Italian companies using foreign services for interventions at their facilities or for providing services to their clients in Italy must pay particular attention to the consequences of the legislative amendment introduced by D.L. 19/2024.
Activities that do not comply with the requirements outlined by Directive 2014/67, such as the lack of a declaration of posting or the absence of the subjective requirements of the posting company or the workers, can lead to the determination of an irregular subcontract and the application of the consequences set forth in decree-law 19/2024.
The new criminal offense in D.L. 19/2024
Decree-law 19/2024 indeed introduces a new criminal offense aimed at sanctioning subcontracting or posting of personnel that do not meet the requirements set by law and therefore often amount to mere labor supply.
In the case of subcontracting lacking the legal requirements and thus in violation of Article 1655 of the Civil Code, or Articles 29 and 30 of Legislative Decree 267/2003, the new legislation provides for the configuration of a legally relevant offense (and no longer just administrative), of a contraventional nature, applicable to both the supplier (or subcontractor) and the user (or client).
When subcontracting or posting are illegal
This fundamentally concerns the frequent cases where the subcontracting contract or posting is used to disguise a mere labor supply, under the legal framework used by the parties.
In these cases, the client does not acquire— as they should in a subcontracting agreement— a service or product that is independently created by a third party (the subcontractor), with its own organization of means and resources and also its own business risk.
Where the independent organization of means and resources and the assumption of their own business risk by the third party are lacking, we are facing a mere labor supply. It is, in fact, the client who organizes and coordinates the workers as if they were their employees, but without formally hiring them and thus without assuming the resulting legal responsibilities.
The client is therefore merely a user of labor, while the subcontractor is merely a supplier of the same labor.
The criminal offense in the case of labor supply
The supply of labor is often disguised under a different legal guise (with a subcontracting or posting contract), since in the Italian regulatory system, labor supply is only permitted through designated Employment Agencies, specifically authorized by the Ministry. The attribution of a different legal guise is therefore sanctioned as it occurs to evade a specific regulatory prohibition.
Illegal subcontracting and posting, which in fact, as clarified above, constitute a mere labor supply, revert with D.L. 19/2024 to constituting independent criminal offenses, with significantly harsher penalties than in the past, even more recent.
The legislative amendment, contained in letters c) and d) of Article 29, paragraph 4 of the aforementioned decree, restores, for acts committed from March 2, 2024, the criminal relevance (in place of the administrative one) of illegal subcontracting and posting.
The new criminal penalties and the possibility of extinguishing the offense by complying and paying
The criminal penalty for the new contravention is the alternative penalty, applicable to both the supplier (pseudo-subcontractor) and the user (pseudo-client), of imprisonment for up to one month or a fine of €60 for each employed worker for each day of employment.
In any case, since this is a contraventional offense, punishable by an alternative detention and monetary penalty, the mandatory limitation according to Articles 20 et seq. of Legislative Decree 758/94 must still be applied, aimed at ceasing the unlawful conduct. Once this occurs, the offense can be extinguished by paying the due amount, which at this stage is reduced to ¼ of the maximum.
How much the penalties amount to
In terms of quantifying the penalty amount, it cannot, in any case, be less than €5,000 nor exceed €50,000.
By complying with the limitation, for each individual subcontract or posting, paying pursuant to Article 21 of Legislative Decree 758/94, one will have to pay at most the sum of €12,500, which is one quarter of the maximum limit of €50,000, regardless of the number of workers and the related days of employment.
However, a novelty is provided by the new paragraph 5-quater of Article 18 of Legislative Decree 276/2003, whereby the amounts of the penalties are increased by 20% if, in the preceding three years, the employer has been subject to criminal penalties for the same offenses.
The possible tax-related criminal relevance of such conduct
In reality, the criminal risk described above, introduced by the recent legislative amendment, could merely be the tip of the iceberg of the criminal liability configurably arising in such cases.
Indeed, according to a consolidated orientation of the criminal jurisprudence of the Supreme Court, in the above-described conduct, a much more serious criminal offense could be configured, of a criminal nature:
The use of invoices for non-existent operations that conceal an illegal labor supply activity, disguised by the conclusion of fictitious service contracts, constitutes an objectively non-existent operation due to the disguised nature of the contract, integrating that divergence between the phenomenal reality and the merely legal reality of the operation which, according to established jurisprudence, constitutes the non-existence referred to in Article 1, paragraph 1, letter a) of Legislative Decree of March 10, 2000, No. 74, while with regard to income tax, the use of the invoice that conceals a different performance opens the way to the deduction of fictitious costs that are also not related to the actual performance, being functional to unduly reduce the operating income by imputing the cost of services, represented by the labor cost that the companies would otherwise not have been able to deduct.
(Supreme Court, Criminal Section III, May 10, 2023, No. 19595)
According to this approach, the illicit labor supply concealed under a (simulated) subcontract can configure (as a concurrent offense), in addition to the contraventional offense described in the previous paragraph, also the crimes referred to in Article 2 of Legislative Decree 74/2000 (use of invoices for non-existent operations by the user) and in Article 8 of Legislative Decree 74/2000 (issuance of invoices for non-existent operations).
As is known, these are very serious criminal offenses, punishable by imprisonment from 4 to 8 years, or, if the amount of the fictitious passive elements is less than €100,000, imprisonment from 1 year and 6 months to 6 years.
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