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Succession and transfer of businesses in Italy

Document Citas 1 Citado por Relacionados
Vincent
AutorVincenzo Ferrante
Páginas27-32

Page 27

1. b What is the national law that implements the Council Directive 2001/23/EC?

Council Directive n. 77/187 of 14 February 1977 on the -safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses- has been implemented into the Italian legal system firstly by Act n. 428/1990, which has modified article 2112 of Civil Code. The same article has been repeatedly changed by Act n. 18/2001, in order to update the legal rules to Directive n. 2001/23/CE, and lately by Legislative Decree 276/2003 (which goal was to reorganize the whole labour market regulation). Article 47 of Act n. 428/1990 contains separate provisions on unions’ rights on information and consultation and a particular disposition on transfer of undertaking in case of bankruptcy or insolvency proceedings.

After 25 years of implementation, Italian scholars and judges have not understood exactly the meaning of the Directive. At the very beginning, it was considered as a procedural burden on the management prerogatives: the employer’s wish to transfer his/her business has to follow strictly the procedure, in order to avoid that the assignment was declared void by the courts. Nobody was really interested in the idea that information and consultation duties were a way to involve all the stakeholders in the decision making on the destiny of the enterprise. This stage ended when, in the early years of the cntury, the Parliament changed the law to make easier a transfer of undertaking. When it was stated that the part of business can be identified as such by the parts, at the time of transfer, the jurisprudence took a different course, holding that no control could be kept on enterprises’ decision to assign. Few years later economic crisis diverted the scholar’s attention away from the Directive and the Fiat case consecrated the idea that the Directive provisions...

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