Statutory schemes of social security (Directive 79/7)

• Author: Renga, Simonetta
• Pages: 66-71

66

7Statutory schemes of social security (Directive 79/7)

7.1General (legal) context

7.1.1Surveys and reports on the practical difficulties linked to statutory schemes of social

security (Directive 79/7)

There is very little research on the implementation of the EU anti-discrimination legislation

as regards statutory schemes in Italy. The lack of academic debate is a consequence first,

of the limited attention paid to the subject of social protection – despite the importance of

social protection at both the social and economic levels, there is only a small number of

studies and research – and secondly, the fact that the EU anti-discrimination legislation

has not yet been absorbed by the judicial culture.

The main issues that have been tackled by the few scholars working in the area of social

protection are: the discriminatory ground of nationality in social assistance benefits;

indirect gender and age discrimination of non-standard workers; the problem of benefits

for cohabitants and same-sex partners; gender discrimination in occupational funds; and

gender discrimination in pensionable age and early retirement. Some academic essays

address the European perspective and, in particular, deal with discrimination in social

assistance in the European legislation as well as with the case law of the CJEU in relation

to gender equality in statutory and occupational pensions. The principal problem is that

the European and domestic perspectives are rarely compared, that is to say the domestic

law is not analysed in the light of EU law.

The lack of familiarity with the EU legislation is shown by the total absence of references

to it in the little case law on discrimination in social security. Different factors are at the

root of this issue: lack of awareness of the anti-discrimination legislation among the

judiciary and lawyers; a general feeling of distrust about the efficacy of the anti-

discrimination legislation; difficulties of proof; and the absence of a policy of strategic

litigation. Another element that makes the anti-discrimination framework hostile territory

for social protection case law is the fact that Government decisions in the social security

field are mainly determined by economic constraints – judges are aware of that and avoid

decisions that can radically modify the social security budget allocation. When EU legal

rights are involved, judges tend to use general principles and instruments, such as the

principle of reasonableness, and to bypass the EU provisions on discrimination. In this

context, it is not surprising that CJEU case law that does not concern Italian domestic law

has no impact on the Italian case law on discrimination. The case law of the CJEU generally

gives rise toa theoretical interest among academics, rather than a practical one: the

impact of such decisions on the Italian system is not taken into consideration.

As regards statutory social security schemes, aspects of indirect discrimination in relation

togender are evident in the areas of part-time and temporary work and other non-

standard working patterns, where there is a massive presence of women and young

people. In particular, under the pay-based pension scheme, the amount and number of

contributions paid and continuity of payment determine the eligibility to social insurance

as well as the benefit levels; the increase in minimum insurance and contribution

requirements in Italy during the past decades is bound to have a negative impact on the

pensions of atypical workers, such as intermittent, temporary, occasional and part-time

workers. Moreover, those who have high pay fluctuation during the period of reference for

the calculation of pensionable income are disadvantaged in relation to the calculation of

the amount of pension. Again, a temporary worker will have substantial reductions of

his/her contribution period for the purpose of calculating the amount of pension and this

will naturally cause a reduction of the pension amount. Under the contribution-based

pension system, the earnings variations as well as the continuity and regularity of

employment of the claimants appear once more to be of crucial importance, as the

qualifying conditions for benefits and the pension amount are very sensitive to these