Contratto di agenzia Archivi - Page 2 of 6

But are online platforms commercial agents?

In theprevious article tried to go
outlining the legal nature of platforms online, retracing
the reasoning path taken by the Court of Justice in the recent
Uber sentences Spain[1], Uber France[2] and Airbnb Ireland[3].

From the study of this
decisions it is impossible to classify platforms online
all within the same legal category, each time having to
evaluate each individual reality, based on the services it offers: the Court
recognised that the Uberpop service, provided by the platform of the same name, should
be qualified as a transport service, while it excluded that the
intermediary service provided by Airbnb could be framed as a
real estate agency relationship, but rather as a 'service
of information societies".[4]

The Court arrived at these
conclusions by analysing in great detail the services of
intermediation that the two platforms concretely provide, starting from the
assumption that, in order to delineate the legal nature of such entities, it is
it is necessary to identify the''main element" that characterises them
through a detailed study of the services provided. In the Uber ruling
reads in fact that:

"the brokering service under discussion [must] be considered as an integral part of an overall service of which the main element was a transport service, and therefore did not qualify as an 'information society service'.[5]

It follows that,
regardless of the qualification given to the relationship by the parties, is
necessary to go from time to time to verify what is the actual
characterising factor of collaboration.

It can reasonably be said that the maxim enunciated by the Court (after all) does not depart too much from national principles on the interpretation of contracts under Art. 1362 et seq. of the Civil Code, according to which a legal transaction must be framed by taking into account what is the actual will of the contracting parties, giving greater weight to the concrete manner in which the relationship is conducted: the nomen juriswhile remaining an element of necessary evaluation,[6] does not constitute a constraint on the judge called upon to decide the concrete case, who remains free to reclassify the relationship by conferring on it the legal character that he considers to be the most correct.[7]

(Cf. on this point: difference between agent and employee, difference between agent and business intermediary, difference between agent and distribution contract).

It is clear, therefore, that if
it is to be understood whether the brokering activity performed by
a platform online can be framed as an agency relationship,
one must not only verify whether the parties have attributed to the relationship
aforementioned qualification, but also to investigate what their common intention was, going
to identify the main element characterising the activity of
brokerage.

The starting point for this interpretation is to determine what an agency contract is; the definition of agent given in Art. 1742 of the Civil Code certainly comes to our aid:

"With the agency contract, one party assumes the task on a permanent basis
to promote, on behalf of the other, against remuneration, the conclusion of
contracts in a given area."

To simplify, the basic elements of such a contract are:

the promotion of contracts (both goods and services);[8]
the stability of the assignment;
the onerousness of the contract;
autonomy.

In any event, one may go so far as to state that the most typical activity of all those listed above is certainly that of business promotion, to be understood as the work of (steadily) searching for and convincing the potential client, destined to lead in the event of success to the conclusion of a contract between client and principal.[9]

That being said, if agency activity were to be limited to sales promotion, understand whether the intermediation of a platform online can be brought under this contractual scheme would be almost straightforward. In any case, the issue becomes more complicated if one takes into account the fact that the promotion of the deal does not exhaust the tasks exercised by the agent, which normally include a number of preliminary or collateral activities, very often ancillary to the agency contract and functional to it.

The agent must first identify the potential customer, contact him/her and explain the typical characteristics of the products; he/she may be required to hold the principal's products in stock and subsequently deliver them to the buyer, participate in the advertising campaign, as well as be entrusted with the post-sales; he may also carry out technical product support, or be asked to organise and lead an underlying sales network.[10]

(Cf. Agent and/or Area Manager? A brief overview)

As if this were not enough, ancillary activities to the agency contract may also include verifying the correct display and presentation of products at the point of sale, as well as controlling the flow of purchases made there (so-called "sales"). sell out e sell in).[11] In line with this guideline, the Supreme Court has even found it compatible with the agency relationship to perform anancillary activity of "merchandising"namely

"a contract having as its object
object [the choice of modalities for] displaying products in spaces and
on the sales counters of a department store or shopping centre,
in order to make the products themselves more attractive to consumers. "[12]

In summary, case law considers compatible with the agency contract a whole series of complementary activities to the principal one of business promotion, provided (and with the limitation) that such services are not predominant and thus not such as to change the typical cause of the relationship.[13]

Applying the above principles to the electronic marketplace and more specifically to the world of platforms online, it may reasonably be argued that the intermediation activity carried out through such an intermediary may potentially fall within the contractual scheme of the agency contractnot only if the platform performs only a sales promotion activity, but also if it offers further ancillary services, provided that they do not prevail over the main activity.

This
approach, in the writer's opinion, would also be in line with the
case law of the Court of Justice referred to above, taking into account that
this, in ascertaining whether or not the Airbnb platform could be
framed as a 'real estate agent' explicitly took into account the fact
that the main element characterising brokering activities were
related additional services[14] which, although they constituted
"an integral part of a global service"[15]were not such as to
distort the characterising activity provided by Airbnb.

While it is considered that in principle a platform online can work as a commercial agent, it is certainly a very complex task to try to adapt legal principles and jurisprudential guidelines that have been developed over the years solely on 'traditional' agency relationships to this type of market. An attempt will be made below to give the reader some hints that may help in carrying out this interpretative process, going back to the typical and accessory activities of the agency contract referred to above and attempting to understand whether and how they may be adapted to the market onlinealbeit in the knowledge that this is only food for thought on a new and very complex subject.

a) Sales promotion, customer identification and product illustration.

There is no doubt that the identification of a customer within an area can be done through the use of electronic tools such as the SEO[16]product illustration can be rendered through the use of photos, films, descriptions, as well as of live chat prepared directly by the platform, either by personnel assigned to this task (internal or external to the platform), or by automatic response programmes that use algorithms to detect the most frequent questions from customers.

b) Participation in the advertising campaign.

Again, the advertising campaign can be utilised through the use of very accurate digital tools integrated with the platform: think of the best known tool, namely Google Adwordswhich makes it possible to identify in a very precise and detailed manner not only the type of user (and therefore potential customer) towards which an advertising campaign should be directed, but also delimiting the territorial area where to direct such promotions (a means to comply with any zone limits that may be imposed on the platform/agent by the principal)

(Cf. Area exclusivity in the agency contract).

c) Merchandising and sell in and sell out activities of online platforms.

It is certainly not unusual for a platform online can take maximum care of the correct display and presentation of products on its site, automatically suggesting certain products to customers who have already made purchases, or to potential customers on the basis of searches made by them on Google. In addition, the activity of controlling incoming and outgoing sales is very often used as an default from different platforms, which indicate to the user the availability of the products offered on the platform.

d) Storage activities.

This service is also often rendered by many platforms onlineplatform, as it allows companies using the platform to relieve themselves of managing a logistical activity that (particularly with regard to retail) requires a know-how highly developed, which they often do not possess, i.e. they do not have sufficient resources to manage it.

e) Remuneration or commission: commercial agents?

It is very common for a platform to be remunerated by the payment of a percentage of the amount of the completed transaction; this element may also be considered as an indication of a relationship within the scheme of agency, since such remuneration may be framed as a commission on the conclusion of the transaction (pursuant to Art. 1748 of the Civil Code).

(Cf. The agent's right to commission).

It is clear that only a few elements characterising the agency relationship have been briefly developed above, and other equally (if not even more) important points of this type of contract have not been analysed (e.g. the relationship of interdependence between platform and producer, representation, possible social security repercussions, etc.), since this would certainly require a more in-depth analysis. It should be noted, however, that the purpose of this article was certainly not to conduct a comprehensive analysis of this issue, but merely to draw attention to a subject that is as important as it is topical.

In light of the above, not only can it not be excluded that platforms online can carry out the activity of commercial agents, but it is likely that already some platform online is in fact carrying out this activity, without having been classified as such.

In any case, considering the potential of the network and the services that can be rendered through this medium, perhaps we should start thinking that the electronic marketplace should not a priori be considered an 'enemy' tool to the agency relationshipbut rather a means of expanding and enhancing the commercial capabilities of agents and companies. In all likelihood, this model should be increasingly encouraged and possibly integrated within the sales brokerage strategies of the distribution networks of national companies.

[1] Judgment of 20 December 2017, Associación Profesional Elite Taxi vs. Uber Systems
SpainSL.

[2] Judgment of 10 April 2018, Uber France
s.a.s.

[3] Judgment of 19.12.2019 Airbnb
Ireland UC vs. Association pour un hébergemen et un tourisme professionnels.

[4] if you search
within European legislation, the only definition we are given is
that of "online brokerage"referred to in Article 2 of Regulation 2019/1150 [6]This standard qualifies
such activity as that performed by the "company services
information', pursuant to Article 1(1)(b) of the directive 2015/1535 [7]in turn taken up
by Article 2(a) of the Directive 2000/31 [8] on trade
electronic.

[5] Uber Judgment No. 40.

[6] Cass. civ. Sec.
Labour Ord., 2018, no. 18262.

[7] Among many, cf.
Milan Labour Court, 26 October 2017.

[8] Interesting
consider that the directive
86/653 on the coordination of Member States concerning the
agency, only covers agents promoting sales contracts
of goods, whereas our law covers the brokering of any
contract, including the provision of services. The Court of Justice Poseidon
Chartering,Judgment 16.3.2006However, it recognised the
possibility for member states to include the
agency contracts also the provision of services. On this point cf.
Bortolotti, Contracts
of distribution, p. 106, 2016, Wolters Kluwer.

[9] Bortolotti, p. 106,
op. cit.

[10] On the subject of activities
ancillary to the agency contract, cf. Venezia, Il contratto di agenzia, p.
600, 2015, Giuffrè Editore.

[11] Bortolotti,
p. 106, op. cit.

[12] Cass. civ. Sec.
labour, 2004, no. 6896.

[13] On this point Cass. Civ.
2006, no. 1308, Bortolotti, op. cit., p. 118 et seq.

[14] I
services taken into account are those referred to in paragraph 19 of the judgment
i.e. 'In addition to the service of putting landlords and
lessees via its electronic platform of centralised
offers, Airbnb Ireland offers hosts a number of other
services, such as a scheme defining the content of their offer, in
option, a photography service, likewise as an option, insurance for
liability as well as a guarantee for damages up to an amount of
to EUR 800 000. In addition, it provides them with a service
optional to estimate the price of their rental in the light of the averages of
market derived from said platform. [...] Airbnb Payments UK holds the
funds on behalf of the lessor after which, 24 hours after the lessee's entry
in the accommodation, it transmits them to the landlord by bank transfer, thus enabling the
lessee to have the certainty of the existence of the asset and to the lessor the
payment guarantee. Finally, Airbnb Ireland has set up a system
by which the lessor and the lessee can make a judgement
by means of a vote ranging from zero to five stars, a vote that can be consulted on the
electronic platform in question.'

[15]
Airbnb Ireland Judgment, No. 54.

[16] SEO stands for Search
Engine Optimisationor "search engine optimisation".
This term is used to refer to all work and
implementations necessary for a website to have the structure and
content that is easy for search engines to index.

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cessione del contratto di agenzia e trasferimento di azienda

Consequences in the event of the transfer of the agency contract or company transfer.

What are the consequences of the transfer of an agency contract? If the principal decides to make a business transfer, can the agent terminate the contract?

The legal institution of assignment of the contract is governed by arts. 1406 et seq. of the Civil Code. In brief, an assignment of a contract occurs when a party to a performance relationship (the assignor) enters into a new contract (assignment) with a third party (the assignee), whereby the assignor agrees to transfer to the assignee the original contract or, to be more correct, all the assets and liabilities arising from the assigned contract. The assignment of the contract is, therefore, a trilateral transaction, which is perfected only (pursuant to Art. 1406 of the Civil Code) with the consent of all parties: original contracting parties (assignor and assignee) and assignee.[1]

1. Assignment of the agency contract

The agency agreement, of course, is also subject to the general principles on contracts briefly referred to above. It follows that for the assignment of an agency contract to be valid, it must be communicated to and accepted by the assignee.[2]

With reference to the form of the contract of assignment, the silence of the legislature leaves a problem open; the jurisprudence is however constant in resolving it, affirming that the same forms prescribed for the contract of assignment must be observed for the contract being transferred, given that the assignment brings about a real subjective modification of the obligatory relationship.[3] By virtue of this principle, the assignment of the agency contract will also be subject to the written form ad probationem request pursuant to Article 1742(2) of the Civil Code.

In the event that it is the agent who transfers the contractual relationship, it is
essential to emphasise that the right
of the same to receive severance pay formerly Article 1751
c.c.. The second paragraph of that article provides that:

"L'allowance not
is due when pursuant to an agreement with the principal, the agent yields
to a third party the rights and obligations who has by virtue of a contract
agency.'

This provision is based on the fact that the new agent succeeds to the overall legal position of the original agent, i.e. to all active and passive relationships arising from the assigned contract, among which is certainly included the right to severance pay.[4]

2. Agency contract and business transfer

Another very interesting topic, also related to the issue
of the assignment of contracts, is the case of the succession of the
report of agency following purchase of company.

This issue is governed by Article 2558 of the Civil Code.[5] which provides as a natural effect of the transfer of the company, the succession of the purchaser in all contractual relationships entered into for the operation of the company that do not have a personal character;[6] It is therefore a true and proper automatic transfer of the obligatory relationship, which is not subject to the consent of the transferred party, as provided for in the case of the assignment of the contract. With this provision, the legislator intended to ensure the preservation of the economic functionality of the business unit that has been transferred and, therefore, to protect the interests of the acquiring party.

It is important to emphasise that the parties (seller and buyer) may still derogate this provision and avoid the purchaser's consequent sub-entry into certain contractual relationships of the transferor, provided that the contractual relationship(s) that they intend to exclude from transfer do not have "personal character'. (cf. Civil Cassation No. 3312 of 2001).

The doctrine[7] tends to hold that the agency relationship should not be excluded a priori from contracts intuitu personaegiven the absolute heterogeneity of the category of commercial agents, which can take the form of both corporations and natural persons; contrary to majority case law[8] excludes that this contractual figure can be included among relationships of a personal nature, asserting that:

"the agency contract is not of a personal naturebut constitutes a typical contract pertaining to the operation of the business and the organisation of the business structure, so that in the event of a transfer of the business it automatically continues with the transferee unless the parties have agreed otherwise."[9]

The fact that the agency contract is attributed the nature '.staff" means that it is impossible to apply to the same the discipline of Article 2112 of the Civil Code.,[10] which gives employment relationships greater protection in the event of transactions involving the transfer of a company.

Firstly, formerly Article 2112 of the Civil Code, employment relationships automatically continue in the hands of the transferee and (unlike the discipline under Article 2558 of the Civil Code) this provision is mandatory by the parties.

Secondly, Article 2112 of the Civil Code gives the employee the right to resign within three months of taking over the business if there has been a substantial change in working conditions; otherwise, Article 2558 of the Civil Code provides for the possibility of terminate the relationship within three months of being informed of the transferonly if there is a just cause:

"the agent does not enjoy a freedom of
absolute termination, but rather conditional on the existence of a just cause."[11]

In order to understand the extent to which the agent is entitled to terminate the contract if the principal sells the business, a 2007 judgment comes to our aid, which expressed the following principle:

"the agent is entitled
to withdraw from the contract for just cause in the event that for reasons
extrinsic to the contract, not directly inherent in it, the substitution
of the assignee to the assignor as counterparty to the contractual relationship realises
a situation in view of which would have refused to contract if
had known her in time. "

To give a practical example, the following may be invoked as a cause for termination of the agency relationshipinsufficient security of financial strength of the buyerwhich does not guarantee to the third party a regular performance of the obligations arising from the continuation of the term contract.[12]

3. Debts prior to the transfer of the business

In the event of a transfer of the principal's business, the purchaser's succession in the existing relationship with the agent, does not imply an automatic cumulative assumption of pre-sale debts (e.g. unpaid commissions). The fate of the debts relating to the transferred business is governed by Art. 2560 of the Civil Code, according to which the transferor is not discharged if the debts predate the transfer (para. 1) and the same are apparent from the compulsory account books (para. 2).

The following is an excerpt from a 2017 judgment of the Court that was questioned on this issue:

"The only (alleged)
transmission of accounting documents relating to the agency contract
(transferred to the successor company pursuant to Article 2558 of the Civil Code) is certainly not equivalent to
also mean that the condition expressly required by Art.
2560(2) i.e. the entry of debts in the books of account
obligatory, so that the joint and several obligation ancillary to
borne by the purchaser of the transferred business.

Therefore, anyone wishing to assert the corresponding claims against the purchaser of the business has the burden of proof among the constituent elements of one's right also called inscription.[13]

[1] For a
overview of the institution see TORRENTE AND SCHLESINGER, Handbook of Law
private, GIUFFRÈ EDITORE.

[2] On
Point cf. Court Reggio Calabria, 15.1.2003, which ruled that "for the purposes of
of the assignment of the agency contract, it is necessary
the consent of the assigned contractor. "

[3] Cass. Civ. 2001 no. 10498; Cass.
Civ. 1993 No. 12163.

[4] Cf.
VENEZIA, Il contratto di agenzia, p. 462 et seq., 2015, Giuffrè Editore.

[5] Art.
2558 c.c. states "unless otherwise agreed, the purchaser of the business
succeeds to the contracts concluded for the operation of the holding itself that do not
have a personal character.

[6] Cf. on
point Cass. civ. Sec. II,
19/06/1996, n. 5636

[7] Cf. VENEZIA, The Agency Contract, p. 462 et seq., 2015, Giuffrè Editore; TRADATI, Il contratto di agenzia nel trasferimento d'azienda, in Agenti & Rappresentanti 2003, no. 4, p. 14 ff.

[8] Cass.
Civ. 2017 no. 15956, Court of Perugia 17.5.2011 Cass. Civ. 2004 no. 21678,
Trib. Reggio Emilia 8.2.2002. Contra for the personality of the
agency, with the consequent need for consent for its transfer Trib.
Reggio Calabria 15.1.2003.

[9] Trib. Di
Reggio Emilia 8.2.2002.

[10] Cass. Civ. 2004 no. 21678, Cass.
Civ. 2000 no. 6351.

[11]
Court of Perugia 17.5.2011.

[12] Cass. Civ. 2007 no. 21445, with note by SANGIOVANNI, Obbligazioni e contratti, no. 5, 2008.

[13] Cass.
Civ. 2017 No. 15956.

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diritto alla provvigione e contratti di lunga durata

Agent's right to commission on long-term contracts.

If an agent procures long-term contracts, is he entitled to commission if the contracts continue after the agency relationship is terminated?

Where an agent procures long-term contracts, such as long-term supply contracts or subcontracts, the question arises as to whether or not the agent is entitled to commission on the deliveries made in performance of the contract procured following a possible termination of the agency relationship.

To answer this question, it is necessary to take a brief step back and understand in detail when the agent's right to commission arises (on this point see also Agent's commissions for business concluded by the principal after termination of the relationship). Article 1748(3) of the Civil Code provides on this point that:

"The agent is entitled to commission on business concluded after the date of termination of the contract if the proposal was received to the principal or agent before or business is concluded within a reasonable time from the date of termination of the contract and the conclusion is from mainly traceable to his activityIn such cases the commission is due only to the previous agent, unless specific circumstances show that it is equitable to allocate the commission among the intervening agents."

This approach[1] is intended to prevent the principal from running the risk of paying a double commission: one to the outgoing and one to the incoming agent.[2] In the event of termination of the relationship, therefore, the agent will be entitled to the commission:

if the proposal was received on antecedent upon termination of the relationship;
if the deal is concluded within a reasonable term from the date of termination of the contract and the conclusion is due to mainly to theactivities of the agent.

While the first hypothesis does not give rise to any particular problems of interpretation, the second, on the other hand, may give rise to several doubts, mainly related to the interpretation of the concept of 'prevalence' and of 'reasonableness[3]".

An interpretative aid can be derived from Art. 6, last paragraph, AEC 30.7.2014[4] (cf. when applying ERM e how the AEC Industry 2014 severance payment is calculated), which imposes an obligation on the agent to report to the principal in detail on negotiations undertaken and not concluded at the time of termination of the relationship; this provision also provides that if, within six months from the date of termination of the relationship, some of those negotiations are successful, the agent will be entitled to the relevant commissions (cf. The agent's obligation to inform the principal).

On the basis of the foregoing, where the agent in the course of the relationship promotes term contracts, the entitlement to commission on deliveries made in performance of the contract procured after the termination of the relationship depends essentially on the nature of the term contract.

In principle, in the event that the term contract is a a supply contract, a subcontracting contract, or a sales contract with divided deliveries, it can be stated that (unless otherwise agreed)[5]the agent is entitled to commission on all deliveries made even after termination of the agency contract, since these are in fact acts of performance of a contract concluded during the course of the relationship.

Conversely, where the contract promoted is a framework contractwhere each supply is to be the subject of a further agreement (order - acceptance), in which case the individual supplies are to be regarded as independent sales contracts,[6] even if concluded in the context of the framework contract, with the consequence that such subsequent sales contracts will not give rise to an entitlement to commission (unless the agent can prove that such business is attributable to its promotion activity and was concluded within a reasonable time).

Continuing with the reasoning, if, on the other hand, the term relationship is signed by the principal following the termination of the relationshipIn order to understand whether the agent may be entitled to commission, it will not be sufficient to ascertain the nature of the relationship of duration, but also to prove that the conclusion of the transaction is attributable to the agent's promotional activity.

A very interesting case is recalled below[7]which was decided by a series of three judgments of the Court of GrossetoA case in point was the following: an agent, following burdensome negotiations lasting several months, had procured for the principal (a company operating in the frozen food sector) a deal with a chain of supermarkets for the indefinite supply of frozen and pre-packaged ready meals. The administration contract was concluded a few months after the termination of the agency relationship.

The agent sued the principal for payment of commissions on supplies made in performance of the supply contract. By judgment No. 52/2012, the Court of Grosseto upheld the agent's claims, holding that:

"the administration contract was formally concluded [...]. just over two months after the termination of the agency contract [...], a term that must be considered, due to its objective brevity, absolutely reasonable.

Although the Court had found that the agent was entitled to commissions, it rejected the plaintiff's claim seeking an order that the principal pay them

"until the end of the administration contract [...] as this would be a pronouncement of sentence 'in the future' related, moreover, to a term that was not identified by the parties in the administration contract, since the same contract was concluded for an indefinite period."

The agent, a few years after the delivery of the first judgement, brought a further action, in which it sought an order that the principal be ordered to pay commissions on supplies made after the expert valuation referred to in the first judgement. The agent based its claim on the principle of Article 2909 of the Civil Code.according to which the finding contained in the final judgment shall be conclusive for all purposes between the parties. The Court again condemned the principal, stating that

"the right to obtain the payment of the commissions that will gradually accrue in relation to the prolonged performance of the supply contract, is unquestionable and has already been ascertained in the irrevocable ruling issued by this Office with the consequent application of the revocatory effect provided for by Article 2909 (on this point, among others, Court of Cass. Sez. Lav. 2001 no. 4304).

Following this ruling, in order to avoid the payment of commissions on future business, the principal proceeded to effectively giving up the business to a company of the same group, also active in the frozen food sector. The agent then appealed again to the Court of Grosseto, arguing that the assignment of the duration contract pursuant to Article 1406 of the Civil Code entailed the transferee's obligation to pay commissions. The Court of Grosseto[8]again supported the plaintiff's argument, stating that:

"since the characteristic feature of the assignment of the contract under Art. 1406 of the Civil Code is that it has as its object the transmission of a unitary set of active and passive legal situations resulting from each party to the contract [...], the transferee shall be obliged to pay to the plaintiff commissions - in the same amount as agreed in the agency contract - on the supplies of frozen food products made to X srl."

* * *

Lastly, it should also be emphasised that the signing of term contracts can be used as a determinant for prove that the conditions required by Article 1751 of the Civil Code are fulfilled.for the agent's right to receive severance pay (cf. Agent's severance pay. How is it calculated if AEC does not apply?). We read in an interesting Supreme Court ruling that:

"The termination indemnity compensates the agent for the asset increase that its activity brings to the principal by developing the goodwill of the business. It follows that this condition must be deemed to exist, and the indemnity is therefore due, where the contracts concluded by the agent are contracts of duration, since the development of goodwill and the continuation of benefits to the principal, even after the termination of the agency relationship, are in re ipsa'..[9]

______________________________

[1] Article reformed by Legislative Decree No. 65/1999, by which the legislature transposed the principles of European Directive No. 86/653 and, in particular, Article 8, which provides as follows: "For a commercial transaction concluded after the termination of the agency contract, the commercial agent shall be entitled to commission; (a) if the transaction is mainly due to the result of the work performed by him during the agency contract and if the transaction is concluded within a reasonable period after the termination of the agency contract, or (b) if, in accordance with the conditions set out in Article 7, the order placed by the third party was received by the principal or the commercial agent before the termination of the agency contract. "

[2]Cf. Court of Rimini, 22.9.2004, No. 238, which excluded the agent's right to commissions in the event of extensions of supply offers, given the absence of the former agent's preponderant promotional intervention. On this point see VENEZIA, Il contratto di agenzia, pg. 281, 2015, CEDAM.

[3] Jurisprudence has also considered a term of six months to be reasonable (Court of Cassation Civ. 9.2.2006) and in some cases, such term has even been extended to two years (see Court of Cassation Civ. 16.1.2013 in which the Court held that the two-year term for loyalty cards sold thanks to the agent's promotional activity was reasonable, thus considering fuel sales made after the termination of the relationship attributable to the agent's performance.

[4] Art. 6, last paragraph AEC 2014 Industry: "The agent or representative is entitled to commission on business proposed and concluded even after termination of the contract, if the conclusion is primarily the result of the activity performed by the agent or representative and takes place within a reasonable time after termination of the relationship. To this end, upon termination of the relationship, the agent or representative shall report to the principal in detail on the business negotiations undertaken, but not concluded, due to the termination of the agency agreement.

If, within a period of six months from the date of termination of the relationship, any such negotiations are successful, the agent shall be entitled to the relevant commission, as regulated above. Once that period has elapsed, the conclusion of any order, whether or not included in the agent's report, shall no longer be considered a consequence of the agent's activity and no commission shall be paid. This is without prejudice, however, to any agreements between the parties providing for a different time limit or for the distribution of the commission among the agents who have been present in the area and who have intervened in the promotion and conclusion of the transaction. "

[5] Art. 1748 para. 3 of the Civil Code, on commissions due for business concluded after termination of the contract, is entirely derogable: in favour Saracini-Toffoletto, Il contratto di agenzia. Commentario, 2014, GIUFFRÈ and Bortolotti, op. cit., p. 276; contrary, Trioni, who holds that this rule is not mandatory, given that the third paragraph of Art. 1748 cc, unlike the second and fourth, does not expressly provide for the salvation of contrary agreements.

[6] See on this point BORTOLOTTI, Concessione di Vendita, Franchising e altri contratti di distribuzione, p. 8, 2007, CEDAM.

[7] For more details see Giulia Cecconi, Le provigioni sui contratti di durata, in Agents and sales representatives, 1/2019, PUBLISHING AGE.

[8] Court of Grosseto, Judgment No. 269 of 2018.

[9] Cass. Civ. sez. lav. no. 24776 of 2013.

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Agent's severance pay. How is it calculated if AEC does not apply?

In cases where no Collective Bargaining Agreements apply to the agency relationship, understanding whether (and how much) severance pay is due to the agent is not at all easy.

In contrast to AECs, which provide for a precise calculation allowing the parties to quantify the severance payment, the Civil Code only provides a ceiling for the level of indemnity, without giving precise guidelines on the method of calculation

Severance pay was introduced at European level by the Directive 86/653EECthen transposed into our legal system most recently with the reform of Legislative Decree 65/1999, which amended the current text of Article 1751 of the Civil Code, which provides as follows:

"Upon termination of the relationship, the principal is obliged to pay the agent an indemnity if the following conditions are met:

The agent has procured new customers to the principal or has appreciably developed business with existing customers;
The principal still receives substantial advantages arising from business with such customers;
The payment of this allowance is fairtaking into account all the circumstances of the case, in particular the commissions that the agent loses and that result from business with such customers."

The judge must therefore, in the first analysis, find on the basis of the preliminary findings, whether the agent has increased the agent's clientele and/or business and, therefore, determine what amount should be owed to the agent, judging according to equity.

In cases where no Collective Bargaining Agreements apply to the agency relationship, understanding whether (and how much) severance pay is due to the agent is not at all easy.

Contrary to the AEC, which provide for a precise calculation that allows the parties to quantify the severance payment, the Civil Code only provides for a ceiling for the level of indemnity, without providing precise guidelines on the method of calculation

The following is a brief analysis of the criteria set out in the Civil Code.

1. The agent's contribution of customers.

The termination indemnity pursuant to Article 1751 of the Civil Code is undoubtedly intended to reward the principal's activity of promoting and developing customers. For this reason, the following must be considered excluded from the scope of applicability of this rulerecruitment and coordination of agentssince the latter, although relevant and very important from an organisational point of view, is only instrumental and ancillary in nature with respect to customer enhancement.[1]

Following this reasoning, not even the mere increase in turnover by the agent can be considered sufficient to prove the acquisition of new customers or the substantial development of those already existing at the beginning of the relationship:[2] it is not sufficient for the agent to prove (cf. Burden of proof in the agency contract) the increase of its commissions over the years, if it also does not diligently indicate the new customers it has brought in. This is stated in case law:

"the request for payment of the indemnity pursuant to Article 1751 of the Civil Code cannot be granted in the event that the applicant generically acknowledge on appeal of the recurrence of the relevant prerequisites, however failing to deduct precisely the volume of business handled for each individual customeras well as to specify the business concluded, the total value of the contracts, any increase over the business concluded with the same client in the preceding year, omitting altogether to indicate which clients he personally took care of."[3]

And again:

"The agent acting pursuant to Art. 1751 of the Civil Code must first prove that he has brought new customers to the principal, or at least that he has increased the turnover of customers who, prior to the commencement of the agency relationship, were already doing business with the principal."[4]

As for the definition of 'new customer", it should be recalled that in 2016 the European Court of Justice,[5] questioned whether it was possible to recognise as such, legal entities which, prior to the granting of the agency mandate, had already established business relations with the principal, but for products different from those covered by the agency contract. In the present case, the agent had received a mandate to sell spectacle frames of different brands from those that had already been marketed by the principal; the Court was therefore asked whether the sale of such new products to existing customers could fall within the civil law definition[6] of 'new client'. The Court stated that;

"are to be regarded as new customers within the meaning of that provision, even though they already had business relations with the principal with respect to other goods, if the sale of the first goods by the agent has required to enter into specific business relationshipswhich it is for the referring court to ascertain."

2. Advantages for the principal arising from the agent's activity.

The second condition laid down in Article 1751 of the Civil Code is that "the principal still receives substantial benefits from doing business with such customers." When analysing this condition, one must certainly understand to which time period reference must be made to verify the existence or non-existence of advantages. According to the best doctrine[7] the wording of the law is quite clear and refers to the situation existing at the time of the termination of the relationship; case law, on the contrary, is not unambiguous on this point, and there is an opposite orientation, which deems it necessary to verify whether the advantages subsist and continue also in subsequent years and, in this sense, excludes the indemnity if the agent is not able to prove judicially the 'retention' of customers even after the termination of the relationship.[8]

Certainly, the agent cannot be negatively affected by the principal's personal choice to opt for transferring the company to others (for a price undoubtedly determined not only by the trade mark, but also by the goodwill, essentially consisting of the customer portfolio), unless, of course, it is established that the increase in customers was due to factors external to the agent.[9]

On the other hand, the condition must be deemed to be fulfilled if the contracts concluded by the agent are contracts of durationas the development of goodwill and the benefits to the principal, even after termination of the relationship, are in re ipsa.[10]

3. The determination of severance pay in equity.

Once the existence of the first two requirements has been ascertained, the judge will have to quantify the allowance in equity. As mentioned above, for the purposes of determining the quantumthe judge is bound to verify compliance with the requirement of equity prescribed by Art. 1751 of the Civil Code, taking into account all the circumstances of the case and in particular the commissions that the agent loses and that result from business with those customers.

It is interesting to note that, while the law clearly identifies the requirements for the agent to be granted the indemnity, for the quantification in equity, the normative reference is not exhaustive and concerns all "the circumstances of the case', identifying, by way of example only, the reference to commissions that the agent loses and that result from business with customers.[11] In this regard, case law holds that the judge must:

"have regard to all those elements that are suitable for an adequate personalisation of the quantum due to the agent"[12] e "may or may not be considered 'fair'in the sense of also compensating for the special merit of the agent emerging from the [emerging] factual circumstances."[13]

"If it does not consider it fair, in the absence of a specific regulation, it must award the agent the differential necessary to bring it back to fairness. "[14]

It is clear that equity is a principle that is difficult to apply in practice. It follows that the non-application of the AEC to the relationship certainly entails greater uncertainty as to the quantification of the severance payment, since this is ultimately left to the sensitivity of the individual judge.

It is also important to recall that the one referred to in Article 1751 of the Civil Code is a typical case of judicial equity and as such can only be criticised in the court of legitimacy from the point of view of the logic and congruity of the reasoningbut not in its amount.[15]

4. Severance pay calculated on the basis of the criteria set by the Commission.

From the above analysis, it appears that the approach of the European directive, which only provides a ceiling for the level of indemnity, without providing precise guidelines as to the method of calculation, has and continues to create great uncertainty. It is clear, therefore, that a clear and precise method, perhaps developed by national jurisprudence, would lead to greater legal certainty, with benefits for both contracting parties.

This issue was also encountered by the same European Commission in its report of 23/7/1996which, aware of this regulatory limitation, prepared a report aimed on the one hand at analysing how European case law has approached this interpretative issue and on the other hand at providing a solution to the member states.

A solution would have been found in the German model (and in particular §89b of the HGB from which the legislation was inspired), taking into account the fact that since 1953 it has provided for the payment of a surplus value allowance, which has given rise to extensive case law regarding the calculation of the latter.

The Commission report goes into detail to analyse the calculation model developed by German case law, to which reference is made in full. For what it is worth, it is important to emphasise the fact that the system developed by German case law was then used as a model for the drafting of AEC calculations and that, therefore, the same system, although very complex, is not completely alien to us.

The Commission, after having analysed the calculation method in an analytical manner, concludes by noting that the model developed by German case law can nevertheless be used as a model to be applied, as this "facilitate a more uniform interpretation of this article."

Italian jurisprudence has, in any case, very rarely followed this model (perhaps also because it was not pushed by the parties' advocates), which at the moment remains almost completely unknown; in any case, there are a number of judgments on the merits that have shared the Commission's position, which deemed it appropriate to quantify the severance indemnity on the basis of the calculation criteria established by the European Commission in its report of 23/7/1996 on the application of Article 17 of Directive 86/653/EEC. [16]

_________________________________

[1] Cass. Civ. 2018 No. 25740.

[2] On this point see also Bortolotti, Distribution Contracts, p. 386 ff., 2016, Wolters Kluver.

[3] Court of Milan 26.7.2016.

[4] Court of Bari 12.2.2014.

[5] Judgment of 7.4.2016, Case C-314/14, Marchon v. Karaskiewicz

[6] To be more precise, in the definition of 'new customer', of which Article 17 of the European Directive 1986/653 on commercial agentsby Article 4, Legislative Decree No 303 of 10.9.1991, which amended Article 1751 of the Civil Code and replaced it by Article 5, Legislative Decree No 65 of 15.2.1999.

[7] Bortolotti, Distribution Contracts, p. 388.

[8] See Court of Padua 21.9.2012 where the indemnity was denied for lack of orders following the dissolution of the relationship; to the contrary Cass. Civ. 2013 no. 24776 ".Moreover, the utility for the principal is to be assessed at the time of termination of the relationship, the crystallisation of the results obtained by the agent at that time being of relevance. "

[9] Cass. Civ. 2013 no. 24776.

[10] Cass. Civ. 2013 no. 24776.

[11] See Cass. Civ. 2018 no. 21377, Cass. Civ. 2008 no. 23966.

[12] Cass. Civ. 2016 No. 486.

[13] Cass. Civ. 2014 No. 25904.

[14] Court of Appeal Florence 4.4.2012.

[15] Cass. Civ. 2018 No. 25740.

[16] Court of Pescara of 23.9.2014, with comment by Trapani in Agenti&Rappresentanti di commercio no. 2/2015; Court of Bassano del Grappa of 22.11.2008

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Commercial agent and antitrust law: when the agency contract is considered a vertical agreement.

The purpose of this article is to try to understand whether the agency contract can be considered a vertical agreement within the meaning of European Regulation 330/2010 on vertical agreements and, as such, be subject to the prohibition under Article 101(1) TFEU and antitrust law.

As has already been analysed (cf. exclusivity clauses and vertical economic agreements), the Regulation No 330/2010 provides that vertical agreements between undertakings may not have as their object or effect the prevention, restriction or distortion of competition within the common market and that such agreements, if any, are void pursuant to Article 101(1) TFEU.

In this blog, the applicability of the regulation to the exclusive distributors and to the retailers using e-commerce to distribute contractual products. The purpose of this article is to analyse (albeit briefly) an equally complex and interesting topic, namely whether the agency contracts can be considered vertical agreements within the meaning of the Regulation and, as such, be subject to the prohibition under Article 101(1) TFEU; this question is of particular relevance, given that agency agreements normally contain a number of restrictive covenants such as limitations on the determination of price, territory and clientele.

These restrictions are expressly among those defined fundamentals by Article 4 of the Regulation and the presence of which means that the agreement as a whole loses the benefit of the block exemption provided for by the Regulation[1]. The vertical restrictions that would have the greatest impact on an agency contract would certainly be those relating to the prohibition of:

determination by the purchaser of the resale price;
determination by the purchaser of the territory or customers to whom the buyer may sell the contract goods or services;
restriction of sales (active or passive) to end users;

Hence the importance of understanding when an agency contract is to be considered (under the antitrust) as true and when fakeIf the brokerage contract were to be considered (within the meaning of the antitrust) an agency contract fakethe same would fall under the prohibition of Art. 101, with the result that the principal would not be able to impose limits on the agent with regard to the determination of the price (or at least reserve to him the right to grant discounts on his commission), territory, customers and inhibit him from passive sales to customers outside their area. [11]

The first assessment as to whether agreements concerning commercial representation are subject to the prohibition formerly art 101, § 1, goes back to the "Communication Christmas"of 1962[2]The Commission had excluded, in principle, the sales representative from this prohibition, provided that he did not assume '...'.in the performance of his duties (...) no other contractual risk, except the usual guarantee of the star del credere."[3] The Commission considered that the trade representation agreements,

"have neither the object nor the effect of preventing, restricting or distorting competition", since the representative performs in the market ".merely an auxiliary function [acting] in accordance with the instructions and in the interest of the undertaking on whose behalf it carries on business'.

Over the years, jurisprudential orientations have emerged[4] on the basis of which one can basically state[5] that the principle laid down in Art. 101(1) does not apply to commercial agency contracts where:

the agent does not assume the risks commercial and financial typical of a distributor/dealer;
the agent is integrated within the structure distribution of the principal;
the agency contract is not part of a broader framework of contracts falling under Art. 101.

Similarly, in the Guidelines on Vertical Restraints,[6] the characterising element, in order to be able to understand whether or not an agency agreement is subject to the prohibition, is characterised by the risks assumed by the party qualified (correctly or not) as agent:[7] if the risks are substantially borne by the principal, we are in the presence of a true agency agreement, otherwise an agreement liable to incur the prohibition formerly Art. 101, § 1.

The same Orientations Point 16 states that:

"an agreement will generally be considered [...] agency [...] if ownership of the contract goods [...] does not pass to the agent or if the agent does not himself provide the contract services."

In Orientations several examples of risks outside the typical activity of the agent (in the strict sense) are then enumerated, which occur when the agent:

acquires ownership of the contract goods[8];
contributes to the costs related to the supply/purchase of goods covered by the contract;
maintains, at its own cost or risk, stocks of the contract goods;
assumes liability towards third parties for any damage;
assumes liability for non-performance of the contract by customers;
is obliged to invest in sales promotion;
makes investments in equipment, premises or staff training;
carries out other activities in the same product market as the one requested by the principal.

The best doctrine[9] (to which we refer for a more in-depth study of the issue briefly reported here) notes that the Commission's considerations in the Orientations regarding the criteria for distinguishing between agents real e fakes are often "misleading"This is partly due to the fact that the general criteria set out in the Orientations have been taken up (mostly) by a series of case law precedents of the European Court of Justice of a very particular character and this has not allowed the Commission to "consider the way in which 'normal' agents operate, of which [the Commission] was not aware [...]; the Commission has identified a number of criteria that are difficult to apply to the reality of 'normal' cross-border agency relationships'. [10]

Hence a situation of grave uncertaintydistinctive criteria indicated in the Orientations may mislead the reader (e.g. judges and national competition authorities) who relies on them, leading them to qualify as fakes agents, intermediaries who de facto (at least from a civil law point of view) perform a typical agency activity.

_______________________________________

[1] The regulation defines categories of agreements for which, even if there is a restriction of competition within the meaning of Article 101(1), they may be presumed to be exempt from its application.

[2] OJ, No. 139, 24.12.1962, p. 2912 ff.

[3] Id. p. 2922.

[4] Case SugarCommission decision of 2.1.1973, case Vlaamse Reisbureaus decision of the Court of Justice of 1.10.1987, case Vag Leasing decision of the Court of Justice of 24.10.1995.

[5] See on this point Bortolotti, Distribution Contracts, p. 674., Wolters Kluwer, 2016

[6] Point 13) of the Orientations: "The determining factor in defining a commercial agency agreement for the application of Art. 101(1) is the financial or commercial risk assumed by the agent in relation to the activities for which it has been appointed as agent by the principal.

[7] See on this point Pappalardo, The Competition Law of the European Union, p. 321 ff. UTET, 2018.

[8] On this point see the case Mercedes Benz decided by the commission in its decision of 10.10.2001, in which the Court of First Instance held that the purchase of demonstration cars and spare parts was not a sufficient element for the agent to be considered a distributor in its own right.

[9] Bortolotti, Distribution Contracts, p. 675 ff., Wolters Kluwer, 2016

[10] Id. p. 675

[11] The Guidelines, point 51, define passive sales as: "the response to unsolicited orders from individual customers, including the delivery of goods or the provision of services to such customers. Passive sales are advertising or promotions of a general nature that reach customers within the (exclusive) territories or customer groups of other distributors, but which are a reasonable way to reach customers outside those territories or customer groups, for instance to reach customers within one's own territory.

General advertising or promotions are considered a reasonable way to reach these customers if it is attractive for the buyer to make such investments even if they do not reach customers within the (exclusive) territory or (exclusive) customer group of other distributors'..

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Agent and/or Area Manager? A brief overview.

When a company intends to organise its sales network in a structured manner, it often needs to rely not only on a plurality of agents, but also to ensure that they are among themselves organised hierarchically and are coordinates by a supervising person: the area manager.

The function of coordinating sales agents is often assigned by the company to a Area Manager (also known as area manager or area coordinator/supervisor), who is entrusted with a wide variety of tasks: he/she may be required to support the agents at the beginning of the relationship and supervise their work; coordinate the sales network in the assigned area, which may be composed of both agents and direct salespeople or resellers; or select and recruit agents, thus creating/implementing a distribution network within the assigned area.

Given the multiplicity of functions that can be attributed to an Area Manager, this figure is not easily framedMoreover, despite the highly strategic role it plays, the importance of properly delineating the relationship is frequently underestimated, with an awareness of what could be the risks associated with an ill-considered management.

1. Area manager: self-employed or commercial agent?

Before starting to establish the relationship, it should be clear how one intends to include this figure in the company's distribution network: employee, self-employed, or commercial agent?

One should ask oneself these questions not only before contracting the collaboration, but also during the development phase: it often happens that an Area Manager, classified as an agent, after the relationship is closed, claims the subordinate natureasserting (and proving) that the collaboration has always presented the typical characteristics of employment[1]. In the event of a dispute, it is common ground that, regardless of what the name iuris which the parties conferred on the relationship, the judge is called upon to frame it according to the manner in which the parties actually 'experienced' it (on this point cf. differences between agent and employee).

It follows that the creation of a hierarchical pyramid structure, structured in such a way as to strongly affect the Area Manager's autonomy of choice, may entail the risk that a (often unwanted...) relationship of a subordinate nature is established between the parties.

Among the elements characterising the subordinate nature of cooperation, there is, for example, the imposition on the Area Manager of excessively stringent visiting obligations, the giving of constant instructions on the management of the agents coordinated by him, or an obligation to report very frequent.[2]

The Court also held to be in the nature of a subordinate employment relationship, that of an Area Manager classified as an agent, but who performed almost no direct promotional activity, limiting himself to coordinating and directing the agents subordinated to him. He was remunerated with a monthly fixed sum, qualified as an advance on commissions, against commissions that were in fact practically nil (Lire 5,400 in 10 months of activity).[3]

In contrast, the Court ruled out the subordinate nature of the relationship of a coordinator of a group of commercial agents, where the parties had agreed on a monthly advance payment, to be balanced with the commissions actually accrued, in addition to a share of the commissions that the commercial agents of the group under his coordination would have accrued. The Court recognised in this structure both the actual activity of coordination, but also that of promotion, typical of the agent, with the allocation to the latter of a

"risk in the activity of the [agent]represented by the insecurity of commission level. "[4]

If the typical characteristics of subordination briefly set out above do not exist, it must first be clarified that the activity of Area Manager is not incompatible with that of commercial agent[5]However, if he only performs the activity of coordination/supervision, without actually promoting sales in the area entrusted to him, he cannot be classified as an agency.[6]

This principle is constantly reaffirmed by case law, which states that the activity of promoting the conclusion of contracts, which constitutes the agent's typical obligation under Article 1742 of the Civil Code, cannot consist in a mere activity neither of mere control, nor of "propaganda"even if this results in an increase in sales (see also: Obligations of the Agent. Is a simple propaganda activity sufficient?). On this point we read:

"The activity of promoting the conclusion of contracts on behalf of the principal, which constitutes the agent's typical obligation, [...]. cannot consist of a mere propaganda activityfrom which an increase in sales can only indirectly be derived, but must consist in persuading 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 the contracts concluded through him and successfully concluded.[7]

In any event, promotion activity should not be understood solely as the activity of seeking out the end customer, who may also have been acquired on the principal's instructions (or in any other way),

"provided there is causal link between the promotional work performed by the agent vis-à-vis the client and the conclusion of the transaction to which it relates the request for commission (Applying these principles, the S.C. upheld the contested judgment that had excluded the existence of an agency contract between the parties, given that the appellant had the task of creating a commercial network by recruiting and training agents, as well as carrying out propaganda and support activities for them, without, however, having any influence on the individual deals concluded by the agents themselves with customers). (Cass. Civ. 2018, no. 20453)

Therefore, strictly speaking, since the activity of controlling and coordinating agents is not an '.promotion"of concluding contracts, the Area Manager who only performs that task cannot be considered to be a commercial agent.[8] In order to classify the Area Manager as a commercial agent, he will have to combine coordination activities with the promotion of business directly, i.e. in cooperation with the agents assigned (or selected by him);[9] It will certainly be easier to consider it an agent where the second activity is, if not predominant, at least significant.

2. The ancillary nature of the office of area manager.

That being said, in the event that the Area Manager predominantly carries out promotion activities and is therefore classifiable as an agent, the coordination activity has accessory naturethan that of agent. On this point, the Supreme Court has ruled on several occasions: [10]

"the relationship between agency contract and ancillary supervisory assignment must be reconstructed through the scheme of the negotiated link, with unilateral dependence bond. "

Given the ancillary nature of the coordinator's relationship with respect to that of an agent, one of the main consequences of this unequivocal interdependence is that in the event of termination of the main contract (agency), the ancillary contract (coordination) will follow

"the fate of the main contract to which it accedes [11][...].

Conversely, in the event of revocation of the ancillary contract (i.e. that of coordinator),

"precisely because it relates to a contractual relationship distinct from that of agency, it cannot have any effect on the latter, either from the point of view of the alleged failure of the revoking principal to fulfil its obligations under the agency contract, or from the angle of an alleged lack of interest on the part of the same principal in the continuation of the agency relationship[11]. "

Direct (and far from secondary) consequences of the accessory nature of the Area Manager position as opposed to the agency contract are essentially two:

the parties may agree not to make the revocation of this assignment subject to any notice period (which, however, is expressly prohibited for the agency contract (cf. Early termination of an agency contract. How is the indemnity for lack of notice calculated?);
i fees accrued by the Area Manager are not of a commission nature and, therefore, do not fall within in the calculation for quantifying theseverance pay.

2.1. The obligation to give notice and the corresponding indemnity.

With reference to theobligation to give notice (and consequent entitlement to compensation for loss of notice) in the event of termination of the appointment as Area Manager only, the Court:

"ruled out the possibility of a general rule of the system which, in contractual relationships of indefinite duration, would require the grant of a notice period (or the payment of the indemnity in lieu of notice) in every case of termination by one of the parties, unless there is a contractual derogation excluding such an obligation on the withdrawing party", and that this is to be inferred from the fact that only for some typical types of long-term contracts does the law make the validity of the termination conditional on the other party being granted a period of notice, and subject, in any event, to the assessment of whether the duties imposed by Articles 1175 and 1375 of the Civil Code in the performance of the contract."[11]

2.2. Area managers and quantification of severance pay.

As for theseverance pay:

"the claim [...] that the rules laid down in Article 1751 of the Civil Code for the basic agency contract should be applied to the ancillary assignment has no legal or even contractual support."

The ancillary nature of this relationship, from which a compensation non-contributory, which does not affect either the notice allowance or the severance pay, is also indirectly apparent from a reading of the AEC. Article 6 para. 4 of the AEC Industry 2014, in fact states that:

"In the event that the agent or representative is entrusted with the task of coordinating other agents in a certain area, provided that this is specified in the individual contract, a separate commission or a specific additional remuneration, in non-commissionable form, shall be established."

Article 4(11) of the AEC Commerce 2009 extends this regime to all ancillary activities carried out by the agent:

"In the event the agent or representative is entrusted with the continuous task of collecting on behalf of the principal, with the agent's liability for accounting errors, or of performing complementary and/or ancillary activities with respect to the provisions of ss. 1742 and 1746 of the Civil Code, including those of coordinating other agents in a certain area, provided that they are specified in the individual contract, a specific additional remuneration, in non-providential form, shall be established."

____________________________________________________

[1] See on this point Cass. Civ. 2004, no. 9060.

[2] On this point see Perina - Belligoli, Il rapporto di agenzia, G. Giappichelli Editore, 2014, p. 21 et seq.

[3] Cass. Civ. 1998, no. 813.

[4] Cass. Civ. Cass. 2002, no. 17534.

[5] Cass. Civ. 1990, no. 2680 "The agency relationship - which is of an autonomous nature - is not incompatible [...] with the agent's obligation to visit and instruct other employees, with the fact that the principal has several agents organised hierarchically, with the principal's obligation to reimburse certain expenses incurred by the agent, nor with the agent's obligation to report daily to the principal."

[6] In doctrine on this point see Bortolotti, Distribution Contracts, Wolters Kluvers, 2016, p. 109. See also Tassinari&Sestini, Area manager in sales agent format, are you in?

[7]Tribunale Vicenza, 22.3.2018, concurring also Cass. Civ. 4.9.2014 no. 18690.

[8] In Doctrine, Bortolotti, op. cit, p. 109.

[9] Cass. Civ. 2007, no. 18303 "Although the "nomen iuris" assigned by the parties to a contract is irrelevant, nevertheless for the purposes of reconstructing the intention of the parties, according to the rules of Art. 1362 et seq. of the Civil Code, the qualification is also part of the words used and contributes to offering elements for reconstructing the common intention of the contracting parties.

In particular, since it is necessary to verify the correspondence of the "nomen" with the negotiated content, both the agent's carrying out of the promotional activity by availing itself of other coordinated and supervised agents and the lack of a formal and express indication of the area in which the agency is to be carried out must be deemed compatible with the legal notion of agency, where such indication is otherwise inferable from the reference to the territorial area in which the parties operate at the time of the establishment of the relationship. (Rejected, App. Trieste, 8 October 2004)"Cass. Civ. 1998 no. 813; in Dottrina Perina - Belligoli, op. cit., p. 22.

[10] Cass. Civ. 2005, no. 19678.

[11] Cass. Civ. 2018, no. 16940; Cass. no. 14436, 2000.

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Business intermediary and commissions: when the right to commissions is subject to the communication of commencement of activity

In a recent ruling, the United Sections of the Court of Cassation affirmed that a person who engages in the activity of business intermediary without having communicated the commencement of business is obliged to repay the commissions received to the contracting parties.

The Court's reasoning is very complex and tortuous due to a very tortuous and non-linear regulatory framework.

In order to understand the reasons that prompted the United Sections to affirm that a business intermediary's right to commissions is subject to the obligation to commence business, it is necessary to take a few steps back and retrace what has been the regulatory path governing a figure very similar to the business intermediary, namely the broker, and thus understand how such regulatory interventions may have had such serious repercussions on business intermediaries.

1. The abolition of the role of mediators.

Until 2010, the role of mediators was governed by Article 2 of Law 1989/39, which imposed compulsory registration on all persons who carried out mediation activities, even if on a discontinuous or occasional basis. The role was divided into three sections:

one for real estate agents,
one for commercial agents and
one for agents with a mandate for pecuniary interest.

Art. 73 of Legislative Decree 26.03.2010, no. 59 repealed theArticle 2 of Law 1989/39, thus going to abolish roles listed above.

Following this legislative change, the performance of the activity of real estate broker is only conditional on the:

DIA (Dichiarazione Inizio Attività) - now SCIA (Segnalazione Certificata di Inizio Attività) - accompanied by self-certifications and certifications proving possession of the requirements;
verification of requirements by the territorially competent Chamber of Commerce and consequent registration of brokers in the RI (Register of Companies) if the activity is carried out in the form of a company, or in a special section of the REA (Register of Economic and Administrative News).

Given that Legislative Decree 2010/59 abolished the role of mediators, but did not repeal Law 1989/39 in its entirety, the question arose as to how Article 6 of this regulatory text, which subordinates the mediator's right to commissionto its proper registration. Article 6 reads as follows:

"only those who are registered on the rolls are entitled to the commission".

Majority Jurisprudence[1] has ruled, stating that only brokers who have reported the start of their activity to the competent Chamber of Commerce and have been duly registered in the business registers or directories kept by that body are entitled to receive the commission. It reads, in fact, that:

"Article 6 of Law No. 39 of 1989, according to which , must be interpreted as meaning that, also for mediation relationships subject to the rules laid down by Legislative Decree No. 59 of 2010, only mediators who are registered in the registers of companies or in the directories kept by the chamber of commerce are entitled to commission. "

2. Difference between business intermediary and broker.

That being clarified, the question arose as to whether only brokers should be subject to this reporting obligation, or also business intermediariesde facto brokering activities.

Before giving an answer to this question, it is necessary to briefly understand the distinction between mediator and business procurer. Pursuant to Art. 1754 of the Civil Code, mediatoris the one who

"brings two or more parties together for the conclusion of a transaction, without being linked to any of them by a relationship of collaboration, dependence or representation".

The mediator therefore carries out his or her activities without constraints and assignments, in a position of impartiality and autonomy.[2]

In contrast, the business procurer acts as instructed by one of the parties, thus lacking the requirement of independence. A 2016 ruling by the Supreme Court of Cassation, which confirms a well-established orientation, distinguishes the two figures by asserting that:

"mediation and the atypical business procurement contract differ in terms of the position of impartiality of the mediator than that of the procurer who acts on behalf of one of the parties involved in the conclusion of the transaction and from whom, although not linked to that party by a stable and organic relationship (unlike the agent), he may claim remuneration.

The Court goes on to analyse what these figures have in common, namely:

"the element of the provision of an intermediary activity aimed at facilitating the conclusion of business between third parties."

Case law has held that both the figures perform de facto activities of 'brokerage"has framed the business intermediary as an 'atypical' mediator, which is distinguished from the 'typical' mediator precisely by the character of 'partiality'.

Given the inclusion of the intermediary in the 'category of brokers', the following question consequently arose: must the intermediary also comply with theobligation to notify the start of activities? The question was not (and is not) without practical consequences, since, as mentioned above, the failure to report the commencement of activity to the competent Chamber of Commerce causes the broker's right to commissions to lapse pursuant to Article 6 of Law 1989/39.

On this point, the United Sections of the Supreme Court intervened, which with Judgment No. 19161 2017firstly confirmed to be:

"In addition to ordinary mediation, a so-called atypical mediation based on a contract for pecuniary consideration can also be configured with respect to only one of the parties involved (so-called unilateral mediation)."

Secondly, they also stated that:

"precisely because of its extrinsic nature as an intermediary activity, falls within the scope of applicability of the provision laid down in Article 2(4) of Law 39/89, which, precisely, also regulates hypotheses atypical mediation for the case where the object of the deal is real estate or companies."

Conversely, where the subject matter of the deal is the movables:

"the obligation to register exists only for those who perform the said activity in a manner not occasional and therefore professional or continuous."

Therefore, the obligation to register in the brokers' register also extends to all business brokers who broker real estate or companies (even occasionally), or movable goods (on a professional basis).

La penalty for failure to report is rather strict, and is governed by Article 8 L. 1989/39:

Anyone engaging in mediation without being registered shall be punished with the administrative penalty payment of a sum of between one million and four million lire and is liable to the return to the contracting parties of the commissions received."

3. Difference between commercial agent and broker.

At this point, it is considered appropriate to make a very brief analysis of the distinction between commercial agent and brokerwhich is thus summarised by the ruling of the United Sections under examination:

[the mediator] "acts in a third-party position with respect to the contracting parties in contact, in this respect differing from the commercial agent, who, on the other hand, implements a habitual and professional collaboration with another entrepreneur. "

The reason for drawing this distinction is to emphasise the fact that, although the commercial agent is also obliged to report the start of his activity (Art. 74 of Law 2010/59, repealed not only the role of mediators, but also those of agents), failure to comply with this duty does not entail the forfeiture of the right to commissionsis not foreseen in the Law 1985/204which regulates precisely the activity of commercial agents, a sanction similar or comparable to the one examined in this article.

Bearing in mind this substantial difference between an agent and a broker (typical or atypical), it is advisable to check with one's advisor, in the event that a principal contests the payment of commissions to the intermediary for not being registered in the register of intermediaries, whether the activity carried out by the intermediary should actually be considered as such or, on the contrary, should be considered an agency activity 'disguised' as an intermediary activity.

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[1] On this point cf. Cass. Civ. No. 762 of 2014; Cass. Civ. no. 10125 of 2011, Cass. Civ. no. 16147 of 2010.

[2] On this point cf. Cass. Civ. No. 16382 of 2009.

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The post-contractual covenant not to compete of the employee, self-employed person, director, partner and agent. A brief overview.

The post-contractual covenant not to compete is certainly a very delicate element in an employment relationship and one that, depending on the addressee of this obligation, has different requirements as to form and substance. The purpose of this article is to provide the reader with an overview of this institution by briefly analysing how and with what limits this bond may bind the employee, the self-employed, the administrator, the partner and the commercial agent.

Employee

The employee's covenant not to compete is governed by Article 2125 of the Civil Code. This article expressly provides that the covenant must, on penalty of nullity:

(a) be made in writing;
(b) establish a constraint contained within certain limits of subject, place and time;
(c) provide for a consideration in favour of the employee.

With reference to (a), there are no particular issues to be addressed. The pact shall̀ be undersigned (and preferably initialled on each page) by the employee. Moreover, although according to traditional case law, the non-competition agreement does not require a double signature pursuant to Art. 13.41 of the Civil Code.[1]However, it is prudently recommended that such a post-contractual undertaking be specifically approved in writing in order to avoid possible disputes, also in view of a possible change in the above-mentioned jurisprudential orientation.

As for point (b), the time limits of the post-contractual agreement are defined in the second paragraph of Art. 2125 of the Civil Code as 5 years for executives and 3 years for other cases. It should be emphasised that the terms set forth in Article 2125 of the Civil Code constitute the maximum limits for the duration of the covenant, and the payment of the compensation due to the employee must also be calibrated to the actual duration of the covenant agreed upon by the parties.

The evaluation of the adequacy of the place within which the activity is prohibited is in close connection with the object of the activity carried out by the employee and, to this end, the indication of an excessively broad space may lead to the nullity of the covenant itself. On this point, there are controversial case law precedents, with one part of the case law considering that the pact extended to the entire national territory is null and void, inasmuch as it excessively restricts the employee's possibility of re-employment.[2] Other pronouncements, on the other hand, have considered valid EU-wide covenants,[3] in that the activity had been precisely specified so as not to excessively restrict the employee's working and professional capacity.

About the quantification of remunerationcase law assumes as an assessment criterion the congruity of the same to the sacrifice borne by the worker in the individual case[4]in holding that the sum paid to the worker must be proportionate to it.[5]

Clearly, since the concept of fairness is a very abstract one, it is very difficult to apply objective criteria to it. In any event, although there is no unambiguous and objective criterion for establishing the congruity of the covenant, case law holds that a consideration in the region of 15%-35% of the gross annual remuneration may be considered congruous.[6]

Secondly, the quantum in addition to being congruous it must be predetermined and/or predeterminable. Jurisprudence has held null and void, insofar as it was indefinite, a covenant that provided in favour of the employee a tot euro for each month until the termination of the relationship, as this covenant did not allow the employee to determine ex antealready at the time the agreement was signed, a minimum amount.[7]

In order to find a solution to the problems illustrated above and in order to attempt to stipulate a non-competition agreement that is effectively valid and with a reduced possibility of being challenged, one could hypothesise to include as an indemnity recognised to the employee, a percentage sum whose value increases with the lengthening of the relationship and which is linked to the gross sums paid to the employee in the last year of the relationship or, in a more favourable case, in the twelve months following the signing of the agreement.

Self-employed

The covenant not to compete signed by a self-employed person,[8] is regulated by Article 2596 of the Civil Code.

The limits provided for by this rule are as follows:

must be proven in writing
it is valid if confined to a specific area or activity;
may not exceed a duration of five years.

As can be seen, points a), b) and c) are similar to those already discussed above, to which we refer in full.

The essential difference is that Article 2596 of the Civil Code, unlike Article 2125 of the Civil Code, does not provide for any sanction for the failure to provide for consideration in favour of those who contractually submit to competitive restraints. Therefore, the fact that the non-competition agreement does not provide for any consideration is of no relevance, being in this respect, in any event, valid, effective and unenforceable.

However, very often one encounters problems related to the incorrect classification of self-employed workers, who, due to the way they carry out their activities within a company, may not have been properly classified as employees. For these figures, the problem could arise whereby, once the relationship has ceased, they intend to bring an action before the Employment Court to ascertain the subordination of the relationship and, with it, the invalidity of the non-competition agreement, since it lacks one of the essential elements provided for by Article 2125 of the Civil Code (namely, remuneration).

In any event, it is emphasised that the provision of a paid non-competition agreement in favour of such persons could be used by them as a further element to prove the subordinate nature of the relationship.

Company director

Like self-employed persons, the non-competition agreement signed by a director is also subject to the limits set forth in Article 2596 of the Civil Code and, therefore, there is no requirement that he be remunerated.

With reference to the director's non-competition in reporting courseit is solely regulated formerly Article 2390 of the Civil Code, for directors of joint stock companies, which provides as follows:

"[1] Directors may not be unlimited partners in competing companies, nor engage in a competing activity on their own behalf or on behalf of third parties, nor be directors or general managers in competing companies, unless authorised by the shareholders' meeting.

[2] For failure to comply with this prohibition, the administrator may be removed from office and is liable for damages."

In contrast, for limited liability companies, there is no explicit prohibition for directors to act in competition during their term of office [9]with the consequence that it is the articles of association of the company that may freely provide whether the director may or may not perform such activities.

Partners of limited liability companies

S.r.l. partners are not required to refrain from activities that compete with the company in which they hold shares. Indeed, in the Italian system, competition is only prohibited formerly Article 2301 of the Civil Code to partners in general partnerships and general partners in limited partnerships

If a non-compete obligation is also intended for partners, it could be:

have the partners sign a non-competition agreement;
sign a shareholders' agreement, whereby all shareholders undertake not to engage in activities in competition with the company and whose contents are in any case those provided for in Article 2596 of the Civil Code.

It should be noted that the shareholders' agreement is also valid for a maximum of five years and must therefore be renewed upon its expiry.

Agency contract

The agency contract expressly regulates the non-competition agreement in Article 1751-bis of the Civil Code.

This issue has already been dealt with in this blog, so please refer to the following article (The non-compete obligation in the agency contract: during and after termination of the relationship).

_________________________

[1] Traditional jurisprudence has ruled out the applicability to the non-competition agreement of the provisions relating to vexatious clauses, on the ground that Art. 2125 lays down more stringent conditions than those set forth in Art. 1341, and in view of the peremptory nature of the hypotheses contemplated in para. (2) of the latter provision (see Turin Tribunal, 8.2.1979).

[2] Trib. Monza 3.9.2004.

[3] Cass. 21.6.1995 no. 6976; Trib. Milan 22.10.2003.

[4] On this point Cassation 1998 No. 4891.

[5] Cass. Civ. 1998 no. 4891; Trib. Milan 27.1.2007.

[6] E.g., a consideration quantified in 15% of the total amount of the remunerations paid to the employee in the last two years of the relationship against a non-competition obligation of two years' duration was deemed congruous) Trib. Milan, 22.10.2003.

[7] Trib. Venezia 31.5.2014.

[8] IMPORTANT. In this category does not include the commercial agent, for which there is a separate discipline, regulated in Art. 1751-.encore, which is not subject of examination for this opinion.

[9] In fact, before the reform brought about by Legislative Decree No. 6 of 2003, Article 2475 of the Civil Code made explicit reference to Article 2390 of the Civil Code. Now the reference has been eliminated.

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The probationary period in the agency contract: is it valid? The European Court of Justice gives its ruling.

In practice, it is very common for the parties to subject the agency contract to a so-called 'probationary agreement'; the purpose pursued by such an agreement is to protect an interest common to both parties, namely that of ascertain the cooperation relationshipthrough concrete experimentation.

By entering into this agreement, the parties are given the option, during the probationary period, to terminate the contract without observing any period of notice and without the need to state any reasons.

The probationary period should therefore be understood as a sort of preliminary phase of the contract in which the parties intend to mutually test the cooperation relationship, which would only assume a stable character once this period has been successfully completed.[1]

Although this institution is not expressly regulated in our legal system,[2] in principle, the probationary period must be considered admissible in the agency contract, irrespective of whether it was concluded for a fixed term or an indefinite term.[3]

Such a covenant responds to the need of the parties to verify the mutual convenience of giving stability to the contract, according to part of the doctrine,[4] during the probationary period, the parties may terminate immediately, without the need to give any notice period. This position has also been confirmed by less recent case law, which has upheld not only the legitimacy of the probationary period, but also the granting to both parties of the right to terminate during the probationary period with immediate effect, without just cause.[5]

As for the duration of the covenant, it must be limited "the time necessary and sufficient to carry out the evaluation".[6] To translate this principle into practical terms, it is necessary to consider the individual relationship on a case-by-case basis, taking into account, of course, the sector in which the parties operate, the type of products being promoted, and using good faith as a yardstick; in any case, to give an indicative time reference, one can consider reasonable a probationary agreement with a duration of between two and six months.[7]

With reference to the agent's right to obtain aseverance pay in the event of termination of employmentfor an act not attributable to the agent, the majority Italian jurisprudence has held in recent decades that:

"if the principal terminates the agency contract during the probationary period, the agent is not entitled to the indemnity for termination of the contract pursuant to Art. 1751 of the Civil Code."

However, on this issue, the European Court of Justice by judgment of 19.4.2018in which the Luxembourg judges decided a dispute, referred for a preliminary ruling by the Cour de Cassation French, concerning an authentic interpretation of Directive 86/653/EEC on commercial agents; specifically, it was asked whether or not the directive gives the parties the power to exclude the agent's right toallowance in the event of termination of the contract, during the contractually agreed trial period.

The dispute had originally arisen between an agent and a principal, both operating in France in the real estate sales sector, who had included in an agency contract a twelve-month trial period; during this period, the agent had also obliged itself to conclude the sale of twenty-five houses.

Approximately five months into the relationship, as the agent had only managed to conclude one sales contract, the principal terminated the relationship with immediate effect, confident that, as the relationship was still in the "experimental"No notice or indemnity was due to the agent.

The agent, on the other hand, was of a different opinion. He contested the termination without just cause, considering that, although the relationship was still in the probationary period, he was nevertheless entitled to receive the termination indemnity, as well as compensation for damages, provided for by French law.

The issue, after having been decided differently at first instance and on appeal, was referred by the Cour de Cassationto the Court of Justice.

The European Court, as a preliminary remark, noted in its reasoning that although the directive not contains no reference to the notion of "probationary period", this omission cannot be interpreted as a prohibition to the use of that instrument by the contractors.

The judgment then went on to analyse the function that the directive had conferred on the severance pay, noting that this institution did not so much pursue a sanctioning purpose but, rather, one of indemnify the agent

"for services performed, from which the principal continues to benefit after the termination of the contractual relationship, or for charges and expenses incurred for the purpose of such services."

The Court goes on to note that Article 18 of the directive itself expressly regulates the cases in which the indemnity is not due and that this list is to be interpreted restrictively,[8] the probationary period is not included.

On the basis of the elements summarised above, the Court therefore held that:

"l'the interpretation that no indemnity is due in the event of termination of a commercial agency contract during the probationary period is not compatible with the mandatory nature of the rules established by Article 17 of Directive 86/653. In fact, such an interpretation, which would result in making recognition of the indemnity conditional on whether or not a probationary period was agreed in the commercial agency contract, without taking account of the services rendered by the agent or of the costs and expenses incurred by him, contrary to Article 17 itself, constitutes [...] an interpretation to the detriment of the commercial agent, who would be denied any indemnity on the sole ground that the inter partes contract provided for a probationary period.

This ruling will certainly have a very strong impact on what will be the use of the probationary covenant in the agency contract; indeed, although the Court does not delegitimise the possibility of the parties to provide for a probationary covenant in the agency contract, in fact, makes it less interesting to use such an instrumentthe parties will no longer be able to exclude the agent's right to receive the termination indemnity.

Thus, what was the founding assumption and the purpose that always prompted contracting parties to enter into a probationary agreement, i.e. to agree on an initial period of the relationship, in which the parties can test each other, without worrying about the consequences, in case they do not intend to make the relationship stable, falls away.

________________________

[1] On this point - VENICE - BALDI, The Agency Contract, 2014, p. 344 ff.

[2] Without prejudice to Article 2096 of the Italian Civil Code, which regulates the probationary period in subordinate employment and which, due to its special nature, cannot be applied analogically to the agency contract - On this point see VENEZIA - BALDI, Il contratto di agenzia, 2014, p. 344 et seq. Reference is instead made to the probationary agreement in some collective economic agreements and specifically: in the contract between Federagenti and CNAI of 22.4.2013, (statement in the minutes art. 10), a trial period of a maximum duration of 6 months is provided for; AEC commercio 2009, art. 2 and AEC industria 2014 art. 4, where it is provided that, in the event of one or more renewals of the agency contract, the principal may establish a trial period only in the first contract.

[3] On this point see Trib. Grosseto 30.11.2004; Trib. Firenze 2.10.2003; Trib. Milano 18.12.1986; In doctrine PERINA - BELLIGOLI - Il rapporto di agenzia, 2014.

[4] TRIONI - Contratto di agenzia, in Commentario del Codice Civile, Bologna, 2006.

[5] Cass. Civ. 1991 no. 544.

[6] Trib. Turin 7 July 2004.

[7] VENICE - BALDI, The Agency Contract, 2014, p. 344 ff.

[8] In this sense, Court of Justice, 28.10.2010, Volvo Car Germany, C-203/09.

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Is the principal liable for damages caused by the agent to third parties?

In the agency relationship, it may happen that the agent, in the performance of his duties, causes damage to a third party; in such a case, the question arises as to whether the principal may be held liable for the damage caused to the third party and, therefore, be held indirectly liable formerly Article 2049 of the Civil Code for damage caused to the third party. This rule provides that:

"masters and principals are liable for damages caused by the wrongful act of their servants and committed in the performance of their duties."

From a reading of that article, it is understood that the constituent elements of the liability of the "master and principal" are:

the existence of a wrongdoing which resulted in damage to a third party;
the fact that the damage was caused by a supervisor (which is not necessarily an employee relationship);
that the damage was caused (or otherwise facilitated) in the performance of duties to which the supervisor had been assigned.[1]

According to case law, liability under Article 2049 of the Civil Code is of an 'objective nature'.[2] and this implies that the principals not may propose any clearance test of their liability, with the consequence that they are indirectly liable for the actions of others, irrespective of whether they were at fault in the choice or supervision of the supervisor.[3] In short, there are two persons (the principal and the principal), distinct from each other, responsible for the damage, even if only one of them was the author of the harmful act.

The classic example of the application of this rule is the employmentIn such a case, the principal is liable for the wrongful act committed by its employee, by virtue of the assignment conferred upon him. In any event, it is important to note that majority case law has long held that for the purposes of the application of liability formerly Article 2049 of the Civil Code, it is sufficient that the person in charge acts on behalf of the principal by virtue of a subordination bond understood in a broad sense.[4] In fact, we read that:

"In order for the liability regime enshrined in Article 2049 of the Civil Code to operate, it is sufficient that the perpetrator of the tort is included, even if temporarily or occasionally, in thebusiness organisation and acted, in this context, on behalf of and under the supervision of the entrepreneur."

Given that the agency relationship is a relationship of the very nature parasubordinate and, as such, potentially qualifying as employment of subordination 'in the broad sense', the question arises as to whether liability under Article 2049 of the Civil Code also applies to this type of contract.

According to an authoritative doctrine[5] the provisions of Article 2049 of the Civil Code cannot be applied to the agency relationship, since that institution presupposes for its application a relationship of dependence and subordination, even if of a merely occasional or temporary nature; that relationship of dependence is not to be found in a contractual situation such as the agency contract, the agent being configured rather as an independent collaborator of the principal.

In contrast, some case law[6] held that the principal is vicariously liable for the agent's wrongful act if the agent acts in the capacity of representative. On the point:

"the activity of the agent, who is an agent of the principal, constitutes a source of indirect liability of the principal, within the meaning of Article 2049 of the Civil Code, only when the agent has availed itself of its capacity as representative to commit the tort. "

This orientation expands the limits of the principal's liability, even in cases where the agent (imp! always acting as a representative), acts culpably with ways other than those given to him, or even beyond the limits given to him.[7] A fundamental point is the fact that the person in charge, by exercising the task to which he is assigned, albeit in a manner different from the principal's instructions or even beyond the limits thereof, has caused the unjust damage to others.[8]

We read a more recent orientation of the Supreme Court, which does not exclude the applicability of Article 2049 of the Civil Code even where the agent has acted without any power of representation:[9]

"For the purposes of joint and several liability under Article 2049 of the Civil Code of the principal, a relationship of necessary occasionality between the harmful act and the duties performed by the principal is sufficient, which exists when the wrongful act was performed by exploiting the duties performed by the principal, even if he acted beyond the limits of his duties and even if he violated the obligations imposed on him."

The judgment goes on to state that:

"It is not necessary for there to be a stable employment relationship between the two parties, it being sufficient that the perpetrator of the tort/delict is linked to the principal even only temporarily or occasionally and that the task performed has led to a situation that facilitates or makes possible the tort/delict and the harmful event.

"In particular, that of the principal is a liabilitỳ of an objective nature inspired by rules of social solidaritỳ, intended to attribute - according to the theory of the distribution of costs and profits - the burden of risk to the one who avails himself of the work of third parties. [...] In this perspective, civil jurisprudence, in more recent times, has come to recognise the responsibilitỳ of the principal for the illegal activity carried out by the'agent even without power of representation, requiring in that sense only that the commission of the offence was facilitated or made possible by the tasks entrusted to it and that the principal had the opportunity to exercise powers of direction and supervision'.

If one follows this last jurisprudential orientation, it may be said that the agency contract is not, per se, outside the scope of Art. 2049 of the Civil Code, not even if its content is that of a mandate without representation.

As noted above, liability under Article 2049 of the Civil Code is an objective liability, with the consequence that it is not conferred on the principal the possibility of providing exculpatory evidence based on the absence of fault in the principal's choice or supervision of the principal; it follows that the principal may defend its position, demonstrating only that the prerequisites for the application of the rule under examination do not exist, and therefore prove:

that there is no preposition relationship with the offending party;
that there is no causal link between the tasks entrusted and the commission of the offence;
the absence of the tort.

On the contrary it will be burden of the damaged demonstrate that:

a wrongful act causing damage has occurred;
the supervisory relationship between principal and agent;
the event giving rise to the damage is causally connected, or at least necessarily occasional, with the performance of the duties for which he was employed.

Finally, we briefly point out that in principle the agent can be held liable under Article 2049 of the Civil Code for the actions of a sub-agentIf the court's investigation establishes that the sub-agent is effectively integrated into the organisation of the agent's undertaking, the agent is entitled to supervise and control the sub-agent.[10]

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[1] Cass. Civ. 2002 No. 26503; on this point see Gualtierotti, La responsabilità del preponente per fatto illecito dell'agente, in Agents & Sales Representatives - No 4/2014.

[2] Cass. Civ. 2001 no. 8381; Cass. Civ. 2000 no. 3536.

[3] On this point see Commentary Civil Code, 2009, Art. 2049, p. 84 ff. COMPORTS, GIUFFRE PUBLISHER

[4] On this point, see Commentario breve al codice civile, CIAN TRABUCCHI, art. 2049, CEDAM, 2016.

[5] BALDI - VENEZIA, In contratto di agenzia, p. 306 ff., Giuffrè Editore.

[6] Cass. Civ. 1995 No. 12945

[7] Cass. Civ. 2014, no. 23448 "The principle of the appearance of entitlement, through which the innocent reliance of a third party who has contracted with a person who appeared legitimately entitled to bind others is protected, is operative on the twofold condition that there exists the good faith of the person invoking its application and at least culpable conduct on the part of the person who gave rise to the situation of appearance. (Cassa con rinvio, App. Bologna, 21/01/2011)." In the contrary sense BALDI - VENEZIA, In Contratto di agenzia, p. 306 ff., Giuffrè Editore. "It is worth noting, however, that since pursuant to Art. 13939 of the Civil Code the third party who contracts with the agent may always require the agent to justify his powers of representation, since such powers cannot be presumed, the third party cannot invoke a liability on the part of the principal if the agent exceeds the limits of the powers conferred on him, or acts in reliance on powers of representation that he does not have.

[8] On this point see Commented Civil Code, Plurisdata, Art. 2049 Civil Code, 2014 Wolters Kluwer Italia Srl.

[9] Cass. Pen. 2016, n. 7124.

[10] Cass. Civ. 2014 no. 23448; Cass. Civ. 2012 no. 7634.

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Agency contract

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Agency contract

a) Sales promotion, customer identification and product illustration.

b) Participation in the advertising campaign.

c) Merchandising and sell in and sell out activities of online platforms.

d) Storage activities.

e) Remuneration or commission: commercial agents?

What are the consequences of the transfer of an agency contract? If the principal decides to make a business transfer, can the agent terminate the contract?

1. Assignment of the agency contract

2. Agency contract and business transfer

3. Debts prior to the transfer of the business

If an agent procures long-term contracts, is he entitled to commission if the contracts continue after the agency relationship is terminated?

In cases where no Collective Bargaining Agreements apply to the agency relationship, understanding whether (and how much) severance pay is due to the agent is not at all easy.

In contrast to AECs, which provide for a precise calculation allowing the parties to quantify the severance payment, the Civil Code only provides a ceiling for the level of indemnity, without giving precise guidelines on the method of calculation

1. The agent's contribution of customers.

2. Advantages for the principal arising from the agent's activity.

3. The determination of severance pay in equity.

4. Severance pay calculated on the basis of the criteria set by the Commission.

The purpose of this article is to try to understand whether the agency contract can be considered a vertical agreement within the meaning of European Regulation 330/2010 on vertical agreements and, as such, be subject to the prohibition under Article 101(1) TFEU and antitrust law.

When a company intends to organise its sales network in a structured manner, it often needs to rely not only on a plurality of agents, but also to ensure that they are among themselves organised hierarchically and are coordinates by a supervising person: the area manager.

1. Area manager: self-employed or commercial agent?

2. The ancillary nature of the office of area manager.

2.1. The obligation to give notice and the corresponding indemnity.

2.2. Area managers and quantification of severance pay.

In a recent ruling, the United Sections of the Court of Cassation affirmed that a person who engages in the activity of business intermediary without having communicated the commencement of business is obliged to repay the commissions received to the contracting parties.

The Court's reasoning is very complex and tortuous due to a very tortuous and non-linear regulatory framework.

1. The abolition of the role of mediators.

2. Difference between business intermediary and broker.

3. Difference between commercial agent and broker.

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