Case C-628/25, ITA Airways: Request for a preliminary ruling from the Tribunale Civile di Roma (Italy) lodged on 19 September 2025 – LA, GB, SMVD, GF, AL, AM, RN, MP, PS v Italia Trasporto Aereo S.p.A. – ITA Airways
Date: 2025-09-19
Institutions: Court of Justice
Subjects: bankruptcy, cessation of trading, equal treatment, financial solvency, job security, judicial review, labour law, termination of employment, transfer of businesses








C_202506127EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/6127


8.12.2025






Request for a preliminary ruling from the Tribunale Civile di Roma (Italy) lodged on 19 September 2025 – LA, GB, SMVD, GF, AL, AM, RN, MP, PS v Italia Trasporto Aereo S.p.A. – ITA Airways


(Case C-628/25, ITA Airways)

(C/2025/6127)
Language of the case: Italian

Referring court

Tribunale Civile di Roma

Parties to the main proceedings


Applicants: LA, GB, SMVD, GF, AL, AM, RN, MP, PS

Defendant: Italia Trasporto Aereo S.p.A. – ITA Airways

Questions referred







1.


Must Article 5(1) of Directive 2001/23/EC, (1) together with Article 147 TFEU, be interpreted as meaning that the condition that ‘bankruptcy proceedings or any analogous insolvency proceedings have been instituted with a view to the liquidation of the assets of the transferor’ has been met, where:






(a)


the administration procedure, by express provision of law, pursues the purpose of preserving the business assets, through the continuation, relaunch or transformation of the business, pursuant to Article 1 of Legislative Decree No 270/1999?










(b)


the extraordinary administration procedure is opened if there is a real prospect that the economic balance of the business may be restored at the recipient undertakings, pursuant to Article 27(1) of Legislative Decree No 270/1999?










(c)


on the contrary, in the absence of a real prospect of recovery, the competent court declares the opening of insolvency proceedings, for the purpose of winding up by the court?










(d)


the procedure of being wound up by the court or compulsory administration is opened after the undertaking is declared to have ceased trading under Article 73(1) of Legislative Decree No 270/1999?










(e)


a plan for the transfer of business units or assets and contracts is formally adopted by the extraordinary administrators, pursuant to Article 27(2)(a) and (b-a), in conjunction with Article 56(3-a) of Legislative Decree No 270/1999, with the resulting exclusion of the court’s assessment of that condition?










(f)


the maximum satisfaction of the creditors’ claims is effectively pursued as part of the extraordinary administration procedure and there is evidence of this in the substantive proceedings?










(g)


on the contrary, no evidence is provided in the substantive proceedings that the purpose being pursued is to maximise the interests of the creditors?














2.


Must Article 5(1) of Directive 2001/23/EC be interpreted, together with Article 147 TFEU, as meaning that the condition that ‘bankruptcy proceedings or any analogous insolvency proceedings are under the supervision of a competence public authority’ has been met, where:






(a)


in the extraordinary administration procedure, the court’s supervision is limited to the declaration of insolvency that precedes the opening of the procedure?










(b)


the extraordinary administration procedure provides for the court’s supervision upon completion of the plan referred to in Article 27(2) of Legislative Decree No 270/1999, solely by issuing the order for the undertaking to cease trading?










(c)


no court supervision is ordinarily envisaged in relation to whether the purpose of maximising satisfaction of creditors’ collective claims or of preserving the operational character of the undertaking or of its viable units is actually being pursued?














3.


In the light of Articles 3, 4 and 5 of Directive 2001/23/EC, read in conjunction with Article 147 TFEU, is there indirect discrimination within the meaning of Article 21 of the [Charter of Fundamental Rights of the European Union] (interpreted and applied in the light of Articles 52 and 53 of the [Charter]) between employees, directly comparable to each other, who are eligible for the protections of Articles 3 and 4 of Directive 2001/23/EC and Articles 1 and 11 of Directive 2008/94/EC, (2) keeping the same job and working conditions, in the event of a procedure aimed at preservation, and employees who, by contrast, in the event of a procedure aimed at liquidation, are not eligible for the protections of Articles 3 and 4 of Directive 2001/23/EC (and Articles 1 and 11 of Directive 2008/94/EC), and therefore can no longer keep their jobs, when, in the context of a liquidation procedure, transactions are carried out to transfer the undertaking or part of the undertaking, which can be characterised as the preservation of that undertaking or part of the transferred undertaking?










4.


If so – that is to say, in the event of a finding of indirect discrimination not supported by any objective reason (with no legitimate purpose and/or not pursued through the adoption of appropriate and necessary measures), within the meaning of Article 147 TFEU, Article 21 [of the Charter] and Directives 23/2001/EC and 94/2008/EC – can the principle of equivalence of anti-discrimination protections be applied, according to which disadvantaged workers can acquire the same protections as comparable workers hired and treated more favourably, as determined by the Court of Justice of the European Union, Grand [Chamber], by the judgment of 17 April 2018, Egenberger, C-414/16 (paragraphs 75 to 80)?










5.


Does the regulatory intervention by the Italian Government with the introduction of Article 1(1-a) of Decree-Law No 4/2024, converted with amendments into Law No 28/2024, amending Article 27 of Legislative Decree 270/1999, which directly affects cases pending before the national courts, in a factual and legal situation in which the Italian Government is directly involved as the supervisory authority of the transferor undertaking, constitute an infringement of Articles 47 and 54 [of the Charter] (which correspond, pursuant to Article 52(3) [of the Charter], to Articles 6 and 17 of the European Convention on Human Rights) and Articles 52 and 53; does, therefore, that internal rule prevent the full application of the right to an effective remedy due to an abuse of rights, and/or preclude the level of protection and/or scope of the fundamental rights guaranteed by the [Charter] and the directives mentioned?










6.


If the regulatory intervention by the Italian Government with the introduction of Article 1(1-a) of Decree-Law No 4/2024, converted with amendments into Law No 28/2024, amending Article 27 of Legislative Decree No 270/1999, as interpreted by the Constitutional Court (judgment No 99/2025), constitutes an infringement of the prohibition of regression of the protection of employees in the event of insolvency of their employer, governed by Articles 1 and 11 of Directive 2008/94/EC, and as a result, precludes the pursuit of the purposes intended by that directive?






(1)  Council 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 (OJ 2001 L 82, p. 16).

(2)  Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ 2008 L 283, p. 36).


ELI: http://data.europa.eu/eli/C/2025/6127/oj
ISSN 1977-091X (electronic edition)