COURT OF CASSATION, 6 MAY 2015, NO. 18667: WHEN A CONTRACT IS ILLEGAL

With its ruling no. 18667 of 6 May 2015, the Court of Cassation confirmed that, for the allegation of an illegal contract it is not sufficient to prove that the customer gave orders to the contractor’s employees but it is necessary to investigate the contents of such orders and prove that they regard the provision of work actually performed. This is true if the instructions given to the “contracted” workers only regard the result of their work (which in itself may be the actual subject matter of the contract), without resulting in grounds for censure and punishment under the law. Specifically, according to the Supreme Court’s opinion, the crime of illegal contract occurs when there is simultaneous proof of (i) actual lack of existence of a company risk; (ii) failure to organise, no matter why, the necessary equipment for performance of the contract; (iii) absence of organizational and direct power over the workers, not excluding, per se, any orders given by the customer. This clarification of the principle is worthy of note because it will not only overturns the dynamics of criminal investigations of contracts for services by labour inspectors and the Courts but it will also improve the organisation of labour intensive contracts. Basically, a clear warning to lower court judges not to adhere to preconceived accusatorial arguments.