On succession company in the sale of productive units


sucesion de empresa

Are there succession of business in the transmission of productive units?

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The Law 9/2015 novelties introduced in the transmission of productive units, but it did not completely eliminate some legal uncertainties. What is the response of the Courts?

In this paper we analyze the transmission production unit in bankruptcy proceedings. Particularly, We check to see if supposed business succession and what effects. Ultimately, how it affected the "labor" of the bankruptcy judge to this field and how it resolves the issue today.

The transmission company in bankruptcy proceedings it has subogatorios effects among entrepreneurs and acquiring bankrupt. These effects involve third, mainly workers. Is this your case?

  • You want to purchase a production unit? You must meet the obligations will drag its acquisition.
  • Does the employer for whom he works has bought the workplace and the previous owes wages? You should know that you can claim labor debts of up to three years before transmission.
  • Are you a bankruptcy creditor and the debtor will dispose of a productive unit? You must know how it will affect this transmission to their expectations collection.

Here they are just some of the ways in which the transmission of a production unit may affect you. And only some of the cases you should know how to operate the transmission company. Especially, following the reform of the Bankruptcy Act (LC) by Law 9/2015. Case law has already been settled, and we present how these issues are resolved.

Issue of succession company in bankruptcy

In 2.003 It was approved by the Bankruptcy Law (LC), despite the dislike of unions and social judges. This law sought to systematize “bankruptcy”.

The contest is based on the principle "match condition creditors”. According to this principle, They must be satisfied pro rata, proportionally, the rights of creditors, respecting the respective preferential position have equal under the law. For this, assets and liabilities of the bankrupt are organized to provide a fair solution to creditors. So, it is intended that the insolvent debtor to pay in proportion to their creditors, although you can get to satisfy in full.

The opposition found the law was based on it extended the jurisdiction of the mercantile judges. So, the sole and exclusive jurisdiction over bankruptcy judge matters that generally correspond to other orders was attributed.

You Álv, Secc. 1ª, rec. 226/2016, 18 May 2.016.

F.D.º 3rd.- <<Indeed, the art. 86 ter 1 Organic Law 6/1985, of 1 July, del Poder Judicial (LOPJ), has “in any case, the jurisdiction of the bankruptcy judge will be solely and exclusively in the following areas: […] 3.No. Every execution against the property and rights of the insolvent financial content, whatever the organ that had ordered “, which reiterates the art. 8.3º LC>>.

That was how it began problem of "labor" of the bankruptcy judge, generated widespread controversy between business and social Judges Judges.

What is business succession in the transmission of productive units?

Stipulates the art. 44 AND, that

<<1. The change of ownership of a business, a workplace or an independent production unit not in itself terminate the employment relationship, the new employer subrogated to the rights and Social Security labor and obligations of the previous, including pension commitments, under the terms provided in specific legislation, and, and general, all obligations in supplementary social protection has acquired the assignor>>.

This arrangement presents no problem when what is transmitted is a company. But if the transmission is intended a portion thereof, The issue is complicated.Will the new employer on all or part of the rights and obligations of the previous subrogates?

AAP León n.º 122/2017, of 12 December, defining the production unit:

F.D.º 3rd.- <<[…] business activity concentrating a set of material resources: property, maquinaria, tools; humans: workers, managers; and legal: grants, concessions, administrative authorizations and contracts. […] cover all these elements, conveniently organized, They conduct a business and production activity susceptible transmission>>.

Until the 26 May 2.015, issue should be resolved in the Settlement Plan. Alternative, Article 149.2 LC (actual 149.4) stipulated that:

  • Transmission production unit represents the succession of company employment effects.
  • The bankruptcy judge may decide that the purchaser is not subrogated to the part of the labor debt assumed by the social fund.
  • To ensure the viability of the activity, assignee and workers' representatives may sign agreements for the collective modification of working conditions.

How the courts resolved the transfer of productive units?

So things, the Commercial Courts came authorizing the transfer of production units without succession company.

The pronouncements of the bankruptcy judge, usually they had administrative or social significance. The LC considered this a fair price, because he understood that the transfer of production units:

  • Facilitated business continuity.
  • Thereby, maintaining jobs.
  • Therefore, It had a positive impact on the overall economy.
  • And improved expectations for the recovery of bankruptcy creditors.

It is"modus operandi " He started a purposive interpretation law. The LC and amendments were in favor of the sale of productive units. Thus, the commercial court understood that should facilitate transmission, releasing loads.

Commercial Court No. 5 Barcelona, in Auto,fr 7 July 2.016:

F.D.º 5th.- <<[…] from the point of view of an economic analysis of law […], is revealed quite glaringly illogical and wasteful defending those positions full company succession – and not limited- of all labor debts and Social Security was insolvent>>.

Commercial Court No. 7 Madrid, in Auto,fr 6 July 2.016:

<<[…] reforms […] They head to try to facilitate the transfer of an undertaking, it will be very difficult if whoever acquires it has to answer all the labor and social security debt.

It does not seem possible that the standard insist both an end and then provided an anti-regulation " so it can be understood that when the art. 149.4 LC mentions the succession of business can materialize this effect to contracts transferred, no other than […].

Else would, as he pointed out some doctrine (Sancho Gargallo), convert the institution of succession Company privilege or special security law, discouraging the purchase of companies or productive units in societies where competition for cargo may incur debts to Social Security>>.

This approach facilitated the transfer of production units and reinforced the principle "match condition creditors”.

However, picked sharp criticism, by deprotecting workers. Which he led to the AP and Social Courts, apply other means, consisting of the full corporate succession.

AAP Valencia, of 7 June 2.016.

<<Ello It does not preclude considering that such a pronouncement of business bankruptcy judges based, in affecting the labor issues, not be more than merely a preliminary and non-binding for social jurisdiction judges in what is a matter of jurisdiction, as it happens in other areas of our legal system.

De facto, It is to see thattogether with the resolutions of the Provincial Courts concerning approval of settlement plans, coexist decisions of the High Courts of Justice to resolve the issue of business succession, result of appeals filed by workers within the contest and defend their rights>>.

Thereby, social order preferred to protect workers and public credit. A coast, Of course, to hinder the transmission of productive units and give priority to public creditor -TGSS-.

Be readily understood that the situation created a serious legal uncertainty. Depending on the venue in which the dispute raised, the law applied in one way or another.

Who is the competent court to determine the succession of business and its effects?

So things, determine who is the competent judge of business succession and its impact is essential to addressing these issues. Based on purposive interpretation, the Commercial Courts claimed jurisdiction.

You Álv, Secc. 1ª, of 31 March 2.016, rec. 113/2016:

<<Esta Sala […], understands that business succession must be declared by the Mercantile Judge, It is competent to decide in the field of art. 149.2 LC, if the purchaser is exempt from debts related to employment and social security.

And we come to this conclusion considering that The main purpose of the contest, […], It is the preservation of the industrial fabric and maintaining jobs in the company. The new acquirer must offer facilities to start a new journey […]>>.

Faced with this position, TS reiterated that social jurisdiction is competent to rule on the succession of business and its effects on assumptions transmission production units within a bankruptcy. In this sense, It pioneered the STS 29 October 2.014.

STS, Sala 4ª, of 29 October 2.014, rec.1573/2013.

<<Ultimately, Whatever the circumstances in which it developed the collective termination of contracts of workers in the framework of a bankruptcy of a company, and the liquidation of the assets of this, the question whether there has been subsequently or not a business succession (art. 44 AND) It is the responsibility of the social jurisdiction>>.

This judgment opens the way to other, as the SSTS 11 January 2.017, rec. 1689/2015; of 5 July 2.017, rec. 563/2015, of 11 January 2.018, rec. 3090/2015; or 27 February 2.018, rec. 112/2016.

In this regard he also expressed, repeatedly, the Special Chamber Competition Conflict (art. 42 LOPJ). Explains the issue in a very precise manner the following Judgment.

STS, of 18 May 2.017, rec. 1645/2015.

<<[…] the bankruptcy judge is exceptionally competent to hear individual actions for termination of employment contract, but only when cumulatively they meet certain requirements, among which it is that the action is directed “against the insolvent, since heading against a generator and several liability business group whose members are not declared bankrupt […], demand outstrips, both in material terms and subjective, the [objeto] referred to in Article 64.10 of the Bankruptcy Act (ATS / Conflicts Room 9 December 2015 -Conflict 25/2015- and 9 March 2016 -Conflict 1/2016-)>>.

How does the transmission operates production units after the Law 9/2015?

The Law 9/2015, of 25 May, of urgent measures in insolvency matters, operated major reforms in the LC. But he said it came to ease the transfer of businesses, the fact is that supposed an obstacle to it.

Perhaps, the most substantial change was operated in the art. 149, explained above. Those extra rules (some), they became mandatory. Namely, that made mandatory and automatic business succession to labor and social security purposes. The dispute was so close we came analyzing.

Now, the power of the bankruptcy judge to limit labor debts transferred to the production unit is limited to exonerate the purchaser to reimburse the Fogasa the sums paid to its new employees, wage debt in respect of the previous company.

What effect does the succession of business in the transmission of production unit?

As determined by law, the transmission of the production unit within the insolvency proceedings, mainly it involves:

  • Subrogation the new employer on contracts, as well as administrative authorizations and licenses, linked to the activities.
  • Company succession to labor and social security purposes.

TSJ Valencia, Social Chamber, Sentencia n.º 995/2016, of 3 May.

<<[…] in cases of transmission of the production unit insolvent Bankruptcy is the standard that determines that the employment effects article is applicable 44 Part A ( articles 149.4, 146 to .3 LC in the wording given by Law 9/2015 of 25 May) and does so even though the Court of Justice of the European Union in its order of 28 January 2015 (Case C-688/13 ), He said the sale of production unit in bankruptcy could allow any failure to pay debts and facing Social Security, if so decided by the bankruptcy judge. However, our legislature has opted for a more protectionist system is confirmed after reform 2015 […] >>.

This line followed The TSJ of Galicia 16 June 2.017, rec. 325/2017.

Social Chamber of the High Court of Andalusia, Judgment 22 June 2.017:

<<The sale of production units in liquidation that is constitutive of business succession in any case carries with it the obligation of the purchaser to be subrogated in all labor and social security debts, including those resulting from contracts extinguished before disposal work since neither the settlement plan, or after the bankruptcy judge to approve or modify, They can obviate the existence of succession company nor the consequences art. 44 AND the anuda>>.

Ultimately, subrogation rights and obligations occurs imperative mode, and so repeatedly stated by the Supreme Court.

STS 14 March 2.017, Sala 4ª, Resource 229/2015, citing the STS de 23 September 2.014, resource 4514/2007:

<<[…] Company succession, regulated in Article 44 Workers Statute , requires employers which becomes the new owner of the company, the workplace or an independent production unit of the same, subrogation on labor rights and social security that had the previous owner with employees, subrogation operating “opelegis” without requiring the existence of an express agreement between the parties, without prejudice to the responsibilities for the assignor and assignee referred to in paragraph 3 the same article 44>>.

The nature of this provision is reiterated in the most recent case law.

STS n.º 209/2018, Sala 4ª, of 27 February 2.018.

<< […] The aforementioned provision is a mandatory rule so that, only in the case in which there was a provision to establish that in these particular circumstances of companies in receivership company succession does not occur, it would not operate admitted that the phenomenon of succession>>.

The state of affairs today.

The Law 9/2015 He came to solve this interpretive controversy.

Now, Pacific is the exclusivity of bankruptcy jurisdiction is limited to the effects "to enter ". Therefore, action to demand labor or social security to the purchaser of productive units entrepreneur rights is settled before the social jurisdiction.

On the other hand, the principle of continuity of transmission activity production units applies in bankruptcy proceedings. So, the acquirer succeeds to the position of the bankrupt, limited only by the amount paid FOGASA. Thereby, They are protected the rights of workers and public satisfaction creditor.

In exchange, the purchase of production units is less attractive. The buyer must be informed of labor costs and social security will assume, to calculate the value of their investment. done this, such a charge generally deducted the price of its bid. Therefore, the number of deals and the value thereof is decreased. By selling cheaper production units, bankruptcy creditors see their income diminished. Everybody, except labor and TGSS, to be charged in full its debt to having assumed the new employer.

turns around and gives to the previous situation. On the one hand, unions, and TGSS workers benefit at the expense of other creditors. On the other hand, although the Law 9/2015 said come to favor the transmission of productive units, It has made this operation very uninteresting and companies that could be viable eventually disappear.

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