10.6092/issn.1561-8048/9692
This paper highlights that the approach to the “notion” of “multinationality” of the EU legal order is different from that adopted by the international legal order, where that notion is substantially irrelevant. For the EU legal system, it is often appropriate to define a multinational company and this system does not adopt only one definition, thus giving rise to a “variable geometry multinationality”. In this regard, the EU provisions on collective redundancies and on European works councils are very eloquent although the EU adopts a different approach in the two cases. Another notion of multinationality at the EU level is that concerning companies operating on a digital platform where it is possible to speak of a "double multinationality", the first deriving from the presence of several undertakings of a group operating according to corporate logic, and the second arising from the presence of the digital platform. The final part of the paper deals with the notion of multinationality in the Italian legal order as regards to some quite recent national provisions concerning relocation outside the European Union.
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“Multinationality with variable geometry” and the EU legal order
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Massimiliano Delfino
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“Multinationality with variable geometry” and the EU legal order
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“Multinationality with Variable Geometry” and the EU Legal Order                        Italian Labour Law e-Journal
Massimiliano Delfino                                                                           Issue 1, Vol. 12 (2019)
massimiliano.delfino@unina.it                                                                        ISSN 1561-8048
                                                                       https://doi.org/10.6092/issn.1561-8048/9692




      “Multinationality with Variable Geometry” and the
                        EU Legal Order
                                        Massimiliano Delfino


 1. “Multinationality” and the EU legal order. 2. Multinationality in the EU discipline of
 collective redundancies. 3. Multinationality in the European Works Councils directive. 4.
 Transnationality and multinationality of the companies operating on digital platforms. 5. A
 look at the Italian legal order: relocation and multinationality in the so-called 'Dignity Decree'.


                                                     Abstract

     This paper highlights that the approach to the “notion” of “multinationality” of the EU legal
     order is different from that adopted by the international legal order, where that notion is
     substantially irrelevant. For the EU legal system, it is often appropriate to define a multinational
     company and this system does not adopt only one definition, thus giving rise to a “variable
     geometry multinationality”. In this regard, the EU provisions on collective redundancies and on
     European works councils are very eloquent although the EU adopts a different approach in the
     two cases. Another notion of multinationality at the EU level is that concerning companies
     operating on a digital platform where it is possible to speak of a "double multinationality", the
     first deriving from the presence of several undertakings of a group operating according to
     corporate logic, and the second arising from the presence of the digital platform. The final part
     of the paper deals with the notion of multinationality in the Italian legal order as regards to some
     quite recent national provisions concerning relocation outside the European Union.

     Keywords: Multinationality, formal corporate control, substantial corporate control, digital
     platform, relocation, workers’ protection



 1. “Multinationality” and the EU legal order.

    The main goal of this paper is to define a quite difficult “notion”, namely that of
 “multinationality” in the European Union that is important to understand within the scope
 of some supranational provisions1.

 
   Professor of Labour Law, Università degli Studi di Napoli Federico II. This contribution constitutes a
 reworking of the paper presented at the Meeting on Il lavoro nelle imprese multinazionali, held at the University of
 Venice Ca’ Foscari on 19 October 2018. This article has been submitted to a double-blind peer review process.
 1 This debate can be found in some of the articles published in issue 2/2018 of the journal Rivista giuridica del

 lavoro. Ferrarese M.R., Le imprese multinazionali tra finanza e transnazionalità, underlines that the adjective
 multinational accounted for the fact that, in a liberalized capital market, the criteria of exclusive or clearly
 prevalent national identity has lost relevance, to the advantage of a geographically much more articulated and
 fleeting configuration (221). Scarponi S., Imprese multinazionali e autoregolamentazione transnazionale in materia di
 lavoro, on the other hand, focuses on the phenomenon of transnational framework agreements, highlighting the
Massimiliano Delfino                                                                            Italian Labour Law e-Journal
                                                                                                       Issue 1, Vol. 12 (2019)
                                                                                                       Section: Miscellaneous


   As regards to this notion, it is useful to refer to what was emphasized by Edoardo Ales,
although with reference to transnational collective bargaining. According to this author, in
order to understand the meaning of the term 'multinational' it must be compared with the
term 'supranational': ‘supranational is a prescriptive notion that refers to the establishment
of a legal order partly substitutive of and partly additional to the national ones at stake. Where
additional it constitutes a combined jurisdiction based on the principles of competence,
subsidiarity and proportionality. Multinational, on the contrary, is a descriptive notion
indicating the fact that a physical or juridical person operates in and is subjected to two or
more national jurisdictions that, in our case, are … part of the EU’2.
   It has also to be underlined that the approach to the subject of this legal order is different
from that adopted by the international legal order, where the notion of multinationality is
substantially irrelevant, as demonstrated by various international acts, which are mainly non-
binding. Among these, there are the UN Norms on the Responsibilities of Transnational Corporations
and Other Business Enterprises with regards to Human Rights approved in 2003, according to which
the term transnational corporation ‘refers to an economic entity operating in more than one
country or a cluster of economic entities operating in two or more countries - whatever their
legal form’3. And on the same wavelength there are other international documents, such as
the 2011 OECD Guidelines for Multinational Enterprises, wherein it is explained that ‘a precise
definition of multinational enterprises is not required for the purposes of the Guidelines. These
enterprises operate in all sectors of the economy. They usually comprise companies or other
entities established in more than one country and so linked that they may coordinate their
operations in various ways. While one or more of these entities may be able to exercise a
significant influence over the activities of others, their degree of autonomy within the
enterprise may vary widely from one multinational enterprise to another. Ownership may be
private, State or mixed. The Guidelines are addressed to all the entities within the multinational
enterprise (parent companies and/or local entities). According to the actual distribution of
responsibilities among them, the different entities are expected to co-operate and to assist
one another to facilitate observance of the Guidelines’4.
   An approach of this kind is justified by the fact that the international legal order is mainly
interested in recognizing a responsibility to the head company, raising a 'corporate veil' whose
presence has been highlighted by some authors5. As a matter of fact, at the international level,
the defining element of the concept of multinationality lies in the dichotomy between the
uniqueness of the undertaking in an economic-corporate sense and the juridical otherness of

question of their applicability especially on the business side, where compliance with the obligations contained
in them can be implemented by means of indications from the head company to the other companies belonging
to the same group, accompanied by forms of pressure towards the chain of suppliers and contractors, and by
adequate control systems (264).
2 Ales E., Transnational Collective Bargaining and European Works Councils: From Hurdle to Stepping stone?, in Casale

G., Treu T. (eds.), Transformation of Work: Challenges for the National Systems of Labour Law and Social Security. XXII
Congress of the International Society for Labour Law and Social Security Law, Turin, 4-7 September 2018, Giappichelli, 59.
3 U.N., Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003): italics added by the author. See also OECD Guidelines for

Multinational Enterprise, 2011, I.3; ILO Tripartite declaration of principles concerning multinational enterprises and social
policy, 2017, 6. On these profiles, see Brino V., Imprese multinazionali e diritti dei lavoratori tra profili di criticità e nuovi
“esperimenti” regolativi, in Diritto delle relazioni industriali, 2018, 171 ff.
4 OECD Guidelines, Part I, Concepts and Principles, n° 4.
5 On this topic, see Brino V., Imprese multinazionali, according to whom multinationals hold economic power

within the entire value chain. Nevertheless, because of the 'corporate veil', someone else's responsibilities
cannot be assigned to them (174).

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                                                                                       Section: Miscellaneous


the units operating in the different states6, which often prevents the recognition of
responsibilities and risks for the head company and sometimes does not go beyond the
application to the companies of the group of national rules differentiated on a territorial
basis.


2. Multinationality in the EU discipline of collective redundancies.

    On the contrary, for the EU legal system it is often appropriate or necessary to define a
multinational company. In carrying out such an investigation, it is possible to realize that this
system does not adopt only one definition, thus giving rise to what can be defined as a
“variable geometry multinationality”. In this regard, the EU provisions on collective
redundancies and on European works councils are very eloquent.
    With reference to the first topic, it is appropriate to start from a judgment of the Court
of Justice of 7 August 2018 concerning a German case (Bichat, Chlubna, Walkner C Aviation
Passage Service Berlin), which deals with directive 98/59 on collective redundancies and in
particular with the right of information and consultation due to workers or their
representatives in the event that the decision to dismiss is taken by a company that controls
the employer (Article 2, paragraph 4, Directive 98/59). The judges therefore had to rule on
the nature of an enterprise's control over another company and had two alternatives, namely
to interpret that control in either a formal or a substantial sense. The Court opted for the
second route by fully accepting the Opinion of the Advocate General, according to which
‘the question of control for the purposes of Article 2(4) of Directive 98/59 is not “which
undertaking is the ultimate holding company of the employer?” but “which undertaking can
provide the necessary information to enable consultations to take place in the meaningful
way which the directive contemplates?”. In that context, the company law-based test may
have the merit of legal certainty. In all other respects, it seems to me that it is too narrow and
fails to reflect the overall scheme of Directive 98/59. Moreover, such an approach could not
by definition take account of the divergences in company law existing at the Member State
level and the need for the expression “undertaking controlling the employer” to be given an
autonomous interpretation throughout the European Union7. Moreover, the Advocate
General suggested to the Court that ‘it is necessary for the controlling undertaking to have
an influence on the employer as regards the manner in which the collective redundancies that
are contemplated are to be carried out. Such an influence need not be a “dominant” one in
the sense that the controlling undertaking has to enjoy a higher position in the structural
hierarchy than the employer, since there is nothing that requires that the decisions that may
lead to the collective redundancies be taken at an organisationally superior level’8.
    Such an interpretation was fully accepted by the Court, according to which ‘the concept
of “control” for the purposes of Directive 98/59 refers … to a situation in which an
undertaking may adopt a strategic or commercial decision compelling the employer to

6 Bonfanti A., Imprese multinazionali, diritti umani e ambiente, Giuffrè, 2012.
7 AG Opinion, CJEU – Joined Case-61/17; C-62/17; C-72/17, Miriam Bichat and Others v APSB - Aviation Passage
Service Berlin GmbH & Co. KG [2018], para 47.
8 AG Opinion, CJEU – Joined Case-61/17; C-62/17; C-72/17, Miriam Bichat and Others v APSB - Aviation Passage

Service Berlin GmbH & Co. KG [2018], para 49.

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contemplate or to plan for collective redundancies’9. Moreover, the same concept ‘covers all
undertakings which, by virtue of belonging to the same group or having a shareholding that
gives it the majority of votes in the general meeting and/or the decision-making bodies within
the employer, are able to require the latter to adopt a decision contemplating or planning for
collective redundancies’10. Nevertheless, such a concept also covers ‘situations in which an
undertaking, while not having the majority of votes referred to in the preceding paragraph,
is able to exercise decisive influence within the meaning’11 given before by this judgement.
In summary, belonging to a group of undertakings is established not only by the formal
corporate control of one undertaking over another but also by any other type of control or
even by the absence of control (formal or substantial: the so-called group of equal
undertakings), provided that there is an influence on the decision of the second company to
proceed with collective dismissals.
    As it can be seen, this interpretation allows the extension of the scope of the directive
since it disregards the national statutory provisions and fully guarantees the multinationality
of the legislation on collective redundancies. In this way, the Court of Justice has adopted a
substantive attitude by skipping the formalistic schemes to make the substance of the
phenomena prevail and has achieved the goal of protecting the worker who offers his/her
services at a dependent (controlled) company. In addition, the Court has not taken into
consideration the legal instrument permitting such dependence but the de facto situation that
allows an entrepreneur to organize the factors of production (workers included) of another
undertaking12. Finally, the Court seems to distance itself from the commercial law approach,
by leaving aside corporate control in the strict sense and this approach, as will be clear shortly,
was not at all obvious.


3. Multinationality in the European Works Councils directive.

   It has been anticipated above that this is not the only model of control or influence of an
undertaking on another one established in a different country (and therefore of
multinationality) existing in EU law. As a matter of fact, according to Article 3, paragraph 2,
Directive 2009/38, ‘the ability to exercise a dominant influence shall be presumed, without
prejudice to proof to the contrary, when an undertaking, in relation to another undertaking
directly or indirectly: a) holds a majority of that undertaking’s subscribed capital; b) controls
a majority of the votes attached to that undertaking’s issued share capital; c) can appoint
more than half of the members of that undertaking’s administrative, management or
supervisory body’. Such provision defines this concept as being founded upon the exercise
of a dominant influence as a result, for instance, of ownership, financial participation or the
rules governing this influence. The Court of Justice, in the case of the directive on collective

9  CJEU – Joined Case-61/17; C-62/17; C-72/17, Miriam Bichat and Others v APSB - Aviation Passage Service Berlin
GmbH & Co. KG [2018], ECLI:EU:C:2018:653, para 31.
10 CJEU – Joined Case-61/17; C-62/17; C-72/17, Miriam Bichat and Others v APSB - Aviation Passage Service Berlin

GmbH & Co. KG [2018], ECLI:EU:C:2018:653, para 40.
11 CJEU – Joined Case-61/17; C-62/17; C-72/17, Miriam Bichat and Others v APSB - Aviation Passage Service Berlin

GmbH & Co. KG [2018], ECLI:EU:C:2018:653, para 41.
12 This is what Loffredo A., Democrazia aziendale, imprese transnazionali e dumping sociale, Editoriale scientifica,

2018, 95 hoped for.

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Massimiliano Delfino                                                                               Italian Labour Law e-Journal
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redundancies, could have accepted this notion by analogy. Nonetheless, Advocate General
Sharpston, in her Opinion delivered in the Bichat case, agrees with the Commission ‘that that
definition is too narrowly drawn to fit all the circumstances which Directive 98/59
contemplates. It reflects the context in which Directive 2009/38 was adopted, namely the
setting up of works councils in larger undertakings (there defined as ‘Community-scale
undertakings’ and ‘Community-scale group[s] of undertakings’), to be informed and
consulted in respect of a wide range of matters affecting the workforce generally’13.
        Therefore, in the case of the EWCs, to define the control of one undertaking over
another, it is necessary to apply the formal requirements specified by the directive, while in
the hypothesis of consultation and information in collective redundancies in the absence of
such a provision the Court applies a notion of control of one company over another, which
is more extensive than that provided for EWCs and is not linked to the formal data of
ownership. Therefore, the interpretation in the case of collective redundancies is more
favourable for workers than in the case of the EWCs. In the latter circumstance, it is
unavoidable to refer to the wording of the provision. On the contrary, it was not at all
obvious that the Court decided in that way about collective redundancies, thus showing more
attention for information and consultation in case of termination of the contract of
employment than for the 'general' participation rights deriving from the establishment of a
EWC.
        However, in the EWCs there was also the problem of the groups of “peer”
companies, where it is not possible to identify a controlling undertaking. In these
circumstances there is no control (neither formal nor substantial) but in any case the
protection coming from the directive has to be applied. Then, according to a judgment of
the Court of Justice decided almost twenty years ago (the Bofrost case of 200114), in a proper
construction of the EWC Directive, ‘an undertaking which is part of a group of undertakings
is required to supply information to the internal workers' representative bodies, even where
it has not yet been established that the management to which the workers' request is
addressed is the management of a controlling undertaking within a group of undertakings’15
and even where it has been established that a controlling company does not exist. As one
can see, also in this case, the Court proposes an extensive interpretation aimed at recognizing
the fulfilment of the fundamental right to information for workers and/or their
representatives underlying the EWC directive.




13 AG Opinion, CJEU – Joined Case-61/17; C-62/17; C-72/17, Miriam Bichat and Others v APSB - Aviation
Passage Service Berlin GmbH & Co. KG [2018], para 46.
14 CJEU – Case-62/99, Betriebsrat der bofrost* Josef H. Boquoi Deutschland West GmbH & Co. KG v

Bofrost* Josef H. Boquoi Deutschland West GmbH & Co. KG [2001]: see Guarriello F., La “prima volta” della
direttiva sui Cae (n. 94/45) davanti alla Corte di giustizia: Bofrost o della latitudine dei diritti di informazione riconosciuti alle
rappresentanze dei lavoratori ai fini della costituzione del comitato aziendale europeo, in Il diritto del lavoro, 2001, 12.
15 CJEU – Case-62/99, Betriebsrat der bofrost* Josef H. Boquoi Deutschland West GmbH & Co. KG v

Bofrost* Josef H. Boquoi Deutschland West GmbH & Co. KG [2001], para 36.

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Massimiliano Delfino                                                                  Italian Labour Law e-Journal
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                                                                                             Section: Miscellaneous


4. Transnationality and multinationality of the companies operating on digital
platforms.

    In the EU legal order, another notion of multinationality seems to have space to develop,
i.e. that concerning companies operating on a digital platform. The Uber judgement of the
Court of Justice of 20 December 2017 is eloquent in this regard. As it is well known, and as
reiterated by Advocate General in this case, ‘Uber is the name of an electronic platform
developed by Uber Technologies Inc., a company having its principal place of business in
San Francisco (United States). In the European Union, the Uber platform is managed by
Uber BV, a company governed by Netherlands law and a subsidiary of Uber Technologies’16.
However, in addition to the type of control (formal or substantial) that links the various
undertaking of the group, for the Court of Justice it is necessary to keep in mind the kind of
activity carried out: ‘although Uber Systems Spain carries out its activity in Spain, that activity
is linked to an international platform, thus justifying the assessment at EU level of the actions of that
company’17. In other words, the connection of an undertaking operating in the collaborative
economy to an international digital platform realizes the multinationality of the company
itself in the sense described above. And the application of EU law, i.e. of the common
transport policy, derives from it. This means that, beside the issue of corporate control, it is
also necessary to take into consideration the existence of a digital platform that ensures the
multinationality of the undertaking concerned. In short, it is possible to speak of a "double
multinationality", the first deriving from the presence of several undertakings of a group
operating according to corporate logic, and the second arising from the presence of the digital
platform which is multinational in the sense indicated above. This naturally applies to certain
areas of EU law, such as the common transport policy. In the Uber case, as well as in the
Bichat judgment, the Court of Justice - since it is free from the constraints of the secondary
sources of law characterizing, for example, the EWCs - has adopted a substantialist, albeit
diversified, approach in the qualification of the multinational companies.
    However, it is self-evident that the approach can be different in other fields, as some
recent studies on workers participation in companies of the collaborative economy show18.
As a matter of fact, the 2018 report highlights that ‘good practice as regards workers participation
— such as joint initiatives with employers at sectoral or company level, and company-wide change or
framework agreements on the introduction of new technologies — are largely concentrated in Northern and
Western European countries, as well as in large multinational companies headquartered in Western Europe”.
Moreover, “agreements reached in multinational companies at the cross-border level are an important source
of support for local level consultation and respective agreements in countries where workers participation bodies
and trade unions are in a weaker position’. In other words, the mentioned report suggests the
centrality of digital multinationals in spreading good practices of information, consultation
and workers participation, thus implying that the notion of multinationality that seems to
prevail in this case is the formal corporate one (the report often refers to the EWCs).
However, again reading the 2018 report, it is undeniable that the presence of the digital

16 Opinion of Advocate General Szpunar, CJEU – Case-434/15, Asociación Profesional Elite Taxi v Uber Systems
Spain, SL, [2017].
17 CJEU – Case-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, [2017], para 14.
18 The reference is to the report written by Voss E., Riede H., Digitalisation and workers participation: what trade

unions, company level workers and online platforms workers in Europe think, ETUC, 2018.

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platform is seen as an extraordinary means of spreading good practices in the field of
multinational companies. Therefore, in this case there is a different approach as compared
to that adopted by the Court of Justice as regards to collective dismissals. However, this
dissimilar approach does not contrast with the previous one, since the notion of
multinationality is determined differently depending on the topic to which it refers and,
obviously, on whether a legal definition is present or not.


5. A look at the Italian legal order: relocation and multinationality in the so-called
'Dignity Decree'.

    It is time to move on to the national perspective, although with reference to a profile
closely linked to the EU dimension. As far as relocation is concerned, the Italian 'Dignity
Decree' (Law Decree 87/2018 converted with Law 96/2018) provides that national and
foreign companies that have received state aid cannot relocate to non-EU countries, with the
exception of States belonging to the European Economic Area, within five years by the end
of the subsidized investments. For those who do not respect these limits, the decree provides
for penalties that can go from one to four times the benefit received. Moreover, the benefit
shall be repaid, with interest of up to 5% (Article 5). In short, this is a protectionist measure
aimed at avoiding relocation outside the European Union19.
    The Dignity Decree then provides a specific but unclear notion of relocation, i.e. ‘the
transfer of the specifically incentivized economic activity or of a part of it from the promoted
production site to another site, by the company receiving the aid or by another company that
has a control over the first company or a connection relationship with it pursuant to Article
2359 of the Civil Code’ (Article 5, paragraph 6, Decree Law 87/2018). Therefore, on the one
hand, relocation can be seen as an operation that has in itself the "germ" of multinationality,
since the 2018 provision aims at fighting the transfer of the economic activity from Italy to
non-EU countries. On the other hand, this provision can also apply to undertakings that are
multinational from the beginning: the incentives shall be recovered even when the transfer
of the economic activity is carried out by a company (both Italian and foreign) controlled by
or linked to another one. For this purpose, the Italian legal system opts for a formal notion
of control (and of connection) similar to that provided, in the EU legal order, for the EWCs.
In fact, the reference to Article 2359, para 1, of the Civil Code implies that controlled
companies shall be: ‘1) companies in which another company holds the majority of the votes
that can be exercised in the ordinary shareholders' meeting; 2) companies in which another
company has sufficient votes to exercise a dominant influence in the ordinary shareholders'
meeting; 3) companies that are under the dominant influence of another company by virtue
of particular contractual obligations’. Finally, according to Article 2359, paragraph 3, of the
Civil Code, ‘companies over which another company exercises significant influence are
considered to be connected. Influence is presumed when at least one fifth of the votes or
one tenth of the votes can be exercised at the ordinary shareholders' meeting if the company
has shares listed on regulated markets’.

19For further details see Tebano L., Delocalizzazioni, occupazione e aiuti di Stato nel “Decreto dignità”, in Diritti lavori
mercati, 2019, 63 ff.

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   The option for a test of formal corporate control and connection, on the one hand,
derives from the presence in the Italian legal system of the above-mentioned concepts; on
the other hand, it is probably due to the choice of only fighting the relocations outside the
Union carried out by the multinationals in a direct and clear way in order to not to be
excessively protectionist.



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stone?, in Casale G., Treu T. (eds.), Transformation of Work: Challenges for the National Systems of
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regolativi, in Diritto delle relazioni industriali, 2018, 171 ff;
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and online platforms workers in Europe think, ETUC, 2018.




Copyright © 2019 Massimiliano Delfino. This article is released under a Creative Commons
Attribution 4.0 International License




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