Judgment;Summary — ECLI:EU:C:2021:315
Date: 2021-04-22
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-73/20 – 1 
Case C-73/20 
Request for preliminary ruling 
Date lodged: 
13 February 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
23 January 2020 
Appellant in the appeal on a point of law: 
ZM in his capacity as liquidator in the insolvency of Oeltrans 
Befrachtungsgesellschaft mbH 
Respondent in the appeal on a point of law: 
E. A. Frerichs 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE) 
ORDER 
[…]            Issued on: 
23 January 2020 
[…]   
in the case of 
ZM, lawyer, in his capacity as liquidator in the insolvency proceedings relating to 
the assets of Oeltrans Befrachtungsgesellschaft mbH, [...] Hamburg, 
applicant and appellant in the appeal on a point of law, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 1. 2020 – CASE C-73/20 
 
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[…] 
v 
E. A. Frerichs, […], the Netherlands, 
defendant and respondent in the appeal on a point of law, 
[…] [Or. 2] 
Following the hearing on 23 January 2020, the Ninth Civil Chamber of the 
Federal Court of Justice 
made the following order: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling concerning the interpretation of Community 
law pursuant to point (b) of the first paragraph and the third paragraph of 
Article 267 of the Treaty on the Functioning of the European Union (TFEU): 
Are Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 
on insolvency proceedings (OJ 2000 L 160, p. 1) and Article 12(1)(b) 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’, OJ 2008 L 177, p. 6) to be interpreted as meaning that the law 
applicable to a contract under the latter regulation also governs the payment 
made by a third party in performance of a contracting party’s contractual 
payment obligation? [Or. 3] 
Grounds: 
I. 
1 Since 25 March 2016, the applicant has been the liquidator in the insolvency 
proceedings opened on 29 April 2011 by the Amtsgericht Hamburg (Local Court, 
Hamburg, Germany) relating to the assets of Oeltrans Befrachtungsgesellschaft 
mbH (‘the debtor’), established in Germany. The debtor was part of the Oeltrans 
group, to which Tankfracht GmbH - similarly established in Germany - also 
belonged. An inland waterway contract existed between Tankfracht GmbH and 
the defendant, established in the Netherlands, under which Tankfracht GmbH 
owed the defendant a payment in the amount of EUR 8 259.30. The defendant 
states that it was to transport goods by vessel for Tankfracht GmbH from a port of 
loading in the Netherlands to a port of unloading in Germany. According to the 
applicant, the contract in question was an inland waterway charter party. On 9 
OELTRANS BEFRACHTUNGSGESELLSCHAFT MBH 
 
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November 2010, the debtor paid to the defendant the sum owed by Tankfracht 
GmbH, ‘on the order of Tankfracht’. 
2 By a document lodged at the court on 21 December 2014, the original liquidator, 
who subsequently died, brought an application for repayment of the sum of EUR 
8 259.30, together with interest, on the ground that the transaction should be set 
aside by virtue of insolvency. [Procedural references] [...] [Or. 4] [...] As a result 
of shortcomings at the court, the application was not served on the defendant in 
the Netherlands until December 2016. 
3 The Landgericht (regional court) found against the defendant under German law, 
in accordance with the form of order sought. The Berufungsgericht (appeal court), 
also on the basis of German law, varied the decision of the regional court and 
dismissed the application on the basis of the defendant’s plea that it was time-
barred. By his appeal on a point of law (Revision), for which leave was granted by 
the appeal court, the applicant seeks to have the decision of the regional court 
reinstated. 
II. 
4 The outcome of the appeal on a point of law depends on the interpretation of 
Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on 
insolvency proceedings (‘the old version of the Insolvency Regulation’) and 
Article 12(1)(b) 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’). The issue to be determined is whether the law applicable to a contract 
under Rome I also governs, in the context of Article 13 of the old version of the 
Insolvency Regulation, the payment made by a third party in performance of a 
contracting party’s contractual payment obligation. It is therefore necessary to 
stay the proceedings prior to a decision being made on the applicant’s appeal and 
to obtain a preliminary ruling from the Court of Justice of the European Union 
pursuant to point (b) of the first paragraph and the third paragraph of Article 267 
TFEU. [Or. 5] 
5 1. In principle, under Article 4(1) of Council Regulation (EC) No 1346/2000 
of 29 May 2000 on insolvency proceedings, which is applicable in the present 
case, the law applicable to insolvency proceedings and their effects is that of the 
State of the opening of proceedings (lex fori concursus). Under Article 4(2)(m) of 
the old version of the Insolvency Regulation, the law of the State of the opening of 
proceedings is to determine, in particular, the rules relating to the voidness, 
voidability or unenforceability of legal acts detrimental to all the creditors. 
Accordingly, in the present case, since the insolvency proceedings in respect of 
the debtor’s assets were opened in Germany, the issue of voidability is, in 
principle, to be determined under German law. 
6 2. Under German insolvency law, the debtor’s payment to the defendant is 
voidable under Paragraphs 143(1) and 134(1) of the Insolvenzordnung (German 
REQUEST FOR A PRELIMINARY RULING OF 23. 1. 2020 – CASE C-73/20 
 
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Insolvency Code). The payment of the debt owed by Tankfracht GmbH was an act 
of performance by the debtor without consideration because Tankfracht GmbH 
was insolvent and the defendant’s claim against it was therefore of no financial 
value; therefore, when its claim was satisfied, the defendant lost nothing 
financially that could be regarded as consideration for the payment [...]. In 
addition, the Federal Court of Justice does not consider that the claim is time-
barred, contrary to the view taken by the appeal court. [Explanation as to 
limitation periods] [...] [Or. 6] 
7 3. On that basis, the application should be upheld. However, the defendant 
invokes Article 13 of the old version of the Insolvency Regulation. Under that 
provision, which has been recast without any substantive amendment as Article 16 
in Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 
May 2015 (‘the new version of the Insolvency Regulation’), Article 4(2)(m) of the 
old version of the Insolvency Regulation does not apply where the person who 
benefited from an act detrimental to all the creditors provides proof that the said 
act is subject to the law of a Member State other than that of the State of the 
opening of proceedings and that law does not allow any means of challenging that 
act in the relevant case. The defendant takes the view that the contested payment 
is to be assessed under Netherlands law and has adduced evidence that that law 
does not allow any means of challenging the payment. 
8 (a) The Federal Court of Justice considers that the issue of whether the first 
prerequisite of Article 13 of the old version of the Insolvency Regulation has been 
satisfied depends on the answer to the question referred. The act, within the 
meaning of that provision, which benefited the defendant to the detriment of the 
debtor’s creditors is the debtor’s payment to the defendant. The law which 
governs that act (lex causae) is determined by German private international law. 
That is so irrespective of whether the lex causae is determined according to the 
conflict-of-law rules of the State where the insolvency proceedings are opened 
(lex fori concursus) or according to the conflict-of-law rules of the State of the 
court seised (lex fori) ([...]). In both cases, German conflict-of-laws rules 
determine in the present dispute the law to which the payment is subject. [Or. 7] 
9 The law governing contractual obligations which have a connection to the law of 
different States is determined primarily by Regulation (EC) No 593/2008 of the 
European Parliament and of the Council on the law applicable to contractual 
obligations, which is directly applicable Community law also in Germany. Under 
that regulation, the contract concluded between Tankfracht GmbH and the 
defendant is governed by Netherlands law. That follows from Article 5(1) of 
Rome I if, as the defendant states, the contract in question is for the carriage of 
goods, because the defendant is habitually resident in the Netherlands and that is 
also the place of receipt of the goods. If the contract is one of hire, which is what 
the applicant may mean by describing it as a charter party (see, in that regard, 
judgment of 6 October 2009 - C-133/08, EuZW 2009, 822), Netherlands law is 
applicable under Article 4(2) of Rome I. 
OELTRANS BEFRACHTUNGSGESELLSCHAFT MBH 
 
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10 The question arises as to whether, as a result, the payment of the insolvency 
debtor, for the purposes of Article 13 of the old version of the Insolvency 
Regulation, is also governed by Netherlands law. As regards the relationship 
between the contracting parties, there is a debate in the legal literature on Article 
13 of the old version of the Insolvency Regulation and Article 16 of the new 
version of the Insolvency Regulation as to whether the law applicable to the 
performance of a contractual obligation is determined by reference to the contract 
or separately to the act of performance; according to the current prevailing 
opinion, as a general rule, the lex contractus applies ([...]). Nor are the conflict-of-
laws rules laid down by Rome I clear in that regard. Under Article 12(1)(b) of 
Rome I, the law applicable to the contract also governs the performance of the 
obligations laid down in that contract. However, it is argued that, [Or. 8] despite 
the rule in Article 12(1)(b) of Rome I, the validity of a transfer of ownership 
which amounts to performance of the contract is governed not by the lex 
contractus, but by the law applicable to the disposal. By contrast, the concept of 
‘performance’ in Article 12(1)(b) of Rome I is said to relate to all of the 
conditions under which the performance characteristic of the specific obligation is 
to be effected ([…]). 
11 If the creditor’s claim is satisfied not by the other party to the contract but, as in 
the present case, by a third party, the question arises all the more as to whether the 
lex contractus applies. There is no contractual relationship between the third-party 
provider and the recipient of the payment. On the other hand, the payment serves 
to satisfy the creditor’s contractual claim. The creditor’s contract with its debtor 
constitutes the legal basis upon which it is permitted to retain the payment 
received. Under German law, the creditor cannot refuse the third party’s payment, 
provided the other party to the contract does not object to it (Paragraph 267(2) of 
the Bürgerliches Gesetzbuch (German Civil Code). If it is necessary for the third 
party to perform the debtor’s obligation, its payment cannot be equated to a gift 
which is independent of the claim that has been satisfied ([...]). A further 
argument in favour of the lex contractus being the governing law in such a case is 
that where there are non-contractual obligations arising out of unjust enrichment 
which concern a legal relationship existing between the parties that is closely 
connected [Or. 9] with that unjust enrichment, the applicable law is that which 
governs the legal relationship, pursuant to Article 10(1) 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’). Some take the view that 
the same applies to payments in respect of another person’s debt ([...]). 
12 (b) If the question referred is answered in the affirmative and it is Netherlands law 
which governs the debtor’s payment, the decision in the dispute depends, in 
accordance with Article 13 of the old version of the Insolvency Regulation, on 
whether the defendant can prove that Netherlands law does not allow any means 
of challenging the payment. That is what the defendant has claimed, adducing 
evidence in that regard. 
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