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Influencers and content creators, tug-of-war over Enasarco contributions

Previdenza. Strengthened by the Court of Rome's ruling that imposed payment, the organisation is pushing the government to broaden its contribution base

23 July 2024

3' min read

Judgement 2615/2024 of 4 March in which the Court of Rome, following an inspection by Enasarco, ruled that an influencer who promotes a company's products permanently and continuously on the web can be classified as a commercial agent has put the issue of the classification of this new professional category in the case under the spotlight (see Il Sole 24 Ore of 24 May).

The compulsory supplementary pension institution for commercial and financial brokerage professionals with agency or representation contracts has long wanted to bring influencers within its contribution perimeter. "Fondazione Enasarco - confirms president Alfonsino Mei - needs to increase its contribution base for stability over a 50-year perspective, as imposed by the supervising ministries, so as to rebalance the ratio between contributors and pensioners. Right now, we also lose thousands of agents every year due to the growth of commercial platforms. In this context we would also like to include influencers in our contribution base in order to include young people as well, and to do this we need government intervention, with which we are talking".

Both Aicdc, the Italian content & digital creators association founded in 2023 and counting more than 700 members, and Assoinfluencer, set up in 2019 and included in the list of professional associations pursuant to Law 4/2013, as well as in the national network of Confcommercio professions, are against joining Enasarco. These are two important associations active in the creator economy sector that is estimated to involve 350 thousand professionals, for a potential turnover of 2.55 billion.

There are many reasons for the rejection of the social security fund, 'starting,' stresses Aicdc president Sara Zanotelli, 'with a substantial difference given the fact that the activity of commercial agents is sales-oriented, while that of the content creator is oriented towards a list of objectives of which sales promotion is only a part. Agents, moreover, earn on the basis of what they sell, while creators are not linked for their remuneration to a precise achievement of a sales target, but rather to the promotion of the product among their community of followers'.

According to Aicdc, there are also other more technical differences: 'The commercial agent,' Zanotelli continues, 'is a subject who must possess a certain number of professional requisites when opening the business, which must be verified beforehand and it is not certain that influencers possess them. The agent, then, is awarded a client package, has a mandate to collect, can conclude transactions on behalf of the principal and enjoys a meritocratic allowance: all parameters deemed inapplicable for influencers, who do not 'manage' any client package'.

While waiting for a ministerial pronouncement (the current situation, according to Sole 24 Ore, is a stalemate), the game on the payment of Enasarco will be played in the courts, following the Foundation's inspections, as has already happened in the case of the Court of Rome, in a context in which companies and influencers themselves have begun to request legal assistance to review contracts and avoid penalties and further costs, and to assess whether enrolment in the Cassa is really necessary (see the article published in Nt+Diritto on 24 June).

On the judicial front, Aicdc's premise is that the Roman ruling is formally correct: if the commercial agent also works on social networks, it is correct that he pays Enasarco contributions. What the association questions is the interpretation of the ruling, because a commercial agent can also work on social networks, but it is not certain that a content creator who works on social networks can be classified as a commercial agent.

Unconcerned about the scope of the Roman court's decision is the president of Assoinfluencer, Jacopo Ierussi, who says that 'a ruling finds its time. In my opinion, this orientation is the result of a lack of or incomplete understanding of the phenomenon. Moreover, according to the Supreme Court, the activity of promoting the conclusion of contracts on behalf of the principal, which constitutes the typical obligation of the agent, cannot consist in a mere propaganda activity, from which an increase in sales can only indirectly derive, but must consist in the activity of convincing the potential client to place orders for the principal's products, given that it is precisely with regard to this result that the agent is awarded the remuneration, consisting in the commission on contracts concluded through him and which have been successfully concluded. Based on this starting assumption, which of course conflicts with the typical dynamics of the content creation economy, it is easy to understand how making influencers fall within the Enasarco area appears to be a stretch'.

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Influencers and content creators, tug-of-war over Enasarco contributions

Previdenza. Strengthened by the Court of Rome's ruling that imposed payment, the organisation is pushing the government to broaden its contribution base

Brand connect

I prossimi eventi

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