The Law Applicable to a Payment Made by a Third Party in Performance of a Contractual Payment Obligation Contested in Insolvency Proceedings as an Act Detrimental to All Creditors

Abstract

In the commentary, the author discusses the judgment of the Court of Justice of 22 April 2020 in Case C-73/20, ZM, as receiver in the bankruptcy of Oeltrans Befrachtungsgesellschaft mbH, v. E. A. Frerichs. This judgment concerns a payment made by a third party in performance of a contractual obligation and challenged in bankruptcy proceedings as an act done to the detriment of the bankruptcy creditors. The Court rightly held that art. 13 of Regulation No 1346/2000 must be interpreted as meaning that the law applicable to the contract also applies to a payment made by a third party in performance of a contractual obligation to pay incumbent on one of the parties to the contract, where, in the context of insolvency proceedings, that payment is challenged as an act done to the detriment of all creditors. The author approves of the Court’s decision both as to the thesis and reasoning.