Company succession after the latest insolvency reform (competence aspects)

Abstract

Organic Law 6/1985, of 1 July, on the Judiciary, has been profoundly modified by Organic Law 7/2022, of 27 July, on commercial courts, which redrafts a significant number of its precepts. Among the changes introduced is that made to article 86 ter with the aim of resolving the doubts and conflicts of competence that had arisen, which had ended up discouraging recourse to the figure of the disposal of the productive unit in insolvency proceedings, in the event that what was decided by the commercial judge in the labour and social security aspects was not respected by the bodies of the social and contentious-administrative jurisdiction. To this end, the aforementioned provision establishes that the jurisdiction of the insolvency judge will be exclusive and excluding in "the declaration of the existence of company succession for labour and social security purposes in cases of transfer of production units or units and the determination of the limits of this declaration in accordance with the provisions of labour and social security legislation". For its part, the reform of the revised text of the Insolvency Act, brought about by Law 16/2022, of 5 September, follows the path set out in the aforementioned organic law, in terms that do not strictly coincide, as can be seen from the reading of articles 52 and 221.2, which raises some interpretative problems that are dealt with in this paper, which also addresses the transitional law issues that arise. However, the main objective is to highlight the real effect of the reform on the actions that can be brought by staff representatives and affected workers in defence of their rights in the context of the sale of the production unit and the insolvency proceedings to which it usually gives rise, as well as the scope of control by the labour courts in this context.