Bologna – Within the D.L. of 30 April 2022, n.36, coordinated with the conversion law of 29 June 2022, n.79, containing "Further urgent measures for the implementation of the National recovery and resilience plan (Pnrr)", an amendment was introduced to 'art. 1677 bis code civ. on the subject of the procurement contract.
In this way, a persistent legislative gap concerning the logistics contract was filled. The logistics contract, in fact, although representing an increasingly widespread type of contract, up to now did not have specifically dedicated rules nor, even less, was there a provision in our legal system that provided its regulatory definition: consequently this contract is usually traced back to an atypical type of procurement contract.
The new formulation of the art. 1667 bis code civ. is entitled "Provision of several services concerning the transfer of things" and establishes that "If the contract has as its object, jointly, the provision of two or more logistics services relating to the activities of reception, transformation, storage, custody, shipment, transfer and distribution of goods of another subject, the rules relating to the transport contract apply to the activities of transferring things from one place to another, insofar as they are compatible". The new law appears to be quite relevant in several respects.
The innovative scope of the new standard, in fact, does not end with a definitional profile, as it introduces profiles of a substantial nature that may also have an impact on transport contracts.
In recent years, following a circular from the Ministry of Welfare, a distinction has begun to appear (increasingly shared by jurisprudence) between the case of "pure" transport contract and that of the contract for transport services.
We would be faced with the second case, i.e. the contract of transport services, whenever, alongside the mere transfer of goods from one place to another, the parties have intended to entrust the carrier with the performance of some ancillary services.
The forced inclusion of the transport contract in the category of procurement contracts has led to significant consequences in terms of joint and several liability: in recent years, jurisprudence has, in fact, increasingly oriented towards assigning the customer of the transport (by which it can also mean the contract carrier who entrusts the transport to a sub-carrier) the same responsibilities that the contractor is normally called to share with the contractor.
And it is precisely from this point of view that it would be legitimate to expect that the new formulation of art. 1677 bis code civ. have their most significant effects. The new regulatory provision, stating that in the context of the logistics contract to the activities of transferring things from one place to another "the rules relating to the transport contract are applied, as compatible" is quite clear in excluding the applicability of the rules on the procurement of this segment of activity which must, conversely, be governed by the specific rules on the subject of the transport contract.
However, these conclusions would seem to be contradicted by the response to a very recent questioning to the Ministry of Labor (Interpello 1/2022 dd. 10.17.22), which states that "even in the case of contracts for multiple logistics services relating to receipt, transformation, storage, custody, shipment, transfer and distribution of goods, article 29, paragraph 2, of Legislative Decree no. 276, without the provision contained in article 1677 bis of the civil code may eliminate this general form of protection for these categories of contracts". The Ministry of Labor motivates these conclusions by stating that the new definition of logistics contract has been included in the broader genus of procurement contracts and is therefore mainly governed by this discipline, that the rules on transport contracts are been declared applicable "as compatible" and that the application of the rules on the transport contract, rather than those on the tender, would eliminate joint and several liability pursuant to art. 29 Legislative Decree 276/2003 (which would represent a fonfundamental protection for the contractor's workers).
In my humble opinion, these conclusions are absolutely unacceptable and will therefore need to be re-examined also in the light of the jurisprudence which will probably be called upon to shed light on the interpretative doubts generated by the strong contrast between the (clear) legislative provision and the contrasting administrative practice that the Ministry would like to introduce with the aforementioned request.
For the moment, these are the considerations from which it is possible to start a critical analysis of ministerial positions:
a) There is no doubt that, as stated by the Ministry of Labour, the new definition and discipline of the logistics contract have been placed among the provisions on the subject of the procurement contract. But it is equally indubitable that, precisely in order to underline the specialty and prevalence of the rules on transport contracts with respect to those on tenders, the prevalence of the former over the latter was specified;
b) Pursuant to art. 1677 bis code civ. the rules on the transport contract apply as an exception to those on the subject of the contract "as compatible" and in the specific case it does not seem to me that any substantial incompatibility is discernible, given that even in the case of application of the rules on transport contact, the workers would continue to enjoy the "protection" of joint liability;
c) And in fact, when the legislation on procurement were not applied to those logistics contact segments represented by land transport operations, in the context of logistics contracts, a double and alternative regime would become configurable, depending on the case of joint liability between contractors and service contractors:
i) the ordinary regime of joint and several liability of the contractor provided for by art. 29. paragraph 2 of Legislative Decree 276/2003, which would continue to be applied to the generality of logistics contracts;
ii) the joint and several liability envisaged by art. 83bis of Legislative Decree 25.06.2008 converted with Law 133 of the addendum 06.08.2008, which would apply to those segments of the logistics contract that provide for the land transport of goods. It is a form of joint and several liability regulated differently and certainly less rigid than that provided for by art. 29 Legislative Decree 276/2003, but we still find ourselves in the presence of this type of protection in favor of the contractor's workers.
*Managing partner, Studio Zunarelli