Judgment;Summary — ECLI:EU:C:2025:211
Date: 2025-03-27
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation C-186/24 – 1 
Case C-186/24 
Request for a preliminary ruling 
Date lodged: 
8 March 2024 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
22 February 2024 
Appellant: 
Dr Matthäus Metzler as insolvency practitioner 
Respondent: 
Auto1 European Cars B.V. 
  
REPUBLIC OF AUSTRIA     17 Ob 23/23s 
OBERSTER GERICHTSHOF (SUPREME COURT, AUSTRIA) 
The Supreme Court, in the case of the appellant, Dr Matthäus Metzler, LL.M., 
acting as insolvency practitioner in the insolvency proceedings concerning the 
assets of debtor […], against the respondent, Auto1 European Cars B.V., NL-
1101BA Amsterdam, […] concerning EUR 62 261.00 plus interest and costs, 
ruling on the appellant’s appeal (Rekurs) against the order of the 
Oberlandesgericht Linz (Higher Regional Court, Linz, Austria), sitting as the 
court ruling on appeals on the merits (Berufung), of 21 September 2023, GZ 1 R 
110/23m-20, which set aside the judgment of the Landesgericht Linz (Regional 
Court, Linz, Austria) of 12 May 2023, GZ 4 Cg 70/22i-10, has […] made the 
following 
O r d e r: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
EN 
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1. Is Article 31(1) of Regulation (EU) 2015/848 of the European Parliament 
and of the Council of 20 May 2015 on insolvency proceedings (‘the 2015 
Insolvency Regulation’) to be interpreted as meaning that obligations honoured 
for the benefit of the debtor which should have been honoured for the benefit of 
the practitioner in the insolvency proceedings also include, within the meaning of 
that provision, such obligations arising from a legal transaction which the debtor 
did not conclude until after the opening of insolvency proceedings and the transfer 
of powers to the insolvency practitioner? 
If the above question is answered in the affirmative: 
2. Is Article 31(1) of Regulation (EU) 2015/848 of the European Parliament 
and of the Council of 20 May 2015 on insolvency proceedings (‘the 2015 
Insolvency Regulation’) to be interpreted as meaning that the place in which an 
obligation is honoured within the meaning of that provision is the place from 
which the third party’s payment is made by credit transfer from a bank account 
there, even if the third party is established not in that Member State but in another 
Member State, while the conclusion of the legal transaction and the honouring of 
the debtor’s obligation took place not there but through a branch of the third party 
in yet another Member State, namely in the Member State in which the insolvency 
proceedings have been opened? 
II. […] [stay of proceedings] 
G r o u n d s 
Regarding I. 
A: Facts of the case: 
[1] By order of 25 May 2022 concerning AZ 17 S 56/22t, the Regional Court, 
Linz, opened insolvency proceedings in respect of the debtor’s assets. The 
appellant was appointed as insolvency practitioner. The opening of 
insolvency proceedings and the appointment of the insolvency practitioner 
were made public that same day, on 25 May 2022. 
[2] The respondent is a company incorporated under Netherlands law and 
established in the Netherlands. It is one of the foremost second-hand vehicle 
dealerships in Europe and a member of a group of companies operating 
throughout Europe which maintains a branch in Austria. By the contract of 
sale concluded in the respondent’s branch, in the respondent’s own name, on 
2 June 2022 – that is to say, after the insolvency proceedings had been 
opened – the debtor sold the respondent a car for EUR 48 870. After the 
vehicle had been handed over in Austria, the respondent transferred the 
purchasing price from an account in Germany to the account in Austria 
specified by the debtor. 
B: The arguments of the parties in the proceedings and the procedure to date: 
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[3] The appellant sought payment of EUR 48 870 to the insolvency estate 
because the debtor had concluded the contract of sale after the insolvency 
proceedings had been opened. He asserted that the vehicle had been in the 
debtor’s possession at the time when the insolvency proceedings were 
opened. The respondent, he submitted, had transferred the purchasing price 
of EUR 48 870 to the account of a third party (the debtor’s ex-partner). The 
appellant sought compensation for value to be paid to the insolvency estate 
with the argument that the respondent had in the meantime resold the vehicle 
to a third party. 
[4] At the hearing of 16 March 2023, the appellant expanded the action to seek 
the commercial value of the vehicle of EUR 62 261. 
[5] The respondent disputed the claim and argued, in essence, that the vehicle 
had not been in the debtor’s possession at the time when the insolvency 
proceedings were opened and had therefore not been part of the insolvency 
estate. It contended that it maintained only a branch in Austria but was 
established in the Netherlands. The respondent argued that it – and not the 
Austrian branch – had made the credit transfer in Germany from a German 
bank. The only domestic connection of the contract of sale at issue was, the 
respondent contended, that it had been signed in Austria and the vehicle had 
been handed over there. It argued that the claim asserted by the appellant did 
not exist, because the foreign connection entailed the applicability of 
Article 31 of the 2015 Insolvency Regulation. It claimed that it could only 
be held liable if it had known about the opening of insolvency proceedings, 
which had not been the case. 
[6] In the judgment under appeal, the court of first instance upheld the action in 
its original scope. It dismissed the remainder of the (expanded) application 
concerning EUR 13 391 on substantive grounds (that dismissal having now 
acquired the force of res judicata). It concluded that the situation at issue 
was not covered by Article 31 of the 2015 Insolvency Regulation and that 
the respondent could therefore not claim the protection of good faith under 
that provision. 
[7] The court ruling on the appeal on the merits upheld the respondent’s appeal 
(Berufung), set aside the judgment of the court of first instance and referred 
the case back to the court of first instance for a fresh decision after further 
proceedings. It took the legal view that Article 31 of the 2015 Insolvency 
Regulation, owing to the primacy of the application of EU law, superseded 
not only Paragraph 3(2) of the Insolvenzverordnung (Austrian Insolvency 
Code; ‘the IO’) but also Paragraph 3(1) of the IO. It held that the payment to 
the insolvent party had been checked in Germany and made from a German 
account. For that reason, it found, Article 31 of the 2015 Insolvency 
Regulation should be applied. There being no findings as to the respondent’s 
knowledge of the opening of the insolvency proceedings, it held that a final 
assessment was not yet possible. 
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[8] The appellant’s appeal (Rekurs) to the Supreme Court seeks to have the first-
instance judgment restored; in the alternative, he brings an action for 
annulment. He argues, first, that Article 31 of the 2015 Insolvency 
Regulation is not applicable, because the provision governs only the debt-
discharging effect of the payment and is contingent on a valid contract, 
which, he asserts, is not in place in the present case under Paragraph 3(1) of 
the IO. Second, he submits that the provision protects only the legitimate 
expectation of the party to a contract that legal responsibility will remain 
unchanged but does not cover situations where (as in the present case) a 
party enters into a contract with the debtor only after insolvency proceedings 
have been opened. He also asserts that the respondent honoured the relevant 
obligation in Austria such that there is no foreign connection within the 
meaning of Article 31 of the 2015 Insolvency Regulation. 
[9] In its response to the appeal, the respondent claims that the appeal should be 
dismissed on grounds of inadmissibility or, in the alternative, should not be 
upheld on the merits. 
C: Relevant legal provisions: 
Article 7 of the 2015 Insolvency Regulation reads as follows: 
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 (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. 
In particular, it shall determine the following: 
… 
(c) the respective powers of the debtor and the insolvency practitioner; 
… 
(m) the rules relating to the voidness, voidability or unenforceability of legal 
acts detrimental to the general body of creditors. … 
Article 31 of the 2015 Insolvency Regulation reads as follows: 
1. Where an obligation has been honoured in a Member State for the benefit of a 
debtor who is subject to insolvency proceedings opened in another Member State, 
when it should have been honoured for the benefit of the insolvency practitioner in 
those proceedings, the person honouring the obligation shall be deemed to have 
discharged it if he was unaware of the opening of the proceedings. 
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2. Where such an obligation is honoured before the publication provided for in 
Article 28 has been effected, the person honouring the obligation shall be 
presumed, in the absence of proof to the contrary, to have been unaware of the 
opening of insolvency proceedings. Where the obligation is honoured after such 
publication has been effected, the person honouring the obligation shall be 
presumed, in the absence of proof to the contrary, to have been aware of the 
opening of proceedings. 
Recital 81 of the 2015 Insolvency Regulation states as follows: 
It may be the case that some of the persons concerned are not aware that 
insolvency proceedings have been opened, and act in good faith in a way that 
conflicts with the new circumstances. In order to protect such persons who, 
unaware that foreign proceedings have been opened, make a payment to the 
debtor instead of to the foreign insolvency practitioner, provision should be made 
for such a payment to have a debt-discharging effect. 
Paragraph 2 of the Austrian IO reads as follows: 
(1) The legal effects of insolvency proceedings shall commence at the start of 
the day following the publication of the content of the insolvency edict. 
(2) At the opening of insolvency proceedings, all of the assets subject to judicial 
enforcement which belong to the debtor at that time or which he or she acquires 
during the insolvency proceedings (insolvency estate) shall be withdrawn from the 
debtor’s free disposal. 
Paragraph 3 of the Austrian IO reads as follows: 
(1) Legal acts undertaken by the debtor after the opening of insolvency 
proceedings which relate to the insolvency estate shall be unenforceable against 
the insolvency creditors. The third party shall be repaid the consideration to the 
extent that the insolvency estate would be unjustifiably enriched by such 
consideration. 
(2) An obligated party shall not be deemed to have discharged his or her 
obligation by payment of a debt to the debtor after the opening of insolvency 
proceedings, except to the extent that the benefit has been received by the 
insolvency estate or the obligated party was not aware of the opening of 
insolvency proceedings at the time of payment and such lack of knowledge was 
not caused by a failure to exercise due diligence (should have been known). 
D: Grounds for the referral: 
[10] 1.1. Under the cross-references to Article 7(2)(c) and (m) of the 2015 
Insolvency Regulation, the respective powers of the debtor and the 
insolvency practitioner and the voidness, voidability or unenforceability of 
legal acts detrimental to the general body of creditors must be assessed in 
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accordance with the law of the State of the opening of proceedings. 
Consequently, the effects of the legal acts and of the extent of the 
restrictions on the debtor’s ability to dispose of assets, as well as the 
lawfulness of a purchase in good faith from the debtor, are determined in 
accordance with the lex fori concursus, although Article 31 of the 2015 
Insolvency Regulation, in particular, must also be taken into consideration 
(Trenker on Article 7 of the 2015 Insolvency Regulation in Koller, Lovrek 
and Spitzer, IO – Insolvenzordnung, 2nd edition [2022], paragraph 16; 
Maderbacher on Article 7 of the 2015 Insolvency Regulation in Konecny, 
Insolvenzgesetze [last updated on 1 September 2018, rdb.at], paragraph 38; 
Knof on Article 7 of the 2015 Insolvency Regulation in Uhlenbruck, InsO – 
Insolvenzordnung, 16th edition [2023], paragraphs 49 and 102; Duursma-
Kepplinger on Article 4 of the 2015 Insolvency Regulation in Duursma-
Kepplinger, Duursma and Chalupsky, Europäische Insolvenzverordnung 
[2002], paragraph 15). 
[11] 2.1. Under Austrian law, at the opening of insolvency proceedings, all of the 
assets subject to judicial enforcement which belong to the debtor at that time 
or which he or she acquires during the insolvency proceedings (insolvency 
estate) are withdrawn from the debtor’s free disposal (Paragraph 2(2) of the 
IO). Under Paragraph 3(1) of the IO, legal acts undertaken by the debtor 
after the opening of insolvency proceedings which relate to the insolvency 
estate are unenforceable against the insolvency creditors. 
[12] 2.2. The opening of insolvency proceedings entails a twofold restriction on 
the debtor’s right to dispose of assets, namely a de facto restriction when the 
administration is taken over by the insolvency practitioner and a de jure 
restriction, taking effect immediately when the insolvency proceedings are 
opened, which is expressed in the unenforceability of the debtor’s legal acts. 
It does not lead to a general limitation of the debtor’s legal capacity. On the 
contrary, the debtor remains capable of entering into obligations. However, 
legal acts undertaken by the debtor which relate to the estate are 
unenforceable against the insolvency creditors (RS0063784, 17 Ob 6/21p). 
This means that the debtor may enter into contractual obligations even after 
the opening of the insolvency proceedings, but the resultant claims cannot be 
asserted to the detriment of the estate until the insolvency proceedings have 
been closed (Kodek on Paragraph 3 of the IO in Koller, Lovrek and Spitzer, 
IO – Insolvenzordnung, 2nd edition, paragraph 6). 
[13] 2.3. If the estate loses an asset as a result of a legal act undertaken by the 
debtor which is unenforceable within the meaning of Paragraph 3(1) of the 
IO, that asset can be recovered (17 Ob 12/21w). If the purchaser can no 
longer return the asset purchased from the debtor because it is no longer in 
the debtor’s possession, as a result, for example, of having been resold, it is 
necessary under civil law to assess the extent to which the purchaser is 
subject to a claim for compensation or alleging unjust enrichment (Schubert 
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on Paragraph 3 of the Konkursordnung (Bankruptcy Code, ‘the KO’) in 
Konecny, Insolvenzgesetze, paragraph 21). 
[14] 2.4. Unlike Paragraph 3(2) of the IO, Paragraph 3(1) of the IO, which 
enshrines the unenforceability of legal acts undertaken by the debtor which 
relate to the insolvency estate, provides for no limitation of that principle in 
favour of third parties acting in good faith who purchase something from the 
debtor but are unaware – through no fault of their own – that insolvency 
proceedings have been opened. 
[15] 2.5. Paragraph 3(2) of the IO provides that third-party debtors are not 
released from their obligations by payment of their debts to the debtor. That 
is an expression of the principle enshrined in Paragraph 3(1) of the IO, since 
accepting a payment constitutes a legal act within the meaning of 
Paragraph 3(1) of the IO. Since debtors have their power to dispose of the 
insolvency estate withdrawn, they do not have the power to take receipt of 
the performance of an obligation forming part of the insolvency estate. An 
exception applies where the benefit has been received by the insolvency 
estate or the third-party debtor was unaware, through no fault of his or her 
own, of insolvency proceedings having been opened. 
[16] 3.1. On the other hand, Article 31(1) of the 2015 Insolvency Regulation is 
intended to protect the good faith of a third party who, in a Member State 
other than the State of the opening of proceedings, after proceedings have 
been opened and unaware of that circumstance, honours an obligation for the 
benefit of the debtor even though he or she should have done so for the 
benefit of the practitioner. Such payments are declared to be debt-
discharging (Klauser and Weber on Article 31 of the 2015 Insolvency 
Regulation in Konecny, Insolvenzgesetze [last updated on 1 September 
2018, rdb.at], paragraph 1; Scholz-Berger on Article 31 of the 2015 
Insolvency Regulation in Koller, Lovrek and Spitzer, 2nd edition, 
paragraph 1; Müller on Article 31 of the 2015 Insolvency Regulation in 
Mankowski, Müller and J.Schmidt, EuInsVO 2015, paragraph 2). 
[17] 3.2. It is therefore argued that Article 31 of the 2015 Insolvency Regulation 
presupposes that the third-party debtor was supposed to honour an obligation 
for the benefit of the insolvency practitioner, which requires there to be an 
obligation owed to the debtor. In that argument, only obligations owed to the 
insolvency estate are covered (see Klauser and Weber, op. cit, paragraph 7; 
Scholz-Berger, op. cit., paragraph 4; Müller, op. cit., paragraph 10). That 
would mean that Article 31(1) of the 2015 Insolvency Regulation would not 
apply in respect of obligations honoured by the third party for the benefit of 
the debtor which result from an unenforceable legal transaction undertaken 
by the debtor after the opening of insolvency proceedings, because these are 
not obligations owed to the insolvency estate and therefore not supposed to 
be honoured for the benefit of the insolvency practitioner. 
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[18] However, an argument could also be made that it cannot be inferred from the 
wording of Article 31(1) of the 2015 Insolvency Regulation alone, which 
refers only to honouring obligations in general terms, that the provision is 
not intended to encompass obligations honoured by the third-party debtor in 
ignorance of the opening of insolvency proceedings and therefore on the 
basis of an unenforceable legal transaction. 
[19] The judgment of the Court of Justice of the European Union in Case 
C-251/12 on the predecessor provision, Article 24(1) of Council Regulation 
(EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, is not 
relevant and consequently provides no further insight. That is because its 
subject matter concerned not an obligation honoured by the third party for 
the benefit of the debtor but a payment made at the direction of the debtor to 
one of its creditors after insolvency proceedings had been opened. 
[20] 3.3. If Article 31(1) of the 2015 Insolvency Regulation were accordingly to 
be interpreted as meaning that its scope of application included the 
honouring of such obligations, the question of the place of performance 
would arise. The place of performance is deemed to be the place where the 
third-party debtor actually honoured the obligation. Initiating a money 
transfer in another Member State is deemed sufficient to meet that definition 
(Klauser and Weber, op. cit., paragraph 12; Scholz-Berger, op. cit., 
paragraph 7; Müller, op. cit., paragraph 8). 
[21] The respondent maintains a branch in Austria. That is to be understood as an 
economically independent business operation which is physically separate 
from the registered office and has its own organisational function. The 
branch has no legal capacity; the bearer of rights and responsibilities is the 
foreign company (6 Ob 40/19d). 
[22] The question arises whether the place of the money transfer is also 
considered to be the place where an obligation is honoured if the third-party 
debtor established in one Member State nevertheless maintains a branch as 
described above in the Member State in which the insolvency proceedings 
have been opened, concludes the legal transaction through that branch and 
only has the money transferred via an account in another Member State to 
which there is no particular proximity. 
[23] III. […] [national procedural law] 
Supreme Court 
Vienna, 22 February 2024 
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