HR Consultancy

An employee who forwards company files to his lawyer cannot be fired

The dismissal of an employee who forwarded more than 200 files, containing confidential information about the employer’s business, to his lawyer was ruled unlawful. This was because the only recipient was the employee’s lawyer (who owes a mandatory duty of confidentiality) and the information was not disclosed to third parties.

Supreme Court, 5 March 2014, no. 5179

Transfer of undertaking law complies with EU law

The law which allows the transferor and the transferee to identify the branch of a company at the time of the transfer (even if it did not exist as an independent entity prior to that point) is not in breach of EU law.

European Court of Justice, 6 March 2014, C-458/12

Renewal of NCBA for Construction Sector

The negotiation between the employers’ associations and the Unions (Feneal-Uil, Filca-Cisl and Fillea-Cgil) for the renewal of the NCBA for more than 800,000 employees belonging to the Construction Sector is still ongoing.

Illegal work: strict sanctions

The Ministry of Labour has issued guidelines on administrative fines and additional fines for cases of suspension under Article 14 of Law Decree no. 145/2013 as amended by Law no. 9/2014.

Ministry of Labour, Circular dated 4 March 2014, no. 5

Litigation and dispute management

Establishment of jurisdiction in parallel proceedings before the courts of different EU Member States  

Except in the situation where the court second seised has exclusive jurisdiction, the jurisdiction of the court first seised must be regarded as being established, if that court has not declined jurisdiction and none of the parties has challenged its jurisdiction prior to or up to the time at which a position is adopted which is regarded in national procedural law as being the first defence of substance submitted before that court.

European Court of Justice, 27 February 2014, C-1/13 (on a request for preliminary ruling raised by the Court of Cassation (France))

Article 27(2) of Council Regulation (EC) No 44/2001 of 22 December 2000

Public procurement

Split of jurisdiction between administrative and ordinary courts

Administrative courts have jurisdiction over disputes regarding the procedure of assignment of works, services, and supplies to the other party by the Public Administration, whilst ordinary courts have jurisdiction over disputes arising out of the execution of the agreements entered into on the basis of the adjudication. This general principle has been confirmed with reference to a claim regarding the non-exercise by the Public Administration of its faculty to terminate an agreement due to non-performance of it by the private party.  In this case, the administrative court declined jurisdiction in favour of the ordinary courts.

Administrative Regional Court of Naples, 30 January 2014

Corporate

A company can be bought by adverse possession (usucapione)

The case relates to a chemist’s which had been managed by the same individual for over 20 years. Following the death of the owner, the individual claimed that he had taken over the ownership of the chemist’s business by adverse possession (usucapione). The Court rules that the ongoing business is the aggregate of its assets (tangible and intangible) and legal relationships organized for the running of the business activity, according to section 2555 of the Italian Civil Code.  In the Court’s opinion, it shall be considered as a joint asset separate to the other assets.

Joint Chambers of the Supreme Court, 5 March 2014, no. 5087

Law dated 28 February 2014, no. 15