Judgment — ECLI:EU:C:2024:776
Date: 2024-09-19
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation C-501/23 – 1 
Case C-501/23 
Request for a preliminary ruling 
Date lodged: 
7 August 2023 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
29 June 2023 
Debtor and appellant: 
DL 
Creditor and respondent: 
Land Berlin 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
of 
29 June 2023 
in the proceedings for the opening of insolvency proceedings 
against DL, […] Berlin, 
debtor and appellant, 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 6. 2023 – CASE C-501/23 
 
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intervener: 
Land Berlin (German federal state of Berlin), represented by the Finanzamt 
Wilmersdorf (Wilmersdorf Tax Office), […] Berlin, 
creditor and respondent 
The Ninth Civil Panel of the Federal Court of Justice […] 
makes, on 29 June 2023, the following 
Order: 
I. The proceedings are stayed. 
II. The following questions are referred to the Court of Justice of the 
European Union pursuant to Article 267(1)(b) and (3) TFEU: 
1. Is the first sentence of the third subparagraph of Article 3(1) in 
conjunction with Article 2(10) of Regulation (EU) 2015/848 of the European 
Parliament and of the Council of 20 May 2015 on insolvency proceedings 
(‘the European Insolvency Regulation’) to be interpreted as meaning that the 
place of operations of an individual exercising an independent business or 
professional activity constitutes an establishment even if the operations are 
carried out without any human means or assets? 
2. If Question 1 is answered in the negative: Is the first sentence of the 
third subparagraph of Article 3(1) of the European Insolvency Regulation to 
be interpreted as meaning that, if an individual exercising an independent 
business or professional activity does not maintain an establishment within 
the meaning of Article 2(10) of the European Insolvency Regulation, the 
centre of main interests is presumed to be the place where the independent 
business or professional activity is exercised in the absence of proof to the 
contrary? 
3. If Question 2 is answered in the negative: Is Article 3(1) of the 
European Insolvency Regulation to be interpreted as meaning that, in the 
case of an individual exercising an independent business or professional 
activity who does not maintain an establishment within the meaning of 
Article 2(10) of the European Insolvency Regulation, the centre of main 
interests is presumed to be the place of the individual’s habitual residence 
pursuant to the first sentence of the fourth subparagraph of Article 3(1) of 
the European Insolvency Regulation, in the absence of proof to the contrary? 
FINANZAMT WILMERSDORF 
 
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Grounds: 
I. 
1 On 18 August 2020, the intervener requested the opening of insolvency 
proceedings against the debtor. At the time of the lodging of the application the 
debtor maintained residences in Berlin, Monaco, Los Angeles and on the French 
Caribbean island of Saint-Barthélemy. He was the chairman of the supervisory 
board of Landbell AG, a public limited company incorporated under German law 
with its registered office in Mainz. His assets consisted of a bank balance in 
Monaco and holdings in companies incorporated under Monegasque law, which 
held assets, a securities account and shareholdings in Germany. 
2 By order of 27 July 2021, the Amtsgericht (Local Court) seised of the case 
dismissed the application as inadmissible on the ground that it lacked territorial 
jurisdiction. On 29 June 2022, following an immediate appeal by the creditor, the 
Landgericht (Regional Court) set aside that order and referred the case back to the 
Local Court. It took the view that the centre of the debtor’s main interests is 
located at the place where the debtor carries out his independent activity as 
chairman of a supervisory board. The debtor expresses doubts as to the 
international jurisdiction of the German courts. By his appeal on a point of law, 
which was admitted by the Regional Court, he seeks to have the contested order 
set aside and the creditor’s immediate appeal dismissed. 
II. 
3 Before ruling on the appeal on a point of law the proceedings must be stayed and a 
preliminary ruling must be obtained from the Court of Justice of the European 
Union on the questions posed in the operative part of the order (Article 267(1)(b) 
and (3) TFEU). 
4 1. The international jurisdiction of the German courts must be assessed in 
accordance with Article 3(1) of the European Insolvency Regulation. Where 
cross-border elements are concerned, that provision applies regardless of whether 
Member States or third countries are involved (cf. Federal Court of Justice, order 
of 8 December 2022 – IX ZB 72/19, WM 2023, 278 paragraph 19 et seq.; CJEU, 
judgment of 16 January 2014 – C-328/12, ECLI:EU:C:2014:6 paragraphs 17 et 
seq., 29). Pursuant to the first subparagraph of Article 3(1) of the European 
Insolvency Regulation, the courts of the Member State within the territory of 
which the centre of the debtor’s main interests is situated have jurisdiction to open 
insolvency proceedings. The centre of main interests is the place where the debtor 
conducts the administration of its interests on a regular basis and which is 
ascertainable by third parties. In the case of an individual exercising an 
independent business or professional activity, the centre of main interests is 
presumed to be that individual’s principal place of business pursuant to the first 
sentence of the third subparagraph of Article 3(1) of the European Insolvency 
REQUEST FOR A PRELIMINARY RULING OF 29. 6. 2023 – CASE C-501/23 
 
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Regulation, in the absence of proof to the contrary. In the case of any other 
individual, the centre of main interests is presumed to be the place of the 
individual’s habitual residence pursuant to the first sentence of the fourth 
subparagraph of Article 3(1) of the European Insolvency Regulation, in the 
absence of proof to the contrary. 
5 2. The Regional Court held that at the material time of the lodging of the 
application the debtor exercised an independent business or professional activity 
within the meaning of the first sentence of the first subparagraph of Article 3(1) of 
the European Insolvency Regulation. The Ninth Civil Panel bases this finding on 
the following statements. The concept of an independent business or professional 
activity must be given an autonomous interpretation in EU law. An independent 
activity is characterised by the fact that the persons concerned perform their 
activities in their own name, on their own behalf and under their own 
responsibility, and bear the economic risk associated with carrying out those 
activities. They act on their own account and under their own responsibility, are 
free to arrange how they perform their work and themselves receive the 
emoluments which make up their incomes (cf. CJEU, judgment of 13 June 2019 – 
C-420/18, ECLI:EU:C:2019:490 paragraph 39). As the facts and the dispute now 
stand, those conditions are met. The debtor was the chairman of the supervisory 
board of a public limited company incorporated under German law. Under 
German law, the supervisory board is not subject to instructions in relation to the 
management board of the public limited company (cf. Paragraph 111 of the 
Aktiengesetz (German Stock Corporation Act; ‘the AktG’). According to the 
findings of the Regional Court, the debtor may also have borne a remuneration 
risk (cf., in that regard, Bundesfinanzhof (Federal Finance Court, Germany; ‘the 
BFH’), in BFHE (Collection of Decisions of the BFH) 267, 189). 
6 3. Pursuant to the first sentence of the third subparagraph of Article 3(1) of the 
European Insolvency Regulation, in the case of an individual exercising an 
independent business or professional activity, the centre of main interests is 
presumed to be that individual’s principal place of business. ‘Establishment’ is 
defined in Article 2(10) of the European Insolvency Regulation as ‘any place of 
operations where a debtor carries out […] a non-transitory economic activity with 
human means and assets’. 
7 The Regional Court found that the debtor did not use any human means or assets 
in the course of his independent activity as chairman of the supervisory board of a 
German public limited company, either in Germany or elsewhere. Therefore, it did 
not apply the presumption set out in the first sentence of the third subparagraph of 
Article 3(1) of the European Insolvency Regulation. This would not stand up to 
legal scrutiny if an ‘establishment’ within the meaning of the European 
Insolvency Regulation does not necessarily entail, for an individual, the use of 
human means and assets. The independent activity in Germany would then 
establish the rebuttable presumption that the centre of the debtor’s main interests 
is located in Germany. The Ninth Civil Panel assumes that it would then only 
have to be examined whether the debtor has put forward and proved, to the extent 
FINANZAMT WILMERSDORF 
 
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necessary, facts sufficient to rebut the presumption. The Regional Court would 
have to re-examine its findings in that regard. 
8 4. If the first question referred is answered in the negative, i.e. if it must be held 
that the debtor does not maintain an establishment within the meaning of 
Article 2(10) of the European Insolvency Regulation in the course of his 
independent activity, the further question arises as to whether the place where the 
independent activity is carried out then confers, pursuant to the first sentence of 
the third subparagraph of Article 3(1) of the European Insolvency Regulation, a 
presumption of the centre of the debtor’s main interests in the absence of proof to 
the contrary. According to recital 28 of the European Insolvency Regulation, 
when determining whether the centre of the debtor’s main interests is 
ascertainable by third parties, special consideration should be given to the 
creditors and to their perception as to where a debtor conducts the administration 
of its interests. The debtor’s independent activity as chairman of a supervisory 
board was apparent to third parties. Where private assets are managed, on the 
other hand, is often unclear to creditors. If the second question referred were to be 
answered in the affirmative, pursuant to the first sentence of the third 
subparagraph of Article 3(1) of the European Insolvency Regulation, there would 
be a rebuttable presumption that the centre of the debtor’s main interests is in 
Germany. In that case too, the Regional Court would have to re-examine findings 
on the issue of the rebuttal of the presumption. 
9 5. Finally, if the presumption set out in the first sentence of the third subparagraph 
of Article 3(1) of the European Insolvency Regulation were not applicable 
because the first and second questions referred are answered in the negative, the 
question arises as to whether the presumption set out in the first sentence of the 
fourth subparagraph of Article 3(1) of the European Insolvency Regulation is now 
applicable, i.e. whether an individual who does not operate an establishment 
within the meaning of the first sentence of the third subparagraph of Article 3(1) 
of the European Insolvency Regulation for the individual’s independent business 
or professional activity is covered by the concept of ‘any other individual’ in that 
provision. The accuracy of that assumption is supported by the fact that, for 
reasons of legal certainty, the third and fourth subparagraphs of Article 3(1) of the 
European Insolvency Regulation prescribe a presumption in respect of every 
individual, which refers to the centre of the individual’s main interests and thus to 
the international jurisdiction of a Member State to open insolvency proceedings. 
There might be a relationship of subordination between the third and fourth 
subparagraphs of Article 3(1) of the European Insolvency Regulation, with the 
result that international jurisdiction in respect of individuals has to be examined in 
accordance with the first subparagraph of Article 3(1) of the European Insolvency 
Regulation only if the conditions laid down in the other provisions are not met. 
10 The Regional Court disregarded the presumption set out in the first sentence of the 
fourth subparagraph of Article 3(1) of the European Insolvency Regulation and 
applied the second sentence of the first subparagraph of Article 3(1) of the 
European Insolvency Regulation instead. If the presumption set out in the first 
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sentence of the fourth subparagraph of Article 3(1) of the European Insolvency 
Regulation were applicable, the debtor’s habitual residence at the time of the 
lodging of the application would first have to be determined. It would then have to 
be examined whether factual circumstances that have yet to be established support 
the conclusion that the presumption has been rebutted. In that case too, the 
Regional Court’s order would not stand. 
[…] […] […] 
 […] […] 
Lower courts: 
Amtsgericht Charlottenburg (Local Court, Charlottenburg), decision of 
27.07.2021 – 36b IE 3743/20 –  
Landgericht Berlin (Regional Court, Berlin), decision of 29.06.2022 – 
84 T 183/21 –  
 
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