Commercial agent: responsible or owner of the data processing?
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Sintesi La posizione dell’agente di commercio dal punto di vista privacy è particolarmente delicata, perché l’agente opera con autonomia imprenditoriale ma, molto spesso, tratta dati personali seguendo istruzioni, finalità e strumenti riconducibili al preponente. Per questo motivo il Garante privacy italiano ha progressivamente escluso — salvo casi particolari — che l’agente possa qualificarsi come titolare autonomo del trattamento, ricondotto invece, nella maggior parte dei casi, alla figura del responsabile esterno ex art. 28 GDPR. L’adeguamento privacy dell’agente richiede quindi una verifica concreta delle modalità con cui il rapporto viene effettivamente eseguito, nonché la predisposizione di nomine, informative, registri dei trattamenti e procedure coerenti con l’organizzazione dell’attività. |
1. Owner, manager or appointee?
La posizione dell’agente di commercio dal punto di vista privacy è sempre stata dibattuta, soprattutto per il fatto che l’agente deve agire in conformità con le istruzioni del preponente, ma al contempo esercita quest’attività con autonomia e indipendenza, non essendo sottoposto al potere di direzione e coordinamento del soggetto preponente.
On the one hand, the principals had every interest in disregarding the activities and methods of the agents and therefore pushed for their qualification as autonomous data controllerson the one hand, while on the other hand the Garante has always pushed for an empowerment of principals with regard to the activities of agents.
According to the perspective endorsed by the principals, on the one hand we would have the principal, an autonomous data controller, and on the other hand we would have the agent, also an autonomous data controller, who in one way or another finds contacts for a potential contractualisation with the principal and communicates the data to the latter.
This framing is particularly advantageous for the principal because then he does not have to worry about 'how' agents retrieve data (perhaps by contacting customers who are natural persons by invasive methods and without bothering, for example, to consult the oppositions register or to check their consent to receive marketing communications), as data processing remains 'separate' between the two parties and each is responsible for what happens under his control.
However, for many years now, the Italian Privacy Guarantor has disproved this thesis, confirming that the classification of agents, except in exceptional cases, does not fall under the hypothesis of the autonomous holderbut rather in that of the external controller.
After a series of measures against various companies (especially telephone companies) that used agents for the promotion and marketing of their products and claimed not to be answerable for the actions of their agents precisely because they were 'autonomous data controllers', the Garante adopted a general provision in which it stipulated that:
"all principals [...] shall, within 60 days of the publication of this provision in the Official Journal, designate companies or third parties acting in outsourcing as data controllers".[1]
After the GDPR came into force (applicable as of 25.05.2018), the situation has not changed, as the most recent stances of the Garante on this point show us.
2. Il provvedimento del 9.7.2020 contro Wind Tre
Un interessante esempio ci arriva dal measure del Garante nei confronti di Wind Tre[2], dove l’Autorità precisa l’inquadramento di agenti e procacciatori alla luce delle categorie del GDPR.
In particular, the measure concerns the activity carried out by an agent of Wind, who, although he had been correctly classified by Wind as an external data processor (by signing an appropriate appointment and also offering training to his external employee on the subject privacy[3]), the latter had addressed directives to its proxies aimed at collecting consensus privacy decidedly 'original'. As one procurer reported, in fact:
"following the indications of the area manager Mr. ..., during each activation of sim cards, the reference operator must flag all the consents provided therein. Among other things, this operation is facilitated by a special button in the management software [...]. Only in the event that, on the occasion of the signing of the paper form printed by the system and submitted to the attention of the interested party for acceptance of acknowledgement of receipt of the information and issue of the consents, the latter should express doubts as to the consents present in the reference form, the operator shall amend them according to the indications provided directly by the interested party".
The activity carried out by the agent was clearly unlawful because privacy consent must be "espresso mediante un atto positivo inequivocabile con il quale l’interessato manifesta l’intenzione libera, specifica, informata e inequivocabile di accettare il trattamento dei dati personali che lo riguardano"[4] and cannot be coerced or implied.
Having thus clarified the wrongfulness of Wind's agent's conduct, it remained to be understood to whom this wrongfulness was attributable.
In the present case, Wind (the data controller) claimed, defending itself, that it was not responsible for the autonomous and independent conduct of its external manager (the agent) who, despite the correct training given and the correct instructions received, had acted on his own initiative in breach of the GDPR.
However, this thesis was flatly denied by the Garante as it is clear that the agent had no interest of his own in collecting consents on behalf of Wind by forcing the will of customers.
The ruling then confirms the correct classification of the agent as externally liable, even going so far as to state that:
"this qualification in respect of the legal relationship between the parties can also be deemed to exist in the event that the party materially making contact, while remaining unknown to the data controller, in fact enters into a contractual relationship similar to that in place with directly contracted partners".
Il rapporto titolare/responsabile sussiste quindi, nei fatti, non solo se il preponente si disinteressa completamente dell’esistenza di un rapporto di mandato, ma anche qualora lo disconosca.
Ulteriore importante precisazione del Garante, contenuta nel provvedimento oggetto di analisi, riguarda gli stessi procacciatori che erano stati contrattualizzati dall’agente di Wind. In particolare, l’agente non li aveva inquadrati come responsabili del trattamento o comunque autorizzati a svolgere operazioni di trattamento, sul (erroneo) presupposto che gli stessi “operate autonomously' e "each procurer is free and, therefore, autonomous in the search for parties to whom to direct business proposals".
The Garante disavowed the argument put forward by the agent and 'slapped him down', stating that the latter should have appointed the procurers as external data processors (sub-processors vis-à-vis Wind) and/or authorised processors (a category that groups together employees and similar subjects and therefore presupposes a relationship of broader direction and control on the part of the employer) depending on the case.
3. The Agent's role: owner or manager?
That being clarified, in order to assess whether, in the individual case, the agent should be classified as controller or processor, one must first understand how the relationship is (and will be) actually performed by the contracting parties. To simplify, we can identify three typical situations:
- the agent finds and manages lists of customers on its own account, provides them with information privacy as principal and then chooses to which of its principals it will propose the conclusion of the deal (at which point the 'selected' principal will provide the prospective client with its disclosure privacy together with the contract). In this case the agent will be autonomous data controller.
- the agent finds, on behalf of the principal, customers and/or works on contact lists submitted to him by the principal. In this case the agent will external controller and the principal will be the owner. The agent will not have to provide his own information, but will merely provide the client with the forms privacy prepared by the principal, except in special situations (e.g. the agent wants to manage the principal's customer data independently, where the agency mandate so permits, in order to send informative communications to customers, etc., in which case he will have to submit a second information notice to the customers, collecting consent for this processing himself). Data processing takes place under the umbrella of the principal's organisation, of which the agent is an external appendage.
- the agent not only acts on behalf of the principal, but also operates exclusively with the principal's tools, in offices made available by the principal, on the principal's computers and following the principal's instructions. In this case, for the purposes of privacythe agent becomes a subject who operates under the authority of the principal (formerly art. 29 GDPR), in quanto non c’è più ragione di parlare di responsabile esterno del trattamento perché l’agente è del tutto interiorizzato nella struttura del titolare e non si distingue, almeno con riferimento al trattamento dei dati, da un dipendente qualsiasi.
- Read also: The agency contract and the employment relationship: distinguishing criteria and evaluation parameters.
It is clear that in the majority of cases the agent will fall under (2) and that the agent will play the role of the external controller.
4. Differences in the EU
On this point, it should only be noted that in other European jurisdictions the situation may vary, e.g. in a commentary on the GDPR produced in England agents are 'normally' included in the category of persons authorised to process (assumption (3)):
"The latter category of persons who are not third parties normally comprises the employees, agents and subcontractors of the controller or processor which/who process data for them under their direct authority"[5]
In the opposite direction would seem to move the German systemwith the Munich Court of Appeal, which in a 2019 judgement[6] brings the agency relationship back to the privacy to a relationship between autonomous data controllers.
The Court, in particular, when considering the principal's duty to produce to the agent a statement of account relating to the contracts concluded thanks to the agent's intermediary work, came up against the principal's objection that such data would not be susceptible of transmissionbecause such transmission could only take place with the consent of the data subject (according to the client, in this case, there is neither a legal obligation to transmit the data, nor is this sharing necessary to fulfil the contract between client and customer).
The Munich Court of Justice, in rejecting the reenactment of the principal, but accepts its premises and confirms that of transmission ("übermittlung") of the data is[7]but then states that this transmission may legitimately take place because of the agent's legitimate interest in knowing the data.
La ricostruzione della Corte bavarese parte quindi dal presupposto che fra agente e preponente ci sia un rapporto paritario ed autonomo, senza che il primo debba inquadrarsi quale responsabile del secondo, per questo il Giudice risolve l’eccezione individuando nel legittimo interesse lo strumento per legittimare il fatto che l’agente conosca dati di terzi (clienti della mandante da lui contrattualizzati).
Un giudice italiano, investito della medesima questione, avrebbe probabilmente ricondotto la legittimità del passaggio di dati al rapporto titolare/responsabile che intercorre fra mandante ed agente, che legittima l’affidamento di dati (pur “sorvegliato” nella sua adeguatezza) fra un soggetto e l’altro sulla base del contratto di nomina che li vincola.
Verosimilmente una lettura come quella offerta dalla Corte tedesca, pur difficile da conciliare con le linee guida EDPB, trova fondamento nel rapporto di indipendenza dell’agente, enunciato dall’art. 1, comma secondo della direttiva Europea in tema di agenti di commercio (86/653/EEC) and transposed by §84 of the German Commercial Code, which reads as follows:
"A commercial agent is someone who, as an independent trader, is permanently entrusted with brokering transactions for another entrepreneur (entrepreneur) or concluding them on his behalf. Self-employed is one who is essentially free to shape his activity and determine his working time."[8]
A conferma di ciò, anche dalla lettura della “guida all’interpretazione” del GDPR, redatta dall’Ufficio statale bavarese per il controllo della protezione dei dati, si evince che l’ordinamento tedesco propende per l’inserimento dell’agente di commercio tra i soggetti che ricoprono (normalmente) la funzione di titolare del trattamento e non quella di responsabile[9]giving, precisely, particular value to the role of independent operator that the latter plays in the contractual relationship.
5. The agent's privacy adjustment
What must the agent do, therefore, to be in compliance from the point of view of privacy?
The fundamental document for the agent, in the physiological hypothesis (2) we have seen, becomes the appointment as external manager, formerly art. 28 GDPR, ovvero un vero e proprio contratto in cui viene disciplinata la natura e la finalità del trattamento, il tipo di dati personali e le categorie di interessati, gli obblighi e i diritti del titolare del trattamento, la durata del trattamento, etc.
This document will therefore be essential for the agent to understand what data may be entrusted to him, to whom he may communicate it, what he must do if a customer asks to exercise his rights privacywhat to do in the event of a data breach (e.g. the agent loses the laptop on which he kept the principal's customer data), etc.
Three things are particularly important in the nomination:
- what happens to the data processed on behalf of the client at the end of the contract of appointment, i.e. whether they are to be returned, destroyed or retained (clearly, the agent may still retain the data if he needs it to be able to prove his performance and get paid, for instance);
- whether the agent may appoint sub-responsible and the procedures to be adopted in the case. Some appointments provide for the possibility of appointing sub-agents only with the prior consent of the principal, while others leave more freedom to the agent, some, however, require the agent to inform the principal of the sub-agents it employs to process its data. And it must be borne in mind that sub-agents are not only the sub-agents, but all the suppliers that process the principal's customer data (for instance, and trivially, if I store data on Google Drive, it is Google that is my sub-processor, and if the appointment provides for the prior consent of the principal for the appointment of the sub-processor, I will have to ask the principal whether I may use Google to store his data for instance);
- i audit fees of the owner, who, depending on the case, might prescribe simple card audits (questionnaires on the agent's level of compliance) or even more invasive inspections at the agent's offices (who in some cases, perhaps if he is a multi-firm agent, will have to consider whether to reject such a clause because it might conflict with previous commitments privacy taken with other principals).
If the appointment is missingit is appropriate for the agent to confront the principal on the point and, in the event of inertia on the part of the principal, to take the initiative himself, submitting to the principal a so-called 'self-appointment' as external manager so as to effectively regulate the relationship between the parties.
The agent should then keep a register of treatments, formerly Article 30 GDPR (mandatory document only for companies with more than 250 employees or which carry out data processing involving risks or which involve data belonging to special categories, but always highly recommended because it also allows the agent to identify and monitor the data streams of his professional activity).
In addition to this treatment register (highly recommended) will then go (this time compulsorily) kept a register of the processing operations of the responsible person. This particular register of processing operations must be completed for each principal who appoints the agent as external manager. Usually in the individual appointments there are references to this register and any requests by the principal on its keeping.
On the website of the Garante privacy is present, at this pageboth a model register of processing operations and a model register of the controller's processing operations.
6. B2C and B2B
It should also be borne in mind that even if this appointment is certainly more pressing when the agent has to contact natural persons on behalf of the principal, it is not a formality that can be excluded even when the agent only deals with B2B and has to contact predominantly companies on behalf of the principal.
Even in this case, in fact, the agent may process data of individual persons within the client companies (also, trivially, name, telephone number, email, etc.), i.e. data of sole proprietors or professionals that are to all intents and purposes personal data, and it is therefore necessary in any case to formalise for the purposes of privacy the relationship with the principal.
7. Disclosures
Having clarified the relationship with the principal, which is generally regulated in the contract of appointment, it is appropriate for the agent to produce its own disclosures.
Normally, the agent will not have to produce disclosures to the customers it contacts on behalf of the principal (at most, it will have to provide the principal's disclosures in accordance with the appointment), but this does not detract from the fact that the agent still needs a disclosure.
For instance, the agent will process the data of the principal, its suppliers, consultants, employees, sub-agents, etc.
All such data processing the agent does not do 'on behalf' of a principal, but does so independently, and it will be necessary to submit to the various parties with whom he comes into contact on his own account a notice on how he will process the data of these parties.
The information, which generally does not entail a request for consent privacy insofar as it is intended only for the management of the contract between the parties, it must nevertheless be provided in order to document that the data subject has been informed of how the agent will deal with his or her personal data. The proof of having submitted the information to the data subject (a signature on the form, the email with which the information was sent, the flag on the agent's website) must be maintained for as long as the data are held.
The disclosure must be drafted sensibly, without uncritically relying on online forms (think for instance of the external Google manager for the corporate cloud, Google except for certain contracts involves a transfer of data to the USA, to choose a basic information notice in which it is written that data will under no circumstances be transferred outside the European Union is already an easily detectable error in the event of an audit).
8. Appointments, authorisations, etc.
In addition to these basic documents and arrangements, the architecture privacy of the agent grows as the structure grows. Sub-agents should be appointed as external managers, as should the labour consultant, the party providing the corporate cloud (in which case it will be more a matter of finding the self-appointment that these large companies almost always prepare but sometimes struggle to find) as well as all those partners who are not in a position of subordination to the agent and who in providing their services process data on behalf of of the agent (except in special cases such as a partner with a particular professional qualification, e.g. a lawyer or an accountant, who remain autonomous data controllers even if they process data on behalf of the agent).
Employees (and their associates) will have to be given more detailed instructions on how to process both paper and computer data, regulating their access to company systems and devices, and will have to be adequately trained.
The website should be adapted with privacy and cookie policy and as the structure grows in importance, it will be appropriate to adopt policies defining how to handle data breaches in a coordinated manner, how to respond to access requests, how to manage software and IT tools, etc.
9. Adaptation as a work in progress
European legislation requires a 360 degree approach to the phenomenon privacychecking for each business activity whether it may involve personal data and how these are positioned in the structure privacy corporate.
Adaptation must then always be considered a work in progress as what is adequate at one time may become obsolete later. Our data increasingly travel on computer systems and networks that evolve at a rapid pace, if until yesterday the security standards of a laptop with Windows 7 were adequate today this is no longer the case, if until last year training to avoid attacks ransomware included a number of examples now the attackers no longer use any of those methods and have invented new, more devious ones.
As bureaucratic and documentary as it may appear, the approach described in these lines is only intended to create procedures to make it easier for the agent to make substantial adjustments, so that he or she can look with an organised set-up at what really matters, i.e. to avoid personal data processing done lightly and therefore very risky, think about the computer protection of the systems on which the agent works (encrypting a portable device today is really trivial and free of charge and can be life-changing in the event of loss of the device), and adapt data protection over time to the changing corporate set-up and to regulatory and technological developments.
Cosa verificare prima di agire
- Verificare come il rapporto viene eseguito in concreto: chi reperisce i contatti, su quali liste e con quali strumenti (situazioni 1, 2 o 3 della sezione 3).
- Controllare che esista la nomina a responsabile esterno ex art. 28 GDPR; se manca, proporre al preponente un’auto-nomina.
- Leggere nella nomina le clausole su restituzione o distruzione dei dati alla cessazione, sub-responsabili e diritti di audit.
- Nominare i sub-agenti e i fornitori che trattano dati per conto dell’agente (compreso il cloud) e dare istruzioni scritte ai dipendenti.
- Tenere il registro dei trattamenti del responsabile per ciascun preponente e, in via prudenziale, anche il registro del titolare.
- Predisporre le informative dell’agente per preponenti, fornitori, collaboratori e dipendenti e conservare la prova della consegna.
Note
[1] Ownership of the processing of personal data by persons using agents for promotional activities - 15 June 2011, Published in the Official Gazette No. 153 of 4 July 2011, Register of Measures, No. 230 of 15 June 2011.
[2] Garante per la protezione dei dati personali, ordinanza ingiunzione nei confronti di Wind Tre S.p.A., 9 luglio 2020, n. 143 [doc. web n. 9435753].
[3] The written form for the appointment of an external controller is not a mere prudential suggestion, but a real regulatory obligation, provided for in Article 29(9) GDPR (note, in the language of the GDPR 'written form' does not only mean paper form, on the contrary, the European legislation encourages the digitisation of privacy documentation).
On the other hand, as regards the training obligation, the legislation prescribes that the person in charge may process data on the documented instruction of the owner, so in a 'simple' agency relationship, mere instructions to the agent may suffice, whereas in the case of Wind, which offers agents the use of its own management software, it is clear that this instruction obligation is in fact transformed into an obligation to train external collaborators, to ensure that they use the tools that the company makes available to them safely and with awareness.
[4] Considerando 32 Reg. (UE) 2016/679 (GDPR).
[5] “The EU General Data Protection Regulation (GDPR): A Commentary”, C. Kuner, L. A. Bygrave, C. Docksey, L. Drechsler, Oxford University Press, 2020.
[6] OLG München, sentenza 31 luglio 2019, 7 U 4012/17.
[7] According to Art. 4 point 2) GDPR, transmission is a form of communication of data, which in turn, according to Art. 14 para. 3 lit. c) GDPR, is an activity involving two or more data controllers (whereas data controllers and authorised persons are not communicated/transmitted data, but rather they carry out data processing on behalf of the data controller, whereas the outsider is, in fact, a single entity).
[8] § 84 HGB “Handelsvertreter ist, wer als selbständiger Gewerbetreibender ständig damit betraut ist, für einen anderen Unternehmer (Unternehmer) Geschäfte zu vermitteln oder in dessen Namen abzuschließen. Selbständig ist, wer im wesentlichen frei seine Tätigkeit gestalten und seine Arbeitszeit bestimmen kann”.
[9] Auslegungshilfe | Bayerisches Landesamt für Datenschutzaufsicht.
General terms and conditions: battle of the forms, Vienna Convention and civil code.
Nelle trattative commerciali capita di frequente che l’acquirente accetti la proposta allegando o richiamando le proprie condizioni generali, o che entrambe le parti accludano i propri formulari a ordini, conferme, fatture e documenti di consegna. Capire se, quando e con quali limiti quelle condizioni entrino nel contratto di vendita dipende dalla disciplina applicabile: codice civile o Convenzione di Vienna.
Il codice civile applica con rigore la mirror image rule e affida l’efficacia delle condizioni generali all’art. 1341 c.c.; la Convenzione ammette invece che un’accettazione con modifiche non sostanziali concluda il contratto (art. 19) e regola l’ingresso delle condizioni generali con le sole norme sulla formazione del contratto (artt. 14 e 18) e sull’interpretazione (artt. 7 e 8). Quando entrambe le parti richiamano i propri formulari, la battle of the forms si risolve con la last shot rule o con la knock-out rule, e la scelta tra le due resta discussa.
To understand whether, when and to what extent the general terms and conditions apply to the sales relationship is the purpose of this article, in which an attempt will be made to outline the differences between the civil law and the Vienna Convention rules.
Nelle trattative commerciali è tutt’altro che infrequente che l’acquirente, mentre manifesta al venditore la propria volontà di accettare la proposta pervenutagli, includa nella sua dichiarazione condizioni aggiuntive o difformi rispetto a quelle utilizzate dalla controparte.
Talvolta succede che l’acquirente si limiti ad accettare la proposta, allegando all’interno della comunicazione le proprie condizioni generali di acquisto; talvolta le condizioni generali non sono neppure allegate alla conferma d’ordine, ma unicamente richiamate (ad esempio per mezzo di un link which links to a page on the site where they are uploaded). It still happens that both parties enclose their "general terms and conditions" to all the documentation they exchange in the course of negotiations for a particular sale, or even in the course of their much broader business relationship (in purchase orders, emails, invoices, website, delivery notes, delivery notes, etc.).
To understand whether, when and to what extent the General Terms and Conditions (GTC) apply to the sales relationship is the purpose of this article, in which an attempt will be made (as far as possible) to outline the differences between the civil law and the Vienna Convention (CISG).
With the aim of giving the article a systematic approach and hoping that this will make an issue that is certainly far from easy more understandable, we prefer to proceed by stepFirstly, analysing what happens if only one of the contracting parties has referred to its GTC at the stage of the conclusion of the contract, and then moving on to the more complex situation where both parties have referred to their GTC (so-called ".battle of the forms").
1. Proposta ed accettazione: art. 1326 c.c. e art. 19 CISG
Although the Vienna Convention does not contain a rule expressly regulating general terms and conditions, since its Part II (Art. 14-23) comprehensively regulates the "formation of the contract", it will be necessary to refer to the rules contained therein in order to understand what formal requirements the GTC are subject to.[1]
In particular, Art. 19(1) of the Convention provides that a reply to a contractual proposal purporting to be an acceptance, but which contains additions, limitations or other modifications, is to be considered as a rejection of the proposal and is therefore to be considered as a counter-proposal.
Da una prima lettura di tale previsione, sembrerebbe che anche la CISG adotti il principio recepito dall’ordinamento civilistico di cui al quinto comma dell’Article 1326 of the Civil Code, in forza del quale “an acceptance not in conformity with the proposal is equivalent to a new proposal".
In fact, the Civil Code very strictly accepts the so-called '.mirror image rule”, vale a dire la necessità di un rapporto di piena corrispondenza tra il contenuto della proposta e dell’accettazione, ritenendo addirittura necessario che l’incontro e la fusione di proposta e accettazione debba investire non solo le clausole principali, ma anche quelle accessorie. Si legge in giurisprudenza:
"In tema di accordo delle parti, l’ipotesi prevista dall’ultimo comma dell’Article 1326 of the Civil Code. also occurs when the changes requested at the time of acceptance are of secondary value; therefore, in progressive training contracts, nei quali l’accordo delle parti su tutte le clausole si raggiunge gradatamente, il momento di perfezionamento del negozio è di regola quello dell’accordo final on all main elements and accessoriesunless the parties intended to bind themselves in the agreements reached on individual points by reserving the regulation of secondary elements. "[2]
La CISG, on the other hand, knows an exemption to the "mirror image rule"contained in Art. 19(2). In particular, the response to an offer received, which has a different content, but non a tal punto da alterarne sostanzialmente i termini (c.d. immaterial modifications), constitutes an acceptance of the offer unless the offeror, without undue delay, contests such discrepancies either orally or by serving a notice to that effect on the other party.
But what are the immaterial modifications introduced by Article 19(2)?
International jurisprudence has considered not substantiale.g. a change in the acceptor favourable to the proposer[3] or for these irrelevant[4]an amendment to the packaging clause[5]an amendment to the clause on the time limit for reporting defects[6], un avviso che il prezzo avrebbe potuto subire fluttuazioni legate alle variazioni dei prezzi di mercato[7].
The third paragraph of the aforementioned Art. 19 comes to the interpreter's rescue, indicating the variations that instead are substantial and which therefore, if made in the answer, transform it into a rejection of the proposal, so that it necessarily becomes a counter-proposal. These are the modifications:
"the price, the payment, the quality and quantity of the goods, the place and time of delivery, the limits of one party's liability to the other or the settlement of disputes."
Arguably, the choice of having adopted a “mirror image rule” non rigida è dettata dall’esigenza di evitare che una delle parti, la quale, in presenza di mutate circostanze di fatto, intenda sottrarsi agli obblighi contrattualmente assunti, possa raggiungere questo risultato facendo rilevare una difformità non sostanziale tra proposta ed accettazione e, quindi, la mancata conclusione del contratto.[8]
Thus, in any hypothesis in which the adherent's general terms and conditions involve non-substantial modifications, the contract, in the absence of an objection on the part of the proposer, must be deemed to have been concluded and will be governed by the clauses contained in the acceptor's form (again, it should be noted that only the hypothesis in which it is only the adherent who has invoked the GTC and not both parties are being analysed at present).
2. Quando si applicano le CGC al contratto: codice civile e CISG a confronto
Portando avanti il ragionamento, nel caso in cui le CGC dell’aderente contengano modifiche rilevanti rispetto alla proposta, l’applicazione della disciplina civilistica, rispetto a quella della Convenzione di Vienna, ha degli evidenti impatti pratici.
Infatti, qualora al rapporto si applichi solamente la disciplina civilistica, la problematica sarà (principalmente) risolta utilizzando gli strumenti forniti dall’art. 1341 c.c., che prevede, in grandissima sintesi, (comma 1) che le CGC sono efficaci nei confronti del soggetto che le ha ricevute, se erano da questi conosciute o conoscibili utilizzando l’ordinaria diligenza al momento della conclusione del contratto, ad esclusione (comma 2) delle clausole “vexatious" the validity of which is, however, subject to specific written acceptance by the recipient.
Circa le clausole non “vessatorie”, i limiti di applicabilità delle CGC imposti dall’ordinamento sono essenzialmente due:
- the reference to the time of the conclusion of the contract, the purpose of which is to exclude the effectiveness of general terms and conditions that the adherent has had the opportunity to become aware of at a time subsequent to the perfection of the contract (e.g. a text inserted in the invoice[9]);
- As for the criterion of ordinary care, this must refer to a concept of normalitywhich must be calibrated according to the type of economic transaction, it being however excluded that the adherent may be required to make a special effort or expertise in order to know the general terms and conditions used by the predisposing party.[10]
Qualora al rapporto si applichi la Convenzione di Vienna, verranno in soccorso, oltre al già menzionato art. 19, gli artt. 14 e 18, che disciplinano la “formazione del contratto”, così come gli artt. 7 e 8, che regolamentano invece i criteri interpretativi.
Indeed, according to much of the doctrine[11] and case law[12], in caso di applicazione della CISG al rapporto, le norme qui sopra richiamate sono le uniche che debbano essere adottate per comprendere a quali requisiti di forma le CGC devono sottostare, con conseguente inapplicabilità della disciplina di cui all’art. 1341 c.c.
Like già analizzato in un precedente articolo, l’art. 14 dispone che una proposta rivolta ad uno o più soggetti, per potere essere tale, deve essere sufficientemente precisa (sufficiently defined) and indicate its author's willingness to be bound.
Nell’applicare tale principio alle condizioni generali di vendita, la Corte di Cassazione tedesca ha affermato che in fase di formazione del contratto deve risultare:
- expresses the offeror's intention to incorporate the GTC into the offer;
- the text must have been transmitted or, in any event, made available to it prior to the conclusion of the contract.[13]
L’effettiva “reperibilità” delle CGC deve essere vagliata di volta in volta bilateralmente, nel senso che incombe anche sul ricevente, nella fase delle trattative, un obbligo di accertare e comprendere se al rapporto siano o meno applicabili le condizioni generali di vendita, utilizzando la diligenza della “reasonable person”, impostagli dall’art. 8(2).[14]
Sembrerebbe, quindi, che la Convenzione imponga un maggior grado di diligenza all’imprenditore nell’accertare e verificare da quali termini contrattuali il rapporto è regolamentato; questo è certamente in linea con lo spirito della Convenzione, pensata per disciplinare rapporti internazionali di vendita tra operatori del settore a cui è richiesto, necessariamente, un livello di competenza adeguato all’attività da loro prestata.
Parimenti alla normativa civilistica, essenziale è il momento in cui le CGC vengono messe a conoscenza del ricevente, motivo per cui la giurisprudenza ha considerato non potere fare parte del contratto delle CGC che siano state sottoposte al destinatario, una volta che il rapporto era stato già concluso, ossia tramite un richiamo delle stesse da ultimo all’interno della fattura di vendita.[15]
3. Accettazione implicita per fatti concludenti
Una volta appurato che le condizioni erano conosciute o conoscibili al ricevente, essendo la Convenzione connotata dal principio della libertà di forma (e di prova) ex art. 11, in mancanza di accettazione espressa, bisognerà comprendere se le stesse siano state accettate implicitamente, in conformità al combinato disposto dell’art. 18 (accettazione della proposta) e dell’art. 8.
Infatti, l’art. 18(1) dispone in primo luogo che “a statement or other conduct of the recipient indicating consent to an offer constitutes an acceptance."Furthermore, Art. 18(3) states that "the recipient of the offer può indicare che acconsente, compiendo un atto attinente, ad esempio, alla spedizione dei beni o al pagamento del prezzo."
Sul punto, ha disposto una corte statunitense che:
"in base alla CISG, l’accettazione non richiede una firma o una accettazione formale dell’offerta. […] Dall’istruttoria è emerso che al tempo STS aveva inviato i prezzi di vendita a Centrisys, includendo in allegato alla comunicazione le condizioni generali. Adottando il preventivo di vendita, Centrisys ha accettato la proposta contrattuale di vendita della centrifuga, comprese le condizioni generali di vendita.”[16]
It is thus inferred that if the GTC were known or knowable (using the diligence of the reasonable man di cui all’art. 8) da parte del ricevente e sono state da questi accettate per fatti concludenti, le stesse formeranno parte del contratto, a meno che le parti concordemente, ovvero gli usi e consuetudini applicabili al rapporto non subordinino la loro validità ad una forma poi non rispettata dalle parti.
4. Lingua delle CGC
Una brevissima digressione in tema di obblighi di diligenza del soggetto ricevente: si riscontrano degli orientamenti divergenti in merito alla validità di condizioni generali scritte in una lingua non conosciuta al ricevente; parte della giurisprudenza, infatti, ritiene che le CGC scritte in una lingua straniera siano comunque valide, proprio in forza degli obblighi di cui all’art. 8(2), dovendosi ritenere che un imprenditore o comunque un operatore internazionale, prima di firmare un contratto, sia tenuto a verificare quanto stia sottoscrivendo anche (banalmente) facendo fare una semplice traduzione.[17]
5. Battle of the forms: knock-out e last shot rules
At present, the scenario where only one of the two parties has sent its general terms and conditions has been analysed.
What happens, on the other hand, if one party sends a proposal to the other party, enclosing its own GTC, and the other party responds, albeit accepting the proposal, by enclosing its own GTC that differs from those received, and then both commence performance of the contract?
Considering that the parties have executed the contract, the need arises to understand from which clauses standard the relationship is regulated and two main approaches are used to do this: the last shot rule and the knock-out rule.
As an advocate of "last shot rule"it is deemed appropriate to refer to the most authoritative doctrine:
"if the general terms and conditions of the acceptor substantially alter the terms of the proposal, the contract cannot be considered to have been concluded, not even by excluding the conflicting general terms and conditions, as would be the case in part of the doctrine and case law which favour the so-called "Rechtsgültigkeitslösung" o "knock-out rule”. A nostro avviso, se viene data esecuzione al contratto, ciò deve considerarsi quale accettazione per atti concludenti da parte dell’(originario) proponente della controproposta dell’accettante – della quale fanno parte anche le condizioni generali che modificano in modo sostanziale la proposta originaria; in dottrina si è parlato in proposito di vigenza della c.d. “last shot rule'[18]
According to the different theory of 'knock-out rule"In the event that the parties have exchanged conflicting forms, the fact that the contract has been executed should be interpreted as the intention of the parties, not so much that they have not reached an understanding (otherwise the execution of the contract would not be explained), but rather that they have reached a consensus regardless of the conflicting clauses, which clauses must instead be removed from the contract.
The German Federal Court espoused this theory, justifying it on the basis of the criteria of good faith and fair dealing (Art. 7(1) CISG), stating that clauses contained within general terms and conditions become part of the agreement (only) if they do not conflict with each other.[19]
Sicuramente, tale teoria ha dei risvolti tutt’altro che di facile esecuzione e di difficile applicazione pratica, se si pensa al fatto che dovrà essere demandato al giudice il compito di ricostruire l’effettiva volontà delle parti ex art. 8, andando a cancellare le clausole sulle quali non vi sia stato un effettivo incontro della volontà tra i contraenti.
Cosa verificare prima di agire
- Verificare quale disciplina regola il contratto: codice civile oppure Convenzione di Vienna.
- Accertare se le condizioni generali sono state trasmesse o rese reperibili alla controparte prima della conclusione del contratto, e non richiamate soltanto in fattura.
- Confrontare le modifiche contenute nell’accettazione con l’elenco dell’art. 19(3) CISG: prezzo, pagamento, qualità e quantità, luogo e momento della consegna, responsabilità, controversie.
- Se si applica il codice civile, ottenere l’approvazione specifica per iscritto delle clausole vessatorie (art. 1341, comma 2, c.c.).
- Se entrambe le parti hanno richiamato i propri formulari e il contratto è stato eseguito, individuare le clausole in conflitto e valutare l’esito secondo la last shot rule and the knock-out rule.
- Se le condizioni generali sono scritte in una lingua straniera, farle tradurre prima di firmare.
Note
[1] Bortolotti F., “Manuale di diritto commerciale internazionale”, vol. II, L.E.G.O. Spa, 2010; Ferrari F., “Condizioni generali di contratto nei contratti di vendita internazionale di beni mobili”, in Obb. e Contr., 2007, 4, 308; Bonell M.J., «Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale», in «Le condizioni generali di contratto», a cura di Bianca M., Milano, 1981; Larry A. DiMatteo, International sales law. A global Challenge, Cambridge, 2014.
[2] Cass. Civ. 2003, no. 16016.
[3] Oberster Gerichtshof, Austria, 20.3.1997 (CLOUT n. 189; UNCITRAL Digest 2016, art. 19, par. 4).
[4] China International Economic & Trade Arbitration Commission (CIETAC), Cina, 10.6.2002 (UNCITRAL Digest 2016, art. 19, par. 4).
[5] Oberlandesgericht Hamm, Germany, 22.9.1997.
[6] Landgericht Baden-Baden, Germania, 14.8.1991 (CLOUT n. 50; UNCITRAL Digest 2016, art. 19, par. 5).
[7] Cour d’appel de Paris, Francia, 22.4.1992 (CLOUT n. 158; UNCITRAL Digest 2016, art. 19, par. 5).
[8] Bellelli, sub. art. 19, Vienna Convention on Contracts for the International Sale of Goods, commentary coordinated by Bianca, CEDAM, 1992.
[9] Cass. Civ. 1962, 2890.
[10] Bianca, Civil Law, The Contract, 1987.
[11] Bortolotti F., “Manuale di diritto commerciale internazionale”, vol. II, L.E.G.O. Spa, 2010; Ferrari F., “Condizioni generali di contratto nei contratti di vendita internazionale di beni mobili”, in Obb. e Contr., 2007, 4, 308; Bonell M.J., «Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale», in «Le condizioni generali di contratto», a cura di Bianca M., Milano, 1981.
[12] Trib. Rovereto 24.8.2006; Cass. Civ. 16.5.2007, no. 11226.
[13] Bundesgerichtshof, Germania, 31.10.2001 (CLOUT n. 445); sul punto anche Zeller, The CISG and the Battle of the Forms, in Di Matteo, op. cit.
[14] Zeller, The CISG and the Battle of the Forms, in Di Matteo, op. cit.
[15] Chateau des Charmes Wines Ltd. v. Sabaté USA, Sabaté S.A., U.S. Court of Appeals (9th Circuit), 5.5.2003 (CLOUT n. 576).
[16] Golden Valley Grape Juice and Wine, LLC v. Centrisys Corporation, U.S. District Court, Eastern District of California, 21.1.2010 (Unilex).
[17] MCC.Marble Ceramic Centre v. Ceramica Nuova D'Agostinoin the opposite direction, Oberlandesgericht Celle, Germania, 2.9.1998 (CLOUT n. 318).
[18] Ferrari, sub art. 19, Vendita internazionale di beni mobili, op. cit. in Mastromatteo, La Vendita internazionale, Giappichelli, 2013.
[19] Bundesgerichtshof, Germania, 9.1.2002 (UNCITRAL Digest 2016, art. 19, par. 6).
Proposal, acceptance and pre-contractual responsibility. Vienna Convention and the Civil Code compared.
Un fornitore invia un’offerta a un compratore estero e, due giorni dopo, cambia idea: secondo il codice civile può revocarla finché non ha notizia dell’accettazione, mentre secondo la Convenzione di Vienna la revoca arriva troppo tardi se il compratore ha già spedito l’accettazione. La stessa trattativa, sotto le due discipline, produce esiti diversi anche sul valore dell’offerta al pubblico, del rifiuto dell’oblato e del silenzio.
L’articolo mette a confronto gli artt. 14-18 della Convenzione con gli artt. 1326-1337 c.c. su proposta, ritiro, revoca e accettazione, e si chiude sul punto più incerto: se la Convenzione disciplini o no la responsabilità per le trattative interrotte e che cosa cambi, per il danno risarcibile, quando le parti hanno sottoscritto un accordo preliminare.
The purpose of this article is to give the reader an overview of how the Vienna Convention has regulated the institutions of the proposal of an offer, its acceptance, pre-contractual liability in negotiations and the main differences from Italian law.
In prima analisi, si tiene a precisare che, essendo la Vienna Convention connotata dalla libertà di forma (e di prova) ex art. 11, la proposta e l’accettazione sono da considerarsi anch’essi atti a forma libera, potendo manifestarsi in ogni modo (quindi sia oralmente, che per fatti concludenti).[1] This provision is in any event derogable in nature, with the consequence that not only may the parties provide for the necessity of a specific form for the validity of the contract they intend to enter into, but also that such a derogation may result from the existence of usages and customs (on this point cf. commentary on art. 9).
1. Art. 14: definizione di proposta
"A proposal for a contract, addressed to one or more specified persons, constitutes an offer if it is sufficiently definite and if it indicates the intention of its author to be bound in case of acceptance. A proposal is sufficiently definite when it indicates the goods and, expressly or by implication, fixes the quantity and price or gives indications capable of determining them.
A proposal addressed to unspecified persons is considered only as an invitation to offer, unless the person making the proposal has clearly indicated otherwise."
La definizione di proposta nella Convenzione di Vienna viene data all’art. 14, comma primo, che elenca in dettaglio quelli che sono gli elementi necessari perché la stessa possa essere considerata valida.
In particular, that article provides that the proposal, to be such, must be "sufficiently precise", indicate the offeror's willingness to be bound, expressly state the goods or goods to be contracted and also implicitly fix (or in any event give indications for determining them) the quantity of those goods and the price[2]by referring, where they have not been determined, to the trade customs and practices referred to in Articles 8 and 9 of the Convention.
Importantly, if one wishes to expressly exclude that the manifestation of will can be regarded as a genuine proposal, it should therefore be expressly provided for, through the insertion of formulae such as 'this is an expression of interest, not an offer to buy'..
This provision, although it has no express equivalent in the civil code (which does not list in any article what the requirements of an effective proposal are), however, reflects principles that are basically common domestic law: the proposal must manifest the will of the party to be bound and, likewise, be of sufficient content to define the contractual programme to be performed.[3]
An element that is detaches instead from our right è certamente quello di cui al comma secondo dell’art. 14, che prevede che una proposta contrattuale deve essere indirizzata ad una o più persone determinate. Se la proposta è invece rivolta ad una generalità di persone, questa ha il valore di semplice invito a trattare o ad offrire, salvo che il proponente non ne abbia chiaramente indicato il contrario.
Therefore, the legislator of the Convention did not accept the rule (known and present in Italian law) of theoffer to the public di cui all’art. 1336 c.c., quale proposta idonea a portare alla conclusione del contratto nel momento in cui l’accettazione è portata a conoscenza del proponente.
2. Art. 15: ritiro della proposta
"An offer has effect when it reaches the addressee.
An offer, even if irrevocable, may be withdrawn if the relevant declaration reaches the addressee before or at the same time as the offer."
Parimenti al diritto italiano (art. 1335 c.c.) anche la Convenzione di Vienna configura la proposta (e l’offerta) quale recetive act, che acquista effetto solo quando è stata portata a conoscenza del destinatario. La Convenzione, per meglio spiegare quando una proposta (e offerta) sia portata a conoscenza dell’altro contraente, prevede espressamente all’art. 24 che:
"For the purposes of this Part of the Convention, an offer, a declaration of acceptance or any other manifestation of intent "is received" by its addressee when it is addressed orally to the addressee or is delivered by any other means to the addressee at its place of business or mailing address or, if it has no place of business or mailing address, at its habitual residence"
The second paragraph of Article 15 also recognises the proposer's right to "withdraw"(and not revoke, a power granted to it by Art. 16(1)) the offer within the time limit of its delivery to the offeree.
Il codice civile non disciplina tale differenza, ma regola unicamente l’istituto dell’offerta all’art. 1328 c.c. e la differenza tra tali elementi viene “unicamente” sviluppata da parte della dottrina.[4]
Si fa presente che le due ipotesi (ritiro e revoca) differiscono in quanto nel primo caso viene eliminata la proposta, prima ancora che la stessa abbia acquistato efficacia; nel secondo di revoca, invece, si va ad eliminare una manifestazione di volontà già produttiva di effetti.[5]
3. Art. 16: revoca della proposta
"Fin tanto che il contratto non è stato concluso, un'offerta può essere revocata, se la revoca perviene al destinatario prima che questi abbia fatto pervenire un'accettazione.
However, an offer cannot be revoked:
- (a) if it indicates, by setting a specified time for acceptance or otherwise, that it is irrevocable; or
- (b) whether it was reasonable for the addressee to regard the offer as irrevocable and whether it acted accordingly."
As noted above, while Art. 15 governs the withdrawal of the proposal, Art. 16 governs the different institution of revocation.
From an initial and cursory analysis of that article, it might be thought that the uniform law discipline is aligned to the point of matching that of domestic law: although Art. 16(1) provides that a proposal may be revoked as long as the contract has not been concluded, it makes the effectiveness of the revocation conditional on the assumption that the same reaches the receiver, before it has sent its acceptance.
In fact, on closer inspection, the civil law discipline diversamente prevede sì che la proposta possa essere revocata fino alla conclusione del contratto, ma l’art. 1326, primo comma, c.c. dispone che tale momento si realizza successivamente, ossia quando “the proposer has knowledge of the other party's acceptance"
Quindi, se un soggetto formula una proposta contrattuale relativa ad un contratto di vendita disciplinata dal codice civile è libero di revocarla finché non ha conoscenza dell’accettazione; se il contratto è sottoposto alla disciplina della Convenzione di Vienna, questi può revocarla solamente finché il contratto non è concluso, ma solo se la revoca giunge all’oblato prima che questi abbia spedito l’accettazione.
In realtà ci sono effettivamente due situazioni in cui il momento ultimo entro cui può esercitarsi il potere di revoca coincide effettivamente con il momento di conclusione del contratto.
The first hypothesis is, of course, that of a contract concluded orally: in this case there is undoubtedly contextuality between sending and receipt of acceptance.
La seconda ipotesi, che richiederebbe di per sé un maggiore approfondimento (purtroppo non compatibile con lo stampo del presente articolo), si ha quando il destinatario dell’offerta può manifestare il consenso tramite un’attività di esecuzione del contratto stesso, ex art. 18 comma terzo.[6] Since the performance of that activity entails the conclusion of the contract, the power of revocation may only be exercised before the offeree performs that activity, which in effect replaces the declaration of acceptance.
Suddetto principio conosce comunque due eccezioni, contenute appunto nel secondo comma di tale articolo.
Con riferimento all’eccezione di cui alla lett. a), si fa presente che in linea di massima la fissazione di un termine specifico non determina di per sé l’irrevocabilità della proposta contrattuale, ma rappresenta una presunzione[7] of irrevocability. In that case, in order to avoid any uncertainty as to irrevocability, it is also advisable to include in the notice a formula such as 'this offer is valid and irrevocable until [date]'.or "our offer is still valid until [date].".
Quanto invece alla lett. b) di tale comma, essa prevede che la proposta non possa essere revocata quando l’oblato abbia ragionevolmente ritenuto che la stessa fosse irrevocabile. Importante è che, anche ai fini della prova, l’oblato abbia effettivamente agito di conseguenza, tramite, ad esempio, la produzione o la progettazione del prodotto, tramite l’acquisto di materie prime, sottoscrivendo contratti funzionali all’affare con soggetti terzi, assumendo lavoratori stagionali, etc.[8]
4. Art. 17: irrevocable proposal
"An offer, even if irrevocable, expires when its rejection reaches the offeror."
Tenuto conto che il potere di revoca del proponente rappresenta un inconveniente per l’oblato, il quale non può contare con certezza sulla conclusione del contratto alle condizioni indicate nell’offerta, al fine di agevolare l’accettazione il proponente può rendere ferma la sua offerta per un certo tempo. In tal caso la proposta è irrevocabile fino allo scadere del termine previsto.
Ma cosa succede se l’oblato dichiara di rifiutare la proposta?
The Convention regulates this issue clearly and explicitly in Art. 17, providing precisely that such notification (which must be made in the manner and according to the precepts briefly analysed above), entails the forfeiture of the offer.
Tale questione non viene invece sviluppata dal nostro codice civile; si trova, quindi, discusso (in dottrina) il problema della sorte della proposta irrevocabile una volta che sia intervenuto il rifiuto da parte dell’oblato. Rimane quindi aperto se la questione debba essere risolta nel senso che il proponente riacquisterebbe la facoltà di revocare, oppure se con il rifiuto, l'oblato consumi il proprio potere di accettare, senza che sia necessaria una revoca della proposta per escludere il perdurare della sua efficacia fino allo spirare del termine anche dopo l'intervenuto rifiuto.[9]
5. Art. 18: accettazione della proposta
"A statement or other conduct of the recipient indicating assent to an offer constitutes acceptance. Silence or inaction alone cannot amount to acceptance.
The acceptance of an offer takes effect when the expression of consent reaches the author of the offer. The acceptance has no effect if it does not reach the author of the offer within the time stipulated by the offeror or, in the absence of such stipulation, within a reasonable time having regard to the circumstances of the transaction and the rapidity of the means of communication used by the author of the offer. An oral offer must be accepted immediately, unless the circumstances imply otherwise.
If, however, by virtue of the offer, custom or usage established between the parties the offeree may indicate that it accepts the offer by performing an act relating, for example, to the dispatch of the goods or the payment of the price, without giving notice to the author of the offer, the acceptance will take effect at the time when that act is performed, provided that it is done within the time limits set out in the preceding paragraph."
With reference to the first part of the first paragraph (concerning form), the principles of freedom of form art. 11 already briefly analysed above, which leave the offeree a wide choice in determining the manner of manifestation of consent (unless, of course, it has been derogated from by agreement or such derogation can be inferred from custom and usage).
Quanto alla seconda parte del primo comma, in giurisprudenza sono stati riconosciuti come conclusive behaviour Valid as acceptance: acceptance of the goods by the buyer; payment of the goods by the buyer; taking delivery of the goods by a third party; acceptance by the seller of a bank guarantee and commencement of production of the goods; issuance of a letter of credit; drafting and issuance of a pro forma invoice.[10]
L’ultima parte di tale comma dispone che l’inerzia o il silence in themselves cannot constitute acceptance and therefore do not lead to the conclusion of the contract, unless of course this has been agreed between the parties or can be inferred from any usage or commercial practice between the parties.
Article 18 para. 1 has no immediate counterpart in the Italian legal system.
Indeed, although theArticle 1326 of the Civil Code non si sofferma sulle modalità dell’accettazione, si ritiene comunque in giurisprudenza che l’accettazione può essere espressa non solo mediante una dichiarazione, ma anche mediante un qualsiasi altro comportamento da cui possa desumersi l’intento negoziale del soggetto.[11]
Similarly, silence counts as a declaration when, having established a certain relationship between the parties, a common course of action or good faith imposes on the party the burden or duty to speak.[12] Case law confirms this orientation, adding the possibility that, according to a given historical and social moment, having regard to the quality of the parties and their business relations, the silence of one may be understood as adherence to the will of the other.[13]
Read also: Condizioni generali di contratto: battle of the forms, Convenzione di Vienna e codice civile
6. Revoca e responsabilità precontrattuale: codice civile
Under civil law, revocation of consent is effective even if unjustified. Indeed, as noted above, the offeror may as a rule revoke its consent until it has had notice of the offeree's acceptance.
Il proponente che revoca la proposta giustificatamente è (unicamente) tenuto, formerly Art. 1328(1) of the Civil Code to indemnify the offeree for the costs and losses incurred by the offeree as a result of having unsuccessfully commenced performance of the contract before having notice of the revocation[14] (this provision of the Civil Code constitutes a case of blameless responsibility[15] and by lawful act).
When the withdrawal of consent is unjustified, it may give rise to pre-contractual liability[16] if it infringes a reasonable expectation (formerly art. 1337 c.c.)[17] of the other party on the conclusion of the contract.[18] It is stated in case law:
"Where the contacts between two parties are not such as to lead to the conclusion of the contract because of the lack of unambiguous conduct, they may nevertheless constitute negotiations that have reached such a stage of development as to give rise to a justified expectation on the part of one party that the contract will be concluded; in such a case, unjustified termination gives rise only to pre-contractual liability, with the consequent obligation to pay damages. On the other hand, the conclusion of agreements on certain points of the contract to be concluded or partial agreements, in view of their provisional nature and their effectiveness subject to the positive outcome of the negotiations, do not go beyond the scope of the pre-contractual phase and certainly do not prove the conclusion of a contract.. "[19]
Thus, while the Civil Code certainly does not impose a duty on the parties engaged in negotiations to conclude a contract, it does oblige them to conduct them according to good faithsuch as to give rise to a reasonable expectation that the contract would be concluded.
Regarding compensable damage, case law[20] holds, however, that (in contrast to contractual liability), only the so-called "liability" in negotiations (unjustifiably interrupted) is compensable. negative interest(1), i.e. the harm the person suffers for having uselessly relied on the conclusion of the contract; this interest may be relevant both in terms of the
- emergent damage, i.e. the pecuniary loss that the person would have avoided if he had not relied on the conclusion of the contract (e.g. expenses incurred in the course of negotiations, wasted activity in negotiations), and of the
- loss of profit, which the latter could have obtained for other contracts from which it was diverted.
Therefore, anyone who has vainly trusted in the success of a negotiation is entitled to be compensated for the loss of advantage che avrebbe potuto conseguire se, invece di impiegare la sua attività nella trattativa fallita, si fosse dedicato ad altre contrattazioni dalle quali avrebbe potuto trarre un determinato profitto: per questo aspetto dovrà dimostrare il lucro che avrebbe ottenuto dall’esecuzione di altri potenziali affari, oggetto di specifiche e avanzate trattative che poi ha abbandonato per coltivare quella non andata a buon fine a causa della scorrettezza dell’altra parte del negoziato.
7. Revoca e responsabilità precontrattuale: Convenzione di Vienna
Whereas in the Civil Code, as has been seen, the need to protect the offeree against the offeree's (broader) power of revocation is realised by making the offeree liable for the offeree's expenses and losses incurred formerly Art. 1328 of the Civil Code and, possibly, to compensation for negative interest, in the event of the application of the Vienna Convention (which as we have seen anticipates the time by which the offeror may revoke the proposal at the time of dispatch of acceptance by the offeree) the matter becomes not a little complicated.
Indeed, doctrine is not uniform as to whether the Vienna Convention regulates pre-contractual liability or not. There is, however, a prevailing orientation, which holds that the Convention does not regulate this.[21] Dall’altro lato, vi sono comunque numerosi commentatori che ritengono che la Convenzione sia applicabile comunque agli "accordi preliminari", almeno nella misura in cui tali accordi prevedono le modalità di esecuzione del contratto definitivo.[22]
In fact, in order to understand (or at least approach) these apparently conflicting orientations, it would first be necessary to differentiate the hypothesis of liability for breakdown of negotiations from the breach of specific contractual provisions regulated by the parties in a preliminary contract.
In fact, according to part of the doctrine, if the parties have not signed a proper preliminary contract and the issue concerns the mere breakdown of contract negotiations, la tematica sembrerebbe essere (indirettamente) disciplinata dalla Convenzione di Vienna. Infatti, posto che gli articoli 15 e 16 della Convenzione, come abbiamo visto, trattano espressamente la questione della revocabilità di un'offerta, il fatto che la Convenzione non preveda alcuna tutela in capo all’oblato, spinge a ritenere che tale revoca non conferisca a tale soggetto alcun diritto di richiedere un eventuale risarcimento del danno,[23] con conseguente inapplicabilità delle tutele civilistiche analizzate al punto precedente.
Less clear, however, is the case where the parties have signed a preliminary contract and one party defaults, since, as noted above, the Convention does not regulate the institution of pre-contractual liability.
It is certainly important to understand, at first analysis, whether the singolo rapporto sia o meno regolamentato dalla Convenzione. In fact, if one were to espouse the thesis that the Convention does not apply to any pre-contractual relationship, it would be common ground to argue that this issue is necessarily governed by the common law rules applicable to the existing relationship.[24]
Otherwise, if one were to follow the thesis of part of the doctrine,[25] which asserts that certain preliminary contracts are governed by the uniform law, it must be understood whether or not in the event of a breakdown of transactions or any breach of contract by one party during negotiations, the party suffering the harm can make use of the instruments recognised by the Convention, which concern, precisely, the breach of a contract of sale and certainly not of a preliminary contract. If this thesis were to be followed, the indemnifiable harm would therefore be (in fact) contractual in nature, with consequent greater protection than under civil law (which provides, as we have seen, for more limited compensation in the case of pre-contractual harm).
Certamente tale problema viene meno, nel caso in cui l’azione sia volta a ripetere il risarcimento di un danno il cui oggetto è escluso dall’ambito di applicazione ex art. 2, lett. a), art. 4 o art. 5 (si pensi, ad esempio, al danno causato in fase di trattative da attività fraudolenta).
Tutte tali problematiche e dubbi relativi all’applicazione e all’applicabilità della Convenzione comportano certamente una maggiore incertezza delle parti in fase di conclusione del contratto, rispetto al caso in cui al rapporto si dovesse applicare unicamente la normativa civilistica; di tale elemento bisognerebbe certamente tenere conto, cercando (compatibilmente con quelle che sono le difficoltà che le imprese quotidianamente affrontano nel commercio internazionale) di regolamentarle in maniera più attenta possibile, non solo il rapporto di vendita, ma anche la sua negoziazione.
Cosa verificare prima di agire
- Verificare che l’offerta indichi le merci, la quantità e il prezzo, o i criteri per determinarli, e la volontà di vincolarsi in caso di accettazione (art. 14).
- Se la comunicazione non vuole essere un’offerta, dichiararlo espressamente (“manifestazione di interesse, non offerta di acquisto”).
- Se si vuole un’offerta ferma, fissare un termine con una formula esplicita di irrevocabilità (art. 16, par. 2, lett. a).
- Prima di revocare, verificare se l’oblato ha già spedito l’accettazione o ha iniziato a eseguire il contratto: sotto la Convenzione la revoca non ha più effetto.
- Controllare se usi o pratiche tra le parti danno valore di accettazione al silenzio o a un comportamento esecutivo (art. 18).
- Regolare per iscritto anche la fase delle trattative, non solo la vendita, perché non è certo che la Convenzione disciplini la responsabilità precontrattuale.
Note
[1] MASTROMATTEO, La vendita internazionale, Giappichelli Editore, 2013.
[2] Con riferimento alla quantificazione del prezzo, nel presente articolo si fa unicamente presente che la disposizione in esame parrebbe essere difficilmente integrata con quella di cui all’art. 55 della Convenzione, che prevede: "If the sale is validly concluded without the price of the goods sold having been expressly or impliedly fixed in the contract, or by a provision enabling it to be determined, the parties shall, unless otherwise provided, be deemed to have tacitly referred to the price usually charged at the time of the conclusion of the contract, in the trade concerned, for the same goods sold in similar circumstances.” Infatti, se la fissazione del prezzo è condizione per il perfezionamento della vendita, riesce arduo ammettere che si possa parlare di contratto validamente concluso, senza che questa determinazione, almeno implicitamente, sia avvenuta. Proprio per tale motivo, la maggior parte delle decisioni ha rifiutato di applicare l'articolo 55: Oberlandesgericht Frankfurt a.M., Germany, 15 March 1996; Bundesgerichtshof, Germany, 23 July 1997, CLOUT n. 236; Landgericht Alsfeld, Germany, 12 May 1995, CLOUT n. 410; Kantonsgericht Freiburg, Switzerland, 11 October 2004. Sul punto cfr. UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, 2016 Edition, sub art. 14, par. 15 e nota 50.
[3] Case law holds that a statement can only qualify as a contractual proposal when it manifests a unambiguous will to commit and not merely a willingness or a wish, Cass. Civ. no. 6922 of 1982; VESSICHELLI, Commentary on Art. 14, at New civ. comm. laws, 1989, p. 51.
[4] Cfr. BENEDETTI, From contract to unilateral transaction, Milan, 1969, 95.
[5] RUBIN, Commentary on Art. 15, at New civ. comm. laws, 1989, p. 51.
[6] Art. 18, third paragraph: "Se, tuttavia, in virtù dell'offerta, degli usi o consuetudini che si sono stabiliti fra le parti il destinatario dell'offerta può indicare che acconsente, compiendo un atto attinente, ad esempio, alla spedizione delle merci o al pagamento dei prezzi, senza darne comunicazione all'autore dell'offerta, l'accettazione avrà effetto nel momento in cui questo atto è compiuto, purché lo sia entro i termini previsti dal precedente paragrafo. "
[7] MASTROMATTEO, op. cit.
[8] FERRARI, sub Article 16, International Sale of Goods tomo II, in Commentario del codice civile Scialoja-Branca, a cura di Galgano, 2006.
[9] On this point, see Pluris online, Annotated Civil Code, Article 1329 of the Civil Code, Wolters Kluwer, 2021.
[10] On this point cf. UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, 2016 Edition, sub art. 18, par. 6.
[11] Cf. Civil cassation 2003, no. 3341, which states that it is the task of the court of merit to identify and value elements from which to deduce a tacit manifestation.
[12] BIANCA, Civil Law, The Contract, Giuffrè, 1987.
[13] Cass. civ., sez. III, 14 maggio 2014, n. 10533.
[14] On this point, see BIANCA, op. cit.
[15] Cass. Civ. 1952 no. 1729. CIAN - TRABUCCHI, Short Commentary to the Civil Code, sub. art. 1328, CEDAM, 2014.
[16] Cfr. Cass. Civ. 1786/2015; Cass. Civ. 1051/2012; Cass. Civ. 11438/2004.
[17] Art. 1337 of the Civil Code "The parties, in the conduct of negotiations and in the formation of the contract, must behave in good faith'.
[18] Cf. BIANCA, op. cit.
[19] Cass. civ., sez. II, 14 giugno 1999, n. 5830.
[20] See on this point Cass Civ. 24795/2008, Cass Civ. 1632/2000.
[21] DIMATTEO - International sales law. A global challenge, Cambridge, 2014.
[22] TOWER - Preliminary Agreements and CISG Contracts, at Drafting Contracts under the CISG, p. 191 ff., 2008.
[23] FERRARI - Kommentar zum Einheitlichen UN-Kaufrecht, Art. 5, 2009.
[24] Sul punto, si fa presente che in base al diritto europeo, l’art. 12 del Regolamento Roma II, dispone che: “The law applicable to non-contractual obligations arising out of pre-contractual negotiations, whether or not the contract has actually been concluded, is the law that applies to the contract or that would have been applicable to the contract had it been concluded." Thus, while the problem of identifying the applicable law for culpa in contrahendo non si pone in caso di applicazione del diritto europeo, lo stesso certamente non si può dire nel caso in cui il rapporto contrattuale sia (o possa essere) sottoposto a una normativa extra-EU.
[25] TORSELLO, op. cit.
International trading and the importance of customs and traditions: Vienna Convention and Civil Code compared.
Nella compravendita internazionale gli usi e le consuetudini possono integrare il contratto ben oltre il testo che le parti hanno sottoscritto: il modo in cui venditore e compratore si sono comportati nelle forniture precedenti, e le regole che il loro settore osserva abitualmente, possono vincolarli a obblighi che il documento non menziona. Ma a quali condizioni una prassi diventa un obbligo, e chi deve provarne l’esistenza?
L’art. 9 della Convenzione di Vienna e il codice civile danno al problema risposte costruite in modo diverso: la prima vincola le parti agli usi ai quali hanno consentito e alle pratiche instaurate tra loro, il secondo distingue tra usi normativi, usi negoziali e usi individuali, attribuendo a ciascuna figura una funzione propria. Il confronto mostra quando una prassi integra il contratto e quando serve soltanto a interpretarlo: una differenza che pesa sulla scelta di applicare o di escludere la Convenzione.
It is often overlooked that a contractual relationship is not solely governed by the text that the parties have (possibly) agreed upon and that the transaction must be interpreted on the basis of the conduct of the contracting parties before and after conclusion, as well as that the same may be supplemented by any customs and habits practised in the commercial sphere where the contracting parties operate.
La tematica dell’integrazione del contratto è, ovviamente, disciplinata sia dalla Convenzione di Vienna (CISG), che dal codice civile, con differenze non certamente trascurabili; la scelta di applicare o meno la Convenzione a un determinato rapporto, ha delle ripercussioni pratiche piuttosto rilevanti che si vanno qui di seguito brevemente ad analizzare.
1. Convenzione di Vienna: usi e pratiche nell’art. 9
L’art. 9 della Vienna Convention provides that:
"Le parti sono vincolate dagli usi [usages] ai quali hanno concordato e dalle abitudini [practices] stabilitesi fra di loro.
Unless the parties have agreed otherwise, they shall be deemed to have tacitly referred in the contract and in its drafting to any usage of which they were or ought to have been aware and which, in international trade, is widely known and regularly observed by the parties in contracts of the same kind, in the trade concerned. "
According to this provision, the parties to an international sales contract are bound by both customs ("usages"), as well as to practices ("practices"), which the contracting parties have (expressly or implicitly)[1] established between them. Although the convention does not define the concepts of usages e practicesthey can be translated as follows:
- "practices"with individual customs, i.e. commercial practice[2] established between the contracting parties in their previous contractual relations;[3]
- "usages", with negotiated usages, or customs, understood as conduct normally practised in a certain commercial sphere, with the belief that it is binding conduct.
In base all’art. 9 comma 1 della CISG, sia le “practices", that the "usages" do not have a mere interpretative value, but must even be considered an integral part of the contractual relationship, albeit subject to certain limitations and conditions, which will be analysed below. Before doing so, for the sake of clarity, some "practices" that were deemed applicable between the parties:
- the obligation of a seller to promptly deliver spare parts to the buyer, based on the practice that had been established between them;[4]
- è stato ritenuto che un venditore non poteva invocare la regola dell’articolo 18 CISG che prevede che il silenzio non equivale ad accettazione, tenuto conto che le parti avevano stabilito una prassi interna in forza della quale il venditore eseguiva gli ordini dell’acquirente senza necessità di accettazione espressa;[5]
- in un altro caso, anche al fine della denuncia dei vizi, è stato deciso che l’acquirente era tenuto ad una determinata modalità di esame della merce consegnata sulla base di una pratica che si era instaurata nel tempo.[6]
But when are such practices?
First of all, it is necessary to understand whether a real ''relationship'' has actually been established between the parties.practice” e, per fare ciò, è necessario che le pratiche siano state condotte tra loro con una certa frequenza e per un periodo di tempo tale da fare ritenere e presumere in buona fede la parte che le invoca, che si sarebbero perpetuate nel tempo.[7]
Once this 'preliminary' element has been ascertained, it is indeed necessary to verify whether there are any contractual provisions between the parties that exclude their applicability, or whether there are contractual agreements that are in fact contrary to the practice allegedly established between the contracting parties.
In fact, although according to a jurisprudential orientation[8] gli usi e le consuetudini derogherebbero addirittura le disposizioni della Convenzione, se le parti hanno escluso la loro applicazione, oppure abbiano inserito clausole che di fatto contrastino con le stesse, le pattuizioni negoziali prevarrebbero sugli usi. Tale principio si evince dall’art. 6 della CISG, in base al quale la volontà espressa dai contraenti è la fonte primaria dei diritti e degli obblighi che originano dai contratti stipulati ai sensi della CISG medesima.[9]
Thereafter, the onus will be on the party claiming its existence to prove the required elements,[10] with the consequence that in the event of failure to do so, custom and practice will not be binding between the parties.
Once its existence has been proven under the Convention, its legitimacy must be assessed according to the domestic law applicable in each case, so that the validity of usages does not fall within the scope of the Convention, which only regulates the criteria for their applicability.[11]
As for commercial uses (usages), che si ricorda essere invece quelle consuetudini che normalmente si praticano in un certo ambito mercantile, le parti sono agli stessi vincolate, ex art. 9, comma 2, anche in assenza di un accordo espresso che li recepisce, purché le stesse “were or should have been aware'..
In linea di massima, devono essere considerati vincolanti gli usi commerciali internazionali, solamente se ampiamente conosciuti dalle parti, oppure se regolarmente osservati nella compravendita internazionale.[12] It should also be noted that for a usage to be binding it does not have to be international, but local usages used e.g. in stock exchanges, trade fairs, warehouses, may also be applicable to the relationship, provided that they are also regularly applied in transactions involving foreign contracting parties.[13]
One decision was even held that the usages are automatically included in any agreement governed by the Convention unless expressly excluded by the parties.[14]
Also for the usages, the principle applies that they (if applicable) derogate from the provisions of the Convention that differ therefrom, but not from conflicting contractual agreements, contractual autonomy being the primary source of the rights and obligations of the parties.
Quanto all’onere della prova, si ritiene non esserci differenza nella ripartizione dell’onere della prova ex art. 9 comma 1 e comma 2, posto che la parte che sostiene l’esistenza di usages or practices vincolanti, deve comunque provare gli elementi dallo stesso richiesti.[15]
Read also: Condizioni generali di contratto: battle of the forms, Convenzione di Vienna e codice civile
2. Codice civile: usi normativi, usi negoziali e usi individuali
Certainly less linear and decidedly more complex is the civil law regulation of usages and customs, which are categorised into:[16]
- Regulatory usesgoverned by arts. 1 and 8 of the lexis. These are all the unwritten rules that a given social environment consistently observes over time as legally binding rules.[17] Tali usi trovano applicazione nelle materie non regolate da leggi o regolamenti, ovvero quando siano da essi richiamate.
- Contractual Uses, negotiations o clausole d’uso, di cui all’art. 1340 c.c. Da intendersi pratiche come comunemente e costantemente osservate nelle operazioni contrattuali in un dato luogo o ramo del commercio. Tali usi possono essere equiparati agli “usages' referred to in the Vienna Convention.
- Individual uses, sono la prassi che si instaura nei rapporti fra determinati contraenti e che rileva ai fini dell’interpretazione del contratto, ex art. 1362, secondo comma c.c. (assimilati alle “practices” della CISG).
While understanding in detail the distinction between regulatory uses e contrattuali richiederebbe certamente una più attenta e approfondita disamina, per quanto possa interessare ai fini del presente articolo, si può semplificare affermando che gli usi normativi sono quelli applicabili ogniqualvolta la legge li richiama (ad es. in tema di vendita, l’art. 1498, secondo comma c.c. sulle modalità di pagamento del prezzo), oppure quando vi siano materie non regolate dalla legge stessa, ricoprendo in tal caso una funzione integrativa (usi praeter legem).
The negotiated uses on the other hand, are generalised business practices that are intended to be included in the contract if it does not appear that they were not intended by the parties (Art. 1340 Civil Code).[18] Such usages may, for instance, provide for the variability of the quantity or quality of the goods within certain tolerance limits, or the obligation to return the containers of the goods bought and sold, or the possible acknowledgement of a performance guarantee; in the international sphere, the uniform rules and usages of the International Chamber of Commerce in the field of documentary credits have been regarded as negotiating usages.[19]
Inoltre, diversamente dagli usi normativi, quelli negoziali (o contrattuali) si applicano senza che occorra un richiamo normativo: la legge contiene, infatti, all’art. 1374 c.c. (integrazione del contratto) un richiamo generale agli usi come fonte di integrazione del contratto, posto che le parti sono tenute a quanto è determinato dall’accordo e a tutte le conseguenze che ne derivano secondo la legge o, in mancanza, secondo gli usi.
A first and important difference is related to the fact that negotiated uses (as opposed to usages which are applicable whenever the same were known or knowable to the parties at the time of the conclusion of the contract) in civil law the jurisprudence is not in agreement as to whether they can be deemed to be incorporated into the contract only by virtue of an express or tacit manifestation of the parties,[20] or whether the uses oblige the parties even if ignored by them.[21] It may, however, be reasonably argued that such usages are also effective in derogation of (obviously non-mandatory) statutory provisions, but that they must be excluded in the event of a contrary, agreed will of the parties, even if tacitly expressed.[22]
Negotiated uses must also be distinguished from individual usesi.e. the practice established in relations between certain contracting parties (the practices of the CISG).
Very important to note that, contrary to the practices, the internal practice of the contracting parties is only relevant for the interpretation of the contract, as the overall conduct of the parties (Art. 1362 para. 2 CC),[23] but does not also incorporate its contents under Article 1340 and Article 1374 of the Civil Code.[24]
Ne consegue, quindi, che diversamente dall’art. 9 della CISG, la prassi negoziale che si è instaurata tra le parti non può avere valore di vera e propria clausola contrattuale che forma parte integrante del rapporto, ma unicamente essere utilizzata come elemento per interpretare il contratto. Differenza, tutt’altro che trascurabile.
Una via per comunque tentare di perseguire il medesimo risultato, ossia di integrare una determinata prassi individuale all’interno del rapporto, sarebbe quella di ricorrere al principio di equità, richiamato dallo stesso art. 1374 c.c. che così dispone:
"Il contratto obbliga le parti non solo a quanto è nel medesimo espresso, ma anche a tutte le conseguenze che ne derivano secondo la legge, o, in mancanza, secondo gli usi e l’equità. "
Utilizzando tale principio, affiancato a quello di esecuzione in buona fede del contratto ex Article 1375 of the Civil Code., si potrebbe eventualmente tentare di sostenere, che il continuato e ripetuto comportamento di una parte abbia ingenerato nell’altra l’aspettativa che lo stesso si ripetesse.
Certainly, such a solution would still be much more complex and difficult to implement than if the Vienna Convention were to apply to the relationship, given that the provisions of Article 9 are certainly much clearer and easier to interpret in this respect.
Cosa verificare prima di agire
- Accertare se il contratto è soggetto alla Convenzione di Vienna o al codice civile.
- Ricostruire frequenza e durata delle pratiche instaurate nelle forniture precedenti.
- Controllare che il contratto non contenga clausole che escludono usi e pratiche o che sono in contrasto con essi.
- Individuare gli usi del settore largamente conosciuti e regolarmente osservati, anche locali.
- Raccogliere la prova dell’uso o della pratica che si intende invocare.
- Verificare la validità dell’uso secondo il diritto nazionale applicabile.
Note
[1] Oberster Gerichtshof, Austria, 21 marzo 2000, CLOUT n. 425.
[2] Cfr. DE FRANCHIS, Dizionario Giuridico Italiano-Inglese, Giuffrè Editore.
[3] BUSANI, The International Sale and Purchase Agreement, pag. 97 e ss., 2015, Giappichelli.
[4] Court of Arbitration of the International Chamber of Commerce, 23 gennaio 1997, lodo n. 8611/HV/JK, citato in UNCITRAL, Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods, edizione 2016, art. 9, par. 6.
[5] Cour d’appel de Grenoble, Francia, 21 ottobre 1999, CLOUT n. 313, citata in UNCITRAL Digest, cit., art. 9, par. 6.
[6] China International Economic and Trade Arbitration Commission (CIETAC), 2006, lodo n. CISG/2006/16, citato in UNCITRAL Digest, cit., art. 9, par. 6.
[7] UNCITRAL Digest, cit., art. 9, par. 7.
[8] CLOUT case no. 313, Cour d'appel de Grenoble, France, 21.10.1999.
[9] See Hof van Beroep Antwerpen (Belgium), 24 April 2006; BUSANI, op. cit.
[10] Oberster Gerichtshof, Austria, 21 marzo 2000, CLOUT n. 425.
[11] Oberster Gerichtshof, Austria, 22 ottobre 2001, CLOUT n. 605.
[12] UNCITRAL Digest, cit., art. 9, par. 9.
[13] Oberlandesgericht Graz, Austria, 9 novembre 1995, CLOUT n. 175.
[14] U.S. District Court, Southern District Court of New York, 10 maggio 2002, CLOUT n. 579.
[15] UNCITRAL Digest, cit., art. 9, par. 13.
[16] For the sake of simplicity, no further categories, such as interpretative uses and business uses, are included in this article.
[17] BIANCA, Civil Law, The Contract, 1987, Giuffrè.
[18] BIANCA, op. cit.
[19] Cass. civ., sez. I, 14 ottobre 2009, n. 21833.
[20] Cass. civ., sez. lav., 8 aprile 2010, n. 8342.
[21] Cass. Civ. 2007 no. 5135.
[22] Cass. Civ. 2007 no. 5135; Cass. Civ. 1988 no. 76.
[23] CIAN - TRABUCCHI, Commentary on the Civil Code, Art. 1340, CEDAM.
[24] Cass. Civ. 1988 no. 3220.
The scientific informant: employee, agent or self-employed?
The sales representative is the person who acts as a highly qualified intermediary between the pharmaceutical company and those responsible for administering the drug (be it the doctor, the hospital or the pharmacy).
Although Italian jurisprudence has not entirely ruled out the applicability of agency rules to this figure, it has limited its application.
Below are some tools for understanding whether and when a sales representative should be classified as an employee, agent or self-employed person.
Sales promotion and intermediation in the pharmaceutical market is characterised by significant peculiarities. One of the main elements of atypicality of the sector is certainly to be found in the fact that the recipients of pharmaceutical products are the patients, whose relationship with the companies is, however, mediated by a third party (the doctor, the hospital or the pharmacy) to whom the legal system attributes, for a large number of drugs, the exclusive function of identifying the most appropriate therapy through prescription.
The activity of connecting the pharmaceutical cause with the person in charge of administering the drug is largely carried out by the pharmaceutical sales representative (also known as the pharmaceutical propagandist).
The pharmaceutical sales representative is regulated in our legal system by the Legislative Decree 219/2006 Art. 122This rule requires the person carrying out this activity to possess a university degree in the scientific disciplines that are strictly listed, as well as the obligation for each pharmaceutical company to notify the Agency by January of each year of the list of scientific representatives employed in the previous year.
Examination of this legislation does not reveal an obligation for pharmaceutical companies wishing to use a sales representative to classify that person as an employee, since they are free to adopt either a subordinate employment contract, an agency contract, or a self-employment contract, depending on the actual manner in which the relationship is carried out.[1]
Below are some hints and tools for understanding whether and when a sales representative should be considered an employee, agent or self-employed person.
1. Employee or agent?
Given the absolute openness of jurisprudence in holding that the scientific informant can be freely classified as an employee,[2] Should the parties choose to adopt such discipline, the applicability of the rules on agency to the relationship must certainly be excluded.
If, on the other hand, the relationship should be classified as an agency, in order to verify whether it has been correctly classified, it will be necessary to verify, in the concrete case, the actual content of the services rendered, taking into account the real attitude of the parties; in practice, ascertaining whether or not there is an effective subordination of the scientific informant to the hierarchical and disciplinary power of the entrepreneur, as well as an assumption of the risk of the activity.[3]
A rather dated cassation (Court of Cassation Civ. 1992 No. 9676), but not for this reason still not relevant today, maintained that the activity of scientific informant can take place both in the context of a self-employed employment relationship and in that of a subordinate employment relationship, pointing out how in the case of the 'agent' propagandist the relationship is characterised by aresult obligationand, in the second case, of means. Indeed, it is stated that
"depending on whether the performance of the activity is characterised - by the manner in which it is carried out - as a mere result or as provision of working energies with the insertion of the propagandist into the production organisation of the entrepreneur and subjection to the instructions given by the latter'.
In particular, it is stated by the Court that:
"from the aforementioned activity - which (carried out autonomously or subordinately) consists in persuading potential customers of the advisability of purchasing, informing them of the product and its characteristics, but without promoting (if only marginally) the conclusion of contracts - differs the activity of the agent, who, in the context of an obligation not of means, but of result, must also promote the conclusion of contracts, his remuneration being directly linked to these and commensurate with them. "
A further element that will have to be taken into account for a correct framing of the relationship certainly concerns the way in which the sales representative is remunerated. If this subject's remuneration is in no way parameterized to the sales that are made by the principal in his area, and that, therefore, the economic risk is passed on in full to this subject, it will certainly be much more complex to sustain his classification within the discipline of the agency, or in any case of a self-employed relationship.
- Read also: The agency contract and the employment relationship: distinguishing criteria and evaluation parameters.
2. Agent or self-employed?
Generally speaking, although Italian case law has not entirely ruled out the applicability of the agency rules to the pharmaceutical sales representative, it has limited its application.
The starting point of this interpretation process is the definition of 'agency' in Art. 1742 of the Civil Code, where among the characteristic services of the commercial agent is that of promoting contracts. It reads:
"With the agency contract one party permanently assumes the task of promoteon behalf of the other, towards remuneration, the conclusion of contracts in a given area. "
If, on the other hand, one analyses the activities of various scientific informants, one can see that they (and hence also the name) mainly carry out not so much the activity of promotion, but that of (different) propaganda.
To distinguish the two activities, it can be simplified by pointing out that thepropaganda activities consists essentially in illustrating, albeit also in a very analytical, detailed and scientific manner, the qualities of a given product (in this case a drug), while extolling its qualities and characteristics that distinguish it from its competitors.
On the other hand, thepromotional activitiesand consists, instead, of a series of activities aimed at stimulating demand for a product, such as, for example, launching promotional campaigns, developing marketing strategies, etc.
Therefore, on the assumption of the significant difference between these types of activities, some case law has held that the mere propaganda carried out by a scientific informant, by means of visits to doctors or medical managers,
"in order to promote the adoption of the drugs they represent should be considered as an atypical relationship, non the scheme of an agency relationshipin view of the fact that the propagandist, in addition to not entering into any contracts with clients of the publishing house, does not even carry out any activities aimed at concluding contracts, this event being external to the advertising activity and, moreover, eventual. "[4]
In particular, the Court of Cassation held that the activity of promoting the conclusion of contracts on behalf of the principal, which constitutes the agent's typical obligation, cannot consist in a mere propaganda activity, from which an increase in sales may only indirectly derive, but must consist in convincing the potential customer to place orders for the principal's products, since it is precisely with regard to this result that the agent is awarded the remuneration, consisting in the commission on contracts concluded through him and successfully concluded.
There is a further problem, or perhaps it is better to say that this problem is exacerbated and becomes even more glaring when the pharmaceutical sales representative works for hospitals or public health agencies. In that case, part of the case law even considers that the existence of a promotional activity should be ruled out a priori, since the intermediary who comes into contact with public bodies cannot in any way convince the P.A.. to order the product, in view of the constraint of administrative procedures of public evidence for the conclusion of contracts. "[5]
In other pronouncements, especially in so far as the scientific informant simultaneously performs the typical tasks of the agent, it has been held that the activity of advertising, although it cannot in itself constitute the typical activity of the agent, does integrate the prerequisite of promoting the conclusion of contracts.
It is considered appropriate to quote below an excerpt from a pronouncement of the Court, in which it is noted that, although the agent's services consist of acts of varied and non-predetermined content that all tend to promote the conclusion of contracts, the typical activity of the commercial agent does not require:
necessarily the search for the customer and is always attributable to the service under the agency agreement even when the customer, from whom the contract proposal submitted by the agent originates, was not directly sought by the agent but was acquired on the principal's instructions (or in any other way), provided that there is a causal link between the agent's promotional activity vis-à-vis the customer and the conclusion of the transaction to which the claim for commission relates.
In any event, for an agency contract to exist it is not necessary for the agent to be able to fix prices and discounts and in any case to modulate the conditions of the service to the particular needs of the clients of the service itself, since the standardisation of the sales conditions can make the action of advertising preeminent over that of preparing and setting up the contract. "[6]
It can therefore be concluded that the propaganda is a component of the promotion, considered by Art. 1742 of the Civil Code, and that it is sufficient to supplement it when it resumes, combined with other tasks typical of the agent, the function of organising and developing the placement of the product, so as to attribute to the agent the role of effective intermediary between the company and its customers, also by means of a mediated solicitation of the possible purchasers of the good or service.
In other words, the existence of an agency contract cannot be excluded a priori merely because the promotion of contracts is addressed to different persons to final customers (i.e. those persons who make the purchase of the good or service), it being necessary in the present case to ascertain whether the person performs an actual sales promotion activity, even if of an indirect nature.
____________________________________________
[1] On this point see Venezia, Il contratto di agenzia, p. 667, 2020, Giuffrè.
[2] Cass. Civ. 2006 no. 4271, Cass. Civ. 2001 no. 9167.
[3] Cass. Civ. 2009 no. 9696, "The distinctive element between the agency relationship and the subordinate employment relationship is to be found in the circumstance that the former has as its object the performance in favour of the principal of an economic activity exercised in an entrepreneurial form, with organisation of means and assumption of risk by the agent, which is manifested in the autonomy in the choice of the times and modes of the same, albeit in compliance - according to the provisions of Art.Article 1746 c.c. - of the instructions received from the principal, whereas the subject-matter of the second is the performance, under a regime of subordination, of working energies, the result of which falls exclusively within the legal sphere of the entrepreneur, who bears the risk of the activity carried out." Cass. Civ. 2008 no. 21380.
[4] Cass. Civ. 2006 no. 3709.
[5] Cass. Civ. 2008 no. 18686.
[6] Cass. Civ. 2018, no. 20453.
Selective online distribution: the Amazon.it case.
1. Selective distribution: the regulatory and jurisprudential context.
Based on the assumption that the goal of every manufacturer is to maximise its profit, there are cases in which this goal can only be achieved by restricting access to the official sales network to distributors and resellers with special requirements, so as to protect the image of excellence and product quality.
This tends to be the case for technically complex products - for which customer service is particularly important - and the manufacturer believes that the certainty of an adequate service can positively influence the purchaser's choices, or in the case of beauty or fashion products, where the protection of the product's image or prestige may be considered essential in order not to dissuade the consumer from purchasing a product that is offered together with goods of much lesser value.[1]
Here is the manufacturer's interest in creating a selective distribution within which, each authorised member undertakes to sell the contractual goods or services only to distributors selected on the basis of predetermined criteria, in order to safeguard, in the consumer's perception, the aura of exclusivity and prestige of the products, thanks precisely to a presentation of the goods to the public that enhances their aesthetic and functional specificity.
Although selective distribution is abstractly capable of restricting competition on the market (thus contrary to theArticle 101(1) TFEU), it is nevertheless regarded as a legitimate selling method (pursuant to Article 101(3) TFEU) provided that:
- the characteristics of the products actually require a selective distribution system, in view of their high level of quality and technologyin order to preserve their quality and ensure their proper use;
- the choice of dealers is made according to objective criteria of a qualitative nature, established indiscriminately for all potential resellers and applied in a manner non-discriminatory;
- the system proposes a result apt to improve competition and thus counterbalance the restrictions on competition to the same;
- the criteria imposed do not go beyond what is necessary.[2]
Under these conditions, therefore, a selective distribution system is permissible.
The first and main advantage (linked in fact to the very essence of selective distribution itself) is the fact that in such a system, the manufacturer may oblige those belonging to the network and, therefore, bound to it by a contractual relationship, not to promote sales to parties (other than end users) not belonging to the network (Art. 4(b)(iii)), subject however to the possibility of sales cross between authorised members (Art. 4(d)).[3] Therefore, in the event of a breach of contractual obligations, the manufacturer will have the possibility of retaliating against the non-performing member by resorting to the remedies typical of breach of contract.
- Read also: Selective distribution. A brief overview: advantages and disadvantages.
On the other hand, as far as relations with parties outside the network are concerned, with whom the producer by definition has no contractual relationship, it can now be affirmed without hesitation that the producer has the right to seek injunctive relief against the parallel distributorsif, and only if, the manner of resale is such as to damage the image of luxury and prestige - which the manufacturer seeks to defend precisely by adopting a selective distribution system - or if there is a confusing effect as to the existence of a commercial link between the proprietor of the trade mark and the unauthorised reseller.
As is well known, thearticle 5 c.p.i. - which in its first paragraph lays down the so-called principle of exhaustion, in its second paragraph provides for an exception, stating that the holder of an industrial property right may, if there are legitimate reasons, oppose the further commercialisation of its products already on the market, in particular if their condition is changed or altered; it is now common ground that selective distribution falls within this exception.[4]
- Read also: Parallel Sales in the EU. When and to what extent can a manufacturer control them?
The application of these principles to sales onlineThis has led to the consolidation of a guideline that considers unlawful, as constituting a serious restriction of competition, a contract that absolutely prevents the sale via web[5] and that a restriction on the distribution online would only be lawful if it aimed to make authorised dealers of a selective system comply with certain quality standards with the main purpose of safeguarding the image of the contractual products.
- Read also: Can a manufacturer prevent its distributors from selling online?
Given that online sales have been de facto 'cleared' by European jurisprudence, albeit with the limitations mentioned above, a further issue has arisen, namely whether parallel distributors can also claim the right to make sales via web. A recent judgment of the Court of Milan - applying the principles already well established in the field of 'traditional' sales - held that in relations extra-contractualthe proprietor of exclusive property rights, may only block sales to persons outside the selective sales network if there is actual prejudice to the luxury or prestige image of the trade mark, thus affirming that the failure to distinguish by a maerketplace (in this case amazon.co.uk) between luxury and inferior products can confuse the consumer and damage the prestige of the brand.[6]
2. The case Shiseido v. Amazon.
With order of 19 October 2020 (currently the subject of a complaint), the Court of Milan again confirmed its orientation, upholding the appeal brought by the licensees of trademarks including "Narciso Rodriguez" e "Dolce & Gabbana" for the manufacture and marketing of perfumery and cosmetics products, preventing 'amazon.it' from promoting and offering for sale products bearing its trademarks, which are the subject of selective distribution agreements.
The Court of Milan, in order to verify the existence of the fumus boni iurisIt established the existence of the following three requirements:
- if the products in question could qualify as luxurious;
- if the selective distributionof the applicant was legitimate;
- if the off-network sale would bring an effective damage to the reputation of the trade mark.
2.1. Ascertaining the luxury category of products.
The examination of this requirement was carried out, in this case, on the basis of quality indexes, finding, with reference to the trade marks 'D&D' and 'Narciso Rodriquez':
"the search for high quality materials, the care for packaging [...], the public presentation promoted at publicity level by personalities from the entertainment industry, the wide accreditation in the sector of reference deducible from [...] awards obtained, the consolidated recognition by the specialised press".
The Court, on the one hand, held that such serious, precise and concordant evidence, pursuant to Article 2729 of the Civil Code, proved that such fragrances belonged to the high-end category (reserving the right to conduct a more detailed investigation at the merits stage) and, on the other hand, again using the same indices and parameters of assessment, declared that the aura of luxury had not been sufficiently proven with reference to the marks "Iseey Miyake", "Elie Sahh" e "Zadig&Voltaire', thus placing these fragrances in the high-end category.
2.2. Verification of selective distribution contracts.
After verifying the aura of prestige of the products in question, it was necessary to verify the actual existence of selective distribution.
According to European case law, in order to benefit from the exemptions of Article 101(3) of the Treaty, it is not sufficient that a manufacturer has made a significant promotional effort in favour of high-end products, but also the conclusion of agreements that effectively impose on other independent economic operators obligations restricting their freedom of competition, since, otherwise, each manufacturer could justify the use of a selective distribution system only on the basis of the promotional activities carried out, so that any restrictive infringement criterion would be justified by the fact that it was necessary to protect the marketing strategy desired by the manufacturer.[7]
Moreover, once the existence of a selective distribution system has been verified, according to a recent orientation of the Court of Appeal of Milan, the producer may only claim the advantages deriving from it, and thus derogate from the principle of exhaustion, if, in application, the existence of an effective vigilance exercised on the market by the manufacturer.[8]
In the present case, the Court analysed the clauses of the contracts and verified that the obligations imposed on authorised dealers appeared to be aimed solely at protecting the luxury aura of the trade marks, having been applied "objective, qualitative, non-discriminatory criteria proportionate to the luxury character of the products distributed" and therefore "confirms the regulatory and jurisprudential principles cited'.
In particular, limitations on brand and sign positioning, sales and advisory service, sales methods, use of advertising material, qualification of sales personnel and customer care were deemed appropriate.
The contracts provided for further restrictions on how sales could be made via internet, as only authorised dealers are allowed to carry out such activities. availability of at least three physical points of sale and only after specific authorisation by the licensee, who, once the admission procedure had been activated, still had to set up and operate the site in accordance with the contractually imposed standards (graphical quality of the site, quality space dedicated to competing luxury products of the same level, absence of products other than perfumery or beauty products).
The General Court held that the limitations imposed by Shiseido on its authorised retailers, including making the use of e-commerce conditional on the availability of at least three physical points of sale, did not appear to go beyond what was necessary, in view of the fact that (with reference to the requirement of physical points of sale) the same is admitted by the European Commission itself in paragraph 54 of the Guidelines of the Exemption Regulation.
2.3. Brand reputation bias.
The last element to be ascertained by the Court, which is necessary for the application for an injunction to be granted, is the existence of a concrete injury to the holder of the patent rights, since it is not sufficient to merely note the circumstance that the unauthorised seller does not comply with the standard imposed on authorised dealers.
Indeed, case law requires that the specific manner of sale must concretely damage the prestige of the trade marks in order for the proprietor to prevent the unauthorised reseller from further resale.[9]
For the purposes of the injury determination, Amazon was challenged:
- the absence of physical shops (relevant for the products in question, i.e. fragrances and cosmetics, also for possible allergy testing of products),
- the lack of a customer service concept similar to that provided in the real shop with the presentation of a capable person,
- the combination of the perfumes in question with other heterogeneous, non-luxury products (toilet paper, insecticides),
- the presence of advertising material of products of other brands, even of lower market segments, on the same Internet page where the perfumes in question are present.
Of particular interest is the fact that the General Court thus held that it was not so much the fact that other, even non-luxury products were sold within amazon that was decisive, but rather that in the same virtual space (web page), heterogeneous goods were presented, thus applying a well-established orientation of European case law to the 'virtual'.
In particular, the European Court of Justice had confirmed the possibility for entities outside the network to sell contractual products in multi-brand shops (in this case a hypermarket), provided that the sign of the retailer does not devalue its luxury image and the sale is made in a reserved department or space in order to enhance the qualities of the products.[10]
Applying this principle to the virtual means, in practice, having to ascertain not only that the good is sold in a 'proper' manner, reserving a virtual space appropriate to its allure luxury, but also that it is promoted and sold on a marketplace or e-commerce whose signage does not devalue its image.
3. Amazon is an 'active' hosting provider
An element of absolute importance is the fact that the Court in this order established the nature of Amazon as an 'information society service provider' within the meaning of the Directive No. 2000/31/EC (on this point see also the legal nature of online platforms: the Uber and Airbnb cases) and, in particular, recognising that subject's role as an 'active' hosting provider in relation to the activity of managing its own sales portal, even where the same is limited to the provision of intermediation services, i.e. it does not carry out active sales activities within the site, but as a provider of services to third parties using the platform to promote sales.[11]
The Court, in particular, established Amazon's role as an 'active' hosting provider,[12] and as such not subject to the liability exemptions outlined by Articles 14, 15 and 16 of Directive 2000/31/EC, in view of the fact that the platform (i) '(i)manages the storage and shipment of products", (ii) "operates a customer service for third-party sales listings, which is the only service the customer has to interface with the seller", (iii) "is also responsible for promotional activity through advertisements on third-party websites" and (iv) "allows consumers to infer the existence of a link between Amazon"and the companies producing the products sold on the platform.
Read also - The hosting contract and the hosting provider's liability profiles.
4. Some reflections
The judgement that is the subject of this brief commentary now aligns with a well-established jurisprudential orientation that, in fact, reflects the reality of commerce today, namely a steadily increasing thinning between in-store shopping experience and online.
One can understand how the online distribution of luxury and high-end products will be less and less able to disregard the careful and rigorous care of sales methods and adhere more and more to strict standards that in physical shops are now taken for granted, not only from a legal point of view, but (above all) from a cultural point of view.
Indeed, it would not even be conceivable that a designer shop could sell a high-fashion dress together with a packet of toilet paper, which still regularly happens online, without causing such a stir for the consumer, who is perhaps more focused on the price and not on the online shopping experience.
This element will increasingly have to be taken into account by manufacturers in their sales strategies
Such a ruling, read a few years from now, will probably raise eyebrows, as a user cannot even imagine that within the same (virtual) shop a high-end perfume could be sold in the same manner and on the same page, together with liquid plumber.
[1] On the subject, Pappalardo, The Competition Law of the European Union, p. 405 ff, 2018, UTET.
[2] On this point see ECJ, 12 December 1996, Galec v. EC Commission, para. 16, ECJ, 13 October 2011, Pierre Fabre Dermo-Cosmetique, para. 41, EU Guidelines Reg. 330/2010, para. 175.
[3] In this regard, reference is made to what the Court of Justice stated in the case Metro-Saba IJudgment of 25.10.1977, at para. 27 ".Any sales system based on the selection of distribution points inevitably implies - otherwise it would make no sense - the obligation for wholesalers who are part of the network to supply only authorised retailers.
[4] Orders of 19 November 2018 and 18 December 2018 of the Court of Milan. with comment by Alice Fratti
[5] Court of Justice case, Pierre Fabre C-439/09.
[6] Court of Milan, 3 July 2019, with comment by RIVA, E-commerce and selective distribution agreements: the case 'Sisley v. Amazon', in Industrial Law, 1/2010, WoltersKluver.
[7] ECJ, 12 December 1996, Groupement d'achat Eduard Leclerc v. Cmmission, para. 111; see also Vichy v. Commission, judgment.
[8] Court of Appeal Milan, 25 November 2019, no. 5682.
[9] Court of Justice, 4 November 1997, Dior v. Evora.
[10] ECJ, 12 December 1996, Groupement d'achat Eduard Leclerc v. Cmmission.
[11] On this point, see also Traina Chiarini, Amazon is an 'active' hosting provider, according to the Business Court of Milan.
[12] To be contrasted with the passive hosting provider who, according to recital 42 of Directive 31/2000/EC, is to be qualified as such any service provider who does not exercise 'authority or control' and has a merely 'technical, automatic and passive role' and who 'neither knows nor controls the information transmitted or stored'.
Agency agreement and waiver in peius of the AEC.
Although the commercial agent falls within the category of self-employed workers, the majority jurisprudence does not consider it necessary to exclude the applicability to this relationship of the discipline set forth in Article 2077 of the Civil Code, which establishes the non-derogation in pejus of collective agreements by the parties. Therefore, in the event of the application to the contract of the AEC, any conflict between the collective discipline and that resulting from the individual contract, the individual one will prevail only if more unfavourable to the agent. There are, however, differing legal and doctrinal orientations, which tend to favour the validity of an individual agreement that is worse than the common law collective discipline.
____________________________
In the Italian legal system, the figure of the agent operating as a natural person, for both historical and cultural reasons, is very peculiar, such as to have led doctrine and jurisprudence to frame it in the tertium genus of worker "parasubordinate".
On this point, it suffices to recall that institutes typical of salaried employment are applied to this figure, such as the notion of just cause under Article 2119 of the Civil Code, the discipline of waivers and settlements under Article 2113 of the Civil Code, as well as the devolution of disputes to the labour court expressly provided for by Article 409 of the Code of Civil Procedure.
To make matters even more 'hybrid', there is certainly the application of collective economic agreements to the agency contract, which occurs whenever:
- both parties (i.e. both the agent and the principal) are members of the contracting trade unions;
- there is an express reference to AEC in the agency agreement;
- there is a tacit reference, i.e. whether the continuous and constant application of the AEC rules by the contractors can be inferred.[1]
The question therefore arises as to whether, since collective agreements can be assimilated to collective labour agreements, it is correct or not to extend to the former the discipline of the latter, with particular reference to the rule in Article 2077, paragraph 2 of the Civil Code, which provides that:
"Differing clauses in individual contracts, whether pre-existing or subsequent to the collective agreement, shall be superseded by those of the collective agreement as of right, unless they contain special conditions that are more favourable to employees."
This rule prohibiting derogation in peius is designed and is compatible with the privatist principles of collective bargaining, which are aimed at subjecting the subjects represented by the stipulating associations to a common discipline and at removing the regulation of certain relationships from the excessive influence of employers.
In any event, while there is an effective applicability of certain labour law institutions to the discipline of the agent, the figure of the agent (especially as conceived by the European Directive 86/653) must certainly be included in the category of the self-employed, since he assumes the risk of the useful result of his activity, in contrast to the employee who transfers this risk, through the security of his salary, to his employer.
In essence, the collaboration performed by the agent is carried out under a regime of full autonomy, whereas that performed by the employee is carried out under a regime of hierarchical subordination, with the employer organising the employee's energies.[2]
On the basis of this assumption, i.e. the character of the staff member endowed with organisational autonomy and not subject to binding disciplinary authority, the - albeit long-standing - case law of the Court has held that the partial subjection of the staff member to the rules dictated for employment relationships
"does not entail any equivalence between the two contracts with the consequence that the principle of the nullity of modifications in pejus of contractual agreements valid for the employment contract is not applicable to the agency contract. "[3]
The Court held that it was compatible with the contractual autonomy of the parties and, therefore, not subject to the rules of Article 2077 of the Civil Code for an individual agreement to be worse than the collective rules applicable to the individual agency relationship, precisely because of the non-subordinate nature of that contract.
More recently, it has been held in case law that collective rules on agency agreements are binding on the assumption of implicit or explicit adherence,[4] the thesis that excludes: "the non-derogability of the AEC and the applicability of Art. 2077 of the Civil Code to the agency relationship as an external source. [5]
This thesis is once again based on the assumption that the assimilation of the agency relationship to the employment relationship is to be understood as limited only to certain specific institutions, such as the notion of just cause pursuant to Article 2119 of the Civil Code, while the difference in nature and discipline between the two relationships remains firm and clear.
It has also been rightly noted in doctrine that the non-derogation of common law AECs raises many doubts since it is not reflected in any provision of law. The only provision that deals with the non-derogation of collective agreements is in fact Article 2113 of the Civil Code on waivers and settlements which, although it also applies to 'para-subordinate' agents, does not provide for the nullity of any clauses of the individual contract contrary to the CSA, but only the possibility of challenging within a period of six months the waiver or settlement having as its object the collective rule.[6]
There is, however, a prevailing orientation of jurisprudence that deems, without going into too much detail on the regions, a contractual clause that differs from and worsens the regulation of AECs to be null and void, making specific reference to the regulation of Article 2077 of the Civil Code.[7]
[1] Cass. Civ. 1993 No. 1359, In this case, the Supreme Court held that the AEC was applicable to the agency contract, even though the principal was not a member of the trade union association and there was no express reference in the contract: instead, it recognised the existence of a consolidated company practice over time of the principal's compliance with the collective legislation.
[2] BALDI - VENEZIA, The Agency Contract, p. 33, 2020, Giuffrè.
[3] Cass. civ., 03/11/1980, no. 5860.
[4] Cass. Civ. 1999 no. 368.
[5] Court of Appeal Venice, 25.1.2011.
[6] TOFFOLETTO - SARACINI.
[7] Tribunale Torino 25.5.2021, Cass. Civ. 2004, no. 10774, Cass. Civ. 2000, no. 8133.
Termination of the sales concession contract and inventory management: rights and obligations of the parties.
Sales dealership agreements often contain an agreement on how to deal with the stock of goods purchased by the dealer during the term of the agreement; this regulation may take the form of an option for the franchisor to repurchase the goods at a certain price, or the former dealer may distribute these goods.
Other times, the parties do not provide for any contractual provision governing this case, and upon termination of the relationship, the problem arises as to whether or not the former dealer may resell the stock in inventory, or require the supplier to repurchase the goods.
In the following, these cases will be analysed, albeit briefly, in view of their relevance from both a technical and legal as well as a practical and commercial point of view.
1. Absence of a written agreement in the concession contract.
1.1. Right to resell products in stock.
In the absence of different contractual agreements, the case under analysis must be treated from two different aspects: under the principles of civil law, on the one hand, and those of intellectual property law, on the other.
Civilly the grantor may not prevent his dealer from reselling the goods purchased by the latter, unless the same have been sold subject to reservation of title and the dealer disposes of the contractual goods before becoming the owner: in this case, in addition to the breach of contract, the disposal will even constitute the offence of embezzlement (Art. 646 of the Criminal Code).[1]
From the point of view of intellectual property lawInstead, it is necessary to take up a principle that has already been addressed several times in this blogthat of thebrand exhaustionreferred to inart. 5 c.p.i.
Read also - Parallel sales and the principle of trade mark exhaustion.
According to this principle, once the owner of one or more industrial property rights places a good directly or with his consent on the market in the territory of the European Union, he loses the relevant rights.
The exclusivity is therefore limited to the first act of marketingwhereas no exclusivity can subsequently be claimed by the proprietor of the trade mark on the circulation of the product bearing the mark.
Since in a sales dealership agreement, the consent to the first placing on the market (i.e. the sale by the grantor to the dealer) stems from the contractual relationship between the parties, in the absence of any agreement to the contrary, the grantor may not oppose the resale of the contractual goods even once the relationship has ended.
It is stated in case law on the subject that:
"the entrepreneur, who has purchased goods with distinctive signs, is indeed entitled to market the product even after termination of the relationship because, according to the principle of exhaustion, the holder of an industrial property right cannot oppose the circulation of a product, to which that right relates, when that product has been placed on the market by the holder of that right or with his consent in the territory of the state or in the territory of other Member States of the European Union."[2]
The principle of exhaustion nevertheless knows a limitation: the second paragraph of Art. 5 of the IPC contains a safeguard rule that allows the trade mark proprietor to oppose the circulation of the product placed on the market with his consent and, therefore, "exhausted", if there are
"legitimate reasons for the proprietor to object to the further marketing of the products, in particular when their condition is changed or altered after they have been placed on the market".
Therefore, in the absence of 'legitimate reasons'[3]the supplier may not prevent the dealer from reselling inventories, let alone from using its trade mark, if it is used by the dealer for the sole purpose of advertising the availability of the product it intends to sell or lease and the advertising activity is not such as to create in the public the belief that the dealer is part of the licensor's authorised network, otherwise such conduct would constitute a confusing offence under Article 2598(1)(1) of the Civil Code on the subject of unfair competition.[4]
1.2. Right to have inventories repurchased.
In the absence of a contractual obligation, in order to understand whether the dealer may require the grantor to repurchase the goods remaining in stock, one must refer primarily to the principles of loyalty and good faith formerly Article 1375 of the Civil Code.
The clause of good faith in the performance of the contract operates as a criterion of reciprocity, requiring each party to the obligatory relationship to act in such a way as to preserve the interests of the other, and constitutes an autonomous legal duty incumbent on the parties to the contract, irrespective of the existence of specific contractual obligations or of what is expressly laid down by law.[5]
Since this is a very broad principle and certainly not easy to implement in practice, it is necessary to assess from time to time how it should be applied to the concrete case, on the basis of all those factors that may impact on the contractual balance: it will certainly be assessed differently if the concessionaire had been contractually obliged to maintain a stock in stock, as opposed to the case where the stocks are due to a failure to adhere to the rules of prudence, which should have advised the dealer to suspend or otherwise reduce purchases and dispose of medium warmth inventories in view of an upcoming report.[6]
A ruling by the Court of Milan is recorded,[7] which considered contrary to these principles the conduct of a supplier who prevented (contrary to the principle of exhaustion) the plaintiff from marketing the product it had supplied prior to withdrawal, without having cooperated in safeguarding the interest of the other party by making available - although not contractually provided for - the repurchase of the goods.
The Court therefore ordered the defendant to pay damages, quantified in the value of the goods remaining in stock.
There is also a further ruling, again by the Court of Milan,[8] relating to a licensing relationship, in which the court reached such a result with the aid of the instrument provided by Article 1340 of the Civil Code, according to which contractual usages or usage clauses are deemed to be included in the contract if it is not apparent that they were not intended by the parties.
The Court therefore held that the licensor was obliged to repurchase the goods sold, in addition to cooperation and conduct in good faith, on the basis of the fact that in the industry in which the parties operated it was customary for the licensor to purchase at least part of the unsold goods following the termination of the relationship.
2. Existence of an agreement between the grantor and the concessionaire.
2.1. Prohibition to resell stock.
A contractual clause that imposes a prohibition on the dealer to sell goods in stock following termination of the contractual relationship, without there being a commitment on the part of the grantor to repurchase such goods, is, in the opinion of the writer, of doubtful validity, both from a antitrustand civil law, for the reasons set out below.
In the field of antitrustArticle 5(b) of the Regulation 330/2010imposes limitations on the supplier's ability to require its buyer to engage in competitive activities after termination of the relationship. "The parties may not impose any direct or indirect obligation on the buyer, after the agreement has expired, not to manufacture, purchase, sell or resell certain goods or services, unless such obligation [...].:
- refers to goods or services in competition with the contract goods or services;
- is limited to the premises and land from which the purchaser has operated during the contractual period;
- is indispensable to protect the 'know-how' transferred from supplier to purchaser;
- the duration of this obligation is limited to one year. "
Since the requirements for the legitimacy of this obligation are cumulative, the rule does not normally apply to typical forms of sales concessions, which do not imply the need to protect know-how provided to retailers, but rather to the franchising,[9] with the consequence that this exemption can hardly be applied to the contractual case under analysis.
Moreover, the non-compete obligation is not part of the 'severe restrictions' (hardcore) governed by Article 4 of the Regulationbut of those that are simply not exempt, with the consequence that these limitations are only applied to contracts that have no less importancei.e. which do not appreciably restrict competition: this is the case whenever the market share held by each of the parties to the agreement exceeds 15% on the relevant markets affected by the agreement.[10]
If the dealership contract qualifies as a contract of minor importance, an agreement imposing a prohibition on the resale of the stored goods would benefit from the exemption and would (at least from a antitrust) lawful.
Mind you, this does not alter the fact that such a contractual agreement must in any case be subjected to the scrutiny of the principles of good faith and contractual fairness, so that it may be invalid if it is not adequately counterbalanced by - for example - an obligation on the part of the grantor to repurchase the goods in stock, in particular if the latter was contractually obliged to maintain a stock minimum in stock in the course of the report.[11]
2.2. The grantor's right to repurchase the goods.
A different reasoning must be made - again for the purpose of assessing its legality - in the case where the parties provide for a right of the grantor to repurchase the stock of the products, following the termination of the relationship.
To do so, it is first necessary to understand the legal nature of such an agreement, i.e. whether it should be framed as:
- preliminary contract formerly 1351 of the Civil Code, ancillary to the concession contract, i.e.
- purchase option agreement, formerly 1331 c.c.
The differences between these institutions are briefly examined below.
(a) Preliminary contract.
This is the case whenever in the contract both parties agree that upon termination of the relationship the products to stock will be bought back by the supplier at an agreed price.
Ex. The parties agree that at the end of the contract the dealer shall be obliged to resell to the licensor the entire remaining stock of products at a price equal to the invoice price net of VAT, with a discount of _____.
Such a contractual clause (which would indeed constitute a preliminary contract) is certainly valid, unless it is proved that the contract was null and void ab originee.g. for lack of consent of one of the parties, abuse of rights, etc.
(b) Call option covenant.
If, on the other hand, in the contract one party undertakes to hold firm to its own proposal and the other party (the beneficiary) is granted the right to make use of the option to accept the proposal or not, we fall into the different case of the option contract formerly Article 1331 of the Civil Code.
Ex. At the end of the contract, the grantor has the option to repurchase the stock at the price _______, to be notified within _____ of the termination of the contract.
Such an agreement must also tend to be considered valid; the only problem might be connected with the case where the option right is granted free of charge, i.e. without payment of a price (so-called premium).
Some (albeit minority) case law[12] holds that in such a case the option agreement would be null and void, since the right cannot be granted free of charge (e.g. a discount on the repurchase of goods). It should be noted, however, that the majority jurisprudence is in favour of the option being gratuitous: "Article 1331 of the Civil Code does not provide for the payment of any consideration and, therefore, the option may be offered for consideration or free of charge".[13]
[1] Torrente - Schlesinger, Handbook of Private Law, Giuffrè, § 377.
[2] Trib. Milan, 6.5.2015; in case law Court of Justice, 8.7.2010, Portakabin case.
[3] The following constitute 'legitimate reasons' for the non-application of the principle of trade mark exhaustion: (a) the modification or alteration of the condition of the goods, after they have been put on the market and (b) all those cases implying a serious and grave prejudice: the latter must be ascertained in concreto. On this point cf. Trib. Milan 17.3.2016.
[4] On this point Civil cassation 1998, no. 10416; Trib. Rome, 28.4.2004.
[5] Cass. Civ. 2014, no. 1179.
[6] On this point cf. Trib. Milan, 19.9.2014.
[9] Bortolotti, Distribution Contracts, Walters Kluver, 2016.
[10] Cf. De Minimis Communication 2014 of the EU Commissionin conjunction with the Commission Notice on Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty.
[11] On this point cf. Trib. Milan, 19.9.2014.
[12] See Appeal Milan 5.2.1997.
[13] Trib. Milan 3.10.2013
General conditions of contract in national and international online sales. What if the Vienna Convention applies?
The regulation of general terms and conditions in e-commerce involves not a few insignificant complexities.
If on the one hand it seems easy enough from a practical point of view to ensure that the general terms and conditions of sale are knowable by means of certain expedients, it is certainly more complex and less easy to ensure that vexatious clauses are expressly approved in writing in accordance with the dictates of the second paragraph of Art. 1341 of the Civil Code.
The notion of general terms and conditions of contract ("GTC") is included in our legal system in Art. 1341 of the Civil Code. General Terms and Conditions of Contract are to be understood as a set of contractual clauses, which are by their nature generalitiesas they are intended to apply to all contracts of a given series, and of one-sidednessas they are only prepared by a contractor, the so-called predisponent.
The formula general terms and conditions thus expresses the practical phenomenon of the prior and unilateral formulation of a uniform negotiating content intended to be used to regulate an indefinite series of relationships belonging to the predisposer.[1]
1) When are they valid?
Art. 1341 of the Civil Code lays down, in relation to the content of general terms and conditions, two different requirements of effectiveness. It provides, in para. (1), for the general requirement of effectiveness of knowledge or cognizability and, in para. (2), for the particular requirement of effectiveness of specific approval in writing in the case of so-called vexatious or so-called onerous clauses.
1.1. Knowability and knowledge.
Knowability consists in the possibility for the adherent to acquire knowledge through the use of ordinary diligence. Therefore, for all contracts that are concluded by means of uniform contractual terms and conditions prepared by the contracting party, the favourable principle dictated by the first paragraph of Art. 1341 of the Civil Code applies, according to which the actual content of such clauses is enforceable against the other contracting party even if the latter, without having knowledge of them, should nevertheless have known them by using ordinary diligence.[2]
This, however, presupposes an activity on the part of the predisposing party that is appropriate to permit knowledge, taking into account the diligence that is normal to expect of the average adherent with reference to the type of economic transaction performed.[3]
1.2. Written proof and unfair terms.
Para. (2) regulates the specific situation in which the terms themselves are vexatious and provides that they, in order to be binding on the other contracting party, must be approved particularly in writing, in the knowledge that an objectively onerous obligation is being undertaken.[4] The list of unfair terms (which is exhaustive and not subject to extensive interpretation)[5] is specifically concerned with:
- limitations of liability (Art. 1229);
- power to withdraw from the contract (Art. 1373) or to suspend its performance (Art. 1461), or impose forfeitures on the other contracting party (Art. 2965);
- limitations on the right to raise objections (Art. 1462);
- Restrictions on freedom of contract in relations with third parties (arts. 1379, 1566, 2596), tacit extension or renewal of the contract (arts. 1597, 1899), arbitration clauses (art. 808 of the Code of Civil Procedure) or exceptions to the jurisdiction of the courts (arts. 1370; 6, 28, 29, 30, 413 of the Code of Civil Procedure).
Since one of the characteristics of the GTC is their unilateral nature, the need for written approval of unfair terms is excluded whenever the conclusion of the contract was preceded by a negotiation which specifically addressed the terms that would otherwise require an independent signature, whereas the signature remains indispensable for terms with vexatious content to which the party has adhered without any discussion.[6]
As to the manner of approval, it is generally held that there is no need for a specific signature for each vexatious term and that the requirement of specific approval in writing is also fulfilled in the case of numerical references to terms provided that they are accompanied by an indication, albeit summary, of their content.[7]
2) 1341 of the Civil Code and electronic commerce.
Applying the principles summarised above to the electronic marketplace entails not a few insignificant complexities: in particular, the double signature of vexatious clauses in telematic contracts is a very complex problem that has been debated both in doctrine and in jurisprudence.
If in a sale onlineOn the one hand, it seems quite easily solvable from a practical point of view to ensure the cognizability under Art. 1341 para. 1 of the Civil Code of the general terms and conditions of the contract by means of certain expedients (e.g. the insertion of link on the site or within the order, which refer to the GTC), it is certainly more complex and less straightforward to ensure that vexatious clauses are expressly approved in writing in accordance with the dictates of the second paragraph of the aforementioned article.
The solution that is normally adopted on e-commerce is to set up two form separate, one of which is intended for the approval of the general terms and conditions as a whole (by ticking a box and accepting with a "click"so-called "click-wrapping") and one of the vexatious clauses, which are then separately accepted (albeit by means of a "click").
Jurisprudence has had several occasions to pronounce on whether acceptance by click complies with the formal requirements imposed by Art. 1341(2) of the Civil Code, recording for the time being quite opposing positions.
There is a ruling by the Justice of the Peace of Trapani stating that:
"checking a box by clicking cannot be equated with the double signature requirement of Art. 1341 of the Civil Code, since it cannot be equated with the signature of the contracting party who has not prepared the text of the agreement."[8]
This guidance echoed a somewhat less recent decision of the Court of Catanzaro in 2012,[9] in which the plaintiff had complained of the vexatious nature of the clause contained in the terms of use of the principal's (eBay's) website, which allowed the company to suspend or delete at any time, even without justification, theaccount with which the seller could use the platform.
The Court had upheld the application, finding the abusive nature of the clause and noting that eBay had not set up a valid double acceptance mechanism pursuant to Art. 1341(2) of the Civil Code, through specific approval of the adherent of the GTC by means of digital signaturesince only the latter would have guaranteed the actual acceptance of the provision and the identifiability of the subscriber.
In the writer's opinion, given that the text of Art. 1341(2) of the Civil Code does not require the specific signing of the unfair terms, but rather their approval, the digital signature should not be considered a necessary element to ensure the fulfilment of this requirement, but rather to overcome a different (and further) obstacle, i.e. relating to the proof of the traceability of the signing of an electronic contract to a well-identified person.[11]
To this end, given that such 'identification' can also be carried out in a more streamlined manner and more in line with the business needs of both parties, it could be considered that the validity of the acceptance of the general terms and conditions by click and their traceability to a particular party could be more 'strengthened' if this is collected, for instance, following a login with insertion of user name e password by the member.[12]
It should be noted, however, that more recently, in 2018, the Court of Naples, in a similar case (still concerning eBay's terms of use), instead adopted a very different orientation, considering it unnecessary to introduce the requirement of a digital signature to accept the vexatious clauses, since this solution would have led to:
"transforming all telematic contracts into binding form contracts as a matter of pretext, requiring for their conclusion the use of a sophisticated instrument, not yet massively widespread among the public, and thus effectively paralysing the development at national level of an entire sector of trade that is becoming increasingly important at planetary level".
Again in this sense, we read in a decision of the Justice of the Peace of Partanna,[10] which had held that the requirement of written form under Article 1341(2) of the Civil Code was sufficient through
"a double assent, by pressing the appropriate button: one of adhesion and the other of approval of the so-called vexatious clauses."
3) 1341 Civil Code and international trade
3.1. Waiver of Jurisdiction.
After having, albeit very briefly, analysed the main issues concerning the limits of the usability of the GTC in the context of e-commerce, we go on to examine the possibility of waiving jurisdiction in favour of the judicial authority of a Member State by simply inserting an extension clause in the general terms and conditions, to be submitted to the adherent for acceptance by a simple click.
Article 23 of the Regulation Brussels I bisprovides that the agreement conferring jurisdiction must be concluded:
- "In writing or orally with written confirmation,
- or in a form permitted by the practices established between the parties, or
- in international trade, in a form permitted by a usage which the parties knew or ought to have known [...].
- The written form includes any electronic communication that allows for a durable record of the clause conferring jurisdiction"
The European Court of Justice[13] was asked to answer whether the click-through procedure, by which a buyer has access to the general terms and conditions of sale appearing on an internet site by clicking on a hyperlink opening a window, fulfils the requirements of Article 23(2) of the Brussels I Regulation.
The case concerned a car dealer established in Germany who, after having purchased on the defendant's (a Belgian-based company's) website, sued the seller in the German court of Krefeld. The seller entered an appearance arguing that the German courts did not have jurisdiction, since Article 7 of the GTC contained a clause conferring jurisdiction in favour of the court in Leuven (Belgium).
The European Court of Justice confirmed the jurisdiction of the Leuven court, holding that the procedure of acceptance by clicking on the general terms and conditions of a contract of sale concluded electronically, which contain a clause derogating from jurisdiction, constitutes an acceptance in writing of those terms and conditions, since they are electronic communications that do not open automatically upon registration on the website, can be saved or printed before the conclusion of the contract and therefore constitutes an electronic communication within the meaning of Article 23(2) of the Regulation.
This issue was also recently submitted to the United Sections of the Supreme Court,[14] which have held that an extension of jurisdiction clause (pursuant to Article 23 of the Regulation) is valid even if it is contained in the general terms and conditions of a contract, expressly referred to in the purchase order signed by the customer and accessible from the web address referred to therein, and that prior to the conclusion of the contract, the text of those terms and conditions can be printed and saved.
The waiver of jurisdiction, therefore, does not require the specific written approval of the adherent, pursuant to Article 1341(2) of the Civil Code, since it does not fall within the vexatious clauses exhaustively listed therein. It should be noted that, according to a well-established jurisprudential orientation,[16] Article 1341 of the Civil Code dictates a criterion of jurisdiction and that this does not affect the different criteria of jurisdiction applicable to international disputes. The United Sections themselves[15] have recently pronounced themselves on this point, stating that:
"The requirement of written form, prescribed by Art. 23 of the Regulation [...], is fulfilled if the clause itself appears in the general terms and conditions of the contract, if the contractual document signed by both parties contains an express reference to the aforesaid general terms and conditions bearing that clause, without the need for a specific approval in writing pursuant to Art. 1341 of the Civil Code.
3.2. General Terms and Conditions and the Vienna Convention.
In the event that the general terms and conditions of the contract regulate international purchase and sale relations, the Vienna Convention (if any) is applicable,[17] the question arises whether or not the double signature requirement of Article 1341 of the Civil Code can be invoked.
Indeed, the Vienna Convention, like any other uniform contract law convention, does not regulate all questions that may arise in connection with the contracts it regulates; this is of no little importance if one considers that the questions that are not regulated will have to be resolved on the basis of the law applicable to the contractual relationship.[18]
On the contrary, all matters that are expressly regulated by the Convention will prevail over the rules of domestic law, which will be derogated from by it; in order to understand whether Art. 1341 of the Civil Code can be invoked in such a case, it is essential to understand whether or not the GTC are governed by such rules of uniform law.
According to more authoritative doctrine,[19] although the general terms and conditions of contract are not expressly regulated by the Vienna Convention, since in Part II thereof the "formation of the contract" is exhaustively regulated. it will be necessary to refer to the rules of the Vienna Convention in order to understand what formal requirements the GTC must comply with.
On the assumption that Article 11 of the Vienna Convention establishes the principle of the freedom of formpart of the doctrine[20] and case law[21] therefore held that in the event of the application of the Convention, the requirement under Article 1341 of the Civil Code that any vexatious clause drafted by one of the contracting parties be subject to specific written approval must be regarded as waived.
Following this principle and applying it to online sales, it can therefore be considered that, in the event of the application of the Vienna Convention, unfair terms included in general terms and conditions would not require specific approval, and could therefore also be accepted by 'click'; it would still be the duty of the originator (pursuant to Art. 9) to ensure that the adherent has been put in a position to become aware of them, by means of a 'proactive' attitude by virtue of a general obligation of good faith and commercial cooperation.[22]
[1] Bianca, Civil Law, Giuffrè, Third Edition, p. 340.
[2] Court Milan 18.6.2009.
[3] Bianca, The General Conditions of Contract, 1979, p. 2.
[4] Cass. civ. 2003, no. 1833.
[5] Cass. Civ. 2013, no. 14038.
[6] Cass. civ. 2020, no. 8268.
[7] Trib. Rimini, 4.4.2020; Cass. Civ. 2018, no. 17939.
[8] Giudice di pace Trapani, 14.10.2019, with note by Quarta La conclusione del contratto di albergo per via telematica: pagamento anticipato e revoca della prenotazione, Danno e responsabilità, 2020, 2; Giudice di pace Milano 28.01.2019, Tribunale di Catanzaro 30.4.2012, in Res. Civ. e prev., 2013, 2015 ff.
[9] Trib. Catanzaro 30.4.2012, in Contratti, 2013, 1, 41, with a note by V. Pandolfini, Contratto on line e clausole vessatorie: quale firma (elettronica)?
[10] Justice of the Peace Partanna 1.2.2002.
[11] The Court of Catanzaro itself argues that the contract is invalid because only the digital signature would have guaranteed the actual acceptance of the provision and the identifiability of the signatory.
[12] On this subject, see also Cerdonio Chiaramonte, Specific written approval of unfair contract terms, NGCC, No. 3, 2018.
[13] Court of Justice of the European Union, 21.5.2015, No. 322/14.
[14] Cass. Civ. Sec. Un. 2017, no. 21622.
[15] Cass. Civ. Sec. Un. 2020, no. 1871.
[16] On this point see Cass. Civ. Sec. Un. 1982, no. 6190, Cass. Civ. 2003, no. 17209, Cass. Civ. 2010, no. 14703.
[17] Article 1 of the Convention that it "shall apply to contracts of sale of goods between parties having their place of business in different States: a ) where those States are Contracting States; or b ) where the rules of private international law refer to the application of the law of a Contracting State."
[18] According to Italian case-law, issues relating to e.g. representation and prescription are not governed by the Convention (Trib. Padua 25.2.2004; Trib. Vigevano 12.7.2000).
[19] Ferrari, International Sale of Goods,
[20] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Terms and Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981).
[21] Trib. Rovereto 24.8.2006; Cass. Civ. 16.5.2007, no. 11226.
[22] On this subject, Ferrari, General Terms and Conditions in Contracts for the International Sale of Goods, Obbligazioni e contratti, 2007, 308.
Agency agreement and online sales: exclusive, non-competition and indirect commissions.
If a manufacturer chooses to sell online via its own e-commerce, it will certainly have to reckon with the reactions of its agents, likewise if the manufacturer sells to wholesalers or distributors who decide to put the purchased products online. Not to mention if this strategy is implemented by some agent who decides to start promoting sales with the help of the web.
This article will analyse what legal impacts online sales have on the 'traditional' sales network, examined from three points of view, that of the manufacturer, the third party and the agent.
1. Online sales by the manufacturer and impacts on sales agents.
Before analysing what are the legal repercussions in the event of a decision to put contractual products online, the following question should be answered: can the manufacturer sell in the areas where its agents operate?
To answer this question, one has to take a few steps back and understand how the principal may actually operate within the area granted to the exclusive agent.
- Read also: Area exclusivity in the agency contract.
Exclusivity is governed by Art. 1743 of the Civil Code, which prohibits the principal, unless otherwise agreed, from using the services of other agents within the territory. According to settled case law, this clause, which constitutes a natural element of the contract, ((Civil Cass. 2012 n. 16432; Civil Cass. 2002 n. 5920; Civil Cass. 1994 n. 2634; Civil Cass. 1992 n. 5083.)) does not only bind the principal not to appoint more than one agent within the same territory, but is also intended to protect the agent from any interference by the principal within the area, including the conclusion of business within the territory itself.((Cass. Civ. 2004 No. 14667.))
On the other hand, the regulation also provides that the agent is entitled to commissions even on business concluded by the principal directly with customers '.belonging to the reserved area or category or group of customers"(Art. 1748(2) of the Civil Code); this provision would seem to confer on the principal a 'free mandate' to sell directly within the territory, on the sole condition that he pays the agent the so-called indirect commissions.
Italian jurisprudence has arrived at a compromise that takes into account the opposing interests of the parties, as governed by the above-mentioned rules, holding that the freedom of the principal must be limited to the exercise of occasional sales within the territory, as it must be excluded that the principal may carry out systematic and organised sales there sales activities. ((One reads, for example, in a recent Supreme Court ruling that: "in matters of agency relationships, the principal may not operate, on a continuous basis, in the agent's area of competence but, pursuant to Article 1748(2) of the Civil Code, is only entitled to conclude, directly, individual deals, even if of significant size, the performance of which gives rise to the agent's right to receive so-called indirect commissions. It follows that, where the proponent's intervention is merely isolated, the right to payment of the commission is, in turn, episodic and not periodic in nature, and, as such, is subject to the ordinary limitation period under Art. 2946 of the Civil Code and not to the 'short' limitation period under Art. 2948(4) of the Civil Code. (Cass. Civ. 2008, no. 15069); see also Cass. Civ. 2009 no. 8948, Cass. Civ. 1993 no. 5591; on this subject cf. Bortolotti, Distribution Contracts, 2016, Walters Kluver.))
Following this orientation, if the contract does not expressly recognise the principal's right to make direct sales (even in a structured manner) within the exclusive territory, the principal who decides to set up a sales strategy through channels online subject itself to the risk of being challenged by its agents, for breach of exclusivity, especially if the trade via web generates a substantial amount of sales.((See Cass. Civ. 2009 no. 8948 where it was "ruled out the existence of just cause for the agent's termination without notice from the agency relationship on the sole basis of the principal's failure to pay the small commissions on only nine contracts concluded directly and of a marginal total amount."))
Very interesting is the cue promoted by a part of the doctrine, ((Baldi - Venezia, Giuffrè Editore, pg. 73 et seq.)) (which probably considers the orientation of the jurisprudence referred to above as too aleatory and not in line with the literary normative dictate of Art. 1748, para. 2 of the Civil Code) on the basis of which the principal should only be prohibited from carrying out an actual promotional activity, instead deeming lawful the answering of questions from customers who spontaneously address the principal, thus extending also to this hypothesis the distinction between active and passive sales of antitrust law.
2. Online sales within the exclusive agent's territory through third-party distributors.
A somewhat different problem is to understand when sales by third parties within the agent's territory may constitute a breach of exclusivity.
As analysed above, unless otherwise agreed, the exclusive agent is entitled to formerly Art. 1748(2) of the Civil Code to commissions also on all sales that the principal makes within its territory; it is therefore common ground that if the principal makes sales to a wholesaler based in the contract territory, the agent may claim the right to payment of indirect commissions. In order to understand whether the customer (legal entity) may be considered to be within the territory, it is appropriate to refer to a fairly old judgment of the Court of Justice, ((Judgment Kotogeorgas v Kartonpak of 12.12.1996, Case C-104/95.)) more recently confirmed by the Court of Cassation,((Cass. Civ. 2012 no. 5670.)) which clarified that any legal entity having its head office in the territory in which the agent enjoys exclusivity belongs to the zone.
It is less clear and obvious whether this third party, once it has purchased products from the principal, makes sales online directly to customers in the agent's reserved area, the agent may claim the right to commission from the principal.
Also responding to this question was a more recent ruling of the European Court of Justice:
"Article 7(2), first indent, of the Council Directive 86/653/EEC of 18 December 1986on the coordination of the laws of the Member States relating to self-employed commercial agents, must be interpreted as meaning that a commercial agent entrusted with a specific geographical area is not entitled to commission for transactions concluded by clients in that area with a third party without the direct or indirect intervention of the principal."It follows that there will only be a breach of exclusivity and the agent will only be entitled to an indirect commission if there has been direct or indirect intervention by the principal in sales made in the territory by third parties, ((Cass. civ. 2017 No. 2288.)) with the aim of de facto depriving the agent of business that the latter could have concluded.((See the principle established by the Court of Cassation sez. Lav. in judgment 2011 no. 11197.))
3. Online sales by commercial agents.
In contrast to distribution contracts, in agency contracts the principal may prevent the agent from carrying out online sales promotion activities (unless the agent, due to the manner in which he or she carries out his or her activities, is to be regarded as subject to antitrust law).
- Read also: Can a manufacturer prevent its distributors from selling online?
The question then arises, is the agent free to decide to start promoting online sales?
In fact, should an agent decide to do so, he or she will run afoul of what is the typical prerogative of the webi.e. that it is by its very nature visible everywhere and that any limitation aimed at preventing unjustified geographical blocks would even be contrary to European law.
- Read also: Geoblocking: what is it and when does it apply?
On the other hand, as already explained at the beginning of this article, the agency relationship provides as a natural element of the contract the obligation of exclusivity to which the parties are bound and which any breach entails contractual offences. In particular, if the agent makes out-of-area sales, it will be in breach of the exclusivity covenant vis-à-vis the principal, since in such a case it will not be able to claim any commission being reserved exclusively for the agent of the area where it made the sale.
If, on the other hand, the contract provides for such out-of-area sales, the exclusive agent where the sale was made may bring an action against the principal for breach of the agreements between them.
Placing these principles in the online market, the question that arises is whether the mere existence of a website where sales of contractual products are offered (which by its nature is also visible outside the agent's assigned area) should be considered as a sales promotion activity that infringes the exclusivity of other agents.
To date, there appear to be no case law precedents that have answered this question, and in order to find a (at least plausible) solution, it is necessary to go back over the general principles on the subject of agency, recalling the principles dictated by antitrust law, taking into account the peculiarities of the market online.
Based on the Orientations of the Commission, the mere existence of an Internet site must in principle be regarded as a form of passive selling. Indeed, it reads:
"If a customer visits the Internet site of a distributor and contacts him, and if that contact results in a sale, including actual delivery, this is considered a passive sale. The same applies if a customer decides to be informed (automatically) by the distributor and this results in a sale."((LGC No. 52.))
Otherwise, it must be considered an active sale:
"Online advertising specifically targeted at certain customers [...]. Banners showing a territorial link on third party websites [...] and, in general, efforts made to be found specifically in a certain territory or by a certain group of customers".((LGC No. 52.))
It would therefore be consistent with antitrust law and European competition law to hold that the agent's breach of exclusivity only arises in the case of 'active' sales promotion activities, since otherwise it would have to be held that the mere answering of questions from customers outside the area, who spontaneously approach the agent, would only result in the agent's commission not being recognised.
In view of what would in any case be the impact on the sales network of the establishment of an online distribution system, it is advisable to consider very carefully regulating contractual relations in a manner consistent and aligned with the actual distribution strategies to be implemented.