Distinction between transport contracts and service contracts: the primacy of substance over form reaffirmed (Norme & Tributi Plus Diritto, Il Sole 24 Ore, 25 November 2025 – Alessandro Ferrari and Alesia Hima)

The Court strengthens the interpretative approach aimed at ensuring greater protection for workers employed in outsourcing arrangements.

The Court of Cassation returns to the distinction between transport contracts and service contracts, reaffirming the principle that substance prevails over the contractual form chosen by the parties.

In judgment no. 22541 of 4 August 2025, the Court of Cassation, Labour Section, again addressed the delicate boundary between transport contracts and service contracts, upholding the decisions of the lower courts which had reclassified the transport agreements entered into by the parties as service contracts and, as a result, ordered the principal to pay the wage differences owed to the workers employed in the performance of the service.

Specifically, the Court of Cassation reiterated that, regardless of the formal agreements entered into, when a relationship exhibits the typical features of a service contract — and not those of a mere transport or sub-transport arrangement — the regime of joint and several liability provided for under Article 29 of Legislative Decree No. 276/2003 applies.

The case at hand

The case originated from a series of contracts entered into by the principal with a contractor and a subcontractor, formally classified as transport and sub-transport contracts, but in substance aimed at providing a logistics and transport service carried out in a stable and continuous manner over time.

The lower courts found that the activities actually performed by the contractor and subcontractor were not limited to transport and the related handling of goods, but also included ancillary and autonomous operations — such as loading and unloading, labelling, managing cash-on-delivery payments, and maintaining documentation — carried out by the entrusted companies through their own business organisation, using their own equipment and personnel.

These elements led the courts to reclassify the relationship as a service contract, with the resulting application of the rules on joint and several liability among the principal, the contractor and the subcontractor.

Read the full version published on Norme & Tributi Plus Diritto de Il Sole 24 Ore.