General legal framework

• Author: Chiara Favilli
• Pages: 14-14

14

1GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The constitution of Italy includes the following articles dealing with non-discrimination:

Article 3: provides a general clause. It recognises equal dignity and equality under the law

without distinction on the grounds of sex, race, language, religion (belief is not mentioned

per se), political opinion and personal or social conditions. The grounds of discrimination

listed in Article 3 are more restricted than those mentioned in Article 19 of the Treaty on

the Functioning of the European Union (TFEU); however, the list has been interpreted as

non-exhaustive and the ‘reasonable clause test’ has been applied by the Constitutional

Court to any ground of unjustified difference and in any fields.15 Article 3 also includes the

principle of substantive equality and calls on the state to remove the social and economic

obstacles which limit the freedom and equality of citizens and prevent the full development

of the human being.

Article 8(1): contains a specific clause regarding freedom and equality of religions.

Article 37(1): contains a specific clause regarding sex discrimination in labour law.

Article 37(3): contains a specific clause providing for equal pay for equal work for minors.

Article 51: contains a specific clause regarding equal access for women and men to elected

office.

These provisions apply to all areas covered by the directives and there is no restriction to

their material scope. Their material scope is broader than the scope of the directives.

These provisions are directly applicable in theory and can be enforced against private

actors (as well as against the state). However, there are not many cases of this type, while

the majority of judgments applying constitutional provisions are issued by the

Constitutional Court with regard to the validity of laws.

15 Several judgments have been issued by the Constitutional Court applying Article 3 of the Italian

Constitution. One of the most relevant judgments in the field of sexual orientation is the Court’s judgment

of 21 April 2010, No. 10, available at:

http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2010&numero=138. One of the few

judgments in the field of disability is the judgment of 22 February 2010, No. 80, available at:

http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2010&numero=80.