ITA 
Published on Sole24Ore – Nt Lavoro – on 26/07/2023
The solidarity regime under Article 2112 of the Civil Code presupposes the existence of the employment relationship at the time of the business transfer. Thus, the Court of Cassation, in its judgment no. 21961 of 21 July 2023.
The appellants claimed, iure proprio and iure hereditatis, compensation for damages resulting from the death of their spouse from an occupational disease contracted during the performance of his work. The Court of first instance and the Court of Appeal rejected the claims of the appellants, cause the claim was proposed against the transferre despite the employment relationship terminated before the company transfer. According to the court of first instance, the solidarity regime provided by the Article 2112 Civil Cod could not operate, cause it presupposes the existence of the employment at the transfer time.
The heirs appealed in Cassation, claiming the transferee’s capacity to be sued, under articles 2112 and 2650 Civil Code and on the basis of an interpretation in accordance with constitutional and supranational principles of health protection and on the subject of business transfers, because of the knowledge or knowability by the successor companies, on the basis of Article 2112 of the Civil Code, of the danger of the use od asbestos to the employees health, resulting in their assumption of the risk of compensation claims from employees employed in the plants.
According to the Supreme Court, the appeal cannot be upheld because the joint and several liability between the transferor and transferee for the employee’s claims at the time of the business transfer, regardless of whether the transferee knew or could know of them, presupposes the existence of the employment relationship at the time of the business transfer. Consequently, solidarity does not apply to claims relating to employment relationships that have been exhausted or not yet established at that time, without prejudice to the applicability of Article 2560 of the Civil Code, which contemplates, in general, the liability of the transferee for the debts of the transferred company, if they result from the compulsory accounting books. In this last regard, the Court recalls the ruling of the United Sections (5054/2017), which ruled out any interpretation aimed at extending the scope of Article 2560, including in the solidarity provision obligations that have not yet come to light, on the sole basis of a documented mediated genetic fact: and therefore, a mere risk of contingent liability, rather than a debt already accrued ad recorded in the books, as textually provided for in the rule.
Quite the opposite, according to the Court, the liability of the transferee must fall within the realm of direct evidence, resulting from the company’s compulsory books of account, to protect its legitimate expectation, which is essential for the proper conduct of the circulation of goods of particular commercial importance, provided that there is an actual subjective alterity of the parties owning the business and therefore, more generally, except in cases where the transfer, due to the concrete characteristics with which it is carried out, constitutes a fraudulent instrument capable of thwarting the “protective purpose” of the rule under consideration.