In particular, Art. 3 of such law (entered into force on June 14, 2017) provides:
“1. The clauses that attribute to the customer the faculty to unilaterally modify the conditions of the contract or, in the case of a contract concerning a continuous performance, to withdraw from it without adequate notice as well as the clauses by means of which parties agree terms of payment exceeding sixty days from the date of receipt by the client of the invoice or payment request, are considered abusive and unenforceable”.
Some commentators have argued that this provision also applies to commercial agents (at least, to agents whose activities are carried out mainly on a personal basis), with the consequence of rendering not applicable to them not only any contrary clauses contained in individual contracts, but also the rules contained in the Collective Economic Agreements of the various sectors, which allow – within certain limits – to carry out unilateral contractual modifications.
Given that the agent is certainly a self-employed, in the sense that, in order to be subject to the rules on commercial agents and not to those applicable to employees, the existence of certain conditions (direction, control, absence of risk etc.) must be excluded, it is however important to consider that Art. 1, second paragraph, of Law 81/2017 excludes from its scope of application “entrepreneurs, including small entrepreneurs referred to in Article 2083 of the Civil Code.”
First of all, it is important to point out that this interpretative issue only arises with regard to agents who are individuals and not to those constituted in a corporate form, which clearly are deemed to be “entrepreneurs”.
In any case, even with reference to agents/individuals, in our opinion, it is very difficult to hypothesize the case in which this person does not fall within the notion of entrepreneur (as per Article 2082 of the Civil Code) nor – for less structured agents – in that of “small entrepreneur” as per Art. 2083 c.c.
The agent/individual, indeed, certainly performs a productive activity (in the sense that it is directed to the production of a service and is not of mere fruition), professional (i.e. permanent and not merely occasional), conducted with an economic method and taking a business risk. As for the requirement of the organization, even in cases where the agent carries out his activity only with his own work (without using collaborators or the support of the members of his family), he will nevertheless be provided with an organization of necessary means and tools for carrying out his business.
In practice, even this person, in order to act as an agent, will be established as an individual business (“impresa individuale”), will be provided with a VAT number and must be registered in the special section of the company registry (“REA”).
Even case law, although it does not appear to have directly and explicitly addressed the question, seems to be in favor of including the agents within the scope of application of Articles 2082 and 2083 c.c. on (small) entrepreneurs (see Cassation No. 12338/2017, Cass. 9102/2003).
Moreover, there is no need to extend to commercial agents the protection granted to self-employed by Article 3 of Law 81/2017, since they already enjoy legislative, collective bargaining and case law protection on the aspects regulated therein.
We therefore conclude that the abovementioned hypothesis (i.e. of an agent, who carries out the activity only with his own work and who, even though he is endowed with such autonomy as to exclude that he is an employee, does not have a sufficient organization to fall within the notion of entrepreneur (as per Art. 2082 of the Civil Code) and even in that of a small entrepreneur (Art. 2083 c.c.)), although – perhaps – abstractly possible, it is not easily conceivable in practice.
As a consequence, Art. 3 of Law 81/2017 shall not apply to commercial agents (not even to individuals), except in the very remote case in which they prove to be self-employed but not also entrepreneurs.
Silvia Bortolotti, Segretary General IDI and country expert for Italy