ITA 
Published on Sole24Ore - NT Lavoro - on 30/08/2022.
In the event of the transfer of a company in crisis, the Association union’s agreement may derogate from Article 2112 of the Civil Code without prejudice to the obligation to transfer all employees in the event of continuation or non-termination of the activity.
Thus, the Court of cassation with its judgment no. 25055 of 22 August 2022.
In the present case, the Court of Appeal of Rome upheld the appeal against the termination of an airline employee in the context of a collective dismissal procedure for violation of the selection criteria, and consequently condemned the transferee to reinstatement.
In truth, following the collective agreement, the company was transferred and, according to the Court of Appeal, the employment relationship, reconstituted ex tunc with the transferor company, had to be transferred to the transferee company as the exclusion provided for by the Association Union’s agreements concluded in the company transfer procedure could not be enforced by the latter for employees who were not on the special lists, even in the presence of a state of company crisis. On this point, the Court held that it had to interpret Article 47 (4-bis) of Law no. 428/1990 in a manner consistent with European Union law, in the sense that the union agreement provided for therein cannot provide for limitations on the right of employees to transfer to the transferee company, but only for changes to working conditions in order to maintain employment levels.
The transferee Company, appealed in cassation claiming that the Court of Appeal’s interpretation of the aforementioned paragraph 4-bis. The Court of Cassation held that the complaint was unfounded and upheld the following principle of law: «In the event of a transfer concerning companies whose state of corporate crisis has been ascertained, or for which extraordinary administration has been ordered, in the event of continuation or non-cessation of business activity, the Association Union’s agreement pursuant to Article 4-bis, Law no. 428/1990 may provide for exceptions to Article 2112 of the Civil Code concerning working conditions, without prejudice to the transfer of employment relationships to the transferee».
As is well known, in fact, the aforementioned paragraph 4-bis was introduced by the legislator in order to implement the judgment of the CJUE (judgment of 11 June 2009, C-561/07), whereby the Italian Republic had failed to fulfil its obligations under Directive 2001/23 due to the provisions of Article 47 (5) and (6) of Law. no. 428/1990, which provided for the possibility of disapplying Article 2112 of the Civil Code and agreeing not to transfer the transferee’s employees in the event of a «company crisis».
In this regard, the Court of Justice has made a clear distinction between the situation of undertakings in a state of crisis whose proceedings are aimed at facilitating the continuation of the activity with a view to future recovery, and the situation of undertakings against which insolvency proceedings are in progress, in which the continuation of the activity has not been ordered or has ceased.
For the former – as in the present case – Directive 2001/23 authorises the Member States to provide that «the working conditions of workers may be amended in order to safeguard employment opportunities by ensuring the survival of the undertaking», but according to the Court of Justice «without, however, depriving workers of the rights guaranteed to them by Articles 3 and 4 of Directive 2001/23”.
Consequently, the only consistent reading is the one that is in line with the indication offered by the Court of Justice, whereby paragraph 4-bis of Article 47 only admits changes, possibly also in peius, to the economic-normative structure previously acquired by individual employees but does not authorise a reading that also permits a derogation from the automatic transfer of workers to the transferee company.
Lastly, the Court of cassation recalls that the soon-to-be enacted Code of Enterprise Crisis and Insolvency has provided for the replacement of paragraphs 4-bis and 5, and has thus more explicitly intended to transpose the reading of paragraph 4-bis provided by the cassation as the only interpretation that complies with EU Law.