Sustainability is now firmly at the heart of contemporary economic and legal debate, extending its reach beyond production processes to the ways in which goods are presented and marketed, both in physical and digital markets. It therefore also plays a significant role in the conclusion of contracts—whether for the sale of goods or the provision of services—given the growing impact of ESG factors.

In this context, the use of labels referring to environmental sustainability has become an increasingly important tool, often associated with enhanced product reliability. However, to ensure that such claims do not amount to mere marketing, they must reflect genuine environmental and ecosystem protection, both in the production and distribution phases. Failing this, liability risks may arise for the entity placing the product on the market, with different configurations depending on the parties’ relative bargaining power.

Contractual practice, in fact, does not always operate on a level playing field. Although B2B agreements are generally presumed to reflect a balance between businesses, economic reality frequently shows that one party may hold a dominant position capable of significantly influencing the contractual framework. This dynamic is particularly evident in subcontracting agreements, which are typically characterised by an inherent asymmetry between the parties.

Within such relationships, breaches of due diligence obligations may adversely affect the interests of the economically weaker party. These obligations now have a clear legal basis in the Corporate Sustainability Due Diligence Directive (Directive (EU) 2024/1760 – CSDDD), which imposes high standards of transparency on companies, particularly in relation to the designation of a product as “sustainable” and the management of risks throughout the value chain.

The Directive also provides for the adoption by the European Commission of model contractual clauses aimed at facilitating compliance with these obligations. Pending their formal adoption, clauses developed by international expert groups are gaining importance, contributing to the dissemination of sustainability-oriented contractual standards. In this framework, ESG clauses are becoming increasingly central to the regulation of contractual relationships.

The need for transparency has been further strengthened by the recent entry into force, on 18 March 2026, of the Sustainability Reporting Directive (Directive (EU) 2026/470), which seeks to simplify the regulatory framework governing due diligence and ESG reporting. This intervention has significantly narrowed the scope of application by raising the relevant company size thresholds: reporting obligations now apply to large

undertakings (more than 1,000 employees and €450 million in annual turnover), while due diligence obligations are triggered at 5,000 employees and €1.5 billion in turnover.

This shift reflects a more risk-based approach focused on materiality and the actual impact of risks along the value chain, marking a partial departure from the original structure of the CSDDD, which—also in conjunction with Directive (EU) 2024/825 (Green Claims Directive)—tended to extend such obligations to small and medium-sized enterprises. However, it will be necessary to await implementation by Member States, expected within twelve months, in order to assess its impact at national level.

Under Italian law, subcontracting agreements are governed by Law No. 192/1998, as subsequently amended, which addresses situations of contractual imbalance between businesses. Of particular relevance is the 2022 reform, which introduced a presumption of abuse of economic dependence in relationships intermediated by digital platforms.

In light of this evolving regulatory framework, the inclusion of ESG clauses in subcontracting agreements has a significant impact on liability profiles. Breaches of transparency and due diligence obligations—especially in digital environments—may trigger complex sanctioning mechanisms potentially extending across the entire value chain, thereby amplifying the effects of contractual asymmetries.