Reference for a preliminary ruling — Directive 82/891/EEC — Articles 12 and 19 — Division of limited liability companies — Protection of the interests of the creditors of the company being divided — Nullity of the division — Actio pauliana)
In the judgment in I.G.I., delivered on 30 January 2020, the Court interpreted, for the first time, Articles 12 and 19 of the Sixth Directive 82/891 (‘the Sixth Directive’). 106 It held that those articles do not preclude 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 Article 12 of that directive, 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.
The dispute in the main proceedings was between the creditors of a company being divided and the newly formed company to which a part of the assets of the first company had been transferred. Taking the view that the division had caused the company being divided to lose a large part of its assets, those creditors brought an actio pauliana 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. That being so, they did not avail themselves of the possibility of challenging the division laid down in the national legislation implementing the Sixth Directive.
As the actio pauliana exists in parallel with the creditor protection tools provided for by EU law, the referring court raised the question, in the first place, of the relationship between such an action and Article 12 of the Sixth Directive. Under that article, the laws of the Member States must provide for an adequate system of protection for the interests of the creditors of the companies involved in a division. To that end, the Member States must at least provide that such creditors are entitled to obtain adequate safeguards where the financial situation of the companies involved in the division makes such protection necessary. In that case, as the actio pauliana was not listed amongst the protection tools provided for in the national legislation implementing Article 12, the question arose as to whether the creditors in the main proceedings were entitled to bring such an action. In the second place, the referring court had doubts as to the interpretation of Article 19 of the Sixth Directive which lays down nullity rules for divisions. In particular, it asked whether the strict conditions for invoking the nullity of a division also apply to an actio pauliana which does not affect the validity of that division but merely allows for that division to be rendered unenforceable vis-à-vis the creditors that brought that action.
As regards the tools for the protection of the creditors of a company being divided, the Court noted that Article 12 of the Sixth Directive provides for a minimum system of protection for the interests of those creditors whose claims antedate the publication of the draft terms of division and have not yet fallen due at the time of such publication. Therefore, the Member States can provide for additional protection tools. Furthermore, it is not apparent from Article 12 that a failure to avail oneself of one of the protection tools provided for in that article prevents the creditors from making use of protection tools other than the ones set out in that article. Thus, the Court concluded, in the light of the objective of the Sixth Directive consisting in protecting creditors from any prejudice that may result from that division, that Article 12 of that directive does not exclude the possibility, for the creditors of the company being divided, of bringing an actio pauliana.
Nevertheless, the Court stated that the effects of such an action must not run counter to the purpose of that provision. In that regard, it noted that Article 12 does not require the protection for the creditors of newly formed companies to be equivalent to that provided for the creditors of a company being divided. Therefore, the minimum harmonisation, under the Sixth Directive, of the protection of the interests of the creditors of companies involved in a division does not preclude, within the context of a division by the formation of a new company, priority being given to the protection of the interests of creditors of the company being divided.
As regards the nullity rules for divisions provided for in Article 19 of the Sixth Directive, the Court interpreted the concept of ‘nullity’, which is not defined in that directive, taking into account the context in which that concept occurs and the purpose of the directive. According to the Court, that concept refers to actions seeking the annulment of an act, that result in its elimination and that have an effect erga omnes. The actio pauliana brought by the creditors in the main proceedings only allows for the division, in particular the transfer of certain assets referred to in the instrument of division, to be declared unenforceable against the creditors. It does not affect the validity of that division, does not result in its elimination and does not have an effect erga omnes. Therefore, it is not covered by the concept of ‘nullity’ referred to in Article 19 of the Sixth Directive. That provision thus does not preclude such an action being brought after the division has been implemented.