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17 February 2010
In Summer 2009 the European Court of Justice held that Italy had failed to fulfil its obligation under the EU Acquired Rights Directive (2001/23/EC) to safeguard employees' rights in the event of redundancy procedures arising from transfers of undertakings.(1) The ECJ found that Articles 47(5) and (6) of Law 428/1990 had not fully implemented the directive, as they do not stipulate that Article 2112 of the Civil Code - which implements Articles 3 and 4 of the directive - will apply where an undertaking has been declared to be in critical difficulties and is subject to an extraordinary redundancy benefit fund procedure.(2)
Pursuant to the ECJ decision, the government issued Article 19(4)(4) of Law 166/2009, which modifies Article 47 of Law 428/1990. It states that where a collective agreement with a trade union protects employment relationships, even in part, the guarantees provided by Article 2112 of the code apply (subject to the terms of the agreement) in the event of transfers of undertakings that (i) have been declared to be in critical difficulties,(3) or (ii) are continuing their activity subject to insolvency proceedings.(4)
However, the amended law still contains some of the formal ambiguities highlighted by the ECJ, which stated that rights under Article 2112 must be guaranteed to a single transferred employee in all circumstances under the terms of the directive.
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