Latest developments in 2019

• Author: Chiara Favilli
• Pages: 66-69

66

12 LATEST DEVELOPMENTS IN 2019

12.1 Legislative amendments

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12.2 Case law

Name of the court: Supreme Court

Date of decision: 8 October 2019

Name of the parties: Comune di (omissis) v. C.G.

Reference number: 25101

Address of the webpage: N/A

Brief summary: The case concerned a municipality (comune) which provided a minor with

disability with 10 hours of assistance per week instead of 22 hours as defined in his

individual educational plan. According to the Court, if an individualised educational plan for

a minor with disability has been adopted to establish the necessary hours of support, the

school administration does not have any discretionary power, and cannot assign him or

her fewer hours. The non-assignment of hours of supp ort as defined in the individualised

plan breaches the fundamental right of a minor with disability to equal opportunity in

education. This fact constitutes indirect discrimination committed by a public

administration, as prohibited by Law 67/2006 on discrimination on the ground of disability,

and the matter falls within the jurisdiction of an ordinary judge rather than an

administrative judge. This principle was held b y the Suprem e Court of Cassation (un ified

sections) when called on to clarify the point of jurisdiction in particular.

Name of the court: Supreme Court

Date of decision: 4 December 2019

Name of the parties: Extrabanca SPA v. B.O.

Reference number: 31660

Address of the webpage: N/A

Brief summary: The case concerns a m ember of the board of a company who had been

dismissed after having protected an employee from discrimination on the ground of race

and ethni c origin. The Supreme Court stated that, according to Article 2383 of the Civil

Code, su ch a dismissal is allowed even if it is unfair, and the person is entitled only to

compensation. Nevertheless, when the dismissal represents a reaction to an initiative

carried out with good faith and fairness by th e dismissed person in order to as sure the

principle of equal treatment irrespective of race or ethnic origin, the dismissed person is in

turn a victim of a discriminatory conduct, and he or she is entitled to be reinstated in his

or her position, according to Article 28 of Legislative D ecree 150/2011.

Name of the court: Court of Appeal of Brescia

Date of decision: 18 January 2019

Name of the parties: F.PE. v. ASGI and others

Reference number: 96

Address of the webpage: http s://www.asgi.it/wp-content/uploads/2019/01/Corte-

dAppello-di-Brescia-sentenza-del-18.01.2019-est.-Pianta-xxx-av v.ti-Monguzzi-Forni-De-

Vecchi-c.-K-pax-Ass.-Puerto-Escondido-e-ASGI-avv.ti-Guariso-e-Lavanna.pd f

Brief summary: The Court of Appeal up held the ju dgment of the Tribunal of Brescia, in

which it condemned F.PE. for having posted on Facebook affirmations that described

asylum seekers as ‘clan destine’ and ridiculed associati ons giving them hospital ity, stating

that they have the illegal purpose of profiting from trafficking in clandestine migration,

which must be qualified as discriminatory conduct.

The Court qualified these statements as harassment on the ground of race, according to

article 2(3) of Legislative Decree 215/2003 implementing Directive 2000/43/EC, and