ZIVILRECHTLICHER SCHUTZ VOR DISKRIMINIERUNGIM SPIEGEL DER EUROPÄISCHEN ENTWICKLUNG: DEUTSCHLAND UND ITALIEN IM VERGLEICH
2009
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.
Keywords:
- Correction
- Source
- Cite
- Save
- Machine Reading By IdeaReader
0
References
0
Citations
NaN
KQI