How is the indemnity for the termination of a contract calculated according to the AEC Commerce 2009?
Article 13 of the 2009 AEC trade, divides the severance payment into three components (on this point see also calculation of indemnity pursuant to art. 1751 of the civil code., calculation of former AEC 2014 allowances, calculation of ex ANA allowances 2003):
- termination indemnity, set aside by the principal in the ENASARCO fund (FIRR) (Chapter I);
- supplementary customer indemnity paid to the agent or representative even in the absence of an increase in customers and/or turnover (Chapter II);
- merit-based allowance, linked to an increase in customers and/or turnover (Chapter III).
I. FIRR
The FIRR is set aside with ENASARCO by the principal and, upon termination of the relationship, is due to the agent irrespective of any increase in customers and/or business.
The obligation to set aside the FIRR only exists if the AEC apply to the relationship. The AEC are only applicable to the contract if both parties (principal and agent) are members of the contracting trade unions, or, otherwise, the parties have expressly referred to the AEC in the contract, or have provided for their implicit application in the course of the relationship (e.g., where the principal has provided for a spontaneous, constant and uniform application of certain provisions of the AEC).[1] This implies that in the event of non-application of the AEC, the principal is not required to set aside the FIRR, but only to pay social security contributions to Enasarco.[2] (on this point cf. the social security obligation of the Italian agent and the foreign principal).
It is important to note that case law[3] and doctrine,[4] unequivocally hold that the claim for payment of the FIRR must be made against Enasarco and not against the principal, except for any sums not set aside by the latter.
This allowance is calculated annually as follows:
ONE-MAN AGENT
- 4% on the portion of commissions up to € 12,400 per year
- 2% on the portion of commissions between € 12,400 p.a. and € 18,600 p.a.
- 1% on the portion of commissions exceeding € 18,600 per year
MULTI-FIRM AGENT
- 4% on the portion of commissions up to € 6,200 per annum
- 2% on the portion of commissions between € 6,200 p.a. and € 9,300 p.a.
- 1% on the portion of commissions exceeding € 9,300 per year
II. SUPPLEMENTARY ALLOWANCE
It will be recognised at the following rates:
| 3% | on commissions accrued in the first three years of the agency relationship |
| 3,50% | on commissions accrued from the fourth to the sixth completed year |
| 4,00% | on commissions accrued in subsequent years |
This indemnity shall be due in all cases where the relationship has been in force for at least one act and where the resignation of the agent is due to
- permanent and total disability;
- for infirmity and/or illness for which he cannot reasonably be required to continue the relationship;
- attainment of Enasarco and/or Inps old age pension;
- for circumstances attributable to the principal (Art. 1751 of the Civil Code);
- in the event of death. In that case, the indemnities shall be paid to the legal or testamentary heirs.
In any event, in addition to the above cases, since according to majority case law, AECs represent a guaranteed minimum treatment for the agent,[5] such indemnity is granted to the agent upon termination of the relationship, irrespective of proof by the agent that it has developed the principal's business and/or clientele, as is the case with the civil law indemnity under Art. 1751 of the Civil Code (on this point see severance pay in agency contracts).
III. MERITOCRATIC ALLOWANCE
The AEC Commerce 2009 provides for a rather structured calculation to quantify the meritocratic allowance, which will only be paid to the agent if it is higher than the sum of the two allowances analysed above (FIRR + supplementary).
The calculation of the meritocratic allowance is as follows:
- Determination of theincrease in customersconsisting of the difference between the commissions received by the agent at the beginning and at the end of the relationship, bearing in mind that the prognosis period will vary according to the duration of the relationship, according to the following table:
| DURATION OF THE RELATIONSHIP | PERCENTAGE INCREASE IN TURNOVER | PERCENTAGE OF INDEMNITY WITH RESPECT TO THE MAXIMUM VALUE DETERMINED PURSUANT TO ARTICLE 1751 OF THE CIVIL CODE (FROM WHICH INDEMNITY F.I.R.R. AND SUPPLEMENTARY CLIENT INDEMNITY ARE DEDUCTED |
| Up to 12 months (1st year) | 0 to 5% | - |
| 5 to 30% | 25% | |
| 30 to 60& | 30% | |
| 60 to 150% | 40% | |
| Beyond 150% | 100% | |
| 12 to 24 months (2nd year) | Up to 30% | 30% |
| 30 to 60% | 35% | |
| 60 to 150% | 40% | |
| Beyond 150% | 100% | |
| 24 to 36 months (3rd year) | Up to 30% | 35% |
| 30 to 60% | 40% | |
| 60 to 150% | 45% | |
| Beyond 150% | 100% | |
| 36 to 48 months (4th year) | Up to 30% | 40% |
| 30 to 60% | 45% | |
| 60 to 150% | 50% | |
| Beyond 150% | 100% | |
| 48 to 60 months (5th year) | Up to 30% | 45% |
| 30 to 60% | 50% | |
| 60 to 150% | 55% | |
| Beyond 150% | 100% | |
| From 60 months onwards | Up to 30% | 50% |
| 30 to 60% | 55% | |
| 60 to 150% | 60% | |
| Beyond 150% | 100% |
- In order to identify the real value of the increase in turnover provided by the agent, the turnover volume, understood as the volume of sales made by the principal in the area or for the clientele entrusted to the agent, will be taken into account.
- For the determination of the percentage increase, the values of the turnover volume, understood as the volume of sales made by the principal in the area or for the clientele entrusted to the agent, at the beginning of the relationship (initial value) shall be compared with the values of the turnover volume, understood as the volume of sales made by the principal in the area or for the clientele entrusted to the agent, at the end of the relationship (final value), as follows
| Duration of relationship | Initial value | Final value |
| For the first year of the relationship | Average turnover for the first 3 months | Average turnover over the last 3 months |
| For the second year of the relationship | Annual average of turnover volume for the first 2 quarters | Annual average turnover volume of the last 2 quarters |
| For the third year of the relationship | Annual average of turnover volume for the first 3 quarters | Annual average turnover volume of the last 3 quarters |
| From the beginning of the fourth year to the end of the sixth year of the relationship | Annual average of turnover volume for the first 8 quarters | Annual average turnover volume of the last 8 quarters |
| From the beginning of the seventh year to the end of the ninth year of the relationship | Annual average of turnover volume for the first 12 quarters | Annual average of turnover volume over the last 12 quarters |
| From the beginning of the tenth to the end of the twelfth year of the relationship | Annual average of turnover volume for the first 16 quarters | Annual average turnover volume of the last 16 quarters |
| Beyond the 12th year of the relationship | Annual average turnover volume of the first 20 quarters | Annual average turnover volume of the last 20 quarters |
- Finally, the initial figure is made homogeneous with the final figure by applying to it the Istat revaluation coefficient for labour credits.
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[1] See Bortolotti, Distribution Contracts, 2016, Wolter Kluwer, p. 87 ff.
[2] Trib. Rome 14.1.2010.
[3] Trib. Bari 2.5.2012.
[4] Bortolotti, Distribution Contracts, 2016, Wolter Kluwer, p. 365 ff.
[5] See on this point Cass. Civ. 2014 no. 7567. However, it should be noted that the European Court of Justice, in a judgment of 23 March 2006, challenged the legitimacy of the supplementary client indemnity as provided for by the AEC, which allows the agent to receive a termination indemnity in any event, even if the agent has not actually developed the principal's clientele and the latter benefits from it even after the termination of the relationship; in line with this orientation there is a minority direction of the case law on the merits, which has held the AEC inapplicable to our system and has therefore not recognised the agent's entitlement to the rules set out therein as a guaranteed minimum (Tribunale Treviso 29 May 2008. Tribunale Treviso 8 June 2008; Tribunale di Roma 11 July 2008).
