GUIDELINES FOR PROVIDING OPPORTUNITIES FOR UKRAINIAN ARCHITECTS AND ARCHITECTURE STUDENTS WITH ITALIAN PROFESSIONAL FIRMS

By the National Council of Architects, Planners, Landscapers and Conservationists

INTRODUCTION

With these operational guidelines, the National Council of Architects, Planners, Landscapers and Conservationists intends to support the Councils of Provincial Architects’ Associations and the members in the possible actions for “hosting”, in their professional firms, Ukrainian architects and students displaced by the military invasion and the consequent humanitarian emergency, as from 24 February 2022, in light of the current regulatory framework.

For the purposes of these guidelines, “hosting actions” means the employment or presence of displaced Ukrainian architects in professional architectural firms (whatever their legal form), as professionals, employees (without using their job title) or borrowers.

In particular, the operational guidelines are intended to reconstruct the current regulatory framework and indicate some possible ways of practising the profession of architect in Italy or using the premises and resources of professional firms on the national territory, highlighting some of the requirements and cautions/safeguards that should be followed, without however taking the place of the indications of the competent national and local administrations (e.g. the Civil Protection Department, Di.Coma.C, Prefectures-UTG, Regions and Autonomous Provinces, ministries, police headquarters, etc.) and without prejudice to the specific indications given by industry professionals and operators (e.g. labour consultants, insurance companies, tax experts, etc.).

Finally, it should be noted that the regulatory framework, including the emergency and extraordinary framework, is constantly evolving and that, therefore, the actions concretely implemented by members must take into account these developments.

For ease of reading, the guidelines are organised as FAQs, with the aim of giving simple answers to the various questions posed to the host.

GUIDELINES

Those wishing to host Ukrainians fleeing the war can contact the Prefecture of their municipality or use the addresses indicated in the websites of their region. The Civil Protection Department has also set up an online platform #OffroAiuto that allows citizens, companies and Third Sector or Social Private entities to offer goods, services and accommodation to support the Ukrainian population.

To make a contribution, simply go to https:/offroaiuto-emergenzaucraina.protezionecivile.gov.it, select the type of offer, fill in the form and then confirm your offer by mobile phone.

Offers of goods, services and hospitality will be sent to the emergency coordination facilities, civil protection voluntary organisations and Third Sector or Social Private entities involved in reception and support activities. The holders of a residence permit for temporary protection or those who are in possession of a receipt from the police headquarters attesting to the submission of the application can sign the Availability Status (DID) to inform the Employment Centre (CPI) of their unemployment status and thus register with the CPI and use its services.

According to Ministerial Decree of 28 March 2022, the Ukrainian citizens residing in Ukraine before 24 February 2022, or a member of their family, stateless persons, refugees in Ukraine or holders of a permanent residence permit in Ukraine before 24 February 2022 are entitled to temporary protection.

Those who fall into the categories entitled to temporary protection can apply for a residence permit for temporary protection at the Police Headquarters in their place of residence. Here their fingerprints will be taken, and personal data, passport or other identity documents are requested.

The police headquarters will issue a receipt for the applicant, certifying that the application for a residence permit for temporary protection has been submitted.

When the application for a residence permit for temporary protection is submitted, the tax code is also issued to the applicant by the police headquarters, in accordance with the procedure already in place for applicants for international protection and which will automatically identify the applicant as a recipient of health care.
The receipt stating the application for temporary protection will allow all the rights linked to temporary protection to be exercised, including access to study and work. For more information on access to the labour market see the FAQ of the Ministry of Labour and Social Policy on “Work and temporary protection”.

The person applying to be hosted must therefore have:

  • a residence permit for temporary protection or a receipt from the police headquarters confirming the submission of the application;
  • tax code.

The Immigration Office of the Police Headquarters is responsible for the assessment and issue of the residence permit for temporary protection. Those who do not have the documents required for the issue of a residence permit for temporary protection should contact the Ukrainian diplomatic-consular authorities to confirm that you meet the necessary requirements (e.g., nationality or residence in Ukraine, possession of a residence permit or family ties to a specific person). For further information, please refer to the notes of the Embassy of Ukraine in Italy on passports and identification of Ukrainian citizens published in a circular of the Ministry of the Interior – Department for Internal and Territorial Affairs https://dait.interno.gov.it/servizi-demografici/circolari/circolare-dait-n23-del-10-marzo-2022

The humanitarian emergency resulting from the war in Ukraine has led the national government to adopt a series of exceptional and urgent measures and interventions to deal with it. Specifically, with reference to access to the labour market, the following measures have been taken so far:

  • Art. 34 of Decree-Law no. 21 of 21 March 2022, setting forth “Urgent measures to counteract the economic and humanitarian effects of the Ukrainian crisis”, which established a specific derogation from the rules for the recognition of healthcare professional qualifications for Ukrainian doctors, allowing professionals who were Ukrainian citizens resident in Ukraine before 24 February 2022 to use their healthcare professional qualifications. However, there are currently no similar derogations to practice other professions, including that of architect (which implicitly confirms the continued reference to the “ordinary” rules on the subject);
  • The Decree of the President of the Council of Ministers of 28 March 2022. In light of the European Council’s Implementing Decision no. 2022/382, which took note of the existence of a justified and massive influx of displaced persons from Ukraine, the decree arranged for the granting of “temporary protection” in accordance with art. 5 of Directive 2001/55/EC. Temporary protection is granted to persons displaced from Ukraine as of 24 February (included), these being:
    • Ukrainian citizens residing in Ukraine before 24 February 2022;
    • stateless persons and nationals of third countries, other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022;
    • family members of the persons referred to above.

Temporary protection is also granted “to stateless persons and nationals of third countries other than Ukraine who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin” (Art. 1(3), Ministerial Decree of 28 March 2022).

Temporary protection allows a residence permit to be obtained for one year, which can be extended by six months for a further year.

This title grants:

  • access to healthcare provided in Italy by the National Health Service;
  • access to the labour market;
  • the right to study, without prejudice to the more favourable conditions provided for in art. 38 of Legislative Decree no. 286 of 25 July 1998 (containing the “Consolidated Act of Provisions concerning immigration and the condition of third country nationals”; also “TUI”), art. 21, of Legislative Decree no. 142 of 18 August 2015 and art. 14, of Law no. 47 of 7 April 2017.

In a nutshell, the current government measures make it possible to obtain a residence permit, allow access to the labour market, but do not provide for recognition of the professional qualifications of architects, planners, landscape architects and conservationists .

With a residence permit for temporary protection or the receipt stating the submission of an application for a residence permit for temporary protection, it is possible to work in an employed or self-employed capacity.

Civil Protection Order 872/2022 explicitly mentions the possibility of self-employment.

People from Ukraine can obtain a VAT number even with only an application for a residence permit for temporary protection. In case of collaboration with a VAT number

Starting a professional collaboration with a VAT

In case of starting a professional collaboration with a VAT-registered guest, by entering into a contract for the provision of services: the worker, against payment of a fee, undertakes to carry out work or provide a service through their work, without being subordinate to the client.

The characteristics of a contract with VAT number are therefore:

  • the absence of time constraints;
  • freedom in the choice of implementing methods;
  • the presence of a result to be achieved and remuneration for it;
  • the assumption of an economic risk by the self-employed worker;
  • the unique nature of the service and its occasional nature.

It should also be pointed out that it is not compulsory, but advisable, to draw up a written professional collaboration agreement with a VAT number.

The possible ATECO codes for obtaining a VAT number are:

  • 74.10.10 fashion and industrial design activities;
  • 74.10.21 activities as graphic designers of web pages;
  • 74.10.29 other activities as graphic designers;
  • 74.10.30 other activities as technical designers;
  • 74.10.90 other design activities.

For each of the above-mentioned codes, there are two routes to follow: classification as a freelancer or as a sole proprietorship.
The former case covers intellectual work and consultancy. The VAT number is obtained online via the Agenzia delle Entrate (Inland Revenue) website and involves registration under the INPS (National Social Security Institute) separate management scheme.

In the latter case, however, the professional activity is carried out in an artisanal manner (e.g., creation of graphic content, etc.) and must be started via the Single Notice.

This Notice refers to a computerised procedure that includes registration with the Register of Companies, the Inland Revenue Service, INPS (National Social Security Institute) for artisan/tradesman management and INAIL (National Institute for Insurance against Accidents at Work). This arrangement is certainly more expensive for the professional, who will have to pay fixed INPS contributions (about 4,000 per year), annual Chamber of Commerce and INAIL fees.

Regardless of the ATECO code, to be self-employed, it is therefore necessary to obtain a VAT number and to choose which scheme to operate under. The flat-rate scheme is reserved for an income below 65,000 euro/year: the self-employed person, in this case, is not subject to VAT, business sector analyses or even bookkeeping. They pay a 5% substitute tax (normally on 78% of the gross taxable income) for the first five years, and then 15% (normally on 78% of the gross taxable income).

The ordinary scheme, on the other hand, applies the following IRPEF rates:

  • 23% for income up to 15,000 euro;
  • 25% for income between 15,000 euro and 28,000 euro;
  • 35% for income between 28,000 euro and 50,000 euro;
  • 43% for income beyond 50,000 euro.

For the self-employment scheme to apply, in order to curb the phenomenon of false VAT numbers, the Italian law requires that:

  • there is no employer-employee relationship with the client;
  • the activity is carried out mainly on one’s own account and for a consideration;
  • the client does not coordinate the work.

In any case, before obtaining the VAT number and choosing the tax scheme, it is necessary to evaluate, with a tax consultant, the choices to be made, also in view of the possible short period of activity.

In case of a fixed-term employment contract

If the professional qualification fails to be recognised or pending the examination that may be required as a compensatory measure, hiring may be on the basis of a fixed-term employment contract, if the conditions are met and without exercising the activities to which the professional qualification as architect refer.

In general, as is well known, an employment contract may be of the fixed-term time “only if at least one of the following conditions is met: a) temporary and objective needs, unrelated to the ordinary activity, or to replace other workers; b) needs related to temporary, significant and unexpected increases in the ordinary activity; b-bis) specific needs provided for by the collective agreements referred to in art. 51” (art. 19, Legislative Decree no. 81 of 2015).

In setting the time limit (without prejudice to the general limits), it must be taken into account that the Ministerial Decree of 28 March 2022 allows, for the time being, a residence permit for temporary protection to be obtained for one year, which can be extended by six months at a time, for a further year.

The person to be recruited must therefore have:

  • a residence permit for temporary protection in accordance with Ministerial Decree of 28 March 2022 or a receipt attesting to the submission of the application;
  • tax code.

Where the conditions for imposing a time limit are met and without prejudice to the prohibitions set out in art. 20 of Legislative Decree no. 81 of 2015 – the employer shall enter into a contract governed by articles 19-29 of the same decree.

Pursuant to art. 4-bis of legislative decree no. 181 of 21 April 2000 (containing “Provisions to facilitate a balance between labour supply and demand, in implementation of art. 45, paragraph 1, letter a), of law no. 144 of 17 May 1999”), within 24 hours of the day preceding the day on which the employment relationship is established (even if it is a holiday), the employer (or other authorised person) is required to make the compulsory communication through the computer service for sending compulsory communications. Filling in and sending the so-called “UniLav” form fulfils all the obligations of communication to the National Social Security Institute (INPS), the National Institute for Insurance against Accidents at Work (INAIL), and the other substitute or exclusive social security forms, as well as to the Prefecture – https://www.inps.it/inps-comunica/diritti-e-obblighi-in-materia-di-sicurezza-sociale-nell-unione-europea/moduli-di-comunicazione-il-modello-unilav.

The form also contains indications of the employer’s commitments under the TUI, i.e., to pay the costs for third country nationals to possibly return home in the event of a forced repatriation and to indicate their accommodation – https://www.cliclavoro.gov.it/Aziende/Adempimenti/Pagine/Comunicazioni-Obbligatorie.html.

For salary payments, if the worker does not have or no longer has access to their bank account, it is possible to consider using a prepaid card with IBAN, for salary crediting and for making and receiving transfers.

For more information on access to the labour market see the FAQ of the Ministry of Labour and Social Policy on “Work and temporary protection”.

A further “welcoming action” for Ukrainian architects could consist in the granting of a loan for the use free of charge of premises and instrumental resources of the architectural firm.

The loan for use agreement is governed by the Civil Code, in articles 1803-1812, and takes the form of the assignment for the use of a movable or immovable asset from one party (the lender) to the other (the borrower).

The essential element characterising the loan for use agreement lies in that the specific use of the asset is granted free of charge. The loan for use agreement gives rise to specific rights and obligations for the parties. First of all, the borrower is allowed to use the asset for the entire time determined by the contract. If the parties have not set a final deadline for the return of the asset, the loan for use is understood to be reached for the period necessary to ensure the full use of the borrowed asset in accordance with the agreement.

It should also be specified that, if the parties have not set a final deadline, the lender will be entitled to the return of the asset upon simple request.

The borrower is obliged to keep and guard the borrowed asset (art. 1808 Civil Code): this implies that the borrower will have to bear all the ordinary expenses aimed at ensuring the preservation of the asset; however, they are entitled to the reimbursement of the extraordinary expenses incurred for the preservation of the asset itself (art. 1808 Civil Code). Moreover, the borrower has the obligation to return the asset received at the expiry of the agreed term (art. 1809 Civil Code) or, in case of urgent need of the lender, when the latter requests it.

The borrower is prohibited from transferring the borrowed asset to third parties (art. 1804 Civil Code)

The law does not impose any formal requirements for the conclusion of the loan for use agreement, as conclusive behaviour is deemed sufficient; however, in contracts for professional use it is preferable to conclude the contract in writing, in order to avoid possible future disputes between the lender and the borrower.

The loan for use agreement may relate to the use of movable or immovable property. In the case of immovable property, the parties may agree for the borrower to also use certain rooms exclusively for the performance of professional activities.

A single room in a building and the workstations therein required for the performance of professional activities (e.g., use of computer equipment, internet connection or organisational assistance in support of professional activities) may be the subject of a loan for use agreement.

In the context of the loan for the use of premises and/or resources of the professional firm free of charge, it would be advisable for the borrower to undertake, by means of an appropriate contractual clause, to keep confidential and not to disclose to third parties any news, data or facts relating to the performance of professional activities by the lender or, in any case, learned by the borrower as a result of their presence in the professional firm. These contractual provisions address the need to protect the privacy of the activities carried out by professionals, in compliance with the regulations dictated by the General Data Protection Regulation and, more specifically, the rules on the controller (see articles 24-31, Regulation 2016/679/EU).

This is without prejudice to the application of all privacy rules and requirements for professional firms.

Access to the professional firm of a Ukrainian citizen (or equivalent) as a professional, employee or lender requires a review of the existing coverage, in case “the hosted person”:

  • is injured (with or without liability of the firm for which they work);
  • causes damage to a third party (by accident or professional mistake).

With reference to case (a), if cover is not already provided by existing policies, the following solutions should be considered:

  • take out an accident policy with the firm as the policyholder and the hosted person as the insured. This will ensure that the hosted person is compensated in the event of an accident, regardless of the firm’s liability. A policy of this nature should include a policyholder’s liability clause to protect the Firm;
  • take out a third-party liability policy with the Firm as the policyholder, possibly including site work, and stating that the firm’s collaborators are considered as third parties. In this case, the Firm would be insured if the hosted person suffers a loss under the Firm’s liability and must be compensated.

In the case of (b), it is useful to check that the Firm’s professional indemnity policy includes professionals or employees working with the firm as insured subjects.

Pending the European procedure for the recognition of the Ukrainian qualification and in the absence of a specific derogation (such as that provided for by art. 34 of Decree-Law no. 21 of 2022 for the health and public health sectors) for persons displaced from Ukraine (a country that is not yet part of the EU, as is well known) to practice the profession in Italy, it is, therefore, necessary to follow the ordinary procedure for the recognition of the qualification enabling the practice of the profession of architect and the professions in the area of architecture provided for non-EU countries.

The main reference legislation is as follows:

  • art. 49 of Presidential Decree no. 394 of 31 August 1999, containing “Regulations laying down rules for the implementation of the consolidated act of provisions concerning immigration and the condition of third country nationals, pursuant to art. 1, paragraph 6 of Legislative Decree no. 286 of 25 July 1998”;
  • directive no. 2005/36/EC of the European Parliament and of the Council;
  • directive no. 2006/100/EC of the European Parliament and of the Council;
  • directive no. 2013/55/EU of the European Parliament and of the Council;
  • Legislative Decree no. 206 of 9 November 2007 (on the “Implementation of Directive 2005/36/EC on the recognition of professional qualifications and of Directive 2006/100/EC adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania”) and subsequent amendments and supplements.

The Ministry in charge of requesting the recognition of the qualification enabling the practice of the profession of architect and the professions in the area of architecture obtained in a non-EU country is the Ministry of University and Research (MUR) [articles 5, paragraph 1, lett. f) and 56, legislative decree no. 206 of 2007].

Below is the link to the forms to be downloaded, filled in and submitted, together with the indicated documentation, to the competent offices specified by the Ministry https://www.mur.gov.it/it/aree-tematiche/universita/professioni/libera-circolazione-dei-professionisti.

The Ministry may stipulate that recognition of the title is subject to a compensatory measure, which consists in passing an aptitude test or a period of adaptation. Recognition of the title (by ministerial decree) is only valid for the applicant, and once it has been obtained it is possible to register with the local System.

ANNEXES

ANNEX A: Specimen professional collaboration agreement with VAT number – ANNEX B: Declaration of employment under a fixed-term employment contract (pursuant to art. 19 of Legislative Decree no. 81 of 15 June 2015 and subsequent amendments) – ANNEX C: Real estate loan for use agreement