The Re-internalization of Public Services: Which Rights for the Workers in the Light of the European Legal System?

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Abstract

Italian public administrations have historically played – and to a certain extent they still play – a fundamental role in many strategic economic areas. However, the State has been playing this role in extremely different ways: therefore, it’s possible to distinguish different legal models. Among these, a very peculiar position has been the one of the local public administrations: since the beginning of the XX century, via some special structure – called municipal utilities – they have been operating in significant segments of the country's economy. After the privatization season of the 1990’s, these structures crossed over into private societies, in many cases totally or largely controlled, directly or indirectly, by public administrations. These hybrid societies – private in form, public in substance – have been the subject in-depth scientific legal analysis for a long time, especially by scholars of administrative law and commercial law. The labour law-scholars have just recently begun to study employment relations of these particular companies, also as a result of the approval of the Legislative Decree no. 175/2016, that includes new rules applicable to employees of companies controlled by public administrations. First at all, this law clarifies that the rules applicable to the employment-relationship are those of private labour law, with a significant exception, i.e. the rules concerning open competitions for the recruitment. These rules actually determine a series of consequences that have not been carefully evaluated by the legislator. The second main prevision of the Legislative Decree no. 175/2016, strictly connected to the first one, involves the so called “backsourcing”, a phenomenon already known in the economics literature with respect to private companies: now we can see the first effects also in the public sector. Indeed, the number of local public administrations that decide to re-internalize an activity, a business or a part of business is increasing, also as a consequence of the economic crisis. In case of re-internalization of a service from a company to a public administration, the law guarantees workers' rights only under certain conditions: the most important is that the workers were already employees of the public administration before the outsourcing. The essay will focus on the connection between the re-internalization and the European legal system, especially in relation to the Directive 77/187/EEC – relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses – and to the most important rulings in this area that involved public administrations (e.g. C-108/10 – Scattolon).
Lingua originaleEnglish
Titolo della pubblicazione ospiteRecent labour law issues. A multilevel perspective
EditorS. Bellomo
Pagine190-200
Numero di pagine11
Stato di pubblicazionePubblicato - 2019

Keywords

  • European Legal System
  • Labour law
  • Re-internalization of Public Services

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