The Administrative Board of the Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie.
Date: 1985-02-07
11 A COMPARISON OF THE VARIOUS LANGUAGE VERSIONS OF THE PROVISION IN QUESTION SHOWS THAT THERE ARE TERMINOLOGICAL DIVERGENCIES BETWEEN THEM AS REGARDS THE TRANSFER OF UNDERTAKINGS . WHILST THE GERMAN ( ' VERTRAGLICHE UBERTRAGUNG ' ), FRENCH ( ' CESSION CONVENTIONNELLE ' ), GREEK ( ' SNMSSATIKH EKXVRHSH ' ), ITALIAN ( ' CESSIONE CONTRATTUALE ' ) AND DUTCH ( ' OVERDRACHT KRACHTENS OVEREENKOMST ' ) VERSIONS CLEARLY REFER ONLY TO      TRANSFERS RESULTING FROM A CONTRACT , FROM WHICH IT MAY BE CONCLUDED THAT OTHER TYPES OF TRANSFERS SUCH AS THOSE RESULTING FROM AN ADMINISTRATIVE MEASURE OR JUDICIAL DECISION ARE EXCLUDED , THE ENGLISH ( ' LEGAL TRANSFER ' ) AND DANISH ( ' OVERDRAGELSE ' ) VERSIONS APPEAR TO INDICATE THAT THE SCOPE IS WIDER .
12 MOREOVER , IT SHOULD BE NOTED THAT THE CONCEPT OF CONTRACTUAL TRANSFER IS DIFFERENT IN THE INSOLVENCY LAWS OF THE VARIOUS MEMBER STATES , AS HAS BECOME APPARENT IN THESE PROCEEDINGS . WHILST CERTAIN MEMBER STATES CONSIDER THAT IN CERTAIN CIRCUMSTANCES A SALE EFFECTED IN THE CONTEXT OF LIQUIDATION PROCEEDINGS IS A NORMAL CONTRACTUAL SALE , EVEN IF JUDICIAL INTERVENTION IS A PRELIMINARY REQUIREMENT FOR CONCLUSION OF SUCH A CONTRACT , UNDER OTHER LEGAL SYSTEMS THE SALE IS IN CERTAIN CIRCUMSTANCES REGARDED AS TAKING PLACE BY VIRTUE OF A MEASURE ADOPTED BY A PUBLIC AUTHORITY .
13 IN VIEW OF THOSE DIVERGENCIES , THE SCOPE OF THE PROVISION AT ISSUE CANNOT BE APPRAISED SOLELY ON THE BASIS OF A TEXTUAL INTERPRETATION . ITS MEANING MUST THEREFORE BE CLARIFIED IN THE LIGHT OF THE SCHEME OF THE DIRECTIVE , ITS PLACE IN THE SYSTEM OF COMMUNITY LAW IN RELATION TO THE RULES ON INSOLVENCY , AND ITS PURPOSE .

THE RELATIONSHIP BETWEEN THE DIRECTIVE AND INSOLVENCY LAW
23 IT IS APPARENT FROM THE FOREGOING CONSIDERATIONS THAT A SERIOUS RISK OF GENERAL DETERIORATION IN WORKING AND LIVING CONDITIONS OF WORKERS , CONTRARY TO THE SOCIAL OBJECTIVES OF THE TREATY , CANNOT BE RULED OUT . IT CANNOT THEREFORE BE CONCLUDED THAT DIRECTIVE NO 77/187 IMPOSES ON THE MEMBER STATES THE OBLIGATION TO EXTEND THE RULES LAID DOWN THEREIN TO TRANSFERS OF UNDERTAKINGS , BUSINESSES OR PARTS OF BUSINESSES TAKING PLACE IN THE CONTEXT OF INSOLVENCY PROCEEDINGS INSTITUTED WITH A VIEW TO THE LIQUIDATION OF THE ASSETS OF THE TRANSFEROR UNDER THE SUPERVISION OF THE COMPETENT JUDICIAL AUTHORITY .
28 IT IS TO BE NOTED THAT PROCEEDINGS SUCH AS THOSE RELATING TO A ' SURSEANCE VAN BETALING '  HAVE CERTAIN FEATURES IN COMMON WITH LIQUIDATION PROCEEDINGS , IN PARTICULAR INASMUCH AS THE PROCEEDINGS ARE , IN BOTH CASES , OF A JUDICIAL NATURE . THEY ARE , HOWEVER , DIFFERENT FROM LIQUIDATION PROCEEDINGS IN SO FAR AS THE SUPERVISION EXERCISED BY THE COURT OVER THE COMMENCEMENT AND THE COURSE OF SUCH PROCEEDINGS IS MORE LIMITED . MOREOVER , THE OBJECT OF SUCH PROCEEDINGS IS PRIMARILY TO SAFEGUARD THE ASSETS OF THE INSOLVENT UNDERTAKING AND , WHERE POSSIBLE , TO CONTINUE THE BUSINESS OF THE UNDERTAKING BY MEANS OF A COLLECTIVE SUSPENSION OF THE PAYMENT OF DEBTS WITH A VIEW TO REACHING A SETTLEMENT WHICH WILL ENSURE THAT THE UNDERTAKING IS ABLE TO CONTINUE OPERATING IN THE FUTURE . IF NO SUCH SETTLEMENT IS REACHED , PROCEEDINGS OF THIS KIND MAY , AS IN THE PRESENT CASE , LEAD TO THE DEBTOR ' S BEING PUT INTO LIQUIDATION .
29 IT FOLLOWS THAT THE REASONS FOR NOT APPLYING THE DIRECTIVE TO TRANSFERS OF UNDERTAKINGS TAKING PLACE IN LIQUIDATION PROCEEDINGS ARE NOT APPLICABLE TO PROCEEDINGS OF THIS KIND TAKING PLACE AT AN EARLIER STAGE .
37 THAT INTERPRETATION IS CONFIRMED BY THE FACT THAT ARTICLE 3 ( 3 ) EXPRESSLY EXCLUDES FROM THE SCOPE OF PARAGRAPH ( 1 ), THE PROVISION AT ISSUE , ' EMPLOYEES '  RIGHTS TO OLD-AGE , INVALIDITY OR SURVIVORS '  BENEFITS UNDER SUPPLEMENTARY COMPANY OR INTER-COMPANY PENSION SCHEMES OUTSIDE THE STATUTORY SOCIAL SECURITY SCHEMES IN MEMBER STATES ' . THE EXISTENCE OF SUCH A SPECIFIC CLAUSE , LIMITING THE SCOPE OF THE BASIC RULE , LEADS TO THE CONCLUSION THAT ARTICLE 3 ( 1 ) RELATES TO ALL THE RIGHTS OF EMPLOYEES WHICH ARE NOT COVERED BY THAT EXCEPTION , WHETHER THOSE RIGHTS AROSE AFTER OR BEFORE THE TRANSFER OF THE UNDERTAKING .