Sensitive or controversial issues

• Author: Favilli, Chiara
• Pages: 69-69

69

11SENSITIVE OR CONTROVERSIAL ISSUES

11.1Potential breaches of the directives (if any)

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

the following:

1.The weakness of UNAR, which operateswithin the Department for Equal

Opportunities of the Presidency of the Council of Ministers, is one of the reasons for

the limited application of anti-discrimination law in Italy. Despite the fact that UNAR

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

clearly and completely linked to the executive; it is only thanks to the jurisdictional

interpretation given by the Tribunal of Rome in one 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 principle should apply to all staff, but it is not

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

2.It may appear that Italian law allows organisations that are not based on an 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 ethos of which is based on religion or belief’, while Article 3(5) of

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

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

inadmitting 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.

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

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

2000/78/ECand 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 5of 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

accommodation duty only if no additional financial burden or additional resources

are required.

Additionally, the national provision risks being ineffective if it is not supported by

specific guidelines addressed in particular at employers, in both the private and

public sectors.

4.There is still a serious problem with housing with regard to the Roma community.

The policy of settlements, and in particular the forced removals of people, including

children, could potentially amount to breaches of the Racial Equality Directive.

11.2Other issues of concern

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

-unnecessary complications due to the coexistence of different 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.