In the current regulatory fabric on health and safety in the workplace, Article 26, paragraph 4, of Legislative Decree 9 April 2008, n. 81 constitutes the fulcrum of the regime of solidarity responsibility Between Client, contractor and subcontractor for damages not compensated by theINAILproviding, however, an express exclusion when the harmful event derives from specific risks proper to the activity of the executing company; The referendum question subjected to the vote of 8-9 June 2025 aims to suppress precisely the latter, thus proposing an automatic expansion of the subjective scope of the compensation solidarity without altering the further obligations of cooperation, coordination And verify already imposed by the current discipline.
Article 26, paragraph 4, of Legislative Decree 9 April 2008, n. 81placed in Title I del del Consolidated text on health and safety in the workplaceregulates the liability profiles that arise when the employer-client entrusts works or services to business contractors or self -employed workers operating in his own production unit or in areas he controlled. The legislator, starting from the idea that the co -presence of different organizations can generate Interference risks to be paid by the workers, introduced a regime of solidarity responsibility of client, of the contractor and any subcontractor for damage from accidents or occupational disease not fully indemnified byINAIL. In the same disposition, however, it appears an engraved – Immobile since 2008 despite the tolls of the Legislative Decree 106/2009of DL 69/2013 converted into L. 98/2013 and of the DL 146/2021 converted into L. 215/2021—Sondo which “the provisions of this paragraph do not apply to the damage consequence of the specific risks proper to the activity of the contracting companies or subcontractors ». This clause delimits the obligation of solidarity, attributing to only contractor (and, if necessary, to subcontractor) the asset responsibility for the harmful events produced by intrinsic and typical dangers of the processing they organize, provided client He did not contribute causally to the event pursuant to ordinary rules.
On the jurisprudential side, the Court of Cassation has constantly interpreted the exemption in a restrictive sense: the Work sectionwith the sentence n. 5090 of 21 February 2019and the Criminal sectionwith the sentence n. 3891 of 30 January 2023clarified that the client However, it remains responsible if it has affected the organizational choices of thecontractor or has failed to verify thetechnical-professional suitabilityhighlighting how the obligation of diligence that weighs on client It does not end in the elaboration of the Duvri But it extends to the substantial control of the reliable. Despite this, in the civil seat, the safeguard clause of “Specific risks” He continued to constitute a rag, sometimes rigid, to the claims of the workers, fueling complex disputes based on the distinction – not always easy – smashed risk of the contract And interferential risk.
The referendum question under examination proposes to expand exclusively such an engraved, without touching the rest of the paragraph 4 nor the overall structure of theArticle 26. If the electoral body approved therepealthe compensation solidarity it would also extend to the damages deriving from specific risks ofcontractor or of the subcontractoreliminating the current distinction and expanding the subjective scope of the obligation, while the other obligations of cooperation, coordination And verification of the suitability. On the civil level, the possibility for the worker to act indiscriminately against Client, contractor and subcontractor; On the criminal plan, the individual assessment of guilt would continue to apply, but with a strengthening of the supervision on the end of the client. Finally, the suppression of the exemption would leave intact the location of theArticle 26 inside the Consolidated Law and coordination with theArticle 2087 of the civil code and with the Directive 89/391/EECaffecting only on the perimeter of the civil liability pursuant to lege without changing the regulatory structures regarding prevention, supervision and control.