The Supreme Court confirmed the illegality of the transfer of a branch when the transferred unit does not have a real functional and organizational independence. The cue is given by the recent decision number 4500 of March 8th, 2016.

Among two of companies in the telecommunications sector, T.I. s.p.a. and E.S. s.p.a., a transfer of the general services unit was set, but a few months later the transferred structure was dismantled in three other smaller centers, and then, sold to a third company. Some employees appealed this operation claiming that the business sold would have never had a functional autonomy after the transfer operation.

The risk is to circumvent the rules and use the tool of the unit transfer improperly, for instance, in order to fire staff, considering that the transfer also includes employment contracts. The workers could find themselves in a new company with lower protections and treatments compared to the previous employment.

Law and jurisprudence, however, have reiterated many times a fundamental principle: the contract of business unit-transfer, in order to be genuine, must provide that the portion sold is functionally and organizationally independent from the rest of the company. In other words, it must be a structure that would continue to exist “by itself”. The requirement is that there is an organized group of persons and material elements making it possible to pursue an economic activity, as required by the decree n.276/2003. The previous legislation governing, art.2112 civil code, even provided the requirement of pre-existence of the structure to the transfer.

However, it must be recalled that the burden of proof to show the existence of a branch transfer is paid by the transferor company. It is an exception to the general law principle that requires to the worker transferred his consent to accept the change in ownership of the employment relationship.