Gender equality. How are EU rules transposed into national law? Italy 2017

The structure of the national legal system for guaranteeing equal treatment in Italy is mainly based on constitutional and statutory law. Statutory law can take the form of Acts of Parliament or Governmental Decrees; governmental decrees are issued following an act of delegation sent by Parliament to the Government (a legislative decree). The Constitution ensures the fundamental rights of the person and sets limits on property rights and on private economic initiatives in relation to fundamental rights and the public interest. Civil actions are based on the fundamental rights contained in Article 2 of the Constitution (tort law, Article 2059 c.c.) in all cases of non-economic loss (pain and suffering). The principle of equality provided in Article 3 of the Constitution is generally not relied upon in civil actions although, theoretically, it could indeed be relied upon; however, reference to this principle of equality is quite often made by the Constitutional Court to verify the constitutional legitimacy of legislation. EU equality directives are normally implemented by legislative decrees. Such a Decree quite often repeats word for word the text of the Directive. The verbatim reproduction of directives in our system can be regarded as a bad practice: indeed, this does not ensure the necessary coordination with other existing provisions and does not promote knowledge of European legislation. In the field of gender equality case law plays only a marginal role, which could be both a cause and an effect of the merely formal implementation of directives. No recent and innovative case law can be recorded as regards equal treatment. There are only a few cases that have found that a dismissal on the ground of maternity was discriminatory. The majority of cases deal with maternity issues from the point of view of protection rights. Some cases also deal with the issue of sexual harassment, and particularly with the right of the victim to have non-patrimonial damages refunded. As regards local legislation, Article 117 of the Constitution provides for the boundary between the legislative powers of the State and those of the regions. The State has exclusive competence in the ‘determination of the basic standards of welfare relating to those civil and social rights that must be guaranteed in the entire national territory;’ Article 117 then states: ‘regional laws shall remove all obstacles which prevent the full equality of men and women in social, cultural and economic life, and shall promote equal access of men and women to elective office.’ The regions can thus legislate on substantive equality and gender equality.