Strange goings-on in Luxembourg – critical reflections on the CJEU judgment of 19 March 2026 – C-43/25 SML Maschinengesellschaft

Abstract

In its judgment of 19 March 2026, the CJEU’s Seventh Chamber ruled that Article 13 EIR 2000 (= Article 16 EIR 2015)[1] is not applicable if the provision of the lex fori concursus underlying the challenge serves to ensure subordination.[2] This settles an issue that had already been declared a matter of vital importance for German shareholder loan law.[3] In the following analysis, the decision is examined critically and it is argued that, whilst its reasoning is untenable, its outcome is to be welcomed.

[1] Unless otherwise stated, cited below are the provisions of the EIR 2000 which formed the subject matter of the CJEU judgment. All comments apply mutatis mutandis to the corresponding provisions of the EIR 2015.

[2] CJEU, 19 March 2026, C-43/25 – SML Maschinengesellschaft mbH v AK, acting as liquidator in the insolvency proceedings concerning the assets of MAPLAN Maschinenfabrik und Anlagen für Kunststofftechnik Schwerin GmbH, ECLI:EU:C:2026:220 = ZRI 2026, 351 with case note by Bitter.

[3] Kratzlmeier, NZG 2025, 307, 312 para. 23; see also Theiselmann, ZInsO 2025, 847 (“The final days of German shareholder loan law”?); Zehlicke, FD-InsR 2025, 802777 (“audible swan songs for German (insolvency) shareholder loan law”).