13 Feb “CONTRATTO DI RETE” IN ITALY: THE BENEFITS FOR THE COMPANIES
WHAT IS ,,CONTRATTO DI RETE’’?
Over the years, the European Union and its Member States have intensified their actions in favor of micro, small and medium-sized enterprises, recognizing their economic, strategic and social importance. In 2008 the European Commission published the Small Business Act, which was implemented in Italy in 2010. Due to the need to implement this act at the national level, a new type of contract appeared in the Italian legal system -,,il contratto di rete (CDR)’’. ,,Il contratto di rete’’ defines a new form of business cooperation between companies in Italian economic and legal reality. Indeed, is an innovative institution in Italian’s system and creates a model of collaboration between companies that allows, while maintaining its independence, autonomy and specialties, to realize shared projects and objectives, increasing the innovative capacity and competitiveness on the market. To reach this aim, the entrepreneurs undertake to collaborate in forms and in predetermined areas related to the exercise of their businesses on the basis of a common program. They also are exchanging information or services of an industrial, commercial, technical or technological nature and jointly exercising one or more activities that fall within the scope of their business. This type of contract was introduced in Italian legal system in 2009 and is governed by art. 3, paragraphs 4-ter, 4-quater, 4-quinquies, of Law no. 33 of 9 April2009 (conversion of Legislative Decree No. 5 of 10 February 2009), and amended by Legislative Decree no. n. 78 of May 31, 2010, converted into Law no. 122 of 30 July 2010.
WHO CAN STIPULATE ,,IL CONTRATTO DI RETE’’?
The law specifies that ,,il contratto di rete’’ can be stipulated by “more entrepreneurs”.
The contractors can therefore be entrepreneurs regardless of their respective nature (it means that are included individual businesses, companies and public entrepreneurs, also non-commercial). According to this, public bodies can also be part of the ,,contratto di rete’’, which have as their sole or principal object a business activity not necessarily commercial; as well as non-profit companies. Participation in this network has an open, specific structure, which means that it is possible to expand it with new members as long as they fulfill certain conditions. These conditions may include specific subjective and objective criteria.
WHAT IS THE CONTENT OF THE CONTRACT?
Article. 3 paragraph 4-ter of the Law of 9 April 2009 n. 33, as amended by the Law of 30 July 2010, n. 122 introduce obligatory and optional elements of the contract.
,,Il contratto di rete’’must indicate:
- the participants data (the name, company, reason for joining – each participant signing
in for the contract or wanting to prolong the membership must provide his data). The necessity to give precise indications of the contracting parties seems to be an obvious requirement. Additionally the contract regime obliged them to register in so-called ,,the Business Register’’ (Registro delle Imprese).
- the strategic goals that participants of the contract want to achieve and define the tools
by which they would be able to measure progress in achieving these goals.
- the program of the network (Programma di rete). Such a program should specify the rights and duties that each participant that apply to them, a common goal, which they want to achieve and ways of achieving it.
- the duration of the contract (Durata del contratto). The CDR cannot be concluded for an indefinite period. A specific date must be indicated.
- the rules for the admission of new members; The network contract must provide for the possibility of subsequent accession of other entrepreneurs, provided that this possibility
is regulated by the original contractors, who will be entitled to define in advance the requirements for access to the network new entrepreneurs.
- the form: a public act or authenticated private act.
- the rules for taking participants’ decisions on every subject or aspect of common interest.
,,Il contratto di rete’’ can also include:
- the establishment of a Common Patrimonial Fund (Fondo Patrimoniale Comune).
- the appointment of a joint body (Organo Comune) responsible for managing the execution of the contract;
- the provisions of optional causes for termination of the contract.
As we can notice, this legislation envisage that the CDR may have a simplified organizational structure (so-called “light network” characterized by only mandatory content) and a more complex structure (so-called “heavy network“with the patrimonial fund and a common body).
,,PROGRAMMA DI RETE’’
The network program (,,programma di rete’’) is an essential element characterizing the network contract, which must contain the rights and obligations assumed by each participant and the ways to achieve their common purpose. In other words, it is the common program that summarizes the shared project between the participating companies around which the network contract must be designed. The typical advantages that can be achieved with the network contract are for instance: greater external bargaining power with the consequent ability to obtain lower prices than those obtainable by individual companies; the possibility of organizing collective promotion actions of a certain product or service, for example through participation in fairs
or through the preparation of a shared catalog; ability to make significant investments by dividing the costs, for example conducting researches or acquisition of the necessary equipment; or greater adaptability and mobility of usage of human recourses.
With regard to the conformation of “governance” of the network, the law outlines a complex and composite case where elements of an optional nature are accompanied by elements that characterize that contract and are essential. For that reason, a capital fund may or may not be included, as well as the common body, that is the organ responsible for managing, in the name and/or on behalf of the participants. Also this freedom of the contractors to pledge the economic endowment and the managerial subject, gives ,,il contratto di rete’’ the necessary and physiological flexibility, that have been already highlighted. Nonetheless, the contract which also includes
“the common body and the patrimonial fund does not have legal subjectivity”. But legal subjectivity in fact is reached “pursuant to paragraph 4-quater last part”, if the patrimonial fund is envisaged, and the network register in the ordinary section of the Register of Companies in the district where its main headquarter is located. Through this registration the network acquires legal subjectivity.
ADVANTAGES OF THE CDR (il Contratto di Rete)
At first glance, it would appear that CDR has many features in common with other legal solutions in the Italian legal system(ATI, consortiums), however only this innovative legal instrument allows companies to:
- establish a stable and lasting collaboration among them for the achievement of strategic objectives (innovation and competitiveness) while not being at the same time limited
to single phases of companies such as consortia or individual economic operations, which exists in ATI;
- have a wide negotiating autonomy to define the subject of the network contract and shaping it according to the objectives of the participants’ project;
- introduce binding rules for collaboration between participants without the need to set up
a new company or a new entity, with the result of being able to maintain their individuality, autonomy and entrepreneurial identity.
INCENTIVES FOR THE NETWORK CONRACT
The Council of Ministers approved on 10 April 2015, Economic and Financial Document (DEF), which is the planning document that indicates the economic and public finance strategy
in the medium term. The DEF includes the National Reform Program (NRP), a document indicating the state of progress of reforms initiated, national macroeconomic imbalances and macroeconomic factors affecting competitiveness, the country’s priorities and the main reforms to be implemented.
Among the main innovations to be achieved by 2015, there is a support for the growth
and spread of business networks. The main incentives are: the extension of tax breaks for business networks and all other forms of encouragement, such as simplification of the legislation in relation
to the aspect of the mobility of the internal workers to the participating companies (co-governorship institute) or the promotion of the Italian model of network contract in Europe with the setting
of a European contract in order to favor the internationalization networks.
In the DPR they were also other incentives as follows:
– incentives for network initiatives promoted by a catalyst subject or guided by medium-large companies able to manage some elements of financial, logistic-distribution, legal and marketing complexity;
– possibility to establish a National Fund that integrates the single regional funding to support the companies belonging to the non-beneficiary interregional network contract.
All of these initiatives only confirm the great confidence of the Legislator in the potential
of this type of contract. The potential of this institution and the growing popularity is also confirmed by the latest statistical data. The current statistics provided by Infocamere indicate that till 3 February there are 26.861 companies that are involved in network contracts and the number
of network contracts which are concluded is 4.423. The largest number of associated companies comes from the Lazio region (7.190) , while the lowest number come from the Molise region (44).
INVOLVED COMPANIES CONTRATTI DI RETE
Region of Italy Number of companies
Friuli-Venezia Giulia 1228
Trentino-Alto Adige 389
Valle d’ Aosta 48
Data for the date: 03.02.2018