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What does Schmid v Hertel C-328/12  All ER (D) 221 (Jan) tell us about whether the EC Regulation on Insolvency applies to transactions to set aside (or other antecedent transactions ) even if the third party which benefits from that transaction is not resident in a member state (in this case Switzerland)?
In the case the Court of Justice of the European Union (CJEU) made a preliminary ruling concerning the interpretation of Council Regulation (EC) 1346/2000, art 3(1) on insolvency proceedings (the EC Regulation on Insolvency). The request had been made in the context of a dispute between Mr Schmid, acting as liquidator of the assets of Ms Zimmermann and Ms Hertel, who was resident in Switzerland, concerning an action to set a transaction aside.
The CJEU decided that:
The applicant was the liquidator of an individual debtor's assets, appointed in the insolvency proceedings opened in Germany. The liquidator brought an action in the German courts against the third party (who was resident in Switzerland, which is not a member state for the purposes of the EC Regulation on Insolvency) seeking to have a transaction set aside.
The German liquidator pursued his action to have the transaction set aside by appealing to the Bundesgerichtshof (Federal Court of Justice) in Germany. The Bundesgerichtshof stayed its proceedings to refer the following question to the CJEU for a preliminary ruling: Do the courts of the member state within the territory of which insolvency proceedings regarding the debtor's assets have been opened have jurisdiction to decide an action
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