Opinion of the Advocate General — ECLI:EU:C:2024:922
Date: 2024-10-24
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-431/23 – 1 
Case C-431/23 
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:  
11 July 2023 
Referring court:  
Tribunal du travail de Liège (Belgium) 
Date of the decision to refer:  
26 May 2023 
Applicants:  
AE and Others 
Defendants:  
BA, EP and RI, acting as insolvency administrators of WIBRA 
BELGIË SA 
WIBRA BELGIË SRL 
      
I. Facts 
1 WIBRA is a Netherlands retailer, operating in Belgium and the Netherlands, 
selling consumer goods of all kinds (textile, decoration, cleaning products, etc.) at 
discount prices. 
2 Following the temporary closure of its stores due to the COVID-19 pandemic, the 
Belgian subsidiary – the public limited company Wibra België (‘Wibra België 
SA’) – suffered a significant loss of turnover for 2020. At that time, it operated 81 
stores and employed 439 workers. 
3 On 20 July 2020, Wibra België SA held an extraordinary works council meeting 
and issued a press release describing a very difficult situation, the intention to 
keep some of its stores in Belgium and the need to submit a request to open 
proceedings for judicial restructuring. 
EN 
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4 On 30 July 2020, Wibra België SA lodged a request to open proceedings for 
judicial restructuring before the tribunal de l’entreprise de Gand, division de 
Dendermonde (Business Court, Ghent, Dendermonde section, Belgium) (‘the 
Business Court’). By judgment of the same day, three court officers (Messrs BA, 
EP and RI) were appointed and given the task of organising and transferring all or 
part of the company’s business. 
5 The court officers sent the Business Court the only successful offer, from the 
Netherlands company Wibra Nederland BV, which intended ‘to make a fresh 
start, in a simplified/reduced/less binding form, on the Belgian market with a 
company yet to be created, with some of the stores currently in operation’. 1 The 
offer involved the acquisition of 36 of the 81 commercial premises, including the 
company headquarters, and the takeover of 183 of the 439 employees, selected by 
the proposed transferee. 
6 On 30 September 2020, the private limited liability company Wibra België 
(‘Wibra België SRL’) was created in order to take over and ensure the 
continuation of part of Wibra België SA’s business. 
7 On 1 October 2020, a second extraordinary works council meeting of Wibra 
België SA was held in the presence of union representatives. According to Wibra 
België SA, the management and court officers thus intended to provide the 
necessary information to the employees within the framework of the application 
for approval of the takeover offer in the context of the proceedings for judicial 
restructuring by transfer under judicial supervision. 
8 On 8 October 2020, the application for approval was rejected by the Business 
Court. It held that some of the provisions of the proposed transaction were 
contrary, first, to Collective Labour Agreement No 102 of 5 October 2011 
concerning the safeguarding of employees’ rights in the event of a change of 
employer as a result of a judicial restricting by transfer under judicial supervision 
(Moniteur belge of 25 April 2013, p. 25097; ‘the CLA’) and, second, to 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 
transfers of undertakings, businesses or parts of undertakings or businesses (OJ 
2001 L 82, p. 16). 
9 On the same day, the Business Court declared Wibra België SA insolvent and 
appointed Messrs BA, EP and RI as insolvency administrators. 
10 All employees were immediately informed of the judgment and of the termination 
of their employment contract on payment of compensation in lieu of notice. 
 
1 Judgment of the Business Court, Ghent, 8 October 2020 [paragraph 5], free translation of the 
referring court. 
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11 On 9 October, notwithstanding the refusal of the Business Court to grant approval 
of the takeover offer and the judgment declaring insolvency, WIBRA announced, 
by press release, the rapid reopening of 36 stores and the re-engagement of 183 
employees under new employment contracts. 
12 On the same day, the insolvency administrators transferred some of the assets of 
Wibra België SA to Wibra België SRL, which re-engaged 183 of the 439 
dismissed employees. 
13 On 1 April 2021, some of the employees not re-engaged questioned the 
insolvency administrators on compliance with the prior information and 
consultation procedure and on the manner in which parts of the business of Wibra 
België SA were transferred to the transferee on 9 October 2020. 
14 The insolvency administrators replied that, during the proceedings for judicial 
restructuring by transfer under judicial supervision, obligations relating to 
information and consultation of workers’ representatives had been observed. 
They stated that, independently of the decision rejecting the proposed takeover, 
the Business Court had checked and approved the conduct of the proceedings and 
heard the workers’ representatives at the time of the hearing. 
15 It is apparent from the file that, since 2021, Wibra België SRL has been making 
large profits and that, since the bankruptcy, new Belgian stores have reopened 
under the WIBRA brand. 
II. Subject matter of the dispute and positions of the parties 
16 An action for damages has been brought by 60 former employees (‘the 
applicants’) against the insolvent Wibra België SA (Messrs BA, EP and RI, in 
their capacity as insolvency administrators; ‘the first defendants’) and against the 
new company, Wibra België SRL, before the referring court. 
Their forms of order sought are as follows: 
– declare that the defendants failed to fulfil their prior information and 
consultation obligations in regard to collective redundancies pursuant to CLA 
No 24 of 2 October 1975 concerning the procedure for informing and 
consulting employees in regard to collective redundancies (Moniteur belge of 
17 February 1976, No 1975100250, p. 1716) and Article 66 of the Law of 
13 February 1998 on measures in favour of employment (Moniteur belge of 
19 February 1998, No 1998012088, p. 4643; ‘the Law of 13 February 1998’); 
– declare that the transfer of business from the insolvent Wibra België SA to 
Wibra België SRL constitutes a legal transfer of an undertaking within the 
meaning of CLA No 32a of 7 June 1985 concerning the safeguarding of 
employees’ rights in the event of a change of employer as a result of the legal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-431/23 
 
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transfer of an undertaking and regulating the rights of employees re-engaged in 
the event of a takeover of assets following insolvency (Moniteur belge of 
9 August 1985, No 1985800218, p. 11528); 
– consequently, quantify the damage suffered by the applicants, establish, on that 
basis, the claims for damages brought by the applicants against the insolvent 
Wibra België SA and refer the case back to the Business Court for a ruling on 
the eligibility of those debts in the undertaking’s liabilities in insolvency; 
– order Wibra België SRL, jointly and severally or, failing that, in a personal 
capacity, to pay the amounts corresponding to the damages awarded. 
17 Wibra België SA contends that the claims are unfounded, both in so far as they 
concern an infringement of CLA No 24 relating to collective redundancies and in 
that they are based on CLA No 32a relating to the transfer of an undertaking. 
With regard to the claim relating to the lack of specific and concrete information 
on the collective redundancy, it maintains that a distinction should be made 
between the period prior to the proceedings for judicial restructuring, the period 
after the proceedings for judicial restructuring and the bankruptcy itself. 
It considers that the transaction carried out between the insolvent Wibra België 
SA and Wibra België SRL cannot be qualified as a legal transfer of an 
undertaking within the meaning of CLA No 32a, but that the rights of the re-
engaged workers must be examined in the context of a takeover of assets 
following insolvency. 
18 Wibra België SRL contends that the claims are unfounded. Pursuant to Article 65 
of the Law of 13 February 1998, the application of CLA No 24 is expressly ruled 
out in the event of insolvency. 
It also submits that the applicants may not rely on the provisions of EU law to 
impose obligations on the employer; where Directive 2001/23 has not been 
transposed into national law, its interpretation has no direct horizontal effect. 
It maintains that it cannot be held jointly and severally liable with Wibra België 
SA for the debts existing on the date of the transfer of assets and personnel, since 
the provisions applicable to the present case are set out in Chapter III of CLA 
No 32a and not in Chapter II. 
III. Law – Obligations relating to information and consultation of workers’ 
representatives in the event of collective redundancy  
19 Various national provisions provide for obligations to inform and consult workers’ 
representatives in advance in the event of collective redundancy. The objective of 
those provisions is to avoid, reduce or mitigate the consequences of collective 
redundancy, by having recourse to accompanying social measures, through a 
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greater focus on dialogue and providing full and transparent information in good 
faith. Those provisions are set out, inter alia, in CLA No 24, to which Article 66 
of the Law of 13 February 1998 refers. 
20 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of 
the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) 
establishes, in Article 2, the obligations relating to information and consultation 
incumbent on any employer contemplating collective redundancies.  
21 By judgment of 12 October 2004, Commission v Portugal (C-55/02, 
EU:C:2004:605), the Court clarified that the rules on collective redundancies 
applied to all redundancies for reasons not related to the individual workers, such 
as in the event of insolvency. 
22 In the judgment of 3 March 2011, Claes and Others (C-235/10 to C-239/10, 
EU:C:2011:119), the Court held that Articles 1 to 3 of Directive 98/59 must be 
interpreted as applying to a termination of the activities of an employing 
establishment as a result of a judicial decision ordering its dissolution and winding 
up on grounds of insolvency, even though, in the event of such a termination, 
national legislation provides for the termination of employment contracts with 
immediate effect. Until the legal personality of an establishment whose 
dissolution and winding up have been ordered has ceased to exist, the obligations 
under Articles 2 and 3 of Directive 98/59 must be fulfilled. The employer’s 
obligations pursuant to those provisions must be carried out by the management of 
the establishment in question, where it is still in place, even with limited powers 
of management over that establishment, or by its liquidator, where that 
establishment’s management has been taken over in its entirety by the liquidator. 
1. The obligations on the part of the first defenders in their capacity as 
insolvency administrators  
23 Article 65 of the Law of 13 February1998 expressly excludes the application of 
Chapter VII of that law, relating to prior information and consultation obligations, 
in the case of collective redundancies occurring in the context of insolvency 
proceedings. 
24 Similarly, Directive 98/59 does not expressly impose such obligations on an 
insolvent employer. 
25 Neither Directive 98/59, nor the Court’s interpretation of it, allow the employer to 
be made subject to prior information and consultation obligations in the event of 
insolvency. 
Directives do not have direct horizontal effect; before they are transposed into 
national law; they can be a direct source of rights but cannot impose obligations 
on individuals. 
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26 In so far as the only provisions providing for information and consultation 
obligations preceding collective redundancies do not apply in the event of 
insolvency proceedings, Wibra België SA cannot be found to have breached its 
obligations after the declaration of insolvency. 
27 Therefore, in their capacity as insolvency administrators of Wibra België SA, 
Messrs BA, EP and RI cannot be held liable for the damage claimed by the 
applicants, since they were not, in that capacity, required to comply with the 
CLAs providing for a prior consultation procedure or for a conciliation procedure 
preceding a collective redundancy. 
2. The obligations on the part of the first defenders in their capacity as court 
officers 
28 Everything else is the responsibility of Messrs BA, EP and RI in their capacity as 
court officers appointed during the proceedings for judicial restructuring. 
29 In that capacity, they negotiated the takeover of part of the business and personnel 
by the parent company, Wibra Nederland [BV]. On 21 September 2020, they 
accepted the offer of that company, which provided for the re-engagement of 183 
of the 439 members of staff. 
30 Therefore, even at the stage of the negotiations with Wibra Nederland [BV] and at 
the latest when they accepted the offer, on 21 September 2020, the first defenders 
knew or ought to have known that a collective redundancy was inevitable. 
31 Contrary to what is provided for in the event of insolvency, the information and 
consultation obligations prior to a collective redundancy are not expressly 
excluded in the event of judicial restructuring. Such obligations thus applied to 
Wibra België SA in the context of the proceedings for judicial restructuring 
ordered by the Business Court on 30 July 2020. 
32 The requirements of Article 2(3) of Directive 98/59 are incorporated in detail in 
the relevant national provisions: 
‘To enable workers’ representatives to make constructive proposals, the 
employers shall in good time during the course of the consultations: 
(a) supply them with all relevant information and 
(b) in any event notify them in writing of: 
(i) the reasons for the planned redundancies; 
(ii) the number and categories of workers to be made redundant; 
(iii) the number and categories of workers usually employed; 
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(iv) the period over which the redundancies are to be effected; 
(v) the criteria proposed for the selection of the workers to be made 
redundant in so far as national legislation and/or practice confers the power 
therefor on the employer; 
(vi) the method to be used for calculating any redundancy payments other 
than those arising out of national legislation and/or practice. …’ 
33 Wibra België SA maintains that, through the court officers, it consulted and 
informed the workers’ representatives with regard to their economic situation and 
the solutions envisaged. It refers to various meetings held after the proceedings for 
judicial restructuring were brought. 
34 However, the minutes of the meetings produced make no mention of any 
accompanying measures or information measures specific to a collective 
redundancy. 
35 The various communications from Wibra België SA and the content of the works 
council meetings held prior to the bankruptcy highlight a lack of social dialogue 
and a failure to comply with the collective redundancy procedure. 
36 There is no record of any written communication as provided for in Article 66(1) 
of the Law of 13 February 1998. Yet, on 1 October 2020, Wibra België knew, or 
ought to have known, that a collective redundancy was inevitable, that that 
redundancy was to take place following acceptance of the takeover offer in the 
context of the proceedings for judicial restructuring or, in the event of that offer 
being rejected, due to the insolvency of the company. 
37 The fact that the workers’ representatives presented oral argument at the hearing 
of 5 October 2020 that gave rise to the judgment declaring insolvency of 
8 October 2020 is not sufficient to establish compliance with the obligations at 
issue. 
38 Since the takeover offer submitted in the context of the proceedings for judicial 
restructuring was unsuccessful, the workers’ representatives could not have 
foreseen the company’s imminent bankruptcy. Thus, the legal context in which 
the transaction took place did not allow the workers’ representatives to put 
questions, properly and within a reasonable time, to company management. 
39 The workers were not provided with clear and sufficient information regarding 
their fate. At the same time, the company was preparing its restructuring; it could 
not be unaware of the impending collective redundancy and the resulting 
obligations. 
40 For the sake of completeness, contrary to what Wibra België SA maintains, the 
fact that the task of the court officers is carried out ‘under the supervision and 
authority of the court’ does not exempt them from their information and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-431/23 
 
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consultation obligations. The proceedings for judicial restructuring have no 
bearing on the management of the company, since the management of the 
undertaking remains in the hands of those responsible. 
41 The defendants’ reasoning amounts to considering that the Business Court failed 
to find an infringement of the rules on collective redundancies. However, Wibra 
België SA deliberately circumvented the court’s refusal to approve the takeover 
offer, by transferring, despite that refusal, part of its business, premises and 
personnel to Wibra België SRL, which was established beforehand for that 
purpose, and by leaving the employees not re-engaged in the care of the liquidator 
and the Fonds de fermeture d’entreprises (FFE) (Closure of Undertakings Fund) 
(and, therefore, the local authorities). 
42 It is therefore pointless to argue that the obligations incumbent on Wibra België 
SA would have been covered by a judicial review, especially since that review 
ultimately resulted in the offer submitted by the court officers being refused. 
IV. Legal categorisation of the transfer of assets from Wibra België SA to 
Wibra België SRL: legal transfer of an undertaking or sale of assets following 
insolvency? 
43 Directive 2001/23 establishes two mechanisms for the protection of workers in the 
event of transfers of undertakings: first, the takeover by the transferee of all 
personnel of the undertaking transferred (Article 4(1)); second, the transfer to the 
transferee of all rights and obligations arising from contracts of employment 
existing on the date of transfer (Article 3(1)). 
44 That directive is transposed into Belgian law, inter alia, by CLA No 32a. Article 6 
thereof provides that Chapter II, relating to the rights of employees in the event of 
a change of employer following a legal transfer of an undertaking, is to ‘apply to 
any change of employer as a result of legal transfer of an undertaking or part of 
an undertaking, except in the event [of a takeover of assets following insolvency]. 
Subject to the first subparagraph, there is a transfer within the meaning of this 
agreement where there is a transfer of an economic entity which retains its 
identity, meaning an organised grouping of resources which has the objective of 
pursuing an economic activity, whether or not that activity is central or ancillary’. 
45 The transfer of an undertaking, within the meaning of Directive 2001/23 and CLA 
No 32a, requires three elements to be present: 
– a change of employer; 
– the transfer of the undertaking or part of the undertaking; 
– the contractual origin of the transfer. The Court gave the concept of legal 
transfer a flexible interpretation to meet the objective of the directive, which is 
to protect employees in the event of transfers of undertakings, and held that that 
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directive was ‘applicable wherever, in the context of contractual relations, 
there is a change in the legal or natural person who is responsible for carrying 
on the business and who incurs the obligations of an employer towards 
employees of the undertaking’ (judgment of 15 June 1988, Bork International 
and Others, 101/87, EU:C:1988:308, paragraph 13). 
46 According to Article 7 of CLA No 32a, ‘The transferor’s rights and obligations 
arising from a contract of employment existing on the date of a transfer within the 
meaning of Article 1(1) shall, by reason of such transfer, be transferred to the 
transferee’. 
47 Article 8 provides for joint liability for debts between the transferor and transferee 
with regard to ‘debts existing on the date of a transfer within the meaning of 
Article 1(1) and arising from a contract of employment existing on that date …’. 
48 Article 11 et seq., in Chapter III, concern the situation of employees in the event 
of a takeover of assets following insolvency. In such a situation, by way of 
exception from the rules set out in Chapter II, there is neither transfer to the 
transferee of the social debts existing on the date of the transfer, or joint liability 
with the transferor.  
49 Similarly, Article 5 of Directive 2001/23 provides: 
‘Unless Member States provide otherwise, Articles 3 and 4 shall not apply to any 
transfer of an undertaking, business or part of an undertaking or business where 
the transferor is the subject of bankruptcy proceedings or any analogous 
insolvency proceedings which have been instituted with a view to the liquidation 
of the assets of the transferor and are under the supervision of a competent public 
authority (which may be an insolvency [practitioner] authorised by a competent 
public authority).’ 
50 Lastly, CLA No 102 was concluded following the entry into force of the Law of 
31 January 2009 on the continuity of undertakings (Moniteur belge of 9 February 
2009, No 2009009047, p. 8436) which established a mechanism for transfer under 
judicial supervision. 
51 In the context of the Covid-19 crisis, the legislature introduced various measures 
to help undertakings, including the ‘pre-pack’ or ‘silent bankruptcy’ procedures, 
provided for in Article XX.39/1 of the Code de droit économique (Code of 
Economic Law), in the section concerning the judicial restructuring of 
undertakings. 
52 Such procedures are preliminary to the restructuring of the undertaking and during 
which a court officer may be appointed with a view to obtaining a settlement or 
collective agreement provided that the debtor can demonstrate that the 
continuation of the undertaking is in jeopardy in the short- or long-term. 
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53 The pre-pack procedure ‘consists essentially of a two-step procedure: the first, 
generally confidential, during which a restructuring is negotiated and concluded 
with the various parties involved or with some of them and, second, by which that 
agreement is formalised within the framework of insolvency proceedings, which 
will, in principle, be brief since the restructuring will have already been drawn up 
and negotiated during the first stage’. 2 
54 The Belgian legislature thus intended to regulate the negotiation of a restructuring 
plan in a confidential manner, without any associated negative publicity (pre-pack 
plan), 3 but it did not legislate on the preparation of the transfer of the undertaking 
(pre-pack transfer). 
55 The pre-pack transfer, applicable under Netherlands law, was held to be contrary 
to Article 5 of Directive 2001/23 in the judgment of 22 June 2017, Federatie 
Nederlandse Vakvereniging and Others (C-126/16, EU:C:2017:489). According 
to the Court, ‘even though the “pre-pack” procedure at issue in the main 
proceedings was prepared before the declaration of insolvency, it was in fact put 
into effect after that declaration. Such a procedure, in fact entailing insolvency, 
may therefore be covered by the concept of “bankruptcy proceedings or any 
analogous insolvency proceedings”, within the meaning of Article 5(1) of 
Directive 2001/23’ (paragraph 46); and ‘the stage of the “pre-pack” procedure, 
such as that at issue in the main proceedings, preceding a declaration of 
insolvency, has no basis in the national legislation at issue’ (paragraph 53). 
56 According to the Court, that procedure ‘is therefore not carried out under the 
supervision of a court, but rather, as is apparent from the file submitted to the 
Court, by the undertaking’s management which conducts the negotiations and 
adopts the decisions concerning the sale of the insolvent undertaking’ 
(paragraph 54). In conclusion, ‘although appointed by a court, at the request of 
the insolvent undertaking, the prospective insolvency administrator and the 
prospective supervisory judge have no formal powers. Accordingly, they are not 
supervised by a public authority’ (paragraph 55). 
57 In the judgment of 16 May 2019, Plessers (C-509/17, EU:C:2019:424), the Court 
confirmed its case-law, on the basis of identical grounds: ‘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 transfers of 
undertakings, businesses or parts of undertakings or businesses, in particular 
Articles 3 to 5 thereof, must be interpreted as precluding national legislation, such 
as that at issue in the main proceedings, which, in the event of the transfer of an 
undertaking which has taken place in the context of proceedings for judicial 
restructuring by transfer under judicial supervision applied with a view to 
 
2 ALTER, C. and PLETINCKX, Z, ‘Loi du 21 mars 2021 modifiant le livre XX du Code de droit 
économique et le Code des Impôts sur les revenus 1992’, Journal des Tribunaux, 2021/20, 
No 6858, p. 367. 
3 Doc. parl., Ch., 2019/2020, No 1337/004, p. 10. 
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maintaining all or part of the transferor or its activity, entitles the transferee to 
choose the employees which it wishes to keep on’. 
58 In the judgment of 28 April 2022, Federatie Nederlandse Vakbeweging (Pre-pack 
procedure) (C-237/20, EU:C:2022:321), the Court reviewed its position in a case 
where an insolvent Netherlands company transferred its business, by means of the 
pre-pack procedure, to two new subsidiaries and took over the contracts of 
employment of some of the employees under less favourable conditions of 
employment. The Court held that: ‘Article 5(1) of [Directive 2001/23] must be 
interpreted as meaning that the condition which it lays down, according to which 
Articles 3 and 4 of that directive are not to apply to the transfer of an undertaking 
where the transferor is the subject of bankruptcy proceedings or any analogous 
insolvency proceedings “instituted with a view to the liquidation of the assets of 
the transferor”, is satisfied where the transfer of all or part of an undertaking is 
prepared, prior to the institution of insolvency proceedings with a view to the 
liquidation of the assets of the transferor and in the course of which that transfer 
is carried out, in the context of a pre-pack procedure which has as its primary aim 
to enable, in the insolvency proceedings, a liquidation of the undertaking as a 
going concern which satisfies to the greatest extent possible the claims of all the 
creditors and preserves employment as far as possible, provided that that pre-
pack procedure is governed by statutory or regulatory provisions’ (paragraph 55) 
and that ‘the fact that the transfer of all or part of an undertaking is prepared as 
part of a pre-pack procedure preceding the declaration of insolvency by a 
“prospective insolvency administrator”, placed under the supervision of a 
“prospective supervisory judge”, does not preclude the third condition laid down 
in Article 5(1) of Directive 2001/23 from being satisfied’ (paragraph 65). 
59 The Court held in that judgment that a pre-pack procedure, provided that it is 
governed by statutory or regulatory provisions, falls within the scope of the 
exception contained in Article 5 of Directive 2001/23. 
60 Wibra België SA is liable, in respect of each of the applicants, for damages for 
breach of its information and consultation obligations preceding a collective 
redundancy. 
61 However, in the light of the declaration of insolvency, the debts should be 
included in the liabilities in insolvency and the assets in insolvency should be 
sufficient for the applicants to obtain effective payment. 
62 Consequently, if the transaction carried out between the insolvent Wibra België 
SA and Wibra België SRL is to be regarded as a legal transfer of an undertaking, 
within the meaning of CLA No 32a, the second company will be held jointly and 
severally liable for the obligations of the first company, and thus for the debts 
existing on the date of the transfer, pursuant to Articles 7 and 8 of CLA No 32a. 
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63 In the context of the proceedings for judicial restructuring, the proposed transfer 
of assets was unsuccessful because the Business Court found it to be contrary to 
CLA No 102 and to Directive 2001/23. 
64 Notwithstanding the court’s refusal to approve the takeover of assets, the transfer 
plan prepared during the insolvency proceedings by the court officers was finally 
carried out by those same officers the day after the declaration of insolvency, but 
in their capacity as insolvency administrators. 
65 The defendants do not dispute the fact that the substance of the transaction carried 
out between the two companies, the day after the declaration of insolvency, is 
identical to that of the takeover offer. The only difference between the two 
transactions lies in the identity of the transferee but, in so far as Wibra België SRL 
is a subsidiary of the parent company, that fact is inconsequential. 
66 Specifically, the court officers accepted the offer of Wibra Nederland BV, which 
concerned the acquisition of some of the premises, company headquarters and all 
the tangible and intangible assets needed to enable that acquisition, in addition to 
the takeover of 183 of the 439 members of staff. 
67 Indisputably, that transaction must be regarded as ‘pre-pack transfer’, which 
allows the transferee to rely on the exception contained in Article 5 of Directive 
2001/23, provided that that transaction is governed by statutory or regulatory 
provisions, in accordance with the judgment of 28 April 2022, Federatie 
Nederlandse Vakbeweging (Pre-pack procedure) (C-237/20, EU:C:2022:321). 
68 As noted in the academic commentary, ‘…the judgment granting authorisation, 
which has neither the purpose nor effect of “validating” the transfer on a social 
level, does not prevent the exercise of their rights by the employees, any more than 
it calls into question the very principle of the transfer. The transfer under judicial 
supervision thus has the same effect for the employees covered by CLA No 102, as 
a legal transfer for those covered by CLA No 32a’. 4 
69 In the light of the foregoing, the transaction carried out in the present case falls 
within the scope of the exception contained in Article 5(1) of Directive 2001/23 
only if it is governed by statutory and regulatory provisions. 
70 There are no such provisions under Belgian positive law, since ArticleXX.39/1 of 
the Code of Economic Law concerns the preparatory stage (pre-pack plan) and not 
the transfer stage (pre-pack transfer).  
71 The specific character of the present case is the following: 
 
4 AYDOGDU, R. and WILDEMEERSCH, J., ‘L’arrêt Plessers de la Cour de Justice de l’Union 
Européenne: une condamnation avec sursis de la réorganisation judiciaire par transfert sous 
autorité de justice’, JLMB, 2019, p. 1269. 
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– The first part of the transaction – the preparation of the transfer – took place 
under the supervision of the court officers appointed by the Business Court in 
the context of proceedings for judicial restructuring, that is to say, governed by 
statutory provisions. 
– The second part of the transaction – the transfer of assets and employees – 
immediately followed the refusal of the Business Court to approve the 
transaction originally agreed, on a ground relating, moreover, to the protection 
of the rights of employees (refusal of the transferee to take over social 
liabilities linked to holiday pay and end-of-year bonuses). 
72 Consequently, the following question arises: does the transfer of assets prepared in 
the context of proceedings for judicial restructuring by transfer under judicial 
supervision, but in respect of which that authority refused to grant approval, fall 
within the scope of the exception contained in Article 5 of Directive 2001/23, 
where that transaction was carried out after the bankruptcy of the company 
concerned? 
V. The question referred 
73 Must 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 transfers of undertakings, businesses or parts of 
undertakings or businesses be interpreted as meaning that the condition which it 
lays down, according to which Articles 3 and 4 of that directive are not to apply to 
the transfer of an undertaking where the transferor is the subject of bankruptcy 
proceedings or any analogous insolvency proceedings instituted with a view to the 
liquidation of the assets of the transferor, is not satisfied where the transfer of all 
or part of an undertaking is prepared prior to the opening of insolvency 
proceedings with a view to the liquidation of the assets of the transferor, in the 
present case in the context of proceedings for judicial restructuring ending in a 
transfer agreement approval of which is refused by the competent court but which 
is then carried out immediately after the declaration of insolvency, outside the 
application of any statutory or regulatory provisions under national law?