The obligation to register as a commercial agent.
According to well-established doctrine and case law, both Italian and of the European Court of Justice, the non-registration of an Italian commercial agent, operating in Italy, does not invalidate the agency contract.
It can be said that Italian jurisprudence arrived at this conclusion after a not short and linear path. It all started from the fact that theArticle 9 of Law No 204 of 3 May 1985expressly states that "it is prohibited for anyone who is not enrolled in the register referred to in this law to exercise the activity of agent or sales representative".
Italian jurisprudence, until the entry into force of European legislation (86/653/EEC)The Court of First Instance has inferred from the above-mentioned rule a complete ban on the exercise of the profession by non-registered agents, with the consequent nullity formerly Article 1418 of the Civil Code of the contractual relationship, on the ground that it is contrary to mandatory rules. (e.g. Cass. Civ. No. 4154 of 1992).
Following the entry into force of Directive 86/653/EEC, the Court of Bologna, in a dispute in which an unregistered agent was denied the right to receive theseverance payprovided for in Article 1751 of the Civil Code, due to the nullity of the relevant contract, submitted the following question to the Court of Justice:
"Is Directive 86/653/EEC incompatible with Articles 2 and 9 of Italian domestic law No 204 of 3 May 1985, which make the validity of agency contracts subject to the registration of commercial agents in a special register?".
The Court of Justice, in a judgment of 30.4.1998, in the case Barbara Bellone / Yokohama spa stated the following:
"Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents precludes national legislation which makes the validity of an agency contract conditional upon the commercial agent being entered in a special register".
It is noted that, although the Court did not expressly address the question of the nullity of contracts with non-registered agents, it did in fact intend to affirm the incompatibility of Article 9 of the 1985 Law with respect to the validity of the relevant contracts.
It must therefore be considered that the has direct effect, with the consequent obligation for national courts to disapply the incompatible domestic provision. The Court of Cassation on this point, now in a uniform manner, has repeatedly held
"the validity of agency contracts concluded with non-registered agents on the ground that the rule stipulating their nullity, Art. 9 Law No 204 of 1985being contrary to Community Directive No 653 of 1986, it had to be disapplied. Those principles, supported by the decision of the Court of Justice of the European Union of 30 April 1998 (in Case C-215/97 Bellone and Yokohama s.p.a.), according to which 'it is contrary to national legislation to make the validity of an agency contract conditional on the commercial agent being entered in a special register', must be confirmed, with the result that the plea must be rejected.." (among others, cf. Cass. Civ. No. 18202 of 2005).
Italian jurisprudence has therefore interpreted this rule, stating that the national court is obliged to interpret domestic laws as far as possible in the light of the wording and purpose of Directive 86/653/EEC, so as to allow application in accordance with its objectives.
On the basis of these case law guidelines, the legislator with the D. Lgs 26.03.2010, n. 59Italian law has transposed the EU directive 2006/123/ECknown as the 'Services Directive'. Among the objectives pursued by the EU directive was that of simplifying the methods of access also to the activity of commercial agent. To this end, therefore, Article 74 of Legislative Decree 59/2010 expressly provided:
- the suppressionamong others, of the role of agents and sales representatives ('RAR'), provided for in Article 2 of Law 204/1985;
- making the commencement of the commercial agent activity subject to the DIA (Dichiarazione Inizio Attività) - now SCIA (Segnalazione Certificata di Inizio Attività) - accompanied by self-certifications and certifications attesting to the possession of the requirements;
- registration of the activity of agents or sales representatives in the RI (Registro delle Imprese) if the activity is carried out in the form of a company, or in a special section of the REA (Repertoire of Economic and Administrative News).
The actual abolition of the Role became effective on 12 May 2012, following the entry into force of the implementing Ministerial Decree of 26.10.11.
As of this date, therefore, those who intend to commence the activity of commercial agency must submit to the Chamber of Commerce registry office of the province where they carry out their activity, a special SCIA, accompanied by the certifications and declarations in lieu of the law 204/1985, by filling out the 'ARC' form attached to the implementing decree.
For agency contracts that were concluded before the abolition of the register, the Italian court must therefore be deemed to disapply the legislation in force at the time, and it may be concluded that following the Bellone judgment, contracts with agents who were not registered must be considered fully valid.
Lastly, it should be noted that the obligation for agents to register (although this has been waived and no longer has any real effect) existed only for agents practising in Italy and must be excluded not only for agents residing abroad, but also for Italian agents who in fact operate and promote business abroad.
