The agency contract and the employment relationship: distinguishing criteria and evaluation parameters.

When speaking of an agency, it is safe to say that this figure should be included in the category of the self-employed.

In fact, although in the definition of commercial agent formulated in Article 1746 of the Civil Code there is no reference to the independence of the agent's work activity, European legislation 86/653/EEC (on which the Italian model is based) had made specific reference to the agent as a worker independenthowever obliged to "adhere to the reasonable instructions given by the principal."

Already from a first reading of the regulations it is clear that the agent, although independent and carrying out his activities independently, must nevertheless comply with the provisions of the principal, who is in charge of deciding the company's commercial policies. This relationship of interdependence, which is very delicate, is more clearly regulated by the AEC Commerce 2009 and Industry 2014, which in Art. 1 para. 3 provide as follows:

"[The agent [is] obliged to direct the principal's distribution policies in accordance with the instructions provided by the principal. The principal decides in broad strokes what the agent is to do, without being able to interfere in the manner in which the agent intends to achieve the required result. "^[1]

From the combined analysis of the above-mentioned rules, it is clear that:

• On the one hand, the principal may not impose obligations on the agent that are incompatible with its autonomy;
• on the other hand, the agent, although operating under full autonomy, is nevertheless obliged to follow in broad strokes the directives of the principal.

If, on the other hand, the relationship has characteristics similar to those of a subordinate job, it can be qualified as an employment relationship, regardless of the nomen iuris with which the parties have qualified the relationship.[2] According to a constant orientation of the Supreme Court, the distinguishing element between the two figures is characterised by the:

"subordination of the worker to the organisational, managerial and disciplinary power of the employer."[3]

It follows, therefore, that the cooperation provided by the agent must be carried out under a regime of autonomy, whereas that provided by the employee is carried out under a regime of hierarchical subordination, with the employer organising the employee's energies[4] (cf. also The natural person agent, parasubordinate work and the employment rite). In fact, while on the one hand the agent must exclusively coordinate with the principal on the activities to be performed, the employee, pursuant to Art. 2094 of the Civil Code, performs work activities that are organisationally coordinated in time and space by the employer, who may from time to time intervene in the performance of the service by specifying the manner in which it is to be performed, to which the employee must necessarily conform (c.d. obligation of obedience).[5]

However, it is not always easy to delineate to which category a worker belongs, given that both the figures of both the employee and the commercial agent are characterised by the stability of collaboration[6] (precisely this element, i.e. 'stability', distinguishes the agent from the business procurer, on this point see Art. What is the difference between an agency contract and a business intermediary?).

This complexity is further exacerbated in certain sectors where, due to the way the activity is carried out, the agent is de facto required to strictly follow the directives and timetables imposed not so much by the principal, but rather the market in which it operatesFor example, consider the figure of an agent promoting sales at a car dealership, who, in fact, is bound to promote sales in a certain display area and during the shop's opening hours.[7]

Since there is no single, 'decisive' element that makes it possible to understand whether a given relationship is to be qualified as agency or employment, it will have to be considering the different typical elements in the individual case of subordination (such as, for example, lack of decision-making autonomy, absence of risk, inclusion in the organisation of the company, obligation to comply with fixed timetables and itineraries fixed by the principal), bearing in mind that none of these alone allows the relationship to be considered subordinate, but rather an overall assessment of all of them must be carried out.[8] On this point, the Supreme Court ruled that:

"the agency relationship, the autonomous nature of which cannot be questioned, is not incompatible with the subjection of the staff member's work to directives and instructions as well as more or less intense and penetrating administrative and technical controls in relation to the nature of the business and the interest of the principalnor with the agent's obligation to visit and instruct other employees, nor with the principal's obligation to reimburse certain expenses incurred by the agent, nor, finally, with the principal's obligation to report daily to the principal."[9]

To give a practical slant to this article, however, it can be reasonably assumed that, by way of example, the principal may not:[10]

• impose the daily list of customers to visit (but he may ask to visit certain customers or categories of customers he cares about);
• programming the itineraries which the agent must follow (but may require the agent to organise the visits in such a way as to cover its area of competence adequately);
• decide theinternal organisation of the agency (but to demand certain standard quality of personnel, suitability of premises and number of employees according to the agent's promotional activity);
• impose detailed statements on the activities carried out by the agent (but ask report on market trends).[11]

A final issue, of great practical relevance, is that of the compatibility of the fixed remunerationwith the typical autonomy of the contractual relationship under consideration.

Although the European directive does not exclude the reconciliation of this method of remuneration with the figure of the agent, Italian jurisprudence (criticised by part of the doctrine[12]) declared itself against this thesis[13]In such a case, the agent, who would only receive a fixed remuneration, regardless of the results he brings, would not assume any entrepreneurial risk, which is the distinguishing feature of this figure.

In any case, case law considers forms of mixed remunerationunder which a fixed component is combined with a variable component. Such a solution whereby the agent is assured a "guaranteed minimum"is considered lawful and compatible with the agency employment relationship.[14]

_______________________

[1] BORTOLOTTI, The Commercial Agency Contract, Vol. I, p. 86, 2007, CEDAM.

[2] Cass. Civ. 2004, no. 9060.

[3] Cass. Civ. 1990 no. 2680.

[4] BALDI - VENEZIA, In contratto di agenzia, p. 33, Giuffrè Editore.

[5] PERINA - BELLIGOLI, The Agency Relationship, p. 27, Giappichelli Editore

[6] Trib. Milan 8 March 20210, in Agents and Sales Representatives 2012, No 3 p. 31. The Court of Milan states on this point that "the agent's obligation consists in visiting, on a stable and continuous basis, all possible customers and making a predetermined contractual proposal (predetermined by the principal, as to its essential aspects) to the principal.

[7] On this point see also Cass. Civ. 2009 no. 9696. In the present case, the S.C. held that the territorial court had correctly ruled out the existence of a relationship of subordination since, on the one hand, since the person concerned carried out the activity of propagandist or promoter for the sale of educational equipment for schools and universities his working hours necessarily had to coincide with the opening hours of those institutions and did not constitute a decisive indication, while, on the other hand, he had repeatedly qualified himself, in the course of the relationship, as an agent and not as an employee, his contract had been concluded in order to replace another previous agent and he was under no obligation to justify his absences.

[8] BORTOLOTTI, Distribution Contracts, p. 129, 2016, Wolters Kluwer.

[9] Cass. Civ., 1990 no. 2680, Cass. Civ. 2001, no. 11264. In this judgment, the Supreme Court therefore held that "an agency relationship had existed between the parties, irrespective of the length of time over which it had lasted, in that the agent, although having to give an account in a daily report of the work performed and although having to follow an itinerary predetermined by the principal, did not lose the agent's autonomy with the possibility of choosing customers within the area assigned to him and with the possibility of adopting the working methods considered most suitable."

[10] BORTOLOTTI, The Commercial Agency Contract, Vol. I, p. 88, 2007, CEDAM.

[11] On this point it is important to note that the AEC Commerce and Industry, which provide in Art. 1 para. 3 that the agent is "obliged to keep the parent company constantly informed of the situation on the market in which it operates, it is not, however, obliged to report at predetermined intervals on the performance of its activities'. It is therefore important to emphasise that the principal may not demand from the agent periodical reports on the performance of the agent's activities (e.g. reports on visits made), but may instead ask him to be informed, even periodically, of market conditions and relevant data (names of customers visited and results of visits).

[12] PERINA - BELLIGOLI, The Agency Relationship, p. 27, Giappichelli Editore; Saracini-Toffoletto, p. 327 ff.

[13] Cass. Civ. 1986 no. 3507; Cass. Civ. 1991 no. 10588; Cass. Civ. 2012 no. 12776. The latter judgment went so far as to admit that "in the agency relationship the parties may provide for a form of remuneration for the agent's services other than a commission determined as a percentage of the amount of business concluded (such as a fixed sum for each contract concluded), but without going so far as to acknowledge that remuneration in the form of a commission can be entirely replaced by a fixed remuneration.

[14] See on this point Cass. Civ. 1975 no. 1346; Cass. Civ. 1980 no. 34; Trib. Di Milano 9 September 2011.