Personal and material scope

• Author: Favilli, Chiara
• Pages: 27-34

27

3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU 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 irregular migrants, although it is in practice impossible

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

employment fiel d, an irregular migrant as a worker has the right to the same economic

treatment that othe r workers enjoy. The inability of irregul ar migrants to enforce their

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

3.1.2 Natural and legal persons (Recital 16, Directi ve 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.

b) Liability for discrimination

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

for the purpose of li ability 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.27 Moreover, two liability provisions are mentioned in Legislative Decree

286/1998 (the Immigration Decree).28 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) specifically addresses the liability of employers by gi ving

trade uni ons the ri ght to l egal standing in cases of collective discrimination. Finally, the

following paragraph of the same Arti cle 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.

3.1.3 Private 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 prot ection against

discrimination.

27 Italy, Law 67/2006, 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), 1

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

28 Italy, Legislative Decree 286/1998, Consolidated Act of provisions concerning immigration and the condition

of third country nationals (Testo Unico delle disposizioni concerneneti la disciplina dell’immigrazione e norme

sulla condizione dello straniero), 25 July 1998.