JUDGMENT NO. 65
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
JUDGMENT
in the proceedings regarding the constitutional legitimacy of Article 175, paragraph 12, of Legislative Decree no. 285 of 30 April 1992 (New Highway Code), initiated by the Justice of the Peace of Naples, First Civil Section, in the proceedings between G. C. and the Prefecture of Naples, by order of 12 September 2025, registered under no. 214 of the 2025 order register and published in the Official Gazette of the Republic no. 46, first special series, of the year 2025.
Having examined the appearance of the President of the Council of Ministers;
having heard the reporting Judge Roberto Nicola Cassinelli in the chambers on 12 March 2026;
having deliberated in the chambers on 12 March 2026.
Facts of the Case
1.– By order of 12 September 2025, registered under no. 214 of the 2025 order register, the Justice of the Peace of Naples, First Civil Section, raised a question of constitutional legitimacy – in reference to Articles 3, 13, 41, and 97 of the Constitution – regarding Article 175, paragraph 12, of Legislative Decree no. 285 of 30 April 1992 (New Highway Code).
1.1.– The referring judge states that he is called upon to adjudicate the appeal filed by G. C. seeking the annulment of a prefectural order mandating payment of an administrative sanction, imposed due to the violation of the aforementioned Article 175, paragraph 12, of the Highway Code, for having performed, on a dedicated lay-by along the Naples bypass, roadside assistance not authorized by the road management authority.
The appellant's initiative was based, inter alia, on the alleged constitutional illegitimacy – due to conflict with Articles 41 and 13 of the Constitution – of the provision in question, "insofar as it subordinates roadside assistance and vehicle removal to prior authorization from the road owner, exempting only the Armed Forces and Police from such obligation." In particular, the appellant assumed – as read again in the referral order – that "constitutional rights cannot be suppressed by any legislative provision" and that the authorization provided by the challenged norm "must yield to the motorist's right in the event of a breakdown to be assisted by a person or company of their choosing, there being no provision in our legal system prohibiting this." In this regard, he cited the Directive of the Minister of Public Works of 24 May 1999, no. 3279 (Amendment to the Directive of 14 May 1998 entitled: "Regulation of motorway roadside assistance for broken-down or damaged vehicles". Directive no. 4956/26/gab), which, at points 3 and 4, "not only defines the content of the activity subject to authorization but also delimits the conditions under which (vehicle parked and safe, not impeding traffic flow, with the driver unharmed) the motorist in distress is free to be assisted by a rescuer of their choosing."
1.2.– Given the above, the Neapolitan Justice of the Peace – having preliminarily highlighted that "the provision of Article 175, paragraph 12, of the Highway Code is clearly relevant for the purpose of the decision of these proceedings," as "the upholding of the question of legitimacy would result in the illegitimacy of the imposed sanction and the annulment of the challenged infringement report" – initiated the requested constitutional proceeding.
Specifically, he held that the aforementioned provision is "in conflict with Article 41 of the Constitution, as it constitutes a disproportionate and indeterminate limitation on the freedom of private economic initiative, entrusting the discretionary power to grant or deny authorizations to the road owner, without objective criteria established by law, and without adequate procedural guarantees."
Furthermore, he identified a conflict also with "Article 13 of the Constitution, which establishes the inviolable right to personal liberty, which may not be limited except in cases and manners provided by law and with specific guarantees protecting the interested party," as the prior authorization imposed by Article 175, paragraph 12, of the Highway Code – insofar as it prevents a citizen with a broken-down vehicle from being freely assisted by a person or company of their choosing – "configures an unjustified and disproportionate compression of such personal liberty," there existing, in fact, "no provision in the legal order that legitimizes such prior interference in the context of private technical assistance, especially in a context (such as an emergency lay-by) that does not compromise traffic safety."
Furthermore, according to the referring judge, the challenged provision presents additional profiles of constitutional illegitimacy, compared to those denounced by the appellant in the main proceedings.
Indeed, it would also violate "the principles of impartiality and sound administration of public office, as per Article 97, first [recte: second] paragraph, of the Constitution, insofar as it provides for a selection among operators authorized for roadside assistance, all possessing the same skills and capabilities, to be applied without any margin of discretion, even constrained, which could prove inadequate regarding the objectives pursued by the legislature for the protection of the motorist and other road users." Similarly, Article 3 of the Constitution would be violated, as the challenged provision "introduces an unjustified disparity of treatment between private economic subjects, suitable and qualified to perform roadside assistance, and thus legitimately operating in the sector, who nevertheless cannot intervene on motorways and main extra-urban roads in the absence of prior authorization from the road owner," thus determining a disparity "lacking a clear justification attributable to the nature of the service provided, since both categories of operators are equally qualified to perform the same rescue operations."
Finally, it is argued that Article 175, paragraph 12, of the Highway Code "does not clearly distinguish between technical assistance interventions in a safe place (e.g., emergency lay-by) and removal/towing interventions, indiscriminately extending the authorization regime," which leads to "a violation of the constitutional principles of equality (Art. 3 Const.), personal liberty (Art. 13 Const.), economic initiative (Art. 41 Const.) and a violation of impartiality and sound administration of public office (Art. 97 Const.) since lawful technical activities performed in contexts that do not compromise traffic safety are arbitrarily prohibited, and, at the same time, a disparity of treatment is determined between operators with similar characteristics."
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, requesting that the question be declared inadmissible or, in any event, manifestly unfounded.
2.1.– The outcome of inadmissibility is motivated on several grounds.
In the first place, it is assumed that the referral order – the "lack of argumentative linearity" of which is also stigmatized – "omitted the indication of the essential data of the underlying proceedings that would allow, even under the criterion of mere plausibility, the control over the actual relevance" of the raised question. In fact, it does not appear indicated "whether the rescue was operated by a company authorized for such activity (on ordinary roads) or by a private individual, whether with a tow truck homologated for assistance activity and equipped with a platform (and not forks), as provided by Article 157 [recte: 175] of the Highway Code, paragraph 7, letter a), which prohibits the towing of vehicles, and whether it was on a damaged vehicle or merely one in breakdown."
In the second place, the outcome of inadmissibility should be affirmed "for omitted reconstruction of the underlying regulatory framework" (the judge a quo questioning the constitutional legitimacy of the challenged provision "without any, even minimal, analysis of the context in which it is inserted, of the ratio that inspires it, and without taking into account the general regulations on traffic on motorways or highways"), as well as "for omitted testing of the constitutional compliance of the challenged provision and for generic and insufficient reasoning on the invoked constitutional parameters."
In particular, it is not understandable "what could be, even in the abstract, the alleged violation of Article 13 of the Constitution regarding freedom of movement, which does not in any way come into play with the challenged provision, given that it prohibits roadside assistance and vehicle removal activities, on motorways and highways, to subjects not authorized by the owner," hence "the manifest irrelevance of the invoked parameter."
The same, then, should be said regarding the alleged violation of Article 41 of the Constitution, a censure based on the assumption that the aforementioned provision would give rise to "a disproportionate and indeterminate limitation on the freedom of private economic initiative, entrusting the discretionary power to grant or deny authorizations to the road owner, without objective criteria established by law, and without adequate procedural guarantees." Conversely, unlike "what was opined by the referring judge, upon the occurrence of the conditions established by law and by the Directive [of the Minister of Public Works] of 24.05.1999 no. 4956 [recte: 3279], any operator in possession of the suitable personnel and means can obtain the issuance of the authorization (the activity in question is qualified by the cited Directive as a public service), with the sole imposition of conforming constraints in relation to the underlying legal interest (safety in the circulation of vehicles)." Equally generic would be the feared violations of Articles 3 and 97 of the Constitution, as well as the concluding statement of the referring judge, according to which the challenged provision "does not clearly distinguish between technical assistance interventions in a safe place (e.g., emergency lay-by) and removal/towing interventions, indiscriminately extending the authorization regime."
Finally, always on the level of the scrutiny of relevance of the question, the State Attorney General's Office highlights "the procedural anomaly that emerges from the referral order, given that the judge a quo, while declaring the suspension of the process, as expressly provided by Article 12 of Law no. 87 of 1 March 1953, has, instead, ordered the continuation of the instruction of the case itself, fixing the subsequent hearing, even during the likely pendency of these incidental proceedings, warning the parties that their subsequent absence would lead to the extinction of the proceedings."
2.2.– In any event, according to the President of the Council of Ministers, the question would also be manifestly unfounded.
It is noted, in fact, that Article 175 of the Highway Code – in which the challenged provision is inserted – "regulates the conditions and limitations of traffic on motorways and main extra-urban roads," providing, among other things, "the prohibition of traffic for certain vehicles, as well as pedestrians and animals, on such roads, the prohibition of towing vehicles that are not trailers on service or parking areas and on any other motorway appurtenance, and as far as it is directly relevant here, the activity of roadside assistance and vehicle removal on such roads." In this context, then, it is established that in the "case of a vehicle in breakdown, it is mandatory to have the intervention of a tow truck equipped with a platform (and not forks)," given the general prohibition of towing vehicles as per paragraph 7, letter a), of the same Article 175. In this regard, moreover, Article 374 of the Decree of the President of the Republic no. 495 of 16 December 1992 (Regulation of execution and implementation of the new Highway Code) specifies that – the State Attorney General's Office emphasizes – the activity of roadside assistance and removal on motorways can be entrusted in concession by the road owner to authorized subjects, while Appendix IV to Title I, relating to Article 12 of the same regulation, for its part, regulates the constructive and functional characteristics of motor vehicles for special use for roadside assistance. This is, moreover, a regulation that, the Attorney General continues, "refers exclusively to the activity of roadside assistance on motorways and their appurtenances (service areas, junctions, etc.)," thus finding "peaceful reason for being in the fact that on motorways the speed allowed is higher than that provided for ordinary roads," which is, instead, exempt from such regulation. To this, then, is added the dual circumstance that "both the parking on the carriageway of a stationary vehicle (due to breakdown or accident) and the removal are extremely dangerous, also in consideration of the fact that on motorways, entry and exit accesses are less frequent than on ordinary roads"; furthermore, from the motorway site "it is necessary to remove in the shortest possible time stationary vehicles, for any cause," due to the "extreme danger to the circulation of other vehicles, as well as the occupants of the vehicle itself."
For these reasons, therefore, "the provision contained in the challenged norm is justified, or rather imposed," given that "stringent rules are necessary for management bodies, as they are functional to identify subjects equipped with particular technical capacity, organizational structure, resources, and qualified and prepared personnel to carry out a rescue intervention in complete safety for motorway users." One is, therefore, in the presence of "legitimate derogations from the freedom of private economic initiative, which can and must be limited, for safety reasons," it remaining, furthermore, understood "that these rules do not leave absolute discretion to managers, given that the rescue intervention is mandatory, qualifying as an essential public service, and the choice of the operator is conducted on the basis of the criteria indicated above."
In conclusion, according to the State Attorney General's Office, the challenged provision does not have "the function of rationing the exercise of rescue activity by selecting operators at the entrance through the setting of quantitative restrictions," as upon the existence of "the conditions established by law and the aforementioned Directive, any operator in possession of suitable personnel and means can obtain the issuance of authorization without the imposition of particular constraints, if not those of conformity in relation to the legal interest underlying the exercise of the activity with public relevance."
It should, therefore, be excluded, again according to the intervenor, the violation of Articles 3 and 97 of the Constitution (the parameter of Article 13 of the Constitution being entirely irrelevant, as already mentioned), as well as of Article 41 of the Constitution, given that in the light of constitutional jurisprudence it must be considered "legitimate the restriction of the freedom of economic initiative if justified by social utility on the condition that the interventions of the Legislator do not [recte: pursue] this utility through clearly incongruous measures and that there exists a fair balance between the requirements of the general interest of the community and the interference with the individual right to the enjoyment of goods."
Legal Considerations
3.– With the order indicated in the epigraph, the Justice of the Peace of Naples, First Civil Section, raised – in reference to Articles 3, 13, 41, and 97 of the Constitution – a question of constitutional legitimacy regarding Article 175, paragraph 12, of the Highway Code, "in the part in which it subordinates roadside assistance and vehicle removal to prior authorization from the road owner, exempting only the Armed Forces and Police from such obligation."
3.1.– The referring judge states that he is called to decide an appeal filed to obtain the annulment of a prefectural order that mandated the appellant in the main proceedings to pay an administrative sanction, imposed upon him due to the violation of the aforementioned Article 175, paragraph 12, of the Highway Code, for having performed, on a lay-by along the Naples Tangenziale, roadside assistance not authorized by the road management authority.
In the perspective of the judge a quo, therefore, the declaration of constitutional illegitimacy of the aforementioned norm – which the appellant excepted in reference to Articles 41 and 13 of the Constitution – would have as a consequence the acceptance of the appeal and the annulment of the sanction. Indeed, the Neapolitan Justice of the Peace shares the doubt of constitutional legitimacy envisaged with reference to these parameters, believing that "constitutional rights cannot be suppressed by any legislative provision," so that the authorization provided by the challenged norm should yield "to the right of the motorist in breakdown to be assisted by the person or company of his choice, there being no rule in our legal system that prohibits it." In particular, according to the referring judge, Article 175, paragraph 12, of the Highway Code would be "in conflict with Article 41 of the Constitution, as it constitutes a disproportionate and indeterminate limitation to the freedom of private economic initiative, entrusting the discretion of the road owner the power to grant or deny authorizations, without objective criteria fixed by law, and without adequate procedural guarantees." Likewise, the aforementioned norm would also violate "Article 13 of the Constitution, which establishes the inviolable right to personal liberty, which cannot be limited except in cases and manners provided by law and with specific guarantees to protect the interested party," as the prior authorization imposed by it, where it prevents "the citizen in breakdown from being freely assisted by the person or company of his trust," configures "an unjustified and disproportionate compression of such personal liberty."
Furthermore, in the opinion of the referring judge, the challenged provision would present further profiles of constitutional illegitimacy, compared to those denounced by the appellant in the main proceedings. It would, in fact, also violate "the principles of impartiality and sound administration of public administration, referred to in Article 97, first [recte: second] paragraph, of the Constitution, as it would foresee a selection among operators authorized for roadside assistance, all in possession of the same skills and capacities, to be applied without any margin of discretion, even bound, which could result inadequate with respect to the purposes pursued by the legislator for the protection of the motorist and other road users." Equally violated would be Article 3 of the Constitution, as the norm under examination "introduces an unjustified disparity of treatment between private economic subjects, suitable and enabled to perform the activity of roadside assistance, and thus legitimately operating in the sector, who nevertheless cannot intervene on motorways and main extra-urban roads in the absence of prior authorization from the road owner," thus determining a disparity "lacking a clear justification attributable to the nature of the service provided, since both categories of operators are equally enabled to perform the same rescue operations."
Finally, the referring judge censures the aforementioned norm also because "it does not distinguish clearly between technical assistance interventions in a safe place (e.g., emergency lay-by) and removal/towing interventions, extending the authorization regime indiscriminately," which entails "a injury to the constitutional principles of equality (Art. 3 Const.), personal liberty (Art. 13 Const.), economic initiative (Art. 41 Const.) and a violation of impartiality and sound administration of Public Administration (Art. 97 Const.) since lawful technical activities are arbitrarily forbidden, performed in contexts that do not compromise the safety of traffic and, at the same time, a disparity of treatment is determined between operators with similar characteristics."
4.– The President of the Council of Ministers, who intervened in the present proceedings, opposed the acceptance of the question, raising, preliminarily, various exceptions of inadmissibility.
First of all, the lack of "argumentative linearity" of the referral order is denounced, which would have "omitted to indicate the essential data of the underlying process that would allow, even under the criterion of mere plausibility, the control over the actual relevance" of the raised question, in particular not appearing indicated "whether the rescue was operated by a company authorized for such activity (on roads with ordinary traffic) or by a private individual, whether with an intervention of a tow truck homologated for the assistance activity and equipped with a platform (and not forks), as provided by Article 157 [recte: 175] C.d.S., paragraph 7, let. a), which prohibits the towing of vehicles, whether on a damaged vehicle or only in breakdown."
Also deduced is the "omitted reconstruction of the underlying regulatory framework," as well as the presence of a "generic and insufficient motivation on the evoked constitutional parameters."
To these findings, then, follows the contestation of the "procedural anomaly" that would characterize the a quo judgment, given that the remitter declared to have suspended it, but then ordered to proceed with the instruction of the cause, warning the parties that their subsequent absence would lead to the extinction of the judgment.
Finally, on the merits, it is argued that the release of the authorization for the performance of the roadside assistance service is subordinated to a complex of regulatory provisions, responding to the need to safeguard the safety of traffic, which would constitute a limit placed on the freedom of economic initiative in function of a goal of social utility, without, therefore, being able to raise the question of disparity of treatment between operators in the same sector, hence the unfoundedness of the censures of violation of Articles 41, 3 and 97 Const., while the parameter referred to in Article 13 Const. would be entirely irrelevant.
5.– In limine, the preliminary exceptions raised by the President of the Council of Ministers must be examined, all of which are to be rejected, except for the one that envisages the inadmissibility of the censure of violation of Article 13 Const.
5.1.– Indeed, the finding according to which the judge a quo would have "omitted to indicate the essential data of the underlying process that would allow, even under the criterion of mere plausibility, control over the actual relevance" of the raised question must be disregarded. In truth, although the order bears a skimpy description of the affair object of the a quo judgment, its essential data are – for the purpose of illustrating the relevance of the raised question of constitutional legitimacy – sufficiently delineated. The referring judge reported that there had been, in this case, the rescue of a motor vehicle on a lay-by of a stretch of the motorway network (specifically, the one marked as "A56," corresponding to the so-called Naples Tangenziale), entailing the imposition of an administrative sanction against the subject who had carried it out, as he was not authorized for the rescue and removal activity; thus, if the necessity, provided by the challenged norm, of a prior authorization for the completion of such activity did not exist, the sanctioning provision would be illegitimate.
Likewise, the exception of inadmissibility of the question for omitted reconstruction of the reference regulatory framework must be disregarded, since the examination of the same is destined to assume relevance, if anything, for the purpose of the scrutiny of the merits of the censures of constitutional illegitimacy, revealing the purposes and the presuppositions of operability proper to the challenged norm.
Nor, finally, can the inadmissibility of the question derive from the failure to suspend the a quo judgment (and from the possibility – envisaged by the same remitter in his order – that it may become extinct due to the inactivity of the parties), given that pursuant to Article 21 of the Supplementary Rules for proceedings before the Constitutional Court, the "suspension, interruption, and extinction of the main process do not produce effects on the judgment before the Constitutional Court."
5.2. – Instead, the exception of inadmissibility of the censure of violation of Article 13 Const. deserves acceptance.
Indeed, the jurisprudence of this Court has always correlated the limitation of personal liberty, to which the aforementioned constitutional norm refers, or to "a physical coercion of the person, unless the restriction of the freedom to dispose of one's body that follows has a momentary and entirely negligible character," correlating the violation of Article 13 Const. to the "coercion to undergo interventions of some relevance on one's body," or to measures imposing obligations that have "an effect of 'legal degradation' of the interested party," but always on the condition "that the obligations in question result of such intensity as to be equated to that 'subjection of the person to another's power,' in which the violation of the guarantee of habeas corpus is concretized" (lastly, among many, judgment no. 203 of 2024).
In the present case, indeed, both these profiles are absent – already in the very perspective of the judge a quo – it not being possible to believe that the limitation that is imposed, by the challenged norm, on the freedom of choice of the subject from whom to receive assistance entails "physical coercion" or "degrading effects" on the dignity of the person who suffers such a limitation. And this, especially when one considers that the legislator – for the primary purpose of ensuring that the flow of road traffic takes place in such a way as to safeguard the safety of road users – has imposed, over time, measures that have passed the compatibility test with Article 13 Const., certainly entailing, instead, some form of "physical coercion" of the interested parties, such as the mandatory use of seat belts for motorists and their passengers (order no. 49 of 2009) and of the protective helmet for motorcyclists (judgment no. 180 of 1994).
6.– That said, passing to examine the other censures – those of violation of Articles 3, 41, and 97 Const. – raised by the remitter, the reconstruction of the reference regulatory framework in which the challenged norm is inserted is indeed preliminary to such examination.
6.1.– The starting point of such analysis is Articles 12 and 374 of the D.P.R. no. 495 of 1992. Well then, Article 12 identifies the motor vehicles "used for the rescue and removal of vehicles," qualifying them as "for special use for roadside assistance," referring for the description of their "constructive and functional characteristics" to Appendix IV to Title I of the same D.P.R.; for its part, instead, Article 374 establishes that the "activity of roadside assistance and vehicle removal on motorways can be entrusted in concession by the road owner to subjects authorized to carry out the car repair activities referred to in Law no. 122 of 5 February 1992."
Not foreign, furthermore, to this framework, with specific reference to rescue on motorways, is, then, the provision referred to in letter a), of paragraph 7, of the same Article 175 of the Highway Code. It, in fact, establishes – with a provision that derogates from Articles 63 and 165 of the same code (from which one derives the possibility, in other road settings, of the so-called "make-shift" towing of the vehicle in breakdown, when one is in an "impending emergency situation") – that on "carriageways, on ramps, on junctions, on service or parking areas and on any other motorway appurtenance it is forbidden [...] to tow vehicles that are not trailers," unless such activity is carried out, indeed, by the authorized subjects to whom the challenged norm refers. Such a complex of provisions, moreover, results specifically referred to in the Directive of the Ministry of Public Works no. 3279 of 1999, which underlines that "[b]oth the parking on the carriageway of a stationary vehicle (due to breakdown or accident) and the removal of the vehicle itself are extremely dangerous also because on motorways the access of entry and exit from the track is much less frequent than on ordinary roads," adding that "on motorways it is necessary to remove 'in the shortest possible time' the vehicle stationary (for any reason) as it is a cause of extreme danger to the circulation of other vehicles as well as the occupants of the vehicle in breakdown." It is, therefore, in this perspective that on motorways – and on main extra-urban roads, according to what the rubric of Article 175 of the Highway Code reads – roadside assistance and vehicle removal are permitted, based on what is provided by the norm suspected of constitutional illegitimacy, only to entities and companies authorized by the road owner.
Furthermore, the same ministerial directive, at point 6, charges the road owners or concessionaires, when they have entrusted to third parties – upon prior authorization, indeed – the performance of the service, and this "for the purpose of ensuring the uniformity" of the same, to "ascertain the existence of the prescribed requirements in the heads of the requesting subjects, checking during the period of validity of the authorization their permanence for all the motorway stretches of competence." In particular, owners or concessionaires of motorways must: "a) verify the suitability of the organizational structure; b) verify the availability of resources, of particularly qualified personnel, and of means adequate for the service; c) establish times and methods of intervention; d) control compliance with the times and methods of intervention [;] e) ascertain the quality and identity of the operators enabled to perform the service." Finally, they will also have to "identify and indicate, in the agreement acts with the authorized subjects, the organization of the means and of the qualified personnel for the rescue, with regard also to the identification of the rescue trucks through appropriate coloring."
Placing itself, therefore, Article 175, paragraph 12, of the Highway Code in this overall regulatory scope, it can be said that its ratio – as held, moreover, also by the jurisprudence of legitimacy – "resides in the particular nature of the activity carried out by the private individual, which requires a particular competence and specific requirements, having to intervene in a context in which a higher speed is allowed compared to built-up areas," underlining, furthermore, that "in case of road accidents or breakdown of the vehicle, one is in conditions of greater danger for road users" (Court of Cassation, Second Civil Section, order 11 November 2024, no. 28948).
6.2.– From what precedes, therefore, derives the unfoundedness of the censures of violation of Articles 41, 3, and 97 Const.
6.2.1.– According to the remitter, the challenged norm would constitute "a disproportionate and indeterminate limitation to the freedom of private economic initiative, entrusting the discretion of the road owner the power to grant or deny authorizations, without objective criteria fixed by law, and without adequate procedural guarantees," which would determine "an unjustified disparity of treatment between private economic subjects, suitable and enabled to perform the activity of roadside assistance," with reflections on the very "principles of impartiality and sound administration of public administration."
However, the assumption on which such censures are founded is denied by the entire reference regulatory framework, as outlined above.
In fact, the power to grant or deny authorizations is exercised not on the basis of an absolute discretion, but in the light of a series of specific regulatory provisions, as pointed out by the aforementioned ministerial directive, implying, among other things, the verification that the means in the availability of those aspiring to the exercise of the rescue and vehicle removal service present very precise "constructive and functional characteristics," burdening, furthermore, the authorizing entities with a series of further controls also during the course of the performance of the relationship established with the authorized subjects.
On the other hand, that pursuant to the overall legislation illustrated above the mechanical roadside assistance activity – indicated with the acronym "SSM" – exercised on motorway stretches is subject to a regime only of authorization, and not of concession, "by effect of which the expansion of the subjective position of the requesting subject is conditioned exclusively to the verification of the possession of the requirements indicated in the cited ministerial provisions" (and of law), is a conclusion supported by administrative jurisprudence. Indeed, it underlines that, to think otherwise, it would determine, in this ambit, "a passage from the current system of competition in the market (or, of competition between operators all equally in possession of the authorization title) to a system of competition for the market (characterized by a 'barrier' to access integrated by the award of the envisaged selection procedures; and, therefore, by the need for operators who want to 'enter' to implement a competitive comparison in the venue of presentation of the offers in order to be able to achieve the entry to the performance of SSM services)" (thus the Regional Administrative Tribunal for Lazio, Rome, First Section, judgments 8 May 2009, no. 5005 and no. 4994; in a similar sense – in rejecting the appeals experienced against such decisions – Council of State, Sixth Section, judgments 20 November 2013, no. 5501 and no. 5500).
These findings, therefore, exclude that the operators of the sector – in spite of what the remitter opines – are, so to speak, "at the mercy" of the road owners.
6.2.2.– Finally, that the limitation imposed on the freedom of economic initiative deriving from the challenged norm – once its scope (and objectives) have been reconstructed in the light of the entire regulatory complex in which it is inserted – is responding to a goal of social utility, does not appear doubtful. It is worth, in fact, also for Article 175, paragraph 12, of the Highway Code what has already been affirmed in the past by this Court with reference to other norms aimed at guaranteeing the safe conduct of the circulation of vehicles. Or that it also "pursues – even if in an intermediate way – the general goal that is typical of the provisions concerning road safety," and that is the one, "connected to the structural danger of motor vehicles, of ensuring the personal safety of the subjects involved in their circulation," so that, responding "to requirements of road safety (and therefore to the safety of users: Art. 41, second paragraph, of the Constitution)," it pertains to the "protection of primary values pertaining to the person," whose respect "is the insurmountable limit of every economic activity" (judgment no. 152 of 2010, in a similar sense also judgment no. 548 of 1990).
A perspective, this one, which is moreover accepted also by the jurisprudence of legitimacy, according to which "the authorization of the owner and manager of the road, clearly aimed at checking the capacities and methods of intervention of those who ask for authorization, responds to an evident interest of guaranteeing the viability and safety of users, with the consequence that the limit that it places on economic activity, moreover not absolute but relative, cannot be said neither unjustified nor unreasonable" (Court of Cassation, Second Civil Section, judgment 16 October 2007, no. 21742).
These considerations, therefore, entail the rejection of the censures of violation of Articles 41, 3, and 97 Const., and this also with reference to the further profile of constitutional illegitimacy of the challenged norm hypothesized by the remitter, which invests the same where it "does not clearly distinguish between technical assistance interventions in a safe place (e.g., emergency lay-by) and removal/towing interventions, extending the authorization regime indiscriminately." In truth, the need – which we have seen to be underlying the challenged norm – to ensure the safety of traffic on motorways (and extra-urban roads), providing for a regime of authorization for the completion of rescue and vehicle removal interventions, results correlated to the intrinsic danger of such activity, so that there is no reason to operate a distinction in relation to the nature of the interventions or the place of their execution (as hypothesized, instead, by the remitter). And this, moreover, also in consideration of the fact both that the notion of motorway site "cannot be limited to the only travel lanes and to the emergency parking lane, but concerns all the works present in the motorway route, functional to the safety of motorists," and that the rescue results preliminary to the removal activity "which of necessity must be carried out through the travel of the motorway" (thus, again, the already cited Cass. no. 21742 of 2007).
FOR THESE REASONS
THE CONSTITUTIONAL COURT
1) declares inadmissible the question of constitutional legitimacy of Article 175, paragraph 12, of Legislative Decree no. 285 of 30 April 1992 (New Highway Code), raised, in reference to Article 13 of the Constitution, by the Justice of the Peace of Naples, First Civil Section, with the order indicated in the epigraph;
2) declares unfounded the question of constitutional legitimacy of Article 175, paragraph 12, of Legislative Decree no. 285 of 1992, raised, in reference to Articles 3, 41, and 97 of the Constitution, by the Justice of the Peace of Naples, First Civil Section, with the order indicated in the epigraph.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 12 March 2026.
Signed:
Giovanni AMOROSO, President
Roberto Nicola CASSINELLI, Author
Roberto MILANA, Director of the Registry
Deposited in the Registry on 30 April 2026
The anonymized version is consistent, in its text, with the original.