Note to European Court of Justice April 28, 2022, JAR 2022/127

Heiploeg case. Pre-pack. Liquidation assets transferor. Transfer of business. Intended receiver. Intended supervisory judge. [Directive 2001/23/EC art. 3 (1), 5 (1); BW art. 7:663, 7:666 (1) sub a].

On January 16, 2014, the court appoints two prospective trustees as silent administrators of Heiploeg. They investigate whether, and if so, how the business of Heiploeg can be transferred 'going concern'. The prospective transferee registers the new company (Heiploeg-new) with the Chamber of Commerce on 21 January 2014. That same day, the court declares Heiploeg bankrupt. 210 of the 300 employees join Heiploeg-new at less favorable terms of employment. In these proceedings, FNV claims a declaratory judgment that the employees of Heiploeg have entered the service of Heiploeg-new with retention of their employment conditions. The question that divides the parties is whether the pre-pack meets the exception to the rule that employees in a transfer of undertaking enter the employment of the transferee by operation of law with retention of their terms of employment. In its judgment of May 29, 2020 ("JAR" 2020/163), the Supreme Court put preliminary questions to the EU Court of Justice on this issue. The Court considers that in order for a pre-pack procedure to fall under the exception of Art. 5 (1) Directive 2001/23/EC and not be considered a transfer of undertaking, the condition that the procedure is aimed "at liquidating the assets of the transferor" must be met. This is the case if the transfer (...)

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