Opinion of Mr Advocate General Van Gerven delivered on 30 May 1991

1 Original language: Duich.

2 OJ L 61, p. 26.

3 For further information about CIGS, I refer to the documents in Case 22/87 Commission v Italy [1989] ECR 143. That case raised the question whether the Italian legislation which guarantees payment by CIGS is a system of guarantee as required by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to tne protection of employees in the event of the insolvency of their employer (OJ L 283, p. 23).

4 The Court has already considered this provision in its judgment in Case 23/84 Commission v Italy [1986] ECR 2291. That case raised the question whether that provision provided sufficient protection for the interests (more precisely, rights to old-age benefits of workers and former workers under supplementary social security schemes) provided for in the second subparagraph of Anide 3(3) of Directive 77/187. The Court rejected the Commission's argument that this was not the case.

5 Article 2112 of the Italian Civel Code was last amended by Law No 428 of 29 December 1990 (Suppl. ordinario GURI No 10 of 12 January 1991). I will return to this point in footnote 31.

6 GURI No 286 of 10 December 1986.

7 GURI No 32 of 9 February 1987.

8 This is in fact a special bankruptcy procedure which is declared applicable (or commenced) by a court but which is conducted under the supervision of an administrative authority owing to the particular character of the undertakings concerned (which, according to the Commission in its written observations, are, in particular, banks, insurance companies and certain public undertakings; see also paragraph 17 and footnote 30 below). The procedure for compulsory administrative winding-up is governed by Article 194 et seq. of the Royal Decree quoted in the following footnote.

9 For all these procedures, see Royal Decree No 267 of 16 March 1942 (GURI No 81 of 6 April 1942), as repeatedly amended.

10 GURI No 36 of 6 February 1979.

11 GURI No 94 of 4 April 1979.

12 See above, footnote 7.

13 Jozef Spijkers v Gebroeden Benedik Abattoir CV and Another [l9Sb] ECR 1119.

14 Judgment in Case 135/83 H. B. M. Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie [1985) ECR 469.

15 Translator's note: the term used in the Dutch version of the directive is overdracht krachtens overeenkomst and in the French text cession conventionnelle

16 OJ L 48, p. 29.

17 [1985] ECR at p. 475.

18 See in this regard N. J. Polak, Faillissementirechl, third revised edition, 1986, at p. 149 et seq.

19 Case 19/83 Knud Wendelboe and Othrn v L J. Music ApS, in liquidation [1985] ECR 457, paragraph 10; Case 179/83 Induuritbond FNV and Another v Netherlands State [1985] ECR 511; Case 186/83 Arie Bonen and Others v Rotterdamsche Droogdok Maatschappij BKĮ1985] ECR 519.

20 Judgment of 11 July 1985 in Case 105/84 Foreningen af Arbejdsledere i Danmark v AIS Danmols Inventar, in liquidation.

21 In the casc of Italy, see paragraph 5.

22 It is sufficient to note here that, broadly, a distinction may be drawn between procedures which, like the surséance van beuling procedure and/or the preventief concordaat, are designed to prevent liquidation and procedures which, like liquidation or forceo administrative liquidation, are designed to distribute the remaining assets (and, of course, any deficit) amongst the creditors. In the case of the firstmentioned procedures, the situation is one in which there are only liquidity problems or reversible problems of solvency which may be remedied by a collective suspension of payments and/or the partial (and conditional) remission of debts. In the case of the secondmentioned procedures, there are serious and irreversible problems of solvency, which suggest that the remaining assets are likely to be lost.

23 Sec also the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 16 September 1988 (OJ L 319, p. 9), which likewise is not applicable to bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings.

24 Judgment of 22 February 1979 in Case 133/78 Henri Gourdain v Franz /VW/er[1979] ECR 733.

25 This definition corresponds word for word with ihat given by Mr Jenard in his report on the Brussels Convention (OJ 1979, C 59, p. 1, at page 12); Article 1(2) excludes bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings, i.e. those proceedings which, depending on the syslem of law involved, are based on the suspension of payments, the insolvency of the debtor or his inability to raise credit, and which involve the judicial authorities for the purpose either of compulsory and collective liquidation of the assets or simply of supervision.

26 Bulletin of the European Communities supplement 2/82.

27 As I have already stated, in the Abels case the Court had to consider the surséance procedure as it is regulated in Netherlands law, that is to say a procedure which is designed to prevent liquidation and is comparable to the Italian amministrazione contrai/ata procedure (paragraph 5).

28 In some countries, suspension of payments is accompanied by a preventative agreement whereby it is also intended to resolve reversible problems of solvency, for example by a partial remission of debts. In the latter case, otner countries have a special preventative composition procedure. See also footnote 20.

29 The situation is the same under the Italian amministrazione controllata procedure (Article 187 of Royal Decree No 267) or under the concordato preventivo procedure (Anieles 160 and 161 of Decree No 267).

30 If it were not so treated, there would be the additional risk that debtors would seek application of bankruptcy proceedings, instead of a special administration procedure, in order to escape the application of the directive, although the special administration procedure offers a more appropriate framework for preserving jobs as far as possible.

31 For example, in Italy, in ihe case of compulsory administrative liquidation, already referred to above: see paragraph 5 and footnote 7.

32 See also the list of procedures for credit institutions in difficulties, set out in the proposal for a Council Directive concerning the reorganization and the winding-up of credit institutions and deposit-guarantee schemes (OJ 1988 C 36, p. I).

33 At the hearing the Commission pointed out the scope of Article 2112 of the Italian Civil Code was altered by Law No 428 of 29 December 1990 in so far as the provision is no longer applicable to transfers of undertakings under special administration if such transfers take place after the undertaking ceases trading. However, the Italian Government denied that in making that change the Italian legislature was taking the Commission's position: Article 2112 would not be applicable once the public authorities found that the undertaking was in a state of crisis, which in practice was always the case with undertakings placed under special administration.

34 Judgment of 5 May 1988 in Joined Cases 144/87 and 145/87 Harry Berg and Another v Ivo Marten Bessehen [1988) ECR 2559.

35 Judgment of 10 February 1988 in Case 324/86 Foreningen af Arbejdsledere i Danmarkv Daddy's Dance Hall AIS [1988] ECR 739.

36 On this point, see V. Bertrand: Transfert det contrau de travail et ceition d'entreprise, 1988, p. 108 et seq.