After referral by the Supreme Court, the 's-Hertogenbosch Court of Appeal ruled last week(ECLI:NL:GHSHE:2025:976) in the "Heiploeg" case. Because the 'pre-pack procedure' followed has no legal basis, the court ruled there was no room for the bankruptcy exception: the employees who joined the successor company retained their employment conditions in the process.
Groningen shrimp processor Heiploeg went bankrupt in 2014 after the bankruptcy was prepared in a so-called pre-pack, also known as a flash bankruptcy. The 'silent administrator' had already investigated the possibilities of a relaunch and the risks and opportunities had been quietly assessed while in the meantime the company was continued. As a result, once Heiploeg was bankrupt, it was able to make a quick restart immediately: the company was sold and continued by another company.
As a result of the bankruptcy, 90 out of 300 employees lost their jobs. Although the remaining employees were able to start working for the successor company, they had to agree (beforehand) to terms of employment that were less favourable to them.
Trade union FNV subsequently initiated proceedings and claimed that employees should retain their original rights.
Although the European Directive (2001/23/EC) provides for an exception to employee protection in case of transfer of undertaking due to bankruptcy, this exception does not apply in case of pre-pack.
More than 11 years after the bankruptcy, the Court's ruling has finally answered the pressing question about employee protection and retention of employment conditions in the event of a transfer of undertaking after bankruptcy by pre-pack.
Do you have questions about employee protection or the preservation of employment conditions during a transfer of undertaking? Or is your company in dire straits and do you want to know what scenarios and solutions are available? Then Team A&O and Team H&I will be happy to advise and guide you. Both teams have extensive experience and expertise in the field of transfer of undertaking and advice and guidance in restructuring and bankruptcy.