19 Apr 2011

Ms Caprini was a commercial agent for the sale of advertising space in Italy.  She submitted a request to the office of the registrar of undertakings in Trento, Italy, for enrolment in the Italian register of undertakings in the category of small-scale commercial operators.  Ms Caprini was not at that time registered in the Italian register of commercial agents and representatives.

The Italian registrar of undertakings turned down Ms Caprini’s request for registration on the ground that she was not enrolled in the Italian register of commercial agents and representatives.  The Registrar argued that such enrolment should be treated as a legal condition of registration in the Italian register of undertakings compliance with which the registrar must verify before an entry can be made in that register.

Ms Caprini appealed against the Registrar’s decision to the court responsible for supervising the register, which dismissed her action.  Ms Caprini then appealed to the Tribunale civile e penale di Trento.  The Tribunale civile e penale di Trento decided to stay the proceedings and to refer the following question to the European Court of Justice for a preliminary ruling:

“Does the European Self-Employed Agents Directive (86/653/EEC) (“the Directive”) preclude a rule of national law which makes the enrolment of a commercial agent in the register of undertakings conditional on that agent’s name having been entered in an appropriate register?”

The European Court of Justice ruled that the Directive does not preclude national legislation from making registration of a commercial agent in the register of undertakings subject to that agent’s enrolment in a register of commercial agents provided that the commercial agent’s failure to register in the register of undertakings does not affect the validity of the commercial agent’s agency agreement or that the consequences of such non-registration do not adversely affect in any other way the protection which the Directive confers on commercial agents in their relations with their principals.  These provisos are matters for the national court to determine in the light of the specific circumstances of each case.

This briefing note is for general information. For advice in applying this general information to your specific circumstances, please contact Stephen Sidkin or any members of the Fox Williams’ agentlaw team. (www.agentlaw.co.uk).

Written by Steve Sidkin

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