![]() ![]() Second, if, after the division is completed, a creditor’s claim is not satisfied, the recipient companies shall be jointly and severally liable (‘subsidiary liability’) either in full or up to the amount of the net assets transferred to each company, for the satisfaction of the claim (‘ ex post measures’). This two-level protection system works as follows:įirst, creditors whose claims existed before the draft terms of the division were published in the business register but were not yet due at the time of the publication may request adequate safeguards for their claims, provided that the financial situation of the company being divided, and that of the company whose obligations resulting from creditors’ claims are to be transferred in accordance with the draft terms of division, make such protection necessary (‘ ex ante measures’). This post looks into the recent judgment of the Court of Justice of the European Union (CJEU) in case C - 394/18, ‘IGI’, and discusses the question of whether national legislators are (or should be) allowed under EU company law to introduce additional protective measures, such as an actio pauliana, for creditors of companies undertaking a division under the regime of the Directive 2017/1132/EU (the ‘Directive’).Īrt 146 of the Directive, dealing with the protection of creditors, requires an adequate system for the protection of creditors of companies divided into two or more companies, as each company resulting from the division, including those against which creditors hold claims, may become less solvent as a result of the division. ![]()
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