ECLI:EU:C:2026:165

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OPINION OF ADVOCATE GENERAL

NORKUS

delivered on 5 March 2026 (1)

Case C‑716/24 [Ponner] (i)

(Request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany))

( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 655/2014 – European Account Preservation Order procedure – Article 2(2)(c) – Recital 8 – Scope – Opening of insolvency proceedings in a third country – Exclusion )

I. Introduction

1. This reference for a preliminary ruling arises from proceedings in which the applicant in the main proceedings, who resides in Germany, requests, first, information relating to bank accounts potentially held in Cyprus by a company incorporated under the law of Curaçao, whose business is gambling operations, and, second, the preservation of those bank accounts pursuant to Regulation (EU) No 655/2014, (2) with a view to the enforcement of a judicial decision concerning the repayment of losses that the applicant incurred from that online gambling. During those proceedings, the applicant in the main proceedings stated, inter alia, that, according to the commercial register of that third country, insolvency proceedings had been opened in respect of the assets of that company.

2. In those circumstances, the legal question at the heart of the request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) seeks to determine the legal effects of the recognition of insolvency proceedings opened against a debtor company in a third country on the scope of the EAPO Regulation. (3) It is apparent from Article 2(2)(c) of that regulation that claims against a debtor in relation to whom bankruptcy proceedings have been opened are excluded from its scope. (4) Specifically, the referring court asks the Court whether the insolvency proceedings to which that provision refers cover only insolvency proceedings opened in a Member State and falling within the scope of the recast Insolvency Regulation, or whether that provision also covers insolvency proceedings opened against a debtor in a third country and recognised in a Member State. In the latter situation, since recognition does not come under EU law but under the national law of the Member States, the difficulty in the present case is, in particular, whether there is a need to prevent national law from fragmenting the scope of the EAPO Regulation and to reconcile that need with the recognition, by the national law of a Member State, of decisions relating to the opening of insolvency proceedings in a third country.

3. As requested by the Court, this Opinion will be confined to an analysis of the first of the two questions referred for a preliminary ruling, by which the referring court seeks to ascertain whether the opening of insolvency proceedings in a third country recognised by the national law of a Member State of the European Union, in this case German law, precludes the adoption of an account preservation order (‘Preservation Order’ or ‘Order’) in that Member State. The question thus concerns the interpretation of Article 2(2)(c) of the EAPO Regulation, read in conjunction with recital 8 thereof, and therefore the relationship between that regulation and the recast Insolvency Regulation.

II. Legal context

A. European Union law

4. In addition to Article 2(1) and (2)(c), Article 4(6), Article 46(1) and (2), Article 7(1) and recitals 5 and 8 of the EAPO Regulation, the third subparagraph of Article 1(1), Article 2(4) and (6), Article 19(1), Article 20(1) and recitals 5, 9, 22, 23, 63 and 65 of the recast Insolvency Regulation are relevant in the present case.

B. German law

5. Paragraph 343(1) of the Insolvenzordnung (Insolvency Code) of 5 October 1994 (BGBl. I, p. 2866), as amended by the Law of 14 March 2003 (BGBl. I, p. 345), entitled ‘Recognition’, provides:

‘The opening of foreign insolvency proceedings shall be recognised. This does not apply,

1. if the courts in the state in which proceedings were opened do not have jurisdiction under German law;

2. where recognition leads to a result which is manifestly incompatible with fundamental principles of German law, in particular where it is incompatible with constitutional rights.’

C. Curaçao law

6. Article 29(1) of the Faillissementsbesluit 1931 (Bankruptcy Decree 1931) provides that the opening of insolvency proceedings has the effect that all judicial enforcement ceases immediately and that, from that time, a judgment may not be enforced.

III. The dispute in the main proceedings, the first question referred for a preliminary ruling and the procedure before the Court

7. DX NV is a limited liability company incorporated under the laws of Curaçao whose business consists of gambling operations. EJ, the applicant in the main proceedings, resides in Germany. She obtained a final and enforceable default judgment against DX, in the amount of EUR 57 364 plus costs and interest, from the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for the repayment of losses from online gambling.

8. By procedural document of 29 May 2024 and using the forms under the EAPO Regulation, EJ submitted a request for the obtaining of bank account information, under Article 14 of that regulation, that she believed DX held in Cyprus, and an application for a Preservation Order, under Article 7 of that regulation, in relation to those bank accounts. In support of those applications, EJ claimed, first, that she had reason to believe that DX held one or more accounts in Cyprus, given that bets were transferred to that company via Cypriot companies and, second, that that company had no seizable assets in Curaçao, given that it was what she described as a ‘shell company’.

9. By order of 5 June 2024, the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main) rejected the request for the obtaining of DX’s bank account information. It held that the fact that that company had received payments via Cypriot companies was not an indication that the company itself held an account in Cyprus. At the same time, by letter of 5 June 2024, that court informed EJ that the application for a Preservation Order in relation to the bank accounts of that company had to be rejected on the ground that, first, no evidence had been provided that it had no seizable assets in Curaçao, and second, that no seizable account had been specified.

10. On 20 June 2024, EJ lodged an immediate appeal (‘sofortige Beschwerde’) before the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main), which is the referring court, against the order of 5 June 2024. In support of her appeal, EJ submits that, according to the Curaçao commercial register, insolvency proceedings were opened against DX on 10 June 2024, meaning that there was now a risk that enforcement would become permanently impeded or substantially more difficult for the purposes of Article 7(1) of the EAPO Regulation. EJ believes that those insolvency proceedings should be recognised by German law. She further submits that, according to information provided by a Curaçao bailiff, the gambling operators established on that island are generally ‘shell companies’ with no assets in Curaçao.

IV. The questions referred for a preliminary ruling and the procedure before the Court

11. In those circumstances, by decision of 10 October 2024, received at the Court on 22 October 2024, the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 2[(2)](c) of [the EAPO Regulation], read in conjunction with [recital 8 of that regulation], be interpreted as meaning that the opening of insolvency proceedings not covered by [the recast Insolvency Regulation], but conducted in a third country, precludes the issuing of an account preservation order under Article 7(1) of [the EAPO Regulation] or the forwarding of the request for account information under Article 14(3) of [that regulation] [where] the national law of the Member State responsible for issuing the account preservation order recognises the insolvency proceedings in the third country concerned?

(2) Must [the first subparagraph of Article 14(1) of the EAPO Regulation, as well as Article 14 (3) thereof] – namely the “reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State” [are] to be provided by the creditor and ‘well substantiated’ – be interpreted as meaning that circumstances which do not specifically indicate the existence of an account in the Member State concerned, but which generally imply strong economic links between the debtor and the Member State concerned, such as, for example, payments to the debtor via a payment service provider with [its] registered office in the Member State concerned which is a subsidiary of the debtor, or the existence of an agency or branch of the debtor with [its] registered office in that Member State?’

12. Written observations were submitted by the European Commission only. The Commission alone attended the hearing on 3 December 2025.

V. Analysis of the first question

13. By its first question, which is the only question to be analysed in this Opinion, as requested by the Court, the referring court seeks to ascertain, in essence, whether Article 2(2)(c) of the EAPO Regulation, read in conjunction with recital 8 thereof, must be interpreted as precluding the issuing of a Preservation Order under Article 7(1) of that regulation and the transmission of a request for account information under Article 14(3) of that regulation, where the national law of the Member State responsible for issuing the Preservation Order recognises the insolvency proceedings in the third country concerned.

14. The referring court points out, first, that, under Article 2(2)(c) of the EAPO Regulation, read in conjunction with recital 8 thereof, no Preservation Order may be issued against a debtor in relation to whom insolvency proceedings, as defined by the Insolvency Regulation (replaced by the recast Insolvency Regulation) have been opened. It clarifies that the recast Insolvency Regulation is not applicable in the present case, since that regulation presupposes that insolvency proceedings have been opened in a Member State. However, that does not apply to Curaçao, which is considered to be a third country under EU law.

15. The referring court states, second, that it is German law on insolvency proceedings that applies. It adds that, under Paragraph 343(1) of the Insolvency Code, the opening of foreign insolvency proceedings is recognised under German law where such proceedings pursue, in essence, the same objectives as insolvency proceedings under German law. (5) The referring court considers that to be the position in the present case, in so far as insolvency proceedings under Curaçao law correspond, in essence, to those provided for under Netherlands law and recognised by the recast Insolvency Regulation.

16. In connection with the first question, the referring court is also uncertain whether, under Article 46(1) of the EAPO Regulation, it is for Member States to decide whether, and with what effects, they recognise insolvency proceedings that do not fall within the scope of the recast Insolvency Regulation, and whether the existence of insolvency proceedings in a third country could have the effect of precluding the application of the EAPO Regulation.

17. Thus, the referring court notes that the express reference to the recast Insolvency Regulation in recital 8 of the EAPO Regulation argues against the recognition, by that regulation, of insolvency proceedings opened in third countries. Nevertheless, it observes that the fact that Article 46(1) of the EAPO Regulation refers to the law of the Member State in which the proceedings take place in order to govern all procedural issues not specifically dealt with in that regulation is, by contrast, an argument for the recognition of insolvency proceedings opened in a third country where they are recognised by the law of that Member State.

18. The Commission adopts a broad interpretation of Article 2(2)(c) of the EAPO Regulation. In that regard, it points out, first, in its written observations that the exclusion of claims against a debtor in relation to whom insolvency proceedings have been opened is intended to prevent a Preservation Order from interfering with the proper functioning of those insolvency proceedings. The Commission also takes into account the purpose of the insolvency proceedings, noting the principle that all creditors should be treated in the same way. It states, inter alia, that although Chapter II of the recast Insolvency Regulation sets out the rules for the recognition of insolvency proceedings opened in Member States, those rules do not, however, concern the recognition of proceedings in third countries, which remain a matter for national law. Lastly, the Commission is of the view that an interpretation of Article 2(2)(c) of the EAPO Regulation as meaning that it also covers insolvency proceedings opened in third countries where these are recognised in the Member State in which the preservation of bank accounts is requested seems to be justified. Conversely, if the opening of insolvency proceedings is not recognised in that Member State, then there would be no valid reason to refuse to issue a Preservation Order.

19. In order to answer the referring court’s questions, it is necessary to determine, in essence, whether Article 2(2)(c) of the EAPO Regulation concerns only insolvency proceedings opened in Member States, and therefore does not prevent a Preservation Order from being issued in a Member State whose national law recognises the opening of insolvency proceedings initiated in a third country, or whether that provision must be interpreted as meaning that the opening of such insolvency proceedings in a third country recognised by the national law of a Member State precludes the adoption of such a Preservation Order in that Member State (the Member State of origin).

20. In the following points, I will set out some general considerations, including, in the first place, the lack of universal scope of the recognition of a judgment opening insolvency proceedings in a third country and the specific nature of the effects of such recognition (which is governed by national law), compared with the opening of the proceedings referred to in Annex A to the recast Insolvency Regulation (section A). In the second place, I will analyse the extent of the exclusion of claims against a debtor in relation to whom insolvency proceedings have been opened from the material scope of the EAPO Regulation. To that end, I will proceed with an interpretation of the wording, context and purpose of Article 2(2)(c) of that regulation, so as to determine whether or not the interpretation of that provision allows a claim against a debtor who is the subject of insolvency proceedings in a third country, recognised by the national law of a Member State (section B), to be excluded from the scope of that regulation. In the third and last place, I will conclude my analysis with a final thought (section C).

A. General considerations

21. I note, at the outset, that it is clear from the order for reference that DX is established in Curaçao. The latter is among the ‘countries and territories’ subject, under Annex II to the FEU Treaty, to the special arrangements for association provided for in Articles 198 et seq. TFEU. (6) However, those territories are regarded as third countries by the European Union, in so far as, under the first subparagraph of Article 355(2) TFEU, they are excluded from the scope of the Treaties. (7) In addition, it should be recalled that the rules and procedures relating to those special arrangements for association are laid down in Council Decision (EU) 2021/1764. (8) However, neither the Treaties nor that decision provide that the EAPO Regulation and the recast Insolvency Regulation, which replaced the Insolvency Regulation mentioned in recital 8 of the EAPO Regulation, apply to overseas territories.

1. The lack of universal scope of the recognition by the national law of a Member State of insolvency proceedings opened in a third country

22. It is appropriate to recall here that the recast Insolvency Regulation, like the text that preceded it, the Insolvency Regulation, is based not on a model constructed according to the principle of the universality of insolvency proceedings, but on a model of qualified universality or modified universality. As is apparent from recital 23 of that regulation, it enables the main insolvency proceedings to be opened in the Member State where the debtor has the centre of its main interests, (9) since those proceedings have universal scope and are aimed at encompassing all the debtor’s assets. (10) However, in order to protect the different interests at stake, the recast Insolvency Regulation allows secondary insolvency proceedings to be opened, in parallel to the main insolvency proceedings, in the Member State where the debtor has an establishment. (11) In addition, as is apparent from recital 22 of that regulation, ‘[it] acknowledges the fact that as a result of widely differing substantive laws it is not practical to introduce insolvency proceedings with universal scope throughout the Union’. Thus, the point of departure for the regulation is the universal model, based on the application of the law of the State of the opening of insolvency proceedings to those proceedings and to their effects, (12) while providing for a series of special rules which operate as exceptions and which adjust or qualify its universality. (13)

23. In particular, in order to ensure the effectiveness of the universality of the main insolvency proceedings that fall within the scope of the recast Insolvency Regulation, that regulation provides for the ‘immediate’ or ‘automatic’ recognition of judgments concerning the opening, conduct and closure of such proceedings, and of judgments handed down in direct connection with such proceedings. (14) That automatic recognition means that ‘the effects attributed to [such] proceedings by the law of the Member State in which [those] proceedings were opened extend to all other Member States. The recognition of judgments delivered by the courts of the Member States should be based on the principle of mutual trust’. (15) Under Article 19(1) of that regulation, entitled ‘Principle’, ‘any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article 3 shall be recognised in all other Member States from the moment that it becomes effective in the State of the opening of proceedings’. Article 20 of the regulation, entitled ‘Effects of recognition’, provides, in paragraph 1, that ‘the judgment opening insolvency proceedings as referred to in Article 3(1) shall, with no further formalities, produce the same effects in any other Member State as under the law of the State of the opening of proceedings, unless [the regulation] provides otherwise and as long as no proceedings referred to in Article 3(2) are opened in that other Member State’. (16) Indeed, as evidenced by the Virgós/Schmit report, the system of automatic recognition and the extension model reinforce the universality of the main proceedings. From the time fixed by the law of the State of the opening of proceedings (lex concursus), the judgment opening proceedings produces its effects ‘with equal force in all [Member] States’. (17)

24. By contrast, the opening of insolvency proceedings in a third country does not benefit from such automatic recognition, in the absence of application of the principle of mutual trust, which is one of the principles on which the recast Insolvency Regulation is based. (18) More specifically, that regulation governs neither such proceedings nor the conditions under which such recognition may take place, so that, at the current stage of development of EU law, these fall within the scope of national law and/or private international law applicable in the Member States. (19)

25. Indeed, no judgment opening insolvency proceedings in a third country may be regarded as a judgment within the meaning of the recast Insolvency Regulation. Similarly, no jurisdiction of a third country may be regarded as a jurisdiction within the meaning of that regulation. (20) The non-application of that regulation to such judgments arises directly from their exclusion from its scope, which is limited to insolvency proceedings opened in the Member States and included in Annex A to the recast Insolvency Regulation. (21) In other words, a judgment opening insolvency proceedings given by a court of a third country does not fulfil the condition of having been ‘handed down by a court of a Member State which has jurisdiction’ and, consequently, cannot be recognised in other Member States under Article 19(1) of that regulation.

26. In view of those general considerations, it also seems relevant to briefly mention the Court’s case-law on the prohibition of double recognition and/or double execution.

2. The prohibition of double recognition and its repercussions on the recognition of a judgment opening insolvency proceedings of a third country

27. To begin with, it should be noted that, as regards the interpretation of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, (22) Advocate General Lenz pointed out, in his Opinion in Owens Bank, that ‘to permit [the] “double execution” would … create the danger that a judgment creditor could circumvent the conditions laid down by a Contracting State for the recognition of judgments of the courts of the non-contracting State in question’, concluding that it is not the aim of that convention ‘to enable judgment creditors to engage in such “forum shopping”’. (23)

28. In the judgment in Owens Bank, (24) the Court, without referring directly to the question of double execution, held, inter alia, that that convention, and in particular Articles 21, 22 and 23, (25) did not apply to proceedings, or issues arising in proceedings, in Member States concerning the recognition and enforcement of judgments given in civil and commercial matters in non-contracting States. (26) Since that judgment, the adage ‘exequatur on exequatur is not valid’, (27) according to which only judgments relating directly to the substance of the rights and obligations of the parties are admitted to recognition and/or execution, seems to be widely accepted in the literature. (28)

29. It is true that, as regards the interpretation of Article 2(a) and Article 39 of the Brussels Ia Regulation, in the judgment in H Limited, (29) the Court, contrary to the Opinion of the Advocate General in that case, (30) had found that no provision of that regulation nor any of the objectives pursued by that regulation precludes an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State from falling within the scope of that regulation. (31) However, that solution has been strongly criticised in the legal literature. In particular, some authors have pointed out that the principle of mutual trust requires a basic consensus on the architecture of national judicial systems and the interchangeability of judicial acts. Therefore, according to those authors, allowing Member States to decide which judicial acts they wish to enter the system of free movement of judgments would be precisely contrary to the fundamental condition of the principle of legitimate expectations. (32) In that regard, I am of the view that the judgment in H Limited cannot be understood as calling into question the principle of the prohibition of double execution under EU law, and must be read in the context and the specific circumstances of the case giving rise to that judgment. (33)

30. Although insolvency proceedings are excluded from the scope of the Brussels Ia Regulation, (34) I do not see any objection to the prohibition of double recognition applying as regards the recognition, by the national law of a Member State, of insolvency proceedings opened in a third country. It follows, in principle, that no extraterritorial effect is produced in other Member States owing to the recognition by a Member State of insolvency proceedings opened in a third country. Therefore, the recognition of a judgment opening insolvency proceedings handed down in a third country does not produce effects outside the Member State that recognised it. For that reason, it is entirely conceivable that a judgment opening insolvency proceedings could be recognised and then produce those effects in some Member States but not in others.

31. It is in the light of those considerations that I will analyse the scope of the exclusion provided for in Article 2(2)(c) of the EAPO Regulation.

B. The scope of the exclusion of claims against a debtor in relation to whom insolvency proceedings have been opened from the material scope of the EAPO Regulation

32. It should be noted at the outset that, according to the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (35)

33. In order to determine whether or not Article 2(2)(c) of the EAPO Regulation allows claims against a debtor who is the subject of insolvency proceedings in a third country to be excluded from its scope, an interpretation is required of that provision.

1. The wording and context

34. In the first place, I recall that, under Article 2(2)(c) of the EAPO Regulation, ‘this Regulation does not apply to: claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened’. I note that the wording of that provision does not indicate whether the concepts of ‘bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings’ also cover the corresponding proceedings in third countries.

35. In the second place, as regards the internal or systemic context of that provision, I should point out, first of all, that recital 8 of the EAPO Regulation specifically refers to the [recast] Insolvency Regulation. That recital states that the regulation ‘should not apply to claims against a debtor in insolvency proceedings’ and that ‘this should mean that no Preservation Order can be issued against the debtor once insolvency proceedings as defined in [the Insolvency Regulation] have been opened in relation to him’. Article 1 of the recast Insolvency Regulation, entitled ‘Scope’, provides, in the third subparagraph of paragraph 1, that ‘the proceedings referred to in this paragraph are listed in Annex A’. In addition, Article 2(4) of that regulation defines ‘insolvency proceedings’ as ‘the proceedings listed in Annex A’, which lists, for each Member State, the insolvency proceedings referred to in that provision. Accordingly, it follows that insolvency proceedings opened in a third country recognised by the national law of a Member State do not come within the scope of the recast Insolvency Regulation or affect the scope of the EAPO Regulation.

36. Next, I note that, according to recital 1 of the EAPO Regulation, that regulation forms part of the Union objective ‘of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured’, and that ‘for the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market’.

37. To that end, it is clear from Article 1 of the EAPO Regulation, entitled ‘Subject matter’, that that regulation establishes a Union procedure enabling a creditor to obtain a European Account Preservation Order, as an alternative to protective measures under national law, which prevents the subsequent enforcement of the creditor’s claim from being jeopardised through the transfer or withdrawal of funds, up to the amount specified in the Order, which are held by the debtor or on his or her behalf in a bank account maintained in a Member State. As is apparent from recital 5 thereof, that regulation is intended to lay down binding and directly applicable provisions establishing a uniform Union procedure for the preservation of bank accounts, allowing, in cross-border cases, for the preservation, in an efficient and speedy way, of funds held in bank accounts. (36)

38. Lastly, Article 2 of the EAPO Regulation, entitled ‘Scope’, provides, in paragraph 1, that ‘[the regulation] applies to pecuniary claims in civil and commercial matters in cross-border cases as defined in Article 3, whatever the nature of the court or tribunal concerned (the “court”)’. (37) Thus, on a material level, the scope of that regulation covers ‘all civil and commercial matters apart from certain well-defined matters’ set out in Article 2(2) thereof. (38) In particular, as I have already pointed out, it is clear from the wording of Article 2(2)(c) that claims against a debtor subject to insolvency proceedings are excluded.

39. Nevertheless, I would like briefly to recall that Article 2(2)(c) of the EAPO Regulation does not entirely preclude a Preservation Order from being issued in connection with insolvency proceedings. It is apparent from recital 8 of that regulation that ‘the exclusion should allow the Preservation Order to be used to secure the recovery of detrimental payments made by … a debtor to third parties’. (39)

40. In addition, situations in which the Preservation Order was issued before the opening of insolvency proceedings in relation to the debtor are, in principle, covered by the EAPO Regulation. In those situations, Article 46 of that regulation, entitled ‘Relationship with national procedural law’, provides, in paragraph 2, that it is for the law of the Member State in which the insolvency proceedings have been opened (lex concursus) to determine ‘the effects of the opening of insolvency proceedings on individual enforcement actions, such as the enforcement of a Preservation Order’. However, the law of the Member State in which the insolvency proceedings have been opened may govern, in particular, the suspension or annulment of the enforcement of that Order. (40) It follows from its wording that that provision refers only to insolvency proceedings opened in a Member State and which thus fall within the scope of the recast Insolvency Regulation.

41. Furthermore, Article 46(1) of the EAPO Regulation provides that ‘all procedural issues not specifically dealt with in this Regulation shall be governed by the law of the Member State in which the procedure takes place’ (lex fori). It is important to note in that regard that, in addition to the fact that recognition of the opening of insolvency proceedings in a third country is not a purely procedural matter, that provision does not govern the effects of the opening of insolvency proceedings initiated in a third country. Indeed – and this is important for the present case – that provision is not intended to determine the scope of the regulation as a whole. In other words, Article 46(1) of the EAPO Regulation is directly applicable only to situations falling within the scope of that regulation. Therefore, I cannot endorse the proposal made by the Commission at the hearing that that provision is ‘indirectly applicable’ in the present case.

42. I would also like to note that the wording of Article 2(2)(c) of the EAPO Regulation is very similar to that used in the Brussels Ia Regulation, Article 1(2)(b) of which excludes from its scope ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’. (41) That exclusion has always been interpreted by the Court in conjunction with the recast Insolvency Regulation in such a way as to avoid not only any overlap between the rules of law that those instruments lay down but also any legal vacuum. (42)

43. Consequently, it follows from the internal or systemic context of Article 2(2)(c) of the EAPO Regulation that that legal instrument refers only to insolvency proceedings opened in the Member States, and that the recognition, in a Member State, of insolvency proceedings opened in a third country is not likely to have the effect of excluding the application of that regulation.

44. In the third and last place, with regard to the external context – and by this I mean the preparatory work – I will briefly add that, as the Commission confirmed in response to a question put by the Court, there is nothing in the legislative process to support a different interpretation.

45. That interpretation also does not seem to be called into question by the purpose of that provision.

2. Purpose

46. As regards the purpose of Article 2(2)(c) of the EAPO Regulation, read in conjunction with recital 8 thereof, it should be recalled that the aim of that provision is to prevent a Preservation Order from interfering with the proper functioning of insolvency proceedings, as defined in the recast Insolvency Regulation.

47. Since that regulation is based on the automatic recognition of any judgment opening insolvency proceedings (43) and, therefore, on the extension of the effects of the lex concursus in all Member States, issuing a Preservation Order for a claim against a debtor in relation to whom insolvency proceedings falling within the scope of that regulation have been opened, would risk allowing the individual enforcement of that claim. Such enforcement would thus take place to the detriment of the equal treatment of creditors (44) and would inevitably interfere with the proper functioning of the insolvency proceedings. Indeed, I recall that, regardless of the Member State in which the proceedings were opened, the effects of that opening, under the recast Insolvency Regulation, do not allow the Preservation Order to be enforced in any other Member State of the European Union, if such enforcement is not permitted under the lex concursus. (45)

48. Having regard to that purpose of preventing a Preservation Order from interfering with the proper functioning of insolvency proceedings, the Commission argued, in its written and oral observations, that since German law is based on the principle of equal treatment of creditors, issuing such an order after the recognition of insolvency proceedings opened in a third country could contravene that principle.

49. I certainly share the Commission’s view on the need to ensure equal treatment of creditors in the Member State that has recognised insolvency proceedings opened in a third country, which is the very reason for such recognition. For that reason, a prohibition on individual actions or proceedings and the suspension of individual enforcement measures against the debtor’s assets, would be an inherent consequence of that recognition. (46)

50. However, the question arises whether, first, the same effects should be attached to the European Preservation Order procedure, which in most cases, as in the present case, is aimed at the enforcement of that order in another Member State, (47) and, second, whether the exclusion of claims against a debtor in relation to whom insolvency proceedings have been opened in a third country from the scope of the EAPO Regulation would actually achieve such a purpose. (48) It is ultimately a question of balancing that purpose against the disadvantages resulting from a possible fragmentation of the scope of the EAPO Regulation according to the recognition or non-recognition, by the national law of a Member State, of insolvency proceedings of a third country.

51. In the first place, as I have just explained, it is true that the proper functioning of insolvency proceedings ultimately seeks to avoid individual enforcement by ensuring equal treatment of creditors under the law applicable to those proceedings (lex concursus). However, I would point out that the situation in which insolvency proceedings have been opened in a third country and recognised in a Member State does not fall within the scope of the recast Insolvency Regulation. Since the recognition of insolvency proceedings opened in a third country depends on the national law in question, it is possible that such insolvency proceedings will be recognised in one Member State and not in another.

52. In that particular context, I do not see how the failure to issue a Preservation Order in the Member State of origin (in the present case Germany), owing to the recognition of insolvency proceedings of a third country, could contribute to respect for the principle of equal treatment in the Member State of enforcement (possibly Cyprus) in which the effects of the opening of such insolvency proceedings may not be recognised. In the absence of recognition, individual enforcement against the assets of the debtor declared insolvent in a third country could indeed take place in Member States that do not recognise the opening of insolvency proceedings, without a European creditor (49) being able to benefit from the European Preservation Order procedure created to facilitate the cross-border recovery of claims. The protection of the equal treatment of creditors would, in such circumstances, be purely hypothetical and devoid of any tangible effect, to the detriment of the cross-border creditor.

53. In the present case, the fact that a Preservation Order issued in accordance with the EAPO Regulation can cancel out some of the effects of the insolvency proceedings in Curaçao, transferred to Germany by the recognition of the opening of those proceedings, (50) is the logical consequence of the system resulting from the relationship between the EAPO Regulation and the recast Insolvency Regulation and which does not include insolvency proceedings opened in a third country. Thus, although a Preservation Order issued under national law and a Preservation Order issued in accordance with the EAPO Regulation must both respect the principle of equal treatment of creditors under their respective regimes, these two types of proceedings do not apply to the same situations. The fact that the Preservation Order issued in accordance with the EAPO Regulation presents an alternative to the protective measures provided for by national law (51) does not mean that the conditions for issuing them must be identical. That is confirmed by its scope (52) and by the conditions for issuing it, (53) which are defined autonomously and without reference to the law of the Member States.

54. In the second place, it should be recalled that the EAPO Regulation is intended to lay down binding and directly applicable provisions establishing a uniform EU procedure for the preservation of bank accounts, allowing, in cross-border cases, for the efficient and speedy preservation of funds held in bank accounts. (54) Thus, the interpretation of the purpose of Article 2(2)(c) of that regulation means taking into account the reference made by the legislature to insolvency proceedings, as defined by the recast Insolvency Regulation, thus limiting the scope of the EAPO Regulation. (55)

55. In that context, such a reference ensures the uniform application of the EAPO Regulation in all Member States, by avoiding the fragmentation of its scope according to whether proceedings opened in a third country are recognised in different Member States. As a consequence, it would be possible to obtain a Preservation Order in a Member State that does not recognise the foreign proceedings, but not in a State that does recognise them. (56)

56. As I have set out in the foregoing considerations, it follows from the wording, context and purpose of Article 2(2)(c) of the EAPO Regulation that that article must be interpreted as meaning that it does not preclude the issuing of a Preservation Order in a Member State where the national law of the Member State responsible for issuing the Preservation Order recognises insolvency proceedings in a third country.

C. A final thought

57. For the sake of completeness, I wish to raise a final point in lieu of a conclusion.

58. As I have mentioned, (57) I share the Commission’s view on the need to ensure equal treatment of creditors in the Member State that recognised insolvency proceedings opened in a third country.

59. However, I am of the view that the protection of the equal treatment of creditors could be sufficiently ensured at the stage of enforcement of the Preservation Order in the Member State of enforcement, (58) rather than at the stage of the issuing of that Order, (59) which would at the same time avoid a fragmentation of the scope of the EAPO Regulation.

60. In that respect, as I have already explained, (60) Article 46(2) of the EAPO Regulation governs the enforcement stage of a Preservation Order and makes its enforcement subject to the lex concursus in situations where the Preservation Order was issued before the opening of insolvency proceedings in relation to the debtor. Despite that temporal aspect, and notwithstanding its wording, which refers to the law of the Member State in which the insolvency proceedings were opened, I share the Commission’s view, expressed at the hearing, that the same consequences should apply in the event of recognition of the insolvency proceedings of a third country. In the absence of the possibility of taking into account the lex concursus, including a possible suspension of the individual enforcement of a Preservation Order in the Member State that has recognised the opening of the insolvency proceedings of a third country, any recognition of such proceedings would become nugatory. Unlike the stage at which the Preservation Order is issued in the Member State of origin, any infringements of the principle of equal treatment of creditors would be concrete and tangible. (61)

61. In any event, that observation does not change the fact that the objective of Article 2(2)(c) of the EAPO Regulation only concerns the scheme established by the recast Insolvency Regulation. It is evident that the EU legislature did not consider the recognition of insolvency proceedings of a third country as a restriction of the scope of the EAPO Regulation.

62. The question of the interference of a Preservation Order with the proper functioning of insolvency proceedings and of the need to ensure the effectiveness of such recognition in the Member State of enforcement, where the national law of that Member State recognises the opening of insolvency proceedings of a third country, could fall within the interpretation of Article 46(2) of the EAPO Regulation. Moreover, it does not rule out the possibility that that question may, where appropriate, be examined in greater depth by the EU legislature, particularly if it intends to subject insolvency proceedings opened in a third country and recognised in a Member State to one of the instruments of EU law.

VI. Conclusion

63. In the light of all the foregoing considerations, I propose that the Court of Justice answer the first question referred for a preliminary ruling by the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) as follows:

Article 2(2)(c) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, read in conjunction with recital 8 thereof,

must be interpreted as meaning that it does not preclude the issuing of a Preservation Order under Article 7(1) of that regulation and the transmission of a request for account information under Article 14(3) of that regulation, where the national law of the Member State responsible for issuing the Preservation Order recognises the insolvency proceedings in the third country concerned.

1 Original language: French.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 Regulation of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (OJ 2014 L 189, p. 59; ‘the EAPO Regulation’).

3 By that regulation, the EU legislature introduced the European Account Preservation Order (EAPO) to facilitate cross-border debt recovery in civil and commercial matters. Recital 8 of that regulation refers to insolvency proceedings ‘as defined’ in Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1; ‘the Insolvency Regulation’). That regulation was repealed under Article 91 of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19; ‘the recast Insolvency Regulation’). According to that provision, ‘references to the repealed Regulation shall be construed as references to [the recast Insolvency Regulation]’. In that regulation, the term ‘insolvency proceedings’ refers to the proceedings defined in Article 1(1) thereof and referred to in Annex A thereto.

4 Article 4(7) of the EAPO Regulation defines ‘debtor’ as ‘a natural person or a legal person or any other entity having legal capacity to sue or be sued under the law of a Member State, against whom or which the creditor seeks to obtain, or has already obtained, a Preservation Order relating to a claim’.

5 It appears from the order for reference that the effects of the insolvency proceedings in Curaçao are transferred to Germany by the recognition of the opening of the insolvency proceedings in Curaçao, such that those effects must be examined in the light of Article 29 of the Faillissementsbesluit 1931 (Bankruptcy Decree 1931) which codified the insolvency law of Curaçao. According to that provision, the opening of insolvency proceedings has the effect that any judicial enforcement proceedings end immediately and that a judgment can no longer be enforced from this point onward.

6 The first subparagraph of Article 198 TFEU states that ‘the Member States agree to associate with the Union the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called the “countries and territories”) are listed in Annex II’.

7 The first subparagraph of Article 355(2) TFEU states that the ‘special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II’.

8 Council Decision of 5 October 2021 on the association of the Overseas Countries and Territories with the European Union including relations between the European Union on the one hand, and Greenland and the Kingdom of Denmark on the other (Decision on the Overseas Association, including Greenland) (OJ 2021 L 355, p. 6).

9 See Articles 3 and 4 of the recast Insolvency Regulation, entitled, respectively, ‘International jurisdiction’ and ‘Examination as to jurisdiction’.

10 See, in that regard, inter alia, judgment of 22 November 2012, Bank Handlowy and Adamiak (C‑116/11, EU:C:2012:739, paragraph 40 and the case-law cited).

11 See, in that regard, Explanatory report of M. Virgós and E. Schmit, of 8 July 1996, on the Convention on Insolvency Proceedings of 3 May 1996 (‘the Virgós/Schmit report’), document of the Council of the European Union, 6500/96, DRS 8 (CFC), paragraph 5.

12 See Article 7 of the recast Insolvency Regulation, entitled ‘Applicable law’.

13 See Articles 8 to 18 of the recast Insolvency Regulation.

14 See, on that aspect, inter alia, judgment of 22 November 2012, Bank Handlowy and Adamiak (C‑116/11, EU:C:2012:739, paragraph 41 and the case-law cited).

15 See recital 65 of the recast Insolvency Regulation. Emphasis added.

16 These are secondary insolvency proceedings. Emphasis added.

17 See Virgós/Schmit report, paragraph 154. See, also, Moss, G., Fletcher, I.F., Isaacs, S., The EU Regulation on Insolvency Proceedings, 3rd edition, Oxford University Press, Oxford, 2016, pp. 128 to 130.

18 See recital 65 of the recast Insolvency Regulation. See also point 23 of this Opinion.

19 Some Member States (Greece, Poland and Romania) have incorporated into their national legal order the UNCITRAL Model Law on Cross-Border Insolvency, of 30 May 1997, United Nations, March 2014, available at https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency. Other Member States govern this issue on the basis of specific provisions on the recognition of the opening of insolvency proceedings (notably Germany) or rely on the general rules of civil procedure (as is the case in Lithuania). See, in that regard, INSOL Europe/Lexis PSL Joint Project on ‘How EU Member States recognise insolvency and restructuring proceedings of a third country’, January 2022. In addition, some Member States participate in international conventions with third countries in insolvency matters or have concluded agreements on mutual legal assistance in civil matters, which also covers insolvency matters.

20 Article 2(6) of the recast Insolvency Regulation, entitled ‘Definitions’, refers to ‘the judicial body of a Member State’ [under (i)] and to ‘the judicial body or any other competent body of a Member State’ [under (ii)].

21 See the third subparagraph of Article 1(1) of the recast Insolvency Regulation. See, in that regard, point 35 of this Opinion.

22 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (signed on 9 October 1978) (OJ 1978 L 304, p. 36; ‘the 1968 Brussels Convention’).

23 C‑129/92, EU:C:1993:363, point 22.

24 Judgment of 20 January 1994 (C‑129/92, EU:C:1994:13).

25 See Articles 29 to 31 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) (‘the Brussels Ia Regulation’).

26 Judgment of 20 January 1994, Owens Bank (C‑129/92, EU:C:1994:13, paragraph 37 and the operative part of that judgment).

27 That adage has been attributed to Gavalda, A., Clunet, 1935, p. 113. In that regard, see Malaurie, P., Clunet, 1970, p. 941, and Kegel, G., ‘Exequatur sur exequatur ne vaut’, Albrecht Dieckmann and others (eds.), Festschrift für Wolfram Müller Freienfels (1st edition, Nomos), 1986, p. 377.

28 See, in particular, Merret, L., ‘Article 2’, Magnus, U., and Mankowski, P., European Commentaries on Private International Law, Brussels Ibis Regulation, 2nd edition, Otto Schmidt, Cologne, Vol. 1, 2023, pp. 86 to 102, in particular paragraph 12, and Brosch, M. and Mantovani, M., ‘Article 2’, Brussels I Bis: A Commentary on Regulation (EU) Nº 1215/2012, Requejo Isidro, M. (ed.), Cheltenham, Edward Elgar Publishing, 2022, pp. 36 to 52, in particular p. 45, paragraph 2.29. For a more nuanced point of view, see Muir Watt, H., ‘Reconnaissance sur reconnaissance vaut parfait’, Revue critique de droit international privé, No 1, 2023, pp. 135 to 152, and Hay, P., ‘Recognition of a Recognition Judgment under Brussels I’, Guest editorial, https://conflictoflaws.net/2008/guest-editorial-hay-on-recognition-of-a-recognition-judgment-under-brussels-i/

29 Judgment of 7 April 2022, (C‑568/20, EU:C:2022:264).

30 Opinion of Advocate General Pikamäe in H Limited (C‑568/20, EU:C:2021:1026, points 32 to 36).

31 Judgment of 7 April 2022, H Limited (C‑568/20, EU:C:2022:264, paragraph 39).

32 See Hess, B., ‘Exequatur sur exequatur (ne) vaut? Der EuGH erweitertet die Freizügigkeit von Drittstaatenurteilen nach Art. 39 ff. EuGVVO: zu EuGH, 7.4.2022, Rs. C‑568/20, J v H Limited, Praxis des internationalen Privat – und Verfahrensrechts, 2022, pp. 349 to 351.

33 The Court considered the fact that the order for payment made by the High Court of Justice (England & Wales) at issue in the main proceedings ‘was, at the very least, the subject of a summary hearing in the Member State of origin, with the result that it constitutes a judgment within the meaning of Article 2(a) of [the Brussels Ia Regulation]’. See judgment of 7 April 2022, H Limited (C‑568/20, EU:C:2022:264, paragraph 32).

34 Article 1(2)(b) of the Brussels Ia Regulation.

35 See judgments of 17 November 1983, Merck (292/82, EU:C:1983:335, paragraph 12), and of 25 February 2025, BSH Hausgeräte (C‑339/22, EU:C:2025:108, paragraph 27).

36 See judgment of 7 November 2019, K.H.K. (Account preservation) (C‑555/18, EU:C:2019:937, paragraphs 31 and 32).

37 As regards the territorial scope of the EAPO Regulation, Article 3(1) defines a cross-border case as ‘one in which the bank account or accounts to be preserved by the Preservation Order are maintained in a Member State other than: (a) the Member State of the court seised of the application for the Preservation Order pursuant to Article 6; or (b) the Member State in which the creditor is domiciled’.

38 See recital 8 of the EAPO Regulation.

39 In that respect, an administrator or liquidator may request, inter alia, that such an order be issued in the interest of the body of creditors in order to recover a payment made by the debtor before the date of the opening of the insolvency proceedings, so as to facilitate the pursuit of claims against an insolvent debtor or claims protecting the interests of the creditors. Moreover, the insolvent debtor may also obtain such an order if it is not dispossessed of its assets following the opening of the insolvency proceedings.

40 See, also, Article 7(2)(f) of the recast Insolvency Regulation.

41 This is also apparent from the texts that preceded the Brussels Ia Regulation, namely Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and the 1968 Brussels Convention.

42 See, inter alia, judgment of 14 November 2024, Oilchart International (C‑394/22, EU:C:2024:952, paragraph 32 and the case-law cited).

43 See point 23 of this Opinion.

44 As a reminder, that principle is recognised in recital 63 of the recast Insolvency Regulation.

45 See Article 7(2)(f) of the recast Insolvency Regulation.

46 See, by way of illustration, Article 20 of the UNCITRAL Model Law on Cross-Border Insolvency.

47 Although the European Preservation Order may be enforced in the Member State of origin, its main objective is to facilitate the recovery of claims in a Member State other than the State of the court that ruled on the application for that Order.

48 See point 46 of this Opinion.

49 Note that Article 4(6) of the EAPO Regulation defines ‘creditor’ as ‘a natural person domiciled in a Member State or a legal person domiciled in a Member State or any other entity domiciled in a Member State having legal capacity to sue or be sued under the law of a Member State, who or which applies for, or has already obtained, a Preservation Order relating to a claim’.

50 See point 15 of this Opinion.

51 See Article 1(2) of the EAPO Regulation.

52 See Article 2 of the EAPO Regulation.

53 See Article 7 of the EAPO Regulation.

54 See recital 5 of the EAPO Regulation. See, in that regard, point 37 of this Opinion.

55 It should also be recalled that the exclusion contained in that provision of the EAPO Regulation constitutes an exception to the scheme established by that regulation and must, as a derogating provision, be strictly interpreted. See, by analogy, judgment of 6 June 2019, Weil (C‑361/18, EU:C:2019:473, paragraph 43 and the case-law cited).

56 Such a situation would even be conducive to forum shopping, particularly if the creditor considers applying for a Preservation Order before bringing substantive proceedings and before the courts of several Member States have jurisdiction to settle the case.

57 See point 49 of this Opinion.

58 Depending on the recognition or non-recognition of the opening of the insolvency proceedings of a third country.

59 Where the Member State of origin is also the Member State of enforcement, that factor should be taken into account to determine the effects of the recognition of insolvency proceedings of a third country.

60 See point 40 of this Opinion.

61 See point 52 of this Opinion.

Opinion of Advocate General Norkus delivered on 5 March 2026.###

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