Introduction

• Author: Favilli, Chiara
• Pages: 13-14

13

INTRODUCTION

The national legal system

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

January 1948 and is guaranteed by a relatively ce ntralised judicial 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 within the competence of the

regions; however, 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 Arti cle 177(7) of the Italian

Constitution, ‘regional laws shall remove all obstacles which prevent the full equality of

men and women in social, cultural and econom ic life, and shall promote equal access of

men and women to elected office.’

The regi ons an d the autonomous provinces of Trento and Bolzano participate in the EU

legislative process and apply and implement international agreements and European

Union legal acts. The regions with special constitutional status (Friuli Venezia Giulia,

Sardinia, Si cily, Trentino-Al to Adige and Valle d’Aosta) have particularly extensive

legislative powers.

The munici palities, provinces and metropol itan cities have regul atory powers in

accordance with the system of organi sation and mode of operation that has been g ranted

to them.

This division of compet ences i s far from clear and has generated considerable case law

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

of 2006 the Constituti onal Court quashed the section of a law enacted by the region 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 regi onal l evel, being an infringement of th e i ndividual’s freedom o f

contract.

Any laws, regulations, admini strative acts or municipal acts must comply with the

Constitution. In a ddition, provisions derived from international human rights instruments

(and the related jurisprudence from international 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-discrimi nation laws can be applied by either ordinary or

administrative court s; case law is therefore ge nerated by decisions of the Constitutional

Court, ordinary judges and admini strative judges, dependin g on whether the case

concerns a constitutional review, a dispute among private individuals, a dispute 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 impl emented in Italy through the

adoption of two legislative decrees in 2003. Thos e legislative decre e are still in force and

only minor changes have been adopted later on.