The recent Sentence of the Cassation n. 19394/2014 is a very important intervention with which principles of a general nature have been crystallized which, certainly, in the event of a dispute, will be used to qualify the legal nature of the employment relationship of the scientific medical informant who, due to the peculiarity of the activity carried out, can be traced back to the "grey area" between autonomy and subordination.
By Cristina Spadaro – LEGAL SIGNS Further information
A very recent sentence of the Supreme Court of Cassation offers food for thought on the age-old question of identifying the legal nature of the employment relationship of scientific reps in disputes between the latter and pharmaceutical companies (Cass. civ., section lav., no. 19394/2014).
The figure of the pharmaceutical sales representative found the first regulatory reference in the Consolidated Text of Health Laws Royal Decree July 27, 1934, n. 1265 Gazz. Phew. 9 August 1934 no. 186.
Subsequently, the European Commission elaborated a series of Directives which concerned the homogenization of the provisions of the law on scientific information, operating in the individual countries making up the Community (in particular, we note the Directive no. 92/28 EEC, implemented in Italy with the Legislative Decree 30 December 1992 n. 541: Advertising of medicines for human use – Gazz. Phew. 11/01/1993 no. 7 -, which from article 9 onwards, outlined the professional figure in question).
Subsequently, various ministerial decrees were issued, among which the Legislative Decree 24 April 2006 n. 219 that atart. 122 entitled "requirements and activities of scientific representatives", reformulated the content of the activity of scientific representatives by establishing, among other things, the subjective requirements that allow the exercise of the profession of scientific representatives, i.e. the obligation for each pharmaceutical company to communicate to AIFA, by the month of January of each year, the list of scientific representatives employed during the previous year, with an indication of the educational qualification and the type of employment contract with the pharmaceutical company.
The activity of the scientific representative takes place through visits to doctors in outpatient clinics, studios, hospital environments, with the aim of illustrating the composition, technological characteristics, therapeutic efficacy, contraindications, methods of use and optimal dosage of new drugs or those whose use is now consolidated.
Therefore, during the visit to the doctor, the informant can deliver material of scientific information (scientific papers, medical journals, texts, illustrative material, free samples). The fundamental task assigned to the Pharmaceutical Representatives is to constantly update the doctors in the assigned work area on the scientific and therapeutic contents of the drugs entrusted, within the scope of the registered therapeutic indications.
The medical class, therefore, especially today that the therapeutic baggage is enriched almost daily with new discoveries and continuous fine-tuning of already known specialties, can have, precisely through the conversation with the scientific rep, that update which is indispensable for him to carry out his profession correctly from a therapeutic point of view.
This professional figure sets as the object of the service an information activity which produces its effects on the market and therefore on the signing of sales contracts. Although not governed by the civil code, this figure is often improperly compared to the figure of the commercial agent, from which it differs in that there is no contractual promotion activity in the strict sense, the informant limiting himself to facilitating the use of pharmaceutical products and not proposing the stipulation of any contract since the same does not interact with potential buyers, but with subjects who can advise or prescribe drugs to their clients.
The legal figure of the informant is not, therefore, that of the commercial agent but falls within the unprotected intellectual professions, as there is no related professional register.
After all, the figure of the medical informant cannot be compared to that of the commercial agent, given that the former's task is to inform the medical profession of the product and its characteristics, without promoting the conclusion of contracts.
For some time both the jurisprudence of merit and of legitimacy have repeatedly pronounced on the legal nature of the employment relationship of the scientific informant in the sense of framing it both in the scheme of self-employment and in that of subordinate work depending on the concrete methods of carrying out the activity carried out.
In particular, the Supreme Court, in relation to this question, has had the opportunity to clarify the following: "The activity of the propagandist of medicinal products can take place both in the context of the self-employment relationship and in that of the subordinate employment relationship, depending on whether the performance of the activity, substantially identical in both cases, is characterized by the modalities of its performance, since the expressions used by the parties to define their relationship are only indicative. From the aforesaid activity (carried out independently and subordinately) which consists in persuading potential customers of the opportunity to purchase, informing them of the product and its characteristics, but without promoting (if not in a completely marginal way) the conclusion of contracts, the activity of the agent differs, who, in the context of an obligation not of means but of result, must also achieve the promotion of the conclusion of contracts, since his remuneration is directly connected and commensurate with these” (Civil Court of Cassation, Labor Section, 10.23.2001, n. 13027 in Rass. Dir. Farm., 2002, 23; in this sense also expressed: Court of Cassation 07.19.2004 n. 13389 in dirittofarmaceutico.net and Cassation 1.06.2004 n. 10507 in Orient. Giur. lav. 2004, 326; App. Court of Rome, Labor Section, 03.27.2006; Naples Court, Labor Section, 01.31.2006).
Recently the Supreme Court of Cassation, with sentence n. 19394/2014 went beyond the legal qualification adopted at the time of signing the individual contract, establishing that the activity of the scientific medical rep, even if endowed with a certain autonomy, must be seen in the context of the subordinate employment relationship rather than in that of an agency.
In the judgment in question, aspects of the relationship that had allowed the correct classification in the context of subordination were assessed and valued. In the case in question, the agent had deemed it necessary to appeal to the Labor Court in order to obtain recognition of the subordinate nature of the activity carried out on behalf of a pharmaceutical company.
The Court of Pisa, having recognized the existence of the subordination bond, had ordered the company to pay compensation for the damage suffered by the worker with the consequent burden of reinstatement.
Subsequently, the Florence Court of Appeal had rejected the company's appeal, specifying that the preliminary investigation carried out had confirmed the exclusion of the agency nature of the inter partes employment relationship
When faced with the question, the Supreme Court, regardless of the type of essentially fixed remuneration granted to the worker, decided to give decisive importance to the fact that the same, during the course of the employment relationship, was periodically required to report his work to the area manager, noting the limited margin of autonomy which the same enjoyed in deciding the list of doctors to visit with respect to the list of appointments already prepared by the employer.
On the basis of the aforementioned considerations, the stoats consequently rejected the appeal brought by a well-known pharmaceutical company, confirming the sentence rendered by the Court of Appeal of Florence.
This is a very important intervention with which principles of a general nature have been crystallized which, certainly, in the event of a dispute, will be used to qualify the legal nature of the employment relationship of the scientific medical informant who, due to the peculiarity of the activity carried out, can be traced back to the "grey area" between autonomy and subordination.
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