Remedies and enforcement

AuthorFavilli, Chiara
Pages49-56
49
6 REMEDIES AND ENFORCEMENT
6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,
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.

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