Latest developments in 2018

• Author: Favilli, Chiara
• Pages: 70-72

70

12 LATEST DEVELOPMENTS IN 2018

12.1 Legislative amendments

- Legislative Decree 123/2018 of 2 October 2018, on reforming the prison system

(Riforma dell'ordinamento penitenziario).56

Article 1: prohibition of discrimination on any ground, such as sex, gender and sexual

orientation

Article 14: homosexuals should be detained into separate s ections only when the

prisoner fears harassment by other detainees and upon his/her consent. Without

consent, detention will take place in ordinary detention centres. Moreover, separate

sections should include onl y homogeneous categories, therefore preven ting the detention

of persons fearing discrimination on ground of sexual orientation in mixed sections,

where there also prisoners at risk of assau lt for being sex offenders or having committed

other crimes belonging to the police or the judiciary. In any case, training activities

should always be guaranteed together with all the other detainees.

12.2 Case law

Name of the court: Tribunal of Bergamo

Date of decision: 30 March 2018

Name of the parties: FILT CGIL v. Ryanair Dac

Reference number: No. 1586

Address of the webpage: (if the decision is available electronically)

Brief summa ry: FILT CGIL, a transport uni on, challenged an extinction clause – which

entails an automatic end of the employment contract in the case of work stoppages or

any other trade union actions, not trade union membership per se – introduced by

Ryanair in collective and i ndividual contracts r elated to the Cabin Crew Agreem ent for

Crew Operation. According to the Tribunal, the contested clause amounted to direct

discrimination on ground of personal belief, a concept which includes belonging to trade

unions, as had al ready been stated in the case of Fiat, Fabbrica Italia decided in 2012 by

the Tribunal of Rome. The Tribunal of Bergamo held that the extinction clause had the

effect of deterring workers belonging to trade unions from applying for a job with that

airline company, in particular taking into account the statements released by the

company’s CEO following the strike called by pilots. Moreover, a letter had been sent to

pilots and flight assistants threatening sanctions on the stri king workers.

With regard to remedies, the Tribunal found it impossible to order the cancellation of the

extinction clause because of the uncertai nty about the applicability of the l aw to

individual contracts. Therefore, the Tribunal ordered the publication of the judgment in

two national newspapers and compelled the company to pay EUR 50 000 in non-

pecuniary damages. The Tribunal made refe rence to the EU directive and the Accept

case, requiring that ‘The san ctions, which may comprise the payment of compensation to

the victim, must be effective, proportionate and dissuasive’.

Name of the court: Tribunal of Spoleto

Date of decision: 29 December 2018

Name of the parties: XX v. Prison Department

Reference number: No. 7461

Address of the webpage: (if the decision is available electronically)

56 Italy: Legislative Decree 123/2018, on reforming the prison system (Riforma dell’ordinamento

penitenziario), 2 October 2018, available at: https://www.normattiva.it/uri-

res/N2Ls?urn:nir:stato:decreto.legislativo:2018-10-02;123!vig=.