Pursuant to the new paragraph 1-bis of Article 47 Law no. 428 of 1990, in the context of the crisis and insolvency regulation instruments, prior notifice to the trade unions of the intention to proceed with the transfer of the business may also be given only by those who intend to make an offer to purchase the business or a proposal for composition with creditors competing with that of the entrepreneur. The new Business Crisis Corporate Code, effective July 15, 2022, has reformulated Article 47 of Law no. 428 of 1990, which regulates the hypotheses of transfer cases for companies employing more than 15 workers, with the aim of balancing the need to protect workers' rights, the preservation of employment levels, as well and the technical and productive needs of the transferee. In light of the foregoing, Article 368, paragraph 4, letters b and c of the new Code amended the aforesaid rule, providing that, in the event of the transfer of enterprises involved in a procedure with a conservative purpose (e.g. concordato in continuity, debt restructuring agreements, extraordinary administration in case of continuation or non cessation of business), subject to the transfer to the transferee of labor relations, the conditions may be subject to change through the achievement of a trade union agreement, while, only for companies involved in procedures with liquidation purposes, there is the possibility to disapply art. 2112 Civil Code. Concerning, in particular, the content of Article 47, the new wording of the rule provides for the introduction of paragraph 1-bis, which stipulates that prior notice to the trade unions of the intention to proceed with the transfer of the business may also be given only by those who intend to make an offer to purchase the business or propose an arrangement with creditors competing with that of the entrepreneur. The obligation at hand is intended to make it even more compelling to involve, from the outset, the trade unions as to make them aware of the business choices and, therefore, to ensure a more careful and thorough analysis of the context in which the transfer of business, or branch of business, takes place. The provision, moreover, in addition to generate natural competition among employers in the course of union consultation procedures, places unions in a stronger position with respect to "competition" between tenderers, allowing them to compare offers and obtain the stipulation of a union agreement that is as advantageous as possible for the workers, exploiting precisely the competition among them. The reason of the norm analyzed lies in the fact that the new Crisis Corporate Code aims to protect, in a special way, workers in the negotiations and conduct of bankruptcy proceedings. It is no coincidence that Italian legislation is in line with the European one, with the content of the Insolvency Directive (No. 2019/1023), and therefore aimed at safeguarding the rights of workers affected by company transformations.
2024 - Morri Rossetti
