The main innovation introduced by the Agreement concerns the meritocratic indemnity (“indennità meritocratica”[1]) which is now determinedbyapplying new criteria with respect to the past: such calculation includes (i) the determination of a percentage on the difference between commissions earned by the agent at the beginning and at the end of the contract; (ii) the application of such percentage to a “prognostic period” (of 2/3 years) following the end of the contractual relationship, with a predetermined “migration rate”; (iii) the application of a predetermined rate reduction; and (iv) the deduction of the other two indemnities (FIRR and “indennità suppletiva”).
After having made some examples of calculation, we have remarked that, in certain cases this new system of calculation grants the agents amounts of indemnity much lower than those which would result by applying Article 1751 of the Italian civil code (which implemented the EC Directive). As a consequence of the above, such system of calculation should be considered null and void, since it is contrary to the principle established by the European Court of Justice in the Honyvem case[2].
On the other hand, in other cases (e.g. long duration of the agreement) the amount that would reasonably be granted by Courts by applying Article 1751 of the Italian civil code could be much lower than the indemnity of the new Agreement. This, of course, strongly penalizes the principals.
The new provisions on the meritocratic indemnity (Articles 10-11 of the new AEC) will not apply until December 31st 2015 to those contracts already in force on July 30th 2014 and signed before January 1st 2014. From January 1st, 2016 the new provisions will be applicable to those contracts, providing that they will remain in force at least for 5 quarters starting from January 1st 2016. Otherwise, Articles 10-11 of the 2002 AEC will still apply.
Of course, the new regulations will apply to contracts signed after September 1st 2014.
Among the other modifications, compared to the previous text of 2002, is possible to mention the following.
Concerning the principal’s right to make unilateral reductions of territory, customers, products and commissions (“riduzioni di zona”), the limit upon which the variations have to be considered “major” is now of 15% (while before it was of 20%) of the commissions due to the agent during the year preceding the variation.
In order to proceed with a major variation, the principal will have to grant to the agent an advance notice not lower than the one provided for the contract termination, unless otherwise agreed by the parties with a written agreement establishing a different date. This derogatory provision wasn’t allowed before.
Furthermore, the new text provides that the ensemble of the variations of small entity (up to 5%) occurred during a 18 months’ period (24 months for one-firm agents) preceding the variation, must be considered as a unique variation; the period set forth in the previous version, was of 12 months for both multi-brand and one-firm agents.
As far as the sample is concerned, the new AEC provides that the principal is entitled to charge it to the agent only in case of lack or partial return or in case of damaging not due to its normal use.
According to the new Article 4, “in case of renewal of fixed-term contractual relationships having the same activity contents (area, products, clients), the principal can provide for a trial period only with regard to the first contract”.
With regard to the commissions due to the agent for negotiations in progress at the time of termination, besides the principle pursuant to which the agent must report in detail to the principal (already provided in the previous AEC of 2002), the agent shall be entitled to a commission for business transactions concluded within 6 months after the termination (in the previous version the period was of 4 months).
In case of delay of more than 15 days in the payment of commissions to the agent, the latter shall be entitled to interest as per Legislative Decree No. 231/2002 (as recently amended), i.e. at a rate equal to that applied by the European Central Bank at its main recent refinancing operations, increased by 8 points.
Finally, on the amounts set aside by the principals at “Enasarco” (the Italian agents’ social security organization), as Indemnity for the Resolution of the Relationship (FIRR), which is part of the goodwill indemnity due to the agent at the end of the contract, the Enasarco must grant to the principals an annual interest rate, pursuant to certain conditions specifically provided.
The collective agreements apply in principle only where both parties belong to the associations which signed them. This means that the collective agreements will not apply to contracts between a foreign principal and an Italian agent (or between a foreign agent and an Italian principal), unless expressly incorporated by reference in the contract.
Silvia Bortolotti, Secretary General IDI
[1] The other two parts of the goodwill indemnity (i.e. “FIRR” and “indennità suppletiva”) remain unchanged.
[2] In such decision, the European Court of Justice The European Court stated that the goodwill indemnity cannot be replaced by an indemnity determined in accordance with criteria other than those prescribed by Article 17 of the European directive, unless it is established that the application of such an agreement guarantees the commercial agent, in every case, an indemnity equal to or greater than that which results from the application of Article 17. See, for more information, the Italian Report on comemrcial agency, which has just been updated.
