CELEX: 61993CC0472
Language: en
Date: 1995-10-17 00:00:00
Title: Opinion of Mr Advocate General Cosmas delivered on 17 October 1995. # Luigi Spano and others v Fiat Geotech SpA and Fiat Hitachi Excavators SpA. # Reference for a preliminary ruling: Pretura circondariale di Lecce - Italy. # Safeguarding of employees' rights in the event of a transfer of undertakings. # Case C-472/93.

OPINION OF ADVOCATE GENERAL
      COSMAS
      delivered on 17 October 1995 (
            *1
         )
      
               1. 
            
            
               This case concerns questions referred under Article 177 of the Treaty establishing the European Community by the chamber for labour disputes of the Pretura Circondariale (District Magistrate's Court), Lecce, for a preliminary ruling on the interpretation of Council Directive 77/187/EEC of 14 February 1977 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 businesses (‘the directive’). (
                     1
                  )
            
         I — The proceedings before the national court
      
               2.
            
            
               Those questions were raised in the course of proceedings brought before the national court by Mr L. Spano and others against Fiat Geotech SpA (‘Fiat Geotech’) and Fiat Hitachi Construction Equipment SpA, now Fiat Hitachi Excavators SpA (‘Fiat Hitachi’). According to the order for reference, the plaintiffs were employees of Fiat Geotech, which manufactured earthmoving equipment. Following a technical restructuring of the company, the plaintiffs' employment relationship was suspended and they were registered with the Cassa Integrazione Guadagni — Gestione Straordinaria (Special Department of the Wage Supplement Fund, hereinafter ‘CIGS’) set up by Italian Law No 1115 of 5 November 1968, which guarantees payment to workers of part of their remuneration where their undertaking is in critical difficulties. (
                     2
                  )
            
         
               3.
            
            
               In order to resolve the problem of surplus personnel, Fiat Geotech entered into an agreement on 11 November 1992 with the most representative trade-union organizations and the local trade-union representatives at its Lecce plant. That agreement was concluded within the framework of the trade-union consultation procedure provided for by Article 47 of Italian Law No 428 of 29 December 1990 (‘Law No 428/1990’). (
                     3
                  ) As is stated in the order for reference, the agreement in question provided for:
               
                        ‘(1)
                     
                     
                        The transfer of Fiat Geotech's Lecce plant to a company to be newly formed, Fiat Hitachi Construction Equipment (four-fifths of whose share capital was to be subscribed by Fiat Geotech), which was to take over the plant and continue production (albeit on a reduced scale) from 1 January 1993;
                     
                  
                        (2)
                     
                     
                        The submission by Fiat Geotech to the CIPI (
                              4
                           ) of an application for a declaration by that body, pursuant to Article 2(5)(c) of Italian Law No 675 of 12 August 1977, (
                              5
                           ) that the Lecce plant was facing particularly critical difficulties, having regard to the local employment situation and the production situation in the sector;
                     
                  
                        (3)
                     
                     
                        The transfer to the new company, under Article 47(5) of Law No 428/1990, of only 600 of the total number of persons (1355) then employed at the Lecce plant, to be chosen in accordance with the technical, organizational and production requirements of Fiat Hitachi;
                     
                  
                        (4)
                     
                     
                        The continuation in the service of Fiat Geotech of the remaining 755 employees and their registration with the CIGS, by reason of the critical difficulties facing the undertaking, simultaneously with the planned transfer of the 600 other workers into the service of Fiat Hitachi’.
                     
                  
         
               4.
            
            
               In those circumstances, the plaintiffs, who were amongst the workers remaining in the employment of Fiat Geotech and registered with CIGS from 1 January 1993, feared that they would be dismissed at the end of their period of registration under that scheme and consequendy applied to the Pretore di Lecce (Magistrate's Court, Lecce) for a declaration that the agreement of 11 November 1992 was void and for an order requiring their employment relationships to be transferred to Fiat Hitachi, pursuant to Article 2112 of the Italian Civil Code. The plaintiffs contended, in essence, that the decision relating to the reduction of the surplus workforce should be taken either by the transferor company before or at the same time as the transfer of the undertaking or by the transferee after the transfer, in such a way as to enable the selection of the workers to be dismissed to take place after a comparative examination of the entire workforce of the undertaking, including both the workers remaining in the employment of Fiat Geotech and those transferred to Fiat Hitachi. The defendants in the main proceedings, Fiat Geotech and Fiat Hitachi, maintained for their part that the agreement of 11 November 1992 was entirely in accordance with the provisions of Article 47(5) of Law No 428/1990.
            
         
               5.
            
            
               It should be noted in that regard that, as is stated in the order for reference, Article 47 of Law No 428/1990 concerns the transposition of the directive into the Italian legal order. More particularly, Article 47(5) introduces a derogation from the application of Article 2112 of the Italian Civil Code, which provides that, in the event of the transfer of an undertaking, employment relationships are to continue to exist with the new owner and that employees' rights under those relationships are to be preserved. As the order for reference states, the derogation from Article 2112 is to operate where ‘the transfer concerns an undertaking or production unit declared by the CIPI, pursuant to Article 2(5)(c) of Law No 675 of 12 August 1977, to be in critical difficulties, or an undertaking which is the subject of a creditors' arrangement procedure, and for which no decision to continue trading has been taken or which has ceased trading, subject to the conclusion of a trade-union agreement providing for the continued employment of the workforce, even in part’.
            
         
               6.
            
            
               The order for reference further states that Article 47(5) permits the exclusion, in the context of an agreement with the trade-union organizations, of ‘the transfer of surplus employees, so that all or part of them remain in the service of the transferor undertaking, subject to the right of priority in respect of recruitment decisions subsequently taken by the transferee’. Under Article 2(5)(c) of Law No 675/1977, the CIPI, acting on a proposal from the Minister of Labour and Social Welfare, issues a declaration, for the purposes of applying the CIGS scheme provided for by Article 2 of Law No 1115 of 5 November 1968, certifying the critical difficulties faced by an undertaking in cases which, having regard to the local employment situation and the production situation in the sector concerned, are of particular social importance.
            
         
               7.
            
            
               Having regard to the fact that Article 47 of Law No 428/1990 transposes the directive into the Italian legal order, the national court considered that it should refer questions to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty on the issue whether Article 47(5) of that Law is consistent with the directive, inasmuch as it excludes the principle whereby employment relationships are automatically continued with the transferee of an undertaking where the transfer concerns an undertaking or production unit declared by the CIPI, pursuant to Article 2(5)(c) of Law No 675, to be in critical difficulties.
            
         II — The questions referred
      
               8.
            
            
               By order of 2 December 1993 the Pretore di Lecce referred the following questions to the Court: (
                     6
                  )
               
                        ‘(a)
                     
                     
                        Must the provisions of Directive 77/187/EEC (in particular Article 3(1)) be interpreted as applying to transfers of undertakings, businesses or parts of businesses to another concern as a result of a contractual transfer or merger, even where the subject-matter of the transfer is a business or production unit which has been declared, under Article 47(5) of national Law No 428 of 29 December 1990, to be in critical difficulties?
                     
                  
                        (b)
                     
                     
                        Alternatively, must the exception to the applicability of Directive 77/187 already established by judgments of the Court of Justice in respect of cases where the transfer involves an undertaking which is the subject of a creditors' arrangement procedure with a view to its liquidation, and for which no decision has been taken to continue trading, be regarded as extending to cases in which the transfer concerns an undertaking, business or production unit (not subject to a creditors' arrangement procedure) which has been declared to be in critical difficulties within the meaning of the aforementioned Italian provision (Article 47(5) of Law No 428/1990)?’
                     
                  The questions referred seek to establish, therefore, whether, having regard to the Court's case-law concerning undertakings which are the subject of insolvency proceedings, the directive precludes national rules, such as those laid down by Article 47(5) of Italian Law No 428/1990, providing, in the case of the transfer of an undertaking, business or production unit declared to be in critical difficulties, for a derogation from the provisions of the directive which protect workers.
            
         III — The admissibility of the questions referred
      
               9.
            
            
               The defendants in the main proceedings maintain that the questions referred are inadmissible, first of all, because they are not necessary for the purposes of determining the dispute, second, because the national court proceeded of its own motion to apply Community law and to formulate the corresponding questions for a preliminary ruling, whereas under Italian law the national courts are not empowered to examine of their own motion a point which has not been raised by the parties and argued inter partes, and, third and last, because the directive at issue, like all directives, does not have any direct horizontal effect.
            
         
               10.
            
            
               As regards the first ground of inadmissibility, it should be noted that, as the Court has consistently held, it is for the national court, which alone has direct knowledge of the facts of the case and which must bear the responsibility for the subsequent judicial decision, to assess the relevance of the questions of law raised by the dispute before it and the need to formulate a question under Article 177 of the EC Treaty with a view to obtaining a preliminary ruling which will enable it to deliver judgment. (
                     7
                  ) National courts therefore have very wide powers to refer questions to the Court for a preliminary ruling where they consider that cases before them raise questions of Community law. According to the judgment in Eurico Italia and Others, (
                     8
                  ) it is for the national courts to determine, in the light of the particular features of each case, both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. However, that possibility is afforded them in order to enable them to settle the disputes brought before them. Consequently, a request from a national court may be dismissed where it is plainly apparent that the interpretation of Community law or the examination of the validity of a Community rule, requested by that court, has no bearing on the real situation or the subject-matter of the main proceedings. (
                     9
                  ) That is not, however, the position in the present case. Article 47 of Italian Law No 428/1990, and more particularly paragraph (5) thereof, which lies at the heart of the present case, was adopted in the context of the transposition of the directive into the Italian legal order. The determination of the issue in the main proceedings depends — as is clear from the order for reference — on the extent to which that provision is, or is not, compatible with the directive. The ruling on the interpretation of the directive to be provided by the Court to the national court will facilitate that assessment and will thus enable it to determine the case before it. Consequently, it cannot be maintained that the questions referred have no bearing on the outcome of the main proceedings.
            
         
               11.
            
            
               As regards the second plea of inadmissibility, it should be noted, first of all, that the Court has ruled that ‘the fact that the parties to the main action failed to raise a point of Community law before the national court does not preclude the latter from bringing the matter before the Court of Justice. In providing that reference for a preliminary ruling may be submitted to the Court where “a question is raised before any court or tribunal of a Member State”, the second and third paragraphs of Article 177 of the Treaty are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of Community law, but also extend to cases where a question of this kind is raised by the national court or tribunal itself which considers that a decision thereon by the Court of Justice is “necessary to enable it to give judgment”’. (
                     10
                  ) It follows that the right conferred on an individual to rely before a national court on provisions of Community law does not preclude that court from taking those provisions into consideration, even if the individual has not relied on them, and to refer of its own motion a question for a preliminary ruling, in so far as it considers that a decision on the interpretation of Community provisions is necessary in order to determine the dispute. (
                     11
                  )
            
         
               12.
            
            
               Moreover, quite apart from the question whether it is in the interests of the proper administration of justice for a question not to be referred for a preliminary ruling until after an inter partes hearing, it has been recognized by the case-law of the Court that ‘the existence of an inter partes hearing does not appear among the conditions required to implement the procedure under Article 177 of the Treaty and that it is for the national court alone to assess the need to hear the defendant before making an order for reference’. (
                     12
                  )
            
         
               13.
            
            
               As regards the third plea of inadmissibility, it is apparent from the case-law of the Court that, in order to determine whether a provision of national law is consistent with Community law, the national court may request the Court of Justice to rule on the interpretation of a directive which has already been transposed into national law, even though directives cannot have direct effect in disputes between individuals. (
                     13
                  ) It will be recalled that the Court of Justice has held in that regard that, in applying national law, ‘whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty’. (
                     14
                  )
            
         
               14.
            
            
               Consequently, the Pretore is entitled to refer to the Court questions relating to the interpretation of the directive at issue, since the answer given will assist it in its interpretation and application of the national provisions, in particular Article 47 of Italian Law No 428/1990, which transposed into domestic law the provisions of the directive in question. The defendants' arguments regarding the inadmissibility of the questions referred for a preliminary ruling cannot therefore be accepted.
            
         IV — Substance
      (a) The relevant légiseivé provisions and case-law
      
               15.
            
            
               The Court of Justice has developed a copious body of case-law on the interpretation and application of the provisions of the directive. The preamble to the directive states that it is designed ‘to provide for the protection of employees in the event of a change of employer’ (second recital) and that it is necessary to promote the approximation of laws in that field whilst maintaining the improvement in the standard of living and working conditions for workers described in Article 117 of the Treaty (fifth recital in the preamble to the directive). We are thus concerned here with a piece of legislation which, as the Court has pointed out, manifestly pursues a social objective. According to the relevant case-law, ‘the purpose of the directive is to ensure, so far as possible, that the rights of employees are safeguarded in the event of a change of employer by enabling them to remain in employment with the new employer on the terms and conditions agreed with the transferor’. (
                     15
                  ) The provisions of the directive are designed to maintain, in the interests of the employees, existing employment relationships in the event of a change, occurring by virtue of a contractual transaction, in the person responsible for running the undertaking who assumes the employer's obligations towards the employees of the undertaking in question.
            
         
               16.
            
            
               According to Article 1, the directive is to ‘apply to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger’. Article 3 further provides that ‘the transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee’. Article 4(1) states that ‘the transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organizational reasons entailing changes in the workforce’. Article 6 of the directive requires the transferor and the transferee to inform and consult with the representatives of the employees affected by the transfer. Article 7 preserves the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees.
            
         
               17.
            
            
               In interpreting the provisions of the directive, and more particularly Article 1(1), the Court has held, in its judgments in Abels, (
                     16
                  )Mikkelsen (
                     17
                  ) and D'Urso and Others, (
                     18
                  ) that the directive does not apply to transfers of an undertaking, business or part of a business made as part of a creditors' arrangement procedure for liquidating the assets of the undertaking to be transferred, under the supervision of the competent legal authority. The Court based that assessment, first, on the specific nature of insolvency law. In particular, it observed in its judgment in Abels (
                     19
                  ) that, unlike the directive, which is intended to protect workers and to safeguard their rights when an undertaking is transferred, insolvency law is characterized by special procedures designed to weigh up the various interests involved, in particular those of the various classes of creditors. Consequently, in all the Member States there are specific rules which may derogate from other provisions of a general nature, including provisions of social law.
            
         
               18.
            
            
               According to the Court, the specificity of insolvency law, found in all the legal systems of the Member States, is also to be seen in Community law. Thus, Article l(2)(d) of Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies, (
                     20
                  ) which, like Directive 77/187, was adopted to attain the objectives of Article 117 of the Treaty, expressly excludes from its scope workers affected by termination of an establishment's activities ‘where that is the result of a judicial decision’. The Court further stated that the specificity of insolvency law was also reflected in the adoption of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer; (
                     21
                  ) that directive created a system to ensure the payment of outstanding claims relating to pay which applied equally to undertakings which were the subject of a collective procedure for the satisfaction of creditors, such as insolvency proceedings. It should also be noted in that regard that the specific nature of insolvency law led the authors of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to exclude from its scope bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings (subparagraph 2 of the second paragraph of Article 1 of the Convention).
            
         
               19.
            
            
               That specificity of insolvency law, which is recognized both by national legislation and by Community law, combined with the finding that the rules on insolvency and similar proceedings differ greatly from one Member State to another, led the Court to conclude that ‘if the directive had been intended to apply also to transfers of undertakings in the context of such proceedings, an express provision would have been included for that purpose’. (
                     22
                  )
            
         
               20.
            
            
               The second ground on which the Court of Justice bases the view set out above relates to the purpose of the directive. It observes, first, that the directive is aimed at ensuring that restructuring of undertakings within the common market does not adversely affect the workers concerned. There are differences of opinion as to the consequences of the application of the directive to transfers carried out in the context of liquidation or similar proceedings. According to one view, the directive is applicable to such a situation because employees whose employer has been adjudged insolvent are precisely those who are most in need of protection. According to the opposing view, an extension of the scope of the directive might dissuade a potential transferee from acquiring an undertaking on conditions acceptable to its creditors, who, in such a case, would prefer to sell the assets of the undertaking separately. That would entail the loss of all the jobs in the undertaking, detracting from the usefulness of the directive. The Court consequently observes that ‘considerable uncertainty exists regarding the impact on the labour market of transfers of undertakings in the event of an employer's insolvency and the appropriate measures to be taken in order to ensure the best protection of the workers' interests’. (
                     23
                  ) On the basis of those considerations, the Court concludes that ‘a serious risk of general deterioration in working and living conditions of workers, contrary to the social objectives of the Treaty, cannot be ruled out. It cannot therefore be concluded that Directive 77/187 imposes on the Member States the obligation to extend the rules laid down therein to transfers of undertakings, businesses or parts of businesses taking place in the context of insolvency proceedings instituted with a view to the liquidation of the assets of the transferor under the supervision of the competent judicial authority’. (
                     24
                  )
            
         
               21.
            
            
               In the same judgment, the Court arrived at a contrary conclusion as regards proceedings such as the ‘surséance van betaling’ (suspension of payments) provided for under Netherlands law, the purpose of which is the grant of leave generally to suspend payments and, where appropriate and on certain conditions, the partial remission of debts. As regards procedures of that kind, the Court's ruling in Abels, which was confirmed in three other judgments delivered on the same day, (
                     25
                  ) was that the provisions of the directive apply where an undertaking, business or part of a business is transferred to another employer in the course of a procedure such as a ‘surséance van betaling’. According to the Court, a procedure of that kind undoubtedly has certain features in common with liquidation proceedings, in particular inasmuch as the proceedings are, in both cases, of a judicial nature, but differs from them in two fundamental respects. First of all, in the case of a ‘surséance van betaling’, ‘the supervision exercised by the Court over the commencement and the course of such proceedings is more limited’. (
                     26
                  ) The second point relates to the purpose of such procedures. Whilst the object of insolvency proceedings is the liquidation of assets by means of the realization of such of those assets as are still in existence, with a view to satisfying the creditors, the object of a ‘surséance van betaling’ is primarily ‘to safeguard the assets of the insolvent undertaking and, where possible, to continue the business of the undertaking by means of a collective suspension of the payment of debts with a view to reaching a settlement which will ensure that the undertaking is able to continue operating in the future’. (
                     27
                  ) Its characteristic feature is therefore that it is intended to deal with temporary payment difficulties without going as far as liquidation of the debtor's assets, by seeking, on the contrary, to avoid liquidation, even though, in the event that no agreement can be reached with the creditors, procedures of this type may lead to the debtor's going into liquidation. For that reason, the Court arrived at the conclusion that the reasons for not applying the directive to transfers of undertakings taking place in liquidation proceedings are not applicable to preventive proceedings taking place at an earlier stage. (
                     28
                  )
            
         
               22.
            
            
               The same approach has been applied by the Court to the special administration procedure for large undertakings in difficulties for which the Italian Law of 3 April 1979 provides. That procedure was introduced by the Italian legislation to cover cases in which undertakings are no longer able to fulfil their obligations. In examining the provisions of the Italian Law of 3 April 1979, the Court has held that when the decision ordering ‘application of the special administration procedure also authorizes the undertaking to continue trading under the supervision of an auditor, the primary purpose of that procedure is to give the undertaking some stability allowing its future activity to be safeguarded’. (
                     29
                  ) Referring to the order for reference, the Court noted certain basic characteristics of that procedure, including the following:
               
                        (a)
                     
                     
                        its function, which is to save the parts of the undertaking or group of undertakings which are basically sound by transferring the assets of the insolvent owner to a new owner;
                     
                  
                        (b)
                     
                     
                        the fact that an undertaking under special administration may, for the purpose of resuming operations and acquiring new equipment, obtain loans guaranteed by the State;
                     
                  
                        (c)
                     
                     
                        the fact that, under the special administration procedure, the protection of creditors' interests is less extensive than in other procedures and that, in particular, creditors are not involved in decisions concerning the continued operation of the undertaking.
                     
                  On the basis of those factors, the Court considered that the economic and social objective pursued by such a procedure cannot explain or justify the circumstance that, when all or part of an undertaking under special administration is transferred, its employees lose the rights which the directive confers on them. The Court therefore concluded that the provisions of the directive ‘apply when, in accordance with a body of legislation such as that governing special administration for large undertakings in critical difficulties, it has been decided that the undertaking is to continue trading for as long as that decision remains in force’. (
                     30
                  )
            
         
               23.
            
            
               On the other hand, the Court considered in the same judgment that the provisions of the directive do not apply to transfers of undertakings effected within the framework of a creditors' arrangement procedure such as the compulsory administrative liquidation procedure provided for by the Italian legislation. It also noted that the aim, consequences and risks of a procedure such as the compulsory administrative liquidation procedure are comparable to those which led the Court to conclude, in its judgment in Abels, that the directive does not apply to transfers of an undertaking (or of part of an undertaking) which has been adjudged insolvent. The Court noted in that regard that: ‘Like insolvency proceedings, that procedure is designed to liquidate the debtor's assets in order to satisfy the body of creditors, and transfers effected under this legal framework are consequently excluded from the scope of the Directive. (...) without that exclusion, a serious risk of a general deterioration in the living and working conditions of workers, contrary to the social objectives of the Treaty, could not be ruled out’. (
                     31
                  )
            
         
               24.
            
            
               That case-law shows that the determining criterion for the application of the directive to the various collective procedures for the administration and/or liquidation of undertakings in difficulty lies in the objective pursued by those procedures. The directive does not apply to procedures such as insolvency or compulsory liquidation (administrative or judicial) which are aimed at liquidating the debtor's property by realizing the assets remaining with a view to satisfying the creditors. That aim is pursued as a general rule by means of a series of stringent measures intended to safeguard the assets and to protect the interests of the body of creditors. In those circumstances, therefore, the procedure is characterized by the exercise of very wide judicial control, combined with the imposition of a rigorous form of administration or supervision, which is aimed at a precise determination of the estate forming the subject of the insolvency or liquidation and the realization of the assets, to be achieved by the very fact of preventing the debtor from exercising his power of dealing with and managing his assets.
            
         
               25.
            
            
               On the other hand, the directive does apply where the aim of the procedures in question is not to liquidate the debtor's assets but to deal with temporary difficulties in such a way as to enable the undertaking to continue to trade. As a general rule, in most of those procedures, the judicial control which is exercised is limited in scope, and is essentially restricted to verifying and approving certain particular acts of the debtor, without thereby preventing the debtor from dealing with or managing the assets. Whilst that type of procedure frequently results in a declaration of insolvency, that possibility is not enough to preclude the application of the directive, just as the fact that the conditions required for declaring the transferor insolvent are fulfilled does not suffice, in the absence of a declaration to that effect, to exclude the transfer of an undertaking from its scope. That follows from the judgment in Mikkelsen, cited above, concerning the transfer of an undertaking after it had suspended payment of its debts but before it was adjudged insolvent, in which the Court held that ‘the mere fact that the transfer of an undertaking, business or part of a business has occurred after the transferor has suspended payment of its debts is not enough to exclude the said transactions from the scope of Directive No 77/187. It therefore applies to a transfer as defined in Article 1(1) which is effected in the course of a procedure, or at a stage, prior to the commencement of liquidation proceedings’. (
                     32
                  )
            
         (b) The answer to the questions referred
      
               26.
            
            
               In order to answer the questions referred by the Pretore di Lecce, it is necessary to examine, in the light of the case-law discussed above, and in particular the criterion just mentioned, the characteristics and consequences of the procedure by which an undertaking is declared to be in critical difficulties under Article 2(5)(c) of Italian Law No 675/1977.
               As is apparent from the order for reference and the parties' written replies to the Court's questions, the act by which an undertaking is declared to be in critical difficulties is intended to stabilize that undertaking with a view to protecting jobs and providing the workers with financial support for as long as those difficulties persist. A finding that an undertaking is in critical difficulties is dependent primarily, and above all, on considerations relating to social policy, rather than on economic and accounting factors, as in the case of insolvency procedures. This is illustrated in particular by the fact that the undertaking is required to submit a restructuring programme, the focal point of which consists in measures to deal with the problem of the workers registered with CIGS. The aim of that procedure is therefore not to liquidate the debtor's assets but, on the contrary, to enable the debtor to deal with temporary difficulties and to continue to trade.
               Furthermore, no provision is made for judicial supervision at the initiation or in the course of the procedure. The conditions governing an undertaking's eligibility for treatment as an undertaking in critical difficulties are defined in advance by a decision of the CIPI and by a decision of the Interministerial Committee for Economic Planning.
            
         
               27.
            
            
               Unlike insolvency procedures, the regime for undertakings in critical difficulties does not provide for any suspension of payments; nor does it remove the debtor's power to deal with and manage his assets. Whilst a declaration of insolvency entails the liquidation of the debtor's estate through the compulsory realization of his remaining assets, a declaration that an undertaking is in critical difficulties does not necessarily lead to its liquidation. The fundamental, and most substantial, consequence of recognition that an undertaking is in critical difficulties is that the employees qualify for registration under the CIGS system, which involves the total or partial suspension of the employment relationships of all or part of the workforce of the undertaking and the direct or indirect grant of financial assistance to those employees. The CIGS system is brought into operation by decree of the Minister of Employment and Social Security following the submission of an opinion by a technical committee based on assessments by the competent labour offices, the Regional Employment Committee and, where appropriate, the labour inspectorate.
            
         
               28.
            
            
               The order for reference itself points out that, contrary to what happens when insolvent undertakings are wound up, any transfers of undertakings in critical difficulties, whether arising in consequence of a transfer of the entire business or the disposal of part of it, take place as trading goes on, without any interruption of production activities, and with real prospects of recovery, as is also confirmed by the fact that the undertaking is required to submit restructuring plans to the CIPI in order to obtain a declaration that it is in critical difficulties. Consequently, the procedure in question does not possess the characteristics of, nor entail consequences comparable with those of, procedures which, as indicated above, have been recognized by the Court as falling outside the scope of the directive in the event of the transfer of an undertaking.
               Furthermore, declarations as to the existence of critical difficulties are made in relation to undertakings which are experiencing employment and production problems but whose economic and financial situation is less serious than that of insolvent undertakings. That was also the position in Fiat Geotech's case, as the order for reference explains.
            
         
               29.
            
            
               As the Italian Government and the Commission have pointed out, the problems faced by an undertaking in critical difficulties will probably result in its having to interrupt its production activities. In the present case, that eventuality is immaterial, since the procedure for declaring an undertaking to be in critical difficulties is precisely aimed at avoiding such an outcome. As is indicated in the considerations set out above, the objective of the directive in issue is to restore a measure of equilibrium within the undertaking, especially in the sphere of employment relationships, which will enable it to safeguard its future activities. Consequently, the transfer of an undertaking in critical difficulties cannot be regarded as a disposal having the purpose of liquidating its assets and satisfying the body of creditors, as in the case of a transfer taking place in the context of insolvency proceedings. By contrast with the latter case, the aim of the first procedure is the continuation of production by means, of course, of a restructuring of the undertaking. That likewise appears to be the course taken by events in the present case, in which the new company, Fiat Hitachi, has continued to operate the businesses transferred without — according to the order for reference — any interruption of production activities having occurred in the meantime. In any event, it follows from the Mikkelsen decision, cited above, that the directive also applies to procedures which may be regarded as falling short of initiation of insolvency proceedings. Consequently, the directive must necessarily also apply to transfers of undertakings declared to be in critical difficulties within the meaning of the Italian legislation referred to above.
            
         V — Conclusion
      
               30.
            
            
               Having regard to the considerations set out above, I propose that the Court should rule as follows in response to the questions referred by the chamber for labour disputes of the Pretura Circondariale di Lecce:
               Council Directive 77/187/EEC of 14 February 1977 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 businesses also applies to transfers of undertakings declared to be in critical difficulties pursuant to a procedure such as that laid down by Italian Law No 675 of 12 August 1977.
            
         (
            *1
         )	Original language: Greek.
      (
            1
         )	OJ 1977 L 61, p. 26.
      (
            2
         )	For a more detailed description of the CIGS scheme, see the Report for the Hearing in Case 22/87 Commission v Italy [1989] ECR 143.
      (
            3
         )	As its title indicates, that law contains provisions concerning compliance with Italy's obligations arising from its membership of the European Community. It was published in the GURI, Supplement No 10, of 12 January 1991.
      (
            4
         )	Comitato di Ministri per il Coordinamento della Pontica Industriale (Ministerial Committee for the Coordination of Industrial Policy), set up by Law No 675 of 12 August 1977.
      (
            5
         )	Hereinafter ‘Law No 675/1977’.
      (
            6
         )	OJ 1994 C 43, p. 6.
      (
            7
         )	See, inter alia, the judgments in Case 53/79 Damiani [1980] ECR273, Case 180/83 Moser [1984] ECR 2539 and Case 338/85 Pardini [1988] ECR 2041.
      (
            8
         )	Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711.
      (
            9
         )	See, inter alia, the judgments in Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, Case C-368/89 Crispoltoni [1991] ECR I-3695 and Case C-186/90 Durighello [1991] ECR I-5773, as well as the judgment in Eurico Italia and Others, cited above.
      (
            10
         )	Case 126/80 Salonia [1981] ECR 1563, paragraph 7.
      (
            11
         )	Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others [1991] ECR I-3757, paragraph 12 et seq.
      (
            12
         )	Judgment in Eurico Italia and Others, cited above, paragraph 11. See also the judgments in Case C-10/92 Balocchi [1993] ECR I-5105, paragraphs 13 and 14, and Case 70/77 Simmenthal [1978] ECR 1453, paragraphs 10 and 11.
      (
            13
         )	Case C-421/92 Habermann-Beltermann [1994] ECR I-1657.
      (
            14
         )	Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.
      (
            15
         )	Case 287/86 Ny Malle Kro [1987] ECR 5465, paragraph 12.
      (
            16
         )	Case 135/83 Abels [1985] ECR 469, paragraph 1 of the operative part.
      (
            17
         )	Case 105/84 Foreningen af Arbejdsledere in Danmark v Danmols Inventar [1985] ECR 2639, paragraph 9.
      (
            18
         )	Case C-362/89 D'Urso and Others [1991] ECR I-4105, paragraph 2 of the operative part.
      (
            19
         )	Paragraphs 14 and 15.
      (
            20
         )	OJ 1975 L 48, p. 29.
      (
            21
         )	OJ 1980 L 283, p. 23.
      (
            22
         )	Paragraph 17 of the judgment in Abels.
      (
            23
         )	Paragraph 22 of the judgment in Abels.
      (
            24
         )	See paragraph 23 of the judgment in Abels.
      (
            25
         )	See the judgments in Case 19/83 Wendelboe and Others [1985] ECR 457, paragraph 10, Case 179/83 FNV [1985] ECR511 and Case 186/83 Botzen and Others [1985] ECR 519, paragraph 1 of the operative part.
      (
            26
         )	Paragraph 28 of the judgment in Abels. See also the observations made by Advocate General Van Gerven in his Opinion in D'Urso, cited above, at I-4119, paragraph 23.
      (
            27
         )	Paragraph 28 of the judgment in Abels.
      (
            28
         )	See paragraph 29 of the judgment in Abels.
      (
            29
         )	Paragraph 32 of the judgment in D'Urso and Others.
      (
            30
         )	Paragraph 2 of the operative part of the judgment in D'Urso and Others.
      (
            31
         )	See paragraph 31 of the judgment in D'Urso and Others.
      (
            32
         )	Paragraph 10 of the judgment in Mikkelsen.