Author: Lawyer Andrea Amedeo Prospero
Recently, the press gave some prominence to a ruling by the Swiss Federal Criminal Court1 indicating that it was not possible to receive payment demands and threats of debt enforcement proceedings in Switzerland from debt collection companies that base their claims on fines and penalties decided by Italian authorities in the context of traffic violations, usually speeding, parking fines or violations of local traffic rules (particularly for driving in LTZs without the necessary authorisation).
This course of action by debt collection companies acting on behalf of Italian administrative authorities was censured under Article 271 SCC, which states that “any person who carries out activities on behalf of a foreign state on Swiss territory without lawful authority, where such activities are the responsibility of a public authority or public official (…) shall be liable to a custodial sentence not exceeding three years or to a monetary penalty (…)”. As is well known, matters relating to fines for violation of traffic rules in Switzerland fall under the responsibility of the Police.
The question of whether the Italian authorities could enforce their claims and force the collection of fines imposed in Italy had already been discussed in the past, when specialists pointed out that decisions received 12 months after the day of the fine were late and therefore no longer valid. Nevertheless, the question remained open as to whether or not the collection companies could use the foreign decision to enforce it in Switzerland in a smooth manner and thus facilitate the collection of fines imposed.
However, the reflection that we wish to submit with this article goes beyond the above-mentioned clarification by the Federal Criminal Court. With this written contribution, we want to shed light on the fact that administrative assistance agreements exist with some neighboring States that are therefore international law (which takes precedence over national law).
Fines decided e.g. by a French or Austrian authority (to mention some of the neighbouring Countries excluding Italy), can be the subject of a collection procedure in a similar way to fines imposed in Switzerland against the driver of a vehicle registered in Switzerland.
What does this clarification mean in concrete terms? In concrete terms, if the driver of a Swiss-registered vehicle is fined for speeding, for example, in France if he does not pay the fine received from abroad, he will be subject to administrative proceedings in Switzerland in the same way as if the fine had been imposed in Switzerland, precisely because of the obligation of administrative assistance assumed by the Swiss authorities under existing international agreements2. With Germany, the cooperation agreement includes the exchange of sensitive data on the holder of the offending vehicle on German territory3.
Why is Italy excluded from this kind of cooperation between States? The Italian Republic, unlike the other neighbouring Countries, has not signed any administrative cooperation agreement in relation to cases of fines imposed on drivers of vehicles registered in Switzerland on their territory. On the other hand, there is an agreement between Italy and Switzerland on cooperation in criminal matters. This has a rather curious consequence: a driver with an Italian-registered vehicle who, for example, greatly exceeds a speed limit in Switzerland would receive, at his home, an invitation from the Italian criminal prosecution authorities to take a position in a criminal assistance procedure with Switzerland. He would have to answer as to who was driving the vehicle on the day of the offence in Switzerland and this would take place within the framework of a formal interrogation, and the consequences would not be those of an administrative fine but of a much more serious criminal nature.
On the other hand, for example, a driver with Ticino licence plates who speeds at 200 km/h on an Italian motorway and receives a traffic violation notice from an Italian authority at home with an invitation to pay the fine, not only suffers no criminal consequences (speeding is not, as a rule, a criminal offence in Italy, as it is in Switzerland), but by virtue of the very absence of an agreement on assistance in administrative and police matters with Italy, he could also ignore payment of the fine without the Italian authority being able to validly prosecute him in Switzerland.
Now, it would also appear that the Italian authorities do not have an efficient database in relation to unpaid fines for drivers of vehicles registered in Switzerland and therefore the unequal treatment seems clear.
We end this article by pointing out that for some years now Switzerland and Italy have had an agreement in the administrative sphere, but only regarding fiscal matters, namely for the exchange of banking and financial information, but for the time being the driver of a car registered in Switzerland still has an easy time on Italian territory, so much so that he only has to fear being stopped by police officers for an offence, in which case, since there is no possibility of collecting the money abroad, the Italian authorities would be forced to threaten to confiscate the vehicle if the fine is not paid immediately on the spot.
1 TPF SK.2021.31, 22.06.2022
2 For more details, please consult the Administrative Assistance Agreements that the Confederation has concluded with neighbouring Countries, such as: Agreement between the Swiss Confederation and the Federal Republic of Germany on cross-border police and judicial cooperation dated 27 of April 1999, Agreement between the Swiss Confederation and the Republic of Austria on administrative assistance in road traffic matters of 23 May 1979, Agreement between the Swiss Federal Council and the Government of the French Republic on cross-border judicial, police and customs cooperation of 9 October 2007.
3 Agreement between the Swiss Confederation and the Federal Republic of Germany on cross-border police and judicial cooperation dated 27 of April 1999.