The order under comment confirms the Supreme Court case law which differentiates the deadlines
applicable to the actions carried out by employees under procurement contract and those governing
contribution recovery by INPS.

In its order no.  38151 of 30 December 2022 the Court of Cassation, ruled on procurement contract joint and several liability, confirming its policy according to which the two-year limitation period  under Art. 29, paragraph 2, Legislative Decree 276/2003 would not apply to the obligation to pay contributions.

Based on the legislative provision’s wording, employing parties are jointly and severally liable with contractors for wages, severance indemnity payments, social security contributions and insurance premiums, with the sole exception of civil penalties. Under the legal provision, the joint and several liability lasts for two years from contract termination.

The above is an actual forfeiture term.

During 2011 and 2012, the Ministry of Labour and Social Policies and INPS explained the scope of this provision, adopting a literal interpretation and stated that the two-year limitation period applies to contribution recovery at the expense of the social security institution.

According to those institutions, the two-year limitation period should have applied to INPS’s creditor claims against the jointly and severally liable party. Once the two-year period had expired, the Institution could claim its credit only against the principal debtor within the five-year limitation period.

Continue reading the full version published on Norme e Tributi Plus Diritto of Il Sole 24 Ore.

The Court of Cassation, with judgement No. 23697, filed on 10 October 2017, confirmed the consolidated case law trend according to which a top manager, who, even if having the power of self-assigning the vacation period, does not exercise such power, is entitled only to a substitutive allowance for vacation days for the current year, unless he/she proves that he/she was not be able to take the leave for exceptional and objective company needs. In particular, the Court of Cassation clarified that the substitutive allowance for any vacation day is based, on the one hand, on the principle of the annual inalienability of a vacation period as established by Directive 2003/88/EC and Legislative Decree No 66/2003 and, on the other hand, in the general civil protection established in the contractual liability, which, however, assumes that failure to meet the mandatory regulation on annual vacation leave by the employee is attributable to the employer. Specifically, in reference to the aforementioned liability, the Court of Cassation stated that the employer’s contractual liability must be considered mitigated in the case of a top manager, since a top manager has the power to self-assign a leave in full autonomy, without suffering any limitation by the employer. From this it follows that in the event of a dispute regarding a top manager failure to use vacation leave, the employer shall prove that the top manager was able to choose time and methods for enjoying the leave autonomously and shall prove that the missed vacation period can be attributed to objective corporate needs.