Trasferimento d’azienda e crisi d’impresa: una eterogenesi dei fini da parte del legislatore italiano?

The rules regarding the transfer of undertakings when the transferor is in a situa-tion of economic crisis have been crafted by Italian law, in light of the relevant EU law provisions, according to different rationales compared to the general rules re-garding the transfer of undertakings. Given the specific nature of insolvency law, Article 48, para. 4-bis and 5 of the Law No. 148/1990 has admitted the possibility for the transferor and the transferee, on the one hand, and the trade unions, on the other hand, to enter into an agreement that can provide that all or some of the rules generally provided to safeguard the rights of the employees involved in the relevant transfer may not apply. However, the scope of the relevant Italian provision seems to go beyond the admissible limits imposed by the applicable EU provisions, in par-ticular Article 5 of the Directive 2001/23/EC. After a detailed analysis of the EU case-law on the matter, this essay tries to under-stand whether the local provisions are consistent with the Directive 2001/23/EC and which would be the possible implications on the possible non-compliance of Italian law with the relevant EU provisions. In this respect, the latest decisions on the “Alitalia-Ethiad” transfer of undertaking will be taken into account. Building on the results of the analysis of the relevant Italian case-law, this essay will finally suggest that the Italian legislator has failed to provide a set of rules that is neither in the in-terests of the employees involved in the transfer to have their rights guaranteed nor in the interests of the parties of transfer to sidestep the economic crisis of the trans-feror by disapplying part of the protective rules generally provided in case of a transfer of undertaking.