Italy – Influencers and Commercial Agents

28 Giugno 2024

Italia

Agenzia

Ignacio Alonso recently posted his interesting article “Spain – Can an influencer be considered a “commercial agent”” where he discussed the elements that – in some specific circumstances – could lead to considering an influencer as a commercial agent, with the consequent protections that Directive 86/653/CE and the individual legislation of the EU Member States offer, and the related costs to be borne by the companies that hire them.

Ignacio also mentioned a recent ruling issued by an Italian court (“Tribunale di Roma, Sezione Lavoro, judgment of March 4^th 2024 n.2615”) which caused a lot of interest here, precisely because it expressly recognized the qualification of commercial agents to some influencers.

Inspired by Ignacio’s interesting contribution, this article will explain this ruling in more detail and draw some indications that may be useful for companies that want to hire influencers in Italy.

The case arose from an inspection conducted by ENASARCO (social security institution for Italian commercial agents) at a company that markets food supplements online and which had hired some influencers to promote its products on social media.

The contracts provided for the influencers’ commitment to promote the company’s branded products on its behalf on social media networks and on the websites owned by the influencer.

In promoting the products, the influencers indicated their personalized discount code for the followers to use. With this discount code, the company could track the orders from the influencer’s followers and, therefore, originated from him, paying him commissions as a percentage of these sales once paid for. The influencer also received fixed compensation for the posts he published.

The compensation was invoiced monthly, and in fact, the influencers issued dozens of invoices over the years, accruing substantial compensation.

The contracts were stipulated for an indefinite period.

The inspector had considered that the relationships between the company and the influencers were to be classified as a commercial agency and had therefore imposed fines on the company for failure to register with ENASARCO and pay the contributions for social security and termination indemnity for rather high amounts.

The administrative appeal was rejected, therefore the company took legal action before the Court of Rome (Labour and Social Security section), competent for cases against ENASARCO, to obtain the annulment of the fines.

The company’s defense was based on the following circumstances, among others:

the online marketing activities were only ancillary for the influencers (in fact, they were mostly personal trainers or athletes)
they promoted the products only occasionally
they actually had no direct contact with customers, so they did not actually promote sales but only did some advertising
they did not have an assigned area or any obligations typical of the agent (e.g. exclusivity).

The Court of Rome rejected the company’s arguments, stating that the relationships between the company and the influencers were indeed to be considered as agency agreements, thus confirming ENASARCO’s claims.

These were the main points in the courts’ reasoning:

the purpose of the contracts stipulated between the parties was not mere advertising but the influencer’s promotion of sales of the company’s products to his followers, as confirmed by the discount code mechanism. Promotional activity can in fact, be performed in various ways, in this case, also considering the peculiarity of the web and social networks
there was an “assigned area”, which the Court identified precisely in the community of the influencer’s followers (the area is not necessarily geographical but can also be identified with a group or category of customers)
the relationship between the parties had proven to be stable and continuous, as evidenced by the quantity and regularity of the invoices for commissions issued by the influencers over the years for an indeterminate series of deals, documented with regular account statements
the contract had an indefinite duration, which highlighted the parties’ desire to establish a stable and long-lasting relationship.

What considerations can be drawn from this ruling?

First of all, the scope of the agency contract is becoming much broader than in the past.

Nowadays, the traditional activity of the agent who physically goes to customers to solicit sales, collect orders, and transmit them to the principal is no longer the only method to promote sales. The qualification as an agent can also be recognized by other figures who, in different ways – taking into account the specific industrial sector, the technology developments, etc.- still carry out activities to increase sales.

What matters is the agreed purpose of the collaboration, if it is aimed at sales, and whether the activity actually carried out by the collaborator is consistent with and aimed at this purpose.

These aspects need to be carefully considered when studying and drafting the contract.

Other key requirements for establishing an agency relationship are the “stability and continuity”, to be distinguished from occasional activity.

A relationship may begin as an occasional collaboration, but over time, it can evolve and become an ongoing relationship, generating significant turnover for both parties. This could be enough to qualify the relationship as an agency.

Therefore, it is necessary to monitor the progress of the relationship and sometimes evaluate the conversion of an occasional relationship into an agency if circumstances suggest so.

As can be seen from the judgment of the court of Rome, relationships with Italian agents operating in Italy (but in some cases also with Italian agents operating abroad) must be registered with ENASARCO (unlike occasional relationships), and the related contributions must be paid, otherwise the principal may be fined.

Naturally, qualifying a relationship with an influencer as an agency agreement also means that the influencer enjoys all the protections provided for by Directive 653/86 and the legislation implementing it (in Italy, articles 1742 and following of the Civil Code and the applicable collective bargaining agreement), including, for example, the right to termination notice and termination indemnity.

A company intending to appoint an independent person with commercial tasks in Italy, including now also influencers under certain conditions, will have to take all of this into account. Of course, the case may be different if the influencer does not carry out stable and continuous promotional activities and is not remunerated with commissions on the orders generated by this activity.

I am unaware whether the ruling analysed in this article has been or will be appealed. If appealed, staying updated on the developments will certainly be interesting.

Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

a) the influencer promotes the contracting of services or the purchase of products and does so independently.

The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

b) this “promotion” is done in a continuous or stable manner.

Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

c) they receive remuneration for their activity.

An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

Conclusion

The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

Summary: If you are an entrepreneur, you know that in Spain at the end of an agency contract you will probably have to pay your agent a client indemnity. Is it possible to get rid of it? This is the big question we tried to answer in a previous post.

And now the question is: is it possible to pay it in advance (e.g. as a part of the commission)? And if we do it and, in the end, we didn’t owe it, can we get the money back? In Spain, the courts have answered in the affirmative. But beware: there are conditions. Let’s go into detail.

We already know: upon termination of an agency contract, the principal must normally pay the agent a client indemnity if he has increased the number of clients or operations with pre-existing clients, and if his activity can continue to produce advantages for the employer. Is it possible to pay it in advance?

Spanish courts seem to accept such an advance, but it is necessary to be very attentive to how the clause is drafted. Some rulings help us to understand it better.

The Seville Court of Appeal (24 January 2019) analysed the payment of part of the commission on account of such indemnity. And it considered that if it had been paid, this amount had to be deducted from the indemnity; and if it had not been paid, it had to be paid in full. The Madrid Court (22 November 2017) had reached the same conclusion and with a similar agreement.

The Valladolid Court (4 February 2019) also did not oppose an advance payment of indemnity for clientele. It only required that the clause was clear, that it was actually paid and as an advance payment of such compensation and not for any other reason.

The Court of Navarra (12 November 2004) confirmed that what was relevant was the clarity of the clause, although it rejected it because in drafting it, the elements that make up such indemnity were not taken into account: bringing in new clients or a significant increase in operations with pre-existing ones, nor that such activity could continue to produce substantial advantages for the employer.

Finally, the Barcelona Court of Appeal (28 June 2019) did not dispute the validity of the advance payment either. What is more, it admitted the possibility that once paid it would have to be returned if the indemnity was not appropriate.

In summary and by way of conclusion

The courts seem to admit the prepayment of the customer indemnity and that what has been paid can be deducted from a future indemnity. However, the clause must be very clear and respect the legal requirements (new or increased customers and the possible continuity of the advantages for the employer) since, in case of doubt, it will probably be rejected.

And on one occasion, the possibility of recovering the advance payment has even been admitted if in the end there was no indemnity obligation and it had been clearly agreed.

So: if you are an entrepreneur and need to draft an agency contract in Spain, consider this possibility, study it, and get advice from someone who can prepare a good clause for you.

Summary

Egypt aims to be Africa’s first green hydrogen producer by incentivizing companies to invest in the sector. Collaborative efforts with Germany and European companies are underway to enhance hydrogen projects and transport. Incentives include financial subsidies, tax exemptions, and administrative advantages, contingent on project conditions like commissioning, foreign funding, local materials use, and community development.

What is the status of green energy in Egypt and what role does green hydrogen play in this?

It is currently estimated that Egypt has the potential to generate 350 GW of wind energy and about 650 GW of solar energy per year, as per the Minister of Electricity and Renewable Energy’s (Mohamed Shaker El-Marqabi) declaration. As part of its National Climate Strategy 2050, Egypt has set itself the goal of reducing its carbon emissions, promoting the use of renewable energy sources and using alternative forms of energy, including green hydrogen. The importance the Egyptian government attaches to green hydrogen is evident, not least with the recent cabinet meeting on 17^th of May 2023.

With a view to becoming the first African country to produce green hydrogen, new incentives for green hydrogen and derivatives projects were presented at the cabinet meeting. Based on an investment of 13 billion USD, the legal and financial benefits (new incentive package) that companies in this field can benefit from in the future were presented.

What agreements exist between Egypt and third countries to promote green hydrogen?

Agreement between Egypt and Germany on green hydrogen

The new incentive package was preceded by a meeting between the German-Egyptian Partnership for Green Hydrogen Projects committee and Egyptian officials on the 14^th of March 2023. This resulted in a joint roadmap for supporting hydrogen production companies and promoting hydrogen transport and marketing. At this meeting, it was decided that the parties, the Egyptian Minister of International Cooperation (Rania Al-Mashat) and the Egyptian Minister of Public Enterprises (Mahmoud Esmat), will establish a platform to promote the use of green hydrogen.

At the above-mentioned meeting, Egypt and Germany signed two Memoranda of Understanding (MoU) to enhance cooperation in the field of green hydrogen.

The Egyptian Government also recently signed other MoUs with seven European leading companies and global alliances to produce new and renewable energy, to establish green hydrogen production complexes in Ain Al-Sokhna and the Red Sea Governorate.

The German-Egyptian cooperation in the field of green hydrogen follows Egypt’s goal to establish itself as a hub for producing green hydrogen.

Agreement between Egypt and third countries on green hydrogen

Egypt has also partnered with the European Union to advance green hydrogen production. Furthermore, in 2022, on the occasion of COP27, Egypt signed a series of MoUs with several international organisations to engage foreign investment in green hydrogen production and make Egypt a transit route for clean energy to Europe.

MoUs with global companies and alliances have defined the Red Sea Governorate as the location where green hydrogen projects will be carried out in the future.

Are there investment incentives for the production of green hydrogen in Egypt?

In the cabinet meeting of 17^th of May 2023, the Egyptian Prime Minister Mustafa Madbuli stated that Egypt was offering the “largest” package of investment incentives and facilitations to companies wishing to invest in green hydrogen production projects in Egypt. He further announced the formation of a working group composed of representatives of the authorities involved to elaborate these investment incentives.

The statement indicated that companies involved in green energy projects in Egypt will benefit from incentives set out in the Law drafted in the cabinet meeting of 17^th of May 2023 and Investment Law No. 72 of 2017. This targets companies involved in the “production, storage and export of green hydrogen”.

What investment incentives for the production of green hydrogen in Egypt are provided for in the draft Law of 17^th of May 2023?

Financial incentives

Investments in the green hydrogen sector are subsidised in the amount of 33 % to 55 % of the income tax payable. The Ministry of Finance pays the subsidy within 45 days after the deadline for filing the tax return. The subsidy itself is not taxable. The exact conditions for the payment of the subsidy are still to be determined by the Cabinet.

All machinery, equipment, materials, consumables and vehicles (except private vehicles) used in green hydrogen and derivative projects are exempt from VAT.

No VAT is levied on exports of green hydrogen and its derivatives.

The Ministry of Finance pays most of the duties and certification costs associated with setting up the business and all import duties on imported goods used by the establishment. Further, it pays the taxes that would have been levied on the real estate used for the activity, if any.

Administrative incentives

Projects in the field of green hydrogen or its derivatives benefit from the so-called golden licence, as it is called in the Investment Law No. 72 of 2017.

All raw materials, spare parts and vehicles required for operations can be freely imported or exported directly or through distributors without the need for registration in the Importers’ Register.

The incentives apply to projects and their extensions throughout the contract period if the project agreements are concluded within a maximum of 7 years from the date of commercial commissioning.

Requirements

The investment incentives apply when:

the project is commissioned within 5 years of the signing of the project agreement
at least 70 % of the investment costs come from foreign funds
at least 20 % of the locally used materials originate from Egypt
training programmes are set up for local workers and know-how is shared
the project company draws up a development plan for the communities in which it will operate

What investment incentives for the production of green hydrogen in Egypt are provided for in the Investment Law No. 72 of 2017?

The tax incentives granted under the Investment Law No. 72 of 2017 provide for special, general and additional incentives.

Special incentives

These are tax reductions limited to 7 years for projects that are started within 3 years (extendable to 6 years) after the provisions of the Law No. 72 of 2017 came into force (i.e. by October 2023). The investment costs consist of equity capital, long-term loans to finance the construction of the project’s movable and immovable assets, and working capital. The tax base is the taxable net profit, which is taxed at the following rates:

1) Tax exemption on 50 % of the investment costs for the implementation of a project in geographical locations with the greatest development needs (underdeveloped locations) designated by the Central Agency for Public Mobilization and Statistics (CAPMS)

The law identifies these sites as “Zone A”. According to the implementing regulations, “Zone A” includes:

the Suez Canal Economic Zone
the Golden Triangle Special Economic Zone
the New Administrative Capital Zone
the south of Giza province
the provinces of Port Said, Ismailia and Suez (east of the canal) connected to the Suez Canal.
border provinces, including Red Sea province south of Safaga
the provinces in upper Egypt
other areas in greatest need of development (to be determined by the Prime Minister)

2) Tax exemption on 30 % of the investment costs of a project located in the remaining geographical areas outside “Zone A”, referred to as “Zone B”, and operating in certain sectors.

This includes projects that:

are active in the field of renewable energies
export their products outside Egypt
be carried out by a small or medium-sized (SME)

General incentives

Parallel to the special investment incentives, general investment incentives also apply. For example, projects are exempt from certain administrative requirements and fees for a period of 5 years from the date of their registration in the commercial register. Furthermore, temporary duty-free imports and exports are possible.

Additional incentives

Additional investment incentives may also be granted by decision of the Council of Ministers:

special customs offices for the export or import of the investment project
bearing of the value of the utility supply (such as electricity and water supply) of the property intended for the investment project or part thereof by the State
partial bearing of the costs of a technical training programme for employees by the State
reimbursement of half of the value of the land allocated for industrial projects, provided that the activity was started within two years of the transfer of the land
free allocation of land for certain strategic activities
under certain conditions, granting of a general permit for the construction, operation and management of the project as well as for the provision of the land required for this purpose. This permit shall also be deemed to be a building permit and shall be effective in its own right without any further action being required. In December 2022, the Egyptian Cabinet granted general approval for several projects.
incorporation shares of capital companies subject to the Investment Law No. 72 of 2017 may be traded during the first two fiscal years of the company, subject to the approval of the competent Minister
simplified acquisition of real estate, provided it is used for the project

Takeaways

Egypt’s Green Hydrogen Drive: Egypt is strategically embracing green hydrogen production as a pivotal element of its renewable energy vision. The country’s ambitious goals and extensive incentives underscore its commitment to becoming a leading player in the global green energy landscape.
International Collaborations: Collaborations with Germany and European partners highlight Egypt’s proactive approach to international cooperation in advancing green hydrogen technologies. Memoranda of Understanding and joint roadmaps are facilitating knowledge exchange and investments for robust hydrogen projects.
Comprehensive Incentive Framework: Egypt’s multifaceted incentive framework, including financial subsidies, tax exemptions, and administrative benefits, showcases the government’s determination to attract investments in green hydrogen production. Stringent conditions for benefiting from these incentives emphasize the nation’s dedication to sustainable practices and local community development.

Summary

At the end of the agency and distribution contracts, the main source of conflict is the goodwill (clientele) compensation. The Spanish Law of the Agency Contract —like the Directive on Commercial Agents— provides that when the contract is terminated, the agent will be entitled, if certain conditions are met, to compensation. In Spain, by analogy (although with qualifications and nuances), this compensation can also be claimed in distribution contracts.

For the Clientele compensation to be recognized, it is necessary that the agent (or the distributor: see this post to know more) have contributed new clients or significantly increased operations with pre-existing ones, that their activity can continue to produce substantial benefits to the principal and that it is equitable. All this will condition the recognition of the right to compensation and its amount.

These expressions (new customers, significant increase, can produce, substantial advantages, equitable) are difficult to define beforehand, so, to be successful, it is recommended that claims in courts are supported, case by case, on expert reports, supervised by a lawyer.

There is, at least in Spain, a tendency to directly claim the maximum that the norm provides (one year of remuneration calculated as the average of the previous five) without going into further analysis. But if this is done, there is a risk that a judge will reject the petition as unfounded.

Therefore, and based on our experience, I find it convenient to provide guidance on how to better substantiate the claim for this compensation and its amount.

The agent / distributor, the expert and the attorney should consider the following:

Check what the agent’s contribution has been

If there were customers before the contract began and what volume of sales was made with them. To recognize this compensation, it is necessary that the agent has increased the number of clients or operations with pre-existing ones.

Analyse the importance of these clients when it comes to continuing to provide benefits to the principal

Their recurrence, their loyalty (to the principal and not to the agent), the migration rate (how many of them will remain with the principal at the conclusion of the contract, or with the agent). Indeed, it will be difficult to speak about “clientele” if there have only been sporadic, occasional, non-recurring customers (or few) or who will continue to remain loyal to the agent and not to the principal.

How does the agent operate at the end of the contract

Can he compete with the principal or are there restrictions in the contract? If the agent can continue to serve the same clients, but for a different principal, the compensation could be very much discussed.

Is the compensation fair?

Examine how the agent has acted in the past: if he has fulfilled his obligations, his work when introducing the products or opening the market, the possible evolution of such products or services in the future, etc.

Will the agent lose commissions?

Here we must examine whether he had exclusivity; his greater or lesser facility to get a new contract (for instance, due to his age, the economic crisis, the type of products, etc.) or with a new source of income, the evolution of sales in recent years (those considered for compensation), etc.

What is the legal maximum that cannot be exceeded?

The annual average of the amount received during the contract period (or 5 years if it lasted longer). This will include not just commissions, but any fixed amounts, bonuses, prizes, etc. or margins in the case of distributors.

And, finally, it is convenient to include all the documents analysed in the expert’s report

If this is not done and they are only mentioned, it could result in them not being considered by a judge.

Check out the Practical Guide on International Agency Agremeents

To read more about the main features of a contract of agency in Spain, go to our Guide.

Sommario – Secondo la giurisprudenza francese, un agente è soggetto alla tutela dello status giuridico di agente di commercio e ha quindi diritto a un’indennità di fine rapporto solo se in potere di negoziare liberamente il prezzo e le condizioni dei contratti di vendita. La Corte di Giustizia Europea ha recentemente stabilito che tale condizione non è conforme al diritto europeo. Tuttavia, i preponenti potrebbero ora prendere in considerazione altre opzioni per limitare o escludere l’indennità di fine rapporto.

Dire che la sentenza della Corte di giustizia europea del 4 giugno 2020 (n°C828/18, Trendsetteuse / DCA) fosse molto attesa sia dagli agenti francesi che dai loro preponenti è un eufemismo.

La richiesta fatta alla Corte di Giustizia CE

La questione posta dal Tribunale Commerciale di Parigi il 19 dicembre 2018 alla CGCE riguardava la definizione dello status di agente di commercio affinché quest’ultimo potesse beneficiare della Direttiva CE del 18 dicembre 1986 e di conseguenza dell’articolo L134 e seguenti del Codice Commerciale. La questione preliminare consisteva nel sottoporre alla CGCE la definizione adottata dalla Corte di Cassazione e da molte Corti d’Appello, a partire dal 2008: il beneficio dello status di agente di commercio è stato negato a qualsiasi agente che non abbia, secondo il contratto e de facto, il potere di negoziare liberamente il prezzo dei contratti di vendita conclusi, per conto del venditore, con un acquirente (tale libertà di negoziazione si estende anche ad altri termini essenziali della vendita, come i termini di consegna o di pagamento).

La restrizione fissata dai tribunali francesi

Questo approccio è stato criticato perché, tra l’altro, risultava essere contrario alla natura stessa della funzione economica e giuridica dell’agente di commercio, che deve sviluppare l’attività del preponente nel rispetto della sua politica commerciale, in modo uniforme e nel rigoroso rispetto delle istruzioni impartite.

Poiché la maggior parte dei contratti di agenzia soggetti al diritto francese escludono espressamente la libertà dell’agente di negoziare i prezzi o le condizioni principali dei contratti di vendita, i giudici hanno regolarmente riqualificato il contratto da contratto di agenzia commerciale a contratto di mandato di interesse comune. Tuttavia, questo contratto di mandato d’interesse comune non è disciplinato dalle disposizioni degli articoli L 134 e seguenti del Codice di commercio, molti dei quali sono di ordine pubblico interno, ma dalle disposizioni del Codice civile relative al mandato, che in generale non sono considerate di ordine pubblico.

La principale conseguenza di questa dicotomia di status consiste nella possibilità per il preponente vincolato da un contratto di mandato di mettere espressamente da parte l’indennità di fine rapporto, essendo questa clausola perfettamente valida in un contratto di questo tipo, a differenza del contratto di agente di commercio (si veda il capitolo francese della Guida pratica ai contratti di agenzia commerciale internazionale).

La decisione della CGCE e gli effetti

La sentenza della CGCE del 4 giugno 2020 pone fine all’approccio restrittivo dei tribunali francesi. Secondo quest’ultima l’interpretazione corretta dell’articolo 1, paragrafo 2, della direttiva del 18 dicembre 1986 è che gli agenti non devono necessariamente avere il potere di modificare i prezzi dei beni che vendono per conto di un preponente per essere classificati come agenti di commercio.

La Corte ricorda in particolare che la direttiva europea è valida per qualsiasi agente che abbia il potere di negoziare o di negoziare e concludere contratti di vendita. La Corte aggiunge che il concetto di negoziazione non può essere letto attraverso la lente restrittiva adottata dai giudici francesi. La definizione del concetto di “negoziazione” deve non solo tenere conto del ruolo economico che ci si aspetta da tale intermediario (essendo il concetto di negoziazione molto ampio: ad es. la contrattazione), ma anche della necessità di preservare gli obiettivi della direttiva, soprattutto garantire la tutela di questo tipo di intermediario.

In pratica, quindi, i preponenti non potranno più nascondersi dietro una clausola che vieta all’agente di negoziare liberamente i prezzi e i termini dei contratti di vendita per negare lo status di agente di commercio.

Opzioni alternative per i preponenti

Quali sono i mezzi di cui dispongono ora i produttori e i commercianti francesi o stranieri per evitare di pagare un indennizzo al termine del contratto di agenzia?

Innanzitutto, in caso di contratti internazionali, i preponenti stranieri avranno probabilmente più interesse a sottoporre il proprio contratto a una legge straniera (a condizione che non sia più restrittiva della legge francese …). Anche se le regole dell’agenzia di commercio non sono considerate delle norme imperative preminenti dai tribunali francesi (contrariamente ai casi Ingmar e Unamar della CGCE), per garantire la possibilità di escludere il diritto francese il contratto dovrebbe anche prevedere una clausola di giurisdizione esclusiva per un tribunale straniero o una clausola arbitrale (si veda il capitolo francese della Guida pratica ai contratti di agenzia commerciale internazionale).
C’è anche la probabilità che il preponente chieda un compenso all’agente per il contributo della sua banca dati clienti (preesistente) e che il pagamento di tale compenso venga differito alla fine del contratto … al fine di compensare, se necessario, in tutto o in parte, il corrispettivo allora dovuto all’agente di commercio.
È certo che i contratti di agenzia stabiliranno in modo più chiaro e completo i doveri dell’agente che il preponente considera essenziali e la cui violazione potrebbe costituire una grave mancanza, escludendo il diritto ad un compenso di fine contratto. Sebbene i giudici siano liberi di valutare la gravità della violazione, possono comunque utilizzare le disposizioni contrattuali per identificare ciò che è importante nell’intenzione comune delle parti.
Alcuni preponenti metteranno probabilmente in dubbio anche l’opportunità di continuare ad utilizzare gli agenti di commercio, e in alcuni casi la loro attività potrebbe essere meno legata a una questione di contratto di agenzia commerciale, ma piuttosto a un contratto di servizi promozionali. La distinzione tra questi due contratti deve comunque essere rigorosamente osservata sia nel testo dell’accordo che nella realtà, e bisognerebbe valutare altre conseguenze, come il regime del preavviso (vedi il nostro articolo sulla risoluzione improvvisa dei contratti).

Infine, il ragionamento utilizzato dalla CGCE in questa sentenza (interpretazione autonoma alla luce del contesto e dello scopo di questa direttiva) potrebbe indurre i preponenti a mettere in discussione la norma della giurisprudenza francese che consiste nel concedere, a occhi quasi chiusi, due anni di commissioni lorde a titolo di indennizzo forfettario, mentre l’articolo 134-12 del Codice commerciale non fissa l’importo di questo indennizzo di fine contratto, ma si limita ad indicare che il danno effettivo subito dall’agente deve essere risarcito; così come l’articolo 17.3 della direttiva CE del 1986. Ci si potrebbe quindi chiedere se tale articolo 17.3 imponga all’agente di provare il danno effettivamente subito.

Once the Agency agreement has terminated by the Principal, the Agent usually decides to claim for some indemnities or compensations. These include damages indemnities and goodwill (clientele) compensation.

In order to claim them it is very important to consider the limitation period in which both can be demanded. We have observed that agents usually take too long to decide whether or not claiming for such compensations, they start negotiations with their principals to find a solution to their conflict, sometimes they are re-negotiating their position for a new agreement, area or conditions; or sometimes they simply consider that there is no rush to proceed.

In similar terms as in the EC Directive on Agency Agreements (art. 17.5), the Spanish Agency Act (art. 31) expressly foresees a limitation period of one year from the termination of the agreement in order to claim both the damages indemnity and the goodwill compensation.

This means that after the expiration of such term, no claim will be admitted by our Courts. And in contracts ruled by Spanish law and submitted to arbitral procedures, the agent also risks finding his claim dismissed after that period. This duration cannot be modified by the parties in their agreement, but they can take some actions to extend it.

This limitation has, therefore, important consequences. Of course, there could be an infinite number of situations and we do not intend to cover all of them, but in case the Agency agreement terminates, the following ideas can be useful:

The one-year period starts from the day the agreement was terminated. This date should also be considered carefully if there was not a formal termination letter.
One year, according to the Spanish Civil code, implies that the period terminates the exact day one calendar year after (from date to date, for example, May 1 to May 1 next year) or the following day if that day does not exist (for instance, February 29^th to March 1 next year).
In general terms, the starting of this one-year period is the termination day and not the date in which the letter was sent or received or when the Principal urges the Agent to fulfil his obligations. The previous notice period (if any) shall be respected if included in the termination notice.
In case the letter contains an immediate termination, that day will be the starting date, even if the procedure reveals that the Principal should have given a termination notice.
Generally, this applies to each agency agreement. This means that in case of successive and not connected agreements (for instance, the first one ends and the second one starts 10 months later), the termination period will be considered for each separate agreement. Nevertheless, linked agency agreements (agreements with a specific duration that work one immediately after the previous one) are usually considered as one agreement.
Some activities of the Agent can interrupt this one-year period, re-starting a new one. For instance (some have been accepted by the case-law, others are expressly mentioned in different pieces of legislation):
- An extra-judicial claim sent by the Agent or by someone in his behalf claiming for the goodwill indemnity, even if the compensation is incorrectly qualified as employment dismissal instead of commercial agency compensation.
- Claiming the goodwill compensation as a labour indemnity before the labour courts when it was not clear the sort of relationship between the parties.
- Starting a conciliation procedure before a First Instance Court
- Starting a mediation procedure (when done by both parties or by one of them enforcing the mediation clause in the contract) will also interrupt the term during the mediation procedure from the moment in which the request for mediation has been received by the mediator or deposited at the mediation institution.
- The acceptance by the Principal of the debt or the goodwill compensation when asking the clients list.
Other actions by the Agent could have different results depending on the circumstances and some have not been accepted as valid to interrupt this limitation period:
- A claim started by the Agent before a non-competent court, will depend on the circumstances.
- A criminal prosecution does not interrupt the one-year period
- The starting of the preliminary procedure (diligencias preliminaries) has neither been accepted to interrupt the one-year period.

Therefore, as a conclusion, in the drafting phase of the agreement it seems to be a good idea to consider a mediation clause. This will grant the parties an additional and useful tool to solve their conflicts and a possible way to obtain extra time in case the courts will be called to intervene.

And when an agency agreement terminates (with or without mediation clause), our recommendation for the Agent is immediately submitting the case to a legal local advisor. When the Agent has, for example, received a promise for a new agreement and he is still discussing on it, or he is still negotiating the termination, it is advisable to be careful and to take the necessary actions at least to interrupt the lapse of the one-year period and not to lose the possibility of a future claim. A simple letter carefully drafted could be very useful for the Agent’s interests.

A final remark for Distribution Agreements

Although for some aspects, particularly the goodwill compensation, Spanish Supreme Court has admitted the analogy with Agency agreements, this is not the case for the limitation period of one year to claim it. The distributor claiming for the goodwill indemnity will not be limited to one year after the contract terminated. In cases like these, it is convenient, however, to have precise advice on the type of contract we are facing, since the border between the agency and the distribution is not always clear.

A legal due diligence of a Brazilian target company should analyze the existence and the content of Agency Agreements, including values paid to the agent and the nature of such payments and the factual situation of the target’s agents, in order to evaluate potential contingencies.

One usual suspect in legal due diligences of Brazilian target companies in M&A transactions that should not be overlooked is the existence of agency agreements, due to:

the obligation to indemnify the agent stipulated by law: at least 1/12^th of all commissions paid throughout the entire term of the agency agreement; and
the risks for the agency being disregarded and considered as an employment relationship, subjecting the principal to compensate the agent as an employee with all rights, benefits, taxes and social contributions.

This should be considered for evaluation of potential contingencies and the impacts on the valuation of the target.

No doubt that agents can be an important component of the sales force of the business and can be strategic for the activity of the principal, in view of a certain independence and for not increasing the payroll of a company.

On the other hand, under Brazilian laws, the protective nature of the agency demands the principal a considerable level of attention.

Indemnification

Brazilian Federal Law No. 4,886/65 as amended – the Brazilian Agency Law – determines that the agent is entitled to, at the termination of an agency agreement, receive an indemnification of 1/12^th calculated over all the commissions paid throughout the duration of the entire period of the agency agreement.

The Brazilian Agency Law stipulates that if the parties sign a new contract within 6 months after the expiration of the previous, the relation between agent and principal shall be deemed as the same relationship and thus, the duration to calculate the indemnification shall encompass the entire period (past and subsequent contract).

Termination by the agent

The Brazilian Agency Law also stipulates situations that agent could terminate the contract and still be entitled to receive the 1/12th indemnification:

reduction of the activities in disagreement with the contractual stipulation
breach of exclusivity (territory and/or products), if so stipulated in the agreement
determination of prices that makes the agency unfeasible and
default on payment of the commissions
force majeure

Termination without cause

Termination without cause can be done, upon payment to agent of the indemnification and with a previous notice of at least 30 days, in which situation the agent shall receive the payment of 1/3 of the remuneration received during the previous 90 days prior to the termination.

Can principal avoid the indemnification?

The only cases where the 1/12th indemnification would not be applicable are when the contract is terminated by principal with cause. The Brazilian Agency Law has limited situations for principal to terminate the contract with cause:

acts by agent causing disrepute of the principal
breach of obligations related to the agency activities
criminal conviction related to honor, reputation

These situations shall be clearly demonstrated. Producing the sufficiently strong evidence of the facts to configure cause for termination may not be an easy task, considering some of the facts may be subject to construing and interpreting by the parties, witnesses and ultimately the judge.

As a result, from past experiences, it is rare to see principals in conditions not to incur in the 1/12th indemnification.

Potential risk: configuring employment relationship

In addition to the indemnification, the activities developed by the agent could eventually be deemed as performed by a regular employee of the principal and, in this case, principal could be subject to compensate the agent as an employee.

Agent vs. employee

For the appreciation of the employment relationship, the individual acting as agent shall file a labor claim and demonstrate the existence of the employment relationship.

The Labor Court judge will consider the factual situation, prevailing upon the written agreements or other formal documents. The judge may rely on e-mails, witnesses and other evidence.

The elements of an employment relationship are:

Individual: in case the individual acts by himself to perform the services; Personal services: the services are in fact performed by the individual specifically to the Principal;;
Non-eventuality – exclusivity: the services are rendered in a regular basis;
Subordination: key factor – the individual has to follow strict instructions directed by principal, such as reporting to an employee of the principal, determined visits;
Rewarding – fixed remuneration: the individual is awarded regular amounts and expenses allowances

In the event the individual can demonstrate the existence of the elements to configure an employment relationship, he/she could have an award to entitle him/her to have his remuneration considered as of a regular employee for the last 5 years.

As a result, the individual would be awarded the payment of Christmas bonus (equivalent to 1 monthly remuneration per year), vacation allowance (1/3 of a monthly remuneration per year), unemployment guarantee fund (1 monthly remuneration per year) plus other benefits that he/she would be given as an employee of principal (based on the collective bargaining agreement between the employees’ and employers’ unions). The company would also be obliged to make the payment of the co-related social security contributions.

Needless to say, the result could turn into a considerable potential contingency.

The author of this article is Paulo Yamaguchi

Christian Montana

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