The social security obligation of the Italian agent and the foreign principal.

The ENASARCO Foundation is the National Assistance Board for Agents and Sales Representatives and was established in 1938. Since 1973[1] ENASARCO has become an entity governed by private law that pursues purposes of public interest through the management of supplementary compulsory forms of pensions in favour of Commercial Agents and Representatives and whose public control is entrusted to the Ministry of Labour, Health and Social Policies and the Ministry of Economy and Finance.

ENASARCO's activities, legal nature and the tasks that the Foundation pursues are governed by the Regulation of Institutional Activities, which was recently amended on 1 January 2012.

Articles 1 and 2 of the Regulation impose the obligation of registration and consequently of contribution to the ENASARCO Foundation on all agents (whether in individual or company form) operating on the national territory on behalf of Italian principals or foreign principals having their head office or any .

There is nothing in the 2012 Regulations on the obligation of registration of agents operating in Italy in favour of principals from the European Union who do not have a head office or dependency in Italy. This regulatory 'gap' has been filled by a circular of ENASARCO[2] and an interpellation by the Ministry of Labour[3] which also extended the obligation to register to the following categories:[4]

• for agents operating in Italy and abroad, provided that the agent resides in Italy and performs a substantial part of its activities there;
• for agents operating in Italy and abroad who do not reside in Italy, provided that the agent has its centre of interests in Italy (assessed by reference to the number of services rendered, the duration of the activity, and the will of the person concerned);
• for agents who habitually work in Italy and who go to perform activities exclusively abroad, provided that the duration of such activity does not exceed twenty-four months.

As to the annual amount to be set aside by the principal in the FIRR, it is quantified by the AEC industry 2014 as follows:[5]

"Single agent or sales representative in

• 4% on the portion of commissions up to Euro 12,400.00 per year;
• 2% on the portion of commissions between Euro 12,400.01 per year and Euro 18,600.00 per year;
• 1 % on the portion of commissions exceeding Euro 18,600.00 per year.

Agent or multi-firm representative:

• 4% on the portion of commissions up to Euro 6,200.00 per year;
• 2% on the portion of commissions between Euro 6,200.01 per year and Euro 9,300.00 per year;
• 1 % on the portion of commissions exceeding Euro 9,300.00 per year."

The compulsory social security rates, which the principal is required to pay annually to ENASARCO, are regulated in Article 4 of the Regulation and are equal to:

Contributions are calculated on all sums due to the agent for any reason in connection with the agency relationship, even if not yet settled, including advances and premiums (art. 4 of the Rules), but within the mandatory limit of € 37,500.00 per year if the agent is engaged in business for a single principal and € 25,000.00 for each principal of a multi-firm agent (art. 5 of the Rules).

In the event of failure to pay contributions on the part of the principal, Article 36 of the Regulation imposes as a penalty the payment of a rate of 5.5% per annum on the amount of contributions not paid by the due date, with a cap of 40%.

It is important to emphasise that although the obligation to pay contributions is borne equally by the principal and the agent, it should be noted that the principal is solely responsible for the payment of contributions, even for the part borne by the agent, and that such payments must be made '.with a maximum periodicity of three months, in relation to sums owed to the agent for any reason."

As for the limitation period of ENASARCO's right to claim payment of contributions, it is five years.[7] On the other hand, the prescriptive term of the agent's action for damages for failure to pay or insufficient payment of ENASARCO contributions is ten years, commencing from the time when the agent, having reached retirement age, loses the relative right or sees it reduced by reason of the omission.[8]

As already mentioned in the introductory part of this article, to which we refer,[9] the pension scheme managed by ENASARCO represents a unique case not only in Europe, but also in Italy, since it is supplementary to the pension that agents are obliged to pay personally to INPS.[10] Representatives and commercial agents are therefore obliged to pay contributions to two bodies: on the one hand, personally to the INPS and, on the other hand, to ENASARCO, whose contribution, as we have seen, is paid by the principal as withholding agent.[11]

As regards the quantification of INPS contributions, a variable rate of approximately 20/23% is envisaged. It should be noted, however, that on the portion of income exceeding € 100,324.00 for those enrolled after 01.01.1996 (and € 76,718.00 for those enrolled before that date), there is no obligation to pay INPS.

[1] Pursuant to Law No. 12 of 2 February 1973

[2] AIS Circular No. 2/2012 protocol number AIS/46.

[3] Ministry of Labour Interpretation No. 32/2013.

[4] See also Baldi-Venezia, The Agency Contract, 2014, GIUFFRÈ.

[5] The FIRR provided by the 2014 AEC industry is given as an example; however, it is noted that the FIRR provided by the other AECs in force to date are generally in line with this collective agreement.

[6] Article 7, Law No. 12 of 2 February 1973.

[7] Cass. 1983 No. 5532.

[8] Cass. Civ. 1983 No. 5532.

[9] See § 1 of this article.

[10] See footnote 1

[11] The recognition of this special status of the Fund dates back to Law 613/1966 and has remained unchanged to this day.