It should be noted immediately that the contract is distinguished from the administration and, indirectly, the lawful contract is distinguished from the illegal one, due to the fact that in the first the business risk is incumbent on the contractor (i.e. on who renders the service) and the ‘ organization of the means necessary for performance of the contract.
This organization can also result – taking into account the current evolution of production systems, which can also be centered only on the rational management of the workforce – from the exercise of organizational and managerial power over the workers used in the contract.
We report a recent sentence of the Court of Milan which addressed the issue of the genuineness of the contract in an interesting case of logistics services (Court of Milan November 3, 2017, est. Lombardi).
In the present case it was specified that the organization of the means must be effective and substantial and can also be carried out by a genuine company. “Light” or “dematerialized” , in which the organization of the labor factor prevails over the capital, as long as it is suitable for satisfying the requirements set out in the contract.
In the case in question, as regards the existence of managerial and organizational power, it was found that:
- most of the operations carried out in the contract were managed on the basis of predefined and codified IT processes;
- the particular needs of the client, in relation to the quantities of work and processing times, could occasionally have an indirect impact on the shifts and the resources employed, the final choice of which, however, was the responsibility of the contractor;
- sometimes there was a need to provide information on the part of the client about the terms, times and methods of carrying out the service but – according to the judge – in the absence of significant interference in the organization of the contractor.
- The judge consequently ruled out that the fundamental nucleus of the organizational and managerial power over the workers used in the contract had remained with the client, thus affirming the genuineness of the contract.