1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 19 SEPTEMBER 1984 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT , BY FAILING TO ADOPT WITHIN THE PERIOD PRESCRIBED ALL THE MEASURES NECESSARY FOR THE IMPLEMENTATION OF COUNCIL DIRECTIVE 77/187 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 ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
2 DIRECTIVE 77/187 , WHICH WAS ADOPTED ON THE BASIS OF , IN PARTICULAR , ARTICLE 100 OF THE EEC TREATY , IS INTENDED , ACCORDING TO ITS PREAMBLE , ' TO PROVIDE FOR THE PROTECTION OF EMPLOYEES IN THE EVENT OF A CHANGE OF EMPLOYER , IN PARTICULAR TO ENSURE THAT THEIR RIGHTS ARE SAFEGUARDED ' . ITS PURPOSE IS TO ENSURE , AS FAR AS POSSIBLE , THAT THE EMPLOYMENT RELATIONSHIP CONTINUES UNCHANGED WITH THE TRANSFEREE .
3 MORE PARTICULARLY , ARTICLE 3 ( 1 ) PROVIDES THAT THE TRANSFEROR ' S RIGHTS AND OBLIGATIONS ARISING FROM A CONTRACT OF EMPLOYMENT OR FROM AN EMPLOYMENT RELATIONSHIP SHALL BE TRANSFERRED TO THE TRANSFEREE ; ARTICLE 3 ( 2 ) PROVIDES THAT FOLLOWING THE TRANSFER THE TRANSFEREE SHALL CONTINUE TO OBSERVE THE TERMS AND CONDITIONS AGREED IN ANY COLLECTIVE AGREEMENT . HOWEVER , ACCORDING TO THE FIRST SUBPARAGRAPH OF ARTICLE 3 ( 3 ), ' PARAGRAPHS 1 AND 2 SHALL NOT COVER EMPLOYEES ' RIGHTS TO OLD-AGE , INVALIDITY OR SURVIVORS ' BENEFITS UNDER SUPPLEMENTARY OR INTER-COMPANY PENSION SCHEMES OUTSIDE THE STATUTORY SOCIAL SECURITY SCHEMES IN MEMBER STATES ' . WITH REGARD TO SUCH RIGHTS THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 3 ) PROVIDES : ' MEMBER STATES SHALL ADOPT THE MEASURES NECESSARY TO PROTECT THE INTERESTS OF EMPLOYEES AND OF PERSONS NO LONGER EMPLOYED IN THE TRANSFEROR ' S BUSINESS AT THE TIME OF THE TRANSFER WITHIN THE MEANING OF ARTICLE 1 ( 1 ) IN RESPECT OF RIGHTS CONFERRING ON THEM IMMEDIATE OR PROSPECTIVE ENTITLEMENT TO OLD-AGE BENEFITS , INCLUDING SURVIVORS ' BENEFITS , UNDER SUPPLEMENTARY SCHEMES REFERRED TO IN THE FIRST SUBPARAGRAPH . '
4 IN ADDITION ARTICLE 6 OF THE DIRECTIVE REQUIRES THE TRANSFEROR AND THE TRANSFEREE TO INFORM AND CONSULT THE WORKERS AFFECTED BY THE TRANSFER . THE PRESCRIBED INFORMATION RELATES TO THE REASONS FOR THE TRANSFER , ITS IMPLICATIONS FOR THE EMPLOYEES AND THE MEASURES ENVISAGED IN RELATION TO THEM ; THE INFORMATION MUST BE GIVEN TO REPRESENTATIVES OF THE EMPLOYEES IN GOOD TIME AND IN ANY EVENT BEFORE THE EMPLOYEES ARE DIRECTLY AFFECTED BY THE TRANSFER AS REGARDS THEIR CONDITIONS OF WORK AND EMPLOYMENT ( PARAGRAPH ( 1 )). IF THE TRANSFEROR OR THE TRANSFEREE ENVISAGES MEASURES IN RELATION TO HIS EMPLOYEES , HE MUST CONSULT THE EMPLOYEES ' REPRESENTATIVES IN GOOD TIME ON SUCH MEASURES WITH A VIEW TO SEEKING AGREEMENT ( PARAGRAPH ( 2 )).
5 UNDER ARTICLE 8 , MEMBER STATES WERE REQUIRED TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS OF ITS NOTIFICATION . SINCE THE DIRECTIVE WAS NOTIFIED TO THE ITALIAN REPUBLIC ON 16 FEBRUARY 1977 , THAT PERIOD EXPIRED ON 16 FEBRUARY 1979 .
6 THE COMMISSION CONSIDERS THAT THE ITALIAN LEGISLATION DOES NOT SATISFY THE REQUIREMENTS OF THE DIRECTIVE IN TWO RESPECTS . FIRST , THE LEGISLATION IN FORCE DOES NOT ENSURE PROTECTION OF THE RIGHTS OF EMPLOYEES AND FORMER EMPLOYEES TO OLD-AGE BENEFITS UNDER SUPPLEMENTARY SCHEMES OF SOCIAL SECURITY PURSUANT TO THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF THE DIRECTIVE ; SECONDLY , THE DUTY IMPOSED ON TRANSFERORS AND TRANSFEREES TO INFORM AND CONSULT EMPLOYEES ' REPRESENTATIVES DOES NOT SATISFY THE REQUIREMENTS OF ARTICLE 6 ( 1 ) AND ( 2 ) OF THE DIRECTIVE . IN CONSEQUENCE , THE COMMISSION , AFTER AN EXCHANGE OF LETTERS WITH THE ITALIAN GOVERNMENT AND AFTER DELIVERING A REASONED OPINION PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 169 OF THE TREATY , BROUGHT THE PRESENT ACTION FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS IN RESPECT OF THE TWO ABOVEMENTIONED MATTERS . IMPLEMENTATION OF THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF DIRECTIVE 77/187
7 FIRST OF ALL , WITH REGARD TO THE ALLEGED FAILURE FULLY TO TRANSPOSE INTO NATIONAL LAW THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF DIRECTIVE 77/187 , THE ITALIAN REPUBLIC DOES NOT DENY THAT IT HAS NOT ADOPTED SPECIFIC RULES FOR THE IMPLEMENTATION THEREOF . THE PARTIES TAKE ISSUE , HOWEVER , ON THE QUESTION WHETHER EXISTING ITALIAN LAW ALREADY SATISFIES THE OBLIGATIONS ARISING FROM THAT PROVISION .
8 IN THAT RESPECT THE ITALIAN GOVERNMENT REFERS TO TWO PROVISIONS OF THE ITALIAN CIVIL CODE , NAMELY ARTICLES 2112 AND 2117 , AND CLAIMS THAT THOSE PROVISIONS , AS INTERPRETED BY THE CORTE SUPREMA DI CASSAZIONE , GUARANTEE EMPLOYEES PROTECTION AT LEAST EQUAL TO THAT REQUIRED BY THE DIRECTIVE . THE PROVISIONS READ AS FOLLOWS : ' ARTICLE 2112 . TRANSFER OF THE UNDERTAKING WHERE AN UNDERTAKING IS TRANSFERRED , CONTRACTS OF EMPLOYMENT WILL CONTINUE TO BE VALID AS AGAINST THE TRANSFEREE UNLESS THE TRANSFEROR HAS GIVEN THE REQUIRED NOTICE AND EMPLOYEES RETAIN THE RIGHTS FLOWING FROM THE SENIORITY ACQUIRED BEFORE THE TRANSFER . THE TRANSFEREE IS LIABLE FOR ANY DEBT WHICH THE TRANSFEROR MAY HAVE VIS-A-VIS EMPLOYEES AT THE TIME OF THE TRANSFER ARISING FROM WORK CARRIED OUT , INCLUDING DEBTS ARISING FROM NOTICE GIVEN BY THE TRANSFEROR , TO THE EXTENT THAT THE TRANSFEREE HAD KNOWLEDGE OF THEM AT THE TIME OF THE TRANSFER OR THAT THE DEBTS APPEAR IN THE BOOKS OF THE UNDERTAKING TRANSFERRED OR ON THE EMPLOYEE ' S PERSONAL FILE . ' ' ARTICLE 2117 . SPECIAL INSURANCE AND AID FUNDS THE SPECIAL INSURANCE AND AID FUNDS ESTABLISHED BY THE EMPLOYER , EVEN IF THE EMPLOYEES HAVE NOT CONTRIBUTED THERETO , MAY NOT BE USED FOR PURPOSES OTHER THAN THOSE FOR WHICH THEY WERE INTENDED AND MAY NOT BE ATTACHED BY THE CREDITORS OF THE EMPLOYER OR THE EMPLOYEE . '
9 THE ITALIAN GOVERNMENT STATES THAT ARTICLE 2112 LAYS DOWN THE GENERAL RULE THAT THE NEW PROPRIETOR OF THE UNDERTAKING IS TO REPLACE THE FORMER PROPRIETOR IN THE CONTRACT OF EMPLOYMENT . UNDER ESTABLISHED CASE-LAW THAT PROVISION ALSO APPLIES TO RIGHTS ARISING UNDER SUPPLEMENTARY PENSION SCHEMES SINCE SUCH SCHEMES CONFER RIGHTS UPON EMPLOYEES WITHIN THE FRAMEWORK OF THEIR EMPLOYMENT RELATIONSHIP . IN SUPPORT OF THAT ASSERTION THE ITALIAN GOVERNMENT REFERS TO SEVERAL JUDGMENTS OF THE CORTE SUPREMA DI CASSAZIONE , COPIES OF WHICH IT HAS FORWARDED TO THE COURT . IT CLAIMS THAT THOSE JUDGMENTS SHOW THAT THE BENEFITS PAYABLE UNDER SUPPLEMENTARY PENSION SCHEMES REPRESENT DEBTS ARISING OUT OF EMPLOYMENT AND THAT THE CONTRACT OF EMPLOYMENT GUARANTEES THAT SUCH SCHEMES WILL CONTINUE WITH THE TRANSFEREE , IRRESPECTIVE OF WHETHER THE FUNDS IN QUESTION ARE INTERNAL OR EXTERNAL TO THE UNDERTAKING .
10 THE ITALIAN GOVERNMENT EXPLAINS THAT ARTICLE 2117 PROVIDES AN ADDITIONAL GUARANTEE THAT EMPLOYEES OR FORMER EMPLOYEES SHALL RECEIVE AMOUNTS DUE TO THEM .
11 THE COMMISSION CHALLENGES THOSE CONTENTIONS MAINLY ON THE GROUND THAT THERE IS NO SUFFICIENTLY CLEAR AND ESTABLISHED CASE-LAW WHICH EXTENDS THE SCOPE OF THE PROVISIONS CITED BY THE ITALIAN GOVERNMENT TO RIGHTS TO OLD-AGE AND SURVIVORS ' BENEFITS UNDER SUPPLEMENTARY SCHEMES .
12 THE COMMISSION CONSIDERS THAT ARTICLE 2112 EXCLUDES SUPPLEMENTARY PENSION SCHEMES SET UP OUTSIDE THE UNDERTAKING IN THE FORM OF FUNDS WHICH ARE LEGALLY SEPARATE , SINCE IN SUCH CASE THE RIGHTS TO BENEFITS MAY NOT BE ASSERTED AGAINST THE EMPLOYER OR UNDERTAKING BUT AGAINST A THIRD PARTY WHO IS NOT PRIVY TO THE EMPLOYMENT RELATIONSHIP .
13 ACCORDING TO THE COMMISSION , IT IS TRUE THAT THE EFFECT OF ARTICLE 2117 IS TO PUT SPECIAL PENSION FUNDS OUTSIDE THE REACH OF THE UNDERTAKING ' S CREDITORS ; THAT PROVISION DOES NOT , HOWEVER , SAFEGUARD THE RIGHTS OF EMPLOYEES SHOULD THE NEW EMPLOYER DECIDE NOT TO RETAIN THE SUPPLEMENTARY PENSION SCHEME .
14 THE PARTIES ARE THUS AT ISSUE ON THE SCOPE OF THE AFORESAID NATIONAL PROVISIONS AND IN PARTICULAR ON THE QUESTION WHETHER UNDER THOSE PROVISIONS RIGHTS OF EMPLOYEES AND FORMER EMPLOYEES UNDER SUPPLEMENTARY PENSION SCHEMES ARE TO BE REGARDED IN ALL CASES AS RIGHTS ARISING FROM THE EMPLOYMENT RELATIONSHIP AND , AS SUCH , ARE TRANSFERRED IN THEIR ENTIRETY FROM THE TRANSFEROR TO THE TRANSFEREE IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF THE DIRECTIVE . THE ANSWER TO THAT QUESTION DEPENDS ON HOW THOSE PROVISIONS HAVE BEEN APPLIED IN PRACTICE , IN PARTICULAR BY THE NATIONAL COURTS . THE ITALIAN GOVERNMENT HAS CITED SEVERAL CASES . THE COMMISSION , ON THE OTHER HAND , HAS SUBMITTED NO EVIDENCE TO JUSTIFY ITS DOUBTS AND IN PARTICULAR HAS NOT CITED ANY CASE-LAW TO SUPPORT ITS VIEWS OR REFERRED TO ANY SPECIFIC INSTANCE IN WHICH EMPLOYEES ' RIGHTS HAVE NOT BEEN FULLY SAFEGUARDED TO THE EXTENT PRESCRIBED BY THE DIRECTIVE .
15 IN THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE COMMISSION HAS NOT ESTABLISHED , TO THE REQUIRED STANDARD OF PROOF , THAT ITALIAN LAW DOES NOT PROVIDE THE FULL DEGREE OF PROTECTION PRESCRIBED BY THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF DIRECTIVE 77/187 .
16 IN CONSEQUENCE , THE FIRST COMPLAINT MUST BE REJECTED . IMPLEMENTATION OF ARTICLE 6 ( 1 ) AND ( 2 ) OF DIRECTIVE 77/187
17 WITH REGARD TO THE ALLEGED FAILURE FULLY TO TRANSPOSE INTO NATIONAL LAW ARTICLE 6 ( 1 ) AND ( 2 ) OF DIRECTIVE 77/187 , IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT ITALIAN LAW PRESCRIBES CERTAIN PROCEDURES FOR INFORMING AND CONSULTING EMPLOYEES ' REPRESENTATIVES IN THE EVENT OF THE TRANSFER OF AN UNDERTAKING . THOSE PROCEDURES ARE LAID DOWN ON THE ONE HAND BY COLLECTIVE AGREEMENTS AND ON THE OTHER BY LAW NO 215 OF 26 MAY 1978 ON RULES TO FACILITATE THE MOBILITY OF WORKERS AND RULES CONCERNING UNEMPLOYMENT FUNDS .
18 THE COMMISSION CLAIMS THAT THE SAID MEASURES DO NOT ENSURE GENERAL AND UNCONDITIONAL FULFILMENT OF THE OBLIGATIONS ARISING UNDER THE DIRECTIVE . THE SCOPE OF THE COLLECTIVE AGREEMENTS IS LIMITED TO SPECIFIC ECONOMIC SECTORS AND TO EMPLOYERS ' ASSOCIATIONS OR UNDERTAKINGS AND TRADE UNIONS WHICH ARE PARTIES TO THE AGREEMENTS . LAW NO 215 OF 26 MAY 1978 LAYS DOWN SPECIAL RULES TO COVER PARTICULAR CIRCUMSTANCES AND IS THEREFORE OF LIMITED SCOPE .
19 THE ITALIAN GOVERNMENT DOES NOT DENY THE FACTS ALLEGED BY THE COMMISSION . IT SIMPLY EMPHASIZED IN THE PROCEEDINGS BEFORE THE COURT THAT THE MOST IMPORTANT AND MOST WIDESPREAD COLLECTIVE AGREEMENTS HAVE FOR YEARS RECOGNIZED THE RIGHT OF WORKERS TO INFORMATION AND LAID DOWN APPROPRIATE PROCEDURES FOR THE BENEFIT OF THE WORKERS CONCERNED ; MOREOVER , THERE ARE SIMILAR OBLIGATIONS UNDER LAW NO 215 OF 26 MAY 1978 FOR UNDERTAKINGS WHICH ARE DECLARED TO BE IN A STATE OF CRISIS .
20 WITH REGARD TO THOSE OBSERVATIONS IT MUST BE REMEMBERED THAT , AS THE COURT HELD IN ITS JUDGMENT OF 30 JANUARY 1985 IN CASE 143/83 ( COMMISSION V DENMARK ( 1985 ) ECR 427 ), IT IS TRUE THAT THE MEMBER STATES MAY LEAVE THE IMPLEMENTATION OF THE SOCIAL POLICY OBJECTIVES PURSUED BY A DIRECTIVE IN THIS AREA IN THE FIRST INSTANCE TO MANAGEMENT AND LABOUR . THAT POSSIBILITY DOES NOT , HOWEVER , DISCHARGE THEM FROM THE OBLIGATION OF ENSURING THAT ALL WORKERS IN THE COMMUNITY ARE AFFORDED THE FULL PROTECTION PROVIDED FOR IN THE DIRECTIVE . THE STATE GUARANTEE MUST COVER ALL CASES WHERE EFFECTIVE PROTECTION IS NOT ENSURED BY OTHER MEANS .
21 THE ITALIAN GOVERNMENT ITSELF HAS ADMITTED THAT ONLY CERTAIN COLLECTIVE AGREEMENTS LAY DOWN PROCEDURES FOR INFORMING AND CONSULTING REPRESENTATIVES OF EMPLOYEES AFFECTED BY THE TRANSFER OF AN UNDERTAKING . HOWEVER WIDESPREAD AND IMPORTANT SUCH AGREEMENTS MAY BE , THEY COVER ONLY SPECIFIC ECONOMIC SECTORS AND , OWING TO THEIR CONTRACTUAL NATURE , CREATE OBLIGATIONS ONLY BETWEEN MEMBERS OF THE TRADE UNION IN QUESTION AND EMPLOYERS OR UNDERTAKINGS BOUND BY THE AGREEMENTS .
22 IT IS MOREOVER COMMON GROUND THAT LAW NO 215 OF 26 MAY 1978 DOES NOT FULLY SATISFY THE REQUIREMENTS OF THE DIRECTIVE , SINCE THAT LAW APPLIES ONLY WHERE AN UNDERTAKING IS DECLARED BY ORDER OF THE EMPLOYMENT MINISTER TO BE ' IN A STATE OF CRISIS ' AND WHERE A SOLUTION TO THE CRISIS IS POSSIBLE BY MEANS OF A TRANSFER .
23 IN THOSE CIRCUMSTANCES THE ITALIAN REPUBLIC WAS REQUIRED TO ADOPT APPROPRIATE LAWS , REGULATIONS OR ADMINISTRATIVE MEASURES TO ENSURE THAT ALL WORKERS WHO MIGHT BE AFFECTED BY THE TRANSFER OF AN UNDERTAKING AND WHO WERE NOT COVERED BY COLLECTIVE AGREEMENTS RECEIVED THE PROTECTION PROVIDED FOR IN ARTICLE 6 ( 1 ) AND ( 2 ) OF THE DIRECTIVE .
24 FOR THOSE REASONS IT MUST BE CONCLUDED , WITH REGARD TO THE SECOND CLAIM MADE BY THE COMMISSION , THAT , BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD ALL THE MEASURES NEEDED TO COMPLY FULLY WITH ARTICLE 6 ( 1 ) AND ( 2 ) OF COUNCIL DIRECTIVE 77/187 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 ( OFFICIAL JOURNAL 1977 , L 61 , P . 26 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .