The year 2023 brought a series of significant rulings in Italian and European case law concerning the agency contract, outlining fundamental guidelines and clarifications on the subject, sometimes in line with precedent, sometimes in contrast. Through the examination of these decisions, the article provides an overview of how the subject of commercial agency has developed over the last few months, touching on important issues such as the form of the contract, access to accounting records, severance pay and bankruptcy. This article aims to provide a general analysis of the most influential rulings, highlighting the practical implications for agents and principals and tracing the path of case law in the field of agency law.


1. Form of contract

Proof of the report.

Court of Appeal Milan, Labour Section, Judgment, 18/05/2023, no. 532

L'Article 1742(2) of the Civil Code provides that "the contract must be evidenced in writing". Of which the rule only requires the written form ad probationem and not ad substantiam. The form, therefore, is not a constitutive element of the contract, but a burden required for the purpose of proof of its conclusion. The consequence of non-compliance with the prescribed form is the prohibition of testimonial evidence (Article 2725paragraph 1 of the Civil Code), as well as the presumptive one (Article 2729(2) of the Civil Code). In any event, the lack of a written contract does not preclude an enquiry into the existence and nature of the relationship as an agency, but implies that such an enquiry must be carried out on the basis of the documents produced by the parties in the case.

In affirming this principle, the Court of Appeal recalls the well-established orientation of the Court of Law, according to which proof of the existence of an agency contract need not necessarily derive from a formal document evidencing the initial agreement of the parties. It may also be inferred from documentation reflecting the voluntary execution of the contract, its confirmation or the voluntary acknowledgement of its terms by the parties involved and, thus, documents showing how the parties actually acted in accordance with an agency agreement (e.g. payment and commission summaries, bank statements).[1]

The proof must therefore relate to the distinctive features of the agency relationship, i.e. the requirements of stability and continuity of the relationship. In the present case, the periodicity of the invoices, which in this case were monthly and remained issued by the people, as well as their amounts, were sufficient.


1.2. Agency contract and Art. 1341 of the Civil Code.

Court of Appeal Milan, Sez. lavoro, 23/03/2023, no. 327

The judgment of the Court of Appeal of Milan, No. 327 of 23 March 2023, addresses an important issue concerning the nature and formation of the agency contract in relation to theArticle 1341 of the Italian Civil Code, which regulates general terms and conditions.

The Court observes that the agency contract is based on 'intuitus personae', i.e. on the special consideration of the personal qualities of the agent. Unlike standardised contracts that use forms or forms drawn up by one of the parties and are addressed to an undifferentiated number of persons, the agency contract is specifically addressed to specific agents and is characterised by a personalised negotiating regulation.

In this context, the Court makes it clear that the formal criteria of the 'agency contract' are not applicable to the agency contract.Article 1341 c.c., concerning the regulation of contracts concluded by signing forms and forms: "it is not sufficient that one of the parties has prepared the entire content of the regulation (without the concurrence of the other party) but it is necessary that the conditions laid down therein cannot but be accepted (or refused) in their entirety and, in any event, are intended to regulate an indefinite series of relations“.[2]


2. Rite work 

Cass. civ., Sec. lavoro, Ordinanza, 05/04/2023, n. 9431

By judgment of 23 November 2021, the Court of Piacenza declared its lack of jurisdiction, due to the arbitration clause contained in Article 13(2) of the agency agreement between the parties, and held that the agency activity carried out by the appellant, given the autonomy of its business structure of not small dimensions, did not fall within its jurisdiction. Subsequently, by notice served on 22 December 2021, the agent brought an action for a declaration of competence, pursuant to Arts. 42, 47, 819 ter c.p.c.

In this context, the decision of the Court of Cassation comes in to clarify the criteria of jurisdiction in relation to agency relationships. The Court reiterates that disputes relating to agency relationships fall within the subject-matter jurisdiction of the Labour Court, according to Art. 409(3) of the Code of Civil Procedure, only if the relationship involves the performance of continuous and coordinated work, predominantly personal. This requirement is deemed to be lacking, excluding the application of the labour rite, where the agent operates through a partnership or a corporation, or has organised its activity with entrepreneurial criteria, running an independent business.

The predominant personality of the work is a distinctive requirement of all parasubordination relationships, including agency relationships, as provided for in Art. 409.3 of the Code of Civil Procedure. This requirement is waived if the agent's personal and direct contribution to the activity is less significant than the organisation and coordination of an autonomous structure. This situation arises if the agent's personal and direct contribution to the performance of the characteristic activity is less than that to the organisation and coordination of an autonomous structure.

For example, the jurisdiction of the ordinary courts has been recognised for an agency of considerable size, with twelve employees, four sub-agents and thirteen social security advisors, as well as a large client portfolio, such that it required the administrative, technical and financial management by a limited partnership.[3]

In the case at hand, the Court of Cassation upheld the judgment of the Court of Piacenza, observing that the territorial extension of the mandate (Italy and Switzerland), the commercial network composed of six collaborators for the promotion and conclusion of business, their remuneration by the agent, the assignment of distinct areas of competence, and the collaboration of two architects, clearly indicated an organisation of the activity in entrepreneurial form. This organisation was set up and managed by the agent, with personal work taking precedence over that typically associated with it.


3. Unilateral amendments to the contract.

Cass. civ., Sec. lavoro, Order, 05/04/2023, no. 9365

This judgment confirmed a now more than constant orientation, according to which in an agency contract, the following are considered null and void under Art. 1346 e 1418 c.c., clauses granting the principal unlimited power to unilaterally change the basis of calculation and thus the amount of the commission. The present case concerned the recognition that the principal could reserve the right to grant extra discounts in an unspecified amount and to an unspecified number of customers, thus rendering an essential element of the contract, such as the consideration due to the agent, undetermined and undeterminable.

Although the Civil Code recognises the possibility of unilateral variations (such as those related to counter-performances, contemplated in Arts. 2103 e 1560 c.c.), it is essential that such modifications be predetermined, by means of intrinsic features or external limits, so as to make it possible to form the consent to the conclusion of the contract on several determined objects envisaged as alternatives.

Consequently, a clause reserving to the principal the choice, at the time of the conclusion of the contract or during the course of the relationship, between several commission systems determined in their overall economic effects, thus allowing the agent to represent the alternative possibilities accepted with the conclusion of the contract, was considered legitimate.[4]

Conversely, the clause whereby the principal reserves the right, at any time and upon prior notice, to deal directly with certain non-defined customers, without paying the agent the commissions on the sales thus made and thus emptying the content of the contract, was declared null and void as a merely potestative condition.[5]

Similarly, it was declared null and void for vagueness of purpose (ex art. 1346 e 1418 c.c.) the clause of an agency agreement that allows the principal to unilaterally modify the commission rates with the sole burden of notice, excluding that the determination of an essential element of the contract, such as the consideration for the agent's activity, is left to the mere arbitrariness of the principal.[6]


4. Commissions

Court of Appeal Rome, Labour Section, Judgment, 20/02/2023, no. 428

The article 1748 of the Civil Code regulates the agent's right to commission, establishing the criteria and conditions for its accrual, collectability and restitution. The legislation can be understood through the following key points:

1. Accrual of Entitlement to Commission (para. 1) The agent is entitled to commission for all business concluded during the contract if the transaction has been concluded as a result of the agent's action. This establishes the principle that commission is due in relation to the effectiveness of the agent's action in bringing the transaction to a conclusion.

2. Enforceability of commission (para. (4)) The commission becomes due from the time and to the extent that the principal has performed, or should have performed, the service under the contract concluded with the third party. Moreover, commission is due to the agent, at the latest, at the time the third party has performed or should have performed the service, provided that the principal has fulfilled its obligations. This establishes a direct link between the performance of the transaction and the agent's right to receive commission.

3. Return of commissions (para. 6) The agent is obliged to return the commissions collected only if it is certain that the contract between the third party and the principal will not be performed for reasons not attributable to the principal. Any agreement that is more unfavourable to the agent is void. This implies that the agent may be required to return the commission if the deal does not materialise for reasons not attributable to the principal.

Accordingly, even if an agency agreement includes a clause considering the commission statement to be approved if it is not contested within a certain period (e.g., 30 days), the approval of the statement of account does not prevent the validity and effectiveness of the individual obligatory relationships from being contested.[7]

In any event, the inclusion in the commission account reverses the burden of proof of the existence of the fundamental relationship.[8] However, this does not prevent the principal from evading payment of the commission by proving (by specific allegations and evidence on his part) that the contract was not performed for reasons not attributable to him.


5. Access to books

Bari Court of Appeal, Labour Section, Judgment, 28/06/2023, no. 1038

The article 1749 of the Italian Civil Code establishes a fundamental principle in the context of agency relationships: the principal is required to act with loyalty and good faith towards the agent. This principle implies the imposition of specific duties on the principal to ensure transparent and proper management of the agency relationship. These duties include the obligation to provide the agent with all documentation and information necessary for the effective and complete performance of its mandate. In addition, the principal must regularly, at least on a quarterly basis, provide the agent with a detailed statement of the commissions due, thus providing a clear and detailed overview of the transactions carried out.

At the same time, the legislation grants the agent an express right to request and receive all information necessary to verify the amount of the commission paid. This includes, in particular, the right of access to extracts from the principal's books. The aim is to enable the agent to autonomously and accurately check the commissions due to him, in line with the principles of good faith and fairness governing the agency relationship.

It must be pointed out, however, that the right of access to accounting documents is not an end in itself, but is functionally and instrumentally connected to the satisfaction of the right to commissions and indemnities connected to the agency relationship. In this sense, it has been affirmed that the acquisition of the documentation in the sole possession of the principal must be indispensable to support, at the evidentiary level, the request formulated in relation to specific or determinable rights, the lack of indication of such quantitative data being admitted when it derives from the non-fulfilment of the obligation to provide information imposed by law on the principal and, first and foremost, of the contractual obligation concerning the sending of commission statements.[9]

It is therefore incumbent on the party acting for the purpose of obtaining the production of the documents to plead and prove the existence of the interest in bringing the action, with detailed reference to the relevant events of the relationship (including, first and foremost, the sending or not of the commission statements and their contents) and the indication of the rights, whether or not determined, for the ascertainment of which the request is aimed.[10]

It should also be noted that within the scope of the investigative authority of the labour court, the issuance of an order to produce evidence pursuant to Article 210 of the Code of Civil Procedure remains a discretionary power of the trial judge. This judge is not required to give reasons for the decision to resort to this residual investigative tool, which is operative exclusively when there are no other means available to acquire the evidence of the facts, and must not serve merely exploratory purposes on the part of the party requesting the order.[11]

In this context, the Court ruled that the production of documents may not be ordered when the party would have had the opportunity to obtain those documents independently and present them in court. Only where specific documents are not otherwise obtainable and the party proves that it was prevented from producing them, may the order to produce them be considered justified.

In the case at hand, the appellant invoked the right to inspect the VAT Registers relating to the sales invoices issued by the opposing party with a request that was deemed generically exploratory and lacking the necessary instrumental purpose. The appellant, in fact, did not provide any concrete indications that those registers might have revealed discrepancies from the statements of account already submitted to the analysis of the expert witness, thus resulting in a request lacking the necessary foundation that would justify its admissibility according to the criteria outlined by the aforementioned case law.


6. Termination of contract

Court of Appeal Milan, Labour Section, Judgment, 10/02/2023, no. 1033

The agency termination indemnity, provided for in Article 1751 of the Italian civil code, imposes an obligation on the agent to prove the actual termination of the relationship. Without this substantiation, the indemnity is not granted.

In the situation at hand, the principal had informed the agent of the termination of the existing agency agreement with the company producing the products promoted by the agent. The Court held that the mere notice of termination of the dealership contract by the principal was not sufficient to demonstrate an intention to also terminate the related agency relationship. It should be noted that in the notice sent to the agent, the principal announced that it was considering negotiating new contractual terms with the franchising company as an individual dealer, concluding the notice with an undertaking to update the agent on developments in the negotiations.


Court Rome, Sec. XVII, Judgment, 11/04/2023, no. 5790

With regard to agency contracts, theArticle 1751 c.c. provides that the agent, within the short term of one year, must formulate a written request for payment of the termination indemnities, under penalty of forfeiture, while within the five-year limitation period the agent must bring the relevant action.


Court of Appeal Cagliari Sassari, Labour Section, Judgment, 22/02/2023, no. 37

On the subject of an agency contract, the fact constituting entitlement to the indemnity ex Article 1751 c.c. is the termination of the relationship, as referred to in the first paragraph of the aforementioned codified provision, together with the conditions set forth in the subsequent clauses of the same article, whereas the circumstances typified in the second paragraph constitute impeding facts.


7. Express termination clause

It should be noted that on the subject of express termination clauses there are two divergent jurisprudential orientations, which are set out below.

  1. Civil Cassation, Section II, Order, 23/06/2023, No. 18030

According to this interpretation, termination without notice from an agency relationship is permitted only in the presence of a cause preventing the continuation of the relationship, even temporarily, as provided for in Art. 1751(2) of the Civil Code. This judgement emphasises that recourse by the principal to an express termination clause nevertheless requires a judicial verification of the existence of a breach constituting just cause for termination, pursuant to Art. 2119 of the civil code. In this review, the judge must consider the economic dimensions of the contract, the impact of the breach on the contractual balance and the seriousness of the conduct, taking into account the agent's position and the intensity of the relationship of trust in the agency relationship. The judgment refers to the most recent guidelines of the Supreme Court.[12]


  1. Court of Appeal Milan, Labour Section, Judgment, 16/02/2023, no. 120

This second orientation states that it is legitimate to include an express termination clause pursuant to Article 1456 of the Civil Code in the agency relationship. In the presence of such a clause, the court does not have to assess the extent of the non-performance in relation to the counterparty's interest, but only has to ascertain whether the non-performance is attributable to the obligor. The express termination clause, therefore, entitles the contracting party to obtain termination of the contract for a specific non-performance of the other party without having to prove its importance. Here, too, the judgment cites precedents of the Supreme Court, albeit older ones.[13]

In the present case, the judge ascertained the documentary circumstance that the agreed minimum had not been reached and considered irrelevant the fact that the decision to terminate the collaboration took place two years after the failure to reach the budget, also taking into account the fact that in the present case the termination of 24/3/15 was also based on the failure to reach the budget for 2014 and not only for 2013) or that there had been no prior objections by the principal.



Still on the subject of waiver of the express termination clause, the Bari Court of Appeal, Labour Section, Sent., 28/06/2023, no. 1038, referred to a guideline of the Supreme Court, which excluded the possibility of considering the implied waiver of the termination of the contract under Art. 1456 c.c. by virtue of the mere forbearance of the aggrieved party, clarifying that

"The operation of the express termination clause ceases as a consequence of the waiver by the party concerned to avail itself of it, but, where tacit waiver is inferred - which is still an act of abdicative will, even if not expressly manifested, but by conduct incompatible with the preservation of the right - the court's investigation to ascertain its existence, implying the resolution of a questio voluntatis, must be conducted in such a way that no reasonable doubt as to the waiver claimant's actual intention arises. Tolerance by the assignee - which may take the form of either negative conduct (failure to give notice of the declaration to rely on the term immediately after the non-performance) or positive conduct (acceptance of partial performance) - does not in itself constitute evidence of implied waiver, if it is determined not by a desire to discontinue the use of the termination clause but by other motives, and the court, if it finds that there is no implied waiver but only acquiescent conduct, may not attach any legal significance to it for the purpose of rendering the termination clause inoperative.[14]


8. Severance pay

Cass. civ., Sec. lavoro, Ordinanza, 02/08/2023, n. 23547

For the purposes of determining the indemnity in the event of termination of the agency relationship due to the principal's withdrawal, ex Article 1751 In accordance with the Italian Civil Code, the basis of assessment must include not only accrued commissions, but also those received as 'commissions', since the provisions of the code refer, in relation to the profile of the 'quantum', to the broader concept of 'remuneration received' and not only commissions. This is in accordance with European Directive 86/653, which distinguishes between remuneration and commissions in Articles 6(1) and (2) and 17, but for the purposes of calculating the indemnity refers not only to commissions but also to the other sums referred to in the legislation by the term remuneration. The Court, on the basis of this reasoning, held that it was possible to use as a basis for calculating the ceiling not only the commissions accrued by the agent, but also those received as 'fixed commissions' (in this case higher than what was actually accrued).

Considering that fixed commissions may also be included in the maximum calculation under Art. 1751 of the Civil Code, it is important to note that the rule does not specify a precise method of computation. Therefore, reference must be made to the criteria set forth therein for the calculation. These criteria do not relate solely to the development of customers or business by the agent and the retention by the principal of substantial advantages resulting from the promotion activity performed by the agent, but also to the fairness of the allocation, in view of the circumstances of the case and in particular the commissions lost by the latter.[15]

Bearing in mind that the purpose of the provision of the Code is to compensate the agent for the loss of the contract and thus of the advantages that the contract would have procured to it, if the unjustified termination occurs after a short period of time from the beginning of the relationship, the loss may be related to the work actually performed for the penetration of a new market and the efforts made in the same direction, taking as a parameter for the calculation of the indemnity also fixed commissions. These commissions, while not directly indicative of the sales promotion activity, may be a useful parameter in determining the appropriate compensation.


Court of Appeal Milan, Labour Section, Judgment, 17/02/2023, no. 1111

On the subject of agency contracts, theArticle 1750 c.c. expresses a substantive precept that prohibits agreements that alter the equality of the parties with regard to withdrawal, with the consequence that they are null and void for fraudulent evasion of the law (pursuant to theArticle 1344 (c) an agreement that, in addition to the obligation to pay the indemnity for lack of notice, includes a penalty clause which, being excessively onerous on account of its very high amount, significantly affects the normal right of either party to withdraw, severely limiting it and thereby circumventing the mandatory principle of the equality of the parties in the matter of withdrawal.

The case examined by the Brescia Court of Appeal referred to in the judgment is different,[16] which, on the other hand, held that a penalty clause provided for in the event of withdrawal was lawful, given that it would not be applied in the case of withdrawal by the principal without just cause and, above all, in the case of withdrawal by the promoter for just cause.


Court of Justice of the European Union, Sec. III, 23/03/2023, no. 574/21

Article 17(3) of the Directive 86/653 aims at repairing the harm suffered from the termination of its relationship with the principal. This is the case where the commercial agent is deprived of the commissions that would have accrued to it from the performance of the contract, while at the same time providing the principal with substantial benefits in connection with the commercial agent's activity, or under conditions that did not allow the commercial agent to amortise the charges and expenses incurred in the performance of the contract on the principal's recommendation.

Article 17(2) of the Directive 86/653 also includes future commissions that the agent would have earned if the agency contract had not been terminated. Therefore, in determining the termination indemnity, in accordance with the terms of the law, commissions for transactions that would have been concluded after termination of the contract, either with new customers acquired by the principal prior to termination, or with customers with whom the agent has significantly developed business, must be taken into account.

Similarly, Article 17(2)(a) of the Directive 86/653 must be interpreted as meaning that the payment of one-off commissions does not exclude from the calculation of the indemnity provided for in Article 17(2) the commissions which the commercial agent loses and which result from transactions carried out by the principal, after the termination of the commercial agency contract with the new customers which the commercial agent procured for him before that termination, or with the customers with whom he substantially developed business before that termination, where those commissions correspond to flat-rate remuneration for each new contract concluded with those new customers, or with the principal's existing customers, through the intermediary of the commercial agent.


9. Non-competition agreement

Court of Appeal Milan, Sez. lavoro, 23/03/2023, no. 327

Although Art. 1751-bissecond paragraph, expressly provides that acceptance of the covenant not to compete entails, on termination of the relationship, the payment to the commercial agent of an indemnity of a non-providential nature, according to the Court's guidance, that provision of the legislation may be derogated from by agreement between the parties, since it is not covered by an express sanction of nullity and is not intended to protect a public interest. Moreover, the provision in force does not apply to agency contracts signed prior to the entry into force of theArticle 23(1), Law No. 422 of 29 December 2000 (Community Law 2000), in view of the non-retroactivity of the law and its consequent operability only for the future.


10. Damage compensation

Cosenza Court, Labour Section, Judgment, 11/01/2023, no. 1969

In the context of the agency relationship, on the subject of compensation for damage to image, it is not sufficient for the principal to assert generically that it has suffered a loss of prestige and professional credibility due to the agent's actions. This alleged harm cannot be assumed in re ipsa merely because the insured, upon learning of the change of agent, might develop a negative opinion of the former agent.

It is necessary, however, that the harm to the image be specifically proved and proven by the applicant. The court, in its assessment, must not rely on abstract hypotheses but rather on concrete evidence of the harm actually suffered by the injured party. Therefore, its liquidation must be carried out by the judge, with an ascertainment of fact not open to review by the court of law, on the basis not of abstract evaluations but of the concrete prejudice presumably suffered by the victim, as deduced and demonstrated by the latter, also by means of serious, precise and concordant presumptions.[17]


11. Bankruptcy

Cass. civ., Judgment of 26/09/2023 no. 27384

The compulsory liquidation of the principal's company does not automatically entail the termination of the employment relationship with the agent, thus allowing the agent to claim indemnities for loss of notice or termination of employment, for the period in question, if it can prove that the conditions are met.

Civil cassation, Judgment No. 10046 of 14/04/2023

This ruling states that in the event of the principal's bankruptcy, the ongoing agency contract is not automatically terminated, but the general rule of suspension and the curator's choice of whether to continue or terminate the contract applies. According to Art. 72 of the Bankruptcy Act, the contract is suspended and does not follow the provisions of Article 78agency contract cannot be assimilated to a mandate contract, given the continuous and stable nature of the agent's activity.

The liquidator has the discretion to decide whether or not to take over the pending agency agreement, without the need for the authorisation of the creditors' committee. The choice may also be manifested by conclusive facts, such as the exclusion of the agent's claims from the statement of liabilities.

In the event of the termination of the agency relationship following the principal's bankruptcy, the agent's claims relating to the indemnity in lieu of notice and the agents' termination indemnity may be admitted in the bankruptcy proceedings, since these indemnities are not in the nature of remuneration or damages, but of an indemnity nature.


12. Business Procurement

Court of Appeal Rome, Sec. III, 17/03/2023, no. 1119

The distinguishing features of the agency contract are the continuity and stability of the agent's activity of promoting the conclusion of contracts in a given area on behalf of the principal (Art. 1742 of the Civil Code.), thus realising with the latter a non-episodic autonomous professional collaboration, with the result at its own risk and with the natural obligation to observe, in addition to the rules of fairness and loyalty, the instructions received from the principal; on the other hand, the business intermediary's relationship takes the form of the more limited activity of a person who, without any stability bond and on a wholly episodic basis, collects customers' orders, transmitting them to the entrepreneur from whom he has received the assignment to procure such commissions; whereas the agent's service is stable, since he is obliged to carry out the activity of promoting contracts, the intermediary's service is occasional in the sense that it depends exclusively on his initiative.[18] It follows that the agency relationship and the business procuring relationship do not differ only because of the stable nature of the former and the optional nature of the latter, but also because the business procuring relationship is episodic, i.e. limited to specific individual business, is occasional, i.e. of limited duration and has as its object the mere referral of customers or sporadic collection of orders and not the stable promotional activity of concluding contracts.[19]



[1] Cass. Civ. no. 1657 of 2017.

[2] Cass. no. 20461/20, conf. Cass. no.. 17073/13.

[3] Cassation No. 18040 of 2007.

[4] Supreme Court No. 11003 of 1997

[5] Supreme Court No. 11003 of 1997.

[6] Supreme Court No. 4504 of 1997.

[7] Supreme Court No. 14767 of 2000.

[8] Cassation No. 13506 of 2014

[9] cf. Cassation No. 18586 of 2007, Cassation No. 14968 of 2011, Cassation No. 21219 of 2015.

[10] Cassation No. 19319 of 2016.

[11] Supreme Court No. 31251 of 2021.

[12] Cassation Sec. lav. No. 30488 and No. 22246 of 2021; Cassation Sec. lav. No. 24368 of 2015; Cassation Sec. lav. No. 10934 of 2011; Cassation No. 6008 of 2012.

[13] Cassation No. 7063 of 1987; Cassation No. 4659 of 1992; Cassation No. 4369 of 1997; Cassation No. 8607 of 2002.

[14] Civil Cassation, Sec. I, 18 June 1997, No. 5455.

[15] Cassation No. 23966 of 2008; Cassation No. 15203 of 2010; Cassation No. 15375 of 2017.

[16] Bresca Court of Appeal No. 246 of 2021.

[17] Cassation No. 4005 of 2020.

[18] Cassation No. 19828 of 2013; Cassation No. 13629 of 2005.

[19] Cassation No. 2828 of 2016; Cassation No. 19828 of 2013.