Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

19 March 2026 (*)

( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Article 13 – Conflicts of laws – Loan granted by a shareholder of a capital company to that company – Action for restitution of payments received by the creditor before the opening of the insolvency proceedings – Action aimed at ensuring compliance with the ranking of claims in those proceedings )

In Case C‑43/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 16 January 2025, received at the Court on 23 January 2025, in the proceedings

SML Maschinengesellschaft mbH

v

AK, acting as administrator in the insolvency proceedings concerning the assets of MAPLAN Maschinenfabrik und Anlagen für Kunststofftechnik Schwerin GmbH,

THE COURT (Seventh Chamber),

composed of F. Schalin, President of the Chamber, K. Jürimäe (Rapporteur), President of the Second Chamber, and M. Gavalec, Judge,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        SML Maschinengesellschaft mbH, by T. Winter, Rechtsanwalt,

–        AK, acting as administrator in the insolvency proceedings concerning the assets of MAPLAN Maschinenfabrik und Anlagen für Kunststofftechnik Schwerin GmbH, by A. Druckenbrodt, Rechtsanwalt,

–        the German Government, by J. Möller, M. Hellmann and A. Sahner, acting as Agents,

–        the European Commission, by S. Noë and N. Schaeffer, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1), and of Article 9(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) (OJ 2008 L 177, p. 6; ‘the Rome I Regulation’).

2        The request has been made in proceedings between SML Maschinengesellschaft mbH (‘SML’), a company with its registered office in Austria, and the insolvency administrator of MAPLAN Maschinenfabrik und Anlagen für Kunststofftechnik Schwerin GmbH (‘Maplan’), a company with its registered office in Germany, concerning the restitution of sums which Maplan paid to SML, inter alia in respect of repayment of loans, in the months preceding the opening of insolvency proceedings against Maplan.

 Legal context

 European Union law

 Regulation No 1346/2000

3        According to Article 4 of Regulation No 1346/2000, entitled ‘Law applicable’:

‘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:

…

(g)      the claims which are to be lodged against the debtor’s estate and the treatment of claims arising after the opening of insolvency proceedings;

…

(i)      the rules governing the distribution of proceeds from the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings by virtue of a right in rem or through a set-off;

…

(m)      the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.’

4        Article 13 of that regulation, entitled ‘Detrimental acts’, provides:

‘Article 4(2)(m) shall 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 Rome I Regulation

5        Article 9 of the Rome I Regulation, entitled ‘Overriding mandatory provisions’, provides, in paragraph 1:

‘Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.’

 German law

6        Paragraph 39 of the Insolvenzordnung (Insolvency Code) of 5 October 1994 (BGBl. I, p. 2866), in the version applicable to the facts of the dispute in the main proceedings (‘the InsO’), is worded as follows:

‘(1)      Ranking after the other claims of insolvency creditors, the following claims shall be satisfied in the following order, and, if of equal rank, according to the proportion of their amounts:

…

5.      in accordance with subparagraphs 4 and 5, claims as to the repayment of a shareholder loan or claims arising from legal acts economically equivalent to such a loan.

…

(4)      Subparagraph 1, point 5, shall apply to companies which have as a personally liable shareholder neither a natural person nor a company with a natural person as a personally liable shareholder. …

…’

7        Paragraph 135 of the InsO provides:

‘(1)      A legal act shall be voidable if, in return for a shareholder’s claim to the repayment of a loan within the meaning of Paragraph 39(1), point 5, or in return for a claim treated as such, it:

1.      provided a security, if the act was concluded during the last ten years prior to the application for the opening of insolvency proceedings or subsequent to that application; or

2.      provided satisfaction, if the act was concluded during the last year prior to the application for the opening of insolvency proceedings or subsequent to that application.

…

(4)      Paragraph 39(4) and (5) shall apply mutatis mutandis.’

8        According to Paragraph 174(3) of the InsO:

‘Claims of lower-ranking creditors must be declared only if the competent insolvency court specifically asks those creditors to declare those claims …’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

9        SML and Maplan are part of the same Austrian group of companies. One of the shareholders of both companies is Franz S. Huemer GmbH, a company incorporated under Austrian law, which holds 78% of the capital in SML and 33% of the capital in Maplan.

10      By an agreement concluded on 19 May 2015, SML granted a loan of EUR 3 million to Maplan and, by a further agreement concluded on 16 June 2015, a second loan of EUR 2 million (together, ‘the two loans’). Both loans contained a clause stating that they were governed by Austrian law. In order to guarantee the rights arising from the first loan agreement, Maplan assigned to SML the claims which Maplan held against another undertaking, amounting to EUR 3 million.

11      On 10 March 2016, Maplan made a payment of EUR 500 000 to SML towards that first loan. In addition, it paid EUR 89 397.92 interest to SML in respect of the fourth quarter of 2015 and the first and second quarters of 2016. As regards the second loan, Maplan paid interest to SML in respect of the third and fourth quarters of 2015 in the amount of EUR 101 666.68.

12      On 1 October 2016, insolvency proceedings were opened against Maplan, at its own request, and an insolvency administrator was appointed.

13      Following the opening of those proceedings, SML brought an action before the Landgericht Schwerin (Regional Court, Schwerin, Germany) requesting that the claims which it held, arising from the two loans, be entered in Maplan’s liabilities. SML also sought a preferential right over the claims which had been assigned to it as security for the first loan. Disputing those requests, the insolvency administrator sought, as a counterclaim, by way of an action to set aside a transaction due to insolvency (‘the action to set aside’), restitution of the principal sum and the interest which Maplan had paid to SML in respect of the two loans, together with interest.

14      The Landgericht Schwerin (Regional Court, Schwerin) dismissed SML’s requests and upheld the action to set aside. The appeal brought by SML before the Oberlandesgericht Rostock (Higher Regional Court, Rostock, Germany) was not upheld. Hearing an appeal on a point of law, the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court, is uncertain as to which law is applicable to the action to set aside.

15      That court states that, in accordance with Article 4(1) of Regulation No 1346/2000, the law applicable to insolvency proceedings and their effects is the law of the Member State within the territory of which such proceedings are opened. In the present case, since Maplan’s insolvency proceedings were opened in Germany, German law is therefore, in that court’s view, applicable.

16      On the basis of that law, SML is, according to that court, required to repay to the insolvency administrator the sums received under the two loans.

17      According to the findings of the appeal court, which are binding on the referring court, because of the shareholdings of the company Franz S. Huemer in SML and in Maplan, the German legislation on shareholder loans treats SML as a shareholder of Maplan.

18      In view of that status as a shareholder, SML’s claims relating to the repayment of the two loans are, in the referring court’s view, in the context of the insolvency proceedings, lower-ranking claims, in accordance with Paragraph 39(1), point 5, of the InsO. Moreover, SML does not have the right to participate in those proceedings since the competent court in the matter did not invite the lower-ranking creditors to declare their claims, which is a condition for their participation in such proceedings.

19      In those circumstances, the payments made by Maplan under the two loans would have to be repaid by SML to the insolvency estate, in accordance with the applicable provisions of the InsO. Those payments enabled SML to obtain satisfaction of claims of a rank lower than the claims of the insolvency creditors already invited to lodge their claims, with the result that those payments were detrimental to those creditors.

20      SML submits, on the contrary, that, under the applicable law as stipulated in the agreements for the two loans, Austrian law applies. That law does not, in its view, allow the legal acts concerned to be challenged.

21      In that context, the referring court considers that, as regards the counterclaim, it is necessary for that court to obtain clarification on the interpretation of Article 13 of Regulation No 1346/2000. According to that provision, Article 4(2)(m) of that regulation – under which it is the law of the State of the opening of proceedings that determines the rules relating, inter alia, to the unenforceability of acts detrimental to all the creditors – does not apply where the person who benefited from such an act proves, first, that that act is subject to the law of a Member State other than that of the State of the opening of proceedings and, second, that that law does not allow any means of challenging that act in the relevant case.

22      That court asks, in the first place, whether Article 13 of Regulation No 1346/2000 also applies to a request for restitution that seeks to assert, against a creditor, a lower ranking applicable under the law in force in the State of the opening of proceedings.

23      In the event that Article 13 of Regulation No 1346/2000 is applicable, that court raises, in the second place, the question of whether that article applies in respect of criteria which relate to an action to set aside and which, as with Article 135 of the InsO, are aimed at treating loans granted by a shareholder of a capital company, during the period prior to the opening of insolvency proceedings, as liable equity capital of such a company.

24      If that second question is also answered in the affirmative, the question then arises, in the third place, as to whether the law applicable to a loan that is granted to a capital company by a shareholder of that company is determined, for the purposes of Article 13 of Regulation No 1346/2000, by the law applicable to that company, at least as regards the implementation, vis-à-vis certain creditors, of a lower ranking and the restitution of sums paid to them in breach of that lower ranking.

25      If that third question is answered in the negative, the referring court then asks, in the fourth and last place, whether Article 9(1) of the Rome I Regulation is applicable to the law determined on the basis of Article 13 of Regulation No 1346/2000 and whether Article 9 of the Rome I Regulation is to be interpreted as meaning that overriding mandatory provisions may also be contained in rules on contract law set out in national provisions on insolvency, such as those concerning the lower ranking of shareholder loans, within the meaning of Paragraph 39(1), point 5, of the InsO, and the legal consequences of such a lower ranking.

26      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 13 of [Regulation No 1346/2000] to be interpreted as meaning that the person who benefited from an act detrimental to all the creditors can rely on the effects of that provision as against a recovery demand by the liquidator even if the recovery demand is intended to enforce the lower ranking laid down in the applicable law of the State of the opening of proceedings (point (i) of the second phrase of Article 4(2) of [that regulation])?

(2)      If Question 1 is answered in the affirmative:

Is Article 13 of [Regulation No 1346/2000] to be interpreted as meaning that that provision also applies to grounds for avoidance intended to treat loans granted by a shareholder of a company limited by shares prior to the insolvency in order to secure the financial resources of the company largely in the same way as liable equity capital?

(3)      If Question 2 is answered in the affirmative:

Is Article 13 of [Regulation No 1346/2000] to be interpreted as meaning that the law applicable to a loan granted by a shareholder of a company limited by shares to [that] company is determined in accordance with company law?

(4)      If Question 3 is answered in the negative:

Is Article 9(1) of [the Rome I Regulation] applicable to the relevant law to be determined in accordance with Article 13 of [Regulation No 1346/2000] and to be interpreted as meaning that overriding mandatory provisions may also be contained in rules of contract law laid down in national insolvency provisions – such as those regarding the lower ranking of shareholder loans and the legal consequences of their lower ranking?’

 The first question

27      As a preliminary point, it should be noted that, in accordance with settled case-law, it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct (see judgments of 3 October 2000, Corsten, C‑58/98, EU:C:2000:527, paragraph 24; of 16 February 2017, IOS Finance EFC, C‑555/14, EU:C:2017:121, paragraph 21; and of 19 December 2024, Loredas, C‑531/23, EU:C:2024:1050, paragraph 45). The Court must therefore take account, under the division of jurisdiction between the EU Courts and the national courts, of the factual and legislative context in which the questions put to it are set, as described in the order for reference (see judgments of 25 October 2001, Ambulanz Glöckner, C‑475/99, EU:C:2001:577, paragraph 10, and of 19 December 2024, Loredas, C‑531/23, EU:C:2024:1050, paragraph 45). As a result, the questions referred for a preliminary ruling must be examined in the light of the interpretation of national law adopted by the referring court, the accuracy of which is not a matter for the Court to determine (judgment of 29 July 2024, CU and ND (Social assistance – Indirect discrimination), C‑112/22 and C‑223/22, EU:C:2024:636, paragraph 40).

28      In the present case, it is apparent from the information provided by the referring court that the relevant legislative context is defined in Paragraphs 39 and 135 of the InsO, which are, according to that court, closely linked.

29      According to the explanations provided by that court, it is apparent, first, from Paragraph 39(1), point 5, of the InsO that claims relating to the repayment of a shareholder loan are of a lower rank where the debtor of that loan is a company which has, as a personally liable shareholder, neither a natural person nor a company with a natural person as a personally liable shareholder. Second, Paragraph 135 of the InsO establishes a procedure which seeks to ensure that third-party creditors have priority over the shareholder creditor referred to in Paragraph 39(1), point 5, of the InsO, in accordance with the law on the opening of insolvency proceedings, which is the law applicable under Article 4(2)(i) of Regulation No 1346/2000.

30      It thus follows from the description of the applicable national legislative framework that the request made in support of the action to set aside that is at issue in the main proceedings relates to the order of priority of creditors and the order in which their claims are distributed, and does not relate to a competitive situation between creditors of equal rank.

31      In that legislative context, the first question must be understood as meaning that the referring court seeks to ascertain, in essence, whether Article 13 of Regulation No 1346/2000 must be interpreted as meaning that it may be relied on by a person who has received repayments in respect of a shareholder loan, which are regarded as detrimental to all of the creditors, in response to a request for restitution submitted by the insolvency administrator of the company that is the debtor of the loan where that request seeks to ensure compliance with the ranking of claims that is laid down in the legislation of the State of the opening of the insolvency proceedings.

32      It is true that, in interpreting a provision of EU law, it is necessary to consider its wording, the context in which it occurs, and the objectives of the rules of which it is part. However, where the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that interpretation (see, to that effect, judgments of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 48, and of 25 January 2022, VYSOČINA WIND, C‑181/20, EU:C:2022:51, paragraph 39).

33      Furthermore, it follows from settled case-law that the exception provided for in Article 13 of Regulation No 1346/2000 must be interpreted strictly (see, to that effect, judgments of 16 April 2015, Lutz, C‑557/13, EU:C:2015:227, paragraph 34; of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 18; and of 22 April 2021, Oeltrans Befrachtungsgesellschaft, C‑73/20, EU:C:2021:315, paragraph 24).

34      It follows from the wording of Article 13 of that regulation that ‘Article 4(2)(m) [of Regulation No 1346/2000 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.’

35      It follows that, in so far as Article 13 of that regulation is a derogation from Article 4(2)(m) of that regulation, its scope is limited to the situation envisaged in the latter provision, namely where what is at issue are the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors, and not the rules relating to the claims to be lodged against the debtor’s estate or their ranking.

36      Furthermore, it must be noted that Article 13 of Regulation No 1346/2000 does not extend the derogation which it establishes to the law applicable to the claims to be lodged or to the law applicable to the determination of the ranking of claims, whereas those situations are expressly envisaged in Article 4(2)(g) and (i) of that regulation. Article 13 of that regulation cannot, therefore, be relied on in the context of an action such as that at issue in the main proceedings which, as stated in paragraph 30 of the present judgment, concerns the order of priority and distribution of those claims.

37      In the light of the foregoing, the answer to the first question is that Article 13 of Regulation No 1346/2000 must be interpreted as meaning that it cannot be relied on by a person who has received repayments in respect of a shareholder loan, which are regarded as detrimental to all of the creditors, in response to a request for restitution submitted by the insolvency administrator of the company that is the debtor of the loan where that request seeks to ensure compliance with the ranking of claims that is laid down in the legislation of the State of the opening of the insolvency proceedings.

 The second to fourth questions

38      In view of the answer given to the first question, there is no need to answer the second to fourth questions.

 Costs

39      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Seventh Chamber) hereby rules:

Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that it cannot be relied on by a person who has received repayments in respect of a shareholder loan, which are regarded as detrimental to all of the creditors, in response to a request for restitution submitted by the insolvency administrator of the company that is the debtor of the loan where that request seeks to ensure compliance with the ranking of claims that is laid down in the legislation of the State of the opening of the insolvency proceedings.

[Signatures]

*      Language of the case: German.