Introduction

• Author: Chiara Favilli
• Pages: 12-13

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INTRODUCTION

The national legal system

The Italian legal system is based on a written Constitution, which entered into force on 1

January 1948 and is guaranteed by a relatively centralised judicia l review of enacted laws

adopted by either the national Parliament or regional legislative bodies.

The Italian regions have increasingly important law-making powers within the limits of the

state’s exclusive competences, in accordance with Article 117 of the Italian Constitution.

Measures for social integration and the practical organisation of public services (social and

health services, for instance) fall with in the competence of the regions; h owever, it is the

role of central Government to determine ‘the basic level of benefits relating to civil and

social entitlements to be guaranteed throughout the national territory’ (Article 117(2)(m)).

Moreover, according to Article 177(7) of the Italian Constitution, ‘regional laws shall

remove all obstacles wh ich prevent the full equality of men and women in social, cultural

and economic life, and shall promote equal access of men and women to elected office.’

The region s and the autonomous provinces of Trento and Bolzano participate in the EU

legislative process and apply and implement international agreements and European Union

legal act s. The regions with spe cial constitutional status (Friuli Venezia Giulia, Sardinia,

Sicily, Trentino-Alto Adige and Valle d’Aosta) have particularly extensive legislative powers.

The municipalities, provinces and metropolitan cities have regulatory powers in accordance

with the system of organisation and mode of operation that has been gran ted to them.

This division of competences is far from clear and has generated considerable case law

from the Constitutional Court. As far as discrimination laws are concerned, in a judgment

of 2006 the Constitutional Court quashed the section of a la w enact ed by the re gion of

Tuscany, which imposed (subject to an administrative sanction) an obligation of non-

discrimination on the ground of sexual orientation in commercial activities, since the

imposition of such an obligation falls under the exclusive competence of the state at

national rather than regional level, being an infringement of the individual’s freedom of

contract.

Any laws, regulations, administrative acts or municipal acts must comply with the

Constitution. In addition, provisions d erived from internationa l human rights instruments

(and the related jurisprudence from in ternational courts) are also employed by Italian

courts, either in order to interpret Italian enacted law or to directly decide cases.

The equality principle and anti-discrimination laws can be applied by either ordinary or

administrative courts; case law is therefore generated by decisions of the Constitutional

Court, ordinary judges and administrative judges, depending on whether the case concerns

a constitutional review, a dispute among private individuals, a disput e with public entities

or a specific action against discrimination.

List of main legislation transposing and implementing the directives

The two anti-discrimination directives have been implemented in Italy through the adoption

of two legislative decrees in 2003. Those legislative decree are still in force and only minor

changes have been adopted later on.