Summary;Judgment — ECLI:EU:C:2019:848
Date: 2019-10-09
Language of the case: German
Court formation: First Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-548/18 — 1 
Case C-548/18 
Request for a preliminary ruling 
Dated lodged: 
23 August 2018 
Referring court: 
Saarländisches Oberlandesgericht (Germany) 
Date of the decision to refer: 
8 August 2018 
Defendant and appellant: 
BGL BNP Paribas SA 
Applicant and respondent: 
TeamBank AG Nürnberg 
  
[…] 
Saarländisches Oberlandesgericht 
(Saarland Higher Regional Court) 
 
ORDER 
 
In the case 
BGL BNP Paribas S.A., [...] Luxembourg, 
defendant and appellant, 
EN 
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[…] 
v 
TeamBank AG Nürnberg, […] Nuremberg, 
applicant and respondent, 
[…] [Or. 2] 
I. The proceedings are stayed. 
II. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling on the interpretation of [EU] law under point 
b of the first paragraph and the third paragraph of Article 267 of the Treaty 
on the Functioning of the European Union (TFEU): 
1. Is Article 14 of Regulation (EC) No 593/2008 of the European 
Parliament and of the Council of 17 June 2008 on the law applicable to 
contractual obligations (Rome I Regulation) applicable to the third-
party effects of multiple assignments of claims? 
2. If the first question is to be answered in the affirmative, to which law 
are the third-party effects subject in this case? 
3. If the first question is to be answered in the negative, is that provision 
applicable mutatis mutandis?  
4. If the third question is to be answered in the affirmative, to which law 
are the third-party effects subject in this case? [Or. 3] 
G r o u n d s  
A. 
The applicant bank, established in Germany, and the defendant bank, established 
in Luxembourg, seek from each other the release of a sum of money deposited in 
Germany. 
Under a loan agreement concluded with the applicant, under German law, on 
29 March 2011 for a sum in the net value of EUR 64 791.27, the insolvency 
debtor, a Luxembourg citizen resident in Germany, had assigned the then 
attachable share of her current and future claims to wages and salary, including in 
particular claims to pension benefits, against her employer in Luxembourg to the 
applicant. On 15 June 2011, the insolvency debtor concluded with the defendant a 
further loan agreement for a sum with a capital value of EUR 26 000. The 
assignment, provided for in that loan, of the same claims to salary and pension 
held by the insolvency debtor was reported by the defendant to the competent 
Luxembourg authority, the Trésorerie de l’État (State Treasury) on 20 September 
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2012. By order of the Amtsgericht Saarbrücken (Local Court, Saarbrücken) of 
5 February 2014, insolvency proceedings were opened in respect of the insolvency 
debtor’s assets and the appointed insolvency trustee collected from the insolvency 
debtor’s employer in Luxembourg the attachable share of salary payable up to the 
expiry of the period of attachment on 4 February 2016, in the amount of 
EUR 13 901.64, and deposited that amount, the applicant, acting in pursuit of a 
claim in the amount of EUR 71 091.54, and the defendant, acting in pursuit of a 
claim in the amount of EUR 31 942.95, having asserted before the Amtsgericht 
Merzig (Local Court, Merzig) rights to separate satisfaction outside the insolvency 
proceedings on the ground of uncertainty as to the identity of the creditor. 
By action and counterclaim, the parties each sought an order requiring the other 
party to make a declaration as to release from the insolvency estate of the 
deposited amount of EUR 13 901.64 plus deposit interest. The Landgericht 
(regional court) upheld the action and dismissed the counterclaim. By its appeal, 
the defendant pursues [Or. 4] its claim in full and, in the alternative, seeks leave 
to bring an appeal on a point of law. 
B. 
The success of the appeal depends on the applicability and interpretation of 
Article 14 of Regulation (EC) No 593/2008 of the European Parliament and of the 
Council of 17 June 2008 on the law applicable to contractual obligations (Rome I 
Regulation). Before judgment is given on the defendant’s appeal, it is therefore 
necessary to stay the proceedings and to obtain a preliminary ruling from the 
Court of Justice of the European Union in accordance with point b of the first 
paragraph and the second paragraph of Article 267 TFEU. 
I. [Comments on the jurisdiction of the German courts] […] 
II. In accordance with the German law that is thus relevant, pursuant to Article 10(4) 
of Regulation (EC) No 864/2007 of the European Parliament and of the Council 
of 11 July 2007 on the law applicable to non-contractual obligations (Rome II 
Regulation), the basis for a claim, which two parties have brought against each 
other by way of action and counterclaim, for consent to disbursement of [Or. 5] 
the amount deposited is the second scenario provided for in the first sentence of 
Paragraph 812 […](1) of the BGB (German Civil Code). The unjustified 
enrichment of the other pretender, which has occurred at the expense of the real 
rightholder, arises from the position of the other pretender as depositary. As such, 
the other pretender has the power to prevent disbursement to the party genuinely 
entitled because the depository body requires his consent to do so […]. If the 
debtor — in this case the insolvency trustee — deposits the amount owed for the 
benefit of the pretender to the claim at issue (second sentence of Paragraph 372 of 
the BGB), the decisive question from the point of view of the obligation to release 
the amount in dispute is who, in relation to the debtor, is the holder of the claim 
which the amount deposited is intended to satisfy.  
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III. The assignment by way of security to the applicant, by agreement of 29 March 
2011, of the attachable part of the insolvency debtor’s claims to wages, salary and 
pension benefits is, in and of itself, effective under the German law applicable to it 
(Paragraph 398 of the BGB). 
1. In accordance with Article 14(1) of Regulation (EC) No 593/2008 of the European 
Parliament and of the Council of 17 June 2008 on the law applicable to 
contractual obligations (Rome I Regulation), the relationship between assignor 
and assignee under a voluntary assignment or contractual subrogation of a claim 
against another person (the debtor) is to be governed by the law that applies to the 
contract between the assignor and assignee under that regulation. In accordance 
with the second sentence of Article 6(2) of the Rome I Regulation, that law, 
pursuant to the choice of law contained in the loan agreement with the insolvency 
debtor, is German law. No other inference can be drawn from paragraph 1 of that 
provision, which also indicates that German law is applicable, on account of the 
insolvency debtor’s habitual residence.  
2. From the point of view of insolvency law, the assignment has remained effective. 
In accordance with point b of the second sentence of Article 4(2) of the EU 
Insolvency Regulation (old version), the law of the State where the insolvency 
proceedings are opened is to determine, in particular, which assets form part of the 
insolvency estate. [comments on the effectiveness of the assignment under 
German law] […] [Or. 6] […] 
IV. Although the assignment to the applicant was effectively carried out in national 
territory and has not become ineffective from the point of view of insolvency law, 
it thus remains unclear by reference to which law the third-party effects of 
assignment must be assessed in the case of multiple assignments. 
1. Points of material law concerning the accrual of claims are governed by the law 
applicable to the claim (lex causae; […]). It follows that material jurisdiction over 
the claim is not apparent from Article 4(2)(i) of the EU Insolvency Regulation, or 
the lex fori concursus, either. In particular, Article 4(2)(i) of the EU Insolvency 
Regulation (old version) governs only competition between different claims of 
different creditors within the context of a multiplicity of creditors and claims, 
whereas, in the case of multiple assignments, the priority concerns the competition 
between different pretenders to the same claim […]. 
2. Since, in accordance with Article 3(1) of the Rome I Regulation, the contract 
between the defendant and the insolvency debtor is subject to Luxembourg law as 
the law chosen by the parties in point 11 of the general terms and conditions [of 
the contract between them] […], that law, in accordance with Article 14(1) of the 
Rome I Regulation, is also applicable to the assignment of claim effected under 
that contract. A choice of law is also expressly made in the case where a choice-
of-law clause is contained in general terms and conditions which were themselves 
tacitly (and indeed, in this instance, expressly) agreed […]. In accordance with the 
first sentence of paragraph 2 of Article 6 of the Rome I Regulation, concerning 
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consumer contracts, the [Or. 7] provisions of Article 6(1) of that regulation do not 
prevent the parties from agreeing on a choice-of-law clause different from that 
provided for in paragraph 1. Pursuant to the general provisions [of that 
regulation], however, such a clause must have become the subject of an effective 
agreement […], which is clearly the case here. 
3. According to the entirely compelling expert opinion obtained by this Chamber 
[…], the first assignment to the applicant is not effective against the defendant and 
the amount collected by the insolvency trustee is due to the second assignee. 
Article 1690 of the Luxembourg Civil Code provides that an assignment of claim 
not notified to the debtor is ineffective against third parties. This holds good even 
in the case where an earlier assignment took place under a system of law — such 
as German law — which does not require the defendant to be notified as a 
condition of effectiveness against third parties. In this case, the defendant (alone) 
gave the debtor of the claim legally effective notice on 20 September 2012. 
V. The question of the law applicable to the third-party effects of assignment in the 
case of multiple assignments (and, in this instance, the insolvency of the assignor) 
prompts the Chamber adjudicating in the present case to submit a request for a 
preliminary ruling to the Court of Justice of the European Union. 
1. The first question is whether Article 14 of the Rome I Regulation governs the 
third-party effects of assignment at all. 
(a) While the Rome Convention [on the law applicable to contractual 
obligations] was in force, the third-party effects of assignment were in part subject 
to the law of the assignment and the assignment contract that is applicable to the 
relationship between assignor and assignee in accordance with Article 12(1) of the 
Rome Convention. In the course of the preparatory work on the Rome I 
Regulation, some Member States argued that the applicable law should, 
exceptionally, be determined by reference to the law of the place of residence or 
stay of the debtor or assignor […]. The European Commission initially endorsed 
this view and, in its proposal for the Rome I Regulation of 15 December 2005 
(COM [2005] 650 final], adopted a provision, in the form of Article 13(3), [Or. 8] 
to the effect that the applicable law should be that of the State in which the 
assignor is habitually resident at the time of the assignment. Deviating from that 
proposal, however, Article 14 of the Rome I Regulation no longer contains an 
express conflict-of-laws rule on the ‘proprietary effects’ of assignments against 
third parties, that is to say, on which law is to determine the conditions under 
which an assignment of claim from assignor to assignee is effective erga omnes. 
[…]. 
(b) The inferences that are to be drawn from the decision of the authors of the 
regulation not to make special provision for the third-party effects of assignment 
are a matter of some debate among German legal commentators in particular. 
While some assume that the conflict-of-laws rule applicable to the assignment of 
claims under Article 14(1) and (2) of the Rome I Regulation is de lege lata 
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exhaustive, with the result that the third-party effects of assignment may only be 
subject either to the law of the assignment contract or the law of the claim […], 
others take the view that there is a well-known loophole in the legislation which, 
under national conflict-of-laws rules, can also be closed by other means — that is 
to say, by making the law applicable that of the seat of the assignor […]. The 
application of the German conflict-of-laws rule is, however, hampered by the 
difficulty that Article 33 of the EGBGB (Law introducing the Basic Law) was 
repealed by the Gesetz zur Anpassung der Vorschriften des Internationalen 
Privatrechts an die Verordnung (EG) Nr. 593/2008 vom 25. Juni 2009 (Law 
bringing the provisions of international private law into line with Regulation (EC) 
No 593/2008 of 25 June 2009). In this regard, the grounds of that law simply state, 
without any discussion of the scope of the Rome I Regulation, as follows: 
‘[o]wing to the direct applicability of the Rome I Regulation, Articles 27 to 29 and 
30 to 37 of the EGBGB are to be repealed’. […]. 
(c) The Commission takes the view that the Rome I Regulation does not contain 
any rules on third-party effects. The report of 29 September 2016 (COM (2016) 
626 final), presented on the basis of the first sentence of Article 27(2) of the Rome 
I Regulation, states in relation to the applicable law that there is an important 
element missing in the Rome I Regulation, [Or. 9] which concerns the question of 
which law governs the effectiveness of an assignment against third parties. Even 
though recital 38 of the Rome I Regulation states that the term ‘relationship’ in 
Article 14(1) of the Rome I Regulation also applies to the property aspects of an 
assignment, as between assignor and assignee, in legal orders where such aspects 
are treated separately from aspects under the law of obligations, it nonetheless 
proved impossible in the negotiations leading up the adoption of the Rome I 
Regulation to agree on common rules on the third-party effects of assignments of 
claims (Commission, loc. cit, at 3 and in footnote 7; see also the Proposal for a 
Regulation of the European Parliament and of the Council on the law applicable to 
the third-party effects of assignments of claims, COM (2018) 96 final, [p.] 10 et 
seq.). Others take the view […] that the applicable regulation contains a full and 
internally coherent set of rules on the assignment of claims. 
2. If the first question is answered in the affirmative, it would also be necessary to 
clarify the law by reference to which the third-party effects must be assessed on 
that basis. German legal commentators take the view in this regard that the 
solution should be developed autonomously on the basis of the Regulation, there 
being a choice between the law of the assignment (contract) and the law of the 
claim […]. 
3. If the first question is answered in the negative, there would appear to be a need to 
clarify whether Article 14 of the Rome I Regulation is applicable mutatis 
mutandis. According to one view put forward in German legal literature, there is a 
legislative loophole which, until such time as the Rome I Regulation is amended 
or supplemented, must be closed by the development of a uniform conflict-of-laws 
rule applied by all the Member States, since the approximation of laws which 
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Article 14 of the Rome I Regulation strives to secure will otherwise be in jeopardy 
[…]. 
4. An affirmative answer to the third question will call for clarification as to which 
law must govern third-party effects in that event. Since there are, in essence, four 
possible solutions, set out below, clarification from the highest judicial authority 
is needed on this issue too. Determination […] [Or. 10] of the applicable law by 
reference to the habitual residence of the assignee, examined here as the fifth 
possibility, not only has no support in Article 14 of the Rome I Regulation but 
also does not allow for a uniform determination of applicable law in the event of 
multiple assignments of claims […]. 
(a) The consensus in Germany on Article 33 of the EGBGB (old version) was 
that disposal of the claim was generally governed by the law of the assigned 
claim. According to that view, paragraph 2 of that provision, which corresponded 
to Article 14(2) of the Rome I Regulation, covered not only the relationship with 
the debtor but also the question of the conditions under which assignment was 
effective against other third parties, in particular creditors of the assignor or the 
insolvency administrator dealing with the assignor’s assets […]. The law of the 
claim is in this case Luxembourg law, given that this Chamber is satisfied that the 
insolvency debtor was or is employed as a civil servant (‘fonctionnaire’) in 
Luxembourg. 
Questions relating to the ranking of claims would under this solution be resolved 
by reference to the date of the last assignment or the last other event supporting 
the inference of a competing right. The most important advantages [of this 
solution] are the stability of the criterion for determining the applicable law, 
which is unlikely to change over time, and, therefore, the low risk of conflict 
between criteria for the determination of applicable law in the event of 
competition between assignees and other rightholders. If there were a change in 
the law of the assigned claim, this would have no effect on third parties. Under 
this solution, the number of legal systems applicable to an assignment is reduced 
(see COM (2016) 626 final, p. 12). 
The main disadvantages [of this solution] include potential uncertainty in the 
event of the insolvency of the assignor, in cases where the lex concursus is not the 
same as the law of the assignment. Furthermore, a distinction must be drawn in 
some cases between the proprietary [Or. 11] aspects of the assignment as between 
assignor and assignee, on the one hand, and in relation to third parties, on the 
other. Uncertainty as to the applicable law is also present where no clear choice of 
law was made in the original contract or where the assigned claim is not 
contractual in nature. In such cases, the applicable law would have to be 
determined by reference to Article 4 of the Rome I Regulation or Article 10 of the 
Rome II Regulation (see COM (2016) 626 final, p. 13). 
(b) Another view proposes that, in much the same way as in French property 
law, which provides for the fulfilment of disclosure requirements at the seat of the 
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debtor (debitor cessus), the applicable law should in some cases be that of the seat 
of the debtor, at least in order to ensure that the conflict-of-laws rule takes account 
of the third-party protection guaranteed by notification of the assignment of 
claims […]. Since the seat of the claim debtor is in Luxembourg, Luxembourg law 
would be applicable under this solution too.  
Since the identity of the claim debtor will be known to third parties, determination 
of the applicable law by reference to the law of the seat of the claim debtor may 
be easily recognisable to and understandable by them […]. 
Although determination of the applicable law by reference to the law of the place 
of residence of the debtor is also appropriate in principle, as the law governing the 
assignment and priority, because this is a uniform and relatively stable point of 
reference, it nonetheless has the serious disadvantage that it further complicates 
the conflict-of-laws rule governing the assignment of claims inasmuch as the law 
of the place of residence of the debtor is a further legal system — in addition to 
the law of the assignment contract and the law of the claim — that has to be 
included in the examination […]. What is more, determination of the applicable 
law by reference to the seat of the debtor may, particularly in the context of the 
liability of a number of debtors — as, for example, in the case of joint and several 
liability — lead to impracticable results […]. In the first place, this solution gives 
rise to the application of not just one but a number of legal systems. Secondly, for 
the practice-relevant cases of pre-assignment or global assignment in particular, 
determination of the applicable law by reference to the law of the debtor is not to 
be recommended, [Or. 12] as that law is generally not yet known. Consequently, 
not even exceptional reference to the law of the debtor — be it only to ensure that 
the conflict-of-laws rule takes account of disclosure matters (notification of 
assignment) — is a solution that serves the interests of the parties concerned. 
Moreover, it too has no basis in Article 14 of the Rome I Regulation […]. 
(c) The effect of determining the applicable law by reference exceptionally to 
the seat of the assignor, which has also been proposed, […] is that, in cases 
involving multiple assignments by the same assignor, third-party effects would be 
governed by a single legal system — namely, that of the seat of the assignor. That 
law would then also determine which assignment has priority and, therefore, 
which assignee has effectively acquired the claim. On that view, the applicable 
law would, on the basis of the place of residence of the insolvency debtor, be 
German law, with the result that, pursuant to the principle of priority, the 
assignment of the claim to the applicant would take precedence over its 
assignment to the defendant.  
From the point of view of the third-party effects of the assignment, determination 
of the applicable law on this basis has the advantage that the law of the habitual 
residence or seat of the assignor is, as a rule, easily ascertainable and foreseeable 
by third parties […]. The Commission too had originally supported this basis of 
determination in its proposal relating to the Rome I Regulation of 15 December 
2005 (COM (2005) 650 (final); as it also does now in the first paragraph of 
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Article 4 of the Proposal for a Regulation on the law applicable to the third-party 
effects of assignments of claims, COM (2018) 96 (final)). This also ensures 
synchrony with Article 3 of the EU Insolvency Regulation […]. 
In rebuttal of the law of the seat of the assignor, it is argued that, in the course of 
the preparatory work on Article 14 of the Rome I Regulation, the authors of that 
regulation once again deliberately refrained from adopting this as the applicable 
law, because a consensus on this basis of determination could not be reached — 
principally on account of opposition from the UK Government. Consequently, 
determination of the applicable law by reference to the seat of the assignor must 
be ruled out at the risk of defying the recognisable will of the authors of the 
regulation […]. It is further [Or. 13] argued that determination of the applicable 
law by reference to the place of establishment of the assignor has the disadvantage 
that, in the case of a chain of assignments involving depositaries in different 
countries, the acquirer would have to acquaint himself with all previous holders of 
the claim, their respective places of establishment and the law applicable there in 
order to be able to assess whether the party offering the claim to him acquired it 
effectively himself […]. 
(d) Finally, the law applicable to the third-party effects of the assignment could 
be independently determined by reference to the law of the assignment contract, in 
accordance with Article 14(1) of the Rome I Regulation […]. This would then not 
only determine the law applicable to the effects on disposal produced by the 
assignment in the relationship between the assignor and the assignee (and the 
obligation underpinning that assignment) but also dictate the effectiveness of the 
assignment against creditors of the assignor and other third parties. The law of the 
assignment contract would thus govern all aspects of an international assignment, 
with the exception of the protection afforded to the debtor under Article 14(2) of 
the Rome I Regulation […]. In the light of the precedence, in the case of multiple 
assignments, of the law of the assignment that came first in time, as postulated by 
this view […], the law applicable in the present case would be German law, with 
the result that the assignment to the applicant would be effective against the 
defendant and would take precedence over the second assignment. 
Militating in favour of determining the applicable law by reference to the law of 
the assignment is the fact that uniform reference to a single legal system will 
avoid fragmentation, in the form, for example, of determination of the applicable 
law by exceptional reference to the seat of the assignor or the seat of the claim 
debtor. After all, determination of the applicable law by reference to the law of the 
assignment ensures that a single legal system — that of the assignment contract — 
is applicable not only to the assignor and assignee (as required by Article 14(1) of 
the Rome I Regulation) but also to third parties. Also militating in favour of 
determining the applicable law by reference to the law of the assignment is the 
fact that Article 14 of the Rome I Regulation is to be construed as a 
comprehensive provision paragraph 1 of which lays down the fundamental rules 
governing assignment and its consequences. The only exception to the foregoing 
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is the fact that Article 14(2) of the Rome I Regulation makes the law of the claim 
the applicable law in certain specific matters. [Or. 14] 
Paragraph 2 is not, however, to be applied to specific matters beyond those for 
which it provides, which are predominantly concerned with protection of the 
debtor. For this would be at odds both with paragraph 1 and with the trend, to be 
inferred from Article 14 of the Rome I Regulation, to the effect that the freedom 
to choose the law applicable — as an overriding principle of EU private law — 
must also inform conflict-of-laws rules […]. 
As is readily apparent from this view too, however […], the particular problem in 
the case of multiple assignments lies in the fact that the assignment is governed by 
two legal systems, that is to say, on the one hand, the law agreed between the 
assignor and the first assignee and, on the other hand, the law agreed between the 
assignor and the second assignee. In those circumstances, recourse is to be had to 
the legal system governing the assignment under which the claim was first 
effectively assigned […]. Leaving aside the fact that Article 14 of the Rome I 
Regulation contains no indication of any such rule of temporal priority, a 
consequence of this proposition may be that the parties will prefer to agree to have 
the assignment governed by a legal system which — like German law — imposes 
the fewest possible conditions on the assignment of a claim. 
[…]