The Application of Art. 31 of Regulation (EU) 2015/848 to Cross-Border Triangular Payments. A Critical Appraisal, a Comment on the Van Buggenhout Case (C‑251/12) and a Proposal for a Better Regulation

Abstract Nowadays, payments are almost always facilitated by intermediaries. Therefore, it is crucial to investigate whether Art. 31 of Regulation (EU) 2015/848 is applicable to cross-border triangular payments to protect foreign intermediaries. However, this question is difficult to answer – the Advocate General, in expressing her Opinion for the van Buggenhout case, wrote that Art. 31 EIR 2015 is applicable to cross-border triangular transactions, while the CJEU, in deciding this case, ruled that Art. 31 EIR 2015 is not capable of doing so. Why? This paper argues that both the Advocate General and the CJEU had good intuitions, but that their views were partial and incomplete. This paper reaches two conclusions. First, in principle, Art. 31 EIR 2015 is applicable to cross-border triangular payments, even when the intermediary is not a debtor of the insolvent debtor. Secondly, and surprisingly, the application of Art. 31 EIR 2015 to cross-border triangular payments depends on the lex fori concursus . In fact, even though Art. 31 EIR 2015 contains a provision of EU substantive law, this application presupposes that the lex fori concursus does not affect the instruction that the insolvent debtor has given to the intermediary. If it does, which is the case in many Member States, the payment performed by an intermediary cannot be counted as a payment by the debtor. This paper ultimately makes a recommendation that aims at preventing the lex fori concursus from affecting the instruction that the insolvent debtor has given to the intermediary.