Information;Order — ECLI:EU:C:2022:829
Date: 2022-10-19
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Anonymised version 
Translation C-777/21 – 1 
Case C-777/21 
Request for a preliminary ruling 
Date lodged:  
15 December 2021 
Referring court:  
Tribunale di Napoli (Italy) 
Date of the decision to refer:  
11 November 2021 
Appellant:  
VB 
Respondent:  
Comune di Portici 
  
TRIBUNALE di NAPOLI 
[…] 
The court […] [standard wording] gives the following 
ORDER 
FOR REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN 
UNION FOR A PRELIMINARY RULING 
in the appeal proceedings […] brought by: 
VB […] 
APPELLANT 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 11. 2021 – CASE C-777/21 
 
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COMUNE DI PORTICI (MUNICIPALITY OF PORTICI) […] 
RESPONDENT 
WHEREAS 
1. SUBJECT MATTER OF THE MAIN PROCEEDINGS AND 
RELEVANT FACTS 
1. This order is given in the administrative fine opposition proceedings brought by 
VB against the Municipality of Portici. 
1.1. By a report […] of 6 February 2020, the municipal police of the 
abovementioned municipality issued VB with a fine for an infringement of 
Article 93(1-bis) of d.lgs. n. 285 del 1992 (codice della strada) (Legislative 
Decree No 285/1992 (Italian Highway Code)), as ‘a driver who has been resident 
in Italy for more than 60 days driving the abovementioned foreign vehicle. A 
registry check showed that Mr VB has been resident in Portici since 7 March 2017 
[…] – the registration document was withdrawn […] and the driver was ordered to 
cease driving immediately […]. The driver was informed that if, within 180 days, 
the vehicle was not registered in Italy or a travel warrant was not requested to take 
it across the border, administrative confiscation under Article 213 of the Highway 
Code would apply.’ 
Essentially, the municipal police charged VB with driving in Italy on a motorbike 
[…] registered in Greece and bearing Greek number plates […], despite the fact 
that he had been resident in Italy for more than 60 days. 
The vehicle was also impounded […]. 
1.2. […] VB filed an opposition against the […] report of 6 February 2020 by 
application lodged on 4 May 2020 with the giudice di pace di Napoli (Naples 
Magistrate). 
Among the pleas in law raised, the opposing party argued that the provision 
infringed was contrary to the Treaty on the Functioning of the European Union, in 
particular the right of establishment (Articles 49 to 55), the right to free movement 
and residence (Article 21), the right to freedom of movement for workers 
(Article 45), and the right to freedom to provide services (Articles 56 to 62). 
In support of the above plea, VB asserted that: – he had dual Italian and Greek 
citizenship; – he was resident in both Italy, in the municipality of Portici (NA), 
and in Greece, in Athens; – he was a member of the Consiglio dell’ordine degli 
avvocati di Atene (Athens Bar Association) and of the Consiglio dell’ordine degli 
avvocati di Napoli (Naples Bar Association) and practised as a lawyer in both 
Italy and Greece; – he travelled using the impounded motorbike in both of the 
abovementioned Member States for reasons related to his profession. 
COMUNE DI PORTICI 
 
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By judgment No 27663/2020 […], the Naples Magistrate dismissed the action, 
considering that there was no conflict with EU law in the light of the judgment 
given by the Court of Justice of the European Union on 15 December 2005 in 
Cases C-151/04 and C-152/04 […] [point of national law irrelevant for the 
purposes of the question referred]. 
1.3. By an action lodged on 24 February 2021, VB filed the present appeal 
proceedings against that judgment. The appellant reiterated the question referred 
for a preliminary ruling whereby the provision applied conflicts with the Treaty on 
the Functioning of the European Union. 
The Municipality of Portici entered an appearance in court, not providing any 
reply to the abovementioned ground of opposition but contending that the appeal 
should be dismissed. 
1.4. […] [point of national law irrelevant for the purposes of the question 
referred]. 
2. THE LEGAL PROVISIONS APPLICABLE TO THE DISPUTE 
2. Before illustrating the reasons why the Court considers that it should request a 
preliminary ruling from the Court of Justice on the questions raised by the 
appellant, it is necessary to establish the national legislation applicable to the 
present case. 
The applicable provisions are those of the Highway Code (Legislative Decree 
No 285/1992), introduced by Article 29-bis(1)(a) of decreto legge 04.10.2018, n. 
113 (Decree-Law No 113 of 4 October 2018), converted, with amendments, by 
legge 01.12.2018, n. 132 (decreto legge recante ‘Disposizioni urgenti in materia di 
protezione internazionale e immigrazione, sicurezza pubblica, nonché misure per 
la funzionalità del Ministero dell’interno e l’organizzazione e il funzionamento 
dell’Agenzia nazionale per l’amministrazione e la destinazione dei beni 
sequestrati e confiscati alla criminalità organizzata’) (Law No 132 of 1 December 
2018 (Decree-Law on ‘Urgent provisions on international protection and 
immigration and public security, and measures on the functioning of the Ministry 
of the Interior and the organisation and functioning of the National Agency for the 
administration and allocation of assets seized and confiscated from organised 
crime’)). 
On the basis of Article 93(1-bis) of Legislative Decree No 285/1992, ‘without 
prejudice to paragraph 1-ter, anyone who has established his or her residence in 
Italy for more than 60 days shall be prohibited from driving a vehicle registered in 
another country.’ 
Paragraph 1-ter lays down the following exemptions: 
REQUEST FOR A PRELIMINARY RULING OF 11. 11. 2021 – CASE C-777/21 
 
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‘In the case of a vehicle which is leased or rented, without a driver, by an 
undertaking established in another Member State of the European Union or of the 
European Economic Area which has not established a secondary office or other 
place of business in Italy, and in the case of a vehicle loaned free of charge to a 
person residing in Italy and bound by an employment or working relationship with 
an undertaking established in another Member State of the European Union or the 
European Economic Area which has not established a secondary office or other 
place of business in Italy, a document, signed by the holder and bearing a specific 
date, demonstrating the right of that person to be using the vehicle and the 
duration of that use, shall be kept in the vehicle in accordance with the provisions 
of the Community Customs Code. In the absence of such a document, the use of 
the vehicle shall be deemed to be the responsibility of the driver.’ 
The subsequent paragraph 1-quater provides that ‘In the cases laid down in 
paragraph 1-bis and notwithstanding the application of the penalties laid down in 
paragraph 7-bis, if the vehicle is not registered in Italy the holder shall request that 
a travel warrant and corresponding number plates be issued by the competent 
vehicle registration office, after the registration document and foreign number 
plates have been provided, in accordance with Article 99, so that the vehicle can 
be driven across the border. The vehicle registration office shall return the number 
plates and the registration document to the competent authorities of the State that 
issued them.’ 
Paragraph 1-quinquies establishes that paragraphs 1-bis, 1-ter and 1-quater do not 
apply to: 
‘a) […] [situation not relevant to the present case]; 
b) civilian and military personnel employed by public administrations serving 
abroad […]; 
c) frontier workers […]; 
d) […] 
e) […] [other situations not relevant to the present case].’ 
Infringements of Article 93(1-bis) are sanctioned by paragraph 7-bis, according to 
which ‘An administrative fine of between EUR 711 and EUR 2 842 shall apply to 
infringements of the provisions of paragraph 1-bis. The investigating body shall 
forward the vehicle registration document to the vehicle registration office that is 
responsible for the territory concerned, issue an immediate ban on the driving of 
the vehicle, and order it to be transported to and stored in a location to which there 
is no public access. The provisions of Article 213 shall apply in so far as they are 
compatible. If, within 180 days of the date of the infringement, the vehicle is not 
registered in Italy or a travel warrant is not requested to take it across the border, 
the additional penalty of administrative confiscation under Article 213 shall 
apply.’ 
COMUNE DI PORTICI 
 
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Paragraph 7-ter sanctions infringements of paragraph 1-ter as follows: ‘An 
administrative fine of between EUR 250 and EUR 998 shall apply to 
infringements of the provisions of paragraph 1-ter. The traffic violation report 
shall require that the document referred to in paragraph 1-ter be produced within 
30 days. The vehicle shall be subject to the additional penalty of impounding in 
accordance with the provisions of Article 214, in so far as they are compatible, 
and shall be returned to the driver, the owner or the legitimate holder, or to a 
person delegated by the owner, only after the document referred to in paragraph 1-
ter has been produced or, in any case, after 60 days following the recording of the 
infringement. If the document is not produced, the investigating body shall apply 
the penalty provided for in Article 94(3) with effect from the day following the 
deadline for presentation of the documents.’ 
2.1. The penalty imposed on the appellant is the sanction provided for in 
Article 93(7-bis) of Legislative Decree No 285/1992, and arises from the 
infringement of paragraph 1-bis: the Portici municipal police fined VB on the 
grounds that he was driving a motorbike registered in Greece despite the fact that 
he had been resident in Italy for more than 60 days. 
The effect of the provisions in question is to require persons who have been 
resident in Italy for more than 60 days to register vehicles used – for any reason 
whatever – in that Member State, subject to application of a heavy fine and 
possible confiscation of the vehicle if it is not registered in Italy or if a travel 
warrant is not requested to take it across the border within 180 days of the offence. 
2.2. According to the Naples Magistrate, the provisions on which the penalty is 
based were introduced to prevent ‘tax inversion’ of vehicles, namely conduct by 
Italian residents involving the use of vehicles registered abroad and purporting to 
be owned by third parties, in order to avoid the payment of Italian stamp duty and 
tax charges related to third-party liability insurance, to make it more difficult to 
collect administrative fines for offences connected with the driving of vehicles 
and, more generally, to escape tax inspections by concealing information about 
taxpaying capacity, which clearly differs from declared amounts (for example, 
luxury vehicles). 
The Court agrees with the observations made by the Magistrate concerning the 
rationale underpinning the provisions in question. It should be added that that 
rationale does not appear to have been made explicit in the parliamentary 
proceedings (which are silent as to the purposes of the provision) and that it 
appears to be unrelated to the purposes stated by the chapter in which Article 29-
bis of Decree-Law No 113/2018 is inserted, which is headed ‘Provisions on 
preventing and combating mafia crime’. 
3. REASONS FOR THE REFERENCE 
3. The Court considers that the legislation referred to above is contrary to 
Articles 49 and 56 of the Treaty on the Functioning of the European Union in so 
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far as it does not provide, as an exception to the prohibition laid down in 
paragraph 1-bis, for the case of a self-employed worker who has been resident in 
Italy for more than 60 days and who, for reasons relating to his profession, drives 
a vehicle registered in another Member State, either in Italy or in that State. 
In that regard, it is not disputed in the present case that VB practises as a lawyer 
both in Italy and in Greece and that he uses the motorbike with registration […] 
for the exercise of his profession, using it to travel on the Greek and Italian road 
networks. 
Consequently, the case appears to be similar to the case decided by the Court of 
Justice in its judgment No 151 of 15 December 2005 (joined cases C-151/04 and 
C-152/04, see paragraphs 34 to 43), the only difference being that the vehicle used 
is not owned by the company with which the self-employed worker works, but by 
the self-employed worker himself, who uses it, in the exercise of his profession, to 
travel both in the Member State of residence and in the Member State where the 
vehicle is registered, where he has another place of business and another 
residence. 
That difference does not appear to affect the conflict with the abovementioned 
articles of the Treaty and the national provision does not appear to be justified by 
other interests, such as, for example, preventing tax evasion, for the reasons 
already indicated in the abovementioned judgment of the Court of Justice (see 
paragraphs 44 to 53). 
[…] 
It […] should be noted that, with reference to Article 93(1-bis) of Legislative 
Decree No 285/1992, a request for a preliminary ruling has already been made by 
the Massa Magistrate (Case C-274/20), relating to another kind of conflict with 
the TFEU. 
4. THE QUESTION REFERRED FOR A PRELIMINARY RULING 
4. In conclusion, the Naples District Court refers the following question for a 
preliminary ruling: 
Is the Italian State’s legislation (in this case, Article 93(1-bis) and (7-bis) of 
Legislative Decree No 285/1992) contrary to Articles 49 and 56 of the Treaty on 
the Functioning of the European Union, in that it prohibits a self-employed worker 
resident in Italy for more than 60 days from travelling in that State in a vehicle 
registered in another Member State regularly used by that individual to travel and 
move about in the two Member States – the State of residence and the State where 
the vehicle is registered – in order to practise his profession (and for reasons 
relating to his private life)? 
ON THOSE GROUNDS 
COMUNE DI PORTICI 
 
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The Naples District Court […], having read Article 267 TFEU, asks the Court of 
Justice of the European Union to deliver a preliminary ruling on the question of 
interpretation of EU law indicated in paragraph 4 of this order […]. 
[…] 
[…]. [standard wording] 
Naples, 11 November 2021       
 […] 
[…] 
[…] [standard wording]