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Transposition of the SE legislation in Italy (Updated report: January 2005)

During the week preceding Christmas 2004, the social partner delegations met to finalise a draft agreement on transposition of the SE directive. The meeting was successful. The resulting agreement must still be subject to internal discussion and approved by all the social partner organisations. Thus it is not an official document and not available to the public. For this reason it is impossible to give a detailed overview of its contents. However, some important points are clear:

1. There will be no opt-out.

2. There is a preference for a dualistic model, with employee representation on a supervisory board.

3. There is agreement between the three major trade union confederations that employee representatives on the supervisory board (or, where that is impossible, the administrative board) shall not be elected, but jointly appointed by the trade unions.

4. Also, provisions for experts, etc., were defined in detail (in more detail than in the CBA transposing the EWC directive).

5. The social partners did not lay down any sanctions, as this is not their role (although they did recommend some).

This agreement constitutes major progress towards transposition. However, while the way forward is simple on paper, it is quite complicated in reality. The CBA will (probably) be signed and registered by mid-February (by the end of January, according to optimists). At this point, it can be submitted to the government, which will probably enshrine it in law by decree. At this point the government will inform the European Commission and the directive will be considered officially transposed. In any case, in Italian jurisprudence collective bargaining agreements have juridical value, as the erga omnes principle is normally applied. This means that the CBA is legally binding from the moment it enters into force, even if there is no government decree – a temporary solution that allows the government time to tackle (and possibly resolve) the contradiction between the SE regulation and directive and the recent reform of company law (the so-called Vietti reform – see Country Report on Italy). In this case, however, sanctions would not apply.

As a matter of fact Italy finds it itself in a paradoxical situation. The government must “reform the Vietti reform” if it wants to transpose the directive. On top of that, while technically all the necessary conditions are in place for transposition of the SE directive, the SE regulation still needs to be adopted.

Or will Italy find itself in a situation in which employee participation in the SE is defined, but it is impossible to establish an SE under Italian law? For some time – particularly with general elections coming up – this will probably be the case.

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