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

European Company Law Journal, Forthcoming

7 Pages Posted: 26 Mar 2020 Last revised: 2 Apr 2020

See all articles by Nicola de Luca

Nicola de Luca

LUISS Guido Carli University - Faculty of Law; Università degli Studi della Campania - Luigi Vanvitelli

Date Written: March 1, 2020

Abstract

With IGI v Cicenia C 394/18, a decision of Jan. 30th, 2020, the Court of Justice of the European Union has solved questions concerning an action to set aside a division (so-called actio pauliana). The Court holds that neither the objection possibility 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 summarizing the facts, the background debate and the reasoning of the CJEU, 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 the division. Unless EU law would not consider creditor protection and grant them at least the right to request adequate guarantees, in case the division affects them negatively.

Keywords: Action to Set Aside, Actio Pauliana, Division, IGI C Cicenia, Nullity of Division, Objection of Creditors

Suggested Citation

de Luca, Nicola, Actio Pauliana And Divisions (IGI v Cicenia, C-394/18): Not Everything That Is Done, Is Well Done (March 1, 2020). European Company Law Journal, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3546781 or http://dx.doi.org/10.2139/ssrn.3546781

Nicola De Luca (Contact Author)

LUISS Guido Carli University - Faculty of Law ( email )

Via Parenzo, 11
Rome, Roma 00100
Italy

Università degli Studi della Campania - Luigi Vanvitelli ( email )

Via Antonio Vivaldi, 43
Caserta CE, Caserta 81100
Italy

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