In the agency contract, the subsequent exploitation of the same clientele by the agent does not automatically the right to termination indemnity, but may affect its calculation.
According to Article 1751 of the Italian Civil Code, as amended by Legislative Decree No. 65/1999, implementing Directive 86/853/EEC, the agent is entitled to an indemnity if:
1. He/she has acquired new clients or significantly increased business with existing ones.
2. The principal continues to receive substantial benefits from these business relationships after the termination of the contract.
3. The indemnity is fair, considering all the circumstances of the case.
If, after the termination of the contract, the agent continues to work with the same clientele on their own behalf or for other entities, this may:
• Reduce the indemnity: If the benefit to the principal is limited or temporary due to the agent retaining the clientele.
• Exclude the indemnity: If the principal no longer receives any lasting advantage because the agent has completely diverted the client portfolio.
Case law has clarified that the statutory indemnity is not due if the principal no longer derives any substantial benefit because of the agent’s subsequent activity (see Cass. 06/10/2016 No. 20047 and Cass. No. 30487, 2021).
On the other hand, the supplementary client indemnity (indennità supplettiva di clientela) which is governed by the Collective Economic Agreements (A.E.C.), rather than by Article 1751 of the Italian Civil Code, has a different rationale and more favorable requirements for the agent. This indemnity is automatically recognized to the agent if the contract is terminated by the principal for reasons not attributable to the agent. The A.E.C. does not condition the right to this indemnity on the existence of the conditions indicated in Article 1751 of the Civil Code (i.e., the continued substantial benefits for the principal). Therefore, the supplementary client indemnity is due regardless whether the principal continues to benefit from the clientele. Even if the agent continues to work with the same clientele after the contract ends, the right to the supplementary indemnity remains unaffected, as long as the conditions outlined in the A.E.C. are met.
Ordinance No. 12113 of May 6, 2024 of the Italian Supreme Court (Corte di Cassazione) addressed the distinction between the statutory indemnity under Article 1751 of the Italian Civil Code and the clientele supplementary indemnity governed by A.E.C.. The Court emphasized that the statutory indemnity is contingent upon the principal continuing to derive substantial benefits from the clientele acquired or developed by the agent. In contrast, the supplementary client indemnity is generally granted automatically upon contract termination, regardless of the principal’s ongoing benefits.
Content by the Lawyer. Luca Tiberi
