Under the 2015 Stability Programme, effective from 1 January 2015, new provisions have been brought in that will certainly be of interest to road haulage companies and their customers.
Principals and carriers
First, the new provisions clarify that the term "carrier" covers also the firm materially performing the transport service under a contract of carriage entered into by a consortium, a cooperative or a group of companies of which it is part (irrespective of the person who issues the invoice or signs the contract of carriage).
"Principal" means the company who “enters into written agreements and is responsible for storing, handling and processing goods in connection with, or prior to, contracting the transport service”. Presented here is the case of forwarding agents or bailees who perform services ancillary to transport on behalf of a customer (owner of the goods).
Provisions on sub-‐carriage
Sub-‐carriage means the transportation service undertaken by sub-‐carriers at the request of another carrier.
In this regard, it has been provided that sub-‐ carriage is subject to approval by the principal, otherwise the latter will be entitled to ask for termination of the contract of carriage due to the carrier’s breach.
The sub-‐carrier will in any event be prevented from engaging further sub-‐carriers (sub-‐sub-‐ carriers) for transport services, under penalty of forfeiture of the contract. In such a case, however, the sub-‐sub-‐carrier shall be entitled to receive the compensation agreed to be payable to the sub-‐ carrier.
The use of one or more sub-‐carriers is however permitted for firms engaged in the transport of grouped goods by “grouping of consignments” and “consolidation of shipments”, each weighing less than 50 quintals, with services involving breaking bulk (meaning that goods are discharged and then divided and transferred from one mode of transport to another).
The transport form introduced in 2009 is no longer mandatory, which means it will no longer be necessary to fill in and keep such form on board vehicles during transport.
Free determination of prices and abolition of the so-‐called “minimum costs”
In accordance with the recent judgments of the European Court of Justice, the statutory provisions on the so-‐called “minimum costs” have been expressly repealed.
Thus, from now on, the parties will be “free to agree upon” prices and terms and conditions of carriage. The only thing left from the minimum-‐cost system is the periodic publication, by the Italian Ministry for Infrastructure and Transport, of the "indicative reference values of the operating costs of companies providing haulage services for hire or reward”.
Joint and several liability of principal
Like in contract procurement, prior to entering into a contract, a principal is required to verify whether the carrier is compliant with the statutory requirements concerning compensation, social contribution and insurance.1
Failure to check compliance will trigger the principal’s joint and several liability with the carrier and any sub-‐carriers to pay the persons concerned any amounts due to them as compensation, social security contributions and insurance premiums by reason of the transport service carried out. Joint and several liability shall apply within one year "from termination of the contract of carriage".
In case of an unwritten contract of carriage, the principal shall furthermore be liable to pay the costs connected with any breach of tax obligations or any infringement of the Highway Code that may have occurred during transport.
Joint and several liability between carriers and sub-‐carriers
The provisions on the principal’s joint and several liability referred to above apply to carriers as well, in a cascade-‐like fashion, in relation to the checks they are required to perform on sub-‐carriers.
Furthermore, the principal’s joint and several liability regarding compliance with the applicable requirements regarding compensation, social contribution and insurance extends to any sub-‐ carriers who, infringing the provisions on sub-‐ sub-‐carriage, entrust haulage services to third parties not meeting the applicable tax, remuneration, social security and insurance requirements.
Adjustment in the price of diesel oil and highway toll rates
If the contract requires the performance of haulage within a time exceeding thirty days, the part of the consideration covering the fuel cost incurred by the carrier shall be adjusted according to changes in the price of diesel oil, if exceeding 2% of the amount taken into account at the time of entering into the contract or at the time of the last adjustment.
The same adjustment mechanism shall apply to changes in the Italian highway toll rates.
Mandatory assisted negotiation
Generally, the obligation to engage in negotiation with the assistance of attorneys has been introduced as a preliminary condition to commence legal action in connection with carriage or sub-‐carriage-‐ related disputes.
Sanctions for late payment
Article 83-‐bis, paragraph 12, of Decree Law 112/2008, requires payment terms for carriage not exceeding 60 days, running from the date of issuance of the invoice by the creditor.
In this regard, the Stability Programme 2015 provides that in case of late payment of the compensation due, in addition to the default interest payable under Legislative Decree No. 231/2002, a sanction will apply amounting to 10% of the invoice amount and no less than € 1,000.00.