Judgment of the Court Third Chamber of 28 April 2022, Federatie Nederlandse Vakbeweging Pre-pack procedure, C-237/20

• Date: 28 April 2022
• Year: 2022

18

Second, the bringing of such an action does not require there to be a spec ific infringement of the

rights which a person derives from the GDPR. In order to recognise that an entity has standing to

bring proceedings, it is sufficient to claim that the data processing concerned is liable to affect the

rights which identified or identifiable natural persons derive from that regulation, without it being

necessary to prove actual harm suffered by the data subject, in a given situation, by the infringement

of his or her rights. Thus, in the light of the objective pursued by the GDPR, authorising consumer

protection associations, such as the Federal Union, to bring, by means of a representative action

mechanism, actions seeking to have processing contrary to the provisions of that regulation brought

to an end, independently of the infringement of the rights of a person individually and specifically

affected by that infringement, undoubtedly contributes to strengthening the rights of data subjects

and ensuring that they enjoy a high level of protection.

Finally, the Court states that the infringement of a rule relating to the protection of personal data may

at the same time give rise to an infringement of rules on consumer protection or unfair commercial

practices. The GDPR

39

allows the Member States to exercise their option to provide for consumer

protection associations to be authorised to bring proceedings against infringements of the rights

provided for by the GDPR through rules intended to protect consumers or combat unfair commercial

practices.

VI. SOCIAL POLICY: PROTECTION OF EMPLOYEES IN THE EVENT OF THE

INSOLVENCY OF THEIR EMPLOYER

Judgment of the Court (Third Chamber) of 28 April 2022, Federatie Nederlandse

Vakbeweging (Pre-pack procedure), C-237/20

Link to the complete text of the judgment

Reference for a preliminary ruling – Directive 2001/23/EC – Articles 3 to 5 – Transfers of undertakings –

Safeguarding of employees’ rights – Exceptions – Insolvency proceedings – ‘Pre-pack’ – Survival of an

undertaking – Transfer of (part of) an undertaking following a declaration of insolvency preceded by a pre-

pack

The Heiploeg group (‘Heiploeg-former’) consisted of several companies engaged in the wholesale

trade in fish and seafood. In 2011 and 2012, Heiploeg-former suffered significant financial losses and,

in 2013, a fine of EUR 27 million was imposed on four companies in that group for having participated

in a cartel. Since no bank agreed to finance the payment of that fine, a pre-pack procedure was

initiated.

In Netherlands law, the pre-pack is a practice derived from case-law which is intended to enable, in the

insolvency proceedings, a liquidation of the undertaking as a going concern which satisfies to the

greatest extent possible the claims of all the creditors and preserves employment as far as possible.

The sales transactions organised in the context of that procedure in respect of all or part of the

undertaking are prepared by a ‘prospective insolvency administrator’, whose tasks are determined by

the competent court which appoints him or her and by the instructions given by that court or by the

‘prospective supervisory judge’ appointed by that court for that purpose and who supervises the

‘prospective insolvency administrator’. In the event of subsequent insolvency proceedings, that court

39

In particular, Article 80(2) of the GDPR.