ZIVILRECHTLICHER SCHUTZ VOR DISKRIMINIERUNG IM SPIEGEL DER EUROPÄISCHEN ENTWICKLUNG: DEUTSCHLAND UND ITALIEN IM VERGLEICH

The research examines the development of anti-discrimination law as it has been established – in European Community Law and, therefore, in the German and Italian legal systems – by virtue of the enactment of the anti-discrimination Directives of the so-called “new generation”. With effect from 2000 and on the basis of Articles 13 and 141 EC Treaty, the EC Legislator has enacted various Directives dedicated to protection against discrimination, not only specifically within the field of labour law, but also, more generally, in the field of private law. The present study predominantly focuses on two Directives and their subsequent effects in the national systems, both in Germany and in Italy: Council Directive 2000/43/CE “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin” and Council Directive 2004/113/CE “implementing the principle of equal treatment between men and women in the access to and supply of goods and services”. There has been general criticism of the idea of the applicability of the principle of non-discrimination to the private law sphere, particularly in Germany, where “death of private autonomy” and “excessive restrictions on freedom of contract” have been greatly discussed. However, such criticism has been proved wrong in the light of the analysis carried out here since the introduction of the anti-discrimination rules applicable (only and exclusively) to “goods and services that are available to the public”, aim to give everybody access to the market, regardless of personal characteristics or qualities. The above-mentioned rules are therefore directed towards the objective of “equal freedom”, representing no more than one of the “fundamental” conditions, which regulates the functioning of the so-called “Private law society”. Criticism claiming that the current model of contract law would be threatened by the enforcement of “ethical” principles, is based on the (erroneous) assumption that contract law without anti-discrimination rules would be neutral in content. Moreover, with this affirmation the critics fail to recognise that freedom of contract is neither a “natural” or pre-existing right, nor should it be able, as such, to condition and determine the law per se (by which it is, instead, defined and determined). Against the background of such theoretical reflections and after brief analysis of the anti-discriminatory principles and contents within sources of international law, the research explores both primary and secondary Community Law. This, among other things, leads to the examination of basic concepts of equality itself – from equality as “individual justice” and “group justice”, to equality meant as a “positive duty”. This analysis is useful to examine the relevant rules of private law, gaining insights in order to understand and evaluate them even further. The analysis then focuses on related constitutional roots of anti-discrimination law, found within the German Grundgesetz and the Italian Costituzione. In this context, an answer will be given to the fundamental question whether and to what extent rules existed in the national legal systems (before the enactment of the EC Directives), which were able to protect against discrimination (such as through the use of general clauses as “valves” of the system able to introduce constitutional principles and values within private relationships). Finally, the study focuses on the implementation of the two EC Directives in both the national legal systems. In this respect, Germany has taken a completely different approach to Italy. On the one hand, the German legislator has favoured the introduction of a law that is broad in scope (Allgemeines Gleichbehandlungsgesetz, which came into force in August 2006), which protects against discrimination in the private sphere not only on the grounds of race, ethnic origin and gender but also on the grounds of religion, disability, age and sexual orientation. On the other hand, the Italian legislator has implemented the contents of Directives 2000/43/CE and 2004/113/CE rather “mechanically”, by introducing various autonomous legislative decrees without taking steps to coordinate them with existing legislation. The detailed analysis of the specific rules introduced in the two national systems on the basis of the EC Directives makes it possible to evaluate and verify the validity of the discussion about the entrance of anti-discrimination in private law relations, particularly in those covered by contractual law.