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Italian National Labour Inspectorate: Non-authentic transnational posting

The National Labour Inspectorate Office has found a case of non-authentic transnational posting, as defined by the Legislative Decree no. 136/2016, which occurs in the case of a company established in another EU state in favour of its own production unit located in Italy.

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In this case of posting, the employer appears to be both posting and hosting subject; it follows that the illegal conduct is attributable to a single employer.

It is still to be verified whether it is legitimate to contesting both administrative sanctions – i.e. the one relating to the posting of workers by the posting company and the one relating to the use of the latter by the hosting firm – to a single subject by applying a single sanction, in accordance with the principle of ne bis in idem.

According to a preliminary analysis, the Labour Inspectorate states that only in the event that the branch is an autonomous legal entity – registered in the commercial register and with a legal representative – it is possible to adopt sanctions against both parties.

On the contrary, if the secondary establishment has no independent legal representation and is managed by a person appointed by the main headquarters, it is considered that only one sanction should be applied, given the fact that it belongs to the same organisation.

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Regulatory Framework

Decreto Legislativo n. 136/2016

Reference (Italian only)

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Have a look at our in-depth guides about Posting of Workers to EU Countries. If you don’t know where to start, you can have a first look at our introduction on Posting of Workers to Europe.

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