Statutory schemes of social security (Directive 79/7)

AuthorRenga, Simonetta
7 Statutory schemes of social security (Directive 79/7)
7.1 General (legal) context
7.1.1 Surveys 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 fa ct 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 p roblem 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 statut ory and occupational pensions. The principal problem is that
the European and domestic perspectives are rarely compa red, 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 b y the total absence of references
to it in the little case law on discrimination in social security. Different facto rs 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 th e 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 th at can radically modify the social s ecurity budget a llocation. 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 to a theoretical interest among aca demics, rather than a practical one: the
impact of such decisions on the Italian system is not taken into consid eration.
As regards statutory social security schemes, aspects of indirect discriminat ion in relation
to gender are evident in the areas o f part-time and temporary work and other n on-
standard working pat terns, where t here is a massive presence of women and young
people. In particular, under the pay-based pension scheme, th e amount and number of
contributions paid an d 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 du ring the past decade s 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 pensionab le income are disadvantaged in relation to the cal culation of
the amount of pension. Again, a tempora ry worker will have substantial reductions of
his/her contribution period for the purp ose of calculating the amount o f pension and this
will naturally cause a reduction of the pension amount. Un der 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

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