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The ECJ on the protection of the interests of the creditors of the company being divided and the possibility of bringing an actio pauliana: judgement of 30 January 2020 (C-394/2018)
- 03/02/2020
The ECJ ruled that ‘Article 12 of Sixth Council Directive 82/891/EEC of 17 December 1982 […] must be interpreted as not precluding the creditors of the company being divided whose credit interests antedate that division, who did not take advantage of the creditor protection tools provided for in the national legislation implementing that article, from bringing an actio pauliana after the division has been implemented, in order to obtain a declaration that the division in question has no effect against them and to bring enforcement or protective action in relation to the assets transferred to the newly formed company.
Article 19 of Directive 82/891, […] which lays down nullity rules for divisions, must be interpreted as not precluding the creditors of the company being divided from bringing, after the division has been implemented, an actio pauliana which does not affect the validity of that division but merely allows for that division to be rendered unenforceable against those creditors’.
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