Sensitive or controversial issues

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

69

11 SENSITIVE OR CONTROVERSIAL ISSUES

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 .