Legislative Decree no. 276 of 2003, known as “Works Statute“, regulates aspects related to solidal responsibility in the case of contracts and subcontracts.
In particular, article 29 of the decree regulates the responsibility of the client with respect to the contribution and remuneration obligations towards the workers employed in the execution of the contract.
However, a recent ruling by the Supreme Court has brought new light on the topic, especially with regard to non-entrepreneurial condominium owners, raising important legal questions on the applicability of these rules in specific condominium contexts.
How can condominium owners protect themselves from unexpected liabilities? Is there a clear distinction between the responsibilities of a contractor and those of a condominium in the context of procurement?
Let's discover together how recent jurisprudence affects these delicate balances.
Joint liability in contracts and subcontracts
Article 29, paragraph 2, of Legislative Decree no. 276 of 2003 establishes that the client, be it an entrepreneur or an employer, is jointly and severally obliged with the contractor and any subcontractors to pay the wages and social security contributions due to the workers for the period of execution of the contract.
This rule aims to protect workers by guaranteeing their right to adequate remuneration and social security contributions, regardless of the contractual dynamics between the companies involved.
However, the paragraph 3-ter introduces an important exception: this solidarity does not apply if the client is a natural person who does not carry out a business or professional activity.
3-ter
Without prejudice to the provisions of articles 18 and 19, the provisions of paragraph 2 do not apply if the client is a natural person who does not carry out a business or professional activity.
This distinction raises significant questions in situations where the client is a condominium. Traditionally, a condominium is not considered a contractor pursuant to the law.
However, how do the courts deal with disputes relating to non-payment of contributions by contractors employed by a condominium?
Recent case law suggests that the condominium may not always be free from liability.
Recent jurisprudential interpretations
An emblematic case is the one analyzed by the Court of Cassation in sentence no. 19514 of 10 July 2023. On this occasion, the Court expressed its opinion on a dispute in which theINPS requested from a condominium the payment of unpaid contributions by a cleaning company for some of its employees.
The condominium, as client, had initially been exempted from joint and several liability in the first instance, but the Court of Appeal overturned this decision, maintaining that the condominium should be considered jointly and severally liable pursuant to art. 29, paragraph 2 of Legislative Decree no. 276/2003.
The central issue concerned the interpretation of “employer” and “entrepreneur” in relation to the condominium.
The Court of Appeal had held that, although the condominium did not carry out a business activity in the traditional sense, the management of the activities within the condominium made it a de facto employer. However, the Supreme Court took a different direction, excluding the condominium from the definition of “employer” for the purposes of joint and several liability.
The Court of Cassation justified its decision by underlining that joint and several liability presupposes specific requirements which do not automatically apply to all forms of commissioning. Furthermore, the condominium's role as a management entity does not necessarily imply entrepreneurial or professional responsibility, thus distinguishing the responsibilities of condominium owners from those of a traditional entrepreneur or employer.
This decision sets an important precedent for the liability of condominium owners in procurement cases, outlining greater clarity on the limits of their legal liability in similar situations.
Practical implications for condominiums and administrators
The Supreme Court ruling offers essential guidance for condominium administrators and condominium boards in dealing with procurement and subcontracting. It is essential that the administrator makes sure of the contribution and tax regularity of companies in charge of work inside the condominium. This not only prevents possible future liabilities but also ensures the protection of the rights of employed workers.
In practice, it is advisable for the administrator to request and verify the validity of the Single Contribution Regularity Document (DURC), which certifies the company's contribution regularity. The absence or inaccuracy of this document may expose the condominium to significant legal risks, including the possibility of being held jointly and severally liable for the payment of unpaid contributions.
Furthermore, article 1460 of the Civil Code offers the client the possibility of suspending payment of services until the presentation of the DURC by the contractor.
This legal provision represents a guarantee instrument for condominiums, allowing them to protect themselves from possible defaults by contractors.
Risk Management Recommendations
In response to this legislation and jurisprudential interpretations, condominiums and their administrators should:
- Sign procurement contracts that include specific clauses regarding the social security and tax compliance of companies.
- Periodically monitor the contribution situation of contracting companies.
- Use the suspension of payment as a negotiating leverage to ensure the regularity of contractors.
- Train and inform condominium boards about the legal implications of contracts and subcontracts, so they can make informed decisions.
These risk management practices help create a safer and more legally protected condominium environment, reducing the risk of unexpected liabilities for commissioned works.
