Opinions
Transfer of undertakings; workers’ opposition prevents the transfer of employment.
A ruling from the Labour Court of Ravenna (26 June 2025) risks opening a breach in the case law, consolidated for years, that denies the right of workers to oppose the transfer.
The judgment in question deals with a transfer of a branch of a business with over one hundred employees. The plaintiffs, the majority of the workers, who objected to the transfer of their employment relationships, appealed against the transfer and requested that the transferor company be ordered to reinstate the employment relationship, without a break from the transfer. The Labour Court of Ravenna upheld the workers’ appeal.
In the matter of transfer of undertakings, Italian case law has always held that the workers have no right to oppose the transfer. This is because the transfer of a company would constitute a legal succession in the employment contract, with the consequent exclusion, for the purposes of the completion of the transfer contract, of the consent of the transferred workers.
The Labour Court of Ravenna considers that such jurisprudential orientation is not in conformity with the relevant EU principles and must therefore be disregarded.
Article 2112 of the Italian Civil Code, which governs the rights of workers in the event of the transfer of a business, was amended to implement EU Directives 1977/187/EEC, 1998/50/EC and 2001/23/EC. The purpose of these directives was to protect workers in the event of the transfer to another entity of the business in which they wished to continue to work, and it is for this reason that the Italian legislature adopted a hyper-extensive notion of “business” and “branch of business” – a notion that considers a branch of business to be any “functionally autonomous articulation of an organised economic activity, identified as such by the transferor and the transferee at the time of its transfer” (Article 2112, Italian Civil Code, last paragraph). However, underlines the Labour Court of Ravenna, the hyper-extensive notions of business and business branch must be applied to the hypotheses in which the workers aspire to remain working within the transferred company and, therefore, to “pass” from the transferor to the transferee, with the transfer of the company. When, on the other hand, the workers do not wish to transfer to the transferee, the over-extensive notions of “business” and “branch of business” do not apply.
In addition, the Court of Justice of the European Union (Katsikas, Merckx and Temco judgments) recognizes the right of workers to oppose the automatic transfer of the employment relationship to the transferee and therefore the Italian legislation should also be interpreted in the sense of recognizing the worker’s right to oppose.
In conclusion, the Labour Court of Ravenna ruled that in the event of workers’ opposition to the transfer, there is no automatic “transfer” to the transferee, with the consequence that the workers have the rights to maintain their employment at the transferor.
This is undoubtedly a ruling that, although isolated and not final, will cause much discussion and from which disruptive consequences may arise in transfer of undertakings operations.
This newsletter is for the sole purpose of providing updates and general information and is not intended as legal advice on any particular or specific issue.
For clarifications or information, please contact the author or your reference professional in the Employment area at our Firm.
Michele Giammusso, Counsel
E: m.giammusso@nmlex.it
T.: +39 026575181
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