About concession agreements inside a department store

The concession of space inside a department store (in Italian called “affidamento di reparto”) was expressly provided by art. 41, para. 14 of the D.M. 375/88 which stated that the holder of a department store organized on multiple spaces may grant one or more of these spaces to another person in order to manage on his own this space for an agreed period of time, giving immediate notice to the Chamber of Commerce, the Municipality and the VAT office.
Though this provision has been abolished, several regional laws use this description, but it remains rather difficult to give to this agreement a unitary definition and regulation throughout Italy.

Case law may give help: there is an important TAR (Regional Administrative Court) ruling that makes a distinction between the concession agreement of space inside department stores and the lease of commercial space.
According to the TAR, in fact, there is a significant difference between the two agreements since the concession of space inside a department store gives something extra compared to the lease of commercial space, as it comprises and includes services, staff, equipment that lack in a simple lease of a commercial space (TAR Puglia, Sec. II, 17/10/2001, n. 4372).
In the case decided by the TAR, the space was leased without staff and without goods. This circumstance led the Court to consider that the applicant would have to obtain a specific authorization.

It is more difficult to distinguish the concession agreement from the lease of a business branch. Both agreements, in fact, grant something more, compared to the lease of commercial space, consisting of staff, goods, equipment, plants, etc. However, some differences can still exist: in the concession, the holder of the store owns the business license. In the lease of a business branch, Italian law provides the succession (“sub-ingresso”) in the license, which does not occur in the concession, as pointed out by most regional laws.
Although the law doesn’t require a particular form for the concession agreement, the majority of regional laws request that the agreement is concluded with the notification to the Municipality and other relevant authorities.

In conclusion, as the concession agreement is ruled in many and different regional laws, if you are considering entering into this kind of agreement in Italy there are a number of issues and regulations which you should consider beforehand.

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Studio Scarpellini Naj-Oleari & Associati

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