Following a referral by the Supreme Court, the Court of Appeal in ’s-Hertogenbosch handed down a judgment last week (ECLI:NL:GHSHE:2025:976) in the ‘Heiploeg’ case. As the ‘pre-pack procedure’ followed has no legal basis, the Court held that there is no scope for the insolvency exception: the employees who were taken on by the successor have therefore retained their terms and conditions of employment.
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 any questions about employee protection or the preservation of terms and conditions of employment in the event of a transfer of undertaking? Or is your business facing serious difficulties and would you like to know what scenarios and solutions are available? If so, Team A&O and Team H&I will be happy to advise and assist you. Both teams have extensive experience and expertise in the field of transfers of undertakings, as well as in providing advice and support during restructuring and insolvency proceedings.