Professionals carry out an economic activity, and are therefore entitled to the protection established by article 2598 of the Italian Civil Code – which concerns the fields of advertisement and competition. So has the Court of Justice of the European Union (CJEU) decided with judgment C-41/90. The CJEU extended the concept of enterprise to professional activity, which is to be considered ‘economic activity’ to all intents and purposes, whether or not it is carried out through an organised structure of relevant dimensions with headquarters, employees, technological equipment, so as to prevail on the personal matters of the professional activity, in which the characteristics of the enterprise can be found, as per article 2238 Civil Code. The commercial division of the Court of Milan came to the same conclusion with the decision of 6 June 2017, establishing that freelance professionals are entitled to defence against unfair business practices just as well as entrepreneurs, as per article 2598 Civil Code.
The juridical path of the Court of Cassation to extend entrepreneurs’ legal projection to freelance professionals
Despite the Court of Cassation partially contrasting with the CJEU’s statement, some of its decisions have indeed started a path to equate self-employed professionals with entrepreneurs by extending to the first some of the latter’s legal protections.
For instance, certain rules have been applied to the transfer of a company branch of a large firm. In a further decision the Court of Cassation states that ‘the professional’s work and capital concur in producing revenue, which does not only come from the work, but also from the activity of the entire entrepreneurial structure’. Moreover, following the Court’s judgments, later case-law has expressed the principle whereby an intellectual professional assumes the quality of a commercial entrepreneur when carrying out the profession within an organised activity in a business form – hence why lawyers, architects, engineers, notaries are all entitled to protection against practices such as customers poaching, customers diversion, interference competition, use of confidential information, exploitation of assets such as documents, database, industrial and intellectual property, transfer of employees to acquire competitors’ information, as per article 2598 Civil Code.
Extension of constitutional protection to free market competition rather than to individuals
Moreover, with the constitutional reform of 2001, protection of competition has been introduced at article 117, par. 2 of the Constitution as a subject of exclusive legislative competence of the State. The regulatory intervention seems to reinforce the purpose of protecting competition as ‘objective protection of the free market’ rather than only as ‘mere protection of the freedom of the single economic operator’.
Requirements to equate professionals with entrepreneurs
A professional meets the requirement of carrying out an economic activity when they are identifiable as an entrepreneur who organised their work as an entrepreneurial activity of service supply, which includes:
- a venue
- employees
- an individual brand connected to:
the clients’ professional mandate;
the management of correspondence;
the management of relationships with clients and third subjects;
responsibility for purchases;
attribution of expenses.
In such cases, it is understood that the profession is carried out at an organised, entrepreneurial level, under the economic model of a Company of professionals, as indicated by the organisational models ruled by Book, V, Tiles V and VI of the Civil Code, followed by the Decree n. 34 of February 8, 2013.
