EN Official Journal of the European Union C 64/21

Action brought on 18 December 2007 — Commission of the European Communities v Italian Republic

(Case C-561/07)

(2008/C 64/32)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and L. Pignataro, Agents)

Defendant: Italian Republic

Form of order sought

— declare that, by maintaining in force the provisions of Article 47(5) and (6) of Law No 428 of 29 December 1990 in the event of corporate crisis according to (c) of the fifth paragraph of Article 2 of Law No 675 of 12 August 1977 so that the rights of employees set out in Articles 3 and 4 of Directive 2001/23/EC are not safeguarded in the event of transfers of undertakings in which a ‘situation of crisis’ has been ascertained, the Italian Republic has failed to fulfil its obligations under that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the provisions of Law No 428/1990 (Article 47(5) and (6)) infringe Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (1), since the employees of the undertaking admitted to the system of the extraordinary redundancy fund transferred to the acquiror lose the rights provided for by Article 2112 of the Civil Code, except for any guarantees provided for by the union agreement (‘the most favoured treatment’ set out in Article 47(5)).

That means that the employees of an undertaking admitted to the redundancy fund system (CIGS) for a situation of crisis do not receive, in the event of a transfer of the undertaking, the safeguards provided for in Articles 3 and 4 of the Directive.

So far as concerns Article 47(6), that provides that the employees who do not become employees of the acquiror, the lessee or the new employer are entitled to priority in the recruitment carried out by the latter for a year from the date of the transfer, or for a longer period laid down by collective agreements. Article 2112 of the Civil Code does not apply to those workers who are recruited by the acquiror, lessee or new employer after the transfer of the undertaking.

The Italian Government has not challenged the Commission's analysis on the basis of which the employees of the undertaking admitted to the CIGS system for situation of crisis do not receive, in the event of a transfer of the undertaking, the safeguards laid down in Articles 3 and 4 of the directive. That government has none the less maintained that in the present case Article 5(3) of the directive applies.

The Commission has noted in the application that that provision does allow, in the event of a transfer of an undertaking in which the transferor is in a situation of serious economic crisis, to amend the employment conditions of the employees in order to safeguard employment opportunities, ensuring the survival of the undertaking, the business or parts of the undertaking or business. However, that provision entitles the Member State only to allow the transferor and the employees' representatives to agree to amend the employment conditions in certain circumstances and not to exclude, as Article 47(5) and (6) of Law No 428/90 do, the application of Articles 3 and 4 of the directive.

(1) OJ 2001 L 82, p. 16.