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What does the recent CJEU case of Lutz v Bäuerle tell us about when the art 13 defence (where the beneficiary proves that the act is subject to another law which doesn't allow a challenge) can be used in practice and whether it applies to procedural provisions such as time-bars?
Lutz v Bäuerle: C-557/13
This case involved a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling under Regulation (EC) 1346/2000, arts 4 and 13 (the EC Regulation on Insolvency). Payment was made after the date on which insolvency proceedings were opened on the basis of an attachment carried out before that date. The German liquidator brought an action to set aside an act detrimental to the interests of the creditors. The recipient argued that limitation periods or other time-bars applied to the action to set the transactions aside.
Mr Lutz (an Austrian individual) purchased a car from the Austrian subsidiary of a German car seller. He never received the car and therefore claimed in the Austrian courts for an attachment of certain of the debtor company's bank accounts in Austria. The Austrian bank paid out the monies to Mr Lutz and that payment was later challenged by the German liquidator of the company. The relevant timeline is as follows:
Under German law, any enforcement of security over the debtor's assets during the month preceding the lodging of the application to open proceedings is legally invalid once proceedings are opened.
Under Austrian law, an action to set aside a transaction must be brought within one
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