In recent years, the activity of influencers has become increasingly widespread and relevant, favoured by the rise and growing popularity of social networks. This phenomenon has profoundly transformed the dynamics of digital communication, influencing marketing, business strategies and consumer habits but, from a regulatory point of view, the legislator has never intervened to regulate their activity. Against this backdrop of increasing development of the profession, the interest of institutions – especially social security institutions – has grown in parallel, evidently wishing to include influencers in their contribution base.
At the same time, the normative-regulatory confusion related to the figure is witnessed, in recent years, by the difficulty of judges to frame the influencer in a precise manner, from a legal point of view, within the cases typified by the legislator.
This uncertainty has generated divergent interpretations and an uneven application of the rules, making the definition of a clear and coherent legal framework for the profession even more complex.
In this context, the relationship established with an influencer was, for instance, considered as a generic ‘self-employment relationship’ (Court of Fiscal Justice – Piedmont Region, No. 219/23); as a ‘sponsorship contract’ (Trib. Pavia, 16/1/23); until it was traced back to the typical ‘agency relationship’ by the Court of Rome, with decision No. 2615/24.
In the latter case, the Rome court upheld the claims of ‘Enasarco’, which had argued that certain influencers were agents, on the basis, inter alia, of certain typical elements of the agency relationship, such as those relating to the stable and continuous promotion of a company’s products.
This jurisprudential orientation highlights the tendency to trace the activity of influencers back to pre-existing contractual schemes, even in the absence of a specific discipline, raising questions about the adequacy of the current regulatory framework in effectively regulating this new professional reality.
Well, this latest pronouncement – known to most for having considered certain ‘sportsmen’, sports-related subjects, ‘personal trainers’ and ‘body builders’ in the same way as commercial agents – has opened the debate among insiders as to the scope of this decision, also in view of the important economic implications that may result from it.
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With the press release of 28 November, the Italian Ministry of Labour and Social Policy publicised the ministerial decree of 20 October 2022 which defines the criteria and procedures for granting the tax exemption for private employers who obtain the certification of gender equality introduced into our legal system by Italian Law No 162/2021.
This is a voluntary certification that the most compliant companies can apply for and obtaining it brings with it a series of concessions, including: tax relief up to 1% and a maximum of EUR 50,000.00/year for each company; advantageous criteria in tenders; possibility of obtaining a bonus score in the assessments by authorities holding national and regional European funds, of project proposals for the granting of state aid to co-finance the investment undertaken.
To obtain the tax exemption, the decree establishes that certified companies will be able to submit, by electronic means only, the application for exemption from the National Social Security Entity (Istituto Nazionale della Previdenza Sociale, ‘INPS’), according to the instructions to be provided by INPS.
This application must include certain information including: (i) the company’s identification data, (ii) the average monthly salary and the estimated average rate relating to the equality certification’s period of validity, (iii) the sworn self-declaration, issued under Italian Presidential Decree No 445/2000, with which the company declares that it holds the gender equality certification, and (iv) the certification’s period of validity.
INPS will assess the applications on the basis of the information in its possession (and that transmitted by the Department for Equal Opportunities of the Presidency of the Council) and will grant the company the exemption for the certification’s entire period of validity.
The exemption, calculated on a monthly basis, will be used by employers through a reduction in their social security contributions for all the months of the certification’s validity, provided that the certification is not revoked and no measures are taken to suspend the social security benefits adopted by the National Labour Inspectorate (Ispettorato nazionale del lavoro).
Altri insight correlati:
Gender equality: parameters for obtaining certification have been defined
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With its message no. 721 of 14 February 2022, Inps has provided instructions and clarifications about the “Greenpass50+” service features to verify the possession and validity of the green certification of workers aged 50 years or older.
Since last 15 February and until 15 June, the legislature has imposed compulsory vaccination for those aged 50 years or older. This requirement means that workers over 50 must possess and present, where required, the “reinforced Green Pass” (Covid-19 green certification from vaccination or recovery) to access the workplace.
The Institute clarified that in compliance with legislature requirements, “Greeenpass50 +” can provide the positive or negative outcome of the certification verification considering the age requirement.
The message stated that “the “reinforced” green-pass (from vaccination or recovery), for workers over 50, is verified, while for others, the “basic” green-pass (from vaccination, recovery or negative swab)” is verified.
The service is accessible on the Institute’s website:
The service is reserved only for public or private employers or their intermediaries, while those in charge of verification can access with SPID/CIE/CNS and select the “citizen profile“.
The Institute identifies employees for private sector employers based on the reports transmitted through the Uniemens flows.
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INPS recalled that those who have been identified as those in charge of verifications must take care to select only those workers “on duty, who must access workplaces” […] “exclusively for the selected positions”, without considering absent workers or those who are under remote working.
With its message no. 3589 of 21 October 2021, INPS provided clarifications on the use of its institutional portal “Greeenpass50+” for the massive control of the Covid-19 Green Certificate, “Green Pass“), by private and public employers with more than 50 employees who are not NoiPa members.
The service provided by INPS – which obtains the information by directly querying the DGC National Platform – (PN-DGC) – allows the asynchronous verification of the Green Pass referred to the list of tax codes of its employees, known to the Institute at the time of the request.
The service can be used by interested companies after having been accredited by the Institute following the website procedure (accessible in the companies and consultants’ service section) by providing the tax codes of the checkers, i.e. those authorised to check the workers’ Green Pass, who will then be enabled.
The service includes three distinct phases:
Through this system, INPS will daily use Uniemens flows to identify the employees of accredited companies and check their possession of the Green Pass, while checkers can daily view all the company employees, checking the Green Pass only for those who are working.
The response will be a list of the names provided and the verification outcome, expressed by a red cross or a green tick.
If the system specifies that the worker does not have a valid Green Pass, they have the right to request that their certificate is checked when accessing the workplace using the Verifica C19 application.
Law 30 December 2020, no. 178 (2021 Budget Law) introduced a new protection period from 1 January 2021 to the following 28 February for public and private at-riskemployees. INPS clarified this with its message no. 171 of 15 January. This protection involves equating the period of absence from work to hospitalisation for workers in possession of certification indicating their at-risk status. They must provide documentation about their disability or risk condition resulting from immunosuppression or the results of oncological diseases or due to life-saving treatments. Equating the absence with illness means recognising the worker’s financial benefit and contribution within a maximum period provided for by the legislation for the employee qualification and working sector. In addition: This protection allows the at-risk employee to carry out their duties in remote working, including (i) the assignment to different tasks included in the same classification category or area, as defined by collective agreements or (ii) the performance of specific vocational training activities which can be done remotely.
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The National Employment Inspectorate (the ”NEI”), with note no. 1156 dated 22 December 2020, provided to the territorial inspectorates clarifications on the procedure to be followed in the event of a request to enter into a fixed-term contract in assisted form in accordance with Art. 19, paragraph 3 of Italian Legislative Decree 81/2015. This refers, in particular, to cases where derogations are made from the requirements envisaged by the legislation by virtue of a “proximity contract” lacking the requirement of greater representativeness.
The fixed-term contract may not have a total duration exceeding 24 months or the longer duration envisaged by the industry’s National Collective Labour Agreement, subject to the possibility, in accordance with Art. 19, paragraph 3 of Italian Legislative Decree 81/2015, of signing a further contract having a term of 12 months at the relevant Territorial Employment Inspectorate.
Art. 8 of Italian Decree Law 138/2011, converted into Italian Law 148/2011, states that collective agreements signed at company or territorial level by trade union associations comparatively most representative on a national basis may implement specific agreements with effect in relation to all workers involved. The agreements may concern the regulation of issues related to the organisation of work and production with reference, inter alia, to fixed-term contracts.
The note in question specifies that the Inspectorate’s activity must be limited to verifying (i) the completeness and formal correctness of the fixed-term contract, (ii) the genuineness of the worker’s consent and (iii) the signature of the same. However, if violations of the imperative rules are identified (e.g. lack of justifying causes), the recourse to the “assisted procedure” will not be admissible.
In the case submitted to the NEI, the derogation from the requirements envisaged by the legislation on fixed-term contracts derived from the regulation contained in proximity contracts signed in accordance with Art. 8 of Italian Decree Law 138/2011 (converted into Italian Law 148/2011).
In that regard, the NEI specifies that if the proximity contracts were signed in violation of Art. 8 – with particular reference to constraints of purpose, in addition to those imposed by the Constitution or, also, in relation to the requirement of greater comparative representativeness of the signatory organisations – they have no effect. Therefore, it will not be possible to enter into further fixed-term contracts according to the “assisted procedure” in application of these proximity contracts.
On the point, then, the NEI cited the indications provided with circular no. 3/2018 relating to circumstances of proximity agreements entered into by associations not having the requirements of representativeness required by Art. 8 of Italian Decree Law 138/2011.
In particular, with this circular, the NEI clarified that proximity contracts signed by entities “not authorised” may not produce effects of derogating from the provisions of law and regulations envisaged by the National Collective Labour Agreement. During the assessment, the inspectors must consider these contracts ineffective and adopt the consequent measures.
With reference to fixed-term contracts, in the same circular, the NEI stated that if the employer has applied rules dictated by a collective agreement not signed by the comparatively most representative organisations, the effects derogating or supplementing the regulatory rules cannot be applied. This, according to the NEI, involves the lack of application of the flexibility institutions envisaged by Italian Legislative Decree no. 81/2015 and, depending on the circumstances, also the “transformation” of the employment relationship into a permanent employment relationship.
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INPS (the Italian Social Security Institution), with its message no. 4805 dated 22 December 2020, provided clarifications on the issuance of A1/E101 social security certificate for periods of employment in the United Kingdom, concluding after the end of the transition period, namely 31 December 2020.
In particular, INPS specified that requests to issue Form A1 for periods of employment with start date prior to 31 December 2020 and end date thereafter will be accepted and the respective portable A1 documents will be valid until the end of the certified period, if the same are received by 31 December 2020.
INPS has also clarified that requests to issue A1/E101 Forms, which have been rejected as they relate to periods commencing from 1 January 2021, will be automatically rectified by way of the issuance of new certificates for the entire requested period, provided that there is seamless continuity in the applicable legislation already certified by the A1/E101 forms. The regional INPS departments will be responsible for communicating to the social security institution present in the United Kingdom that a new A1/E101 form has been issued for rectification of the period.
Finally, INPS has clarified that E101 certificates dated after 31 December 2020 may also be issued, if the conditions are in place, for citizens of Third Countries, notwithstanding that, for secondments, the maximum limit of duration for the certified period is 12 months.
INPS, with its message no. 2797 of 14 July 2020 provided clarifications related to private and public workers, as well as NASPI (Italian unemployment) beneficiaries, who work for brief periods in Germany.
Specifically, for private employees, they first underlined that the applicable legislation, based on the provisions contained in article 13, paragraph 1 of the EC Regulation 883/2004, is that of the State of residence of the worker as long as substantial work is performed there. Moreover, for the purposes of determining the applicable legislation, marginal employment should not be considered, i.e. work that is not very significant in terms of time and remuneration.
The message in question clarifies that if the worker is employed in Italy and performs a job of a marginal nature in Germany or one that is not substantial, the applicable legislation is solely Italian with the consequent obligation for the worker to inform INPS of his employment situation. Failure to comply will result in forfeiture of recognition of the German insurance period if considered as marginal by INPS.
