When leasing commercial real estate, it is important to know whether the activity exercised therein requires the possession of a licence.
A business licence is an administrative act of an authorising nature, affecting the legal sphere of a private individual by granting him the power to engage in a certain activity.
Thanks to the intervention of the Bersani reform (Legislative Decree 114/1998), many commercial activities have been liberalised and the licence is no longer necessary, the SCIA (Certified Notice of Activity's Beginning) being sufficient.
Today, the licence is compulsory only for medium and large commercial establishments other than neighbourhood shops and whose sales area exceeds 250 square metres.
In municipalities with a population density of up to 10,000 inhabitants, the licence is required for shops and shops with a sales area of more than 150 square metres.
Also owing to the Bersani reform was the abolition of municipal and provincial commissions for the issuance of a licence for the opening of a public business as well as the elimination of the requirement for a notarial deed for the transfer of ownership of cars, motorbikes and boats.
Unlike goodwill, the licence is not subject to direct economic valuation.
However, its value in business terms is considerable: the presence of a licence grants market positioning within a specific area.
Let's see when a licence is necessary and what are the requirements for its issuance.
LEGAL NATURE OF THE LICENCE
In legal terms, the licence consists of an express provision of the municipal administration, bearing an identification number and certifying the applicant meets the subjective and objective requirements for the exercise of the activity indicated therein.
The licence is nominative and personal: the holder cannot dispose of it freely and must 'return' it to the municipality if the activity ceases.
The licence is requested at the same time as the SCIA is submitted to the municipality where the activity is exercised.
In Rome, the SCIA can only be submitted telematically to the SUAP (Single Desk for Productive Activities).
THE ACTUAL EXERCISE OF THE ACTIVITY
The licence must only be applied for if the activity is actually exercised.
This means that, if a business is purchased and then rented or transferred for investment purposes only, it is not necessary for the purchaser to be the holder of the licence: the burden of obtaining the authorization rests exclusively on the person actually exercising the activity, who must meet the requirements established by law.
The operator is, in fact, solely responsible for any abusive exercise of the business activity in accordance with the provisions of TULPS (the Italian Consolidated Text on Public Security, r.d. 773/1931).
REQUIREMENTS FOR OBTAINING A LICENCE
The requirements for obtaining a licence relate to the characteristics of the subject and the type of activity exercised:
a) Subjective requirements
A person exercising a business activity subject to a licence must be incensed, i.e. meet the following moral requirements (Article 11 of the TULPS):
* not having been declared bankrupt;
* not having been convicted of non-culpable offences;
* not having been subjected to measures restricting personal liberty.
Other personal requirements vary depending on the activity exercised.
For example, in order to start a business in the food sector, regulations oblige personnel to obtain the HACCP certificate, issued after attending a course.
Possession of the requirements is certified by the ASL.
b) Objective requirements
The premises must comply with urban planning, health and hygiene, noise pollution and external and internal room surveillance regulations.
Once a licence has been obtained, it is associated with the business premises indicated in the SCIA and cannot be extended or transferred to another premises unless the SUAP is notified.
HOW TO VERIFY THE EXISTENCE OF A LICENCE
In order to know whether an activity is subject to a licence, i.e. to an express measure of the municipal authority, it is necessary to identify the applicable administrative regime set out in Annex A of the SCIA 2 decree (legislative decree 222/2016, which refers to the licence where it speaks of 'authorization'): in correspondence with the activity exercised, it is indicated whether, in addition to the SCIA, the law requires authorisation or the formation of silence-assent (90 or 180 days) pursuant to Article 20 of Law 241/1990.
Licences issued in the municipality of Rome are registered with the SUAP.
The details of the licence can also be found in the Chamber of Commerce's extract from the Companies Register.
However, publicity in the company registry, like cadastral publicity, has no probative value as to the validity and extent of the licence.
It may therefore happen that the licence appears in the commercial register but is no longer in existence (because, for example, the holder has lost the right to exercise it due to non-compliance with certain rules).
For these reasons, it is always necessary to check the state of the art with the relevant municipality.
THE QUOTA OF LICENCES
In areas subject to protection, such as those within the Historic City (fabrics T1-T6) and within the UNESCO perimeter, licences are limited.
This means that within this territory the number of licences is fixed in advance: no new licences may be issued.
The principle of quota licences is moderated by the possibility of taking over a production activity already authorised to operate in the market.
This is known as 'sub-entry', in which a person takes over from the original owner of the business, subject to verification that the subjective and objective requirements are met.
The sub-entry procedure is triggered when the company or a branch thereof is sold or leased.