Sensitive or controversial issues

• Author: Chiara Favilli
• Pages: 65-65

65

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the nation al level

The main discrepancies between th e decrees and the directives can be considered to be

the following:

1. It may appear that Italian law allows organis ations that are not based on a religious

ethos to discriminate on the ground of religion. Directive 2000/78/EC permits an

exception to differences of treatment for ‘churches and other public or private

organisations the etho s of which is based on religion or belief’, while Article 3(5) of

Legislative Decree 216/2003 specifies only ‘churches and other public or private

organisations’. Pre-existing national rules in this area appear to be more restrictive

in admitting exceptions than the decree, which thus goes beyond the discretion

granted to Member States, which may implement Article 4(2) only in accordance with

existing laws or practices.

2. Legislative Decree 216/2003, on reasonable accommodation for people with

disabilities, which was introduced in 2013 to impl ement Article 5 of Directive

2000/78/EC and the CJEU decision of 4 July 2013, is not perfectly in line with EU law,

for two reasons. As regards public bodies, reasonable accommodation is required but

without any additional burden, while according to Article 5 of Directive 2000/78/EC,

a certain degree of burden is implicit if it is acceptable. This may lead to the

conclusion that in Italy, public bodies are bound to the reasonable acc ommodation

duty only if no additional financial burden or additional resou rces are required.

11.2 Other issues of concern

With regard to the text of the transposing decrees, the main remaining issues are:

- unnecessary complications due to the coexistence of diff erent legal texts;

- the lack of provisions on positive action;

- the lack of instructions as regards compensation amounts;

- the non-implementation of the adopted national strategies;

- insufficient data gathering on equality in order to assess properly the situation of

vulnerable groups and to choose the most suitable action to address social exclusion

and discrimination;

- selection of workers in case of collective dismissal is based on several criteria,

including age, with the serious risk of discrimination;

- discrimination cases are not registered as such by national courts;

- national provision on the duty of reasonable accommodation risks being ineffective if

it is not supported by specific guidelines addressed in particular to employers in both

the private and public sectors. The judgments delivered by the Supreme Court in

2019 on this point confirm that employers probably do not have clear knowledge o f

the content of the principle and do not know how to apply it;

- As an office belonging to the Department for Equal Opportunities of the Presidency

of the Council of Ministers, UNAR appea rs as an equality office of the Government

and not as an equality body acting in an independent manner. This may b e seen as

one of the reasons for the limited application of anti-discrimination law in Italy,

because UNAR’s activity should follow Government’s guidelines and not an

autonomous programme, aiming solely and exclusively at strengthening the

dissemination and exploitation of anti-discrimination law. Despite the fact that UNAR

has at times adopted a critical position in relation to t he Government, the office is

clearly and completely linked to the executive; it is only than ks to the interpretation

given by the Tribunal of Rome in a judgment delivered in 2017 that the Government’s

disciplinary powers in respect of UNAR’s director have been limited. One can argue

that the same interpretation shou ld apply to all staff, but this can hardly be said to

be sufficient to guarantee that UNAR can perform its activities in an independent way.