ART. 46 ACT N. 298/74: WHAT SANCTIONS ARE APPLIED TO THE EU VEHICLE TRANSITING IN ITALY WITHOUT AUTHORISATION OR LICENCE ON BOARD?
[Following the changes to article 46 Act no. 298/74 for vehicles registered in a member state of the EU or the EEA, it is now possible to pay a reduced amount equal to the minimum fixed by the single rule, i.e. € 2,065.00, to be paid within 60 days from the day of the offence1. Alternatively, it is possible to pay the same amount to the officer as a deposit (the choice of this method must be indicated on the report). Article 46 also establishes as a supplementary sanction the administrative detention of the vehicle for 3 months, which should be reasonably released once the amount established by the sanction or the deposit has been paid and the missing documents delivered to the Local Authority. It is also believed that, following the amendments made by security decree no. 113/2018, the obligation to entrust the detained vehicle to the person entitled to custody is now in force.]
Article 46 of the Act 298/74 punishes the carriage of goods by vehicles without authorisations on behalf of third parties or licences on behalf of third parties, or which violate the conditions or limits set out in the licence or authorisation, with the administrative sanction of the payment of a sum from € 2,065.00 to € 12,394.00 and sets as a supplementary sanction the administrative detention of the vehicle for a period of three months.
This provision has been modified for the hypothesis in which the violations referred to in article 46 are committed by a vehicle registered in EU countries or countries that have joined the EEA, engaged in international road transport activities in Italy.
We therefore refer to art. 52, paragraph 1, letter b), of Act no. 120 of 29 July 2010, which, by modifying art. 60 of Act no. 298/1974, established that the violations referred to in article 46 of Act no. 298/1974, committed with a vehicle registered abroad, which is carrying out international road transport activities or cabotage operations in Italy, are subject to the provisions of art. 207 of the Highway Code (“Codice della Strada”2).
As a result of this variation, it is now possible to make the reduced payment provided for in Article 202 of the Highway Code, and the offender is therefore allowed to pay, within sixty day by the contestation or notification, an amount equal to the minimum fixed by the individual regulations (in our case, the minimum is € 2,065.00).
However, attention is drawn to the fact that in the case in which the offender does not use the right of reduced payment, for whatever reason, he can pay to the officer in charge, by way of deposit, an amount equal to the sum required for the reduced payment foreseen by Art. 202 (this provision applies, we remind you, only in the hypothesis, of our interest, in which the vehicle is registered in a Member State of the European Union or adherent to the Agreement on the European Economic Space and not to a vehicle registered in Italy).
The payment of the deposit must be mentioned in the report of violation. Local authorities still tend to demand a fine of € 4,130.00, on the basis of what we believe to be a misapplication of Article 16 of Act 689/81, which provides that the minimum amount of the sanction for article 46 should be one third of the maximum, or twice the minimum if more favourable. We believe that the correct definition of the amount of the sanction is the one set out in Article 202 of the Highway Code, i.e. the reduced payment of the minimum amount expressed by the single rule (in our case, we start from a minimum amount of € 2,065.00). The same assessment should therefore be applied to define the correct amount of the bail.
It is relevant to underline that for the offences committed under the Art. 46 of the Act no. 298/74, in addition to the payment of the pecuniary sanction, the administrative detention for three months is prescribed under the Art. 214 of the Highway Code (reference is made here to the regulations in Chapter I, Section II of the Title VI of the Highway Code), consequently, after the payment of the pecuniary administrative sanction or the deposit, or after the 60 days provided for by Art. 207 of the Highway Code, the local authorities tend to apply the supplementary measure of the administrative detention until the expiry of the three month term.
Here, the recent application practice often deviates from the literal application of the rule: indeed, we find several Prefetti3 that, following the request submitted by the offender for the return of the vehicle in order to transfer it out of the Italian territory and in compliance with the prohibition of its circulation on the Italian territory until the end of the administrative detention, grant the return before the expiry of the 3 months of detention so that it is transferred to the country of origin, always, however, subject to verification of the payment of the sanction in reduced amount or by way of deposit.
It should also be noted that following the complete rewriting of the rules of the Highway Code by security decree no. 113/2018, in the light of the modification of Articles 213 and 214 of the Italian Civil Code, the general principle has been reinforced according to which the obligation of immediate custody of the vehicle by the person entitled to custody is the general rule.
Consequently, in the case of verification of the violations referred to in Article 46 Act 298/74, since the rules operate only a mere formal reference to the provisions of Chapter I, Section II, of Title VI of the Highway Code, the general procedure remains applicable, with the obligation to entrust the person entitled to custody.
If the owner is not present on the vehicle, he/she must be notified immediately and asked to take custody of the vehicle.
Only in the event that the owner of the vehicle is not available or, in any case, states that he cannot, or does not wish to take custody of the vehicle, shall the vehicle be entrusted first of all to the driver or, in the event of impossibility or refusal, to other parties who are jointly and severally obliged to take custody of the vehicle (such as the lessee, etc.).
Having clarified the sanctioning effects of the rule, there are two other topics to be analysed: what are the protective measures available to the alleged offender? Is there only the formulation of a complaint to the Prefetto of the locus commissi delicti, as often the contestation report leads the transgressor to believe, omitting any reference to the possibility of appeal before the Justice of the Peace (“Giudice di Pace”4), or is this latter authority also competent?
Moreover, how is it dealt with in Italian courts in the case where a penalty is imposed under Article 46 of Act 298/74 for the mere temporary lack of documentation on board, and not its total absence?
The first aspect must be analysed by following the two different interpretations given by the Italian jurisprudence, which has not expressed itself uniformly.
Indeed, we find judges who say that the regulations of the Highway Code are not applicable, since the reference made by paragraph 2 of article 46 of act no. 298/1974 to the “regulations in chapter I, section II, of title VI of legislative decree no. 285 of 30 April 1992” has been surpassed by the new formulation of article 204 bis of the Highway Code (made by legislative decree no. 150 of 1 September 2011) whose article 7, providing that “disputes concerning opposition to the report of violation of the Highway Code referred to in article 204 bis of legislative decree 285 of 30 April 1992, are regulated by the labour procedure” and that “the opposition is brought before the Giudice di Pace of the place where the violation was committed”, referring explicitly to Highway Code violations, make the previous rules inapplicable (see Giudice di Pace of Gemona del Friuli, sentence of 10 November 2015, no. 52).
Other cases law, including a decision of the Supreme Court (Corte di Cassazione 5) and various decisions of the Giudice di Pace, asserts instead that Art. 46 of Act No. 298/74 requires that, at least with regard to the hypothesis of administrative detention of the vehicle, the regulations in Chapter I Section II of Title VI of the Highway Code must be observed. This referral would imply a clear reference to article 214, paragraph 4, and would therefore guarantee the right to appeal either to the Prefetto under article 203 or, alternatively, to the Giudice di Pace of the place where the violation was committed under article 205 of the Codice della Strada (see Corte di Cassazione, Civil Division, Sentence 17028/2007, which also pointed out that the contrary interpretation of the rule, which would limit the possibility of bringing an action for protection only against the Prefetto, would damage the right of defence of the offender).
The second topic was recently addressed again by the Supreme Court (see Corte di Cassazione, Section II, Order no. 28283/2019 of 05.11.2019). The Prefettura argued that the Giudice di Pace and then the Court in second instance should have taken into account the fact that all the authorisation models prepared by the Administration and the internal circulars of the latter expressly mention the obligation to carry the licence or authorisation on board and consequently this should have been sufficient to consider that the violation under Article 46 of Act no. 298/1974 took place.
The Supreme Court, rejecting the appeal, stated that it is necessary to give continuity to the orientation already expressed by the Supreme Court itself in the past, according to which in order to have transport of goods by road without authorisation, sanctioned under Article 46 of Act 6 June 1974, no. 298, it is necessary that a transport of goods is carried out by a person who is not in possession of the necessary authorisation because it was never issued, it being irrelevant that the authorisation is not momentarily in his possession at the time when the violation is ascertained (see Corte di Cassazione, Section II, Sentence no. 12697 of 30.05.2007).
The Supreme Court also added that the different interpretation put forward by the appellant Prefettura cannot be accepted, since the infringement of the provisions contained in the licence or authorisation does not take place in relation to what is set out in the models prepared by the Administration, which may change over time or contain errors and omissions, but rather when a different goods are transported instead of the prescribed ones (see Corte di Cassazione, Section II, Judgement no. 23082 of 30.10.2009).
This recent orientation expressed by the Supreme Court reveals an incongruity between the behaviour sometimes adopted by the Local Authorities when the above-mentioned case occurs, and the principles established by Italian jurisprudence. Indeed, it is not uncommon that the deliver of the missing document, even in the immediate phase following the drafting of the report of charge, leaves unaltered not only the application of the main sanction (also in its quantum), but also the supplementary sanction of the detention of the vehicle for 3 months, witch bring with it the obvious consequences in terms of damages for the company owning the vehicle.
It is therefore necessary to bring legislators and local authorities into line, not least to safeguard the principle of procedural economy, so as to reduce the number of cases in which it is necessary to go to the judge or to the Prefettura to request the revocation of the sanction, and so that our laws can be understood and applied with the highest degree of transparency and clarity. For this to happen, the models and guidelines prepared by the Administration also play a primary role: they must act as an intermediary between the legislator and local authorities and cannot afford “errors and omissions”, as stated by the Supreme Court in its recent 2019 ruling.
Dott.ssa Giulia Gioffredi
1 The application of a penalty of €4,135.00 on the basis of Article 16 of Act no. 689/81 is, in our opinion, incorrect. Indeed, Article 16 of the above-mentioned Act provides that the minimum edictal sanction must be equal to one third of the maximum, or if more favourable, double the minimum edictal sanction (in this case, therefore, 4,135.00 euros). On the contrary, as we have supported, the amendment of art. 60 of the Act no. 298/1974, has established that the violations referred to in article 46 of the same Act no. 298/1974, committed with a vehicle registered abroad, are subject to the provisions of art. 207 of the Highway Code, which in turn refers to article 202 of the Highway Code: therefore, the offender is allowed to pay, within sixty days from the contestation or notification, an amount equal to the minimum fixed by the individual regulations (in our case 2,065.00 euros), and not the double of the minimum edictal amount.
2 Il Codice della Strada, in the Italian law system, is a set of rules in the form of a code issued to regulate the movement of pedestrians, vehicles and animals on the road on the Italian territory.
3 Prefettura is, in Italy, a suburban authority of the Ministry of the Interior that has the function of general representation of the government on the territory of the province or metropolitan city; it has its seat in the chief town.
4 Giudice di Pace is a qualified legal practitioner who is able to deal with a range of minor civil and criminal cases.
5 Corte di Cassazione is the apex of ordinary jurisdiction, being the court of last instance in the Italian ordinary (criminal and civil) court system. It ensures the uniform application and interpretation of legal rules (so-called nomofilactic function) and coordinates relations between the various jurisdictions.