As in many other legal systems, the absence of specific legislation did not mean, however, that the overall system did not include rules that could be used as a basis for anti-discrimination litigation. The 1948 Constitution includes a general principle of equality requiring equal treatment irrespective of – among other things – race and religion, and in general irrespective of ‘personal and social conditions’; moreover Act 300/1970, the Workers’ Act, has a provision banning discriminatory acts against workers.
While clearly forbidding any discriminatory legislation, it is a matter of legal debate whether the constitutional principle has direct effect, i.e. if it is sufficient ground for an action by an individual who has faced discrimination. This has never been clearly tested in court.
The first enactment of advanced anti-discrimination rules took place with the 1998 Immigration Decree. This law provides a good set of remedies against racial, ethnic and religious discrimination and in many respects anticipated the requirements of Directives 2000/43/EC and 2000/78/EC.
The Immigration Decree uses private law rules to forbid direct and indirect discrimination by individuals and public authorities, with definitions roughly corresponding to those of the Directives but an open-ended list of fields of application. Protection extends to discrimination on the ground of nationality.
The same decree contains special procedural rules for anti-discrimination cases in order to make them especially swift and effective. It also allows compensation of non-pecuniary losses, which in Italian law is otherwise restricted to criminal offences. (This procedure has now been revoked and replaced with the ordinary fast-track procedure; see below under ‘5 Enforcing the law’.) Not many judicial decisions based on the Immigration Decree have been reported. However, some of the decisions reported have attracted significant interest because of their application to public bodies (for instance, the quashing of a Milanese public housing regulation) or because they sanctioned discrimination on grounds other than those listed in the non-exhaustive ‘black list’.
In order to transpose Directives 2000/43/EC and 2000/78/EC into Italian law, the Government (on the basis of the lawmaking power specially delegated for this purpose by Parliament) approved two decrees in July 2003, Decree 215/2003 (transposing Directive 2000/43) and Decree 216/2003 (transposing Directive 2000/78). No significant consultation with NGOs, trade unions or employers’ organisations took place. However, the final versions of the Decrees take into account some criticisms raised by the parliamentary committees (which gave a non-binding review) on their first drafts.
The Decrees reproduce the text of each Directive. Decree 215/2003 is thus applicable within all fields mentioned in Directive 2000/43 to discrimination on the ground of race and ethnic origin, while Decree 216/2003 applies within the field of employment to discrimination based on religion and belief, sexual orientation, disability and age. Both Decrees basically aim to transplant the Directives into the legal system as they are, without attempting to coordinate between them or with other existing Italian legal rules. Some drafting mistakes were corrected by a later decree, and legislation passed in early 2008 amended some of the major discrepancies with the Directives.
A further act was passed in 2006 which extends the prohibition of direct and indirect discrimination on the ground of disability beyond the field of employment, with remedies similar to those foreseen by the Decrees transposing the Directives.
One criticism addressed (by Parliament among others) at this sort of lawmaking concerns the fact that, since it does not abolish pre-existing anti-discrimination rules nor attempt consolidation, it adds further legal regimes, creating a complex legal framework. Consolidation in a single text of all rules on equal opportunities (all grounds, including gender) has been discussed, but the Government has not yet taken action in this direction. A step towards coordination was taken in 2011 by the adoption of Article 28 of Legislative Decree 150 of 1 September 2011. This article cancelled the provisions on the special civil action on anti-discrimination provided by Article 44 of the Immigration Decree and replaced it with the general fast-track procedure provided by Article 702-bis of the Civil Procedural Code. This procedure applies expressly to all the grounds covered by the Directives, plus national origin, language and colour.
It must be recalled that Italy is party to the major international treaties and conventions against discrimination, for example the Convention on the Elimination of All Forms of Racial Discrimination, ILO Convention No. 111 on Discriminationand the Convention on the Rights of Persons with Disabilities,which have all been transposed into domestic law. It has, however, not yet ratified Protocol 12 to the European Convention on Human Rights, thus limiting the potential of the Convention as a tool for anti-discrimination litigation.