It’s not the first time a bank has fallen foul of the European Insolvency Regulation (EIR 2015) when a foreign client came forward. See for instance my blog at https://bobwessels.nl/blog/2024-10-doc1-spanish-banks-beware-of-insolvent-dutch-nationals-with-holiday-homes/. This time, the case concerns a German bank (Sparkasse Emsland, located in Meppen, Germany) with an appeal in the Netherlands, filed against an IP referred to as “[the trustee] q.q. (in his capacity as trustee in the bankruptcy of [bankrupt].” (The anonymisation rules used by Dutch courts make a ruling not only difficult but also tedious to read.) Anyway, let’s call the insolvency practitioner C and the insolvent debtor F.
Sparkasse was appealing a judgment rendered by the Overijssel District Court on 13 March 2024. The facts underlying that judgment: F was declared bankrupt in the Netherlands on 4 April 2018. In late September 2020, he registered with Sparkasse, Germany, to open a bank account. F provided proof that he had been resident in Germany since 28 September 2020. The bank account was opened on 1 October that year. Funds were deposited, withdrawn, and transferred from the account, and PIN payments were made. F incorporated a company on 29 September 2020. This GmbH (let’s call it J) was registered on the German commercial register in May 2021. F was a director of J until 23 September 2021. From 6 November 2020, F’s Sparkasse bank account received several payments from recycling companies and from 1 December 2020, regular transfers ensued between F and J’s Sparkasse bank accounts.
On 2 September 2021, over three years after the adjudication of F’s bankruptcy, C (the IP) informed Sparkasse that F had been declared bankrupt in the Netherlands. Sparkasse blocked and closed F’s bank account and, after deducting costs, transferred the remaining credit balance to the insolvency estate. On 6 March 2023, C requested payment from Sparkasse of the total amount of all deposits made to F’s bank account, but Sparkasse failed to comply. The bank defended itself by arguing that it had been unaware of F’s bankruptcy, as it had only been registered in the Central Insolvency Register in the Netherlands. This was a natural starting point for court proceedings. C asked the court to order Sparkasse to pay the estate €70,251.73, plus interest and costs, representing the total withdrawals, payments, and transfers from F’s Sparkasse account, minus any reversed amounts and the credit balance transferred to the estate when the account was closed. The court granted the IP’s claims.
In its appeal, Sparkasse raised three objections to the court’s judgment:
1. That PIN payments and transfers, which Sparkasse carried out on F’s behalf, did not fall within the scope of Article 31 of the EIR 2015 (“Honouring of an obligation to a debtor”).
2. That the IP was obliged to register F’s bankruptcy in Germany under Article 28 of the EIR 2015 (“Publication in a Member State”) and Article 29 of the EIR 2015 (“Registration in public registers of another Member State”).
3. That an exception must be made for a savings bank acting in good faith.
The Court of Appeal decided the bank’s case early this year. First, it extensively explained its international jurisdiction (finding that F’s COMI was in the Netherlands) as well as the applicable Dutch insolvency law in this case. Under the Netherlands Bankruptcy Act, debtors lose the right to dispose of and manage their own assets, so as from 4 April 2018, F was no longer authorised to manage funds ultimately belonging to the estate, including withdrawing or transferring funds from the Sparkasse bank account.
The court also noted that Dutch law stipulates the estate is not liable for the debtor’s obligations arising after bankruptcy, except where the estate benefits from them (the “principle of fixation”). It explained that this principle of fixation applied strictly and in principle, even if the other party was unaware of the bankruptcy, because the Dutch legislature had chosen as its starting point the protection of the estate and creditors who rely on the estate for recourse.
The Court of Appeal assumed a lecturer’s hat and explained that there was an exception to the principle that the legal position at the start of the bankruptcy declaration is fixed where it concerns a payment to the bankrupt before the publication of the bankruptcy, by a third party unfamiliar with the bankruptcy. In that case, payment must be made in fulfillment of an obligation that arose before the bankruptcy, the court said. But the latter did not apply in Sparkasse‘s case to the execution of a payment order, where the payment order was issued on or after the date of the bankruptcy declaration.
That meant that the IP could claim payment from the bank if the bankrupt issued a payment order on or after the date of bankruptcy and the bank executed it despite the bankrupt’s lack of authority. In that case, the estate retained a right to satisfaction of the claim based on the original credit balance.
To support its arguments, the Court of Appeal referred to case law from the Court of Justice of the European Union (cases from 2013 and 2025), which showed that Article 31 of the EIR 2015 cannot be interpreted as meaning that all transactions debited from F’s bank account (deduction of charges, debit card payments, cash withdrawals and transfers) fell within its scope. The European case law did not support the bank’s position that debit card payments are exempt from Article 31 because they involve the immediate delivery of the purchased goods, the court concluded. In the case of cash withdrawals, protecting the estate against unlawful withdrawals after the commencement of bankruptcy, prevails over protecting bona fide third parties.
Regarding the Dutch IP’s disclosure and registration obligations under Articles 28 and 29 of the EIR 2015, the court decided that these only apply if the debtor has an “establishment” in Germany. Sparkasse provided numerous facts to support the claim that F had such an establishment, including that F himself offered products or services on the German recycling market and received business payments into his private bank account. The court was not convinced and said it was insufficient evidence of an establishment; at most, it indicated a temporary economic activity on F’s part. In the given circumstances, it also did not constitute the required structure with a minimum of organisation and a certain stability for conducting economic activity. Insofar as the obligations under Articles 28 and 29 of the EIR 2015 applied in the event that the debtor’s establishment was in another Member State (in Germany rather than the Netherlands), this only arose after the opening of insolvency proceedings and so was not the case here.
Finally, Sparkasse argued that an exception should be made to the Dutch principle of fixation in this case, because not only was a foreign banking institution involved, but the bankrupt also had an establishment in the country of the foreign banking institution. The Court of Appeal did not yield. It explained that F registered with Sparkasse with a German address, but this, combined with the other facts, was not enough to assume that F was fully authorised. The Dutch rule of protecting third parties unaware of the bankruptcy was not a general principle, but protection of the insolvent estate and creditors was paramount. The court saw no reason to rule differently if the third party was a foreign banking institution that acted out of ignorance of the bankruptcy.
Because Sparkasse lost its case, the court ordered it to pay the costs of the appeal (over €7,000, including the IP’s salary and court fees). All in all, not counting the expense of its own lawyer, it was a costly lesson for the bank. If, in the banking world, the outcome is viewed as “unfair”, some banks may like to consider sending the European Commission a well-considered position paper. It could be made part of the internal discussions regarding the review of the EIR 2015, which is scheduled for this year.
References
Court of Appeal Arnhem-Leeuwarden 13 January 2026, ECLI:NL:GHARL:2026:167.
CJEU 19 September 2013, case C-251/12; ECLI:EU:C:2013:566.
CJEU 27 March 2025, case C-186/244; ECLI:EU:C:2025:211.
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on 11 February 2026. See www.globalrestructuringreview.com