Opinion of the Advocate General — ECLI:EU:C:2021:997
Date: 2021-12-09
Language of the case: Dutch
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-237/20 — 1 
Case C-237/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
5 June 2020 
Referring court:  
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer:  
29 May 2020 
Applicant:  
Federatie Nederlandse Vakbeweging 
Defendant:  
Heiploeg Seafood International BV 
Heitrans International BV 
      
Subject of the action in the main proceedings 
Under the provision of national law implementing Article 5(1) of Directive 
2001/23/EC, in the event of the transfer of an undertaking after bankruptcy, an 
employer’s rights and obligations from an employment contract do not 
automatically transfer to the transferee. At issue in the main proceedings is 
whether that exception also applies if the transfer of an undertaking declared 
bankrupt had already been prepared before the declaration of bankruptcy in a so-
called ‘pre-pack’ (for the concept of pre-pack, see paragraphs 2 and 3).  
Subject and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling under Article 267 TFEU concerns the 
preparation for bankruptcy in a pre-pack. The Court of Justice of the European 
Union (‘the Court of Justice’) has ruled, in the circumstances giving rise to the 
judgment of 22 June 2017 in Case C-126/16 Federatie Nederlandse 
Vakvereniging and Others EU:C:2017:489, that the exception provided for in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-237/20 
 
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Article 5(1) of Directive 2001/23 did not apply in the case of a pre-pack. The 
question is whether the situation is different in the circumstances of the present 
case and therefore whether that provision is applicable.  
Questions referred 
1. Must Article 5(1) of Directive 2001/23/EC be interpreted as meaning that 
the condition that ‘bankruptcy proceedings or any analogous insolvency 
proceedings … have been instituted with a view to the liquidation of the 
assets of the transferor’ has been met, where 
(i) the bankruptcy of the transferor is inevitable and the transferor is 
therefore effectively insolvent, 
(ii) under Dutch law, the objective of the bankruptcy proceedings is to 
secure the highest possible return for the joint creditors by liquidating the 
debtor’s assets, and  
(iii) in a so-called pre-pack prior to the declaration of bankruptcy, 
preparations are made for the transfer of (part of) the undertaking but it is 
only carried out after the declaration of bankruptcy, in terms of which  
(iv) prior to the declaration of bankruptcy, the prospective insolvency 
administrator appointed by the Rechtbank (District Court) must be guided by 
the interests of the joint creditors as well as by social interests such as the 
importance of job preservation, and the prospective Rechter-commissaris 
(supervisory judge), also appointed by the Rechtbank, must exercise a 
supervisory function in that regard,  
(v) the objective of the pre-pack is to enable, in the subsequent bankruptcy 
proceedings, a method of liquidation whereby (part of) the undertaking 
belonging to the assets of the transferor is sold as a going concern so as to 
obtain the highest possible return for the joint creditors and jobs are 
preserved as far as possible, and 
(vi) the structure of the procedure ensures that that objective is in fact the 
guiding principle?  
2. Must Article 5(1) of the Directive be interpreted as meaning that the 
condition that ‘the bankruptcy proceedings or any analogous insolvency 
proceedings are under the supervision of a competent public authority’ is 
fulfilled if the transfer of (part of) the undertaking is prepared in a pre-pack 
prior to the declaration of bankruptcy and is carried out after the declaration 
of bankruptcy, and  
FEDERATIE NEDERLANDSE VAKBEWEGING 
 
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(i) is monitored, prior to the declaration of bankruptcy, by a prospective 
insolvency administrator and a prospective Rechter-commissaris who have 
been appointed by the Rechtbank but who do not have legal powers,  
(ii) under Dutch law, prior to the declaration of bankruptcy, the 
prospective insolvency administrator is obliged to be guided by the interests 
of the joint creditors and by other social interests, such as the preservation of 
jobs, and the prospective Rechter-commissaris is obliged to exercise a 
supervisory function in that regard,  
(iii) the duties of the prospective insolvency administrator and the 
prospective Rechter-commissaris do not differ from those of the insolvency 
administrator and the Rechter-commissaris in a bankruptcy, 
(iv) the agreement on the basis of which the company is transferred and 
which has been prepared during a pre-pack is only concluded and executed 
after the bankruptcy has been declared, 
(v) the Rechtbank, when declaring the bankruptcy, may proceed to appoint 
an insolvency administrator or a Rechter-commissaris other than the 
prospective insolvency administrator or the prospective Rechter-
commissaris, and  
(vi) the same requirements of objectivity and independence apply to the 
insolvency administrator and the Rechter-commissaris as apply to an 
insolvency administrator and a Rechter-commissaris in a bankruptcy that 
was not preceded by a pre-pack and, irrespective of the degree of their 
involvement prior to the declaration of bankruptcy, they are obliged by 
virtue of their statutory duty to assess whether the transfer of (part of) the 
undertaking prepared prior to the declaration of bankruptcy is in the interests 
of the joint creditors, and if they answer that question in the negative, to 
decide that such a transfer will not take place, while they are also always 
entitled to decide on other grounds, for example, because other social 
interests, such as the interest of employment, are opposed to it, that the 
transfer of (part of) the undertaking prepared prior to the declaration of 
bankruptcy will not take place? 
Provisions of Union law cited 
Article 5(1) of Council Directive 2001/23/EC of 12 March 2001 on the 
approximation of the laws of the Member States relating to the safeguarding of 
employees’ rights in the event of transfer of undertakings, businesses or parts of 
undertakings or businesses  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-237/20 
 
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Provisions of national law cited 
Burgerlijk wetboek (Civil Code), Articles 7:662, 7:663 and 7:666. 
Brief summary of the facts and the procedure in the main proceedings 
1 The Heiploeg group (‘Heiploeg-old’), which operated a fish wholesale business, 
consisted of various undertakings. After the European Union imposed fines 
totalling EUR 27 082 000 on four undertakings of the group on 27 November 
2013, bankruptcy was inevitable. Following the bankruptcy, a large part of the 
business was taken over by a number of newly established undertakings, including 
the defendants (Heiploeg Seafood International BV and Heitrans International 
BV; ‘Heiploeg-new’). A significant proportion of the staff was reemployed, but 
on less favourable employment conditions.  
2 The transfer of the Heiploeg undertakings was prepared in a so-called ‘pre-pack’. 
That is a procedure which is not laid down in legislation or regulations and which 
takes place prior to the declaration of the bankruptcy of the debtor, whereby the 
sale of the company to be declared bankrupt is prepared by negotiating with 
potential buyers. A pre-pack can be distinguished from other sales transactions 
prepared prior to a declaration of bankruptcy by the fact that in a pre-pack the 
Rechtbank appoints a ‘prospective insolvency administrator’ and a ‘prospective 
Rechter-commissaris’. Their position is not regulated by law and they therefore 
have no statutory powers. However, the intention is that, when the bankruptcy is 
declared at a later date, they assume the duties of insolvency administrator and 
Rechter-commissaris. In reality, this starts in advance of the declaration, to ensure 
that the transfer of the business after the bankruptcy can take place very quickly, 
that the business activities are halted for as short a period of time as possible and 
thus that the highest possible return is guaranteed. Furthermore, it is then more 
likely that some of the staff can be reemployed.  
3 According to the case-law of the Hoge Raad (Supreme Court), the prospective 
insolvency administrator, just like the insolvency administrator who is appointed 
later, must be guided by the interests of the joint creditors and, in so doing, must 
also take account of social interests, including the interests of employment. The 
prospective Rechter-commissaris must supervise this in the same way as he is 
required to do after his formal appointment. After the bankruptcy, the insolvency 
administrator and the Rechter-commissaris are obliged by legislation to assess 
whether the transfer prepared prior to the bankruptcy declaration is in the interests 
of the joint creditors. If, in their opinion, that is not the case, they are obliged to 
decide that the transfer cannot proceed. Moreover, they are always entitled to 
decide on other grounds that a transfer prepared prior to the declaration of 
bankruptcy will not take place, for example, because of the consequences for 
employment.  
4 Heiploeg-old had been investigating whether a pre-pack could be successful from 
the moment the fine was imposed. First, parties were invited to make a bid, after 
FEDERATIE NEDERLANDSE VAKBEWEGING 
 
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which further negotiations were started with one of the three bidders. Only then, 
on 16 January 2014, did the Rechtbank Noord-Nederland (District Court, Noord-
Nederland) appoint a prospective insolvency administrator and a prospective 
Rechter-commissaris to prepare for the transfer of the business. On 24 January, 
the defendants were entered in the trade register with the negotiating parties as 
administrators. This was followed on 28 January by the bankruptcy, which lasted 
only half a day. In the middle of the following night, the agreement was signed 
which made the transfer of the old companies a reality and enabled the defendants 
to continue their activities almost without interruption.  
Main submissions of the parties to the main proceedings 
5 The applicant challenges in cassation the ruling of the gerechtshof Arnhem-
Leeuwarden (Court of Appeal, Arnhem-Leeuwarden) that Heiploeg-new was not 
bound, by virtue of the national provision transposing Article 5(1) of Directive 
2001/23, by the terms and conditions of employment applicable to its employees 
prior to the transfer. The latter provision is only applicable in the event of, first, 
the existence of bankruptcy proceedings, second, ‘proceedings which have been 
instituted with a view to the liquidation of the assets of the transferor’ and third, 
‘proceedings under the supervision of a competent public authority’. According to 
the applicant, the last two conditions are not fulfilled in the case of a pre-pack, 
since negotiations take place without a formally appointed insolvency 
administrator, after which the undertaking is de facto continued. The Court of 
Justice has already confirmed that in its judgment of 22 June 2017 in Case 
C-126/16 Federatie Nederlandse Vakvereniging and Others EU:C:2017:489.  
Brief summary of the reasons for the referral 
6 The first condition laid down in Article 5(1) of Directive 2001/23 is not at issue in 
the present case. The parties agree that Heiploeg-old was involved in bankruptcy 
proceedings. Moreover, the Gerechtshof had already ruled that bankruptcy was 
inevitable, which has been established as a fact in cassation. 
7 As regards the condition in Article 5(1) of Directive 2001/23 that there must be 
proceedings aimed at the liquidation of the assets, the referring court observes 
that, in the present case, the purpose of the pre-pack was to obtain the highest 
possible return for the benefit of the joint creditors. The prospective insolvency 
administrators investigated whether that could best be achieved not by selling 
Heiploeg-old piecemeal, but rather, by effecting the transfer through a single 
undertaking the continuity of which was guaranteed. In doing so, they also 
examined how many jobs could be preserved. The actions of the prospective 
insolvency administrators were essential for that transfer, because it meant that the 
company did not come to a standstill for more than one day. That increased the 
return.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-237/20 
 
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8 As regards the condition that the liquidation must take place under the supervision 
of a competent public authority, the referring court observes that the court which 
appointed the prospective insolvency administrators and the prospective Rechter-
commissaris stressed that they had to be guided by the interests of the joint 
creditors. Accountability had to be monitored through public reports. If it 
transpired that that objective was compromised, the court involved in the 
bankruptcy could decide to appoint different insolvency administrators and a 
different Rechter-commissaris. The fact that that did not happen shows that the 
interests of the joint creditors were paramount.  
9 Furthermore, although the transfer from Heiploeg-old to Heiploeg-new had been 
prepared during the pre-pack, the negotiations had not yet been concluded when 
the bankruptcy was declared. That did not happen until the next night. At that 
time, therefore, the insolvency administrators and the Rechter-commissaris, who 
had in the meantime been formally appointed, were legally required to be guided 
by the interests of the joint creditors and they could, on that basis, decide not to 
proceed with the transfer. Therefore, according to the referring court, the 
supervision by a competent public authority was not undermined in the present 
case by the course of events in the pre-pack prior to the declaration of bankruptcy.  
10 The referring court emphasises that, in paragraph 50 of the judgment in Federatie 
Nederlandse Vakvereniging and Others, the Court of Justice gave its ruling 
‘subject to determination by the referring court’. The referring court infers from 
this that, in any case which it is called upon to adjudicate, it must assess whether 
the case concerns a pre-pack such as that at issue in the judgment in Federatie 
Nederlandse Vakvereniging and Others or a different type of pre-pack, to which 
that judgment would not apply. Furthermore, it is of the opinion that what it stated 
in its order for reference with regard to Dutch bankruptcy law and the purpose and 
structure of the pre-pack in general was not as comprehensively submitted to the 
Court of Justice in the case that led to the judgment in Federatie Nederlandse 
Vakvereniging and Others, so that the Court of Justice was not able to take that 
into account in its judgment. It is also relevant to the question of the applicability 
of the judgment in Federatie Nederlandse Vakvereniging and Others that in the 
present case the negotiations on the transfer of the old undertaking did not take 
place with an undertaking associated with it. That was the situation in the case that 
led to the judgment in Federatie Nederlandse Vakvereniging and Others. For 
those reasons, there may be reasonable doubt as to whether the ruling of the Court 
of Justice in the judgment in Federatie Nederlandse Vakvereniging and Others 
also applies to a case such as the one at issue here.