Recital (47)

To prevent the value of a business from depreciating merely because it is subject to insolvency proceedings, it is important to ensure that operational counterparties, such as suppliers or customers of the debtor concerned, are taken over by the acquirer and not affected by the pre-pack proceedings. Therefore, the opening of insolvency proceedings should not result in the early termination of contracts under which the parties still have to perform certain obligations and which are necessary for the continuation of the business. Such termination would unduly jeopardise the value of the business, or part thereof, to be sold through the pre-pack proceedings. It should, therefore, be ensured that such contracts are assigned to the acquirer of the business of the debtor, or part thereof, even without the debtor’s counterparty to the contract giving its consent to the assignment. Nevertheless, there can be situations in which the transfer of certain obligations under such contracts cannot reasonably be expected, such as when the acquirer is a competitor of the counterparty to the contract. Member States should be able to provide that the consent of the debtor’s counterparty or counterparties is required for the assignment of contractual obligations, depending on the type of contract, the nature of the parties, or the interests of the business concerned. Member States should be able to require the consent of the licensee to terminate contracts relating to licences of intellectual and industrial property rights, of which the debtor is the licensor, as the protection of those rights in the event of the insolvency of the licensor encourages investment in the development of such rights.