Remedies and enforcement

• Author: Chiara Favilli
• Pages: 47-53

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6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Italy, the following procedures exist for enforcing the principle of equal treatment:

according to Article 28 of Legislative Decree 150/2011, 84 the general p rovisions on fast-

track procedures apply to discrimination litigation. The relevant article is Article 702-bis of

the Civil Procedural Code.

Under the general fast-track procedure, a victim of discrimination can apply, even in person

(whereas in ordinary cases the assi stance of a lawyer is compulsory), to the jud ge (the

ordinary civil court) with jurisdiction over their place of residence (an exception to the

general principle of suing in the court with jurisdiction over the place o f residence of the

defendant). The judge can issue a judgment ordering cessation of the discriminatory

activity as well as damages (including for non-pecuniary losses, ordinarily excluded in civil

cases). The judge can order an anti-discrimination plan to be drafted. In the case of

collective discrimination, the judge decides whether an anti-discrimination plan is needed

after hearing the opinion of the ass ociation which brought the complaint. The judgment

can be appealed before the Court of Appeal (second instance) within 30 days; the decision

on appeal can be challenged before the Supreme Court (third instance). The main

difference between the ordinary and fast-track procedures is that a final ruling can be given

in the former, while the latter may always be followed by a full trial, the only forum in

which a final judgment may be given. It must be recalled that pre-trial mediation is now

mandatory in anti-discrimination cases.

The civil action against discrimination p revails over other special procedures applying in

the fields of labour law or administrative law. With regard to administrative law, according

to a general principle of Italian law, ordinary administrative procedure applies when public

bodies are involved.85 However, the Supreme Court has stated that in discrimination cases,

the discrimination decrees apply, including the special procedure provided for in Legislative

Decree 150/2011. Therefore, the civil action against discrimination applies and not the

ordinary administrative one with the competence of ordinary civil courts .

With regard to the field of employment, the prevalence of civil action against discrimination

over labour law and labour procedural law was expressly confirmed by the Milan Court of

Appeal in its judgment of 15 April 2014.86 The Court of Appeal held that, when an action

of discrimination has been brought before a labour court, it shall apply a civil action against

discrimination rather than labour procedural law. In addition, ordinary proceedings are

available. In particular, with regard to employment, labour inspections could take place,

while no administrative or crimin al investigations are applicable for infringements of the

prohibition of non-discrimination.

84 Legislative Decree of 1 September 2011, on additional measures to the Civil Procedural Code in order to

reduce and simplify civil proceedings in accordance with Article 54 of Law No. 69 of 19 June 2009

(Disposizioni complementari al codice di procedura civile in materia di riduzione e semplificazione dei

procedimenti civili di cognizione, ai sensi dell'articolo 54 della legge 18 giugno 2009, n. 69), available at:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2011-09-01;150!vig.

85 Supreme Court, judgment of 5 December 2014, No. 25011, available at:

http://dirittocivilecontemporaneo.com/wp-content/uploads/2014/11/Cass-sez-un-25011_2014.pdf. See

section 12.2 in particular.

86 Court of Appeal of Milan, judgment of 15 April 2014, Bordonaro v. Abercrombie & Fitch Italia S.r.l., available

at: www.europeanrights.eu/public/sentenze/CdA_Milano.pdf.