Commentary on Judgment No. 11198 of 04/26/2024: Pension Funds and Business Transfer

Judgment No. 11198 of April 26, 2024, by the Court of Appeal of Milan offers important clarifications regarding the employer's obligations concerning supplementary pension funds, particularly in relation to business transfers. This topic is of great relevance both for employees, who may face difficulties in recovering amounts owed, and for employers, who must navigate a complex regulatory landscape.

Obligation to Pay TFR Contributions

According to the Court's ruling, if the employer fails to fulfill the obligation to pay the accruing TFR (severance pay) contributions to the pension fund chosen by the employee, the latter remains a creditor towards the employer for the corresponding amount. In the event of a business transfer, the new acquiring employer takes over the obligation to pay, as provided by Article 2112 of the Civil Code.

• The transferring employer is not released from its obligations until the time of the transfer.
• The acquiring employer is required to comply with payment obligations, including those related to pension funds.
• The employee has the right to claim the payment of amounts owed from the new employer as well.

Insolvency and Intervention of the INPS Guarantee Fund

A crucial aspect emerging from the judgment concerns the insolvency of the transferring employer. In such cases, an employee might consider turning to the INPS Guarantee Fund, established by Legislative Decree No. 80 of 1992. However, the Court clarified that such a request cannot be granted if insolvency is declared after the business transfer. This is because the prerequisite of the acquiring employer being subject to one of the procedures referred to in Article 1 of the aforementioned decree is not met.

Supplementary pension funds - Employer's obligation to pay accruing TFR contributions to the pension fund - Business transfer pursuant to Art. 2112 of the Civil Code - Acquiring employer's assumption of the transferring employer's payment obligation - Existence - Insolvency of the transferring employer - Intervention of the INPS Guarantee Fund pursuant to Art. 5 of Legislative Decree No. 80 of 1992 - Request for intervention subsequent to the transfer - Unfoundedness - Reasons. In the matter of supplementary pension funds, if the employer fails to fulfill the obligation to pay the accruing TFR contributions to the pension fund chosen by the employee, the latter remains a creditor towards the employer for the corresponding amount of a salary nature, and in the event of a business transfer, the acquiring employer assumes this debt pursuant to Art. 2112 of the Civil Code, being obliged to fulfill it under the same terms; however, this implies that the employee's request for intervention by the Guarantee Fund pursuant to Art. 5 of Legislative Decree No. 80 of 1992, made due to the insolvency of the transferor declared after the business transfer, cannot be granted, as the prerequisite of the acquiring employer being subject to one of the procedures referred to in Art. 1 of the aforementioned Legislative Decree is absent.

Conclusions

In conclusion, Judgment No. 11198 of 2024 represents an important clarification for all parties involved in the employment relationship and the management of pension funds. The obligation to pay TFR contributions, even in the case of a business transfer, remains a central issue, as does the need to protect employees' rights, who, in case of non-compliance, can turn to the new employer. However, it is crucial for employees to be aware of the limitations of the INPS Guarantee Fund to avoid disappointment in situations of the transferor's economic difficulty.