Time for conclusions, TvI 2022/1 (Forum, editorial)

In the last weeks of 2021, three opinions have been delivered by Advocates General, all of which concern the position of employees of (nearly) insolvent companies. Most notable is the opinion of A-G Pitruzzella in the Heiploeg case pending before the ECJ,2 but also the two opinions in the cases FNV/Vleems3 (by A-G Drijber) and AHG/Pensioenfonds H&C4 (by A-G De Bock) pending before the Supreme Court deserve attention. Let me (too) start with a conclusion: things are not getting any clearer. In all these cases the considerable gap between the protection employees enjoy 'outside' and 'inside' bankruptcy manifests itself once again. Outside bankruptcy, the level of protection is still high and inside bankruptcy it is low, even compared to the countries around us. It is not bold to say that because of this gap it quickly becomes all or nothing, also for employees. Either they have the full protection against dismissal, including the thorough preventive dismissal test by the UWV, objective selection criteria, notice prohibitions in case of illness and pregnancy, the right to the transitional compensation, or - if their employer goes bankrupt - they have none of that. There is no in-between. This creates an area of tension, because in the so-called recovery practice, maximum restructuring opportunities are sought with all available power to give companies a second chance. If employees are not affected, as we now see with the WHOA, this reduces the chances of success. Or, as we see with the pre-pack, the boundaries of what can still be done are explored. What do the three recent opinions of various attorneys general teach us?