Note by Niccolò Medica.
Article 29, paragraph 2, of Legislative Decree No. 276/2003 establishes that, in the case of subcontracting of works or services, the principal is obligated, jointly and severally with the contractor and within the time limit of two years from the date of termination of the subcontract, to pay workers the remuneration treatments (including severance pay accruals), as well as social security contributions and insurance premiums, owed by the contractor itself in relation to the period of execution of the subcontract.
The Ministry of Labor and Social Policies, through ruling No. 1 of October 17, 2022, has interpreted extensively the provisions of Article 29, paragraph 2, of Legislative Decree No. 276/2003, holding that such provision – enacted for the protection of workers – is also applicable to “logistics contracts” relating to “activities of receipt, processing, storage, custody, shipment, transfer and distribution of goods“, which are now regulated within Article 1677-bis of the Civil Code (titled “Performance of Multiple Services Concerning the Transfer of Things“).
In support of this thesis, the Ministry has emphasized:
- – the placement of Article 1677-bis of the Civil Code within Title III, Chapter VII, of the Civil Code, which contains provisions on subcontracting;
- – the literal wording of Article 1677-bis of the Civil Code, which refers to transport regulations only “insofar as compatible“;
- – the fact that a different interpretation would be inconsistent with the general discipline on subcontracting and would introduce an “unreasonable reduction of protection for the worker employed solely in activities of transfer of things under a subcontracting agreement“.
Furthermore, the Ministry recalls that jurisprudence, in matters of joint and several liability in subcontracting, has affirmed the necessity of reading Article 29, paragraph 2, of Legislative Decree No. 276/2003 in an extensive manner in order to guarantee workers greater protection and to prevent “mechanisms of productive decentralization and dissociation between the ownership of the employment contract and the use of the service from harming workers employed in the execution of the commercial contract“.
The Ministry contends that the correctness of its own interpretation cannot be undermined even by the provisions contained in Article 83-bis, paragraph 4-ter, of Decree-Law 112/2008, which, with reference to “contracts for the carriage of goods for third parties“, provides for a regime of joint and several liability – subject to a one-year time limit – between the principal and the carrier in the event that the former has not verified, prior to the conclusion of the contract, the regularity of remuneration, social security, and insurance compliance of the latter: according to the Ministry, in fact, “the application of Article 83-bis to logistics service contracts must be considered excluded since such provision could not in any case overcome the essential compatibility assessment required by Article 1677-bis of the Civil Code“.
While considering that the reasons put forward by the Ministry as the basis for its own interpretation are not entirely convincing, it is evident that the applicability of the joint and several liability regime referred to in Article 29, paragraph 2, of Legislative Decree No. 276/2003 cannot disregard a concrete evaluation of the specific contractual relationship, which could be classified not so much as a logistics contract, but – for example – as a transport contract, or as a forwarding contract.
In any case, the position of the Ministry requires entrepreneurs in the logistics sector to conduct increasingly accurate assessments in the selection of their commercial partnerships.
