Actio Pauliana And Divisions (IGI c Cicenia, C-394/18): Not Everything That Is Done, Is Well Done

By IGI c Cicenia C 394/18, a decision of Jan. 30th, 2020, the European Court of Justice has solved questions concerning an action to set aside a division (so-called actio pauliana). The Court holds that neither the objection granted before the division is implemented, nor the rules establishing the cases in which “nullity” of a division may be declared preclude creditors from bringing an actio pauliana, in cases where this is appropriate: indeed, such an action does not affect the validity of a division but merely allows for that division to be rendered unenforceable against the acting creditors. The note, after reviewing the case, the background debate and the reasoning of the ECJ, marks that an actio pauliana is aimed at reversing the effects of the asset transfer, not at causing the recipient company to cease to exist. Also, it underlines that the joint and several liability of the recipient companies is not equivalent to an action to set aside: unless EU law would not consider creditors’ protection and grant them at least the right to request adequate guarantees, in case the division affects them negatively. Download the note from here or from ssnr.com at the following link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3546781