Creditor Protection and Divisions – Did the CJEU Get It Right?

Alexandropoulou Antigoni () and Winner Martin ()
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Alexandropoulou Antigoni: Associate Professor, European University Cyprus, Nicosia; Chair of the Company Law Committee of the Council of Bars and Law Societies of Europe. The views and opinions expressed in this article are those of the author.Cyprus
Winner Martin: Professor, Vienna University of Economics and Business; Chairman of the Austrian Takeover Commission.Germany

European Company and Financial Law Review, 2021, vol. 18, issue 4, 588-607

Abstract: The CJEU’s I.G.I. decision deals with an important aspect of creditor protection in divisions. The Court holds that the actio pauliana under Italian law may be applied to divisions, notwithstanding that such a protective measure is not foreseen in art. 146 and 153 Directive 2017/1132/EU. We argue that the Directive’s ex post protective measures should be understood as fully harmonizing provisions. The decision fails to strike the right balance between the interests of all relevant stakeholders involved, especially between different groups of creditors, and unduly impairs legal certainty. However, if one takes the decision as a basis, the judgment gives Member States considerable room to introduce or maintain additional safeguards in their national legal systems. We show that national legislators should not give in to this temptation, neither for domestic nor for cross-border divisions.

Date: 2021
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DOI: 10.1515/ecfr-2021-0021

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