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

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.