Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 June 2020 — Federatie Nederlandse Vakbeweging v Heiploeg Seafood International BV, Heitrans International BV

(Case C-237/20)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Federatie Nederlandse Vakbeweging

Defendants: Heiploeg Seafood International BV, Heitrans International BV

Questions referred

Must Article 5(1) of Directive 2001/23/EC 1 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

the bankruptcy of the transferor is inevitable and the transferor is therefore effectively insolvent

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

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

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,

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

the structure of the procedure ensures that that objective is in fact the guiding principle?

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

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,

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,

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,

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,

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

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?

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1     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).