The Court of Justice delivered this week (9 October 2019) its judgment in case C‑548/18 (BGL BNP Paribas SA v TeamBank AG Nürnberg), which is about Article 14 Rome I:
“Article 14 of the Rome I Regulation must be interpreted as not designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees”.
“13 TeamBank [a banking institution based in Germany] and a Luxembourg national, domiciled in Germany and a civil servant in Luxembourg (‘the debtor’), concluded, on 29 March 2011, a loan agreement, governed by German law and secured by the assignment of the attachable share of her current and future claims to wages and salary, including in particular claims to pension benefits, against her employer in Luxembourg. Her employer was not informed of that assignment.
14 On 15 June 2011, the debtor concluded another loan agreement with BNP [a banking institution based in Luxembourg]. That second contract provided for the assignment of the same claims which the debtor had against her employer in Luxembourg. By registered letter dated 20 September 2012, BNP informed the debtor’s employer of that assignment, in accordance with the Luxembourg law applicable to loan agreements.
15 By decision of the Amtsgericht Saarbrücken [Germany] of 5 February 2014, insolvency proceedings were opened against the debtor. In that context, the appointed trustee in insolvency received, from the debtor’s employer in Luxembourg, a share of her salary, in the amount of EUR 13 901.64, and deposited that amount with the Amtsgericht Merzig [Germany]. The trustee in insolvency justified that lodgement on the basis of the uncertainty as to the identity of the creditor of the said amount, each of the two parties to the main proceedings asserting preferential rights relating, in the case of TeamBank, to a claim in the amount of EUR 71 091.54 and, in the case of BNP, to a claim in the amount of EUR 31 942.95.
16 TeamBank and BNP brought, respectively, an action and a counterclaim before the Landgericht Saarbrücken [Germany], requesting the lifting of the lodgement in respect of the entire amount of EUR 13 901.64. That court upheld TeamBank’s action and dismissed BNP’s counterclaim.
17 BNP appealed against the decision of the Landgericht Saarbrücken […] to the referring court, arguing that, although the assignment to TeamBank took place before the assignment in its favour, that first assignment had not been notified to the employer in Luxembourg. It stated that, under the Luxembourg law applicable to that assignment, that notification is a requirement for the assignment of claims to be valid, such that the first assignment is without legal effect. Only the second assignment, made in favour of BNP, was properly notified, so that only BNP could request the lifting of the lodgement for the entire amount of EUR 13 901.64.
18 After having established its international jurisdiction on the basis of Article 26 of Regulation No 1215/2012, the referring court notes that the parties to the main proceedings base their claims on the provisions of Article 812(1) of the BGB which concern unjust enrichment.
19 In particular, that court has doubts as to whether the Rome I Regulation can be interpreted as determining the applicable law with regard to the third-party effects of an assignment of a claim in the case of multiple assignments, for the purpose of determining the holder of that claim.
20 In that regard, the national court states that, on that question, German doctrine is divided. According to some authors, the rule arising from Article 14(1) and (2) of that regulation is exhaustive and also covers the third-party effects of the assignment of a claim. To others, the legislative lacuna is intentional.
21 Moreover, that court notes that the application of the German rules on conflict of laws is made difficult by the repeal of Article 33 of the EGBGB by the law adapting certain provisions of private international law to the Rome I Regulation”.
Reasoning of the Court of Justice:
“23 By its four questions, which it is appropriate to examine together, the referring court asks, in substance, whether Article 14 of the Rome I Regulation must be interpreted as designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees.
24 It should be noted, first of all, that Article 14 of the Rome I Regulation replaced Article 12 of the Rome Convention, which did not concern the third-party effects of the assignment of a claim […]
25 It is appropriate to bear in mind, next, that, with regard to the interpretation of a provision of EU law, it is necessary, in accordance with settled case-law, to take into account not only its terms, but also the context in which it is set and the objectives pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements relevant to its interpretation […].
26 It is necessary to consider, first, whether, according to the wording of Article 14 of the Rome I Regulation, that article expressly designates the applicable law concerning the third-party effects of an assignment of a claim in the case of multiple assignments.
27 As can be seen from its very title (‘Voluntary assignment’), Article 14 of that regulation establishes rules on conflict governing various aspects of the assignment of cross-border claims.
28 On the one hand, in accordance with Article 14(1) of the regulation, the relationship between the assignor and the assignee in respect of a claim against the debtor is governed by the law which, under that regulation, applies to the contract between them.
29 On the other, Article 14(2) of the Rome I Regulation provides that the law governing the claim that is the subject of the assignment is to determine the assignable nature of the claim, the relationship between the assignee and the debtor, the conditions on which the assignment is to be effective against the debtor and whether the debtor’s obligations have been discharged.
30 Finally, in accordance with Article 14(3) of the Rome I Regulation, the notion of assignment within the meaning of that article includes transfers of claims, whether outright or by way of security, as well as pledges or other security rights over claims.
31 It follows, therefore, that the wording of Article 14 of the Rome I Regulation does not refer to the third-party effects of an assignment of a claim.
32 As regards the context in which Article 14 of the Rome I Regulation is set, it is clear from recital 38 of that regulation that ‘matters prior to’ an assignment of a claim, such as a prior assignment of the same claim in the context of multiple assignments, despite the fact that they may represent a ‘property aspect’ of the assignment of the claim, do not fall within the concept of a ‘relationship’ between the assignor and the assignee within the meaning of Article 14(1) of that regulation. That recital specifies that the term ‘relationship’ should be strictly limited to those aspects which are directly relevant to the assignment in question.
33 As regards the legislative history of Article 14 of the Rome I Regulation, it should be noted that, while Article 13(3) of the Commission Proposal for a regulation of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) (COM(2005) 650 final) provided that the third-party effects of an assignment of a claim were to be governed by the law of the country in which the assignor has his habitual residence at the time of the assignment or transfer, that proposal was not accepted during the negotiations within the Council.
34 In addition, Article 27(2) of that regulation requires the Commission to submit ‘a report on the question of the effectiveness of an assignment or subrogation of a claim against third parties’ and, if appropriate, ‘a proposal to amend the [Rome I Regulation] and an assessment of the impact of the provisions to be introduced’.
35 On 29 September 2016, that report, COM(2005) 650 final, was submitted by the Commission to the European Parliament, the Council and the European Economic and Social Committee, from which it emerges that there are no rules of conflict governing the third-party effects of assignments of claims and that it is necessary for the EU legislature to establish such rules.
36 On 12 March 2018, the Commission presented a Proposal for a regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final), from which it is apparent that the third-party effects of the assignment of claims could, in principle, be governed by the law of the country in which the assignor has his habitual residence.
37 It follows, therefore, that under EU law as it currently stands, the absence of rules of conflict expressly governing the third-party effects of assignments of claims is a choice of the EU legislature”.
Decision: “38 In the light of all the foregoing considerations, the answer to the questions referred is that Article 14 of the Rome I Regulation must be interpreted as not designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees”.