The day after the ECJ’s AG Szpunar delivered his opinion in the case Plessers, a first analysis by Frederik De Leo was published on the Corporate Finance Lab (see here). Other versions of this blog post have now appeared on the Oxford Business Law Blog (in English) and in ‘De Juristenkrant’ (in Dutch).
In these other versions, the author discusses the possible consequences of the ECJ following its AG’s opinion from a comparative perspective. In this context, the author observes the following:
“Interesting to note is that the insolvency proceedings in the UK and Germany seem to have a better chance in complying with the interpretation of the AG. These legal systems could serve as an example for the Belgian legislator when reformulating Art. XX.86(3) WER. Since the ruling in Key2Law (UK), it has been clear that administration proceedings never fall under the categorical derogation in Regulation 8(7) TUPE (that implements Article 5(1) Directive). Furthermore, Regulation 7 TUPE uses a quasi-identical wording to the one used in Article 4(1) of the Directive, including (in §1) an explicit a priori limitation to the freedom of choice of the transferee – a safeguard the AG seems to find extremely important. In Germany, §613a(4) BGB (implementing Article 4(1) Directive) also applies to all insolvency proceedings. Just as Regulation 7 TUPE, this provision provides an explicit a priori safeguard by specifying that a termination of an employment relationship due to the transfer itself is ineffective (something which is not explicitly done in the Belgian Art. 61(3) WCO or XX.86(3) WER).”
Although the author argues that the ECJ’s judgement could render the GROG moribund, the author still finds ‘hope’ in Article 4(1) of Directive 2001/23/EC. He concludes that even if the ECJ rules that Article 61(3) WCO (now: Article 86(3) WER) violates the Directive, the GROG could still be revived under Article 4(1) of the Directive if the legislator chooses to provide extra safeguards in Article XX.86(3) WER.