Re Hellas Telecommunications (Luxembourg) II SCA
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LEWISON |
| Judgment Date | 26 November 2009 |
| Neutral Citation | [2009] EWHC 3199 (Ch) |
| Docket Number | No. 20916 of 2009 |
| Court | Chancery Division |
| Date | 26 November 2009 |
In the Matter of
[2009] EWHC 3199 (Ch)
Before: Mr. Justice Lewison
No. 20916 of 2009
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR. W. TROWER QC and MR. M. ARNOLD (instructed by Denton Wilde Sapte) appeared on behalf of the Company and its Directors.
MR. R. SHELDON QC and MISS H. STONEFROST (instructed by Slaughter and May) appeared on behalf of the Administrators.
MS. L. FRAZER (instructed by Linklaters) appeared on behalf of the Senior Secured Noteholders.
(As approved by the Judge)
This is an administration application in relation to a company called Hellas Telecommunications (Luxembourg) II SCA. The application is made by the company and by its directors on the ground that it is unable to pay its debts and that administration will produce a better result for creditors than a winding up. I must be satisfied that I have jurisdiction to make the order sought. That falls into two parts. The first is whether Hellas II (as I shall call it) is a company at all within the meaning of the Insolvency Act 1986. The second is whether it has its centre of main interests, or COMI, in England.
The evidence is that Hellas II is incorporated under the laws of Luxembourg. It is now a S ociété en Commandite par Actions which is, according to the evidence, a combination of a joint stock company and a limited partnership. It has a separate legal personality. It has a constitution and it has shareholders.
In those circumstances I consider that it does fall within the definition of company for the purposes of Schedule B1 of the Insolvency Act; and that therefore that jurisdictional hurdle is overcome. As mentioned, the company is incorporated under the laws of Luxembourg and consequently under the EC regulation there is a presumption that that is where its centre of main interests or COMI lies. That presumption can be rebutted; but in order to rebut the presumption there must be clear objective and ascertainable facts which rebut it. It is also the case as one might expect in a system of law which encourages a single market across the whole of the European Union that it is possible for an entity, whether a corporate entity or an individual, to change its COMI from its original or presumed location.
In the present case it is said that the company's COMI was changed from Luxembourg to England in the middle of August this year. I have to consider the position as at today's date. That is to say some three months on. The objective and ascertainable facts on which the company relies in support of its contention that it has shifted its COMI are that its head office and principal operating address is now in London, albeit that the premises it occupies are relatively modest since the company is no more than a financing and shareholding vehicle. The company's creditors were notified of its change of address around that time and an announcement was made by way of a press release that its...
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