Alla ricerca della dissuasività. Il difficile percorso di affermazione dei principi UE in tema di danno non patrimoniale da discriminazione = In search of deterrence. The difficult path of affirming the EU principles on non-pecuniary damage due to discrimination. WP C.S.D.L.E. “Massimo D’Antona”.IT – 264/2015

Amoriello, Lisa (2015) Alla ricerca della dissuasività. Il difficile percorso di affermazione dei principi UE in tema di danno non patrimoniale da discriminazione = In search of deterrence. The difficult path of affirming the EU principles on non-pecuniary damage due to discrimination. WP C.S.D.L.E. “Massimo D’Antona”.IT – 264/2015. [Policy Paper]

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Abstract

The Author examines the difficult affirmation of the principles of dissuasiveness and deterrence of non-pecuniary damage for the victim of employment discrimination in the Italian law system. The paper analyzes the internal transposition of the EU directives on the subject of discrimination, trying to identify the findings on which it is possible to establish an idea of the damage which is not merely compensative for the wrong suffered. Subsequently it focuses on discrimination cases of the Italian labour Courts and points, in general, the lack of compliance with the principle of the primacy of EU law and the duty of consistent interpretation attributed to national judges, on the subject of functions of the damage remedy, identifying, at the same time, some advanced decisions which are more in line with the European legislation and the ECJ's statements. The essay ends with a reflection on how recent changes in procedural legislation (with reference to the special rite estabilished by law n. 92/2012 – the so-called “Fornero Reform” - to claim for the reinstatement remedy as a consequence of null and discriminatory dismissals, according to the first paragraph of Article 18 of the Workers’ Statute) may itself frustrate the full realization of the deterrent effect of damage, limiting the power of assessment of the judge and restricting the use of particular procedural instruments introduced by the directives on discrimination.

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