Heiploeg judgment - Annotation to EU Court of Justice 28 April 2022

This contribution discusses the judgment of the European Court of Justice of 28 April 2022 in the Heiploeg/FNV case. This judgment answers preliminary questions of the Supreme Court about the bankruptcy restart prepared in silence (the so-called pre-pack). Does such a pre-pack procedure fall under the bankruptcy exception of article 5 (1) Directive 2001/23/EC or can such a restart be regarded as a transfer of undertaking after all? To benefit from the bankruptcy exception in the Directive, the procedure in question must be aimed "at liquidating the assets of the transferor.

1. Introduction

Bankruptcy judges of the Netherlands: give us the pre-pack! With a contribution under this title in the Tijdschrift voor Insolventierecht over ten years ago, Tollenaar introduced the so-called pre-pack, the quietly prepared restart. I would do the Supreme Court a disservice by labeling it as (only) a bankruptcy judge, but the fact is that with its referral ruling in this case it seemed to be doing everything in its power to save the pre-pack from destruction and to breathe new life into it. The question is whether he succeeded, because the preliminary questions he put to the European Court have since been answered, but these answers once again raise questions about how to proceed with the pre-pack and even with the ordinary restart in Dutch insolvency practice.

I choose to briefly summarize the history of this judgment. This is not easy, because much has happened, both in the case law, and in the legislative field.

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