Professions: green light to fair compensation but critical issues remain
The law on fair compensation (n. 49/2023) enters into force today for i freelancers. The rule will serve to protect professionals in two respects: the fee and the unfair contractual clauses. Strong contractors, i.e. banks, insurance companies, public administrations – with some exceptions – and large companies, must in fact give professionals remuneration appropriate to the performance requested and in line with ministerial parameters.
Nullity of vexatious clauses
Another crucial provision is that which establishes the nullity of “unfair” agreements and clauses. These are those which: prohibit the professional from request down payments during the performance; allow the customer to change unilaterally il contract or to demand additional services free of charge; they do not foresee a fair compensation and proportionate to the work performed; they attribute to client disproportionate benefits with respect to the quantity and quality of the work performed; they foresee payment terms exceeding 60 days from receipt of the invoice.
Too small audience
However, the provision seems to show some critical issues. The first concerns the audience: for some, in fact, this would be the result too narrow. The new law affects about 51,000 companies (out of a total of six million) and 27,000 public administrations. Then there is the problem of ministerial parameters which, at the moment, are those used in the courts in the event of litigation on fees and, for the majority of ordinary professions, are very old. The situation of the parameters for non-regular professions is more complicated, because they do not exist yet and will be defined with a ministerial decree.
Sanctions and retroactivity
Another critical point underlined is the one concerning the penalty systemThat affects the professional and not the customer. The law also establishes that Orders they have the power to sanction their members who accept unfair compensation; however, there is no entity that sanctions professionals not registered with an order. Criticisms have also been raised about the non-retroactive application of the law, because existing conventions are not subject to the new rules. Conventions are framework agreements on the basis of which contracts are then signed, therefore new contracts stipulated on the basis of old agreements are outside the scope of fair compensation.
Still possible free assignments in the PA
Finally, it was pointed out that based on the new Procurement codeLegislative Decree 36/2023, in article 8 free assignments continue to be admitted for professionals, while referring to the principles of fair compensation?”. The services of intellectual work – reads the article – cannot be rendered by professionals free of charge, except in exceptional cases and subject to adequate motivation”. Therefore, some situations would allow for free assignments by the Public Administration. This is true even if, as article 8 always explains, “the public administration guarantees the application of the principle of fair compensation in any case”. In short, there is no explicit prohibition of free assignments, the fair compensation it seems worth only in cases where it is actually foreseen a fee.