Inopposability of the division of a legal person in relation to creditors on the basis of actio pauliana: the impact of the case law of the Court of Justice of the European Union

In case C-394/18, the CJEU clarified that Article 12 of the Sixth Directive 82/891/CEE provides only a minimum level of protection for the creditors of the divided company, without excluding the use of other legal instruments such as the actio pauliana. Thus, prior creditors may seek to render the division unenforceable against them, even if they have not used the specific creditor protection instruments provided under national law. The Court distinguished this action with relative (limited) effects from the nullity provided for in Article 19 of the Directive. The ruling was criticized for insufficiently considering the interests of subsequent creditors - a point raised by the Advocate General. Under Moldovan law, creditors already benefit from protection through the joint and several liability of the entities resulting from the division. However, the risk of harm persists when claims are transferred to insufficiently funded entities. An extension of the liability regime is proposed to include the separated entity, following the Dutch model.