2021, the laws, regulations and administrative provisions necessary to comply with this Directive, with the exception of the provisions necessary to comply with points (a), (b) and (c) of Article 28 which shall be adopted and published by 17 July 2024 and the provisions necessary to comply with point (d) of Article 28 which shall be adopted and published by 17 July 2026. They shall immediately communicate the text of those provisions to the [European] Commission.

They shall apply the laws, regulations and administrative provisions necessary to comply with this Directive from 17 July 2021, with the exception of the provisions necessary to comply with points (a), (b) and (c) of Article 28, which shall apply from 17 July 2024 and of the provisions necessary to comply with point (d) of Article 28, which shall apply from 17 July 2026.’

8 Pursuant to Article 35 of the Restructuring and Insolvency Directive, which provides that that directive is to enter into force on the twentieth day following that of its publication in the Official Journal of the European Union, that directive entered into force on 16 July 2019.

Spanish law

9 The Real Decreto-ley 1/2015 de mecanismo de segunda oportunidad, reducción de carga financiera y otras medidas de orden social (Royal Decree-Law 1/2015 on a second chance mechanism, reduction in financial burdens and other social measures) of 27 February 2015 (BOE No 51 of 28 February 2015, p. 19058), converted without amendment into Law 25/2015 of 28 July 2015, amended Ley 22/2003 Concursal (Insolvency Law 22/2003) of 9 July 2003 (BOE No 164 of 10 July 2003, p. 26905), by introducing a new Article 178bis to govern the benefit of discharge of debt. Article 178bis established a system allowing the debtor concerned to opt either for immediate discharge of debt (Article 178bis(3)(4)) or for deferred discharge of debt subject to a payment plan (Article 178bis(3)(5)). As regards deferred discharge of debt, Article 178bis(5)(1) provided:

‘The benefit of discharge of debt granted to the debtors referred to in paragraph 3(5) shall apply to that part of the following claims that remains unpaid:

1° Ordinary and subordinated claims outstanding at the date of the termination of the insolvency proceedings, even where they have not been notified, with the exception of claims governed by public law and claims for maintenance payments.

…’.

10 The Real Decreto Legislativo 1/2020 por el que se aprueba el texto refundido de la Ley Concursal (Royal Legislative Decree 1/2020 approving the consolidated text of the Insolvency Law) of 5 May 2020 (BOE No 127 of 7 May 2020, p. 31518) (‘the TRLC’) further amended Insolvency Law 22/2003, replacing Article 178bis of that Law with a new chapter, and excluding claims governed by public law from the scope of discharge of debt, whether immediate or deferred.

11 Article 491(1) of the TRLC stated:

‘Provided that claims against the estate and preferential insolvency claims have been paid in full and that, where the debtor satisfies the relevant criteria, he or she has sought to reach a prior extrajudicial payment agreement, the benefit of discharge of debt shall apply to all unpaid claims other than claims governed by public law and claims for maintenance payments.’

12 Article 497(1) of the TRLC provided:

‘The benefit of discharge of debt granted to debtors who have agreed to be subject to a payment plan shall apply to that part of the following claims which, under the plan, will remain unpaid:

1° Ordinary and subordinated claims outstanding at the date of the termination of the insolvency proceedings, even where they have not been notified, with the exception of claims governed by public law and claims for maintenance payments.

…’

13 The Ley 16/2022 de reforma del texto refundido de la Ley Concursal, aprobado por el Real Decreto Legislativo 1/2020, de 5 de mayo, para la transposición de la Directiva (EU) 2019/1023 (Law 16/2022 amending the consolidated text of the Insolvency Law, approved by Royal Legislative Decree 1/2020 of 5 May 2020, for the transposition of Directive (EU) 2019/1023) of 5 September 2022 (BOE No 214 of 6 September 2022, p. 123682; ‘Law 16/2022’), confirmed the approach adopted by the TRLC by also excluding claims governed by public law from the scope of discharge of debt, whether immediate or deferred.

14 The preamble to Law 16/2022 states, in Section IV, inter alia:

‘…

The [Restructuring and Insolvency Directive] requires all Member States to introduce a second chance mechanism to prevent debtors from being tempted to relocate to other countries which already provide for such mechanisms, with the cost that that would entail for both the debtor and his or her creditors. At the same time, standardisation in this area is considered essential for the operation of the single European market.

…

Two methods are being put in place for the discharge of debt: discharge with liquidation of assets and discharge subject to a payment plan. …

…

The discharge of debt shall apply to all claims under insolvency proceedings and claims against assets. Exceptions shall be based, in certain cases, on the particular importance attached to them being paid in a just and cohesive society based on the rule of law (such as maintenance debts, debts arising from claims governed by public law, debts arising from criminal offences or debts arising from tortious liability). Thus, the discharge of debt in respect of claims governed by public law is subject to certain limits and can only take place at the time of the initial discharge of debt, and not at the time of subsequent discharges. …

…’

15 Article 489 of the TRLC as amended by Law 16/2022 is worded as follows:

‘1.

‘The discharge of debt shall apply to all unpaid claims, with the exception of the following:

…

5^o Debts arising from claims governed by public law. However, debts for which the management of recovery falls within the competence of the [AEAT] may be discharged up to the maximum amount of EUR 10 000 per debtor; for the first EUR 5 000 of debt, a full discharge will be given and, from that amount and above, the discharge shall be 50% of the debt up to the maximum indicated. Similarly, social security debts may be discharged in respect of the same amount and under the same conditions. The amount discharged, up to the abovementioned ceiling, shall be applied in reverse order to the order of priority legally established by this law and, within each class, in accordance with seniority.

…’

The first question

30 By its first question, the referring court asks, in essence, whether the principle that national law must be interpreted in conformity with an EU directive is applicable to a situation in which the facts occurred after the date of entry into force of the Restructuring and Insolvency Directive, but before the expiry of the deadline for transposing that directive.

31 In that regard, it should be borne in mind that, according to the case-law of the Court, the obligation to interpret national law in conformity with EU law to which the referring court makes reference concerns all provisions of national law, whether adopted before or after the directive in question (judgment of 23 April 2009, Angelidaki and Others , C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 197 and the case-law cited) and that, in the case of a rule of national law adopted after the entry into force of that directive, it is immaterial whether or not that rule is concerned with the transposition of the directive (see, to that effect, judgment of 4 July 2006, Adeneler and Others , C‑212/04, EU:C:2006:443, paragraph 121 and the case-law cited).

32 It is also clear from the case-law of the Court that the general obligation owed by national courts to interpret domestic law in conformity with a directive exists only once the period for its transposition has expired (see, to that effect, judgments of 4 July 2006, Adeneler and Others , C‑212/04, EU:C:2006:443, paragraph 115 , and of 23 April 2009, Angelidaki and Others , C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 201 ).

33 It follows that, as the Advocate General observed in point 29 of his Opinion, in a situation such as that at issue in the main proceedings, in which the facts occurred before the deadline for transposing the directive concerned, the principle that national law must be interpreted in conformity with that EU directive does not yet apply to a national court which has to rule on those facts.

34 As regards the obligation on the Member States, during the period prescribed for transposition of a directive, to refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by it (judgment of 4 July 2006, Adeneler and Others , C‑212/04, EU:C:2006:443, paragraph 121 and the case-law cited), that obligation must be examined in the context of the answer to the second question referred for a preliminary ruling.

35 In the light of the foregoing, the answer to the first question is that the principle that national law must be interpreted in conformity with an EU directive is not applicable to a situation in which the facts occurred after the date of entry into force of the Restructuring and Insolvency Directive, but before the expiry of the deadline for transposition of that directive and its transposition into national law.

The third question

36 By its third question, which it is appropriate to examine second, the referring court asks, in essence, whether Article 23(4) of the Restructuring and Insolvency Directive must be interpreted as meaning that the list of specific categories of debt set out therein is exhaustive or not and whether, if that list is not exhaustive, the Member States have the power to exclude specific categories of debt other than those listed in that provision from discharge of debt, provided that such an exclusion is duly justified under national law.

37 As regards, in the first place, whether or not that list is exhaustive, it should be noted that the list is introduced by the words ‘such as in the case of’, and that terms having the same meaning are reproduced in the other language versions of Article 23(4), including in the Spanish-language version of that provision following the publication of the corrigendum referred to in paragraph 24 above. It is, therefore, apparent from the wording of that provision that the specific categories of debt listed therein are not exhaustively listed.

38 The literal interpretation of Article 23(4) of the Restructuring and Insolvency Directive, according to which the list in that provision is not exhaustive, but illustrative, is borne out, as the Advocate General observed in point 33 of his Opinion, by recital 81 of that directive, from which it is apparent that the EU legislature considered that Member States ‘should be able to exclude further categories of debt when duly justified’.

39 It follows that Article 23(4) of the Restructuring and Insolvency Directive must be interpreted as meaning that the list of specific categories of debt set out therein is not exhaustive and that the Member States have the power to exclude specific categories of debt other than those listed in that provision from discharge of debt in duly justified cases.

40 As regards, in the second place, the Member States’ discretion in exercising that power, it should be noted that – as the Advocate General has shown in points 39 to 43 of his Opinion – neither the Restructuring and Insolvency Directive nor the related travaux préparatoires can substantiate the argument put forward, in particular, by the referring court, that given the internal coherence of the categories of debt expressly referred to in Article 23(4) of that directive, the EU legislature intended to limit the Member States’ discretion as regards the exclusion of categories of debt other than those listed in Article 23(4), such as claims governed by public law, from discharge of debt. On the contrary, it is apparent more particularly from those travaux préparatoires that the EU legislature had a stated intention to leave the Member States a certain discretion so that they may, when transposing that directive into their national law, take account of the local economic situation and legal structures.

41 On an interim basis, it must, therefore, be concluded that Article 23(4) of the Restructuring and Insolvency Directive is to be interpreted as not restricting the Member States’ discretion as regards the choice of categories of debt other than those listed in that provision which they may seek to exclude from discharge of debt.

42 That being so, the EU legislature expressly made the exercise of the power thus granted to the Member States in Article 23(4) subject to the condition that such exclusions be ‘duly justified’. It follows that when the national legislature adopts such derogations, the reasons for those derogations must derive from national law or from the procedure which led to them and that those reasons must pursue a legitimate public interest.

43 In that regard, both recital 78 of the Restructuring and Insolvency Directive, which refers to derogations ‘duly justified by reasons laid down in national law’, and recital 81 of that directive, which refers to a reason ‘duly justified … under national law’, permit the inference that the EU legislature considered that it was sufficient that the detailed rules laid down for that purpose in the different national legal systems were complied with.

44 In the light of the foregoing, the answer to the third question is that Article 23(4) of the Restructuring and Insolvency Directive must be interpreted as meaning that the list of specific categories of debt set out therein is not exhaustive and that the Member States have the power to exclude specific categories of debt other than those listed in that provision from discharge of debt, provided that such an exclusion is duly justified under national law.

The second question

45 By its second question, the referring court asks, in essence, whether an interpretation by the national courts of national legislation applicable to facts which occurred after the date of entry into force of the Restructuring and Insolvency Directive, but before the expiry of the deadline for its transposition, in accordance with which interpretation the exclusion of claims governed by public law from the discharge of debt is not duly justified in that legislation, is liable seriously to compromise, after the expiry of that deadline, the attainment of the objective pursued by that directive.

46 For the purposes of answering that question, it should be recalled that, as is apparent from the case-law cited in paragraph 34 above, from the date upon which a directive has entered into force, the Member States must refrain from taking any measures liable seriously to compromise, after the expiry of the deadline for transposing that directive, the attainment of the objective pursued by it.

47 Since all the authorities of the Member States are subject to the obligation to ensure that provisions of EU law take full effect, the obligation to refrain from taking measures set out in the preceding paragraph applies just as much to national courts (see, to that effect, judgment of 4 July 2006, Adeneler and Others , C‑212/04, EU:C:2006:443, paragraphs 121 and 122 and the case-law cited).

48 The Court has inferred from this that from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive (judgment of 4 July 2006, Adeneler and Others , C‑212/04, EU:C:2006:443, paragraphs 123 ).

49 It should also be noted that, under Article 1 of the Restructuring and Insolvency Directive, that directive lays down rules on (i) preventive restructuring frameworks available for debtors in financial difficulties when there is a likelihood of insolvency, (ii) procedures leading to a discharge of debt incurred by insolvent entrepreneurs and (iii) measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt. As regards, more specifically, the procedure for discharge of debt, the objective of that directive is, as is apparent from Article 20(1) thereof, read in conjunction with recital 1 of that directive, that honest insolvent or over-indebted entrepreneurs should have access to at least one procedure that can lead to a full discharge of debt in accordance with that directive, which would allow them a second chance.

50 However, first, as was set out in paragraphs 37 to 44 above, Article 23(4) of the Restructuring and Insolvency Directive allows Member States to exclude specific categories of debt from discharge of debt provided that such an exclusion is duly justified. Second, as is apparent from the case-law cited in paragraphs 46 to 48 above, from the date upon which a directive has entered into force, the courts of the Member States must refrain, as far as possible, from interpreting domestic law in a manner which might seriously compromise, after the period for transposition of that directive has expired, attainment of the objective pursued by it.

51 However, the fact that, before the period for transposition of the Restructuring and Insolvency Directive has expired, a national legislature did not duly justify the exclusion of a category of debt, such as claims governed by public law, from discharge of debt is not, in itself, liable seriously to compromise the attainment of the objective pursued by that directive. First, notwithstanding the objective of that directive of allowing honest insolvent or over-indebted entrepreneurs a second chance by offering them access to a procedure that may lead to a total discharge of debt, that directive allows Member States to exclude from discharge of debt categories of debt, such as claims governed by public law. Secondly, such a failure by the national legislature to provide a justification for the exclusion of claims governed by public law from procedures for discharge of debt does not affect the opportunity for that legislature to provide an appropriate justification for that exclusion if it maintains the exclusion after the period for transposing that directive.

52 While it is ultimately for the referring court to assess whether, in the case in the main proceedings, having regard to all the circumstances of that case, the TRLC approved by Royal Legislative Decree 1/2020 might seriously compromise, after the period for transposition of the Restructuring and Insolvency Directive has expired, the attainment of the objective pursued by that directive, the Court may, on the basis of the information in the file before it, provide that court with useful guidance for carrying out that assessment.

53 In that regard, it should be noted that, as regards the justification for excluding claims governed by public law from discharge of debt under national law, first, as is apparent from the order for reference, the Spanish legislature justified that exclusion in the preamble to Law 16/2022 which seeks to ensure the transposition of that directive. Accordingly, it appears that, after expiry of the period for transposition of that directive, the Spanish legislature complied with the obligation, laid down in Article 23(4) thereof, of justifying that exclusion.

54 Secondly, as the referring court has stated, in accordance with the case-law of the Tribunal Supremo (Supreme Court, Spain), the preambles and explanatory memoranda for Spanish legislative provisions form an integral part of those provisions and are relevant for the purposes of interpreting them, since the body from which those legislative provisions emanate explains the rationale of those provisions (ratio legis) in those preambles and memoranda. As it is established that the Spanish legislature justified the exclusion of claims governed by public law from discharge of debt, in the preamble to Law 16/2022, it appears a priori that that legislature provided a justification under national law and that the absence of any justification, in particular in the version of the TRLC applicable to the case in the main proceedings, cannot have the effect of seriously compromising, after the period for transposition of the Restructuring and Insolvency Directive has expired, the attainment of the objective pursued by that directive.

55 In the light of the foregoing considerations, the answer to the second question is that an interpretation by the national courts of national legislation applicable to facts which occurred after the date of entry into force of the Restructuring and Insolvency Directive, but before the expiry of the deadline for its transposition, in accordance with which interpretation the exclusion of claims governed by public law from discharge of debt is not duly justified in that legislation, is not liable seriously to compromise, after the expiry of that deadline, the attainment of the objective pursued by that directive.