Commission of the European Communities v Italian Republic.
Date: 2002-03-19
14 First, it should be recalled that Article 6 of the Treaty, which is a specific expression of the general principle of equality, prohibits any discrimination on grounds of nationality.
15 According to settled case-law, the rules regarding equality of treatment between nationals and non-nationals forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result (see Pastoors and Trans-Cap, paragraph 16).
16 In this case, the Italian legislation treats persons contravening the highway code differently according to the place of registration of their vehicle. In particular, in the case of an infringement committed with a vehicle registered in Italy, the offender has 60 days from the recording or notification of the offence in which to pay the minimum amount prescribed; if he has not already paid that minimum amount, he may also appeal during that time to the prefect. On the other hand, it is clear from Article 207 of the highway code that, where an infringement is committed with a vehicle registered in a State other than Italy or bearing an EE registration plate, the offender must either immediately pay the minimum amount prescribed, or, particularly if he wishes to contest the alleged infringement before the prefect, must provide security equal to twice the minimum amount, on pain of having his driving licence confiscated or his vehicle impounded.
17 Thus, Article 207 of the highway code clearly introduces a difference in treatment to the detriment of offenders in possession of a vehicle registered in a Member State other than Italy.
18 It is true that that difference in treatment is not directly based on nationality. Nevertheless, it is undisputed that, in Italy, the great majority of offenders in possession of a vehicle registered in another Member State are not Italian nationals, whereas the great majority of offenders in possession of a vehicle registered in Italy are Italian nationals.
19 It follows that the difference in treatment introduced by Article 207 of the highway code to the detriment of offenders in possession of a vehicle registered in a Member State other than Italy in fact leads to the same result as discrimination on the grounds of nationality.
20 However, according to the case-law of the Court, that finding is not sufficient for such legislation to be held to be incompatible with Article 6 of the Treaty. It is also necessary to examine whether Article 207 of the highway code is not justified by objective circumstances (see, to that effect, Pastoors and Trans-Cap, paragraph 19) and whether it may not be proportionate to the objective pursued. If that is not the case, the national measure in issue must be regarded as prohibited by Article 6 of the Treaty.
21 As regards the circumstances likely to justify a difference in treatment between offenders, it is clear from paragraphs 21 and 22 of the judgment in Pastoors and Trans-Cap that the absence of any conventions to secure the enforcement of a court decision in a Member State other than that in which it was pronounced objectively justifies a difference in treatment between resident and non-resident offenders and that the obligation imposed on the latter to pay a sum by way of security is appropriate to prevent them from avoiding an effective penalty simply by declaring that they do not consent to the immediate levying of the fine.
26 That objective is to ensure the payment of pecuniary penalties owed by offenders in possession of a vehicle registered in a Member State other than Italy. As the Commission rightly argues, that objective could also be achieved if the offenders covered by Article 207 of the highway code were obliged to pay security in an amount equal to the minimum prescribed and that security could be confiscated by the Italian authorities at the end of the 60-day period prescribed in Article 202 of the code.