When speaking of 'single agency' it is important to emphasise the difference between the single-agent agent and the agent operating 'on an exclusive basis'; the latter, in fact, is the person who, on the one hand, undertakes not to engage in any competing activities and, therefore, to act as an agent for other competing principals, but who, on the other hand, reserves the right to work as an agent for other principals who do not operate in different sectors (multi-agent agent).
In Italian law, the agent's exclusivity constitutes a natural element of the contractArticle 1743 of the Civil Code, in fact, prohibits the agent from taking on the task of handling, in the same area and for the same branch, the business of several competing undertakings. In the agency contract, exclusivity therefore constitutes a right and a normatively regulated obligation, provided for both in favour of and at the expense of each of the parties[1] and which is normally included in agency contracts.
A different figure from that of the exclusive agent is that of thesingle agenti.e. the agent who works for only one principal and who, therefore, undertakes to not to take on any other agency assignment,[2] also with reference to non-competing sectors other than that in which the principal operates.
The distinction between single and multiple agents has a strong relevance in the event of the application of ERM, which provide a more advantageous regime for the one-firm agent in several respects, such as, for example, longer notice periods and more favourable ways of calculating the severance payment and the indemnity for the post-contractual non-competition covenant.
Regardless of the applicability of AECs, this distinction certainly has great relevance from a point of view social securityas there are provisions for the one-firm agent of the higher contribution ceilings than the multi-firm agent.[3] The reason for this difference is essentially related to the more difficult exercise of the activity, resulting from the prohibition of it for any other principal.[4]
With reference to the existence or non-existence of a single-mandatory relationship, jurisprudence is not unequivocal in considering whether it must result from an express written agreement between the parties, or, on the contrary, may derive from a mere factual situation. This contrasting jurisprudence essentially concerns the correct interpretation of the legislative text and, more precisely, the interpretation of Ministerial Decree 20.2.1974, Article 4(c), which provides as follows:
"The principal within three months of the start date of the relationship must provide, using the appropriate forms prepared by ENASARCO or by other means, the following information for each agent or sales representative: (c) thepossible commitment of the agent or sales representative to carry on business for only one principal"
According to a first orientation the agent's right to receive the (higher) social security contribution as a single agent cannot result from a mere factual situation; on this point, the Supreme Court states that
"the contribution ceiling is reserved only for those agents or commercial representatives who have undertaken to exercise their activity vis-à-vis a single principal; this can be proved by the fact that, within three months of the commencement of the relationship, the principal has communicated that exclusive undertaking to ENASARCO, as well as by any other means of proof of the existence of a contractual undertaking or obligation with only one principal, as it is not sufficient merely to ascertain the factual modalities with which the relationship actually took place"[5]
The Supreme Court therefore held that "committed' means 'obligated', with the consequent irrelevance of the performance of an agency relationship with a single principal, but without the assumption of an actual obligation of exclusivity resulting from a written agreement between the parties.
Contrary, based on a second orientation of the Supreme Court, the right of the one-man agent to the contribution on a higher ceiling:
"arises as a function of the actual exercise of the activity for a single principal, irrespective of a finding of formal assumption of a specific obligation vis-à-vis that principal."[6]
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[1] Baldi, Il contratto di agenzia, Milan, 2001, 70.
[2] Saracini, Toffoletto, Il contratto di agenzia, Milan, 2002, 213.
[3] http://www.enasarco.it/notizie/minimali_e_massimali_2017.
[4] Perina - Belligoli, The Agency Relationship, Turin, 2015, 55.
[5] Civil cassation 1994, no. 1302; see also Civil cassation 2000, no. 14444.
[6] Cass. Civ. 2007, no. 17080; Cass. Civ. 2002, no. 699; Cass. Civ. 2000, no. 4877.