European Restructuring Monitor (ERM)
Eurofound's ERM database on restructuring-related legal regulations provides information on regulations in the Member States of the European Union and Norway which are explicitly or implicitly linked to anticipating and managing change.
Civil Code, paragraph 5 article 2112; Civil Procedure Code, articles 410 and 411; Law no. 428/1990, article 47; Legislative Decree no. 276/2003, articles 31 and 32; Legislative Decree no. 251/2004, article 9; Law No. 87 of July 12, 2018, Chapter II, Article 5; Law No. 234 of December 30, 2021, paragraphs 224-236
Under the Italian law, a transfer is defined as any operation which transfers the ownership of an undertaking or a part thereof, 'regardless of the type of legal procedure or legal act by which the transfer is made, including 'usufruct' or lease of the undertaking'. An undertaking itself is defined as 'an organised economic activity, with or without the aim of profit, which pre-exists the transfer and conserves its identity upon the transfer'.
The Italian Civil Code does not cover the transfer of shares, or cases where the transfer involves an undertaking or part of one which is in a state of financial crisis.
The Civil Code provides some protection to the employees involved in business transfers including apprentices and executives. However, consultants and self-employed people are not included. In particular:
In addition, article 47 of law no. 428/1990 grants unions information and consultation rights in case of business transfer and sets out that workers who do not become employees of the transferee have a priority right in the case of new hiring by the transferee within one year from the date of the transfer, or any longer time span as set out in collective agreements.
Law No. 87 of July 12, 2018, places restrictions on companies that relocate after receiving state aid, requiring repayment of the aid with fines if operations are moved outside the EU within five years. Law 234 of December 30, 2021, introduces additional regulations for larger companies that plan significant layoffs due to relocation, necessitating advanced notification and the creation of a post-relocation plan to mitigate job and economic losses, with failure to comply resulting in penalties.
According to law studies, there might be inconsistences between the Italian provisions and Directive no. 2001/23/EC, especially insofar the former allows the modification of employment conditions by means of collective agreement whereas the transferor is in a state of crisis, without entailing any judicial supervision.
In addition, criticisms have been raised also concerning the absence of provisions limiting the possibility for companies to transfer workers without their consensus.
Eurofound (2016), Italy: Employment protection in relation to business transfers, Restructuring legislation database, Dublin, https://apps.eurofound.europa.eu/legislationdb/employment-protection-in-relation-to-business-transfers/italy
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