There is a long-standing tradition in Italy of collective agreements (AECs) governing relations between commercial agents and principal firms, in various sectors. Apart from a few earlier experiences, they date back to the Fascist era, when they were valid-to-everyone arrangements, in line with the that State-directed economy worldview.
Today, AECs are binding only on subjects that belong to unions that have signed them. That is, they affect the contracting parties only, whereas the legal terms of general application relating to agency contracts can be found in the law (Civil Code articles 1742 et seq.). So, AECs have lost centrality, given the prominence of European Union law (Directive 86/653/EEC and its implementation). However, they are de facto applicable in many instances, and they are even taken sometimes as a benchmark by the courts, insofar they provide more favorable rules for agents.
There are about 15 such agreements in force at present, although only two are widely applied: the so-called ” Industrial” agreement for agents of manufacturing enterprises (last version July 30, 2014), and the so-called ” Commercial” agreement for agents of trading enterprises (last version Feb. 16, 2009, updated in 2017).
One of the peculiarities of AECs is the distinction between one-firm agents, and multi-firm agents. This distinction cannot not be found in either EU, or Italian domestic regulations.
The one-firm agent, i.e., the agent who undertakes to work only for the principal and thus not to carry out any other activity (even for non-competitors) is granted by AECs a more favorable treatment (longer notice periods, higher final allowance, …).
The traditional question here is whether such more favorable treatment can also be extended to the de facto one-firm agent, i.e., the agent who has not committed himself to work only for one principal, but in fact so he does. The affirmative solution results the prevalent one in the recent case-law[1].
In conclusion, in dealing with Italian commercial agents, foreign principals should be aware that in case of dispute-
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AECs may be applied by an Italian court, even though they are not expressly made reference to in the agency agreement;
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an agents that de facto works exclusively for a principal may be granted a particular favorable treatment, especially in terms of extended notice termination period and final indemnity.
Careful drafting of the agreement may certainly help, to avoid these events.
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[1] Cass civ I 32460/21, 18417/14, 13979/08, 17080/07, 4877/00 (contra Cass. 14444/00)
