Eine bedeutende tschechische Fachzeitschrift „Obchodní právo“ (Handelsrecht), die von der Wolters Kluwer ČR herausgegeben wird, veröffentlichte in ihrer Ausgabe 6/2024 einen Artikel von Prof. Dr. Alexander J. Bělohlávek zum Thema „Ermittlung versus Verhandlung und Feststellung der Verfahrenskonditionen im Insolvenzverfahren. Feststellung der internationalen Zuständigkeit und anderer Verfahrensbedingungen, namentlich nach der Verordnung (EU) 2015/848„.
Almost a quarter of a century ago, domestic case law established and is gradually strengthening the trend towards the possibility to assess a number of issues by means of an „investigation“ in the opposite to the course of „hearing“. The case-law also tries to give the impression that it is not an institutionalised category, even though in fact it has already adopted such an institutionalisation a long time ago. However, the original concept of „investigation“ (Section 120 of the Czech Code of Civil Procedure) or similarly in other provisions (Section 210 of the Czech Code of Civil Procedure etc.) allows these tools, with a few exceptions, to be used exclusively in matters of rather administrative nature. It is even less possible to do so for any issues even partially relevant to the assessment of the merits, whether in facts or in law. Judicial practice leaves, for instance, unclear a precise clarification of the parties´rights in the evidentiary hearing, which also can be conducted in „investigation“ to the extent of adequacy or suitability.
The significance of this matter is clearly manifested in insolvency proceedings, which are fundamentally and primarily subject of the EU law, namely Regulation (EU) 2015/848 on insolvency proceedings. This requires, for example, a substantive decision (specification of grounds) on international jurisdiction. At the same time, EU law deliberately does not draw a line between procedural and substantive matters. Under EU law, such a distinction is not even possible due to specifics of domestic law of its Members. Therefore, the determination of international jurisdiction, as well as a number of other issues important for insolvency proceedings, cannot be carried out by means of a (mere) „investigation“ and there must remain subject of a „hearing“ only. At first glance, the sophisticated and, from the prespective of the procedural economy, pragmatic concept in the case law regarding „investigation“ of requirements and the emphasis on this procedure as opposed to the „hearing“ is all too often in conflict with the requirements of EU law, specifically of those pursuant to European Insolvency Regulation. The European Insolvency Regulation (Regulation (EU) 2015/848) is directly applicable even without any European cross-border dimension. Perhaps even a certain lack of legal effects of the provision Section 426 of the Czech Insolvency Act in many respects is rather left aside in this paper. Unfortunately, the concept of „investigation“, created and constantly repeated in domestic case law, has not yet been subjected to any clear analysis, despite the fact that the matter has in the meantime been heard also by the Constitutional Court, which has indeed merely repeated the Supreme Court’s reasoning.