By ASLA - Associazione degli Studi Legali Associati

Bologna - Between 2005 and 2014 the road transport sector experienced a season of frequent and very profound legislative interventions, which have largely shaped the regulatory framework still in force today. Following the budget law of 31 December 2014 (which repealed the minimum security costs and introduced some provisions aimed at counterbalancing this repeal), the sector was no longer affected by reforms of particular importance.

In recent months, road transport, also due to the energy crisis that has caused the main cost of companies in the sector to soar, has returned to the center of attention of the legislator, who has recently introduced some rather significant innovations.

After the repeal of the minimum safety costs, the fees due to the carrier for the execution of the transport services had returned, with few limitations, to be freely negotiable between the parties.

With the recent Ukrainian Decree (Legislative Decree 21 March 2022, n.21, converted with Law 20.05.2022, n.51), some regulatory provisions have been introduced which once again affect the free negotiation of the fees due to the carrier. Art. 14 of the aforementioned decree, in fact, provided that in all transport contracts stipulated in writing a "clause for adjusting the amount to the cost of fuel must be inserted, based on the changes in the price of diesel fuel following the surveys monthly from the Ministry of Ecological Transition, if said changes exceed the value taken as reference at the time of stipulation of the contract or of the last adjustment made by 2 per cent". Failure to include this clause renders (for the purposes of Legislative Decree 286/05) the written contract equivalent to the verbal contract. With what consequences? The same art. 14 of the Ukrainian Decree establishes that, in the case of contracts not stipulated in writing, the consideration "is determined on the basis of the indicative reference values ​​of operating costs" published by the Ministry and which from now on must be updated quarterly. In hindsight, this is the reintroduction in our legal system of a mechanism of minimum costs, albeit limited only to verbal transport contracts, or to incomplete written contracts in terms of the essential elements listed in art. 6, paragraph 3, of Legislative Decree 286/05.

Law 51/2022 did not limit itself to converting the so-called Ukraine decree, but also introduced new provisions that will also have a quite significant impact on certain types of transport and, in particular, on the transport of palletized goods.

In February 2011, art. 11bis of Legislative Decree 286/2005, in order to protect those carriers who encountered (mainly in transport to and from large-scale distribution) the age-old problem of handling and consequent return of pallets. The aforementioned rule establishes that "in the event that the goods to be transported are packed, or stowed on special units for their handling, the carrier, at the end of the transport operation, has no management obligation and is not required to return of used packaging or handling units". Up to now, the general rule has therefore been that of the carrier's irresponsibility for any failure to deliver the pallets: a general rule that admits, however, exceptions on a treaty basis. The second paragraph of art. 11bis establishes, in fact, that "If the customer and the recipient of the goods have agreed for the return of the packaging or handling units, the carrier is not responsible for the refusal to return by the recipient of handling units of number or of lower quality than those with which the transport was carried out, and in any case has the right to compensation for each ancillary service performed".

Law 52 of 20.05.2022 introduced, among others, art. 17ter entitled "Discipline of the pallet interchange system" which establishes that "The subjects who receive, for whatever reason, without prejudice to the sale, the pallets referred to in article 17-bis are obliged to return to the owner or client of a equal number of pallets of the same type, with technical-qualitative characteristics similar or comparable to those of the pallets received". Art. 17ter then continues by providing, in the second paragraph, that "Without prejudice to the case in which they have been expressly dispensed by the owner or the customer, the obligation referred to in paragraph 1 remains with the subjects required to return the pallets, regardless of the state of conservation and technical compliance of the same. The type of interchangeable pallets referred to in Article 17-bis is indicated on the relevant documents from the sender and cannot be changed by the recipients". The new legislation recently introduced has, therefore, completely overturned the original provisions, introducing in the first paragraph (as a general rule) the responsibility of the carrier (like any other person who receives their detention) for the return of the pallets. This liability ceases only in the case of express release by the customer. Art. 17ter paragraph 3 provides that in the event of the inability to provide for the immediate exchange of pallets, the subject obliged to return "is required to issue a specific vaucer, digital or paper, acting as an improper credit title transferable to third parties". This vaucer allows the return of pallets to be postponed for a maximum of six months. Pursuant to paragraph 4, failure to return within the aforementioned term "entails the obligation, for the person obliged to return, to pay an amount equal to the market value of each pallet".

It is important to underline that the nullity of any agreement contrary to the aforementioned provisions is expressly provided for. Given the failure to repeal art. 11bis of Legislative Decree 286/05, the carrier, following the entry into force of Law 52/2022, is subject to two separate regulations. The return of handling units or packaging that do not fall within the definition of pallets provided by art. 17bis of Law 52/2022 will continue to be governed by art. 11bis of Legislative Decree 286/05. From now on, the return of handling units that fall within the new definition of pallets will, on the other hand, be strictly governed by Articles 17bis and 17ter of Law 52/2022.

*Managing Partner, Zunarelli Studio Legale Associato

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