ITA 
TUPE: prescription regime under art. 32, L. 183/2010 does not apply to claims against the buyer
Case Ref: Cassazione civile sez. lav. 7/11/2019 n. 28750
In the case in question, the Court of Appeal ruled on the subject of assignment of employment contracts in the context of a transfer of an undertaking under art. 2112 of the Italian Civil Code. The court held that the rules under article 32(4)(c) and (d) of Law no. 183/2010 regarding prescription, do not apply in the case where “the employee excluded claims the right to be transferred to the buyer’s business“.
On this point, the Court of Cassation focuses on the prescription regime under art. 32, par. 4, letters c) and d) of Law n. 183/2010.
Indeed, first of all the Court of Cassation remarks that the prescription regime under art. 6 of L. 604/1966 also apply to the contract transfers under article 2112 of the Italian civil Code, where the term starts on the transfer date, as well as “any other case where it is required to declare or ascertain an employment relationship with a subject different from the formal employer, including hypothesis under art. 27(d), Leg. Decree no. 276/2003“.
At this point, the Supreme Court remarks that when the employee claims the right to be transferred to the buyer’s company “the transfer of the contract is not challenged, instead it is requested. Therefore, the hypothesis under article 32(4)(c) of Law no. 183/2010 is not applicable“.
With reference to the applicability of article 32(4)(d) of Law no. 183/2010, according to the Supreme Court it “requires a kind of previous contract between employee and subject different from the formal employer. Such a contract does not exist when the excluded employees claims to be transferred to the buyer’s company in the context of a transfer of an undertaking under art. 2112 of the Italian Civil Code, because in such a case it is only requested to declare or ascertain the right to be included amongst the employees transferred“.
On the basis of such conclusions, the Supreme Court overturned the case to the Court of Appeal of Naples that shall consider the new principle issued by the Court, providing that “the provisions under article 32(4)(c) and (d) of Law no. 183/2010 do not apply when, in the context of a transfer of an undertaking under art. 2112 of the Italian Civil Code, the employee excluded claims the right to be transferred to the buyer’s business“.