Italian Supreme Court Tough Again on Formalities for Powers of Attorney
The Italian Supreme Court confirmed, yet again, the crucial importance of complying with certain Italian law formalities for the validity in Italy of a power of attorney granted and notarized abroad (the “PoA”).
By decision no. 2866 of 5 February 2021, the Italian Supreme Court in Joint Session (Corte di Cassazione - Sezioni Unite) held that a PoA notarized abroad shall be considered null and void if it lacks the Italian translation of (i) the PoA itself and (ii) the notarization.
A German individual was notified of a fine by an Italian municipality as a consequence of an infringement of Italian road circulation rules. The individual challenged the sanction before the Italian judges, alleging a number of violations of law. After the procedures before the court of the first tier (justice of the peace) and the following appeal before the Court of Florence were completed, the case was eventually brought by the individual before the Supreme Court. The lawyer assisting the individual had been appointed by means of a wide PoA executed and notarized outside Italy years before.
In this respect, the Supreme Court stated that the appeal before the Court of Florence was inadmissible due to the nullity of the PoA; the Supreme Court, in particular, ruled that the PoA, granted by the German individual to his Italian lawyer, was generic (as it did not explicitly mention the specific procedure) and lacked the translation into Italian language of the notarization of the signature. The Supreme Court also reiterated the principle that, in case of PoAs executed and notarized abroad, both the PoA document and the notarization (i.e. the notarial certification that the PoA has been executed before the notary and that identity and powers of the signatories have been duly ascertained) must be translated into Italian language. Otherwise, the relevant PoA shall be considered null and void and that may trigger the invalidity of the activities carried out by the appointed attorney on the basis of such PoA.
A FEW NOTES
The judgment involved a PoA granted to a lawyer for a court procedure; according to most law scholars, the same principles may nevertheless be applicable to PoAs granted to attorneys-in-fact for contractual purposes (execution and performance of agreements, receipt of payments, etc.) or other non-judicial activities.
The Italian Civil Code provides that the PoA must be executed with the same formalities provided by law for the contract or the legal act to be carried out by the attorney. In addition, the Italian Private International Law (Law no. 218/1995) provides that a PoA is valid, as far its formalities are concerned, if it is regarded as such by the law governing its “substance” or by the law of the country where it is physically granted.
In this respect, it is worth noting that, for the purpose of validity in Italy, a notarial PoA has to comply with the following requirements: (i) the notarization must be made by an authority or an individual with similar functions to an Italian notary (in many jurisdictions, it is usually a public notary); (ii) the PoA must be executed by the principal in personal attendance, before the notarizing officer or notary; (iii) the PoA must include the certification by the notary or officer that the principal’s signature is true and the document has been signed on that very day before the notary or officer, who has duly ascertained identity and powers of the signatories (the certification of powers may sometimes lead to long discussions with notaries of foreign jurisdictions, as in many countries public notaries and similar officers do not always provide such comfort); and (iv) a full translation into Italian must be provided. Of course, depending on the country of execution (which may or may not be party to international or bilateral treaties), additional formalities may be needed, such as the Apostille provided for by the 1961 Hague Convention, legalization, etc.
It is of paramount importance that Italian law requirements—in particular those involving the content of notarization by the foreign notary or officer—are complied with, as Italian notaries and judges are rather rigid in this respect. Given the differences between notarial procedures abroad and in Italy, we recommend discussing Italian requirements well in advance with the local (non-Italian) officer or public notary instructed to notarize the PoA and to involve an Italian notary or lawyer in the discussion, in case any issues with the local professional arise.