Can a traffic fine be notified to a German citizen simply by post?
Decision of the Joined Sections of the Supreme Court no. 11550/22

Decision of the Joined Sections of the Supreme Court no. 11550-22

On 5 April 2022, the Joined Sections of the Supreme Court of Italy again ruled on existing issues related to the legal basis and consequences of nullity when serving traffic fines to a German citizen. The new legal principle is surprising.

Function of the United Senates of the Court of Cassation

The Supreme Court (in Italian: Corte di Cassazione) is the highest judicial body in Italy. The Supreme Court decisions of last instance are intended to ensure the exact observance and uniform interpretation of legal norms in the national territory in civil and criminal cases (so-called nomofilactic function). For such a uniform interpretation, the Supreme Court may decide in certain cases in the composition defined as the Joined Sections. In the Italian legal system, the Joined Sections constitute the most authoritative section of the Supreme Court. When it is necessary to settle disputes arising between the decisions of the Simple Sections or when the proposed issues are of special importance, the appeal to the Joined Sections is possible. Furthermore, a Simple Section can refer a case to the Joined Sections if it finds that the matter of law, subject to its examination, gives rise or may give rise to a jurisprudential conflict. The Joined Sections are thus to determine which of the two or more opposing interpretations of Law is the one that best applies or may propose a different “principle of law”.

Disputed underlying regulations

The disputed regulations, the applicability of which had previously led to contrary interpretations in the case of the service of traffic fines, are the following:
(a) The Strasbourg Convention of 24th November 1977 and service by post on German nationals: The Strasbourg Convention, ratified in Italy by Law No. 149/1983, lays down the rules for the service of documents in administrative matters. In principle, it provides for the possibility of direct service of documents, such as a traffic fines, by post. Article 11 of Law No. 149/1983 states: “Each Contracting State is entitled to have documents served directly by post on persons in the territory of other Contracting States“.

However, Germany has made use of the possibility of an exception and has excluded this form of service for its resident citizens. This means that service of a notice on a German national must be done with the involvement of the central authority of the State of residence and of the State of destination (Article 2).

(b) Regulation (EC) No 1393/2007 excludes the service of administrative documents by post, but allows it for judicial and extrajudicial documents in civil and commercial matters. The application of the Regulation is excluded – under Article 1 – for tax, customs and administrative matters, as well as for the liability of the State for acts or omissions in the exercise of State authority (“acta iure imperii“). The decisive factor is whether the decision on a traffic fine, for example, implies an administrative act or a civil or commercial act; in the case of the former, the central authority of the citizen’s state of residence must be requested for assistance.

The present case and the first interpretations of the courts

The case
A German citizen drove through a restricted traffic zone without a permit in Florence. He was informed of the offence by registered letter by the Florence Municipal Police. He appealed against the fine notice before the Florence Justice of the Peace. The appeal was based on various grounds, including that the notice was void because it had not been served.

The court of first instance dismissed the case. The court of second instance, by judgment of 14 July 2015 (no. 2587/2015), declared the appeal inadmissible: with this decision, the judge stated that even if the formalities of service, had been violated this would have integrated a ground of nullity and not of non-existence, with the consequence that the appeal would save the traffic fine with remedy of the non-correct serving procedure.
Other decisions of the Supreme Court (i.e. Supreme Court No. 22000/2018) considered the service of a fine notice by post on a German citizen to be admissible, with the application of Regulation no. 1393/2007.

Decision of the Joined Sections of the Supreme Court No. 2866/2021 of 5th February 2021 (Case pleaded by Petrocchi & Partners Law Firm)

The issues referred to the Joined Sections for decision on 3rd November 2020 were: Is (a) the Strasbourg Convention on the abroad service of administrative documents or (b) Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters applicable in the present case? Further issues were the meaning of the term “administrative matters” in the context of the service of a notice, in particular of documents relating to a traffic fine, on a person domiciled in another Member State of the European Union (specifically, Germany); and whether the service of a notice relating to a traffic fine by post on a German national is void (and can be remedied) or non-existent (and thus cannot be remedied).
For the Joined Sections of the Supreme Court of Cassation, “the traffic violation report, as an act of the exercise of public authority, falls within the sphere of administration and, as such, the service of the appeal clearly falls outside the scope of Regulation No 1393/2007, as it does not fall within the sphere of civil or commercial matters (and it is not even possible to determine the ‘extrajudicial’ nature of the service of the report)“.
Briefly, the Joined Sections of the Supreme Court of Cassation ruled, in Judgment no. 2866/2021, that service of a fine to a German citizen cannot be made directly by post. Service made in violation of the Strasbourg Convention is not inexistent, but void and remediable.

Thus, in the case of an untimely appeal, a remedy could still be found. As in the present case, for example, in which the nullity was remedied by the “lateness of the appeal with regard to the actual knowledge of the notified notification and the untimely challenge with the consequent lack of timeliness of the appeal to the nullity of the notification“. In this regard, the nullity is to be examined according to the law of the state from which the notification is made, i.e. Italian law.
In this sense, the notification referred to the case analyzed by the Court can only be considered null with consequent remediation in the absence of a timely specific exception of nullity.

Decision of the Joined Sections of the Supreme Court no. 11550/22 of 5th – 8th April 2022 (Case pleaded by Petrocchi & Partners Law Firm)

Now, on the 5th – 8th April 2022, surprisingly the Joined Sections ruled the other way round: if the appeal is filed late, the nullity of the service to a German citizen is not remedied. Consequently, the decision is of major importance with regard to the question of whether it is only possible to remedy an existing nullity – and thus in contrast to the previous interpretation – if an appeal against the served document was filed in due time.

The answer is: Yes.

First of all, the Joined Sections confirm and clarify that Regulation no. 1393/2007 does not apply to the service of a fine notice on a person resident in another EU Member State, as Article 1 explicitly excludes its application to administrative matters. Due to the exception invoked by Germany, service on a German national in particular cannot be made pursuant to Article 11 of the Strasbourg Convention or directly by post. What is necessary is the involvement of a central authority of the state of residence (cf. Article 2). As a result, the service made by the municipality of Florence by post without the involvement of a German authority is null and void.

However, in light of the case law previously described above (Judgment no. 2866/2021), the Joined Sections correct their legal principle and thus accept the interpretation made by the Second Civil Section of the Supreme Court (Case no. 25558/2021) by now stating that the nullity of the service of the fine notice “can only be remedied, in order to achieve its purpose under Article 156(clause 3) of the Italian Code of Civil Procedure, by the filing of a due and timely appeal“. In doing so, the Joined Sections focuse their argumentation on the purpose: the preparation of the addressee’s own defence. The nullity of the service of a fine notice can thus only be “remedied by the timely exercise of the right of appeal“.

In Conclusion
The service of a fine notice on a German national cannot be effected directly by post. The service of such a document on a German national without the required (Art. 2 of the Strasbourg Convention) involvement of the central authority of the state of residence and the state of destination results in the nullity of the service. However, this can be remedied by a timely appeal against the traffic fine before the competent court.