On 7 December 2022, the European Commission proposed a directive harmonizing certain aspects of insolvency law, including bankruptcy pauliana ( Proposed Directive (EU) 2022/0408 ). On 12 June 2025, the Council adopted a general approach. This will generally expedite the legislative process. In this contribution, I will discuss its impact on the willingness to provide financing to distressed companies. It will become clear that the proposed directive requires further clarification on certain points.


The current bankruptcy pauliana
The current bankruptcy pauliana has two variants: Articles 42 and 47 of the Bankruptcy Act (‘Fw’). The bankruptcy pauliana grants the trustee the authority to annul legal acts of the debtor, performed before bankruptcy, that are detrimental to the joint creditors.
Article 42 Fw applies to voluntary legal acts performed by the debtor prior to the date of bankruptcy. Furthermore, there must be a detriment to the joint creditors, whereby the debtor and its counterparty (in the case of a non-gratuitous legal act) knew or should have known that the legal act in question was detrimental. A further elaboration of the knowledge criterion follows from the judgment in ABN AMRO v Van Dooren qq III , stating that “the bankruptcy and the resulting deficit could have been foreseen with a reasonable degree of probability” ( ECLI:NL:HR:2009:BI8493 ).


Obligatory legal acts
Article 47 of the Bankruptcy Act applies to legal acts that the debtor was obligated to perform before the date of bankruptcy. An obligation can arise from both law and contract. Such a legal act can be annulled if the person receiving the payment knew that the debtor’s bankruptcy had already been filed (and the proceedings were not suspended) or if the payment resulted from collusion; consultation between the debtor and the creditor receiving a payment, whereby the payment was intended to favor this creditor over other creditors. The application of Article 47 of the Bankruptcy Act therefore requires a stricter test than the test under Article 42 of the Bankruptcy Act.


The directive proposal: new criteria for bankruptcy pauliana
After the implementation of the proposed directive, a different standard will apply to bankruptcy pauliana. The criteria follow from Articles 6, 7, and 8 of the proposed directive. This concerns minimum harmonization. Member States may maintain the provisions or adopt provisions providing a higher level of protection for creditors. Article 6 of the proposed directive concerns the favoring of creditors in  the face of insolvency . Article 7 concerns legal acts performed by the debtor without (adequate) compensation, and Article 8 of the proposed directive concerns legal acts that intentionally disadvantage creditors.

Article 6 paragraph 1 of the proposed directive
Legal acts which do not relate to the payment of claims due may be declared null and void pursuant to Article 6 paragraph 1 of the proposed directive if they were performed:

1. within three months preceding the filing of the request for the opening of insolvency proceedings, provided that the debtor was unable to pay his debts as they fell due; or
2. after the filing of the request for the opening of insolvency proceedings.

The filing of the request to open insolvency proceedings must naturally also lead to the declaration of bankruptcy, as only then is a trustee appointed who is authorized to invoke bankruptcy pauliana. The use of a strict three-month deadline is striking. A strict deadline does not seem to align well with the nature of bankruptcy pauliana and the objective it aims to protect. Legal transactions that occurred well before the bankruptcy can also result in detriment to creditors, even without intent. A strict application deadline limits the trustee’s necessary flexibility to tailor the assessment and, if necessary, annulment of such transactions. A more flexible approach is therefore logical. Since the directive provides for minimum harmonization, the Dutch legislature can choose to offer an additional degree of protection to injured creditors upon implementation, for example, by including a longer deadline.