1. Silvia Bortolotti Buffa Bortolotti & Mathis, Torino-Milano
The calculation of the agent's indemnity in Italy after the Honyvem judgment of the Court of Justice.
2008 Annual Meeting of the International Distribution Institute - Torino 6-7 June 2008

2. BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI
Since 1991, two alternative methods of calculation of the agents' goodwill indemnity
Article 1751 of the Italian civil code, which transposed Article 17.2 of the EC Directive; and
- The Collective Agreements, signed by the principals' and agents' representatives
BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI

3. The indemnity provided by Collective Agreements
- is due irrespective of the fact that the agent has considerably developed new customers and that the principal continues to derive substantial benefits from the business with such customers (no burden of proof for the agent);
- part of such amount is due even if the contract is terminated for reasons for which the agent is responsible or in case of termination by the agent himself
BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI

4. Court of Justice: Case No. C-465/04 of March 23, 2006
Honyvem - De Zotti
"(..) a derogation from the provisions of Article 17 may be accepted only if, ex ante, there is no possibility that at the end of the contract that derogation will prove to be detrimental to the commercial agent.
That would be the case, as regards the 1992 agreement, if it could be established that the application of that agreement is never unfavourable to the commercial agent since it systematically guarantees the latter, with respect to all the legal relationships likely to be established between the parties to a commercial agency contract, an indemnity greater or at least equal to that resulting from the application of Article 17 of the Directive.”
BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI

5. Recent decisions of the Italian Supreme Court
Cass. No of 3/10/2006 (Alcatel)
Cass. No of 3/10/2006 (Cantine Leonardo da Vinci)
Cass. No of 12/3/2007 (Robert Bosh)
Cass. No of 23/4/2007 (Diageo Italia)
Cass. No of 24/7/2007 (Honyvem)
Cass. No of 9/10/2007 (Filtrauto Italia)
Cass. No. 687 of 16/1/2008 (3M Italia)
Cass. No of 19/2/2008 (Maxxium Italia)
Cass. No of 2/4/2008 (3M Italia/Fumo Mario)
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6. BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI
Principle established by the Italian Supreme Court after the Honyvem case
The indemnity provided by Collective Agreements is a minimum guaranteed for the agent
BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI

7. Judgements of the Lower Courts
1. Many Courts keep applying the system of calculation provided by Collective Agreements
2. Other Courts follow the principle established by the Italian Supreme Court (minimum guaranteed)
3. Some other Courts apply the principles established by the Court of Justice in the Honyvem case, correctly (i.e. Collective Agreements are null)
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8. Application of Article 1751 of the Italian Civil Code
No German system of calculation described in the Commission Report (COM(1996) 364 final)
Evaluation of the conditions provided by Article 1751 civil code and possible reduction of the maximum amount:
increase of the number of customers / volume of business with existing customers;
the principal continues to derive substantial benefits;
commissions lost by the agent;
other circumstances (advertising / well-known trademark of the principal; non competition obligation; agent’s behaviour; investments of the agent; duration of the contract etc.)
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9. BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI
Conclusion
Collective Agreements are still applied by Italian Courts
It is not possible to give an estimate of the amounts of indemnity granted by Italian Courts within the framework of Article 1751 of the Civil Code, at present
BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI