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International Procurement: New Tool From EU

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The EU has opened its public procurement markets to a significant degree to competitors from third countries and has been advocating for the end of protectionist measures.

With the aim to help EU companies with more opportunities to tender outside the EU, European Parliament has adopted yesterday, december 14 2021, its position on the international procurement instrument.

Parliament backed the overall aim of the proposed International Procurement Instrument (IPI) but tweaked its design, scope and member states’ discretionary powers in the way it is applied.

The IPI encourages public procurement markets in countries that protect this sector to be more open. It does so by introducing measures that limit non-EU companies’ access to open EU public procurement tenders if they come from countries that do not offer similar access to EU enterprises.

The instrument would empower the Commission to determine whether and to what extent companies from a third country must be subject to an IPI measure.

Commission can choose beetween to two types of IPI measures to resolve unequal access to public procurement markets:

  • adjusting the score given to bids made by companies subject to IPI (without affecting the price to be paid to the successful bidder);
  • excluding the company from bidding.

In addition, national contracting authorities can only opt out from IPI measures in two cases:

  • when all bids have been made by companies from countries subject to an IPI measure;
  • and in cases where the public interest overrides IPI considerations, such as in areas of public health or environmental protection.

However, MEPs insist that companies from least developed countries and vulnerable developing countries should be exempt.

MEPs establish different thresholds to determine which procurement procedures are subject to an IPI measure:

  • those worth at least €10 million for works and concessions (such as highway construction);
  • those worth at least €5 million for goods and services.

The adopted text serves as the negotiating mandate for the parliamentary delegation that is set to start talks on the final form of the instrument with the Council on the next 16 December.

Federico Allavelli

Italian Freezing Of Redundancies: Better To Summarize

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Italian government identifies a solution to face the pressures received (DL 99/2021 of last June 30, Art. 4).

Employers in the fashion and extended textile sector with the beginning of the Ateco code 13, 14 and 15 remain precluded until 31 October 2021 from the possibility of individual and collective economic redundancies.

In view of the block, it was possible for a maximum duration of seventeen weeks in the period between 1 July and 31 October 2021 to grant the ordinary wage supplement treatment (art.19 and 20 DL 18/2020) without the payment of the additional contribution.

Lowering the new provision in the context of the ‘Sostegni’ Decree (art.8 DL 41/2021 converted by L 69/2021), it follows that:

  • The general block on dismissals for workers of companies that have CIGO and extraordinary CIG (especially industry and agriculture) ended on 30 June 2021
  • Redundancies are forbidden until October 31, 2021 for employers in the fashion and extended textile sector with the beginning of the Ateco code 13, 14 and 15
  • Redundancies are prohibited until October 31, 2021 for workers of companies covered by ‘FIS’ and instruments in derogation (especially tertiary)

In any case, while the block is in effect, it is always possible to terminate the employment relationship in the following cases

  • corporate collective agreement
  • expansion contract
  • reinstatement for change of contract
  • bankruptcy
  • definitive termination of the company’s business (which does not involve the transfer of a company or one of its branches)
  • just-cause dismissal
  • dismissal for disciplinary reasons
  • dismissal for exceeding the grant period of illness
  • dismissal for failure to pass the probationary period
  • dismissal for reaching age for the use of the old-age pension
  • dismissal for unfitness for duties
  • dismissal of the domestic worker
  • dismissal of the manager (even if a recent jurisprudential orientation is contrary)
  • the termination of the apprenticeship at its expiration date
  • consensual employment terminations and resignations for just cause
https://www.leaders-in-law.com//lawyers/federico-allavelli/

To Prohibit The Use Of The Islamic Headscarf Or Christian Crucifix In The Workplace Constitutes Discrimination ?

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The question is whether an internal rule of a private undertaking prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace constitutes direct discrimination.

The Court of Justice of the European Union returns to the topic (Judgment 15 July 2021).

The Court reminds that such a rule does not constitute discrimination of that sort provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.

A rule of this kind, provided it is applied in a general and indiscriminate manner, does not establish a difference in treatment.

The mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate.

In the case in question, therefore, the dismissal of a nursery employee who had refused to remove the Islamic veil seemed legitimate.

The structure had imposed an internal regulation based on the principle of neutrality.

It should be noted that the employer had, for the same reasons, prohibited the christian crucifix to another employee.

Federico Allavelli

Brexit And Italian Social Safety Nets

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Brexit had a first phase with the agreement called the Withdrawal Agreement (hereinafter WA), which entered into force on February 1, 2020.

On December 24, 2020, an agreement on trade and cooperation was concluded (Trade and Cooperation Agreement, hereinafter TCA).

The Protocol on social security coordination, hereinafter PSSC, forms an integral part of this agreement.

The Italian national social security institute (INPS), with circular 98/2021, provided the first operational indications regarding social safety nets in application of the PSSC.

First of all, it should be noted that the subjective application of the PSSC is more extensive than WA: not only for EU and British citizens, but for all “persons, including stateless persons and refugees, who are or have been subject to the legislation of one or more States, as well as their family members and survivors ”.

Unemployment indemnity

Where a State requires for the indemnity

  • periods of insurance,
  • employment or self-employed activity

it takes into account the periods of insurance, employment or self-employment accrued under the legislation of any other State.

If the calculation of indemnity is based on the amount of the salary or previous professional income, the State takes into account the last employed or self-employed activity.

Family benefits

The PSSC excludes family indemnity from its material scope.

Consequently, in the relations between Italy and the United Kingdom, the national legislation on family benefits will apply and therefore, for Italy, the provisions of Article 2, paragraph 6-bis, of Law Decree 69/1988.

Sickness, maternity and paternity indemnities

For the purpose of recognizing the right to these indemnities, it will be possible to aggregate the insurance periods deriving from work carried out in the United Kingdom with the insurance periods completed in Italy.

Federico Allavelli

A ‘Like’ At The Basis Of The Dismissal: Between Freedom Of Expression And Breach Of The Fiduciary Bond

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Can a ‘like’ on Facebook damage the fiduciary bond in order to motivate a dismissal?

The ECtHR, under certain conditions, says no: it would violate Article 10 (freedom of expression) of the European Convention on Human Rights (ECtHR, Section II, June 15, 2021, no. 35786/19).

The case submitted involved the dismissal of an employee of the Turkish Ministry of National Education.

The worker had given a “like” to certain Facebook content published by third parties containing:

  • political criticism against alleged repressive methods of the authorities
  • appeals and calls for demonstrations to protest against these practices
  • expressions of indignation
  • reports of alleged abuse of students
  • a strong reaction to a statement, deemed sexist, made by a religious figure known to the public

She was fired and the Turkish authorities confirmed the dismissal.

The Turkish authorities had considered that the several ‘Like’ to the publications in question were capable of disturbing the quiet of the workplace.

The Strasbourg Court took a different view.

He noted that these were topics of general interest for debate.

And Article 10 of the Convention, for Political Speeches and Matters of General Interest, does not allow any restrictions.

The Turkish authorities therefore incorrectly assessed the facts and factors, reaching the wrong conclusion that the ‘like’ was capable to disturb the peace and tranquility of people in the workplace.

The Strasbourg Court, condamning Turkey, also assessed the disproportion between the expulsive order and the underlying facts, ruled that the national courts had not applied the rules according to the principles enshrined in Article 10 of the Convention placed as a guarantee of freedom of expression.

 

Italian Freezing Of Redundancies: Still Uncertainties

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Uncertainties remain on the future of the Italian freezing of redundancies.

The government is currently evaluating various hypotheses.

The “Decreto Sostegni”, currently, extends the prohibition on dismissal (paragraphs 9 and 10, art.8, DL 41/2021):

  • till June 30th 2021 for workers of companies with ordinary and extraordinary CIG (especially industry and agriculture)
  • till October 31st 2021 for workers of companies covered by instruments in derogation (especially tertiary sector)

The following are still excluded from the prohibition:

  • corporate collective agreement
  • expansion contract
  • reinstatement for change of contract
  • bankruptcy
  • definitive termination of the company’s business (which does not involve the transfer of a company or one of its branches)
  • just-cause dismissal
  • dismissal for disciplinary reasons
  • dismissal for exceeding the grant period of illness
  • dismissal for failure to pass the probationary period
  • dismissal for reaching age for the use of the old-age pension
  • dismissal for unfitness for duties
  • dismissal of the domestic worker
  • dismissal of the manager (even if a recent jurisprudential orientation is contrary)
  • the termination of the apprenticeship at its expiration date
  • consensual employment terminations and resignations for just cause

Federico Allavelli

Italian Subcontracting: The News Of The ‘Simplification Decree’

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Another change in terms of italian subcontracting.

The ‘Simplification Decree’ (Art. 49 DL 77/2021) modifies, temporarily (for now), the legal discipline of the subcontracting regime.

Starting from the current month of June here is the news.

Until October 31, 2021, the subcontract cannot exceed 50% of the total amount (currently it is 30%).

The full transfer / execution of the contract to third parties is still prohibited, as well as the prevalent execution of labor-intensive processes.

The subcontractor must guarantee the same quality standards and grant workers an economic and regulatory treatment not inferior to the previous one.

From 1 November 2021, all quantitative limits on subcontracting are removed.

The contracting authorities will indicate in the tender documents:

  • the services that must be compulsorily performed by the contractor
  • the necessary works to strengthen control, protection and safety of workers
  • how to prevent the risk of criminal infiltration (unless subcontractors are registered in the white list or in the anti-mafia registry)

The main contractor and the subcontractor are in any case jointly and severally liable towards the contracting authority.

Federico Allavelli

Italian Expansion Contract Strengthened

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With the recent italian ‘Sostegni Bis’ Decree (art.39, DL 73/2021) the expansion contract is further strengthened (art. 41 DLGS 148/2015).

Exclusively for 2021, the minimum limit of workforce required to be able to use the expansion contract is reduced to 100.

The number of units also drops to 100 for cases in which a program is provided for workers closest to retirement age (within 5 years).

The employer, by granting the worker a monthly allowance for the entire period until the first effective date of the pension is reached, can terminate the employment relationship.

The consent and non-opposition of the worker is of course required.

Not decisive but certainly an extremely useful tool for the management of resources with a view to restructuring and renewal, even in the validity of the redundancy block.

Allavelli Legal

Federico Allavelli