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.
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.