Joint liability of the customer for the tax and remuneration credits arising out of a sub-supply agreement
The Constitutional Court has ruled on the applicability to sub-supply agreements of Article 29 of D.Lgs. 276/2003, which amongst others states "in the event of procurement of services or goods, the customer company or principal has a joint obligation with the supplier, and with each and any of the sub-suppliers, [...] with regard to the remuneration of the employees [...] associated with the period of performance of the supply agreement".
The Court considers two distinct views regarding the systemic qualification of the supply agreement.
Firstly, the Court observes that the application of joint liability is justifiable as the sub-supply agreement is a sub-type of the supply agreement. However, the Court in their second line of observation states that these two agreements have a distinct idea where the sub-supply agreement has the characteristic of technological dependence while the character of a supply agreement provides the supplier with an autonomy in deciding the methods to obtain the result requested by the customer, thus excluding the application of Article 29 of D.Lgs 276/2003 to these agreements.
The Court then opined that these two opposing views are not supportive in unravelling the issue on the applicability of the provisions to sub-supply agreements.
In order to sort out this issue and to extend the application of joint liability to this type of contracts, one should understand the rationale of the said provision under Article 29 of D.Lgs 276/2003, rather than deciphering its literal meaning. Further, the second view does not provide any explanation in favour of the exclusion of joint liability from sub-supply contracts.
Based on the reading of Article 29, the legislator has attempted to prevent the employee from suffering any prejudice that may derive from their performance under contract where the ultimate user of the work is different than the parties to the contract.
According to the Constitutional Court, the principles of equality and reasonableness set forth under Article 3 of the Constitution do not permit the exclusion of the warranty through joint liability towards the employees of the sub-supplier, and rather provides that such warranty should apply to all levels of work along the chain.
Based on the above, the Court concluded that the interpretation of the said provision should be that the customer is jointly liable with the sub-supplier for the tax, remuneration and insurance credits of the employees.
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