C-224/00
ECLI:EU:C:2001:671
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COMMISSION v ITALY
OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 6 December 2001 1
I — Subject-matter of the proceedings 3. Article 202 of the Codice, which pro- vides for the possibility of payment of a lesser sum in the event of an infringement of road-traffic law, states:
1. The present action by the Commission against the Italian Republic concerns the compatibility with Community law of a provision of Italian road-traffic law, which prescribes different treatment for offenders according to the place of registration of vehicles. Whether this is disproportionate and thus incompatible with Article 12 EC ' 1 . As regards offences for which the is disputed. present code provides for the imposition of an administrative pecuniary penalty, subject to the application of any ancillary penalties, the offender shall be permitted to pay, no later than 60 days from the date of the recording or notification of the offence, a sum equal to the minimum prescribed by the particular provisions.
II — Legal background: National law
2. The initial provisions of road-traffic law for the purposes of the present proceedings 2. The offender may pay the amount due at are contained in the Codice della strada the investigating officer's station by way of (Highway Code), Decreto Legislativo transfer to a post office giro account or, if No 285 of 30 April 1992 (hereinafter 'the provided by the administration, a bank giro Codice'). account. If necessary, the payment details must be stated in the report issued to or served upon the offender, with reference to 1 — Original language: German. the provisions for transfer to a post office
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giro account or, if applicable, to a bank 2. The director of the office or station giro account. within the meaning of paragraph 1 is obliged to produce to the Prefect within 30 days of the oral or written submission of the appeal, evidence of the recording or notification and all other documents rel- evant to the decision, including those originating from the appellant.
3. Payment of a reduced sum is not per- mitted if the offender fails to comply with an instruction to stop, or if the driver of the vehicle has refused to produce the vehicle registration document, driving licence or any other document which he is required to 3. If, within the prescribed time-limits, no carry by law; in this case the report of the appeal has been brought and the reduced circumstances of the offence must be passed payment has not been made, the police to the Prefect within 10 days of the report, by way of exception to Article 17 of booking.' Law No 689 of 24 November 1981, shall constitute authority to levy execution for a sum equal to half of the maximum of the administrative penalty prescribed and for the costs of the proceedings.'
4. Article 203 governs the appeal to the Prefect:
5. Article 204 governs the measures to be taken by the Prefect:
'1. Within 60 days following the date on which the offence was officially recorded or notified, if the reduced payment has not been made in a case where it is permitted, '1. If, after examining the police report and the offender or other persons referred to in the files submitted by the investigating Article 196 may appeal to the Prefect of the office or the investigating station, the area in which the offence was committed, appeal and accompanying documents, and by appearing in person at the office or after hearing the person who has applied station of the investigating officer, or by for the appeal, the Prefect considers that writing to him by registered post with the finding that an offence has been com- advice of delivery. Documents considered mitted is well founded, he shall issue, appropriate may be submitted together within 180 days, a reasoned order requiring with the appeal, and application may be the payment of a fixed sum, in accordance made for a personal hearing. with criteria laid down in Article 195(2),
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which shall not be less than twice the 6. Article 205 prescribes judicial redress: minimum prescribed by law. The order imposing the administrative pecuniary pen- alty shall include the costs and shall be notified to the offender and other persons liable for payment according to the provi- sions of this title. Where, however, the Prefect does not consider the findings to be well founded, he shall, within the same '1. The parties concerned may bring an period, issue a reasoned order as to the appeal against the order to pay within 30 discontinuance of the proceedings, and days of service of the notice or, if the convey the complete order to the office or person concerned is resident abroad, within station of the investigating officer, who 60 days of such service. shall inform the appellants of it.
2. According to Article 7(3) of the Codice di procedura civile, as amended by Article 17 of Law No 374 of 21 November 1991, a judicial appeal must be lodged at the Giudice di pace of the area in which the 2. The order imposing the administrative offence was committed. The jurisdiction of pecuniary penalty shall be notified in the the Pretore remains unaffected where an forms specified in Article 201. Payment of administrative ancillary penalty has been the fixed sum and the related costs shall be imposed. made within 30 days of notification at the registry or another office specified in the order. The registry which has accepted payment must notify the Prefect and the investigating office or station within 30 days of payment.
3. The appeal proceedings within the meaning of paragraph 2 are governed by Articles 22 to 23 of Law No 689 of 24 November 1981.'
3. After expiry of the period prescribed for payment of the administrative pecuniary penalty, the order imposing the penalty 7. Article 207 contains specific provision shall constitute authority to levy execution for vehicles registered abroad or which for the fixed sum and the related costs.' have an EE registration plate:
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'1. Where a contravention of the present a precautionary measure, immediately con- code, punishable by the imposition of an fiscate the offender's driving licence. In the administrative pecuniary penalty, is com- absence of a driving licence, the vehicle mitted with a vehicle registered abroad or shall be impounded until one of the con- bearing an EE registration plate, the ditions referred to in paragraph 2 is satis- offender may make immediate payment to fied, and in any case for a period not the booking officer of the reduced payment exceeding 60 days. prescribed in Article 202. The officer shall forward the report and the payment received to his station or office, and issue the offender with a receipt, having noted the payment on the copy of the report handed by him to the offender. 4. The provisions of this Article shall not apply to vehicles owned by Italian nationals resident in the municipality of Campione d'Italia.'
8. The Italian system is characterised by the 2. If, for any reason, the offender does not fact that the maximum fine payable is set at exercise the option of making a reduced four times the minimum. One half of the payment, he shall be required to pay to the maximum is, therefore, invariably double booking officer, by way of security, a sum the minimum. equal to half of the maximum of the pecuniary penalty prescribed for the offence committed. Instead of paying the said security, the offender may provide an appropriate surety document guaranteeing payment of the sums due. The payment of the security or the provision of the surety document shall be mentioned in the police III— Pre-litigation and judicial procedure report recording the offence. The security or surety document shall be lodged at the police station or department to which the booking officer is attached. 9. The Commission, having taken the view that certain provisions of the Codice are incompatible with Article 12 EC, initiated a procedure under Article 226 EC for failure to fulfil an obligation.
3. In the absence of payment of the security or presentation of the guarantee referred to 10. In accordance with the procedure in paragraph 2, the booking officer shall, as under Article 226(1) EC, the Commission
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gave the Italian Republic the opportunity to IV — Summary of the submissions of the make representations, and then, by letter of parties 2 October 1998, issued a reasoned opinion, requiring the Italian Republic, within two months following service of the said opinion, to adopt the necessary measures to comply with its obligations under Article 12 EC.
13. In the Commission's view, Article 207 of the Codice gives rise to the following: Where a provision of the Codice is 11. As the Commission remained of the infringed with a vehicle registered abroad, view, following several written responses the offender must pay, directly to the from the Italian Republic, that the Italian investigating officer and without the possi- Republic had not fulfilled its obligations, it bility of appeal to the Prefect responsible brought an action against the Italian for the area in which the offence was Republic before the Court of Justice by committed, a fine equal to the minimum application dated 23 May 2000, entered in amount fixed for the particular type of the register of the Court of Justice on offence, lodge a security or produce a 31 May 2000. surety document covering an amount equal to half the maximum penalty fixed for the offence committed. If no security is lodged or surety document produced, the driving licence may be confiscated. There is no express provision for lodging an appeal 12. The Commission is applying for: with the Prefect.
— a declaration that the Italian Republic has failed to fulfil its obligations under Article 12 EC by maintaining in force legislation (Article 207 of the Highway Code) which prescribes different and 14. On the other hand, according to disproportionate treatment for Article 202 of the Codice, in the case of offenders according to the place of an infringement of the Codice involving a registration of their vehicles; vehicle registered in Italy, the offender may, within 60 days of notification, pay an amount equal to the minimum amount fixed for the particular type of offence. He may pay the amount due at the office of the investigating officer, or by means of a — the costs of the proceedings to be paid transfer from his post office giro or bank by the Italian Republic giro account. Finally, he is entitled to lodge
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an appeal with the Prefect within 60 days ring to paragraphs 22 and 24 of the of notification of the order imposing the judgment in Pastoors, and pointing to the penalty. absence of corresponding Community legislation or bilateral conventions to ensure the enforcement of penalties abroad, the Italian Government nevertheless takes the view that the differentiation in question is necessary in order to secure payment by 15. The Commission takes the view that offenders not resident in the country. the abovementioned rules constitute dis- crimination by reason of the place of registration of the vehicle and thus leads, de facto, to the same result as discrimi- nation by reason of nationality. Whilst it may be concluded from the judgment in the Pastoors case 2that a distinction may be made according to the offender's residence, 18. The solution proposed by the Commis- the Italian legislation is disproportionate. It sion is inadequate because it does not therefore constitutes an infringement of overcome the most significant aspect of Article 12 EC. the legislation: the obligation to make immediate payment. In addition, the Com- mission's proposal would benefit an offender not resident in Italy who wishes to make an appeal which is then rejected, because, in such cases, a security equal to the minimum fine would not cover the 16. Furthermore, the Commission proposes penalty provided by the legislation, which a solution which, in its view, serves the could amount to double the minimum objective pursued by Italy and is in con- amount. formity at the same time with Community law. This would entail requiring immediate payment of a security equal to the mini- mum amount, in other words: the amount necessary for payment of the reduced sum under Article 202 of the Codice. In this way, payment would be secured without depriving the person concerned of the right to time for reflection. V — Assessment
17. The Italian Government recognises that the Italian legislation indirectly dif- 19. The first step is to inquire whether, and ferentiates according to nationality. Refer- in which respect, the Codice provides for different treatment, and whether this legis- lation is objectively justified. The second is 2 — Case C-29/95 Pastoors [1997] ECR I-285. then to examine whether this legislation 'is
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proportionate to the legitimate aim of the or commencement of criminal proceedings. national provisions'. 3 Only the second alternative included a special provision for non-residents, namely the lodgment of a security equal to one and a half times the amount of the fine.
A — Different treatment
23. The provisions of the Codice at issue in 20. First, it should be noted that, as regards these proceedings, on the other hand, differ the penalty of a fine, the Codice distin- in considerably more respects. Thus the guishes two regimes for infringements. first group has 60 days in which to pay a Whereas one regime applies to offenders reduced sum, whereas the second group can whose vehicles are registered in Italy (here- only do so immediately, which means it has inafter 'the first group') the other applies to no time to deliberate. offenders whose vehicles are registered abroad or which bear an EE registration number (hereinafter 'the second group'). Both regimes differ from one another in several respects.
24. Furthermore, as a review of the provi- sions of the Codice relevant to this point 21. Further, it should be noted that the reveals, the second group, in contrast to the contentious provisions of the Codice differ first, only has the option of an appeal on in several respects from the legislation at payment of a security or production of a issue in the Pastoors case, to which both surety document. parties have referred.
22. The first difference consists of the fact that the legislation at issue in the Pastoors case essentially provided both groups, resi- 25. Finally, if the reduced sum is not paid dent and non-resident, with the same immediately, a security provided, or a options: immediate settlement of the fine surety document produced, the second group is subject to a penalty which cannot be imposed upon the first: confiscation of 3 —Case C-274/96 Bukel ami Franz [199S] ECR I-7637, the driving licence or, secondly, impound- paragraph 27. ing of the vehicle.
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26. The second distinction with respect to of vehicles registered in Italy are driven by the Pastoors case is that Article 207 of the nationals of other Member States. Codice does not distinguish according to domicile or permanent residence, but according to place of registration of the vehicle.
30. Thus, the Codice lays down rules the effect of which is to distinguish according to nationality.
27. It must, therefore, be considered whether, as with provisions connected with residence, legislation which is connected with the place of registration is also to be characterised as a covert form of discrimi- 31. According to the Court's case-law, nation on grounds of nationality. however, not every instance of different treatment is an infringement of the prohib- ition on discrimination in Article 12 EC, as different provisions are permissible if they are justified by objective circumstances. 5
28. If we take as a starting point the ideas underlying the Court's case-law 4 on covert forms of discrimination, prohibited (covert) discrimination will be presumed where 32. With a view to the possible objective national legislation does not affect, or justification of Article 207 of the Codice, affects only very rarely, nationals of the the Italian Government has, rightly, drawn relevant Member State. attention to the difficulties which may arise in the punishment of offences committed under the Codice with vehicles which are not registered in Italy.
29. Article 207 of the Codice constitutes such legislation, as it will, as a rule, affect nationals of other Member States. This is 33. A significant aspect in the assessment of because probably only a minority of legislation concerning the amenability of vehicles registered abroad are driven by offences to prosecution and enforceability Italian nationals, or rather, only a minority of public acts, such as judgments or
4 — Case C-279/93 Scbumacker [1995] ECR I-225, paragraphs 5 — Case C-398/92 Mund & Fester [1994] ECR 1-467, para- 28 and 29, and Case C-29/95, cited in footnote 2, graphs 16 and 17, and Case C-156/98 Commission v paragraphs 17 and 18. Germany [2000] ECR 1-6857, paragraphs 86 and 87.
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administrative acts, is the question whether tional costs are, however, implicitly recog- international conventions or acts under nised by the Court 8as grounds for justify- Community, or rather, Union law exist to ing legislation which provides for objec- ensure enforceability. tively different treatment.
37. The present proceedings concern 34. Where such conventions or acts do national legislation which provides for the exist, it follows from the judgment in the deposit of a sum of money by way of Mund & Fester case that in such cases, security. This is to prevent offenders with a special provisions for non-residents or, as vehicle registered abroad from 'avoiding an in these proceedings, for offences com- effective penalty simply by declaring that mitted with vehicles registered abroad, are they do not consent to the immediate not necessary to guarantee enforceability. 6 levying of the fine, and opting for the continuation' 9of the procedure, which — when transposed to the legal position under the Codice — means that they wish to lodge an appeal.
35. By reason of the absence of conven- tions, however, as the Court stated in the Pastoors case, there is 'a real risk that enforcement of a judgment against a non- 38. The need for inter-State legislation is resident would be impossible or, at least, moreover apparent from an initiative considerably more difficult and onerous'. 7 recently undertaken in the context of police The risk is particularly great in the area of and judicial cooperation in criminal cases road traffic. (Title VI EU), namely in a framework agreement on the application of the prin- ciple of mutual recognition of fines and financial penalties. 10
36. Prosecution of offences committed using vehicles registered abroad necessarily involves significantly more complex pro- 39. Accordingly, it follows that legislation cedures, which require more time and which, in relation to punishment of manpower, and thus give rise to greater offences under the Codice, differentiates costs. Jurisdictional difficulties and addi- according to whether the vehicle is regis-
6 — So too Advocate General Tesauro in his Opinion m Case 8 — Compare Case C-274/96, cited in footnote 3, paragraph 30. C-29/95, cited in footnote 2, point 11. 9 — Case C-29/95, cited in footnote 2, paragraph 22. 7 — Case C-29/95, cited in footnote 2, paragraph 21. 10 — Council document 11178/01, COPEN 40.
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tered in the country or abroad, is funda- be borne in mind that they were brought mentally justified. That does not mean, into force for the purpose — also recog- however, that Article 207 of the Codice nised in case-law 11 — of safeguarding the thereby fulfils the conditions of Article 12 amenability of the offence to prosecution. EC.
43. As the Italian Government rightly argues, the measures provided in the said article are fundamentally suited to this B — Proportionality purpose. This applies particularly to the payment of a security, by which the actual payment of the corresponding levy is intended to be guaranteed. 12 40. In order for national legislation to be compatible with Article 12 EC, it must not only be objectively justified, but must furthermore also be in conformity with the principle of p r o p o r t i o n a l i t y . Article 207 of the Codice must, therefore, 2. Necessity be examined against the individual aspects of this principle. At issue, firstly, is the obligation to pay a security, as well as the amount payable, and second, the measures which may be taken in the event of non- payment of a security or provision of a 44. In terms of necessity, it is necessary to surety document. examine whether the standardised meas- ures in Article 207 of the Codice involve the slightest interference with the rights of the individual, or, conversely, whether there are other equally effective measures which would be less onerous. 41. This must be examined generally, not by reference to specific cases, the principle of proportionality being infringed even where a class of typical cases is affected. 45. A comparison with corresponding legislation in the other Member States shows that not only are there theoretically less onerous measures, but in some 1. Suitability Member States such measures are even in force. Thus, several Member States dis-
11—As to the purpose of prosecution, see Case C-262/99 Louloudakis [2001] ECR I-5547, paragraph 69. 42. As regards the suitability of the provi- 12 — Compare Case C-213/99 de Andrade [2000] ECR I-11083, sions of Article 207 of the Codice, it should paragraph 23.
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pense altogether with a distinction between 48. It follows from this that Member States offences committed by persons resident in are not obliged to choose the lowest level of the country, or rather, with a vehicle protection at the outset. registered in the relevant country, and those committed by persons resident abroad or with a vehicle registered abroad. 13
49. The conformity of the legislation (Article 207 of the Codice) must also, therefore, be examined in the light of proportionality in the narrower sense.
46. However, even those Member States which do recognise such distinctions apply much less restrictive measures than Italy. 14 This is true primarily of the amount of the security and the measures which may be 3. Appropriateness, proportionality in the imposed. Thus, the amount of the security narrower sense is limited, for example, to the amount of the fine and — in part — the costs of the proceedings. Under the system of the Codice, the reduced sum under Article 202 would be consistent with the first aspect. 50. Lastly, it is therefore necessary to examine the appropriateness of the inter- ference associated with this legislation (Article 207 of the Codice) to the aim of this provision.
47. Although there are, therefore, measures which work in practice, and which are equally effective but less onerous, the mere 51. In this connection, the first point to existence of such other legislation in other consider is the effect of the regime of the Member States — at least according to Codice on offenders with vehicles regis- one branch of the case-law 15 — is not in tered abroad. itself an argument for the disproportional- ity of national legislation.
13 ·— This applies, at least according to the statutory provisions relating to fines, to Finland, France, Greece, Ireland, Austria and the United Kingdom. 14 — Belgium, Germany and Spain. 52. For, as with the national legislation 15 — Case C-124/97 Läärä [1999| ECR 1-6067, paragraph 36. which formed the basis of the Pastoors
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case, Article 207 of the Codice has a 'manifestly disproportionate'.17 However, dissuasive effect on offenders with vehicles legislation which is not manifestly dispro- registered abroad, so far as their legal portionate also infringes Article 12 EC. remedies are concerned.
56. By putting offenders with a vehicle 53. The dissuasive effect arises firstly from registered abroad under pressure to waive the amount of the security. This amounts to their right of appeal, and to pay the double the reduced sum due on immediate reduced sum immediately, the regime payment. Added to this are the conditions restricts the access of this category of governing forfeiture of the security. This is persons to legal redress. 18 forfeited even if no appeal is lodged. The offender only recovers the security if he wins the case.
57. But the right to an effective judicial remedy constitutes a general principle of Community law, which flows from the constitutional traditions of Member States, 54. Furthermore, a certain amount of and is embodied in Articles 6 and 13 of the pressure is applied through the secondary European Convention on Human Rights measures which may be taken, such as and Fundamental Freedoms. 19 confiscation of the driving licence and impounding of the vehicle.
58. Furthermore, it should be noted that Article 41 of the — legally non-binding — 55. It is immaterial in this respect that, Charter of Fundamentai Rights of the according to Italian law — as opposed to European Union incorporates a right to the national legislation which was at issue good administration, in particular the right in the Pastoors case 16 — the vehicle is not to a hearing. impounded where payment is not immedi- ate, but only in the absence of a driving licence. The Court of Justice even described 17 — Case C-29/95, cited in footnote 2, paragraph 28. the legislation in the Pastoors case as 18 — Compare the statements of Advocate General Tesauro in Case C-29/95, cited in footnote 2, points 19 and 20. 19 — Case C-1/99 Koftsa [2001] ECR I-207, paragraph 46, and Case C-226/99 Siples [2001] ECR 1-277, paragraph 17; compare Case 222/86 Heylens [1987] ECR 4097, para- 16 — Case C-29/95, cited in footnote 2, paragraphs 25 and 26. graph 14.
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59. Thus, the system set up by Article 207 words, the sanctions are disproportionate of the Codice, in particular the fact that to the seriousness of the offence. 23 As the offenders with vehicles registered abroad standardised penalties in Article 207 of the do not have true freedom of choice between Codice are penalties for road traffic paying a reduced sum or lodging an offences, this regime must be considered appeal, 20 restricts the right to a hearing excessively stringent. for offenders whose vehicles are registered abroad and 'in practice significantly cur- tails their options for access to legal redress'. Thus the legislation is dispropor- tionate even if one does not take an even stricter view, according to which the fashion of a security as a type of advance payment of the maximum amount 21 is not 61. It is clear from the fact that the permissible in any event. majority of Member States which recognise the obligation to pay a security demand significantly lower securities from the per- son concerned 24 that the legislation (Ar- ticle 207 of the Codice) is inappropriate.
62. It is not clear, therefore, that Italy's aims could not be equally effectively safe- guarded by less onerous legislation, such as a security equal to the reduced amount plus 60. For the sake of completeness, consider- procedural costs. ation should also be given to the Court's case-law which established the principle that the decisive factor is whether the alternative measures proposed by the Com- mission appear sufficiently effective to achieve the intended aim. 22 On applying the principle developed by that case-law, the system of standardised penalties in 63. It follows from the foregoing consider- Article 207 of the Codice proves to be ations that the legislation (Article 207 of disproportionate nevertheless. In other the Codice) cannot be considered appropri- ate. It thus infringes the prohibition on discrimination in Article 12 EC. 20 — As to the fundamental difference between the systems winch apply to residents and non-residents, see Case C-29/95, cited in footnote 2, paragraph 27. 21 — Against such a security structure. Advocate General 23 — C o m p a r e Case C-265/88 Messner [1989] UCR 4209, Tesauro in Clase C-29/95, cited m footnote 2, point I*7. paragraph 9. 22 — Case C-394/97 Henmmn [1999] ECU I-3599, paragraph 24 — For a review of legislation in other Member States, see 44. Case C-265/88, cited in footnote 24, paragraph 11.
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VI — Conclusion
64. Accordingly, it is proposed that the Court should declare as follows:
(1) The Italian Republic has failed to fulfil its obligations under Article 12 EC by maintaining in force legislation (Article 207 of the Codice della strada) which prescribes different and disproportionate treatment for offenders according to the place of registration of their vehicles.
(2) The Italian Republic shall pay the costs of the proceedings.
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