ITA 
Published on Sole24Ore - NT Lavoro - on 26/06/2023
Termination indemnity, pursuant to article no. 1751 Civil Code, it’s not due to the agent who terminate the agreement to take the anticipated pension.
Thus the Court of Cassation, with its judgement no. 17235 of 15 June 2023.
In the present case, the agent resigned in 2015 after having accrued the right to an early retirement pension and claimed payment by the principal of the supplementary client indemnity.
The Court of Appeal, reforming the first instance ruling, rejected the agent's claims, recalling that, pursuant to Article 1751 of the Civil Code, the termination indemnity is not due in the event of termination by the agent, except in the case of termination justified by circumstances attributable to the principal or by circumstances attributable to the agent for which the continuation of the activity can no longer be reasonably required, such as «age, infirmity or illness». Moreover, the court of appeal pointed out that the Collective Economic Agreements of 2009 for Agents, as applied to the agent's relationship, expressly recognised the right to the supplementary indemnity only in the event of termination of the agent who access to an old age pension and not also to an early retirement pension.
The agent appealed to the Court of Cassation, arguing that the early old age pension should be considered as falling within the group of «circumstances attributable to the agent, such as age» referred to in Article 1751 of the Civil Code, since it is an institute aimed at bringing forward the age of retirement in the presence of a significant contribution period. Also, according to the agent, the AEC Commercio 2009 did not expressly provide for the recognition of the indemnity in the event of termination in order to access the early old age pension because this institution was only introduced later, in 2011. Finally, the Court should have interpreted the 2009 AEC Commercio also taking into account the conduct of the social partners who, in 2017, having taken note of the introduction of the institution of early retirement, provided for the right to the indemnity also in that hypothesis.
The Supreme Court, hearing the matter, rejected the agent's appeal, noting that the contested judgement had followed the well-established orientation of the Court of Cassation, according to which, apart from the exceptions provided for in Article 1751 of the Civil Code, the agents' termination indemnity is not due when the agent terminate the relatioship. Apart from those exceptions, in fact, the agent's termination is, by law, always a fact preventing entitlement to the indemnity, even in the event of entitlement to an early old age pension. In fact, the use of the term “age” in Article 1751 of the Civil Code, next to those of “infirmity” and “illness”, makes clear the ratio legis aimed at limiting the right to the indemnity to only those cases characterised by absolute impediment to the activity, justifying the termination. In this context, the reference to age can only refer to the concept of having reached the age limit for old age retirement, without prejudice to the possibility of the parties modifying the provision in favour of the agent. Lastly, according to the Court of Cassation, the circumstance whereby the social parties in 2017 expressly extended the right to the indemnity also in the event of access to early retirement logically depicts the opposite of the agent's claim, confirming the different previous intention.