Personal and material scope

• Author: Chiara Favilli
• Pages: 26-33

26

3PERSONAL AND MATERIAL SCOPE

3.1Personal scope

3.1.1EU and non-EU nationals (Recital 13 and Article 3(2), Directive 2000/43

and Recital 12 and Article 3(2), Directive 2000/78)

In Italy, there are no residence or citizenship/nationality requirements for protection under

the relevant national laws transposing the directives. In theory, anti-discrimination

provisions should apply even to irregularlystaying migrants, although it is in practice

impossible and no claim has been brought to justice by an irregular migrant. For instance,

in the employment field, an irregularlystaying migrant as a worker has the right to the

same economic treatment that other workers enjoy. The inability of irregular migrants to

enforce their rights is one of the causes of the phenomenon of labour exploitation.

3.1.2Natural and legal persons (Recital 16, Directive 2000/43)

a)Protection against discrimination

In Italy, the personal scope of anti-discrimination law covers natural and legal persons for

the purpose of protection against discrimination. This comes from Article 3(1) of both

decrees implementing the two directives, which provides for the application of the principle

of equal treatment to all persons in both the public and private sectors. The same wide

scope of application comes from Articles 43(1-2) and 44(1) of Legislative Decree 286/1998

(the Immigration Decree) and Article 1 of Law 67/2006 on disability discrimination.

b)Liability for discrimination

In Italy, the personal scope of anti-discrimination law covers natural and legal persons for

the purpose of liability for discrimination. This is derived from the general provision in

Article 3(1) of both decrees implementing the two directives and from the provision in

Article 1 of Law 67/2006 on discrimination against persons with disability in fields outside

employment.48 Moreover, two liability provisions are mentioned the Immigration Decree.49

According to Article 43(2)(e), there is discrimination in the case of an act or treatment

promoted by an employer which places workers in a situation of particular disadvantage

on grounds of their race, ethnic or linguistic origin, religion or citizenship. No specific

provision covers other grounds of discrimination. Article 44(10-11) specifically addresses

the liability of employers by giving trade unions the right to legal standing in cases of

collective discrimination. Finally, the following paragraph of the same Article concerns

sanctions against legal persons, such as the suspension of entitlement to any sort of public

financial assistance and, in the most serious cases, disqualification from entitlement to any

public financial assistance or tenders for up to two years.

3.1.3Private and public sector including public bodies (Article 3(1))

a)Protection against discrimination

In Italy, the personal scope of national anti-discrimination law covers the private and public

sectors, including public bodies, for the purpose of protection against discrimination.

48 Law of 1 March 2006, on measures for the judicial protection of persons with disabilities who are victims of

discrimination (Misure per la tutela giudiziaria delle persone con disabilità vittime di discriminazioni), No. 67,

available at: http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2006-03-01;67!vig.

49 Legislative Decree of 25 July 1998, on immigration and the treatment of foreign citizens (Immigration

Decree) (Testo Unico delle disposizioni concerneneti la disciplina dell’immigrazione e norme sulla condizione

dello straniero), No. 286.