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Grignani - Studio Legale

on number 22/2022 of Labor Law and Practice, the following article by Avv. Andrea Loro:

ASSOCIATION IN PARTICIPATION AND EMPLOYMENT RELATIONSHIP: BUSINESS RISK ASSESSMENT
With the ordinance no. 6893 of 2 March 2022, the Court of Cassation went back to analyzing the differences between joint venture and employment relationship, in relation to a case that occurred before the changes made by art. 53 of Legislative Decree n. 81/2015 to the partnership agreement in participation. The Court affirmed the principle according to which the non-participation in losses by the associate is not sufficient to allow the judicial declaration of the existence of an employment relationship. On the contrary, the court of merit must be called to a careful analysis of the peculiarities of the specific case, in order to verify whether there has been an effective participation of the associate in the business risk, participation that can take diversified and heterogeneous forms, in compliance with the negotiating autonomy attributed to the contracting parties.