On 23 July 2016 Community Law No. 122/2016 came into force containing new rules on the management of personnel in the event of succession of procurement. The legislation replaces Article 29, paragraph 3, of Legislative Decree No. 276/2003, which excludes the applicability of the rules of transfer of a company in cases of a contractor taking over from another in the management of the same service. According to EU rules, on the one hand, it is not possible to exclude the safeguarding of employees’ rights in cases of this kind, such as the change of a contract, which are comparable to the transfer of a company; on the other hand, this safeguards the principle that the succession of procurement and the transfer of a company constitute separate situations and, as such, deserve different rules. In that regard, the legislative amendment has identified certain conditions where the above distinction applies. In particular, the acquisition of staff already employed in the contract does not involve the application of the rules of transfer of a company (i) when the takeover in the management of the service takes place in favour of an entity with its own organisational and operating structure, and (ii) where there are elements of discontinuity with the previous contractor which result in a specific identity as a company. The most arduous task will be the responsibility of case-law: identifying the aforesaid elements, on a case-by-case basis.
