Bogra is a company that is active within the funeral industry. As a result of serious financial problems, an administrator (bewindvoerder) was appointed on 28 June 2017. On the same date Bogra was declared bankrupt (30 June 2017), the employment agreements of Bogra’s employees were terminated. Funico acquired (part of) Bogra’s assets on 18 July 2017 due to an asset transaction. Effective 19 July 2017, Bogra’s activities were continued by Bogra Uitvaartkisten. Some of Bogra’s ex-employees that were not offered new employment by Bogra Uitvaartkisten, filed a claim against Bogra Uitvaartkisten on the basis of a transfer of undertaking.
The court argues that the TUPE-rules do not apply to a situation of bankruptcy (Clause 7:666 Dutch Civil Code), unless a pre-pack situation similar to the Smallsteps-judgement of the European Court of Justice is the case. In this respect the court indicates that this implies that the relevant pre-pack is prepared prior to the bankruptcy and the pre-pack is executed immediately after the bankruptcy.
According to the court, the transfer of Bogra’s business had not been prepared to the very last detail prior to Bogra’s bankruptcy and the transaction did not take place immediately after the bankruptcy, but only three weeks later under the supervision of the delegated judge. As such the circumstances of the case are not similar to the Smallsteps-ruling and thus the general rule that no transfer of undertaking takes place in the event of a bankruptcy applies. The court dismisses the claim of the relevant employees.