CELEX: 62018CJ0047
Reference for a preliminary ruling
Regulation (EU) No 1215/2012
Jurisdiction in civil and commercial matters
Scope
Article 1(2)(b)
Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
Not included
Action for a declaration that a claim exists for the purposes of its registration in insolvency proceedings
Application of Regulation (EC) No 1346/2000
Article 41
Content of the lodgement of a claim
Main and secondary insolvency proceedings
Lis pendens and related actions
Application by analogy of Article 29(1) of Regulation No 1215/2012
Inadmissibility

This request for a preliminary ruling concerns the interpretation of Article 1(2)(b) and Article 29(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (
OJ 2012 L 351, p. 1
) and of Article 41 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on the law applicable to contractual obligations (
OJ 2000 L 160, p. 1
).
The request has been made in proceedings between the Skarb Państwa Rzeczypospolitej Polskiej — Generalny Dyrektor Dróg Krajowych i Autostrad (Public Treasury of the Republic of Poland — General Director for National Roads and Motorways) and Mr Stephan Riel, acting as court administrator in the main insolvency proceedings opened in Austria against Alpine Bau GmbH concerning an action seeking a declaration of the existence of claims.
Legal context
European Union law
Regulation No 1215/2012
Article 1 of Regulation No 1215/2012 provides:
‘1.   This regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (
acta iure imperii
).
2.   This regulation shall not apply to:
…
(b)
bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;
…’
Under Article 29 of that regulation:
‘1.   Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2.   In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32.
3.   Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’
Article 30 of that regulation is worded as follows:
‘1.   Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.
2.   Where the action in the court first seised is pending at first instance, any other court may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.
3.   For the purposes of this article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’
Regulation No 1346/2000
Recitals 2, 6, 8, 12, 18, 19 and 21 in the preamble to Regulation No 1346/2000 state that:
‘(2)
The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively and this regulation needs to be adopted in order to achieve this objective …
…
(6)
In accordance with the principle of proportionality this regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings. In addition, this regulation should contain provisions regarding the recognition of those judgments and the applicable law which also satisfy that principle.
…
(8)
In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects, it is necessary, and appropriate, that the provisions on jurisdiction, recognition and applicable law in this area should be contained in a Community law measure which is binding and directly applicable in Member States.
…
(12)
This regulation enables the main insolvency proceedings to be opened in the Member State where the debtor has the centre of his main interests. These proceedings have universal scope and aim at encompassing all the debtor’s assets. To protect the diversity of interests, this regulation permits secondary proceedings to be opened to run in parallel with the main proceedings. Secondary proceedings may be opened in the Member State where the debtor has an establishment. The effects of secondary proceedings are limited to the assets located in that State. Mandatory rules of coordination with the main proceedings satisfy the need for unity in the Community.
…
(18)
Following the opening of the main insolvency proceedings, this regulation does not restrict the right to request the opening of insolvency proceedings in a Member State where the debtor has an establishment. The liquidator in the main proceedings or any other person empowered under the national law of that Member State may request the opening of secondary insolvency proceedings.
(19)
Secondary insolvency proceedings may serve different purposes, besides the protection of local interests. Cases may arise where the estate of the debtor is too complex to administer as a unit or where differences in the legal systems concerned are so great that difficulties may arise from the extension of effects deriving from the law of the State of the opening to the other States where the assets are located. For this reason the liquidator in the main proceedings may request the opening of secondary proceedings when the efficient administration of the estate so requires.
…
(21)
Every creditor, who has his habitual residence, domicile or registered office in the Community, should have the right to lodge his claims in each of the insolvency proceedings pending in the Community relating to the debtor’s assets. …’
Article 3 of that regulation is worded as follows:
‘1.   The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary.
2.   Where the centre of the debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if it possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.
3.   Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings. These latter proceedings must be winding-up proceedings.
…’
Article 4 of that regulation provides:
‘1.   Save as otherwise provided in this regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened, hereafter referred to as the “State of the opening of proceedings”.
2.   The law of the State of the opening of proceedings shall determine the conditions for the opening of those proceedings, their conduct and their closure. It shall determine in particular:
…
(h)
the rules governing the lodging, verification and admission of claims;
…’
According to Article 27 of that regulation:
‘The opening of the proceedings referred to in Article 3(1) by a court of a Member State and which is recognised in another Member State (main proceedings) shall permit the opening in that other Member State, a court of which has jurisdiction pursuant to Article 3(2), of secondary insolvency proceedings without the debtor’s insolvency being examined in that other State. … These effects shall be restricted to the assets of the debtor situated within the territory of that other Member State.’
Article 31 of Regulation No 1346/2000 states:
‘1.   Subject to the rules restricting the communication of information, the liquidator in the main proceedings and the liquidators in the secondary proceedings shall be duty bound to communicate information to each other. They shall immediately communicate any information which may be relevant to the other proceedings, in particular the progress made in lodging and verifying claims and all measures aimed at terminating the proceedings.
2.   Subject to the rules applicable to each of the proceedings, the liquidator in the main proceedings and the liquidators in the secondary proceedings shall be duty bound to cooperate with each other.
…’
Article 39 of that regulation provides:
‘Any creditor who has his habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings, including the tax authorities and social security authorities of Member States, shall have the right to lodge claims in the insolvency proceedings in writing.’
In accordance with Article 40 of that regulation:
‘1.   As soon as insolvency proceedings are opened in a Member State, the court of that State having jurisdiction or the liquidator appointed by it shall immediately inform known creditors who have their habitual residences, domiciles or registered offices in the other Member States.
2.   That information, provided by an individual notice, shall in particular include time limits, the penalties laid down in regard to those time limits, the body or authority empowered to accept the lodgement of claims and the other measures laid down. Such a notice shall also indicate whether creditors whose claims are preferential or secured in rem need lodge their claims.’
Article 41 of that regulation states:
‘A creditor shall send copies of supporting documents, if any, and shall indicate the nature of the claim, the date on which it arose and its amount, as well as whether he alleges preference, security in rem or a reservation of title in respect of the claim and what assets are covered by the guarantee he is invoking.’
Article 42 of Regulation No 1346/2000 is worded as follows:
‘1.   The information provided for in Article 40 shall be provided in the official language or one of the official languages of the State of the opening of proceedings. For that purpose a form shall be used bearing the heading “Invitation to lodge a claim. Time limits to be observed”.
2.   Any creditor who has his habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings may lodge his claim in the official language or one of the official languages of that other State. In that event, however, the lodgement of his claim shall bear the heading “Lodgement of claim” in the official language or one of the official languages of the State of the opening of proceedings. In addition, he may be required to provide a translation into the official language or one of the official languages of the State of the opening of proceedings.’
Austrian law
Paragraph 102 of the Insolvenzordnung (Law on Insolvency), in the version applicable to the dispute in the main proceedings (‘the IO’), states:
‘Debtors are required to enforce their claims in insolvency proceedings in accordance with the following provisions, even if they are the subject of litigation.’
Paragraph 103(1) of the IO provides:
‘The declaration shall indicate the amount of the claim and the facts on which it is based, as well as the rank claimed; it must specify the evidence which may be produced in support of the alleged claim.’
Paragraph 110(1) of the IO reads as follows:
‘The holders of claims the accuracy or rank of which remain at issue may act to seek a declaration of the existence of those claims, where the legal remedy is admissible, by directing their action against all opponents … The claims made in the context of that action may be based only on the ground relied upon in the framework of the declaration and at the verification hearing; they cannot relate to an amount which is higher than that which was indicated on that occasion.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
The appellant in the main proceedings, who was responsible for the administration of the Polish road network, contracted Alpine Bau to carry out a number of road construction projects in Poland, under contracts which were awarded as a result of public tendering procedures. The contracts relating to those projects contained detailed clauses in respect of the damages to be paid in the event of delay in the performance of those contracts.
On 19 June 2013, insolvency proceedings were commenced in Austria concerning Alpine Bau and Mr Riel was appointed liquidator of that company.
On 4 July 2013, those proceedings were reclassified as ‘bankruptcy proceedings’. On the following day, in accordance with a decision of the Handelsgericht Wien (Commercial Court, Vienna, Austria), it was stated in the register of insolvency proceedings that they were main insolvency proceedings within the meaning of Regulation No 1346/2000.
Secondary insolvency proceedings were opened in Poland against Alpine Bau before the Sad Rejonowy Poznān-Stare Miasto w Poznaniu (District Court, Poznān-Stare Miasto, Poland).
Debts were submitted by the appellant in the main proceedings, on 16 August 2013 and 22 June 2016, in the main insolvency proceedings opened in Austria and on 16 May 2014 and 16 June 2015 in the secondary insolvency proceedings opened in Poland.
Most of the claims thus submitted were challenged by Mr Riel, appointed in the Austrian main insolvency proceedings, and by the liquidator appointed in the Polish secondary insolvency proceedings.
On 1 April 2015, the appellant in the main proceedings brought an action in Poland for a declaration of the existence of a claim in the amount of 309663865 Polish zlotys (PLN) (approximately EUR 73898402).
On 31 October 2016, it also brought an action before the Handelsgericht Wien (Commercial Court, Vienna) seeking a declaration of the existence of a claim in the amount of EUR 64 784 879.43, at the same time seeking a stay of the proceedings, in accordance with Articles 29 and 30 of Regulation No 1215/2012, until the decision in the proceedings pending in Poland for the verification of the claims had acquired the force of
res judicata
.
By interlocutory judgment of 25 July 2017, the Handelsgericht Wien (Commercial Court, Vienna) dismissed the application of the appellant in the main proceedings as to the amount of EUR 265 132.81, without ruling on its application for a stay of proceedings.
The appellant in the main proceedings appealed against that judgment to the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), relying, inter alia, on a procedural defect, in that the Handelsgericht Wien (Commercial Court, Vienna) had refused to stay the proceedings in breach of Article 29 of Regulation No 1215/2012.
The referring court asks, first, whether the action before it for a declaration of the existence of a claim falls within the scope of Regulation No 1215/2012 or that of Regulation No 1346/2000.
Second, it asks whether the rules relating to
lis pendens
laid down in Regulation No 1215/2012 are applicable, possibly by analogy, in the event that Regulation No 1346/2000 should apply.
Third, it expresses doubts concerning the scope of the requirements set out in Article 41 of Regulation No 1346/2000 concerning the content of the submission of a claim by creditors established in a Member State.
In those circumstances, the Oberlandesgericht Wien (Higher Regional Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Article 1(2)(b) of Regulation No 1215/2012 to be interpreted as meaning that an action for a declaration of the existence of a claim under Austrian law concerns insolvency for the purposes of [that provision] and is, therefore, excluded from the material scope of that regulation?
(2)
(only in the event that the first question is answered in the affirmative):
Is Article 29(1) of Regulation No 1215/2012 to be applied analogously to related actions falling within the scope of Regulation No 1346/2000?
(3)
(only in the event that the first question is answered in the negative or that the second question is answered in the affirmative):
Is Article 29(1) of Regulation No 1215/2012 to be interpreted as meaning that proceedings involving the same cause of action and between the same parties exist when a creditor (the [appellant in the main proceedings]) who has lodged a (largely) identical claim in the main proceedings in Austria and in the secondary proceedings in Poland, which (in the main) was contested by the respective administrators, brings actions for a declaration of the existence of claims of a certain amount first in Poland against the administrator acting in the secondary proceedings in that country and then in Austria against the administrator acting in the main proceedings ([Mr Riel])?
(4)
Is Article 41 of Regulation No 1346/2000 to be interpreted as meaning that the requirement to indicate the “nature of the claim, the date on which it arose and its amount” is satisfied where, in the lodgement of his claim in the main insolvency, as is the case here, the creditor established in a Member State other than the State of the opening of proceedings (the [appellant in the main proceedings]):
(a)
describes the claim simply by assigning a specific amount to it without stating the date on which that claim arose (for example, as a “claim of the subcontractor JSV Slawomir Kubica in respect of the carrying out of roadworks”);
(b)
does not state the date on which the claim arose in the declaration itself, but such a date may be inferred from the annexes submitted with the declaration of claim (for example, on the basis of the date stated on the invoice submitted)?
(5)
Must Article 41 of Regulation No 1346/2000 be interpreted as not precluding the application of national provisions — for example those relating to the requirement to state the day on which a claim arose — which are more favourable in the particular case to the creditor lodging the claim, who is established in a Member State other than the State of the opening of proceedings?’
Consideration of the questions referred
The first question
By its first question, the referring court asks, in essence, whether Article 1(2)(b) of Regulation No 1215/2012 must be interpreted as meaning that an action for a declaration of the existence of claims for the purposes of their registration in the context of insolvency proceedings, such as that at issue in the main proceedings, is excluded from the scope of that regulation.
In that regard, it should be recalled that the Court has held that Regulations No 1215/2012 and No 1346/2000 must be interpreted in such a way as to avoid any overlap between the rules of law laid down by those instruments and any legal vacuum. Accordingly, actions excluded, under Article 1(2)(b) of Regulation No 1215/2012, from the scope of that regulation in so far as they come under ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ fall within the scope of Regulation No 1346/2000. Correspondingly, actions which fall outside the scope of Article 3(1) of Regulation No 1346/2000 fall within the scope of Regulation No 1215/2012 (judgments of 20 December 2017, Valach and Others,
C‑649/16
,
EU:C:2017:986
, paragraph
, and of 4 October 2018, Feniks,
C‑337/17
,
EU:C:2018:805
, paragraph
).
It follows that the respective scopes of those two regulations are clearly defined and that an action which derives directly from insolvency proceedings and is closely connected with them falls outside the scope of Regulation No 1215/2012, but rather falls within the scope of Regulation No 1346/2000 (judgment of 14 November 2018, Wiemer & Trachte,
C‑296/17
,
EU:C:2018:902
, paragraph
).
In that context, the Court took into consideration the fact that the various types of action which it had had to hear were brought in connection with insolvency proceedings. Moreover, it focuses above all on determining each time whether the action in question derived from insolvency law or other rules (judgments of 4 September 2014, Nickel & Goeldner Spedition,
C‑157/13
,
EU:C:2014:2145
, paragraph
, and of 4 December 2014, H,
C‑295/13
,
EU:C:2014:2410
, paragraph
).
In particular, the decisive factor used by the Court to identify the area within which an action falls is the legal basis of that action. In accordance with that approach, it must be determined whether the right or the obligation which forms the basis of the action has its source in the ordinary rules of civil and commercial law or in derogating rules specific to insolvency proceedings (judgments of 4 September 2014, Nickel & Goeldner Spedition,
C‑157/13
,
EU:C:2014:2145
, paragraph
; of 11 June 2015, Comité d’entreprise de Nortel Networks and Others,
C‑649/13
,
EU:C:2015:384
, paragraph
; of 9 November 2017, Tünkers France and Tünkers Maschinenbau,
C‑641/16
,
EU:C:2017:847
, paragraph
; and of 20 December 2017, Valach and Others,
C‑649/16
,
EU:C:2017:986
, paragraph
).
In the present case, it should be noted that, apart from the fact that the action for a declaration of the existence of claims provided for in Article 110 of the IO, brought by the applicant in the main proceedings, constitutes an element of Austrian insolvency legislation, it is clear from the wording of that provision that that action is intended to be brought in the context of insolvency proceedings, by creditors participating in those insolvency proceedings, in the event of a dispute concerning the accuracy or ranking of claims declared by those creditors.
Accordingly, it is apparent that, in view of those characteristics, the action for a declaration of the existence of claims under Article 110 of the IO derives directly from insolvency proceedings, is closely connected with them and has its origin in the law on insolvency proceedings.
Consequently, that action does not fall within the scope of Regulation No 1215/2012 but within that of Regulation No 1346/2000.
In those circumstances, the answer to the first question is that Article 1(2)(b) of Regulation No 1215/2012 must be interpreted as meaning that an action for a declaration of the existence of claims for the purposes of their registration in the context of insolvency proceedings, such as that at issue in the main proceedings, is excluded from the scope of that regulation.
The second question
By its second question, which it asks only in the event that the first question is answered in the affirmative, the referring court asks, in essence, whether Article 29(1) of Regulation No 1215/2012 must be interpreted as meaning that it applies by analogy to an action such as that at issue in the main proceedings, which is excluded from the scope of that regulation but falls within the scope of Regulation No 1346/2000.
As a preliminary point, it is appropriate to bear in mind that, in providing that, where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised is, of its own motion, to stay its proceedings until such time as the jurisdiction of the court first seised is established, Article 29(1) of Regulation No 1215/2012 seeks to prevent irreconcilable judgments being delivered in respect of those applications.
It should also be noted that, in so far as the EU legislature expressly excluded certain matters from the scope of Regulation No 1215/2012, its provisions, including those of a purely procedural nature, do not apply by analogy to those matters.
Moreover, such an application would disregard the scheme of Regulation No 1346/2000 and would therefore undermine the effectiveness of the provisions of that regulation, in particular in that, in accordance with Articles 3 and 27 of that regulation, read in the light of recitals 12, 18 and 19 thereof, secondary insolvency proceedings may be opened in parallel with the main insolvency proceedings, which Article 29(1) of Regulation No 1215/2012 does not permit.
Furthermore, as the Commission has argued in its written observations, with regard to Regulation No 1346/2000, Article 31 of that regulation makes it possible to avoid the risk of irreconcilable judgments by laying down rules on information and cooperation in cases of parallel insolvency proceedings.
Consequently, the answer to the second question is that Article 29(1) of Regulation No 1215/2012 must be interpreted as not applying, even by analogy, to an action such as that at issue in the main proceedings, which is excluded from the scope of that regulation but falls within the scope of Regulation No 1346/2000.
The third question
As the third question is referred only in the event that the first question is answered in the negative or if the second question is answered in the affirmative, there is no need to answer it.
The fourth and fifth questions
By its fourth and fifth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 41 of Regulation No 1346/2000 must be interpreted as meaning that a creditor may, in the context of insolvency proceedings, lodge a claim without formally indicating the date on which it arose, where the law of the Member State within the territory of which those proceedings were initiated so permits and that date may be inferred from the supporting documents referred to in Article 41.
It is apparent from recitals 2 and 8 of Regulation No 1346/2000 that the objective of that regulation is to ensure efficient and effective cross-border insolvency proceedings and improve and accelerate them.
In particular, as is apparent in particular from recital 21 and Article 39 of that regulation, it is intended to ensure equal treatment of creditors within the European Union and to facilitate the exercise of their rights.
Article 4(2)(h) of Regulation No 1346/2000 lays down the principle that rules on the lodgement, verification and admission of debts are to be determined by the law of the Member State within the territory of which insolvency proceedings are opened. Article 41 of that regulation, in Chapter IV thereof, entitled ‘Provision of information for creditors and lodgement of their claims’, nonetheless lays down certain requirements relating to the content of the lodgement of a claim, which, as the Advocate General observed in points 59 and 72 of his Opinion, must be regarded as constituting maximum requirements, relating to the content of the lodgement of a claim, which may be imposed by national legislation on creditors who have their habitual residence, domicile or registered office in a Member State other than that in which the insolvency proceedings have been opened.
Among those requirements, Article 41 provides that the creditor is to send a copy of the supporting documents, if there is such a copy, and indicate the date on which the claim arose.
Furthermore, it must be borne in mind that, as stated in paragraph 51 of this judgment, the rules on the verification and admission of claims continue, in accordance with the principle laid down in Article 4(2)(h) of Regulation No 1346/2000, to be determined by the law of the Member State within the territory of which the insolvency proceedings have been opened.
It follows from the foregoing considerations that Article 41 of Regulation No 1346/2000 must not be interpreted in a manner having the effect of precluding the lodgement of a claim on the ground that the declaration of claim at issue does not contain one of the indications set out in Article 41, where reference to that indication is not required by the law of the Member State within the territory of which the insolvency proceedings have been opened and where that indication may, without particular difficulty, be inferred from the supporting documents referred to in Article 41 thereof, which it is for the competent authority responsible for the verification of claims to determine.
In those circumstances, the answer to the fourth and fifth questions is that Article 41 of Regulation No 1346/2000 must be interpreted as meaning that a creditor may, in the context of insolvency proceedings, lodge a claim without formally indicating the date on which it arose, where the law of the Member State within the territory of which those proceedings were opened does not impose an obligation to state that date and where that date may, without particular difficulty, be inferred from the supporting documents referred to in Article 41 of that regulation, which it is for the competent authority responsible for the verification of claims to determine.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

1.
Article 1(2)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for a declaration of the existence of claims for the purposes of their registration in the context of insolvency proceedings, such as that at issue in the main proceedings, is excluded from the scope of that regulation.

2.
Article 29(1) of Regulation No 1215/2012 must be interpreted as not applying, even by analogy, to an action such as that in the main proceedings which is excluded from the scope of that regulation but falls within the scope of Regulation No 1346/2000.

3.
Article 41 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on the law applicable to contractual obligations must be interpreted as meaning that a creditor may, in the context of insolvency proceedings, lodge a claim without formally indicating the date on which it arose, where the law of the Member State within the territory of which those proceedings were opened does not impose an obligation to state that date and where that date may, without particular difficulty, be inferred from the supporting documents referred to in Article 41 of that regulation, which it is for the competent authority responsible for the verification of claims to determine.

[Signatures]
(
*1
)	Language of the case: German.