Contratto di rete e network contract

The present work deals with a systematic and comparative analysis between the Italian contratto di rete and the British network contract. The contratto di rete was introduced in the Italian legislation by the law n.33/2009 in order to encourage the cooperation among companies and the market’s competition. This research unfolds in to three main directions, corresponding to the first three chapters. The fourth chapter is dedicated to the cooperation methods amongst companies specifically in the maritime transportation sector, and in particular, in the field of harbour services. Conclusions focus on the internationalisation opportunities of the contratto di rete, as wished for by the Italian legislator. In the current economic scenario, characterised by transformations of the productive system, the contratto di rete allows to govern the cooperation amongst companies offering a flexible regulation able to adapt to the specific needs of the companies in the network and to the market variations. The first part of the work offers a systematic analysis of the contratto di rete’s regulation with the Italian and European competition law. Though from a logic perspective cooperation conflicts with competition, cooperation agreements – being contratto di rete one of them – are generally considered compatible to the competition law. Only if the agreement negatively impacts on competition, would the ban expressed in the article 101 TFUE be enforced and the deal would be considered null. Such compatibility cannot derive from the instance in which parties have adopted the negotiation scheme of the contratto di rete abstractly provided for by the legislator, whereas it requires a solid examination of the network common programme. Thus the common programme becomes a crucial and essential element of the contract and its uncertainty nullifies the contract, as per article 1346 c.c. According to the definition given by the legislator, the network programme offers a wide spectrum of variations, allowing for the possibility to collaborate in shapes and fields that are relevant to the companies, exchange information or services, or perform jointly one ore more activities relevant to the nature of the companies involved. Many categories of cooperation agreements as included in the contratto di rete deal with matters that by distribution and relevance are disciplined by the EU legislator that has included them in exemption regulations by category. In this regulatory framework, it was indeed necessary to verify the compatibility of the system of tax relief that benefit company networks with the European law regarding State aid. The second chapter draws a theoretical analysis of the essential principles characterising the contratti di rete, their contractual structure and the most important problems related to them. In this chapter the fundamental aspects that differentiate the network contracts from other contracts (i.e. Consortium of companies and A.T.I. – Temporary Association of Companies) are also examined. The new contractual tool of companies’ aggregation is shaped as a multilateral contract with a common purpose which may result in a more organised structure or may be limited to regulate relationships between single companies. As a consequence of the flexibility characterising this kind of contracts, which results in the possibility to establish the relationships between the companies in a structured manner, providing for a stable organization and financial funds separate from those of each single company, the legal doctrine has shown some perplexities regarding the determination of the applicable law and the definition of the nature of this tool. The main ambiguous aspects that legislation has underlined reside in the more developed and structured form of the network, without the option of the legal personality. The attribution of the legal personality deriving from the duty of publicity represents an unicum in the Italian legislation which recognises, if provided so, the legal personality, leaving at the same time to the legal doctrine and to the case-law the description, on a case-to-case basis, of the different concept of the legal personality. The third chapter is dedicated to the comparative analysis of the Italian contratto di rete and the network contracts applied in UK as an agreement of cooperation between the companies. The British legal doctrine raises the same doubts of interpretation as regards the network contracts. In fact, also in the UK legislation this tool cannot be conceptualized neither in the realm of profit-making associations nor it within the scope of the contract law. The common law system does not provide for any regulation of the network contract as an economic entity rather than a legal entity. As a consequence, difficulties arise as regards the determination of the applicable law. The relevant solutions, though reached in different ways, often are similar to those achieved by the Italian legislation. The UK system does not provide for a multilateral contract with a common purpose. It provides for the establishment of the network through different bilateral contracts linked as a system, related and interdependent. This aspect highlights the main structural difference between the Italian contratto di rete and the British network contract. However, a challenge emerges to relate the interest of the other parties aggregated in the network in view of the fulfillment of the contractual performance by the other companies which are not directly bound by a bilateral contract. The protection of the interests of each party in view of the fulfillment of the contractual performance by the other companies is provided by the contract for the third party or by the standard agency contract. The reform introduced by the Rights for third parties (Contract Act 1999) allows to go beyond the principle of privity of contract which represents, in the UK system, the principle of relativity of the effects of the contract provided for in article 1372 of the Italian Civil Code. It also allows the third party to act in order to obtain the compliance of the contractual performance by another subject in his favour. From a different point of view, the same protection is provided by using the standard agency contract by which each party of the network implicitly confers on the other subjects a power of representation to conclude each related contract. Unlike the Italian legislation regulating the network, the UK legislation finds it difficult to recognize the network as an entity distinguished from the aggregated firms. This conclusion is due to the obstacles that the theory of the connected contracts elaborated by Teubner found in the UK system. According to said theory, it is possible to regulate the relationship between independent subjects which are, at the same time, interdependent; the theory provides the exchange of performances and the establishment of a stable organization and considers the aggregation as a separate entity. However, the UK system does not accept this view; in fact, it excludes that the single bilateral contracts, though related between them, may create an autonomous and separate entity. On the other hand, some limitations emerge with regards to the application to this tool of the legislation of the contracts in favour of a third party which may extend the protection to each party but not to the group as a whole nor to third parties entering into the contract. The same doubts found by the Italian legal doctrine emerge also as regards the recognition of the legal personality, given the importance to recognise a specific collective interest which allows to apply the duty to act bona fide usually provided for by the contractual law. Some judicial decisions, here reported, will highlight the evolution of the British jurisprudence which is starting to take into account the network contract within the wider principles of contract law.