Sensitive or controversial issues

AuthorFavilli, Chiara
11.1 Potential 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 operates wi thin the Department for Equal
Opportunities of the Presi dency of the Council of Ministers, is one of the reasons for
the limited application of anti-discriminati on law in Italy. Despite the fact that UNAR
has at times adopted a critical position in relation to the Government, the of fice is
clearly and completel y linked to the ex ecutive; it is only thanks to the jurisdicti onal
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 i s not
sufficient to guarantee that UNAR can perform any acti vities in an independent way.
2. It may appear that Ital ian 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 reli gion or belief’, while Article 3(5) of
Legislative Decree 216/2003 specifies only ‘churches and other public or pri vate
organisations’. Pre-existing national rules in this area appear to be more restrictive
in admitting exceptions th an the decree, which thus goes beyond the di scretion
granted to Member States, which may implement Article 4(2) only in accordance
with existing laws or practices.
3. Legislative Decree 216/20 03, on reasonable accommodat ion 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 acco mmodation is
required but without any additional burden, whil e 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
accommodation duty only if no additional financial burden or addi tional resources
are required.
Additionally, the nati onal provision risks being i neffective 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 wi th 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 Ra cial Equality Directive.
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 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 gath ering 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 .

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