1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 2001 L 82, p. 16).
2 The request has been made in proceedings between, on the one hand, AE, CO, DU and 19 other former employees dismissed by WIBRA BELGIË SA and, on the other hand, BA, EP and RI, acting as insolvency practitioners for WIBRA BELGIË SA, and WIBRA BELGIË SRL, concerning an alleged breach, by those companies, of the obligations to inform and to consult staff representatives in the context of their collective redundancy.
3 Recital 3 of Directive 2001/23 states: ‘It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.’
4 Article 1(1) of that directive provides as follows: ‘(a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger. (b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive 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. …’
5 Under Article 3(1) of the directive: ‘The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.’
6 The first subparagraph of Article 4(1) of that directive provides: ‘The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.’
7 Article 5 of Directive 2001/23 provides: ‘1. 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). … 4. Member States shall take appropriate measures with a view to preventing misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this Directive.’
8 The convention collective de travail no 32 bis, du 7 juin 1985, concernant le maintien des droits des travailleurs en cas de changement d’employeur du fait d’un transfert conventionnel d’entreprise et réglant les droits des travailleurs repris en cas de reprise de l’actif après faillite (Collective Labour Agreement 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 transfer of an undertaking and regulating the rights of employees re-engaged in the event of a takeover of assets following insolvency), transposed Directive 2001/23 into Belgian law.
9 Under Article 1 of that collective labour agreement, in the version applicable to the dispute in the main proceedings (‘CLA No 32a’): ‘The purpose of this collective labour agreement is … to ensure: 1° first, the safeguarding of employees’ rights in the event of a change of employer as a result of the legal transfer of an undertaking or part of an undertaking; 2° second, certain rights of employees re-engaged in the event of a takeover of assets following insolvency.’
10 Chapter II of CLA No 32a comprises Articles 6 to 10 thereof.
11 The first paragraph of Article 6 of CLA No 32a states that Chapter II thereof, which concerns employees’ rights in the event of a change of employer following a legal transfer of an undertaking, is to ‘apply to any change of employer resulting from a legal transfer of an undertaking or part of an undertaking, except in the cases referred to in Chapter III of this collective labour agreement’.
12 Article 7 of CLA No 32a provides: ‘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.’
13 Under Article 8 of CLA No 32a: ‘The transferor and the transferee shall be jointly and severally liable for any debts existing on the date of the transfer within the meaning of Article 1(1) and arising from contracts of employment existing on that date …’
14 Article 9 of CLA No 32a provides: ‘A change of employer shall not in itself constitute grounds for dismissal by the transferor or the transferees. Employees whose employer changes may, however, be dismissed on serious grounds or for economic, technical or organisational reasons resulting in changes in the employment sector.’
15 In accordance with Chapter III of CLA No 32a, there is no transfer of the social security liabilities of the transferor to the transferee, nor is the transferee jointly and severally liable for those liabilities with the transferor where the transfer of the undertaking takes place after insolvency.
16 On 30 July 2020, proceedings for the judicial restructuring of WIBRA BELGIË SA were opened by the tribunal de l’entreprise de Gand (Business Court, Ghent, Belgium), at the request of that company, which was granted a stay until 30 October 2020, in accordance with the provisions of the code de droit économique (Code of Economic Law (‘the CDE’)) governing those proceedings, in the version applicable to the facts of the main proceedings. On the same day, that court designated BA, EP and RI as court-appointed administrators with the task of organising and transferring all or part of that company’s activities.
17 On 21 September 2020, those three court-appointed administrators accepted the offer to take over WIBRA BELGIË SA, submitted by its parent company WIBRA NEDERLAND BV; that offer covered 36 of WIBRA BELGIË SA’s commercial premises and 183 of its 439 employees.
18 On 30 September 2020, WIBRA BELGIË SRL was set up to take over and ensure the continuation of part of the activities previously pursued by WIBRA BELGIË SA.
19 On 8 October 2020, the request of the court-appointed administrators seeking the approval of the takeover offer referred to in paragraph 17 of the present judgment was rejected by the tribunal de l’entreprise de Gand (Business Court, Ghent). That court held that that offer was contrary to the convention collective de travail no 102, du 5 octobre 2011, concernant le maintien des droits des travailleurs en cas de changement d’employeur du fait d’une réorganisation judiciaire par transfert sous autorité de justice (Collective Labour Agreement No 102 of 5 October 2011 concerning the safeguarding of employees’ rights in the event of a change of employer resulting from judicial restructuring by transfer under judicial supervision) and to Directive 2001/23 in that it provided that the obligations concerning the payment of ‘holiday pay’ and of the ‘end-of-year bonus’ of employees of WIBRA BELGIË SA who were to be transferred, and covering their work up until the date of approval of that offer, would be borne, on a pro rata temporis basis, by WIBRA BELGIË SA.
20 By another judgment of that day, the tribunal de l’entreprise de Gand (Business Court, Ghent) declared WIBRA BELGIË SA insolvent and appointed BA, EP and RI as insolvency practitioners. It is apparent from the order for reference that that company’s staff were immediately informed of that judgment and of the decision to terminate their employment contracts, subject to the payment of compensation in lieu of notice.
21 On 9 October 2020, those insolvency practitioners transferred part of the tangible and intangible assets of WIBRA BELGIË SA to WIBRA BELGIË SRL. Of all the staff who were dismissed, that is to say 439 individuals, 183 were re-engaged by WIBRA BELGIË SRL. In a letter sent in the course of 2021 to the legal representative of certain former employees of WIBRA BELGIË SA, those insolvency practitioners stated that no staff or activities had been transferred during the judicial restructuring proceedings.
22 On 21 June 2021, the applicants in the main proceedings, of which there are 22, who are former employees of WIBRA BELGIË SA and were not re-engaged by WIBRA BELGIË SRL, brought proceedings against those two companies before the tribunal du travail de Liège (Labour Court, Liège, Belgium), which is the referring court. On 30 June 2021, 38 other employees in the same situation applied for leave to intervene in the main proceedings.
23 Those 60 employees maintain that the obligations to inform and to consult employee representatives in the event of collective redundancies were not complied with during the proceedings for the judicial restructuring of WIBRA BELGIË SA, which amounts to a breach of contract, entitling them to compensation. In addition, those employees consider that WIBRA BELGIË SRL should be declared jointly and severally liable for that compensation.
24 The referring court notes that, although Belgian law specifically excludes compliance with the obligations to inform and to consult staff representatives in the event of collective redundancies where the company concerned is declared insolvent, such an exclusion is not provided for in the context of judicial restructuring proceedings. Accordingly, the referring court takes the view that WIBRA BELGIË SA had, prior to the delivery of the judgment declaring insolvency and notwithstanding the judicial restructuring proceedings, the obligation to implement the procedure for informing and consulting employee representatives prior to the collective redundancy at issue in the main proceedings, which it did not do. Consequently, WIBRA BELGIË SA is liable to pay, in respect of each of the 60 applicants concerned, damages for breach of its information and consultation obligations preceding a collective redundancy.
25 In that context, the referring court asks whether WIBRA BELGIË SRL can also be held to be liable for that obligation to pay compensation.
26 It notes, in that regard, in the first place, that that company had no responsibility for the operation of WIBRA BELGIË SA. Therefore, WIBRA BELGIË SRL can be held liable for WIBRA BELGIË SA’s breach of contract only in so far as it is considered to be the transferee of the rights and obligations of WIBRA BELGIË SA in the context of a legal transfer of undertakings, within the meaning of Articles 7 and 8 of CLA No 32a.
27 In the second place, that court points out that, notwithstanding the refusal of the court to approve the takeover offer submitted in the judicial restructuring proceedings, the proposed partial transfer of WIBRA BELGIË SA prepared in the course of those proceedings was ultimately implemented on the day following the delivery of the judgment declaring insolvency, by the same court-appointed administrators as those who had previously requested approval of the takeover offer corresponding to that project, now acting as insolvency practitioners.
28 In the third place, that court considers that such a procedure must be classified as a ‘pre-pack transfer’, which should allow the transferee to rely on the derogation provided for in Article 5 of Directive 2001/23 so long as that procedure is governed by statutory or regulatory provisions. According to the referring court, such provisions did not exist in Belgian law at the time of the facts at issue in the main proceedings.
29 Thus, although the preparatory phase of the transfer of WIBRA BELGIË SA took place under the supervision of the insolvency practitioners appointed by the court having jurisdiction in the context of the judicial restructuring proceedings and can therefore be regarded as having been governed by statutory provisions, the second phase of that process, namely the transfer of assets and staff, immediately followed that court’s refusal to approve the takeover offer prepared in the context of those judicial restructuring proceedings.
30 However, it is also apparent from the order for reference that no legal framework was in force on the date on which the transfer at issue in the main proceedings took place, since it was the Law of 21 March 2021 that inserted those provisions into that code.
31 In those circumstances, the tribunal du travail de Liège (Labour Court, Liège) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 5(1) of [Directive 2001/23] 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 [court having jurisdiction] but which is then carried out immediately after the declaration of insolvency, outside the application of any statutory or regulatory provisions under national law?’
32 By its sole question, the referring court asks, in essence, whether Article 5(1) of Directive 2001/23 must be interpreted as meaning that it applies in a situation where insolvency proceedings follow proceedings for judicial restructuring in the course of which an agreement for the partial transfer of the undertaking concerned was prepared, but was not approved by the court having jurisdiction, and was subsequently carried out once the declaration of insolvency was issued.
33 It should be pointed out from the outset that, as is apparent from recital 3 thereof, Directive 2001/23 seeks to protect employees, in particular by ensuring that their rights are safeguarded in the event of a change of employer (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 38).
34 To that end, the first subparagraph of Article 3(1) of the directive provides that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of the transfer of an undertaking are, by reason of such transfer, to be transferred to the transferee. Article 4(1) of that directive protects employees from dismissal solely on the basis of the transfer by either the transferor or transferee (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 39).
35 By way of derogation, Article 5(1) of Directive 2001/23 states that the protection scheme referred to in Articles 3 and 4 of the directive does not apply to transfers of undertakings carried out in the circumstances specified within that provision, unless Member States provide otherwise (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 40).
36 In view of the fact that Article 5(1), in principle, renders inapplicable the scheme for the protection of employees in relation to certain transfers of undertakings, and thus negates the main objective underlying Directive 2001/23, that provision must necessarily be interpreted strictly (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 41 and the case-law cited).
37 Under that provision, unless Member States provide otherwise, the simultaneous transfer of rights and obligations arising from contracts of employment concluded with the transferor, provided for in Article 3 of Directive 2001/23, and the prohibition in principle of dismissals, laid down in Article 4 thereof, are not to apply to the transfer of an undertaking 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 its assets and are conducted under the supervision of a competent public authority.
38 While it is apparent from the very wording of the first part of Article 5(1) of Directive 2001/23 that Member States may choose, in circumstances which justify the application of that provision, to implement the scheme for the protection of employees established in Articles 3 and 4 of that directive, it must be held that, in the case in the main proceedings, the Kingdom of Belgium has not made use of such an option.
39 It follows that Article 5(1) of Directive 2001/23, in so far as it permits derogations from the scheme for the protection of employees, applies to a case such as that at issue in the main proceedings, provided however that the procedure concerned satisfies the conditions laid down in that provision.
40 In that regard, Article 5(1) of Directive 2001/23 lays down three cumulative conditions, namely, first, the transferor must be the subject of bankruptcy proceedings or analogous insolvency proceedings, second, those proceedings must have been instituted with a view to the liquidation of the transferor’s assets, and, third, those proceedings must be conducted under the supervision of a competent public authority (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 44).
41 As regards, in the first place, the condition that the transferor must be the subject of bankruptcy proceedings or any analogous insolvency proceedings, that condition may not, having regard to the requirement of strict interpretation set out in paragraph 36 of the present judgment, extend to a process preparing for insolvency proceedings but not resulting in a declaration of insolvency. By contrast, a transfer procedure which, even though it has been prepared before the declaration of insolvency, is implemented after that declaration, actually entails insolvency and may therefore be covered by the concept of ‘bankruptcy proceedings’, within the meaning of Article 5(1) of Directive 2001/23 (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraphs 45 and 46).
42 In that regard, it would appear from the file submitted to the Court, first, that proceedings for judicial restructuring, within the meaning of Belgian law, cannot be regarded as insolvency proceedings and, second, that, although those proceedings may lead to the insolvency of the undertaking concerned, such an outcome is neither automatic nor certain. In such circumstances, those proceedings, as such, do not appear to satisfy the first of the conditions laid down in Article 5(1) of Directive 2001/23 (see, to that effect, judgment of 16 May 2019, Plessers, C‑509/17, EU:C:2019:424, paragraphs 42, 43 and 48).
43 That said, it is also apparent from the file available to the Court that, in the present case, the conditions for the transfer of an undertaking had been presented in a project which was submitted in the context of the proceedings for judicial restructuring of WIBRA BELGIË SA, which preceded the declaration of its insolvency, and that the transfer which took place after that declaration of insolvency was carried out in accordance with those conditions.
44 It is therefore for the referring court to determine whether, having regard, in particular, to the Belgian law applicable during the period concerned, the preparation of a takeover plan in the context of the proceedings for the judicial restructuring of WIBRA BELGIË SA, on the one hand, and the implementation of that plan in the course of that company’s insolvency proceedings, on the other, must be regarded as one and the same procedure which implies, from the outset, that that company is declared insolvent, on account of its established insolvency, before the transfer of the undertaking is carried out. In such a case, that procedure in its entirety may be considered to be bankruptcy proceedings or any analogous insolvency proceedings within the meaning of Article 5(1) of Directive 2001/23. Otherwise, only the insolvency proceedings relating to WIBRA BELGIË SA may be covered by that provision.
45 In the second place, Article 5(1) of Directive 2001/23 requires the bankruptcy proceedings or any analogous insolvency proceedings to be instituted with a view to liquidation of the assets of the transferor.
46 In that regard, it should be noted, first, that a procedure aimed at ensuring the continuation of the undertaking in question does not satisfy that requirement (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 47 and the case-law cited).
47 The Court has already had the opportunity to specify, as regards the differences between a procedure aimed at ensuring the continuation of the undertaking and a procedure seeking the liquidation of its assets on account of its established insolvency, that the former procedure is designed to preserve the operational character of the undertaking or of its viable units, whereas the second procedure is aimed at maximising satisfaction of creditors’ collective claims. Although there may be some overlap between those two objectives within the aims of any given procedure, the primary objective of a procedure aimed at ensuring the continuation of the undertaking’s activities is, in any event, the safeguarding of the undertaking concerned (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 48).
48 Thus, bankruptcy or analogous insolvency proceedings may have the aim of maximising satisfaction of creditors’ collective claims even where they pursue, incidentally, the objective of transferring the undertaking as a going concern while preserving, as far as possible, employment (see, to that effect, judgment of 28 April 2022, Federatie Nederlandse Vakbeweging (Pre-pack procedure), C‑237/20, EU:C:2022:321, paragraph 55).
49 It is also apparent from the case-law of the Court that it must be established not only that the primary objective of bankruptcy proceedings or analogous insolvency proceedings is to satisfy to the greatest extent possible the creditors’ claims, but also that the implementation of such a transfer actually enables that primary objective to be achieved (see, to that effect, judgment of 28 April 2022, Federatie Nederlandse Vakbeweging (Pre-pack procedure), C‑237/20, EU:C:2022:321, paragraph 53).
50 It is therefore for the referring court to ascertain, taking into account all the relevant factors, whether the successive sets of proceedings at issue in the main proceedings, taken individually or as a whole, were intended to maximise the satisfaction of creditors’ collective claims and enabled that objective to be achieved, within the meaning of the case-law cited in the preceding paragraph, or, on the contrary, principally, sought to safeguard the operational character of the undertaking or of its viable units.
51 In that regard, it would appear from the file submitted to the Court that, under Belgian law, unlike insolvency proceedings, judicial restructuring proceedings are not primarily intended to ensure maximum satisfaction of creditors’ claims. It is moreover apparent from the order for reference that, in the present case, the judgment by which court-appointed administrators were designated - following the application for restructuring lodged by WIBRA BELGIË SA - had entrusted to them the task of organising and transferring all or part of that company’s activities.
52 Moreover, if the referring court were to take the view, as has been stated in paragraph 44 of the present judgment, that the judicial restructuring proceedings and the insolvency proceedings relating to WIBRA BELGIË SA constituted, together, bankruptcy or analogous insolvency proceedings for the purposes of Article 5(1) of Directive 2001/23, it would be for that court to examine whether such proceedings satisfy, as such, the condition referred to in paragraph 45 of the present judgment, which means that the primary objective of those proceedings, taken as a whole, was to obtain the highest possible reimbursement for all the transferor’s creditors (see, to that effect, judgment of 28 April 2022, Federatie Nederlandse Vakbeweging (Pre-pack procedure), C‑237/20, EU:C:2022:321, paragraphs 52 and 53).
53 In order to examine whether the condition referred to in paragraph 45 of the present judgment is met, in the present case, the referring court may, in particular, take account of the fact that WIBRA BELGIË SRL was set up with the objective of taking over and pursuing some of the activities formerly carried out by WIBRA BELGIË SA and that a press release dated the day after that company was declared insolvent, stemming from ‘WIBRA’, announced that the insolvency practitioners who had been appointed after that declaration of insolvency ‘had approved … after consultation, WIBRA’s takeover plan’ concerning the transfer of the Belgian seat of WIBRA BELGIË SA and of 36 shops and the re-engagement of 183 employees, stating that ‘this fresh start puts an end to the uncertainty regarding the continuation of WIBRA’s activities in Belgium’.
54 Second, it is also necessary to ensure that the bankruptcy or analogous insolvency proceedings at issue in the main proceedings are governed by statutory or regulatory provisions which ensure that their implementation does not give rise to legal uncertainty (see, to that effect, judgment of 28 April 2022, Federatie Nederlandse Vakbeweging (Pre-pack procedure), C‑237/20, EU:C:2022:321, paragraphs 54 and 55).
55 In that regard, subject to verification by the referring court, it is not apparent from the file submitted to the Court that the judicial restructuring proceedings or insolvency proceedings, as established in Belgian law, lack a sufficient statutory or regulatory framework to satisfy the condition set out in the preceding paragraph.
56 By contrast, if the referring court were to reach the conclusion that, in the case in the main proceedings, the judicial restructuring proceedings and the insolvency proceedings relating to WIBRA BELGIË SA, taken together, are capable of amounting to bankruptcy or analogous insolvency proceedings, for the purposes of Article 5(1) of Directive 2001/23, it would be for that court to determine whether those two sets of proceedings pursued in succession are governed by a sufficient statutory or regulatory framework.
57 In the third and last place, as regards the condition that the proceedings referred to in Article 5(1) of Directive 2001/23 must be conducted under the supervision of a competent public authority, it should be noted, first, that it is apparent from the case-law of the Court that that is not the case where the court-appointed administrator is responsible for putting in place and carrying out the transfer of an undertaking in the name and on behalf of the debtor and where he or she must seek offers while ensuring that priority is given to maintaining all or part of the undertaking’s activity, and while having regard to the rights of creditors, as appears to be the case in the context of judicial restructuring proceedings, within the meaning of Belgian law (see, to that effect, judgment of 16 May 2019, Plessers, C‑509/17, EU:C:2019:424, paragraphs 46 and 47).
58 Second, if the referring court were to reach the conclusion that the bankruptcy or analogous insolvency proceedings, for the purposes of Article 5(1) of Directive 2001/23, are made up of, in the present case, the combined judicial restructuring proceedings and insolvency proceedings relating to WIBRA BELGIË SA, it would be for that court to determine whether such a combination, taken as a whole, is subject to the supervision of a competent public authority. According to the case-law of the Court, such supervision is demonstrated by, first of all, the fact that a court defines the duties of the administrators during the preliminary stage of those combined judicial restructuring proceedings and insolvency proceedings and reviews the exercise of those duties when the insolvency proceedings in the strict sense have been instituted, next, the fact that the transfer of an undertaking is carried out only after the opening of the insolvency proceedings, which enables the insolvency practitioner to contest them, and, last, the fact that the administrators acting in the preparatory phase are responsible for their actions under the same conditions as those applicable to insolvency practitioners. By contrast, in order to determine whether such proceedings are subject to the supervision of a competent public authority, it is not appropriate to attach decisive importance to the fact that the signing of the transfer agreement takes place shortly after the insolvency proceedings have been instituted or to the fact that the administrators acting during the preparatory stage of those proceedings have no legal powers (see, to that effect, judgment of 28 April 2022, Federatie Nederlandse Vakbeweging (Pre-pack procedure), C‑237/20, EU:C:2022:321, paragraphs 59 and 62 to 64).
59 Last, and in order to provide the referring court with all the information necessary for resolving the dispute in the main proceedings, it should be borne in mind that, according to Article 5(4) of Directive 2001/23, Member States are to take appropriate measures with a view to preventing misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in that directive.
60 In the present case, WIBRA BELGIË SA requested the opening of judicial restructuring proceedings, governed by Belgian law, which offer guarantees to employees, with a view to preparing for the transfer of all or part of that company’s activities. It is apparent from the order for reference that it is following the tribunal de l’entreprise de Gand (Business Court, Ghent) refusal to approve the takeover offer which had been accepted by the court-appointed administrators designated in those proceedings that that company applied to that court for a declaration of insolvency, thus instituting proceedings which, under Belgian law, grant employees guarantees different from those provided for in the context of judicial restructuring proceedings.
61 However, it is also apparent from the order for reference that that takeover offer came from a company linked to WIBRA BELGIË SA, without any indication being given as to whether a search for other potential transferees had been conducted, and that the reason for the refusal to approve that offer was that it was contrary to several mandatory provisions relating to the protection of employees potentially affected by the envisaged transfer of an undertaking.
62 In those circumstances, it is for the referring court to ascertain, in the light of all the relevant information, whether, in the present case, there has been any misuse of insolvency proceedings in such a way as to deprive the employees at issue in the main proceedings of the rights arising from Directive 2001/23.
63 In the light of all the foregoing considerations, the answer to the question referred is that Article 5(1) of Directive 2001/23 must be interpreted as applying in a situation where insolvency proceedings follow judicial restructuring proceedings in the course of which an agreement for the partial transfer of the undertaking concerned was prepared, but was not approved by the court having jurisdiction, and was then implemented once the insolvency had been declared, provided that the bankruptcy proceedings or analogous insolvency proceedings, which have been conducted, are actually instituted with a view to the liquidation of the assets of the transferor, that those proceedings are under the supervision of a competent public authority and that recourse to those proceedings cannot be regarded as abusive.
64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.