Remedies and enforcement

• Author: Favilli, Chiara
• Pages: 49-56

49

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 f ollowing procedures exist for enforcing the principle of equal treatment:

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

track procedur es appl y to discrimination litigation. The relevant article is Article 70 2-bis

of the Civil Procedural Code.

Under the general fast-track p rocedure, a vi ctim of di scrimination can apply, even in

person (whereas in ordinary cases the assistance of a l awyer is compulsory), to the judge

(the ordi nary ci vil court) with jurisdiction over their pl ace of residence (an exception to

the general principle of suing in the court with ju risdiction over the place of 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 pl an is needed

after hearin g the opinion of the association which brought the compl aint. The judgment

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

decision on appeal can be chall enged 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 onl y

forum in which a final judgment may be given. It must be recalled th at pre-trial

mediation is now mandatory in anti-discrimination cases.

The civil action against discrimination prevails 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, ordina ry administrative procedure applies

when public bodies are involved. However, the Supreme Court has stated that in

discrimination cases, the discrimination decrees apply, including the special procedure

provided for in Legislative Decree 150/20 11. 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 l abour procedural law was expressly confirmed by the

Milan Court of Appeal in its judgment of 15 April 2014. The Court of Appeal held that,

when an acti on of di scrimination has been brought before a l abour court, i t shall ap ply a

civil action against di scrimination rather than lab our procedural law. In addition, ordinary

proceedings are available. In particular, with regard to employment, labour inspections

could take place, while no administrative or criminal investigations are applicable for

infringements of the prohibition of non-discrimination.

b) Barriers and other deterrents faced by litigants seeking redress

According to A rticle 28 of Legislati ve Decree 150/2011, a civil action against

discrimination can be brought before the court with jurisdiction over the victim’s place of

residence. The law is silent about jurisdiction in instances of collective discrimination and

a case is pending before t he Supreme C ourt on thi s point: the question is whether NGOs

may bring proceedings only in courts with jurisdiction for the place where they have their

registered office or i f they can choo se another court. This is particularly relevant in cases

where both a collective and an individual action are brought.