Edited by Francesca Tironi, Giulia Spalazzi, Lorenzo Vassalli
Following an inspection, a company operating in the sector of online sales of food supplements was charged with the existence of contractual relationships falling under the provisions of Article 1742 of the Italian Civil Code, dedicated to the notion of agency contracts, with reference to contractual relationships of various kinds existing between the company and subjects such as influencers, marketing consultants and research consultants.
The inspection activity took the form of a notice of ascertainment that the company owed sums by way of contributions and penalties relating to said employment relationships, which should have been correctly classified as agency contracts. The company appealed against that inspection notice to the Ispettorato Interregionale del Lavoro (i.e. Interregional Labour Inspectorate) of Rome, which confirmed the correctness of the notice itself and of its findings.
The company thus appealed to the Court of Rome in order to obtain the repeal of the notice, with an articulate defense aimed at highlighting the gap between the various relationships contested by the inspectors and the agency contract entity, pointing out in reference to each of them how it contained aspects that were manifestly incompatible with such legal category, and therefore could not be attributed to it.
The Court of Rome, Fourth Labour Section, in its judgment of March 4th, 2024 rejected the company’s appeal, thus confirming the findings of the notice at hand. In doing so, the judgment in question first of all drew a necessary distinction between the various activities entrusted by the company to its collaborators -mainly personal trainers and other professionals-, drawing the difference between so-called “testimonial” contracts, i.e. sponsorship contracts and contracts providing for testimonial activities, and contracts for the services of “influencers”.
According to the reasoning of the Court of Rome, through the “testimonial” contract, the professional athlete undertakes to lend his/her image to the company and to participate in official competitions, events and exhibitions in which the company participates, undertaking to wear customized clothing sponsored and supplied by the company, as well as to publish articles and/or videos periodically on his/her social media platforms. This is a contractual type definitively distinct from the agency contract under Article 1742 of the Italian Civil Code, as noted by the Court of Rome.
It is a different matter with regard to the so-called influencer contracts, through which a person undertakes to promote on behalf of the company the products of the brand owned by the company itself on their social profiles and on the websites owned by the influencer, indicating on their web pages their personalized discount code, which has the dual purpose of serving as a link to the company’s websites and at the same time enabling the company to determine the orders received attributable to the activity of the influencer.
The Court therefore acknowledged that the influencer’s activity is to be traced back to an actual promotional sales activity (typical of an agency relationship), and that the remuneration paid to the influencer is determined by the orders directly procured by the same and successfully concluded, since it was agreed in the present case to acknowledge, as remuneration for the influencer’s activity, a percentage of the purchases profitably concluded through the use of said personalized discount code, in accordance with a negotiating scheme typical of agency relationships pursuant to Article 1742 et seq. of the Italian Civil Code.
Lastly, the Court pointed out that an examination of the invoices issued by these persons/collaborators of the company revealed the long-term and continuous nature of the collaboration, characterized by remuneration in the form of a commission, paid at periodical intervals, mostly monthly, an aspect that reveals a planned continuity between the parties, and not the accidental result of occasional and independent services, in line with the agency contract.
Therefore, in confirming the notice contested by the company, the Court of Rome specified how three of the influencer contracts entered into by the company were inevitably to be attributed to an agency contract pursuant to Articles 1742 et seq. of the Italian Civil Code, since the documentation produced in respect of such relationships showed a number of serious, precise and unequivocal elements capable of demonstrating the presence in this particular case of the elements of stability and continuity typical of an agency, as well as evidence that the relationships in question could not be attributed to a business procurement contract, given that such activity is entirely episodic or limited to single specific businesses or of limited duration.
The elements assessed by the Court of Rome to bring the influencer contracts into the category of agency contracts are therefore:
- The purpose of the contract entered into with the influencer is not mere advertising, but is to see the products promoted directly to the followers of the given influencer, who must use the code shown on the influencer’s social platforms, and by doing so, the relevant purchases result to the company as purchase contracts directly procured by the influencer him/herself;
- The presence of a given area, which according to the reasoning of the Court of Rome should not only be understood as a geographically determined area, since the community of the influencer’s followers (as well as a possible differently delimited portion of the market) could well be understood as such;
- The stability bond, documented in the present case by the presence of financial statements of the commissions received by the influencers and by the systematic issuing of invoices for an indefinite series of business procured through the promotional activity, compensated with the percentage of sales profitably concluded indicated in the contract;
- The duration of the contract, stipulated for an indefinite period of time, in view therefore of a stable and predetermined relationship.
All of the above in the irrelevance of the fact that the influencer is not the addressee of directives and instructions, given that the market in question, that of buying and selling through the web, is characterized by a high degree of standardization: the purchase is made with a “click” and the conditions of sale are set once and for all. Equally irrelevant, in the opinion of the Court of Rome, is the fact that the activity of influencer would not be the predominant activity of the provider.
In conclusion, from the analysis of the ruling in comment, it emerges that the contracts relating to influencer activities, if the above-mentioned elements occur, are to be traced back to the typical transaction of the agency relationship, with the relevant social security charges to be paid by the principals, who will have to pay contributions to the social security institution of the category.
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