Country report, gender equality : how are EU rules transposed into national law? : Italy 2022.
Date: 2022-07-11
Institutions: Directorate-General for Justice and Consumers
Subjects: Italy, age discrimination, anti-discriminatory measure, application of EU law, equal pay, equal treatment, gender equality, maternity leave, national law, parental leave, paternity leave, pension scheme, report, sexual discrimination, sexual harassment, social security

Italy 

2022 

EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.2 Gender Equality 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Gender equality 

How are EU rules transposed into 
national law? 

Italy 

Simonetta Renga 

Reporting period 1 January 2021 – 1 January 2022 

2022  Directorate-General for Justice and Consumers

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Country report - gender equality – Italy - 2022 

CONTENTS 

1 

2 

3 

4 

5 

6 

7 

Introduction ............................................................................................... 5 
Basic structure of the national legal system ............................................ 5 
1.1 
List of main legislation transposing and implementing the directives .......... 6 
1.2 
1.3 
Sources of law ................................................................................... 7 
General legal framework ............................................................................ 9 
Constitution ....................................................................................... 9 
2.1 
Equal treatment legislation .................................................................. 9 
2.2 
Implementation of central concepts ......................................................... 11 
General (legal) context ...................................................................... 11 
3.1 
Sex/gender/transgender .................................................................... 13 
3.2 
Direct sex discrimination ................................................................... 13 
3.3 
3.4 
Indirect sex discrimination ................................................................. 15 
3.5  Multiple discrimination and intersectional discrimination ......................... 16 
Positive action .................................................................................. 18 
3.6 
Harassment and sexual harassment .................................................... 21 
3.7 
Instruction to discriminate ................................................................. 23 
3.8 
3.9 
Other forms of discrimination ............................................................. 23 
3.10  Evaluation of implementation ............................................................. 25 
3.11  Remaining issues .............................................................................. 26 
Equal pay and equal treatment at work (Article 157 of the Treaty on the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54)
 ................................................................................................................. 27 
General (legal) context ...................................................................... 27 
4.1 
Equal pay ........................................................................................ 30 
4.2 
Access to work, working conditions and dismissal .................................. 34 
4.3 
Evaluation of implementation ............................................................. 39 
4.4 
4.5 
Remaining issues .............................................................................. 40 
Pregnancy, maternity, and leave related to work-life balance for workers 
(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 
2019/1158) ............................................................................................. 43 
General (legal) context ...................................................................... 43 
5.1 
Pregnancy and maternity protection .................................................... 46 
5.2 
5.3  Maternity leave ................................................................................ 49 
Adoption leave ................................................................................. 54 
5.4 
Parental leave .................................................................................. 54 
5.5 
Paternity leave ................................................................................. 58 
5.6 
Time off for force majeure ................................................................. 60 
5.7 
Care leave ....................................................................................... 60 
5.8 
5.9 
Leave in relation to surrogacy ............................................................ 62 
5.10  Flexible working time arrangements .................................................... 62 
5.11  Evaluation of implementation ............................................................. 64 
5.12  Remaining issues .............................................................................. 66 
Occupational social security schemes (Chapter 2 of Directive 2006/54) .. 69 
General (legal) context ...................................................................... 69 
6.1 
Direct and indirect discrimination ........................................................ 70 
6.2 
6.3 
Personal scope ................................................................................. 70 
6.4  Material scope .................................................................................. 70 
Exclusions ....................................................................................... 70 
6.5 
6.6 
Laws and case law falling under the examples of sex discrimination 
mentioned in Article 9 of Directive 2006/54 .......................................... 70 
6.7 
Actuarial factors ............................................................................... 71 
6.8 
Difficulties ....................................................................................... 71 
Evaluation of implementation ............................................................. 72 
6.9 
6.10  Remaining issues .............................................................................. 72 
Statutory schemes of social security (Directive 79/7) ............................. 73 

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Country report - gender equality – Italy - 2022 

8 

9 

7.1 
7.2 

General (legal) context ...................................................................... 73 
Implementation of the principle of equal treatment for men and women in 
matters of social security ................................................................... 75 
7.3 
Personal scope ................................................................................. 77 
7.4  Material scope .................................................................................. 77 
Exclusions ....................................................................................... 78 
7.5 
Actuarial factors ............................................................................... 78 
7.6 
Difficulties ....................................................................................... 78 
7.7 
Evaluation of implementation ............................................................. 78 
7.8 
7.9 
Remaining issues .............................................................................. 79 
Self-employed workers (Directive 2010/41/EU and some relevant 
provisions of the Recast Directive) ........................................................... 80 
General (legal) context ...................................................................... 80 
8.1 
Implementation of Directive 2010/41/EU ............................................. 81 
8.2 
8.3 
Personal scope ................................................................................. 82 
8.4  Material scope .................................................................................. 82 
8.5 
Positive action .................................................................................. 83 
Social protection .............................................................................. 83 
8.6 
8.7  Maternity benefits ............................................................................. 84 
Occupational social security ............................................................... 85 
8.8 
8.9 
Prohibition of discrimination ............................................................... 86 
8.10  Evaluation of implementation ............................................................. 86 
8.11  Remaining issues .............................................................................. 86 
Goods and services (Directive 2004/113) ................................................ 88 
9.1 
General (legal) context ...................................................................... 88 
Prohibition of direct and indirect discrimination ..................................... 88 
9.2 
9.3  Material scope .................................................................................. 88 
Exceptions ....................................................................................... 89 
9.4 
Justification of differences in treatment ................................................ 89 
9.5 
Actuarial factors ............................................................................... 89 
9.6 
Interpretation of exception contained in Article 5(2) of Directive 2004/113 89 
9.7 
Positive action measures (Article 6 of Directive 2004/113) ...................... 89 
9.8 
9.9 
Specific problems related to pregnancy, maternity or parenthood ............ 89 
9.10  Evaluation of implementation ............................................................. 90 
9.11  Remaining issues .............................................................................. 90 

10  Violence against women and domestic violence in relation to the Istanbul 

Convention ............................................................................................... 91 
10.1  General (legal) context ...................................................................... 91 
10.2  Ratification of the Istanbul Convention ................................................ 94 

11  Compliance and enforcement aspects (horizontal provisions of all 

directives) ................................................................................................ 96 
11.1  General (legal) context ...................................................................... 96 
11.2  Victimisation .................................................................................... 96 
11.3  Access to courts ............................................................................... 96 
11.4  Horizontal effect of the applicable law .................................................. 97 
11.5  Burden of proof ................................................................................ 98 
11.6  Remedies and sanctions .................................................................... 98 
11.7  Equality body ................................................................................... 99 
11.8  Social partners ............................................................................... 100 
11.9  Other relevant bodies ...................................................................... 100 
11.10  Evaluation of implementation ........................................................... 100 
11.11  Remaining issues ............................................................................ 101 
12  Overall assessment ................................................................................ 103 
Bibliography ................................................................................................... 110 

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Country report - gender equality – Italy - 2022 

1 

Introduction 

1.1  Basic structure of the national legal system 

Article 37 of the Italian Constitution of 1948 states both equality at work between men 
and women and women’s right to working conditions that allow them to fulfil their essential 
family functions and grant adequate protection to the mother and the child. The ambiguity 
of this rule rests on the principle of equality being flanked by the necessity of protecting 
women as weak subjects of the labour market. The logic of protection prevailed over that 
of equality for the next 30 years. During that period, alongside instruments of protection 
necessary  to  allow  women  to  fulfil  their  family  functions  (such  as  protection  against 
dismissal on grounds of marriage or pregnancy, compulsory maternity leave, and a ban 
on heavy and unhealthy work during pregnancy and motherhood), there was an excess of 
protection that discouraged women from working.  

The influence of the EEC Directives No. 75/117 and No. 76/207 on equal pay and equal 
treatment between men and women, led to the employment legislation on women to be 
re-written  according  to  the  principle  of  equality  and  the  protection  of  women  was 
coordinated with equality. In particular, following those two directives, Law 903/1977 was 
introduced, which was the first piece of legislation on implementing the principle of non-
discrimination  between  men  and  women  as  regards  access  to  employment,  vocational 
training and promotion, and working conditions. The influence of EU directives has always 
been, therefore, absolutely crucial in the field of gender equality and non-discrimination. 
However,  Law  903/1977  mainly  addressed  direct  gender  discrimination  and,  as  such, 
implemented  a  formal  notion  of  equality.1  It  was  only  with  Law 125/1991  that  a 
substantive conception of equality was pursued: the act also introduced a wider and clearer 
notion of indirect discrimination and positive action. The concept of indirect discrimination 
opened  the  door  to  the  evaluation  of  material  obstacles  to  equality,  thus  leaving  aside 
formal equality. Positive action, provided only in favour of women, aiming to remove all 
the material obstacles that hinder the fulfilment of equal opportunities, was addressed by 
Law 125/1991, thus implementing once again a concept of substantive equality. Later on, 
Law 53/2000 provided for bi-directional (that is to say: in favour of both women and men) 
positive action geared towards the reconciliation of professional, private and family life.  

This  legislation  finds  its  roots  in  Article  3  of  the  Constitution.  Article  3,  Paragraph  1 
provides a formal rule of equality as a constitutional right, stating: 

‘All citizens are equal and have equal dignity under the law, without distinctions on 
grounds  of  sex,  race,  language,  religion,  political  opinions  and  personal  or  social 
conditions.’ 

The prevailing interpretation of this provision is that no differential treatment is allowed if 
it is grounded on the elements forbidden by Article 3. The second paragraph of Article 3 
provides the basis of the definition of substantive equality:  

‘It shall be the responsibility of the Republic to remove all obstacles of an economic 
and social nature which, by limiting the freedom and equality of citizens, hinder the 
full development of the human person and the effective participation of all workers 
in the country’s political, economic and social organisation.’  

Substantive equality is grounded on the attribution of relevance to the differences existing 
between categories of persons, which are grounded on their belonging to different genders 
or  ethnic,  racial  or  social  groups,  in  order  to  remove  all  the  adverse  consequences 
(inequalities) caused by such differences. Equal opportunities, in other words, are the final 
end of substantive equality.  

1   In this report we prefer to use the notion of gender discrimination rather than sex discrimination, as it is 

closest to the term used in our legislation. 

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Country report - gender equality – Italy - 2022 

Law  903/1977  and  Law  125/1991  were  later  merged  in  Decree  No.  198/2006,  a 
consolidation  act  called  the Code  of  Equal  Opportunities  between Men  and  Women  (the 
Equal  Opportunities  Code).  The  Equal  Opportunities  Code  gathered  (and  revised  many) 
provisions on gender discrimination and equal opportunities in all civil, political, social and 
economic  fields,  including  the  working  relationship.  The  notions  of  direct  and  indirect 
discrimination contained in the Equal Opportunities Code repeat almost word for word the 
respective concepts set out by the EC directives. These notions have also been strongly 
influenced by the European Court of Justice case law. The concept of equal opportunities 
is mainly embodied in positive action measures, as instruments of substantive equality: 
they are regulated in section IV of the third part of the Equal Opportunities Code on ‘Equal 
opportunities  in  economic  relationships’,  under  the  heading  ‘Promotion  of  equal 
opportunities’.  The  categorisation  of  the  positive  action  measures  provided  has  been 
definitely influenced by Recommendation No. 84/635/EEC. 

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. 

1.2  List of main legislation transposing and implementing the directives 

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Law 234 of 30 December 2021, Budget Act for 2022, published in OJ No. 310 of 31 
December 2021, ordinary supplement No. 49; 
Law 162 of 5 November 2021, amending the Code for Equal Opportunities, published 
in OJ No. 275 of 18 November 2021; 
Act No. 108 of 29 July 2021, on modifying and converting Decree No. 77 of 31 May 
2021, published in OJ No. 181 of 30 July 2021, o.s. No. 26; 
Law 178 of 30 December 2020, Budget Act for 2021, published in OJ No. 322 of 30 
December 2020, o.s. No. 46/L; 
Law 160 of 27 December 2019, Budget Act for 2020, published in OJ No. 304 of 30 
December 2019, o.s. No. 45/L; 
Law 145 of 30 December 2018, Budget Act for 2019, published in OJ No. 302 of 31 
December 2018, o.s. No. 62; 
Law 205 of 27 December 2017, Budget Act for 2018, published in OJ No. 302 of 29 
December 2017, o.s. No. 62; 
Law  81  of  22  May  2017,  on  the  protection  of  self-employment  and  flexible 
employment, OJ No. 135 of 13 June 2017; 
Decree No. 151 of 14 September 2015 on the simplification of bureaucracy and other 
provisions, OJ No. 221 of 23 September 2015; 
Decree No. 80 of 15 June 2015 on the protection of motherhood and fatherhood, the 
promotion of reconciliation measures and protection against gender violence, OJ No. 
144 of 24 June 2015; 
Law 65/2014 on amendments to Law 18/79 on the election of Italian members of 
the  European  Parliament,  as  regards  gender  balance  and  transitory  provisions  for 
the 2014 elections, OJ No. 95 of 24 April 2014; 
Decree No. 149/2013 on the revocation of direct public financing of parties and on 
the  regulations  of  voluntary  and  indirect  forms  of  financing,  implemented  by  Law 
13/2014, OJ No. 47 of 26 February 2014; 
Decree No. 76/2013 on urgent regulations on occupation, social cohesion, VAT and 
other financial measures, implemented by  Law 99/2013, OJ No. 150 of 22 August 
2013; 
Law 228/2012, Budgeting regulations, OJ No. 302 of 29 December 2012, Ordinary 
Supplement No. 212; 

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Country report - gender equality – Italy - 2022 

- 

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Law 215/2012 on the promotion of gender balance in local government bodies and 
on  the  promotion  of  equal  opportunities  in  the  composition  of  public  competition 
commissions in the public sector, OJ No. 288 of 11 December 2012; 
Law 92/2012 on the reform of the labour market in a perspective of growth, OJ – 
Ordinary Supplement No. 136 of 3 July 2012; 
Law 214/2011, on growth, equity and consolidation of public spending, OJ No. 284, 
Supplement No. 251 of 6 December 2011; 
Law  120/2011,  on  the  appointment  of  managing  directors  and  auditors  of  listed 
companies and state subsidiary companies, OJ No.174 of 28 July 2011; 
Decree  No.  5/2010,  implementing  Directive  2006/54/EC,  OJ No.  29  of  5  February 
2010; 
Law 101/2008, implementation in an act, with modifications of Decree No. 59/2008 
on the implementation of EU obligations and Court of Justice decisions, published in 
OJ No. 132 of 7 June 2008; 
Decree No. 196/2007, implementing Directive 2004/113/EC on the principle of equal 
treatment  between  men  and  women  in  the  access  to  and  supply  of  goods  and 
services, OJ No. 261 of 9 November 2007; 
Decree  No.  116/2007,  Regulations  of  the  Commission  for  Equal  Opportunities 
between  Men  and  Women  (following  Article  29  of  Decree  No.  223/2006),  as 
implemented by Law 248/2006, OJ No. 177 of 1 August 2007; 
Decree No. 198/2006, Code of Equal Opportunities between Men and Women under 
Article 6 of Decree No. 246/2006, OJ No. 125 of 31 May 2006 (Equal Opportunities 
Code); 
Decree  No.  145/2005,  implementing  EU  Directive  2002/73/EC  amending  Council 
Directive 76/207/EEC on the implementation of the principle of equal treatment for 
men and women as regards access to employment, vocational training, promotion 
and working conditions, OJ No. 173 of 27 July 2005; 
Article  57  of  Decree  No.  165/2001  on  work  relationships  in  the  public  sector,  OJ 
No. 106 (S.O. No. 112) of 9 May 2001; 
Decree  No.  151/2001  on  sustaining  motherhood  and  fatherhood,  OJ  No.  96  of  26 
April 2001; 
Law  53/2000,  on  sustaining  motherhood  and  fatherhood,  time  for  care  and  for 
vocational training, and coordinating hours of the public services of towns, OJ No. 60 
of 13 March 2000; 
Decree No. 645/1996, implementing EU Directive 92/85/EEC on the introduction of 
measures to encourage improvements in the safety and health at work of pregnant 
workers and workers who have recently given birth or are breastfeeding, OJ No. 299 
of 21 December 1996. 

1.3  Sources of law 

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.  Articles  of the  Constitution  are  directly  applicable.  According  to  many authors, 
they can also be invoked in horizontal relations (between private parties); however, this 
has  never  been  fully  accepted  by  the  courts  and  therefore  they  are  mainly  used  in 
Constitutional  Court  cases  to  assess  whether  the  ordinary  legislation  complies  with  the 
principles  of  equality.  Civil  actions  are  based  on  the  fundamental  rights  contained  in 
Article 2 of the Constitution (tort law, Article 2059, Civil Code) in all cases of non-economic 
loss (pain and suffering). The principle of equality provided in Article 3 of the Constitution 

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Country report - gender equality – Italy - 2022 

is generally not relied upon in civil actions although, theoretically, it could be; 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 decrees often 
repeat the text of the directive word for word. The verbatim reproduction of directives in 
our system can be regarded as bad practice: it does not ensure the necessary coordination 
with other existing provisions and does not promote knowledge of European legislation. 

According to Article 117 of the Constitution, regions can legislate on substantive equality 
and gender equality; the state, however, 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. 

There is little case law on gender equality and therefore case law plays only a marginal 
role, which could be both a cause and an effect of the merely formal implementation of 
directives.  

Equality  bodies,  ruled  by  the  Equal  Opportunities  Code  (Decree  No.  198/2006),  have 
different powers that, taken together, are aimed at the promotion, analysis, monitoring 
and  support  of  equal  treatment  of  all  persons  without  discrimination  on  the  grounds  of 
sex. The equality advisers have legal standing to: bring discrimination complaints on behalf 
of identified victims to court; bring discrimination complaints on behalf of non-identified 
victims to court; and intervene in legal cases concerning discrimination, such as amicus 
curiae. In particular, national and regional equality advisers can act directly in their own 
name in cases of collective discrimination. Local advisers can also initiate legal claims when 
delegated  to  do  so  by  an  individual  employee  or  can  intervene  in  a  process  that  was 
initiated by the latter. However equality bodies do not have quasi-judicial powers and their 
opinions are not considered a source of law.  

Authoritative scholarly interpretations are neither considered a source of law, nor play a 
role in the decisions of courts. 

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Country report - gender equality – Italy - 2022 

2 

General legal framework 

2.1  Constitution 

2.1.1  Constitutional ban on sex discrimination 

Article 3 of the Italian Constitution provides the general framework for protection against 
discrimination.  It  states:  ‘All  citizens  are  equal  and  have  equal  dignity  under  the  law, 
without  distinctions  on  grounds  of  sex,  race,  language,  religion,  political  opinions  and 
personal or social conditions.’ The second paragraph of Article 3 confirms the principle of 
substantive  equality,  according  to  which  the  state  is  called  upon  to  remove  social  and 
economic obstacles which limit the freedom and equality of citizens and prevent the full 
development of the human being and the effective participation of all the workers in the 
political, economic and social organisation of the country. Paragraph 2 of Article 3 provides 
a constitutional basis for different treatment aimed at the pursuit of equal opportunities 
and positive action. 

2.1.2  Other constitutional protection of equality between men and women 

The Constitution contains other articles pertaining to equality between men and women. 
Article 37, Paragraph 1 of the Constitution states that a female worker shall have the same 
rights and, in the case of equal work, the same remuneration as a male worker. Article 37 
also lays down certain working conditions for women, such as allowing them to fulfil their 
essential family functions and granting adequate protection to the mother and the child.  

Article 51 of the Constitution lays down the principle of equality between men and women 
as regards eligibility for public office and for elected positions. It also provides that the 
Republic shall promote equal opportunities for men and women. 

Article  117  states  that  ‘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.’ 

2.2  Equal treatment legislation 

Our country has specific equal treatment legislation. Legislative interventions during the 
last 20 years have resulted, on the whole, in an effective implementation of EU directives 
on  gender  discrimination  in  Italy  and,  sometimes,  domestic  legislation  has  gone  even 
further than EU law. 

Decree No. 198/2006, a consolidating act called the Code of Equal Opportunities between 
Men  and  Women  (the  Equal  Opportunities  Code),  contains  all  anti-discriminatory 
provisions relating to gender which were issued to implement EU directives or which were 
already in conformity therewith. It combined all the provisions on gender discrimination 
and equal opportunities in all civil, political, social and economic fields, including working 
relationships.  The  Equal  Opportunities  Code  has  been  amended  on  several  occasions, 
including  by  Decree  No. 5  of  25  January  2010,  which 
transposed  Recast 
Directive 2006/54/EC.  

Another  important  piece  of  legislation  in  this  field  is  Law  53/2000  on  sustaining 
motherhood and fatherhood, time for care and for vocational training, and coordination of 
hours in the town’s public services (and its subsequent amendments). Also important is 
Decree No. 151/2001 on the protection of motherhood and fatherhood, which includes all 
rules  on  pregnancy,  maternity,  paternity,  parental  leave  and  leave  related  to  work-life 
balance, also implementing Directives 2006/54 and 2010/18. 

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Country report - gender equality – Italy - 2022 

Law  120  of  12  July  2011  introduced  a  quota  system  for  the  appointment  of  managing 
directors and auditors of listed companies and state subsidiary companies, where each sex 
cannot be represented in a proportion lower than one third. 

Furthermore, Law 215 of 23 November 2012, Law 13/2014 and Law 65/2014 introduced 
new regulations aimed at achieving gender equality in politics and in hiring procedures in 
public administration.  

Other  grounds  of  discrimination,  such  as  politics,  religion,  race,  language  or  sex,  are 
covered by Article 15 of the Workers’ Statute. Article 2 of Decree No. 215 of 9 July 2003, 
which  implements  EU  Directive  43/2000,  provides  for  a prohibition  on  discrimination  on 
the  ground  of  racial  or  ethnic  origin.  Article  2  of  Decree  No.  216  of  9  July  2003, 
implementing  EU  Directive  78/2000,  provides  for  a  prohibition  on  discrimination  on  the 
grounds of religion or belief, disability, age or sexual orientation as regards employment 
and occupation. 

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3 

Implementation of central concepts 

3.1  General (legal) context 

3.1.1  Surveys on the definition, implementation and limits of central concepts of gender 

equality law 

Although  scholars  have  debated  the  meanings  of  concepts  of  equality  and  non-
discrimination in the past, there are no surveys or reports available on these issues.  

Scholars  regard  the  principle  of  non-discrimination  as  the  reverse  side  of  equality:  as 
equality means abstraction from differential characteristics of individuals, the principle of 
non-discrimination regards giving relevance to these differential characteristics as illegal.2 
The  extension  of  the  concept  of  discrimination  to  harassment  and  sexual  harassment, 
which are infringements of the absolute right to individual dignity, helped the evolution of 
the notion of discrimination from a relative concept, needing a comparator in order to be 
assessed,  to  becoming  an  absolute  concept,  which  can  be  defined  in  terms  of  social 
disadvantage or of infringement of fundamental social rights, different from equality.3 

As regards direct discrimination, scholars stress the bi-directional character of the notion, 
which addresses both women and men,  as well as  the irrelevance of the discriminatory 
intention, given that the notion is based on the differential impact of the treatment.4 

According to legal theories, the concept of indirect discrimination is based upon the three 
structural characteristics provided by both the EU legislation and the CJEU case law, which 
have  greatly  influenced  the  development  of  these  concepts  in  Italy.  The  three 
characteristics  are:  apparent  neutrality  of  the  criterion  under  examination;  particular 
disadvantage of one sex as compared with persons of the other sex, which according to 
some scholars does not mean existence of an effective prejudice;5 absence of objective 
justification. Indirect discrimination is seen among academics as allowing the overtaking 
of the individual dimension of equality, thus giving value to the link between the individual 
and  the  group  to  whom  she/he  belongs:  indeed,  the  comparison  test  to  detect 
discrimination is made between groups. However, some academics affirm that, in the light 
of  the  EU  legislation,  indirect  discrimination  can  also  be  assessed  by  focusing  on  the 
individual situation of disadvantage, rather than on that of the group.6 It is widespread 
opinion that indirect discrimination is deemed to imply the evaluation of material obstacles 
to equality, thus leaving aside formal equality in favour of substantive equality. 

2   Ballestrero M.V. (1994), ‘Le azioni positive fra eguaglianza e diritto diseguale’ (Positive action, equality and 
unequal legislation) in: Ballestrero M.V. & Treu T. (ed.) Legge 10 aprile 1991, n. 125, Azioni positive per la 
realizzazione della parità uomo-donna nel lavoro, Commentario sistematico, Nuove leggi civili commentate, 
p. 14. 

3   See on this issue Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The 
new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto 
antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII. 

4   See on this issue: Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The 
new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto 
antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII; Guaglianone L. (2007), ‘Le discriminazioni basate sul 
genere’ (Gender discriminations) in: Barbera M. (ed.), Il nuovo diritto antidiscriminatorio, Milano, Giuffrè 
pp. 261-265; Izzi D. (2003), ‘Discriminazioni senza comparazione? Appunti sulle direttive comunitarie di 
seconda generazione’ (Discriminations without comparator? Notes on the EU directives of second 
generation) Diritto delle relazioni industriali, p. 423. 

5   See on this issue Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The 
new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto 
antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII. 

6   See on this issue Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The 
new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto 
antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII. The author supports her findings by quoting Barnard 
C. & Hepple B. (2000), ‘Substantive equality’ Comparative Law Journal, p. 568. 

11 

 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

Limited information on the implementation of central concepts can be found in the local 
equality advisers’ reports on their activities, presented in December each year to the local 
bodies  where  they  are  set  up  and  to  the  Ministry  of  Labour.  The  findings  of  the  2017 
reports were published in July 2018.7 The bodies dealt with 3 765 requests of intervention 
against discriminatory activities and 1 942 cases out of the 3 765 requests of intervention 
were  taken  into  consideration.  The  equality  bodies,  in  particular,  dealt  with  gender 
discrimination in respect of the following grounds: access to work (10 %), reconciliation 
issues  and  working  time  (21 %),  career  advancement  (10 %),  equal  pay  (5 %), 
maternity/paternity  issues  (20 %),  mobbing  (13 %),  harassment/sexual  harassment 
(13 %). 

3.1.2  Other issues 

Case law on equality and non-discrimination is worth consideration. Case law tends to use 
the concepts as provided by legislation, in particular by the Equal Opportunities Code. The 
role of the concepts of direct and indirect discrimination provided by legislation is crucial 
for the assessment of gender discrimination.  

The  notion  of  direct  discrimination  is  often  regarded  by  case  law  as  a  relative  concept, 
which needs a comparator in order to be assessed. The bi-directional nature of the notion 
of direct discrimination, which addresses both women and men, and the irrelevance of the 
discriminatory  intention,  given  that  the  notion  is  based  on  the  different  impact  of  the 
treatment, are also stated by case law.  

With  respect  to  indirect  discrimination,  case  law  takes  into  consideration  the  apparent 
neutrality of the specific criterion, the particular disadvantage of one sex as compared with 
persons of the other sex and the absence of objective justification.  

A few decisions show the natural link between the anti-discrimination legislation and the 
principle  of  equality  by  tracing  the  roots  of  the  concepts  of  direct  and  indirect 
discrimination in Articles 3 and 37 of the Constitution.8  

The  concept  of  equal  opportunities,  as  an  application  of  the  principle  of  substantive 
equality  of  Article  3,  Paragraph  2  of  the  Constitution,  is  used  in  decisions  on  reserved 
quotas for women in the access to employment or in hiring commissions for civil service 
posts. In these cases, the concept of equal opportunities has been decisive in assessing 
the constitutional legitimacy of reserved quotas provided by legislation. The principle of 
equality  stated  by  Article  3  of  the  Constitution  is  also  often  used  by  the  Constitutional 
Court to assess the legitimacy of provisions in the light of gender equality.9 

3.1.3  General overview of national acts 

Decree  No.  198/2006  (the  Equal  Opportunities  Code),  contains  all  anti-discriminatory 
provisions  relating  to  gender  that  were  issued  to  implement  EU  directives  or  that  were 
already in conformity with them.  

Another important piece of legislation on central concepts is Law 53/2000 on sustaining 
motherhood and fatherhood, time for care and for vocational training, and coordination of 

7   Bagni Cipriani, F. (2018) Analysis of reports of local equality advisers 2017, Ministry of Labour, available at: 

http://www.lavoro.gov.it/ministro-e-ministero/Organi-garanzia-e-
osservatori/ConsiglieraNazionale/Consigliera-nazionale-di-parita/Documents/Presentazione-Dati-Rapporti-
2017-11072018.pdf. 

8   See, for all: Court of Cassation (Corte di Cassazione, sez. lav.), 24-04-2007, No. 9866; 21-09-2006, No. 

20455; Tribunal of Catania 22-11-2000; Tribunal of Genova, 30-09-1997; Tribunal of Catania, 22-11-2000; 
Pretura Bologna (magistrate’s court), 27-06-1998; Pretura Trento, 05-05-1992.  

9   Constitutional Court, cases No. 371/1989 and No. 134/1991. Contra European Court of Justice case No. 

139/95, which declares the named provisions on early retirement compatible with the EU anti-
discriminatory legislation, on the basis of Article 7(1)(a) of Directive 79/7/EEC. 

12 

 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

hours  in  the  town’s  public  services  (and  subsequent  amendments).  Also  important  is 
Decree No. 151/2001 on the protection of motherhood and fatherhood, which includes all 
rules  on  pregnancy,  maternity,  paternity,  parental  leave  and  leave  related  to  work-life 
balance, also implementing Directives 2006/54 and 2010/18. 

These provisions are also part of Labour Law. 

3.1.4  Political and societal debate and pending legislative proposals 

At present, there is no political and/or societal debate and there are no pending legislative 
proposals on the central concepts of gender equality. 

3.2  Sex/gender/transgender 

3.2.1  Definition of ‘gender’ and ‘sex’ 

The  terms  gender/sex  are  not  defined  in  our  national  legislation  and  neither  does  the 
Italian legislation on equal opportunities expressly refer to gender reassignment, although 
the latter can probably be included in the wider concept of sex discrimination and in the 
concept of ‘sexual orientation.’  

3.2.2  Protection of transgender, intersex and non-binary persons 

Article 3 of Constitution provides for the equality principle to be applied in Italy. This is a 
general rule against all kinds of discrimination. All the anti-discriminatory legislation comes 
from  this  norm.  This  legislation  has  been  enormously  strengthened thanks  to  the  EU 
directives on gender equality and anti-discrimination. Decree No. 216/2003 implementing 
Directive  78/2000/EC  expressly  included  sexual  orientation  among  the  grounds  of 
discrimination, although it did not include a specific protection for transgender, intersex 
and non-binary persons. Indeed, there are many provisions that prohibit direct and indirect 
discrimination related to sexual orientation (Article 15 of Workers Statute – Law 300/1970, 
for  example).  Furthermore,  there  is  all  the  anti-discriminatory  legislation  on  gender. 
However, the Italian legislation on equal opportunities between men and women does not 
explicitly refer to transgender, intersex and non-binary persons. Nonetheless, in the view 
of  the  author  of  this  report,  despite  the  fact  that  gender  reassignment  is  not  explicitly 
provided for by Italian legislation, it can be included under the grounds of discrimination 
of sexual orientation and gender discrimination. 

The material scope of these provisions is: employment and occupation for the ground of 
sexual orientation (Decree No. 216/2003); employment, occupation, pensions, goods and 
services, health, education, politics, economy, social, cultural, civil and any other field, for 
the ground of gender (Decree No. 198/2006, the Equal Opportunities Code). 

Finally,  it  is  worth  mentioning  that  Law  164  of  1982  allows  gender  reassignment  for 
transgender persons. 

3.2.3  Specific requirements 

No specific requirements are demanded in order to benefit from legal non-discrimination 
protection. 

3.3  Direct sex discrimination 

3.3.1  Explicit prohibition  

Direct  sex  discrimination  is  explicitly  prohibited  by  Articles  25  to  35  of  Decree 
No. 198/2006  as  regards  equal  pay  and  equal  treatment  at  work,  statutory  and 

13 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

occupational  pensions,  access  to  public  employment,  and  equal  treatment  in  a  military 
career.  Less  favourable  treatment  based  on  a  worker's  rejection  of  or  submission  to 
harassment or sexual harassment will also be considered to be discrimination. The same 
holds true for an instruction to discriminate. 

Direct discrimination is defined by Article 25 of Decree No. 198/2006. Direct discrimination 
occurs when ‘one person is treated less favourably than another is, has been or would be 
treated  in  a  comparable  situation.’  This  definition  of  direct  discrimination  is  a  literal 
reflection of the concepts defined by the Recast Directive. Recently, Act No. 162/2021 has 
changed  the  notion  of  discrimination.  As  a  result,  the  following  is  regarded  as  direct 
discrimination:  

‘any provision, criterion, practice, act, agreement or behaviour, as well as the order 
to carry out an act or behaviour, which produces a prejudicial effect by discriminating 
against candidates during the recruitment stage or workers, by reason of their sex, 
and that results in less favourable treatment than that of another worker in a similar 
situation’.  

Moreover,  the  notion  of  discrimination  now  includes  in  detail  all  changes  at  the 
organisational  level  and  in  working  conditions  and  scheduling  of  working  hours  at  the 
workplace,  which  put  or  could  put  persons  having  a  particular  protected  characteristic 
(age, care duties, pregnancy or motherhood/fatherhood, including adoption, or taking up 
the  respective  rights)  at  a  disadvantage  compared  with  others  or  hamper  their 
participation in life and business choices or in their career. 

The  role  of the  concept  of  direct  discrimination  provided  by  legislation  is  crucial  for  the 
assessment of gender discrimination. The notion of direct discrimination is regarded as a 
relative  concept,  which  needs  a  comparator  in  order  to  be  assessed.  The  symmetrical 
nature of the notion of direct discrimination, which addresses both women and men, and 
the  irrelevance  of  the  discriminatory  intention,  given  that  the  notion  is  based  on  the 
different impact of the treatment, have also been recognised by case law.10  

3.3.2  Prohibition of general discrimination 

General discrimination is not specifically prohibited in Italy. However, this prohibition can 
be  derived  from  exisisting  rules.  In  particular,  the  rules  described  above  on  direct  and 
indirect  discrimination  contain  an  implicit  prohibition  of  general  discrimination.  This  is 
demonstrated by Article 37 of the Code of Equal Opportunities: indeed, the norm states 
that National and Equality Adviser and the regional advisers can act directly in their own 
names  in  cases  of  collective  discrimination,  ‘even  where  the  employees  affected  by  the 
discrimination are not immediately and directly identifiable’, which means that the Italian 
legal  system  system  also  protects  against  discrimination  without  regard  to  a  specific 
identifiable victim.  

As regards case law, the Tribunal of Florence (15-2-2011) decided in a case of collective 
discrimination, when it ruled that: ‘The clause of the collective agreement that makes the 
granting of a company bonus subject to actual presence in service for a minimum number 
of  days  must  be  considered  illegitimate  and  discriminatory,  resulting  in  a  position  of 
unjustified  disadvantage  for  working  mothers,  both  with  respect  to  male  and  female 
colleagues  not  pregnant’.  Also  interesting  is  the  ruling  of  the  Tribunal  of  Prato  (21-11-
2007), which states:  

‘the  objective  notion  of  gender  discrimination  …,  implies  the  irrelevance  of  the 
discriminatory intent and the collective legal action of the Equality Adviser has as a 
prerequisite  not  individual  discriminatory  behaviours  on  the  basis  of  sex  to  the 

10   See Constitutional Court No. 432/2005. 

14 

 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

detriment  of  identified  subjects,  but  rather  discriminatory  facts,  agreements  or 
behaviours, leading to the disadvantage, by reason of sex, a community of people, 
even if not immediately identifiable; such collective action is admissible even when 
it is proposed at the same time as the intervention in court in support of the workers 
and may lead to the issuing of the order for the definition of the plan for the removal 
of ascertained discrimination’. 

In cases of collective discrimination, the victims can rely on the action of equality advisers. 
Indeed, equality bodies can act before the court (through an ordinary or urgent appeal). 
The  judge,  in  the  sentence  that  ascertains  discrimination  on  the  basis  of  the  appeal 
presented, in addition to providing, if requested, for compensation for damage, including 
non-pecuniary damage, orders the author of the discrimination to define a plan to remove 
the discrimination, having heard, in the case of an employer, trade unions and competent 
equality bodies. In the sentence, the judge sets the criteria, including  timescales, to be 
observed  for  the  purposes  of  defining  and  implementing  the  plan.  Moreover,  regional 
equality  advisers  and  the  National  Equality  Adviser  can  also  propose  a  conciliation 
agreement before going to court, asking the person responsible for the discrimination to 
set out a plan to remove it within 120 days. If the plan is considered to be suitable for 
removing  the  discrimination,  on  the  equality  adviser’s  request,  the  parties  sign  an 
agreement which becomes a writ of execution through a decree of the judge (Article 37, 
Decree No. 198/2006).  

3.3.3  Prohibition of pregnancy and maternity discrimination 

Less favourable treatment related to marriage, pregnancy, motherhood or fatherhood, and 
adoption, as well as relating to the respective rights emanating therefrom, is considered 
to  be  direct  gender  discrimination  (Articles  25  of  Decree  No.  198/2006).  The  provision 
complies with EU legislation. 

3.3.4  Specific difficulties 

There  are  no  specific  difficulties  in  our  country  in  applying  the  concept  of  direct  sex 
discrimination.  

3.4  Indirect sex discrimination 

3.4.1  Explicit prohibition 

Indirect  sex  discrimination  is  explicitly  prohibited  by  Articles  25  to  35  of  Decree  No. 
198/2006 as regards equal pay and equal treatment at work, statutory and occupational 
pensions, access to public employment, and equal treatment in a military career. 

Indirect discrimination is defined by Article 25 of Decree No. 198/2006. Act No. 162/2021 
has introduced some changes here, too, meaning that indirect discrimination ‘occurs when 
an apparently neutral provision, criterion, practice, act, agreement or behaviour, including 
those  of  an  organisational  nature  or  relating  to  working  hours,  puts  or  can  put  the 
candidates in the selection phase and workers of a specific sex in a position of particular 
disadvantage  compared  to  workers  of  the  other  sex,  unless  they  concern  essential 
requirements  for  the  performance  of  the  work  activity,  provided  that  the  objective  is 
legitimate and the means used to achieve it are appropriate and necessary’. In particular, 
the notion of discrimination now includes in detail all changes at the organisational level  
and in working conditions and scheduling of working hours at the workplace, which put or 
could put persons having a particular protected characteristic (age, care duties, pregnancy 
or  motherhood/fatherhood,  including  adoption,  or  taking  up  the  respective  rights)  at  a 
disadvantage  compared  with  others  or  hamper  their  participation  in  life  and  business 
choices or in their career. 

15 

 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

The concept fulfils the requirements of the Recast Directive and, as regards the justification 
clauses, the notion of indirect discrimination is stricter than EU law: in fact, neutral criteria 
which result in a disparate impact are only legitimate if they are essential requirements 
for the job. 

3.4.2  Statistical evidence 

In  Italy,  statistical  evidence  is  used  in  order  to  establish  a  presumption  of  indirect  sex 
discrimination. 

In relation to the use of quantitative/statistical data, Decree No. 198/2006 goes further 
than EU law, as Article 46 requires companies with more than 50 employees to draw up 
reports  every  two  years  on  the  situation  of  workers  (male  and  female)  as  regards 
recruitment, professional training, career opportunities, mobility between categories and 
grades,  other  mobility  aspects,  remuneration,  dismissals  and  retirement.  The  report  is 
made  available  to  the  company’s  union  representatives  and  to  the  equality  advisers. 
Smaller companies will be enabled to submit the same report on a voluntary basis. 

3.4.3  Application of the objective justification test 

With  respect  to  indirect  discrimination,  case  law  takes  into  consideration  the  apparent 
neutrality of the criterion under examination, the particular disadvantage for one sex as 
compared with persons of the other sex and the absence of an objective justification. 

The objective justification test is, therefore, correctly applied by national courts. However, 
litigation concerning gender discrimination remains scarce in our country. 

3.4.4  Specific difficulties 

There  are  no  specific  difficulties  in  our  country  in  applying  the  concept  of  indirect  sex 
discrimination. 

3.5  Multiple discrimination and intersectional discrimination11 

3.5.1  Definition and explicit prohibition 

Multiple discrimination is included in the Italian legislation in the extremely simplified form 
of  double  discrimination.  The  only  references  thereto are  in  legislative  Decree  Nos. 215 
and 216 of 2003, transposing Directives 43/2000 and 78/2000, and in the corresponding 
act  of  delegation.  In  particular,  Article  1  of  Decree  No.  215/2003  provides  that  the 
implementation of equal treatment, irrespective of race and ethnic origin, must take place 
‘also in a perspective that takes into account the different impact that the same forms of 
discrimination can have on women and men, and the existence of forms of racism with a 
cultural and religious character;’ this formula is repeated in Article 7 of the decree, where 
the tasks of the National Office against Racial Discrimination (UNAR) are defined. In this 
respect,  the  decree  fulfils  the  guideline  provided  by  Delegation  Law  39/2002,  which  in 
Article 29 requires that the implementation of Directive 43/2000 should take into account 
the existence of discrimination on the double grounds of gender and race and ethnic origin. 
A  similar  concept  of  multiple  discrimination  is  provided  by  Article  1  of  Decree 
No. 216/2003,  which  states  that  the  implementation  of  equal  treatment, irrespective  of 
religion  or  belief,  disability,  age  or  sexual  orientation,  as  regards  employment  and 
occupation must be carried out in a ‘perspective that also takes into account the different 
impact  that  the  same  forms  of  discrimination  can  have  on  women  and  men.’  Multiple 

11   See for more information Fredman, S. (2016) Intersectional discrimination in EU gender equality and non-
discrimination law, European network of legal experts in gender equality and non-discrimination, available 
at: https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-equality-and-
non-discrimination-law-pdf-731-kb. 

16 

 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

discrimination, therefore, is not properly defined and is perceived by the legislature only 
as a sum of the grounds of gender and other discriminatory factors. 

Several  grounds  of  discrimination  can  be  simultaneously  invoked  in  the  same  claim. 
However,  one  of  the  reasons  why  the  Italian  judiciary  and  legislation  fail  to  address 
multiple discrimination is the lack of an explicit provision in domestic legislation. Lawyers 
are generally prone to choose the strongest ground on which to take their case to courts 
and to leave out the grounds that are difficult to prove either singularly or in combination. 
Most of the time they do not even think about the possibility of arguing on the basis of 
more  than  one  ground.  At  present,  there  are  no  pending  legislative  proposals  on 
multiple/intersectional discrimination. 

Moreover,  the  lack  of  legislation  against  discrimination  outside  employment  and 
occupation  on  the  grounds  of  age,  disability,  religion/belief  and  sexual  orientation  is  a 
problem when these grounds are combined with existing grounds, because this prevents 
argument  on  the  grounds  in  an  intersectional  or  cumulative  way  as  is  required  in  a 
hypothesis  of  multiple  discrimination  (when  age,  disability,  religion/belief  and/or  sexual 
orientation  intersect  outside  employment).  Furthermore,  the  fact  that  the  two  anti-
discrimination  directives  provide  for  an  exhaustive  list  of  discriminatory  grounds  rather 
than for an open list of prohibited factors does not assist in the protection against multiple 
discrimination.  

At  a  more  general  level,  gender  policies  and  non-discrimination  policies  should  not  be 
separated because this does not favour the development of a coordinated action to defeat 
discrimination and specifically endangers the intersections and communication across the 
various grounds that are necessary in order to recognise the combined effect of different 
grounds of discrimination. 

On 16 October 2019, Parliament approved, four motions to tackle multiple discrimination 
on  the  grounds  of  gender  and  disability.12  The  motions  are  based  on  data  showing  the 
seriousness  and  prevalence  of  the  phenomena  and  draw  on  the  UN  Convention  on  the 
Rights of People with Disabilities, ratified by the European Union on 5th January 2011 and 
on the European Parliament resolution of 29 November 2018 on the situation of women 
with disabilities. The motions encourage the Government to tackle multiple discrimination 
on  the  grounds  of  gender  and  disability  by:  enhancing  mainstreaming  of  such 
discrimination  in  all  public  policies;  assuring  disabled  women  full  access  to  healthcare, 
including sexual healthcare, and protecting their right to self-determination in this sphere; 
promoting professional training of healthcare staff to give assistance to disabled women; 
ensuring  that  disabled  women  are  given  all  the  information  and  support  necessary  to 
report  that  they  are  victim  of  violence  or  discrimination  or  to  claim  their  rights  in  such 
cases;  ensuring  that  their  particular  disadvantageous  condition  is  fully  taken  into 
consideration by specific measures provided in the national plan against gender violence; 
promoting the participation of disabled women in the labour market, society and sports; 
including  multiple  discrimination  issues  in  all  campaigns  aimed  at  tackling  gender 
discrimination or disability discrimination; enhancing all initiatives to use EU funds aimed 
at  tackling  discrimination  of  disabled  women;  and  promoting  a  monitoring  system  to 
evaluate both the prevalence of this kind of multiple discrimination and the effectiveness 
of the measures to tackle it. Although a motion is a soft measure, the approval of these 

12   Motion n. I-00243 of 24 September 2019, as modified and finally approved on 15 October 2019, 

https://www.camera.it/leg18/410?idSeduta=0239&tipo=documenti_seduta&pag=allegato_a#si.1-
00243.mod.v1; Motion n.-00262 of 14 October 2019 as modified and finally approved on 15 October 2019, 
https://aic.camera.it/aic/scheda.html?numero=1-00262&ramo=C&leg=18; Motion n. I-00263 of 14 
October, as modified and finally approved on 15 October 2019, 
https://www.camera.it/leg18/410?idSeduta=0239&tipo=documenti_seduta&pag=allegato_a#si.1-
00262.mod.v1; Motion n. I-00264 of Motion n. I-00263 of 14 October as modified on 15 October 2019 and 
finally approved on 16 October, 
https://www.camera.it/leg18/410?idSeduta=0239&tipo=documenti_seduta&pag=allegato_a#si.1-
00264.mod.v1. 

17 

 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

documents  is  still  very  important  as  it  focuses  attention  on  an  issue  which  is  often 
overlooked in Italy.  

3.5.2  Case law and judicial recognition 

There is a particular group of cases in which gender could be recorded in combination with 
another ground of discrimination. These are cases where reaching the pensionable age or 
the  possibility  of  relying  on  early  retirement  is  used  as  a  criterion  for  redundancy.  In 
general,  a  person  can  work  after  reaching  the  pensionable  age.  In  our  system,  the 
pensionable age, and consequently the age of early retirement, was lower for women than 
it was for men, although women could choose to keep on working until the age provided 
for men (this was so until 2018, by which time the pensionable age had been equalised). 
This means that the criterion of reaching the age of retirement, irrespective of the lower 
pensionable age for women, was discriminatory both on the ground of gender and age, as 
it caused women to be dismissed at a younger age and earlier than men, despite the fact 
that women could choose to keep on working until the retirement age provided for men. 
Nevertheless,  the  case  law  that  dealt  with  this  issue,  which  was  very  limited,  was 
absolutely unaware of the hypothesis of multiple discrimination. Therefore, there are cases 
where the criterion of reaching retirement  age is regarded as discriminatory exclusively 
on grounds of age, the ground of gender being ignored (for example Tribunal of Milan, 27 
April 2005) and cases where the existence of gender discrimination is denied and the age 
ground is not taken into consideration at all (Court of Cassation, No. 9866/2007; Court of 
Cassation, No. 20455/2006; Tribunal of Genova 30 September 1997). 

Another group of cases concerns non-EU disabled residents, who do not qualify for social 
protection benefits and advantages: the grounds of discrimination are those of nationality 
and  disability.  Here,  indeed,  the  intervention  of  the  Constitutional  Court  was  crucial  in 
order  to  recognise  the  hypothesis  of  double  discrimination.  In  one  decision,  the  Court 
granted  the  mobility  allowance  to  non-EU  residents  (case  No.  306/2008):  the  Court 
recognised  the  double  grounds  of  nationality  and  disability  by  referring  to  Articles 3 
(principle  of  equality),  10  (status  of  foreign  persons),  32  (health  rights)  and  38  (social 
protection) of the Constitution. Moreover, the Constitutional Court gave non-EU disabled 
residents  the  right  to  use  public  transport  free  of  charge  on  the  basis  of  the  equality 
principle and Article 32 of the Constitution (health rights), thus recognising once more the 
two discriminatory grounds of nationality and disability (case No. 432/2005). In 1998, the 
Court had already acknowledged the relevance of the grounds of nationality and disability 
in  an  interpretative  decision  (case  No.  454),  when  it  gave  non-EU  disabled  residents 
certain  advantages  in  employment  procedures  (see  also  case  No.  324/2006).  Although 
various grounds have been recognised, this has not resulted in the combined effect of such 
grounds being acknowledged by the courts. In particular, the occurrence of more than one 
ground has not resulted in higher sanctions or awards of damages, mainly because double 
grounds were relevant in cases decided by the Constitutional Court, which is competent 
only  regarding  the  legitimacy  of  legislation  with  respect  to  the  Constitution  and  cannot 
evaluate the merits of individual cases.  

In  these  cases  no  comparison-based  tests  were  used,  therefore  disadvantage  linked  to 
nationality and disability was sufficient. 

3.6  Positive action 

3.6.1  Definition and explicit prohibition 

Positive  action  measures  are  regulated  in  Italy  by:  Article  37,  Article  42  et  seq.  and 
Article 52  et  seq.  of  the  Equal  Opportunities  Code  (Decree  No.  198/2006);  Article  9  of 
Law 53/2000; and Law 215/2012. 

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The  Equal  Opportunities  Code  provides  for  two  kinds  of  positive  action  measures  in 
employment. The first kind of positive action measure includes compulsory measures in 
respect of collective discrimination, i.e. cases of unlawful differential treatment in working 
conditions,  access  to  jobs  and  so  on,  where  a  whole  group  of  female  workers  is 
discriminated against. They can start with a conciliation attempt (Article 37 Paragraph 1), 
where the agreement on the enforcement of a plan to remove the discrimination becomes 
a  writ  of  execution  through  a  decree  of  the  court.  They  can  also  start  with  ordinary 
proceedings  (Article  37  Paragraph  3),  where  the  court  in  the  decision  ascertaining  a 
collective  discrimination,  after  having  heard  trade  union  representatives  as  well  as  the 
national or regional equality adviser, orders the employer to set up a plan to end it, fixing 
a time limit for drawing up the plan; a penal and an administrative sanction is provided in 
case of non-compliance with the court order and public contractors can be excluded from 
incentives and contracts with public administrations. In these cases the ‘victim’ is a group 
of  women  and  the  conciliation  attempt  or  the  complaint  is  initiated  by  the  national  or 
regional equality adviser. 

The second kind includes voluntary positive action under Article 42 et seq. of the Equal 
Opportunities Code. Here, positive action is defined as measures designed to encourage 
female employment and to achieve substantial equality between men and women at work. 
Positive  action  goes  beyond  formal  equality  as  it  can  include  preferential  measures  for 
workers  belonging  to  the  disadvantaged  gender,  consistent  with  Article  3  of  the 
Constitution and with the principle of substantive equality. Positive action measures are 
voluntary measures.  

In the public sector, employers are also entitled to request financing for positive action 
plans  and  must  draw  up  three-year  positive  action  plans  aimed  at  achieving  a  better 
balance between the sexes in jobs and professions where women are underrepresented 
(that is, they make up less than one third of the total) (Article 48 of the Equal Opportunities 
Code).  

In the field of entrepreneurial activity, positive action is provided as preferential measures 
meant  to  favour  access  to  bank  credit  and  public  funds  (Articles  52  to  55  of  the  Equal 
Opportunities Code).  

Article  9  of  Law  53/2000  provides  for  other  kinds  of  voluntary  positive  action,  which  is 
symmetrical, as it can address both women and men. This is the allocation of part of the 
Fund for Family Policies (the Family Fund) to businesses that enforce collective agreements 
on positive action aimed at: allowing parents to adopt a flexible working time schedule, 
through part-time, teleworking, homework, flexitime and other measures; reintroducing 
parents  to  the  workplace  after  a  period  of  leave  linked  to  reconciliation  reasons;  and 
promoting innovative services for the reconciliation of private and professional life. Positive 
action measures have to address parents with minor children; priority is given to parents 
with children under 12 (or under 15 in the case of temporary custody or adoption) and to 
parents with disabled children. Funds are accessible to private employers and some public 
bodies,  such  as  local  health  units  and  hospitals.  Moreover,  the  Family  Fund  can  also 
support the promotion of and professional advice on, the planning and the monitoring of 
the measures to be carried out through territorial networks. The support of such measures 
by the Family Fund could be useful as far as the quality of the projects is concerned, but 
could also conceal the risk of wasting resources.  

The  definitions  of  positive  action  provided  in  Italian  legislation  comply  with  the  EU 
definition in Article 157(4) TFEU.  

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Country report - gender equality – Italy - 2022 

3.6.2  Conceptual  distinctions  between  ‘equal  opportunities’  and  ‘positive  action’  in 

national law 

Equal opportunities (or equality of opportunity) are realised through substantive equality 
(Article  3,  Paragraph  2  of  the  Constitution).  Substantive  equality  ‘is  grounded  on  the 
attribution of relevance to the differences existing between categories of persons, which 
are grounded on their belonging to different gender or ethnic or race or social groups, in 
order  to  remove  all  the  adverse  consequences  (inequalities)  caused  by  the  differences 
taken into consideration’.13 The application of substantive equality leads, therefore, to the 
reinstatement  of  equal  opportunities  between  categories  of  persons,  whose  differences 
may cause adverse consequences. Equal opportunities, in other words, are the final end 
of  substantive  equality.  Substantive  equality  implies  the  elimination  of  the  adverse 
consequences  coming  from  the  differences  existing  between  groups  rather  than  of  the 
differences themselves; substantive equality, as a consequence, demands the adoption of 
measures  in  favour  of  the  disadvantaged  group,  such  as  positive  action.  Therefore,  all 
positive action in our system is regarded as a means to achieve equal opportunities.  

3.6.3  Specific difficulties  

There  are  the  following  specific  difficulties  in  relation  to  positive  action:  insufficient 
financing of the plans; few incentives to develop positive action plans; lack of a system to 
monitor positive action and its impact; and scarce knowledge of positive action as a tool. 
The  main  difficulties,  however,  are  economic.  Until  2012  we  had  data  on  the  public 
financing of positive action measures: each year, the EONC (Equal Opportunities National 
Committee) prepared a programme to fix the targets for positive action measures to be 
financed  and  to  monitor  their  implementation,  however  the  last  available  yearly 
programme dates back to 2012.14 According to the Equal Opportunities Code (Article 48), 
the public administration has a primary role in promoting positive action: indeed, public 
employers have an obligation to draw up three-year positive action plans, which can be 
sustained within budget limits. Many positive action plans are carried out in this context,15 
which  shows  that  positive  action  plans  are  implemented  where  they  are  encouraged 
through economic or legal incentives. 

3.6.4  Measures to improve the gender balance on company boards 

Law  120  of  12  July  2011  introduced  a  quota  system  for  the  appointment  of  managing 
directors and auditors of listed companies and state subsidiary companies,16 where each 
sex cannot be represented in a proportion lower than one third. This rule can be enforced 
for directors and auditors. The sanction procedure in the event of an infringement of the 
rule is very gradual and only after two warnings by the Consob (the National Securities 
and Exchange Commission), which is also charged with monitoring compliance with the 
gender  balance  principle,  can  the  penalty  of  the  dissolution  of  the  company  board  be 
applied.  The  same  principles  are  enforceable  against  state  subsidiary  companies  not 
quoted on the regulated market (Decree No. 251/2012).  

The  quota  system  provided  by  Law  120/2011  had  to  be  applied  only  for  the  first  three 
rounds  of  appointments  following  its  introduction.  As  a  consequence  about  37 %  of 
companies in 2020 and up to 84 % in 2024 would no longer have been obliged to respect 
this rule. However, this has been addressed by Article 58sexies of Decree No. 124/2019, 
according to which the quota system will apply in the six next rounds of appointments. 
Moreover, Article 1, Paragraphs 302 and 303 of Law 160/2019 states that the percentage 

13   Ballestrero M.V. (1992), ‘A proposito di eguaglianza e diritto del lavoro’ (On equality and labour law) Lavoro 

e Diritto, p. 578. 

14   http://sitiarcheologici.lavoro.gov.it/AreaLavoro/Tutela/Documents/PROGRAMMAOBIETTIVO2012.pdf. 
15 

http://presidenza.governo.it/AmministrazioneTrasparente/AltriContenuti/DatiUlteriori/DSG/PIANO_AZIONI_
POSITIVE_PCM_def.pdf, http://www.comune.bologna.it/media/files/pap_20192021.pdf. 

16   State subsidiary companies are those controlled by the state. 

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Country report - gender equality – Italy - 2022 

of posts to be obtained by the underrepresented gender, both on the board of directors 
and auditors, is increased from one third to two fifths. 

3.6.5  Positive action measures to improve the gender balance in other areas 

Law  215  of  23  November  2012  introduced  new  regulations  aimed  at  achieving  gender 
equality  in  politics  and  in  hiring  procedures  in  public  administration.  One  of  the  main 
interventions  concerns  the  statutes  of  municipalities  and  provinces,  which  must  now 
provide regulations to ensure (and not only to ‘promote’ as under previous legislation) the 
representation  of  both  sexes  in  government  bodies  and  in  other  corporate  bodies  (not 
elective  ones)  of  the  municipality  or  the  province  or  in  businesses  and  institutions 
depending thereon. Moreover, it is provided that the regulations governing the election of 
municipality and provincial councils and governing the appointment of the respective local 
government bodies must also respect the principle of gender equality and guarantee the 
representation of both sexes. In particular, as regards the election of the councils of local 
bodies,  in  the  lists  of  candidates  neither  of  the  two  sexes  can  be  represented  in  a 
proportion higher than two thirds and if the statutes provide for the possibility to express 
two preferential votes, they cannot both go to candidates of the same sex. Moreover, if 
the  list  fails  to  respect  this  proportion,  candidates  of  the  overrepresented  sex  will  be 
removed by the Electoral Commission so as to ensure the proportion mentioned above. As 
regards  the  regional  level,  all  the  regions  have  adopted  specific  provisions  to  promote 
gender  equality  in  access  to  elective  posts,  in  implementation  of  Article  117(7)  of  the 
Constitution. Act No. 20/2016 (which modifies Act No. 165/2004) has also been approved 
to increase gender equality in regional elections. This Act provides for specific measures 
that can be adopted to this end, outlining them based on the different electoral systems 
of  the  various  regional  councils.  Article  4  also  provides  that  the  media,  as  regards 
broadcasts concerning politics, must respect the principle of gender equality in access to 
public posts and elective offices provided by Article 51 of the Constitution for the promotion 
of  equal  opportunities.  Finally,  Article  5  amends  Article  57  of  Decree  No. 165/2001 
(regarding  equal  opportunities  in  public  administration)  by  providing  that  the  equality 
adviser must be informed of the appointment of each commission for hiring competitions 
in the public sector, so as to check that at least one third of the members are women. If 
women’s representation in the commission is lower, the equality adviser must compel the 
public administration to eliminate the infringement and if it persists she/he must take the 
public administration to court. 

Law 65/2014 modified previous regulations so as to ensure a better gender balance in the 
election of Italian members of the European Parliament. Under these regulations, no more 
than 50 % of the candidates on each list can be of the same sex; the first and the second 
candidates on the list cannot be of the same sex; where there are two or three preferential 
votes, they must be given to candidates of different sex, and if not, the second and the 
third  preferential  vote  must  be  cancelled.  Finally,  a  gender  balance  in  politics  is  also 
supported by Law 13/2014, which provided for a reduction in parties’ public financing if 
they do not fulfil gender-balance requirements regarding the list of candidates for political 
elections. 

3.7  Harassment and sexual harassment 

3.7.1  Definition and explicit prohibition of harassment 

The  provisions  on  harassment  in  Directives  2006/54/EC  and  2004/113/EC  have  been 
transposed in Articles 26, 50bis, 55bis, and 55ter, Paragraph 6 of the Equal Opportunities 
Code  (Decree  No.  198/2006,  as  modified  by  Decree  No.  196/2007  and  by  Decree 
No. 5/2010). 

In particular, harassment on the ground of sex has been equated to discrimination on the 
ground of gender. 

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Country report - gender equality – Italy - 2022 

Article 26 of the Equal Opportunities Code states: ‘Harassment, that is unwanted conduct 
related to the sex of a worker with the purpose or effect of violating the dignity of a person, 
and of creating an intimidating, hostile, degrading, humiliating or offensive environment, 
is  regarded  as  discrimination  on  the  ground  of  gender.’  The  conduct  can  also  be 
unintentional. 

Article 55bis of the Equal Opportunities Code provides, in relation to goods and services, 
almost the same definition of harassment on the ground of sex/sexual harassment quoted 
above. 

The relevant legislation essentially uses the same wording as the directives.  

In  2021,  Italy  was  the  first  EU  Member  State  to  ratify  ILO  Convention  No.  190  on  the 
elimination  of  violence  and  harassment  in  the  world  of  work,  by  Act  No.  4/2021.  The 
ratification of the ILO convention might be an opportunity for some further changes which 
could  contribute  to  strengthening  the  protection  against  harassment  and  sexual 
harassment. In fact, although the national notion of harassment and sexual harassment 
is  broader  than  the  international  one,  as  it  is  regardless  of  the  damage  caused  to  the 
victim, specific behaviours that are to be considered as harassment or sexual harassment 
could be specified. In particular, it would be useful to clarify that both unwanted physical 
and psychological behaviour can fall within the notion of sexual harassment. Moreover, in 
order to fully comply with Article 10(g) of the ILO convention, it would be better to equalise 
resignation with discriminatory dismissal, including all legal consequences in terms of the 
right to reinstatement and the right to remuneration and compensation for damage, given 
that the victim has no choice but to resign in order to avoid harassment. 

3.7.2  Scope of the prohibition of harassment 

The scope of the domestic prohibitions is basically the same as that of the directive. The 
only  relevant  difference  is  that  Directive  2006/54/EC  refers  to  ‘persons’  as  victims  of 
harassment,  while  Article  26  of  the  Equal  Opportunities  Code  refers  to  ‘workers’,  thus 
excluding any third parties present in the business. 

Article 55bis of the Equal Opportunities Code refers to, ‘persons’ as victims of harassment 
in relation to goods and services.  

3.7.3  Definition and explicit prohibition of sexual harassment 

Article 26 of the Equal Opportunities Code states that ‘Sexual harassment, that is any form 
of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or 
effect  of  violating  the  dignity  of  a  worker,  in  particular  when  creating  an  intimidating, 
hostile, degrading, humiliating or offensive environment’ is also regarded as discrimination 
on the ground of gender. 

Article 55bis of the Equal Opportunities Code provides, in relation to goods and services, 
the same definition of harassment on the ground of sex/sexual harassment quoted above. 

The relevant legislation essentially repeats the wording of the directives.  

3.7.4  Scope of the prohibition of sexual harassment 

The scope of the domestic prohibitions is basically the same as that of the directive. The 
only  relevant  difference  is  that  Directive  2006/54/EC  refers  to  ‘persons’  as  victims  of 
sexual harassment, while Article 26 of the Equal Opportunities Code refers to ‘workers’, 
thus excluding any third parties present in the business. 

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Country report - gender equality – Italy - 2022 

Article  55bis  of  the  Equal  Opportunities  Code  refers  to  ‘persons’  as  victims  of  sexual 
harassment in relation to goods and services.  

3.7.5  Understanding of (sexual) harassment as discrimination 

Article 2(2)(a) of Directive 2006/54/EC has been specifically transposed. Harassment and 
sexual  harassment,  therefore,  amount  to  discrimination.  Article  26  of  the  Equal 
Opportunities Code also provides that any less favourable treatment based on a worker’s 
rejection of or submission to harassment on the ground of sex or sexual harassment are 
regarded  as  discrimination.  Moreover  it  states  that:  ‘Acts,  pacts  or  provisions  taken  in 
relation to the employment relationship towards workers who are victims of harassment 
are null and void if adopted as a consequence of the worker’s rejection of or submission 
to harassment on the ground of sex or sexual harassment’ and that ‘Any adverse treatment 
by  the  employer  as  a  reaction  to  a  complaint  within  the  undertaking  or  to  any  legal 
proceedings  aimed  at  enforcing  compliance  with  the  principle  of  equal  treatment  is 
regarded as discrimination on the ground of gender.’ 

Article 55ter, Paragraph 6, provides, as regards access to goods and services, that ‘The 
refusal  of  harassment  or  sexual  harassment  by  a  person  cannot  be  the  reason  for  a 
decision that is relevant for that person.’  

Moreover, Article 26 of Directive 2006/54/EC has been transposed in Article 50bis of the 
Equal  Opportunities  Code,  which  states:  ‘Collective  agreements  can  provide  for  specific 
measures, such as codes of conduct, guidelines and good practices, in order to prevent all 
forms of discrimination on grounds of sex, in particular harassment and sexual harassment 
in  the  workplace,  in  access  to  employment,  vocational  training  and  promotion.’  In  the 
national implementation, the emphasis in the rule has been moved from the employers’ 
responsibility, as provided by the directive, to that of collective bargaining. Furthermore, 
in Italy the employer does not take measures to prevent harassment on their own, as such 
actions are always left to collective bargaining. 

3.7.6  Specific difficulties  

There  are  no  specific  difficulties  in  our  country  in  applying  the  prohibition  of  (sexual) 
harassment. 

3.8  Instruction to discriminate 

3.8.1  Explicit prohibition 

An instruction to discriminate against persons on the ground of sex is explicitly prohibited 
in national legislation by Article 25, Paragraph 1, of the Equal Opportunities Code (Decree 
No. 198/2006) as is regarded as discrimination. 

3.8.2  Specific difficulties 

There are no specific difficulties in relation to the concept of instructions to discriminate. 

3.9  Other forms of discrimination 

There are no other forms of discrimination prohibited in national law. In particular, there 
is no specific legal instrument on algorithmic discrimination. There is, however, some case 
law on algorithmic discrimination. More specifically, almost all the case law is in the area 
of  public  administration.  The  case  law  originates  from  the  adoption  in  schools  of  an 
extraordinary  hiring  plan,  which  entrusted  transfers  and  assignments  to  an  algorithm. 
Some of the teachers involved decided to appeal before the court as they believed that 
they had been discriminated against by the algorithm used. The court of first instance, the 

23 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

Administrative Tribunal (TAR) of Lazio,17 excluded the possibility of using IT algorithms for 
making automated decisions for the exercise of administrative, discretionary or restricted 
activities:  this  on  the  assumption  that  the  regulation  of  the  administrative  procedure 
(Law 241/1990) actually entails rules and constraints incompatible with a full automation 
of  these  processes,  such  as  the  obligation  to  identify  a  person  responsible  for  the 
procedure,  the  citizen’s  right  to  participate  and  the  obligation  to  justify  the  measure. 
However, the Court of Appeal, the Consiglio di Stato (which is the supreme administrative 
court), legitimised automated administrative procedures in the discretionary activity of the 
Public Administration and indicated its criteria and limits in detail, opening up a previously 
untinkable  scenario:18  that  of  the  public  authority  being  responsible  for  the  algorithm 
corresponding to the principle of legality. The rules applying to the use of the algorithms 
outlined  by  Consiglio  di  Stato  are:  1.  the  recognition  of  the  existence  of  automated 
decision-making processes, including for the purposes of Regulation 2006/679 (Articles 5, 
13, 14 and 15), and the possibility of receiving ‘significant information on the logic used’; 
2.  the  non-exclusivity  of  the  algorithmic  decision,  for  which  there  must  be  human 
intervention  capable  of  controlling  and  validating  the  decision,  a  model  known  as  HITL 
(human in the loop) for which the machine must interact with a human being (on the basis 
of Article 22 GDPR); 3. the imputability of the decision to the body holding power, which 
must  be  able  to  carry  out  the  necessary  verification  of  the  logic  and  legitimacy  of  the 
choice and of the results entrusted to the algorithm; 4. algorithmic non-discrimination, so 
the mathematical procedures underlying the software must allow data to be corrected in 
order not to create discrimination (on the basis of Recital 71 of the GDPR).19 As regards 
the knowledge of the mechanisms of the algorithm, this, according to the judges, must be 
guaranteed in all aspects: from its authors to the procedure used for its development, to 
the decision mechanism, including the priorities assigned in the evaluation and decision-
making procedure and the data selected as relevant. This is to be able to verify that the 
criteria, conditions and results of the robotic procedure comply with the prescriptions and 
purposes established by law or by the administrators of this procedure. In relation to the 
subjects involved, there is also the problem of managing the related data. Indeed, another 
decision of the Consiglio di Stato (No. 30/2020), is worth mentioning, as it affirms that: 
‘the owner of the rights to the source code of a program is “co-interested” in the procedure 
for  requesting  access  to  the  algorithm,  inasmuch  as  the  acceptance  of  the  request  for 
access  would  prejudice  his  own  legal  position.  In  fact,  the  holder  of  personal  data  or 
commercial or technical secrets likely to be disclosed by access to the files has an interest 
equal to and contrary to that of those who demand the disclosure of the algorithm.’20  

Finally,  on  31  December  2020,  the  Tribunal  of  Bologna  determined  that  the  ‘Frank’ 
algorithm  used  by  Deliveroo,  one  of  the  main  multinational  food  delivery  companies,  is 
discriminatory. The judge affirmed that:  ‘The company’s organisational model based on 
digital reputation favours the rider who makes himself completely available to guarantee 
the booking slots and, vice versa, penalises, by slowly ousting him from the production 
cycle, the cyclist who does not ensure the same availability for health reasons, assistance 
to family members or for joining trade union strike initiatives.’21 The Tribunal held that the 
evaluation model adopted by the food delivery platform stemmed from a ‘conscious choice’ 
of the company not to consider the reasons for the failure to ‘log in’ to the platform. It is 

17   TAR Lazio, decisions No. 10964/2019, No. 9924/2018 and No. 6606/2019. 
18   Consiglio di Stato, decisions: No. 881/2020; No. 8472, 8473,8474/2019; No. 2936/2019, No. 2270/2019. 
19   See on these issues: http://quotidianoentilocali.ilsole24ore.com/print/ACTDhdLB/0; 

https://www.altalex.com/documents/news/2020/01/20/consiglio-di-stato-apre-alla-pa-robot; 
https://www.agendadigitale.eu/sicurezza/algoritmi-per-le-decisioni-della-pa-quali-principi-seguire-le-
sentenze/; https://www.altalex.com/documents/news/2020/01/20/algoritmi-in-ambito-amministrativo-il-
consiglio-di-stato-delinea-i-limiti. 

20   Consiglio di Stato, decision No. 30/2020. See also Brevetti News (2020) ‘Il titolare dei diritti su un 
alogritmo puo opporsi all accesso agli atti’ (Algorithm copyright owners can object to public access 
requests), 11 March 2020, https://brevettinews.it/internet-domini/titolare-dei-diritti-algoritmo-puo-opporsi-
allaccesso-agli-atti/. 

21   Tribunal of Bologna, 31-12-2020, see: ‘Fassina, L. (2021) ‘L’algoritmo Franck, cieco ma non troppo’ (The 

‘Frank’ algorithm, blind, but not too blind), in Lavoro Diritti Europa, 14 January 2021, 
https://www.lavorodirittieuropa.it/dottrina/lavori-atipici/626-l-algoritmo-franck-cieco-ma-non-troppo. 

24 

 
 
 
Country report - gender equality – Italy - 2022 

precisely  the  blindness  of  the  algorithm,  insensitive  to  the  various  reasons  that  induce 
workers to abstain, which makes it discriminatory.22 

3.10 Evaluation of implementation 

Several legislative interventions in the last 20 years have created, on the whole, a good 
level of implementation of EU directives. Sometimes domestic legislation has gone further 
than EU law in the implementation of central concepts.  

As regards the justification clauses, the notion of indirect discrimination, for example, is 
stricter than EU law: neutral criteria which result in a disparate impact are only legitimate 
if  they  are  essential  requirements  for  the  job.  Furthermore,  in  relation  to  the  use  of 
quantitative/statistical data, Decree No. 198/2006 goes further than EU law, as Article 46 
requires companies with more than 50 employees to draw up reports every two years on 
the situation of workers (male and female) as regards recruitment, professional training, 
career  opportunities,  mobility  between  categories  and  grades,  other  mobility  aspects, 
remuneration, dismissals and retirement. The report is made available to the company’s 
union representatives and to the equality advisers. Smaller companies will be enabled to 
submit the same report on a voluntary basis. 

The  concept  of  direct  discrimination  is  taken  directly  from  the  definitions  in  the  Recast 
Directive. 

The  concept  of  positive  action  adopted  in  Italy  is  tuned  with  that  provided  by  the  EU 
legislation.  Moreover,  the  Italian  legislation  went  further  than  the  EU  directives,  as  it 
provides for a structured system with different types of measures. Indeed, in relation to 
positive action, the difficulties are mainly economic – that is, limited financing of the plans 
and few incentives to develop positive action plans. Furthermore, we also lack a system 
to monitor positive action measures and their impact. 

The legislation on sexual harassment is also harmonised with EU legislation. In particular, 
Article  26  of  Directive  2006/54/EC  has  been  transposed  in  Article  50bis  of  the  Equal 
Opportunities  Code.  In  the  national  implementation  the  emphasis  in  the  rule  has  been 
moved from the employers’ responsibility, as provided by the directive, to that of collective 
bargaining. In Italy the employer does not take measures to prevent harassment on their 
own as such action is always left to collective bargaining. 

An  important  gap  in  our  legislation,  on  the  other  hand,  is  the  absence  of  a  specific 
protection for transgender, intersex and non-binary persons. Nonetheless, in the view of 
the  author  of  this  report,  gender  reassignment,  despite  the  fact  that  it  is  not  explicitly 
provided by our legislation, can be included under the grounds of discrimination of sexual 
orientation and gender discrimination. 

Another  gap  is  the  lack  of  an  explicit  provision  in  domestic  legislation  on  multiple 
discrimination. Moreover, the lack of legislation against discrimination outside employment 
and occupation on the grounds of age, disability, religion/belief and sexual orientation is 
a problem when these grounds are combined with existing grounds, because this prevents 
argument  on  the  grounds  in  an  intersectional  or  cumulative  way  as  is  required  by  the 
hypothesis on multiple discrimination (when age, disability, religion/belief and/or sexual 
orientation intersect outside employment).  

Finally, there is a lack of a specific legal instrument on algorithmic discrimination. 

22   Tribunal of Bologna, 31-12-2020, in https://www.lavorodirittieuropa.it/dottrina/lavori-atipici/626-l-

algoritmo-franck-cieco-ma-non-troppo. 

25 

 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

3.11 Remaining issues 

There are no remaining issues. 

26 

 
 
 
Country report - gender equality – Italy - 2022 

4 

Equal  pay  and  equal  treatment  at  work  (Article  157  of  the  Treaty  on  the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54) 

4.1  General (legal) context 

4.1.1  Surveys on the gender pay gap and the difficulties of realising to equal pay 

In 2018, a survey on the differences in pay was released by ISTAT (the National Institute 
for  Statistics),  on  data  from  2014-2016.23  The  report  shows  that  women’s  gross  pay  is 
oriented towards low levels: in 2016, 59 % of women earned an hourly pay lower than the 
national average (as opposed to 44 % of men). In 2016, only 17.8 % of women earned 
over EUR 15 per hour (against 26.2 % of men), while 11.5 % of women earned less than 
EUR 8 per hour (against 8.9 % of men). In the new contracts stipulated in 2016, hourly 
pay tends to be lower for men and women (-18.4 %) compared to the past; men’s hourly 
pay has decreased more than that of women (-21.5 % against -14.6 % for women). 

Surveys  led  by  Valore  D,  an  enterprise  association  (166  enterprises  representing  1.5 
million employees), show the following figures: the gender pay gap is 17.9 %; one year 
after graduation, women earn 17.3 % less than men in the same job positions; women in 
managerial  positions  earn  15 %  less  than  men;  women  in  administrative  boards  earn 
69.8 % less than men; and women’s average pensions are 28.6 % less than men’s.24 In 
2017, Valore D prepared a manifesto for employers on the issue of sustainability, which is 
inspired  by  the  GRI  (Global  Reporting  Initiative)  indicators  for  social  budgets.25  The 
manifesto aims to promote: a growing attention to women in access to jobs; flexibility at 
work  in  order  to  improve  reconciliation  between  work  and  private  life  for  women; 
assistance to women during maternity in order to make smoother the period of absence 
from work and the return to work for both the women and the firm; incentives for men to 
take  an  active  part in  their  role  as  fathers  and  to take  advantage  of  the  social benefits 
provided  for  that  purpose;  increasing  the  quota  of  women  in  high  level  job  positions; 
instruments  to  monitor  the  presence  of  women  in  the  labour  force  of  the  firm;  and 
professional training for management on gender diversity.26 

In 2018, Job Pricing (a labour market research body) issued a report on the gender pay 
gap.27 According to its data, the pay gap between men and women is 10.4 %, although it 
has  decreased  since  2016.  The  percentage  of  women  in  high  responsibility  jobs  is 
increasing but very slowly: from 2007 to 2017, the number of women managers increased 
by 26 % to 31 %. In 79 % of the cases analysed by Job Pricing (350 000 private sector 
employees) men earn more than women in the same job positions. 

Eurostat 2016 records a gender pay gap in Italy of 5.3 % (the average gender pay gap in 
the  EU  is  16.2 %).  Eurostat  2014  shows  that  the  gender  overall  earnings  gap  in  Italy 
stands  at  43.7 %  (the  average  gender  overall  earnings  gap  in  the  EU  is  39.6 %).  The 
gender  overall  earnings  gap  is  the  difference  between  the  average  annual  earnings  of 
women  and  men.  It  takes  into  account  three  types  of  disadvantages  that  women  face: 
lower  hourly  earnings;  working  fewer  hours  in  paid  jobs;  lower  employment  rates  (for 
example when interrupting a career to take care of children or relatives).28 According to 
Eurostat,  the  main  factors  of  the  gender  pay  gap  are:  management  and  supervisory 
positions are overwhelmingly held by men; women take charge of important unpaid tasks, 
such as household work and caring for children or relatives on a far larger scale than men 
do; women tend to spend periods out of the labour market more often than men; in some 

23   https://www.istat.it/it/files//2018/12/Report-Differenziali-retributivi.pdf. 
24   https://nopaygap.valored.it/#service-1-1. 
25   https://valored.it/wp-content/uploads/2018/05/Manifesto_Valore_D-2.pdf. 
26   https://valored.it/wp-content/uploads/2018/05/Manifesto_Valore_D-2.pdf. 
27   https://winningwomeninstitute.org/wp-content/uploads/2018/09/Gender_Gap_Report_2018.pdf. 
28 

https://ec.europa.eu/info/sites/info/files/aid_development_cooperation_fundamental_rights/equalpayday_f
actsheets_2018_country_files_italy_en.pdf. 

27 

 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

sectors  and  occupations,  women  tend  to  be  overrepresented,  while  in  others  men  are 
overrepresented; and pay discrimination.29  

4.1.2  Surveys on the difficulties of realising equal treatment at work 

There are not many report/surveys on difficulties in realising equal treatment at work. 

A  research  project  led  by  Tor  Vergata  University  in  2014  for  the  FEMM  Committee  for 
Women’s  Rights  and  Gender  Equality  at  the  European  Parliament  found  that  the  main 
difficulties  in  achieving  gender  equality  are  linked  to  lack  of  services  and  financing  for 
helping women in caring responsibilities. According to this research, the low percentage 
of women of working age in employment is also due to the crisis in the service sector.30 

Another  survey  on  these  issues  was  conducted  in  2017  by  the  European  Institute  for 
gender equality.31 The Gender Equality Index 2017 examined the progress and challenges 
in achieving gender equality across the European Union from 2005 to 2015. Using a scale 
from 1 (full inequality) to 100 (full equality), it measures the differences between women 
and men in key areas of the EU policy framework (work, pay, knowledge, time, power and 
health).  In  the  Gender  Equality  Index  2017,  Italy  achieved  a  score  of  62.1  out  of  100, 
which is an increase of 12.9 points. This score is less than the EU-28 average of 66.2, but 
Italy has made the most progress out of all EU Member States: Italy improved its GEI rank 
by 12 positions, to reach 14th place. The situation in relation to pay has improved, but the 
distribution of economic resources between women and men became more unequal. There 
is some progress in the area of work, with the duration of women’s working lives catching 
up with men’s. However, progress remains slow due to persisting inequalities in women 
and men’s participation in the labour market and a gender-segregated workforce. Along 
with 11 other Member States, Italy’s score in the respect of time decreased, pointing to 
persisting inequalities in the division of household tasks between women and men. 

According to the Global Gender Gap Report 2018 published by the World Economic Forum, 
Italy is only 70th in the global index measuring the gender gap in broader terms. These 
statistics include factors such as economic participation and opportunity (where Italy ranks 
118th),  educational  attainment  (61st),  health  and  survival  (116th)  and  political 
empowerment (38th).32 

4.1.3  Other issues 

In  Italy,  the  equal  pay  principle  and  gender  equality  at  work  have  a  low  profile  on  the 
policy agenda. Therefore we have problems of awareness and of political priorities.  

Broadly  speaking,  even  the  trade  unions  have  never  shown  a  strong  commitment  to 
reducing the gender pay gap and improving gender equality at work. A serious problem is 
that the percentage of women union representatives is also low, especially at high levels, 
as  a  result  of  job  segregation.  Female  union  representatives,  including  those  who 
specifically deal with equality matters, do not take part in collective bargaining.  

The current trend towards a more decentralised and individualised system of wage setting 
makes the situation even more worrying. That is why it is important to enhance policies 
directed at the dissemination of information among those engaged in wage bargaining to 
raise awareness of the extent and seriousness of the problem.  

29 

https://ec.europa.eu/info/sites/info/files/aid_development_cooperation_fundamental_rights/equalpayday_f
actsheets_2018_country_files_italy_en.pdf. 

30   http://www.europarl.europa.eu/RegData/etudes/note/join/2014/493052/IPOL-

FEMM_NT%282014%29493052_IT.pdf. 

31   https://eige.europa.eu/publications/gender-equality-index-2017-italy.  
32   http://www3.weforum.org/docs/WEF_GGGR_2018.pdf. 

28 

 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

Furthermore,  it  might  be  not  easy  to  detect  the  gender  pay  gap,  which  can  hide  in  an 
apparently neutral of definition of wages (and be a form of indirect discrimination) stated 
by collective agreements or in additional wages bargained at local or enterprise level and 
in  personal  bonuses;  most  of  the  time,  such  criteria  can  easily  be  explained  by  the 
employer  as  objective,  necessary  and  proportionate  criteria,  which  are  essential 
requirements of the job. Job classification is required by legislation to be gender neutral, 
but  no  formal  job  evaluation  and  job  analysis  systems  are  available  in  Italy’s  legal  and 
industrial  relationships  systems.  Moreover,  local  and  enterprise  contracts  are  not  easily 
available  and  seldom  published  either  on  the  websites  and  in  paper  form.  Collective 
agreements and job evaluation schemes are not normally monitored. 

4.1.4  Political and societal debate and pending legislative proposals 

In our country, the equal pay principle and gender equality at work have only a low profile 
on the policy agenda. Therefore there are problems with awareness and political priorities.  

The  media  has  given  broad  space  to  the  problem  of  the  gender  pay  gap.  The  main 
arguments,  at  present,  are  those  connected  with  the  latest  Eurostat,  World  Economic 
Forum  and OECD (Organisation  for Economic Co-operation  and  Development)  data.  For 
example, it is highlighted that Italy's pay gap is a little over 5 %, which is lower than any 
other EU country except one (Eurostat 2016 data). Nonetheless, it is also emphasised that, 
according  to  the  OECD,  Italy  has  some  of  the  fewest  women  in  the  workforce  of  any 
developed  economy,  (that  is,  fewer  than  half  of  working-age  Italian  women  are  in 
employment); this means that those who do work are more likely to be better educated 
and in higher-paying jobs. Moreover, around 62 % of Italian women’s work each day is 
unpaid, according  to  the  World  Economic  Forum’s  latest  report  on  the  global  gender 
gap, compared to 30 % for Italian men. Women in Italy work longer than men on average 
– 512 minutes per day compared to 453 minutes – yet are more likely to be unemployed 
or  work  part-time.  Finally,  ISTAT  data  shows  that  women  made  up  a  measly  16 %  on 
decision-making  bodies  in  2017  and  that  just  under  34 %  of  board  members  on  listed 
companies were female, after Italy introduced a quota that requires boards to include at 
least 33 % women.33 

Recently,  the  president  of  Equality  Web  (a  member  of  ASviS,  the  Italian  Alliance  for 
Sustainable  Development,  which  aims  at  promoting  the  Italian  implementation  of  ONU 
objectives for sustainable development) stated that, after a period of growth, since 2016 
there  has  been  a  trend  of  decreasing  gender  equality  in  Italy.  Equality  Web  also 
highlighted:  the  low  occupational  rate  of  women,  which  among  women  of  working  age 
(20-64 years)  is  equal  to  51 %  (as  opposed  to  65 %  in  the  EU);  the  fact  that  30 %  of 
women  stop  working  when  they  become  mothers;  and  the  fact  that  although  Italy  has 
good laws on gender equality, they are not correctly implemented. 

As regards pending legislative proposals, a bill on salary transparency was presented to 
the  House  of  Representatives  on  31  March  2015.  The  bill  provided  for  a  Government 
delegation to set the rules to guarantee that wage composition and structure is transparent 
and publicised, following Recommendation of 7 March 2014, 2014/124/EU. However, the 
bill  is  currently  suspended.  In  2016,  another  bill  was  proposed  that  would  exclude 
employers  who  infringe  pay  equality  legislation  from  public  contracts;  this  bill  is  also 
currently suspended.34 

33   See https://www.thelocal.it/20180308/statistics-women-in-italy-womens-rights-gender-gap-equality and 

https://www.thelocal.it/20171103/italy-gender-gap-worse. 

34   http://documenti.camera.it/_dati/leg17/lavori/schedela/apriTelecomando_wai.asp?codice=17PDL0041480. 

29 

 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

4.2  Equal pay 

4.2.1  Implementation in national law 

The principle of equal pay for equal work or work of equal value is implemented in national 
legislation. Legislation regarding equal pay applies to all employees in the private as well 
as in the public sector. Article 37 of the Constitution states that ‘a working woman shall 
have the same rights and, for equal work, the same remuneration as a male worker.’ 

The  latter  constitutional  principle  was  reworded  and  clarified  by  Article  28  of  the  Equal 
Opportunities Code (Decree No. 198/2006), which states: ‘For the same work or for work 
to  which  equal  value  is  attributed,  direct  and  indirect  discrimination  with  regard  to  all 
aspects and conditions of remuneration are forbidden.’ 

4.2.2  Definition in national law 

The concept of pay is not defined by the law, but has widely been construed by the Italian 
courts, on the basis of collective agreements, as including any economic benefit in cash or 
in kind directly and indirectly paid on the ground of the employment relationship. Therefore 
it fully complies with the definition of Article 157(2) TFEU. 

The Tribunal of Venice of 2 May 2005 and the Tribunal of Padova of 26 October 2007,35 
stated  that,  consistent  with  Article  37  of  the  Constitution,  as  regards  the  pay  incentive 
provided by sectorial collective agreements, the period of compulsory maternity leave is 
to be calculated solely on the criterion of presence, unless any bonus pay is linked by the 
collective agreement itself to a specific project aimed at boosting productivity or to reward 
the strenuous nature of specific work.  

The Turin Court of Appeal of 10 January 2018 deemed a clause of a collective agreement 
at  the  enterprise  level  to  be  discriminatory  as  it  infringed  Articles  3  and  37  of  the 
Constitution, Article 25, Paragraph 2bis of Decree No. 198/2006 and Article 3 of Decree 
No. 151/2001. The clause provided ‘real presence at work’ as a condition to be eligible to 
receive additional remuneration as an incentive, and did not regard family-related leave 
including compulsory maternity leave, parental leave and leave for illness as working time. 
Although the criterion is formally neutral, it results in indirect pay-discrimination since a 
higher  percentage  of  female  workers  than  male  workers  take  family-related  leave. 
Moreover, the company in this case had not provided a permissible justification regarding 
the requirement of ‘real presence at work’. The employer was ordered to: (1) cease the 
discrimination  by  regarding  such  leave  as  actual  work  with  the  aim  of  providing 
remuneration  as  an  incentive,  (2)  to  pay  the  additional  remuneration  incentive  to  the 
claimants, (3) and to enhance a plan to remove the discrimination where the change of 
the  criteria  mentioned  above  had  to  be  included  in  future  collective  bargaining  at  the 
enterprise  level.  The  latter  was  suggested  by  the  intervention  of  the  regional  equality 
adviser, as it was a case of collective discrimination.  

This judgment is important because previous cases mainly concerned the negative effects 
of  parental  leave  on  wage  progression.  It  actually  relates  to  both  direct  and  indirect 
discrimination,  as  the  exclusion  of  the  compulsory  maternity  leave  involves  differential 
treatment,  which  is  directly  grounded  on  gender,  although  the  reasoning  of  the  Court 
concerns mainly indirect discrimination.36 In particular, the enforcement and effectiveness 
of  the  partial  reversal  of  the  burden  of  proof  is  evident  in  this  judgment.  The  claimant 
stated that the clause of the collective agreement was discriminatory by showing data on 

35   Published on the official website of the national equality adviser respectively at: 
http://consiglieranazionale.lavoro.gov.it/FileCaricati/file%2035.pdf and at: 
http://consiglieranazionale.lavoro.gov.it/FileCaricati/file%2048.pdf. 

36   See on this issue: CJEU, judgment of 30 April 1998, Caisse nationale d'assurance vieillesse des travailleurs 

salariés v. Thibault, C-136/95, ECLI:EU:C:1998:178. 

30 

 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

the  proportionally  disadvantageous  effect  of  the  criteria,  which  excluded  maternity  and 
parental  leave.  The  company  tried  to  justify  the  criterion  of  real  presence  at  work  by 
referring to the link between the productivity objectives and the concrete and profitable 
work performed by employees. Nevertheless, the judge rejected this justification as the 
collective  agreement  included  similar  leave/time  off  (such  as  leave  to  assist  disabled 
persons, which is more equally used by workers of both sexes) among days to be reckoned 
for this purpose, meaning the link is not proven. The Court of Appeal also underlined that 
discrimination is not excluded by the fact that it rises from the enforcement of a collective 
agreement,  because  the  employer  (and  also  trade  unions)  must  aim  towards  an 
organisation of employment that tends to mitigate or remove unequal treatment between 
male  and  female  workers.  The  ‘essential  job  requirements’  element  of  the  objective 
justification was not addressed. 

4.2.3  Explicit implementation of Article 4 of Recast Directive 2006/54 

Article 4 of Recast Directive 2006/54 is explicitly implemented by Article 28 of the Equal 
Opportunities Code (Decree No. 198/2006), which states that occupational classification 
systems applied for the purpose of determining remuneration shall adopt common criteria 
for men and women and be drawn up so as to eliminate any discrimination. 

4.2.4  Related case law 

The Tribunal of Aosta of 13 April 2016 ascertained gender discrimination in pay where a 
female manager, in the head office of the accounts department of the local casino, had 
been  paid  about  EUR 92 000  a  year  whereas  her  male  colleagues  had  been  paid  about 
EUR 140 000 a year on average and some other male employees of a lower level earned 
a higher remuneration than she did. This case has to be recorded as gender discrimination 
in pay, which is taken to court very rarely in Italy. Moreover the judgment shows a rigorous 
interpretation of Article 28 of Decree No 198/2006, which provides the principle of equal 
pay for equal work. In fact it states that the intention to discriminate as well as the possible 
fairness  of  the  remuneration  considering  the  job  and  the  minimum  wages  provided  by 
collective agreements are useless: the discrimination is proved by the mere fact that the 
female  worker  received  a  lower  wage  compared  to  male  colleagues  while  she,  as  a 
manager,  had  higher  responsibilities  and  a  weaker  protection  against  dismissal.  The 
judgment awarded the worker damages of about 41 % of her remuneration, considering 
that a fair remuneration could amount to EUR 130 000 a year (that was a little higher than 
the one of the better paid employees).  

Many  years  ago,  as  regards  pay  discrimination  against  men,  the  Pretura  (magistrate’s 
court) of Turin of 4 December 1991 and the Pretura of Parma of 24 November 1981 held 
that the collective agreement bargained at the enterprise level that entitled only working 
women  to  a  contribution  to  crèche  expenses  infringed  the  principle  of  equal  treatment 
between  male  and  female  workers.  Following  the  courts’  reasoning,  the  contribution  is 
linked to the array of duties that are a burden on both parents. A different interpretation 
would  be  in  contrast  with  the  constitutional principle  of equality  as it  would  involve the 
working mother is the main and/or only subject who is charged with family duties. This 
reversed  the  traditional  guideline,  which,  up  to  the  1980s,  allowed  such  clauses, 
considering  women’s  essential  family  function  to  be  protected  by  Article  37  of  the 
Constitution (Court of Cassation, 5 March 1986, No 1444). 

4.2.5  Permissibility of pay differences 

No  justifications  for  differences  in  pay  are  provided  by  the  Equal  Opportunities  Code, 
except those permitted on the ground of the general notion of indirect discrimination. 

31 

 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

4.2.6  Requirement for comparators 

The general concept of both direct and indirect discrimination provided by Article 25 of the 
Equal Opportunities Code (Decree No. 198/2006) refers to a comparator and is enforceable 
with regard to all working conditions, including remuneration. 

Actually,  both  the  concise  wording  of  the  definition  of  direct  discrimination  and  the 
reference to the conditional (‘could put’) in the notion of indirect discrimination, together 
with  the  reference  to  ‘a  particular  disadvantage’  instead  of  ‘a  proportionally  higher 
disadvantage’ (which was provided by the previous text) opened a debate on the real need 
for a comparison. No overriding opinion has been recorded, which has called for the need 
for an actual comparator.  

Case law on equal pay is scarce and does not indicate whether the claimant should point 
to an actual comparator. However, an old case on professional classification deserves to 
be mentioned. In this case, a female worker claimed discrimination as she had been placed 
at a lower level compared to male workers performing the same job. The judgment of the 
Pretura  of  Milan  of  22  December  1989  ascertained  that  there  had  been  discrimination, 
including during a period when male workers had not yet been hired. The judge made a 
finding of discrimination, as male workers were later hired at a higher level compared to 
the female worker who was already performing the same job. As a consequence, according 
to the judge, there was a double possibility: either the higher level of male workers was 
the right one, considering the job (then the female worker was also entitled to the same 
level), or this was not the case and the female worker had been discriminated against. In 
both cases, discrimination against the female worker was proved. The judgment did not 
expressly  refer  to  a  hypothetical  comparator,  but  showed  a  particular  sensitivity  in  the 
reasoning  and  anticipated  results,  which  are  easier  to  achieve  under  the  new  notion  of 
discrimination. 

4.2.7  Existence of parameters for establishing the equal value of the work performed 

The national law does not lay down any parameters for establishing the equal value of the 
work performed. There is no case law on this issue. 

4.2.8  Other relevant rules or policies 

There are no any other relevant rules or policies that provide parameters for establishing 
the equal value of the work performed. 

4.2.9  Job evaluation and classification systems 

As yet there are no good practices specifically targeted at closing the pay gap.  

4.2.10 Wage transparency 

Article 46 of the Equal Opportunities Code on the release of information on individual pay 
and other data at firm level is relevant to wage transparency. Article 46 has been amended 
by Law No. 162/2021. It provides that the biennial report concerning the ratio of male and 
female employees in  all job catagories of a  company will be compulsory for enterprises 
employing  more  than  50  workers  (100  employees  under  the  previous  wording  of  the 
provision). Smaller companies will be enabled to submit the same report on a voluntary 
basis. The report will be filed online on the website of the Ministry of Labour and regional 
equality  advisers  will  be  in  charge  of  analysing  the  results  to  be  transmitted  to  the 
territorial  offices  of  the  National  Labour  Inspectorate,  the  Ministry  of  Labour,  the 
Department for Equal Opportunities at the Prime Minister Office, the National Institute for 
Statistics  (ISTAT)  and  the  National  Council  for  Labour  and  Economy  (CNEL).  A  list  of 
defaulting companies will publically be available on the site of the Ministry of Labour. A 

32 

 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

Decree of the Minister of Labour will further specify the data to be submitted by the biennial 
report, which will have to be particularly detailed as regards remuneration (including all 
kinds of incentives) and clearly show the percentage of part-time workers. Moreover, the 
Decree  will  extend  the  content  of  the  report  to  hiring  procedures,  career  paths, 
professional  training  for  management,  conciliation  measures,  company  policies  on  an 
inclusive work environment, and provide procedures to allow workers and unions access 
to data, which may be used to take legal action under the Code. An administrative sanction 
may  be  applied  by  the  Labour  Inspectorate  in  the  event  that  a  report  is  incomplete  or 
presents  false  data.  Failure  to  submit  a  report  after  a  reminder  from  the  Labour 
Inspectorate  is  punishable  with  an  administrative  sanction;  if  non-compliance  lasts  for 
more than 12 months, any contributory benefits enjoyed by the company are ordered to 
be suspended for one year. 

Law  162/2021  has  also  introduced  a  certification  system  on  Gender  Equality.  The 
certification will attest different policies and measures undertaken at the enterprise level 
and  aimed  at  filling  the  gender  gap  in  remuneration  and  career  and  will  be  taken  into 
account  to  accede  to  national  and  EU  Funds  sustaining  investments.  A  Fund  of  EUR  50 
million has also been allocated for 2022 to ensure a cut in annual contribution of 1 % up 
to  a  maximum  of  EUR  50 000  to  the  enterprises  which  obtained  the  Gender  Equality 
Certification. Morevover, the certification system has recently been financed by Article 1, 
para  138  of  Law  234/2021  (Budget  Act  for  2022)  in  order  to  reward  companies,  even 
those  with  less  than  50  employees,  that  obtain  the  Gender  Equality  Certification. 
Furhthermore, Article 1 para 660, Law 234/2021 allocated another Fund at the Minister of 
Labour to sustain professional training regarding required procedures to obtain the Gender 
Equality Certification.  

Finally,  under  Article  10  Paragraph  1(h)  of  the  Equal  Opportunities  Code,  the  National 
Equality Committee can ask the local labour inspectorate to obtain gender-differentiated 
data at the workplace in respect of hiring, vocational training and career opportunities. 

4.2.11 Implementation of the transparency measures set out by European Commission’s 
Recommendation  of  7  March  2014  on  strengthening  the  principle  of  equal  pay 
between men and women 

The  European  Commission’s  Recommendation  of  7  March  2014  on  strengthening  the 
principle of equal pay between men and women through transparency has not yet been 
applied. A draft delegation bill was presented to Parliament on 31 March 2015 (see section 
4.1.4, above).37  

4.2.12 Other measures, tools or procedures 

Article 1, Paragraph 276 of Law 178/2020 (Budget Act for 2021) allocated a fund of EUR 
2 million for 2022 to the Ministry of Labour to enhance measures to support the social and 
economic  benefits  of  gender  pay  equality  at  work.  The  methods  of  implementation  of 
paragraph 276 are established by a decree of the Minister of Labour and Social Policies, in 
agreement with the Minister of Economy and Finance.  

37   Draft Delegation Bill No. 3000 of 31 March 2015, available at: 

http://www.camera.it/_dati/leg17/lavori/stampati/pdf/17PDL0032100.pdf. The bill is aimed at ensuring 
both workers and unions have access to detailed information on all items of the remuneration of each 
employee (in respect of private data but clearly distinguished by gender), including bonuses, that 
employers of more than 50 workers give periodical information on the average wage of each level of a 
career, distinguished by gender, and that employers of more than 250 workers conduct wage audits and 
that those are made widely available to workers’ representatives and unions. See also: 
https://www.thelocal.it/20180308/statistics-women-in-italy-womens-rights-gender-gap-equality, 
https://www.thelocal.it/20171103/italy-gender-gap-worse and 
http://documenti.camera.it/_dati/leg17/lavori/schedela/apriTelecomando_wai.asp?codice=17PDL0041480. 

33 

 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

No  other  measures, tools  or  procedures  are  known  to  have  been  developed  in order  to 
enhance pay transparency and to close the gender pay gap. 

4.3  Access to work, working conditions and dismissal 

4.3.1  Definition of the personal scope (Article 14 of Recast Directive 2006/54) 

Under the broad definition of Article 27 Paragraph 1 of the Equal Opportunities Code, the 
personal scope in relation to access to work and vocational training expressly encompasses 
all  types  of  contracts  –  subordinate,  autonomous  or  ‘any  other.’  The  same  provision  is 
enforceable, under Paragraph 3, for membership of, and involvement in, an organisation 
of  workers  or  employers,  or  any  organisation  whose  members  carry  out  a  particular 
profession (including the benefits provided by such organisations). 

As regards equal pay and working conditions, including dismissals, just as for labour law 
in  general,  the  text  of  the  law  does  not  expressly  refer  to  non-subordinate  or  quasi-
subordinate workers (that is, dependent self-employed workers, known DSE), so it could 
be applied to these employment relationships as well, but only by way of interpretation. 
However, no specific case law can be found on this point. 

With  regard  to  the  implementation  of  Article  14  of  Directive  54/2006,  it  must  be 
emphasised  that  the  prohibition  on  discrimination  provided  by  the  Equal  Opportunities 
Code applies to all persons employed in any sector (both public and private), irrespective 
of  the  length  of  the  employment  relationship,  including  part-time  workers,  fixed-term 
workers, apprentices, employees on education contracts, home workers, working spouses 
or relatives, as well as persons working in cooperatives, and irrespective of the size of the 
enterprise/employer. On the whole the personal scope of these provisions is very wide and 
covers the notion of a worker as defined by CJEU. However, there is no national case law 
on this specific issue. 

4.3.2  Definition of the material scope (Article 14(1) of Recast Directive 2006/54) 

Under  Article  27  of  the  Equal  Opportunities  Code,  the  material  scope  of  the  ban  on 
discrimination  as  regards  access  to  employment  includes  vocational  training,  selection 
criteria, recruitment conditions at all levels of the professional hierarchy and promotion in 
all sectors, irrespective of the hiring procedures, as well as the setting up or broadening 
of a business or of any other form of autonomous work. This article merely translates the 
wording of the Recast Directive and of Article 4(1) of Directive 41/2010, except as regards 
vocational training, where the prohibition on discrimination expressly includes both access 
to and the content of vocational training. 

4.3.3  Implementation of the exception on occupational activities (Article 14(2) of Recast 

Directive 2006/54 

Article 27 allows for a gender requirement in hiring in artistic and fashion activities and 
with regard to public performances, when such a requirement is essential to the nature of 
the work/job. It also entitles collective agreements to provide for specific exceptions to 
the  prohibition  on  discrimination  in  access  to  work  for  women  in  cases  of  particularly 
strenuous jobs. The first exception (artistic, fashion, performance activities) goes beyond 
the principle of proportionality, as it is stricter: the exception is only legitimate if sex is 
really a genuine occupational requirement that is essential for performing the activity in 
question, taking into account its nature. 

The  second  exception  (strenuous  work)  is  worded  in  terms  of  a  ‘derogation’  from  the 
general rule and is only admitted if and when collective agreements identify a ‘particularly 
strenuous’ job, task or duties. As such, it is based on the nature (particularly strenuous) 
of the specific occupational activity. Even if the principle of proportionality is not directly 

34 

 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

considered, and the law does not provide that the exclusion of women must be ‘essential’ 
(to the protection of women’s health), this exception has always been deemed to comply 
with the exceptions provided by EU law.  

The legislature’s decision to allow collective bargaining to identify such jobs is considered 
to be rational and preferable to listing them all in an act, once and for all.38 

There  is  no  available  information  on  an  assessment  by  the  Member  State  of  the 
occupational activities referred to in Article 14(2), nor does the author of this report think 
that such an assessment has ever been done.  

4.3.4  Protection  against  the  non-hiring,  non-renewal  of  a  fixed-term  contract,  non-
continuation  of  a  contract  and  dismissal  of  women  connected  to  their  state  of 
pregnancy and/or maternity 

National  law  and  case  law  provide  for  sufficient  protection  against  the  non-hiring,  non-
renewal of a fixed-term contract, non-continuation of a contract and dismissal of women 
connected to their state of pregnancy and/or maternity. Protection is as follows. 

According to Article 25 of the Equal Opportunities Code (Decree No. 198/2006) and Article 
3 of Decree No. 151/2001 on the protection of motherhood and fatherhood, less favourable 
treatment related to pregnancy, motherhood or fatherhood, including adoption, as well as 
to the respective rights, is regarded as direct gender discrimination. This feature allows 
the  claimant  to  benefit  from  specific  procedural  rules  and  to  obtain  stronger  remedies 
provided by the law for cases of discrimination. This even exceeds the obligations stated 
at EU level, as it is not limited to women, as expressly provided by Article 2(2)(c) of the 
Recast Directive, but also includes men and adoptive parents. Moreover, Article 27 of the 
Equal  Opportunities  Code  bans  discrimination  as  regards  access  to  work,  promotion, 
professional  training  and  working  conditions.  In  particular,  discrimination  is  expressly 
forbidden  in  relation  to  marriage,  family  status  or  pregnancy,  and  motherhood  or 
fatherhood, including through adoption. 

As regards dismissal, the protection afforded is ensured purely on grounds of pregnancy, 
regardless  of  whether  the  employer  has  been  informed  or  not.  Moreover,  protection  is 
granted during pregnancy, maternity leave, parental leave and for a period of 12 months 
following the date of confinement. A dismissal in this situation is considered to be equal to 
a discriminatory dismissal and the special remedy (reinstatement) provided by Article 18 
of  the  Worker’s  Statute  is  enforceable  (Article  54  of  Decree  No.  151/2001).  The  same 
protection against dismissal as for natural parents is granted to adoptive or foster parents 
until one year after the child has entered the family.  

Moreover, in response to the issue of ‘blank resignation’ (that is, an undated resignation 
letter signed by a worker at the time of recruitment so as to be used by the employer to 
make the worker resign when needed), Law 92/2012 changed Article 55, Paragraph 4 of 
Decree No. 151/2012.  

A few cases have been heard in relation to: the legitimacy of the worker’s behaviour if she 
does  not  inform  the  employer  of  her  pregnancy  before  recruitment  on  a  fixed-term 
contract;  the  legitimacy  of  the  employer’s  behaviour  if  a  pregnant  women  is  not  hired, 
despite her overcoming the practical test, because there is no job in the firm compatible 

38   This last remark is based on the effective implementation of this exception starting from the issuing of Law 
903 in 1977 (which was later included in Decree No. 151/2001). In fact, during subsequent years collective 
bargaining has progressively removed a great number of exclusions, narrowing them down to a few tasks 
even in activities traditionally considered to be ‘strenuous’ and, for this reason, ‘closed’ to women (for 
instance, in the past all activities carried out in the mining industry were considered to be ‘strenuous’ and 
forbidden for women). No case law can be recorded in the last few years (in the 1980s, the small number 
of cases were followed by collective agreements that removed many exceptions that could be deemed to go 
beyond the principle of proportionality). 

35 

 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

with  her  health  during  pregnancy;  the  illegitimacy  of  the  employer’s  behaviour  if  a 
pregnant women is not hired because she should be assigned to a job dangerous for her 
and her child’s health; the illegitimacy of the exclusion from access to work of a pregnant 
worker  by  an  employment  exchange;  the  illegitimacy  of  pregnancy  tests  for  access  to 
work.39 

There is some published case law regard the interpretation of the exceptions to the ban 
on dismissal during pregnancy.40 The Tribunal of Venice of 9 February 2010 ruled that the 
dismissal of a pregnant woman at the end of the probationary period is discriminatory if 
the  woman  proves  both  that  there  is  no  reason  for  dismissal  as  her  capacity  has  been 
positively ascertained and that she is pregnant. The Constitutional Court, in a judgment 
of 27 May 1996, No. 172, ruled that an employer may dismiss a pregnant employee on 
the grounds of the negative result of the probationary period only if he can prove - or if 
there is objective evidence - that he did not know of the woman’s pregnancy; otherwise, 
he must explain the reasons justifying the negative evaluation of the probationary period, 
in order to disprove that the reason for the dismissal was the pregnancy of the woman. 
Other decisions ruled that: the consequence of the discriminatory dismissal is the payment 
of retribution from the day of dismissal to that of the reintegration in service of the women, 
as the dismissal is null and void;41 dismissal of pregnant women is null and void also in 
case of illegal employment and also if the employer had not been informed of pregnancy.42 

Several  published  cases  regard  blank  resignation  of  working  mothers.  The  Tribunal  of 
Florence of 12 December 2005 stated that if the resignation is not validated it means that 
the work relationship is not terminated; the employee, therefore, has the right to go back 
to work and to receive remuneration, plus compensation, currency revaluation and legal 
interest for the months in which the worker was kept out of work (in the same sense as 
Tribunal of Milan of 12 July 2007).  

Other cases concern the relevance of being aware of the pregnancy for these rules to be 
enforced. The Court of Appeal of Florence of 9 September 2006 ruled that Article 55 was 
enforceable despite the fact that the employer did not know about the pregnancy of the 
worker and  Tribunal of Treviso of 4 January 2007 ruled that Article 55 was enforceable 
only if the employee knew about her pregnancy when she resigned.  

Very  little  case  law  has  directly  reflected  the  difficulty  for  the  employee  in  providing 
evidence of blackmail in relation to ‘blank resignation’. The only case where this obstacle 
was expressly taken into consideration related to a male worker who had taken sick leave. 
In  the  decision  of  the Tribunal  of  Arezzo  of  21  October  2008,  where the  judge  deemed 
that the real will of the worker could be inferred by a series of factors, in contrast with the 
resignation:  the  text  of  the  letter  was  typewritten  with  only  the  date  written  in  ink;  no 
specific facts showed the will of the worker to resign as the investigation proved that he 
came back to work after the illness with his workbag and the same day of the resignation 
he asked for the intervention of a union representative; moreover, it was very unlikely he 
decided straight off to leave the job, considering his family burden and mortgage.  

39   Court of Cassation civ., sez. lav. 24-08-1995, n. 8971; Court of Appeal Milano 17-06-2009; Pretura of 

Florence 05-08-1988; Court of Cassation civ., sez. lav. 09-10-1997, n. 9800; Pretura Pistoia 06-04-1996; 
Court of Cassation civ. 16-04-1991, n. 4064; Council of State, sez. VI 05-08-1991, n. 505; Pretura 
Domodossola, 15-10-1981. 

40   Court of Cassation civ., sez. lav., 21-12-2004, n. 23684; Tribunal of Milan 24-05-2010; Court of Cassation 
civ., sez. lav., 28-06-2013, n. 16415; Court of Cassation civ., sez. lav. 26-01-2017, n. 2004; Court of 
Cassation civ., sez. lav., 28-09-2017, n. 22720. 
41   Court of Cassation civ., sez. lav. 11-01-2017, n. 475. 
42   Court of Cassation civ., sez. lav., 20-07-2012, n. 12693; Court of Cassation civ., sez. lav. 03-07-2015, n. 

13692. 

36 

 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

4.3.5  Implementation  of  the  exception  on  the  protection  for  women  in  relation  to 

pregnancy and maternity (Article 28(1) of Recast Directive 2006/54) 

The exception on the protection of women as regards pregnancy and maternity (Article 28 
of  the  Recast  Directive)  has  not  been  expressly  provided.  Nevertheless,  Decree  No. 
198/2006 (the Equal Opportunities Code) refers to Decree No. 151/2001 for the protection 
of maternity and paternity, which provides for all specific rights linked to motherhood and 
fatherhood  involving  the  safeguarding  of  these  provisions,  and  also  states  (in  Article  1 
Paragraph  3)  that  the  principle  of  equality  is  without  prejudice  to  more  favourable 
provisions  for  the  gender  which  is  underrepresented.  Moreover,  following  the  first 
interpretation  of  Article  37  of  the  Constitution  (providing  for  women’s  right  to  working 
conditions  so  as  to  allow  them  to  fulfil  their  essential  family  functions  and  to  grant 
adequate protection to the mother and the child) we used to have the opposite problem 
of a logic of protection that prevailed over that of equality. 

4.3.6  Particular difficulties 

As regards subordinate workers there are no specific problems with regard to the personal 
or material scope of the Recast Directive in relation to equal access to work, vocational 
training, employment contracts, working conditions and promotion and protection against 
dismissal on grounds connected to sex. As regards other forms of work, the directive has 
been implemented by a mere reproduction of its wording. Therefore some problems could 
rise from its ambiguous text. However, there is no case law or debate on these issues. 

4.3.7  Positive action measures (Article 3 of Recast Directive 2006/54) 

Italy has made use of the voluntary positive action measures available under Article 42 et 
seq. of the Equal Opportunities Code (Decree No. 198/2006) with a view to ensuring full 
equality in practice between men and women in working life. Article 42 defines positive 
action as measures designed to encourage female employment and to achieve substantial 
equality between men and women at work by removing obstacles which in practice prevent 
the achievement of equal opportunities; in particular, positive action must aim to eliminate 
disparities that affect women in education and professional training, in professional choices 
(both  as  regards  labour  relationships  and  self-employment),  in  working  conditions  and 
organisation, 
they  are 
underrepresented, and in the division of family and professional responsibilities between 
the two sexes. 

in  activities,  professional  sectors  and 

levels  where 

According to Article 43 of the Equal Opportunities Code, positive action measures may be 
promoted  by  different  subjects,  both  public  and  private  alike.  Employers,  professional 
training centres, associations, and trade unions promoting positive action can also apply 
for public funding, which is paid according to the available funds; positive action organised 
by employers and the most representative trade unions and positive action geared towards 
professional training have preferential access to public funding (Articles 44 and 45 of the 
Equal Opportunities Code).  

In the public sector, employers are also entitled to request financing for positive action 
plans  and  must  draw  up  three-year  positive  action  plans  aimed  at  achieving  a  better 
balance between the sexes in jobs and professions where women are underrepresented 
(that is, they make up less than one third of the total) (Article 48 of the Equal Opportunities 
Code). Moreover, in hiring procedures and in promotion when there are male and female 
applicants with the same level and qualifications and the male is chosen, the Civil Service 
has to provide an explicit and appropriate reason for this choice. The same article states 
that at least one third of the members of the commission for public hiring competitions 
must be women, except in the event of justified impossibility. Article 5 of Law 215/2012 
provides  that  the  equality  adviser  must  be  informed  of  the  appointment  of  each 
commission for hiring competitions in the public sector, so as to check that at least one 

37 

Country report - gender equality – Italy - 2022 

third of the members are women. If women’s representation in the commission is lower, 
the equality adviser must compel the public administration to eliminate the infringement 
and  if  it  persists,  she/he  must  take  the  public  administration  to  court.  Furthermore,  as 
regards  state-owned  companies,  a  specific  provision  is  dedicated  to  positive  action 
measures  in  the  radio  and  television  sector.  Article  49  of  the  Equal  Opportunities  Code 
states  that  public  and  private  broadcasting  companies  must  promote  positive  action 
measures so as to eliminate unequal opportunities and conditions between the two sexes 
in  the  working  organisation,  recruitment  and  appointment  to  high  and  responsible 
positions.  No  sanctions  are  provided  in  case  no  plans  are  produced,  so  the  adoption  of 
these positive action measures is not binding and unfortunately there is no data on their 
implementation in practice. Finally, the public administration must ensure the professional 
training of personnel in proportion to the percentage of representation of each sex in the 
specific sector and facilitate this participation through the reconciliation of work and private 
life. 

In  addition,  there  is  a  quota  system  for  the  appointment  of  managing  directors  and 
auditors of listed companies and state subsidiary companies, where each sex cannot be 
represented in a proportion lower than two fifths. This distribution criterion applies for six 
consecutive  terms  (Article  1,  paragraphs  302  and  303,  Law  No.  160/2019).  The  same 
principles  are  enforceable  for  state  subsidiary  companies  not  quoted  on  the  regulated 
market (Law No. 162/2021). 

Italy lacks a positive action monitoring system; we have no information on the follow up 
even  in  relation  to  positive  action  financed  by  public  funds.  The  problems  with  positive 
action measures are mainly economic, that is: low financing of the plans; few incentives 
to develop positive action plans; the lack of a system to monitor positive action measures 
and their impact; and little knowledge of positive action as a tool. According to the Equal 
Opportunities  Code  (Article  48),  the  public  administration  holds  a  primary  role  in 
promoting positive action: indeed, public employers have an obligation to draw up three-
year  positive  action  plans,  which  can  be  sustained  within  budget  limits.  Many  positive 
action  plans  are  carried  out  in  this  context,  which  shows  that  positive  action  plans  are 
implemented where they are encouraged through economic or legal incentives. 

However, we do not have many examples available of this kind of positive action, which 
is also due to the lack of a monitoring system. The Equal Opportunities National Committee 
(EONC) 2012 programme for the public financing of positive action provides for positive 
action measures in professional training in order to improve  the employability of young 
women.43  The  triennial  2017-2019  plan  for  positive  action  of  the  Offices  of  the  Prime 
Minister provides for measures geared towards women’s professional requalification and 
consequent mobility to offices where there is a shortage of staff with specific skills.44 The 
EONC’s 2012 programme for the public financing of positive action45 includes numerical 
targets  to  be  achieved  in  hiring,  such  as:  measures  addressed  to  young  qualified  or 
graduate women, where 50 % of the recipients are expected to be hired on an employment 
contract  (not  a  fixed-term  one);  and  measures  addressed  to  unemployed  women  or 
women on redundancy over 45 years old, where 50 % of the recipients will enter or re-
enter the labour market. However, no specific example of such a measure is available. The 
2017-2019 positive action plan of Corte dei Conti, for example, provides for positive action 
measures on internal mobility in order to enhance workers’ professional skills. 

43   http://sitiarcheologici.lavoro.gov.it/AreaLavoro/Tutela/Documents/PROGRAMMAOBIETTIVO2012.pdf. 
44

http://presidenza.governo.it/AmministrazioneTrasparente/AltriContenuti/DatiUlteriori/DSG/PIANO_AZIONI_
POSITIVE_PCM_def.pdf.  

45   http://sitiarcheologici.lavoro.gov.it/AreaLavoro/Tutela/Documents/PROGRAMMAOBIETTIVO2012.pdf. 

38 

Country report - gender equality – Italy - 2022 

4.4  Evaluation of implementation 

The  principle  of  equal  pay  for  equal  work  or  work  of  equal  value  is  satisfactorily 
implemented in national legislation.  

The concept of pay is not defined by the law, but has widely been construed by the Italian 
courts, on the basis of collective agreements, as including any economic benefit in cash or 
in kind directly and indirectly paid on the ground of the employment relationship. Therefore 
it fully complies with the definition in Article 157(2) TFEU. 

Article 4 of Recast Directive 2006/54 is explicitly implemented by Article 28 of the Equal 
Opportunities Code. 

No  justifications  for  differences  in  pay  are  provided  by  the  Equal  Opportunities  Code 
(Decree No.  198/2006),  except those  permitted  on  the ground  of  the  general notion  of 
indirect discrimination. 

The general notion of both direct and indirect discrimination provided by Article 25 of the 
Equal  Opportunities  Code  refers  to  a  comparator  and  is  enforceable  with  regard  to  all 
working conditions, including remuneration. 

Actually,  both  the  concise  wording  of  the  definition  of  direct  discrimination  and  the 
reference to the conditional (‘could put’) in the notion of indirect discrimination, together 
with  the  reference  to  ‘a  particular  disadvantage’  instead  of  ‘a  proportionally  higher 
disadvantage’ (which was provided by the previous text) opened a debate on the real need 
for a comparison. No overriding opinion has been recorded that calls for the need for an 
actual comparator.  

National  law  does  not  lay  down  any  parameters  for  establishing  the  equal  value  of  the 
work performed. 

The  European  Commission’s  Recommendation  of  7  March  2014  on  strengthening  the 
principle of equal pay between men and women through transparency has not yet been 
applied.  However,  there  is  Article  46  of  the  Equal  Opportunities  Code  on  the  release  of 
information on pay to individuals and other data at firm level, which provides that, every 
two years, public and private companies employing more than 50 employees draw up a 
report on the situation of workers (male and female) as regards recruitment, professional 
training,  career  opportunities,  mobility  between  categories  and  grades,  other  mobility 
aspects,  remuneration,  dismissals  and  retirement.  The  report  is  made  available  to  the 
company’s union representatives and to the equality advisers. Smaller companies will be 
enabled to submit the same report on a voluntary basis. 

Under the broad definition of Article 27 Paragraph 1 of the Equal Opportunities Code, the 
personal scope in relation to access to work and vocational training expressly encompasses 
all types of contracts, subordinate, autonomous or ‘any other’. As regards equal pay and 
working conditions, including dismissals, just as for labour law in general, the text of the 
law does not expressly refer to non-subordinate or quasi-subordinate workers (that is, a 
sort of dependent self-employed worker, known as DSE), so it could be applied to these 
workers as well, but only by way of interpretation; however, no specific case law can be 
found on this point. 

With regard to the implementation of Article 14 of Directive 54/2006, the prohibition on 
discrimination provided by the Equal Opportunities Code applies to all persons employed 
in  any  sector  (both  public  and  private),  irrespective  of  the  length  of  the  employment 
relationship, including part-time workers, fixed-term workers, apprentices, employees on 
education  contracts,  home  workers,  working  spouses  or  relatives,  as  well  as  persons 
working in cooperatives, and irrespective of the size of the enterprise/employer. On the 

39 

 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

whole,  the  personal  scope  of  these  provisions  is  very  wide  and  covers  the  notion  of  a 
worker as defined by the CJEU. 

As regards material scope (Article 14(1) Recast Directive 2006/54), Article 27 of the Equal 
Opportunities  Code  merely  translates  the  wording  of  the  Recast  Directive  and  of 
Article 4(1)  of  Directive  41/2010,  except  as  regards  vocational  training  where  the 
prohibition  on  discrimination  expressly  includes  both  access  to  and  the  content  of 
vocational training. 

On the whole, as regards subordinate workers there are no specific problems with regard 
to the personal or the material scope of the directive in relation to equal access to work, 
vocational  training,  employment  contracts,  working  conditions  and  promotion  and 
protection against dismissal on grounds connected to sex. As regards other forms of work, 
the directive has been implemented by a mere reproduction of its wording. Therefore some 
problems could rise from its ambiguous text. However, there is no case law or debate on 
these issues. 

The  implementation  of  the  exception  on  occupational  activities  (Article  14(2)  Recast 
Directive 2006/54) has always been deemed to comply with the exceptions provided by 
EU law.  

National  law  and  case  law  provide  for  sufficient  protection  against  the  non-hiring,  non-
renewal of a fixed-term contract, non-continuation of a contract and dismissal of women 
connected to their state of pregnancy and/or maternity. 

The exception on the protection of women as regards pregnancy and maternity (Article 28 
of 
the  Recast  Directive)  has  not  been  expressly  provided.  Nevertheless, 
Decree No. 198/2006  on  Equal  Opportunities  refers  to  Decree  No.  151/2001  for  the 
protection  of  maternity  and  paternity,  which  provides  for  all  specific  rights  linked  to 
motherhood and fatherhood involving the safeguarding of these provisions. 

Italy has made use of the voluntary positive actions provided by Article 42 et seq. of the 
Equal Opportunities Code (Decree No. 198/2006) with a view to ensuring full equality in 
practice between men and women in working life. The main problems with positive action 
measures  are  economic  ones,  including:  low  financing  of  the  plans;  few  incentives  to 
project positive action plans; the lack of a system to monitor positive action measures and 
their impact; and little knowledge of positive action as a tool. 

4.5  Remaining issues 

The negative consequences of the COVID-19 pandemic are particularly severe for women, 
as people in precarious working conditions are especially vulnerable to economic shocks. 
Indeed,  women  are  more  likely  to  have  temporary,  part-time  and  precarious  jobs  than 
men.  These  jobs  often  result  in  lower  pay,  weaker  legal  protection  and  difficulties  in 
accessing social protection. Levels of precarious work are particularly high among young 
women, low-skilled women and migrant women.  

In  order  to  tackle  gradually  the  recession  caused  by  COVID-19,  Law  Nos.  27/2020, 
77/2020,  126/2020,  176/2020,  61/2021,  69/2021,  106/2021,  215/2021  and  following 
amendments provided a general ban on setting up redundancy procedures and implement 
a  suspension  of  ongoing  procedures.  The  same  legislation  provided  a  ban  on  individual 
dismissals  for  organisational  reasons.  The  ban  expired  in  2021.  Although  this  was  a 
gender-neutral  provision,  it  was  aimed  at  preventing  unfair  behaviour  from  employers, 
which is very likely to impact on weaker groups in particular, such as working women. 

40 

 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

Moreover, on 25 June 2020, the Government approved the ‘Family Act’.46 This is a proposal 
for a delegation act, which to reorganise and improve different measures for families and 
work-life balance. The bill has been approved by the House of Representatives, but is now 
awaiting  the  approval  of  the  Senate.  The  reforms  include  the  following,  which  have  an 
impact on women’s pay:  

- 

- 

- 
- 

- 

different measures aimed at the economic situation of families to be reorganised and 
unified into a single family allowance to be applied according to annual income and 
according to the number of children;  
provisions  providing  incentives  for  a  second  income  in  the  family  (which  is  more 
often the mother’s);  
tax cuts in respect of expenses for children’s education; 
an  allowance  paid  by  the  INPS  (the  National  Institute  for  Social  Security)  to 
supplement  women’s  remuneration  when  returning  to  work  after  compulsory 
maternity leave;  
tax cuts for expenses for baby sitting and housework services. 

Specifically, the family allowance has been recently reformed as provided by the Family 
Act,  by  Decree  No.  230/2021  (following  the  guidelines  contained  in  Law  46/2021).  The 
new measure replaces all other different pieces of legislation, such as tax allowances and 
the so-called bonus that was paid after giving birth, and is a universal one which addresses 
all  families,  irrespective  of  the  parents’  income  and  working  activity.  Households  are 
entitled to this grant from the seventh month of pregnancy up to the 21st year of age of 
the dependent child attending school or university or working in an internship (on condition 
that  the  child’s  annual  income  is  lower  than  EUR 8 000)  or  searching  for  a  job.  It  is 
addressed  to  a  wide  audience  of  beneficiaries,  including  self-employed  workers  and 
persons receiving income support. The amount of this grant is modulated on the basis of 
the  total  economic  condition  of  the  household  (known  as  ISEE  –  equivalent  economic 
status index) as well as the age of the dependent child, and takes into consideration the 
possible  effect  of  disincentive  to  work  for  the  second  earner  in  the  household.  On  the 
whole,  the  reform  modernises  the  Italian  welfare  system  and  makes  it  simpler,  more 
transparent and inclusive. Child support will increase for most Italian families, especially 
for parents which were little or not at all protected (such as, for instance, self-employed, 
long-term  unemployed  and  atypical  workers).  Nevertheless,  considering  the  new  grant 
replaces several measures, it is quite hard to value its real impact on some categories. 
Moreover, the reform will probably lower the support for families of employees with a low 
or medium income. In order to avoid this risk, a safeguard clause has been provided to 
guarantee an automatic compensation for the next three years.  

In addition, an allowance to supplement women’s remuneration when returning to work 
after compulsory maternity leave has been introduced by Article 1, Paragraph 137, Law 
234/2021 (Budget Act for 2022): women working in the private sector will benefit from a 
50 %  cut  in  contributions  for  one  year  after  the  compulsory  maternity  leave;  this  is  a 
temporary measure for 2022.  

Finally, another important intervention linked to the pandemic is contained in the Budget 
Act  for  2021  (Law  178/2020):  for  2021  and  2022,  Article  1,  Paragraph  16  entitles 
employers hiring long-term unemployed women (women who have been unemployed for 
six  months  in  some  areas  of  the  South)  for  a  cut  in  contributions  up  to  100 %,  for  a 
maximum of EUR 6 000 a year; employment contracts without a term and an increase in 
the personnel working for the enterprise are also required to get the cut in contributions.  

The recent introduction of Article 1, Paragraph 138, Law 234/2021 (Budget Act for 2022), 
has  raised  the  financing  of  the  Ministry  of  Labour  Fund  to  enhance  measures  aimed  at 

46   Draft Family Act, on Measures aimed at sustaining and enhancing the value of the family, No. C2561 of 25 
June 2020, https://temi.camera.it/leg18/post/OCD15_14206/audizioni-alla-camera-family-act-disegno-
legge-deleghe-al-governo-sostegno-e-valorizzazione-della-famiglia.html. 

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Country report - gender equality – Italy - 2022 

sustaining the social and economic value of gender pay equality at work. The aim of this 
Fund  has  also  been  extended  to  increasing  the  participation  of  women  in  the  labour 
market. Article 1, Paragraph 139 and following of Law 234/2021 provide for the publication 
of a National Strategic Plan for Gender Equality, which is also aimed at reducing the gender 
gap in labour market. In order to ensure full implementation of the plan, an interistitutional 
monitoring body and a national observatory have been established at the Department for 
Equal  Opportunities.  The  latter  is  also  charged  with  enhancing  the  gender  equality 
certification system, the criteria of which will be fixed by a Decree of the Prime Minister. 

There are no other issues regarding national law on equal pay and/or equal treatment at 
work that have not been discussed so far.  

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5 

Pregnancy,  maternity,  and  leave  related  to  work-life  balance  for  workers 
(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 
2019/1158)47 

5.1  General (legal) context 

5.1.1  Surveys and reports on the practical difficulties linked to work-life balance 

There  have  been  no  specific  surveys  over  the  last  five  years  that  provide  insights  into 
difficulties that workers face in practice in relation to work-life balance issues.  

The 2017 OECD Better Life Index states that an important aspect of work-life balance is 
the amount of time a person spends at work. Evidence suggests that long work hours may 
impair  personal  health,  jeopardise  safety  and  increase  stress.  In  Italy,  almost  4 %  of 
employees work very long hours, although that is less than the OECD average of 13 %. 
The more people work, the less time they have to spend on other activities, such as caring 
for children and elderly, leisure activities, eating or sleeping. The amount and quality of 
leisure time is important for people's overall wellbeing and can bring additional physical 
and mental health benefits. In Italy, on average, full-time workers devote 62 % of their 
day, or 14.9 hours, to personal care (eating, sleeping, etc.) and leisure (socialising with 
friends and family, hobbies, games, computer and television use, etc.), which is slightly 
less than the OECD average of 15 hours. The report states that work-life balance can be 
improved through free childcare and gives the example of the childcare service provided 
by the Italian Ministry of Economy and Finance: the free care and entertainment service 
is aimed at its employees’ children aged 4 to 12 years old; the services are located at the 
ministry  headquarters  and  in  nearby  external  sports  facilities  during  summer;  it  is 
operational on weekdays when there is no school; in the morning before starting work, 
employees can leave their children in care and collect them at lunch time; if their working 
hours involve an afternoon, they can also leave them after lunch and collect them in the 
evening;  the  care  activities  are  managed  by  qualified  childcare  staff.  This  improves 
employee work-life balance, with 76 % of users valuing the experience of the service by 
their  sons  and  daughters  as  ‘excellent’  and  21 %  as  ‘good’.  In  addition,  the  work 
attendance rate of employees who use the service is higher on average than that of other 
employees with children of the same age.48  

The ISTAT 2018 report, Well-being equity and sustainability in Italy (BES) shows that in 
2017, for every 100 women without children who are employed, only 75.5 % of women 
with  at  least  one  child  under  6  years  of  age  are  employed;  this  rate  has  decreased  in 
recent years, meaning that the participation in the labour market of women with children 
is  decreasing.49  According  to  the  2014  ISTAT  report  on  Daily  life,  on  average,  working 
women dedicate 5.13 hours a day to household work, while working men spend 1.5 hours 
on household tasks. According to the same report, there were positive signs for gender 
equality  among  couples  who  are  parents  who  both  work,  where  the  mother  is  aged 
between 25 and 44 years. Furthermore, in 2014, for the first time, the asymmetry index 
of household work fell below the 70:30 split, with 67.3 % of the family work carried out 
by women—a decline of 5 % compared to 2009 (71.9 %).50  

47   See Masselot, A. (2018) Family leave: enforcement of the protection against dismissal and unfavourable 
treatment, European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-
dismissal-and-unfavourable-treatment-pdf-962-kb and McColgan, Aileen (2015) Measures to address the 
challenges of work-life balance in the EU Member States, Iceland, Liechtenstein and Norway European 
network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/3631-reconciliation. 

48   http://test.oecdbetterlifeindex.org/#/11111111111. 
49   https://www.istat.it/it/files//2018/12/BES2018-cap-03.pdf. 
50   https://www.istat.it/it/files//2016/11/Report_Tempidivita_2014.pdf and 
https://www.istat.it/it/files//2016/11/EN_Uso_tempo_2016_1.pdf.  

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Country report - gender equality – Italy - 2022 

However, in Italy, the main difficulties are due to a lack of services. The structures and 
services useful to workers who have care duties are greatly insufficient and access to them 
is  also  too  expensive  compared  to  the  average  income  of  workers;  all  the  more  so  for 
women,  whose  income  is  normally  lower  than  that  of  men.  Furthermore,  the  quality  of 
public transport is often a problem.  

Part-time work, which is not always a solution considering the economic aspect mentioned 
above,  is  neither  a  worker’s  right  in  the  private  sector  nor  available  as  a  temporary 
measure.  Moreover,  except  for  the  cases  where  leave  (even  unpaid)  is  granted  to  the 
worker, the choice of giving up the job is a hard one, as re-entering the labour market is 
not an easy task due to the high unemployment rate.  

Traditional stereotypes concerning the roles of parents and the low percentage of women 
in highly qualified, well paid jobs and in positions of responsibility does not help, but acts 
as a multiplier factor.  

The only answer to all this is to change the social stereotypes of the distribution of roles 
within the family. This means improving leave provisions for men and improving services 
and  facilities,  such  as  kindergartens.  In  particular,  access  to  services  such  as  crèches, 
school  holiday  camps  and  other  school  activities,  mainly  depend  on  the  income  of  the 
parent/s and the offer is dramatically insufficient in comparison with the needs of families 
(both of employed and self-employed parents). 

5.1.2  Other issues 

The main problem in Italy is not related to a lack of legislation on the reconciliation of work 
and family life or on care leave. Indeed, domestic legislation is in line with the EU directives 
and usually exceeds EU legislation. The main issue is the effectiveness of the legislation: 
workers tend to refrain from exercising their rights, as they are afraid of the consequences 
from their employer. In particular, employees on fixed-term contracts or in project work 
or other types of temporary work, are afraid that their contract will not be renewed. This 
is  especially  true  for  younger  generations:  the  majority  of  young  people,  the  potential 
parents,  work  in  precarious  jobs,  lacking  a  secure  and  constant  income  as  well  as  the 
respective  pension  and  insurance  contributions.  This  deprives  them  of  the  choice  to 
exercise their rights. 

Furthermore, it is quite unusual in Italy for fathers to take parental leave. The gender pay 
gap and the fact that men are the main  breadwinners has a great influence on this. As 
parental leave is calculated as a percentage of the worker’s pay, it is more convenient for 
families to lose part of the woman’s pay than of the man’s pay, because in general, men 
earn much more than women and the percentage of pay lost in the event of parental leave 
is  mostly  higher  for  men  than  for  women.  As  a  measure  to  encourage  fathers  to  take 
parental leave, the maximum total length of the leave awarded per child was increased 
from  10  to  11  months  if  the  father  uses  at  least  three  months  (Article 32 
Decree No. 151/2001). Moreover, to reduce the negative effects of parental leave on the 
organisation or business, employers can offer fixed-term contracts, by way of exception 
starting  up  to  one  month  before  the  leave  begins  (or  longer  if  provided  by  collective 
bargaining), so that the worker taking leave can train his or her replacement. For small 
companies (employing less than 20 workers), a 50 % reduction in contribution is provided 
for  the  recruitment  of  persons  replacing  workers  on  parental  leave  (Article 4 
Decree No. 151/2001). 

Another  problem  is  that  paternity  leave  is  allowed  to  fathers  only  as  an  alternative  to 
maternity leave in very special cases: that is, if the mother dies or becomes seriously ill, 
or in the event of the mother abandoning the child, or if the child is in the exclusive custody 
of the father. This limits the rights of fathers and the promotion of a better balance in care 
duties  as  well  as  reconciliation  of  work  and  family  life.  On  the  other  hand,  the  special 

44 

 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

paternity  leave  introduced  by  Law  92/2012  is  also  a  very  weak  measure  in  respect  of 
promoting a better balance in care duties within the family (which is the declared aim of 
the measure), as it is still quite short.  

Finally,  a  weak  point  of  the  Italian  legislation,  despite  Article  9  of  Law  53/2000  (which 
finances companies that enforce collective agreements on positive action aimed at allowing 
parents  to  adopt  a  flexible  working  time  schedule,  even  after  parental  leave),  is  that 
workers returning from parental leave are not generally entitled to a right to change their 
working hours and/or patterns for a set period of time as a consequence of the leave or of 
being parents, and employers are not obliged to consider and respond to such requests.  

5.1.3  Overview of national acts on work-life balance issues 

Law 53/2000 on supporting motherhood and fatherhood, time for care and for vocational 
training,  and  coordination  of  hours  in  the  town’s  public  services  is  the  only  text  that 
explicitly  refers  to  reconciliation:  Law  53/2000  provides  for  the  enactment  of  a  policy 
aimed  both  at  reconciling  work  and  family  life  and  helping  social  solidarity.  More 
specifically,  Articles  22  and  26  state  that  regions  have  to  provide  regulations  for 
municipalities  to  co-ordinate  the  opening  hours  of  shops,  business,  public  services  and 
decentralised units of the public administration, and to promote the use of time for social 
solidarity.  Such  co-ordination  has  to  be  achieved  by  municipalities  on  the  basis  of  a 
territorial  plan,  which  can  include  experimental  plans  financed  by  the  region.  Article 27 
states that local bodies can support and promote associations called ‘time banks’, which 
facilitate the exchange of neighbourhood services, the access to services and facilities, the 
solidarity in local communities and the initiatives intended to exchange time-off for mutual 
benefit.  

Article  9  of  Law  53/2000  provides  an  important  measure  for  the  promotion  of  the 
reconciliation of work and family life in the form of symmetrical positive action measures 
that can apply to both women and men. Part of the Family Fund is allocated to businesses 
that enforce collective agreements on positive action aimed at: allowing parents to adopt 
a  flexible  working  time  schedule,  through  part-time,  teleworking,  home  work,  flexitime 
and other measures; reintroducing parents to the workplace after a period of leave linked 
to  reconciliation  reasons;  and  promoting  innovative  services  for  the  reconciliation  of 
private and professional life. Positive action measures have to apply to parents with minor 
children; priority is given to parents with children under 12 (or under 15 in the case of 
temporary custody or adoption) and to parents with disabled children. Funds are accessible 
to  private  employers  and  some  public  bodies,  such  as  local  health  units  and  hospitals. 
Moreover, the Family Fund can also support the promotion of and professional advice on 
the planning and the monitoring of the measures to be carried out also through territorial 
networks. The support of such measures by the Family Fund could be useful as far as the 
quality of the projects is concerned, but could also conceal the risk of wasting resources.  

There are several provisions related to pregnancy, maternity, paternity, parental and care 
leave, which for the most part are contained in Decree No. 151/2001 on the protection of 
motherhood and fatherhood. 

Finally, the Minister of Labour and Social Policies, together with the Minister of Economics 
and  Finance,  issued  a  Decree  on  12  September  2017  to  implement  Article  25  of 
Decree No. 80/2015 on the allocation of resources for measures  to reconcile family and 
working life. The decree sets criteria entitling employers who can demonstrate that they 
promote such reconciliation measures through company-wide collective agreements to ask 
for a reduction in their social contributions. Measures must cover parenthood (an extension 
of paternity leave and/or the integration of the respective allowance, crèches, e-learning 
for employees returning to work, vouchers for baby-sitting services), organisation (smart 
working,  flexible  working  hours,  part-time  work  and  the  transfer  of  holiday  leave)  and 
enterprise welfare (offers of time-saving services, offers of care services, vouchers for care 

45 

 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

services). The collective agreement must provide two measures and at least one must be 
included in the first two areas to entitle the employer to access the benefit. Moreover, the 
intervention  must  be  innovative  and  grant  better  conditions  compared  to  previous 
agreements and concern at least 70 % of the workforce employed during the year before 
the application.51 

5.1.4  Political and societal debate and pending legislative proposals 

There are no pending legislative proposals on work-life balance at present. The political 
and social debate is focused on the following issues: changing social stereotypes of the 
distribution  of  roles  within  the  family;  improving  leave  provisions  for  men;  improving 
services facilities, such as kindergarten, crèches, school holiday camps and other school 
activities; and making these activities available to all. Moreover, there is a debate on how 
to improve the work-life balance among entrepreneurs, who have understood that a good 
work-life balance also improves workers’ productivity, reduces health expenses, increases 
employees’ loyalty and adds value to the firm’s brand.52 

5.2  Pregnancy and maternity protection 

5.2.1  Definition in national law 

Decree No. 151/2001 on the protection of motherhood and fatherhood, which includes all 
rules  on  this  subject,  and  also  implements  Directives  2006/54  and  2010/18,  does  not 
provide a specific definition of a pregnant worker, a worker who has recently given birth 
or a worker who is breastfeeding. Nevertheless, some specific rights regarding the health 
of pregnant workers (provided under Chapter II of Decree No. 151/2001) are assured to 
workers from the beginning of pregnancy until the child is seven months old, subject to 
the condition that the employer has been informed. 

5.2.2  Obligation to inform employer 

Article  21  of  Decree  No.  151/2001  states  that,  before  the  beginning  of  the  compulsory 
period of maternity leave, the woman has to present to the employer a general practitioner 
certificate  attesting  the  presumed  date  of  delivery  and  the  general  practitioner  has  to 
submit an online certificate to INPS (National Institute for Social Security). Furthermore, 
within 30 days of the birth, the woman has to submit the birth certificate to her employer. 
Finally, the hospital also has to send the birth certificate (or the certificate of pregnancy 
loss) to INPS (online). 

5.2.3  Case law on the definition of a pregnant worker, a worker who has recently given 

birth and/or a worker who is breastfeeding 

There is no available case law on the definition of a pregnant worker, a worker who has 
recently given birth and/or a worker who is breastfeeding. 

5.2.4  Implementation of protective measures (Articles 4-6 of Directive 92/85) 

The  protective  measures  mentioned  in  Articles  4-6  of  Directive  92/85  have  been 
implemented by Decree No. 645/1996, which was later included in Decree No. 151/2001 
(Chapter II).  

51   Funds have been allocated to sustain experimental measures in 2016-2018 (EUR 55 200 000 for 2017 and 
54 600 000 for 2018). 20 % of the Fund will be equally shared among all employers while 80 % will be 
shared in proportion to the workforce that they employed during the year before the application. Employers 
can participate only once, as it is a pilot scheme. 

52   See, for example, https://blogunisalute.it/work-life-balance-aziende/. 

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Country report - gender equality – Italy - 2022 

Article 11 of the latter Decree provides for a specific ‘health and safety risk assessment’ 
related to pregnancy, which must be included in the general assessment to be drawn up 
for  all  workers  under  Decree  No.  81/2008,  and  also  provides  that  employees  and  their 
representatives  must  be  informed  of  the  results  and  the  respective  measures  to  be 
enacted.  

Article  7  imposes  a  ban  on  performing  duties  that  involve  the  lifting  of  weights  or  that 
could be too strenuous, or pose a risk to the health of the mother and/or of the child, as 
specifically  listed  in  two  annexes  to  the  decree,  and  provides  that  the  worker  must  be 
transferred to another job. The Labour Inspectorate can also order a change of job where 
the  worker  or  the  child  has  serious  health  problems  or  if  the  working  or  environmental 
conditions are held to be prejudicial to their state of health. In both cases maternity leave 
is anticipated if no different jobs are available. 

Under  Article  12,  following  the  results  of  the  risk  assessment  mentioned  above,  the 
employer must change the working conditions or schedule so as to avoid possible risks to 
the worker and, if this is not possible, the worker must be transferred to another job. The 
Labour  Inspectorate  must  be  duly  informed  and  it  can  then  order  an  extension  of  the 
compulsory  maternity  leave  to  cover  the  whole  period  (until  the  child  is  seven  months 
old). 

5.2.5  Case law on issues addressed in Articles 4 and 5 of Directive 92/85 

There is no available case law on issues addressed in Article 4 and 5 of Directive 92/85. 

5.2.6  Prohibition of night work 

Article 53 of Decree No. 151/2001 provides for a ban on night work (from midnight to 6 
o’clock)  from  the  certified  beginning  of  pregnancy  until  the  child  is  one  year  old. 
Furthermore, Article 53 states that workers cannot be required to work at night when they 
are: a mother of children aged less than 3 years or their cohabiting father; single parents 
of cohabitant children aged less than 12 years; an adoptive or foster mother of children 
during the first 3 years since adoption or beginning of legal custody or alternatively the 
adoptive or foster father cohabiting with the mother; a mother or father who care for a 
disabled person. In these cases, workers are given daytime work, unless this is impossible 
for the arrangements of the enterprise. 

The  Italian  legislation  goes  further  than  the  EU  directive,  as  it  provides  the  same 
guarantees to fathers as to mothers. However, Article 7 of the directive provides for the 
possibility to avoid night work, while Article 53 states a ban on night work only in certain 
circumstances. 

5.2.7  Case law on the prohibition of night work 

The  Court  of  Cassation,  in  case  No.  23807  of  14  November  2011,  declared  null  the 
dismissal  of  a  working  mother  of  children  aged  less  than  3  years  who  refused  to  be 
employed on night work, as the employer had not proved that there was no day job where 
she could have been employed.  

The issue of night work is open for women of flight crews: there has been discussion in 
case law on whether Article 53 of Decree No. 151/2001 or the sectorial specific legislation 
on working time, which makes no provisions for exemption from night work can be applied 
to them.53  

53   Tribunal Busto Arsizio, 23-07-2018 and 16-09-2019; Court of Cassation 25-07-2017, No. 18285. 

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Country report - gender equality – Italy - 2022 

5.2.8  Prohibition of dismissal  

Protection against dismissal is ensured on the ground of pregnancy alone, regardless of 
whether the employer has been informed of the pregnancy. Protection is granted during 
pregnancy, maternity leave, parental leave and for a period of 12 months following the 
date  of  confinement.  A  dismissal  in  this  situation  is  considered  to  be  equal  to  a 
discriminatory dismissal and the special remedy (reinstatement) provided by Article 18 of 
the  Worker’s  Statute  is  enforceable  (Article  54,  Decree  No.  151/2001).  The  same 
protection against dismissal that is provided for natural parents is granted to adoptive or 
foster parents until one year after the child has entered the family.  

Moreover, in response to the issue of ‘blank resignation’, Law 92/2012 changed Article 55, 
Paragraph 4 of Decree No. 151/2012. ‘Blank resignation’ refers to an undated resignation 
letter signed by a worker at the time of recruitment so as to be used by the employer to 
make the  worker resign when needed  (i.e. when pregnant).  Often  the employer makes 
recruitment conditional on signing such a letter. Law 92/2012 extended the period during 
which  mutual  termination  of  the  employment  contract  or  resignation  letters  of  working 
mothers must be signed in front of an inspector of the Minister of Labour. This period now 
starts at the beginning of the pregnancy and ends when the child reaches the age of three. 
The  same  rule  applies  to  adoptive  parents  or  persons  who  have  been  given  the  official 
custody of a child from birth/entering the family. In the case of an international adoption, 
the ban on dismissal provided by Article 54 of Decree No. 151/2001 is enforceable from 
the communication of the proposal by the association that is in charge of the case.  

Article 54 of Decree No. 151/2001 allows the working mother to be dismissed in only four 
exceptional cases: a serious offence by the female worker; the cessation of the activities 
of  the  company;  the  end  of  a  fixed-term  contract  and  the  negative  result  of  the 
probationary period if the ban on discrimination has not been infringed. In these cases the 
mother will continue to receive the maternity allowance, which is paid directly by the INPS 
(the National Institute for Social Security), except in the latter case.  

Finally, Article 35 of Decree No. 198/2006 provides a ban on the dismissal of women during 
the first year of marriage. 

5.2.9  Redundancy and payment during maternity leave 

During the period covered by the ban on dismissal, the worker cannot be put on short-
time hours or made redundant in a collective procedure except in the case of the cessation 
of  the  company’s  activities.  In  the  latter  case,  the  mother  will  continue  to  receive  the 
maternity allowance, which is directly paid by the INPS (the National Institute for Social 
Security). 

The same protection against dismissal provided for natural parents is granted to adoptive 
or foster parents until one year after the child has entered the family. In the case of an 
international adoption, the ban on dismissal provided by Article 54 of Decree No. 151/2001 
is enforceable from the communication of the proposal by the association that is in charge 
of the case.  

5.2.10 Employer’s obligation to substantiate a dismissal 

Protection is granted during pregnancy, maternity leave, parental leave and for a period 
of 12 months following the date of confinement: a dismissal in this situation is considered 
to be equal to a discriminatory dismissal and the special remedy (reinstatement) provided 
by  Article  18  of  the  Worker’s  Statute  is  enforceable  (Article  54  Decree  No.  151/2001). 
Article 54 of Decree No. 151/2001 allows a working mother to be dismissed only in four 
exceptional cases: a serious offence by the female worker; the cessation of the activities 
of  the  company;  the  end  of  a  fixed-term  contract  and  the  negative  result  of  the 

48 

 
 
 
 
 
 
 
 
 
 
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probationary period if the ban on discrimination has not been infringed. In these cases the 
mother will continue to receive the maternity allowance, which is directly paid by the INPS 
(the  National  Institute  for  Social  Security),  except  in  the  latter  case.  In  these  cases, 
employers  must  indicate  substantiated  grounds  for  the  dismissal  in  writing.  Indeed, 
general  rules  are  enforceable  that  provide  the  obligation  to  indicate  the  substantiated 
grounds for the dismissal in writing (Article 2, Paragraph 2 of Law 604/1966). In case of 
an  infringement  of  this  provision,  the  dismissal  does  not  produce  any  effect.  The 
consequences of such an infringement are limited to the restitution of damages. It is up 
to  the  employer  to  provide  evidence  of  the  real  reason  for  the  dismissal  in  order  to 
demonstrate that it is included in the four legitimate exceptions mentioned above. 

5.2.11 Case law on the protection against dismissal 

Some case law has been published regarding the interpretation of the exceptions to the 
ban on dismissal during pregnancy.54 The Tribunal of Venice of 9 February 2010 ruled that 
the dismissal of a pregnant woman at the end of the probationary period is discriminatory 
if the woman proves both that there is no reason for dismissal as her capacity has been 
positively ascertained and that she is pregnant. The Constitutional Court in case No. 172 
of 27 May 1996 ruled that an employer may dismiss a pregnant employee on the grounds 
of  the  negative  result  of  the  probationary  period  only  if  he  can  prove  –  or  if  there  is 
objective evidence – that he did not know of the woman’s pregnancy; otherwise, he must 
explain the reasons justifying the negative evaluation of the probationary period, in order 
to  disprove  that  the  reason  for  the  dismissal  was  the  pregnancy  of  the  woman.  Other 
decisions ruled that: the consequence of the discriminatory dismissal is the payment of 
retribution from the day of dismissal to that of the  woman’s reintegration into work, as 
the dismissal is null and void;55 the dismissal of pregnant women is null and void in the 
event  of  illegal  employment,  even  if  the  employer  had  not  been  informed  of  the 
pregnancy.56 

The Court of Cassation, in case No. 1168 of 2 March 1989, ruled that pregnancy forbids 
women from working for five months but has no impact on their right to be employed.57  

There  are  several  published  cases  regarding  the  blank  resignation  of  working  mothers. 
The  Tribunal  of  Florence  of  12  December  2005  stated  that  if  the  resignation  is  not 
validated, the work relationship is not terminated and the employee, therefore, has the 
right  to  go  back  to  work  and  to  receive  remuneration,  plus  compensation,  currency 
revaluation and legal interest for the months in which they were kept out of work (in the 
same sense as the finding of the Tribunal of Milan of 12 July 2007). Other cases concern 
the relevance of being aware of the pregnancy for these rules to be enforced. The Court 
of Appeal of Florence, of 9 September 2006, ruled that Article 55 was enforceable despite 
the  fact  that  the  employer  did  not  know  about  the  pregnancy  of  the  worker  and  the 
Tribunal  of  Treviso  of  4  January  2007  ruled  that  Article  55  was  enforceable  only  if  the 
employee knew about her pregnancy when she resigned 

5.3  Maternity leave 

5.3.1  Length 

Compulsory maternity leave, under Articles 16 and 20 of Decree No. 151/2001, lasts for 
five months: two to be taken before the birth, three after the birth. This entire period can 
be postponed by one month if a national health service specialist deems that there is no 

54   Court of Cassation, civ., sez. lav., 21-12-2004, No. 23684; Tribunal of Milan, 24-05-2010; Court of 

Cassation civ., sez. lav., 28-06-2013, No. 16415; Court of Cassation civ., sez. lav., 26-01-2017, No. 2004; 
Court of Cassation, civ., sez. lav., 28-09-2017, No. 22720. 

55   Court of Cassation, civ., sez. lav., 11-01-2017, No. 475. 
56   Court of Cassation, civ., sez. lav., 20-07-2012, No. 12693; Court of Cassation, civ., sez. lav., 03-07-2015, 

No. 13692. 

57   See also Council of State, sez. VI, 28-07-1982, No. 392. 

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risk to the mother and to the unborn child, or it can be brought forward when the worker’s 
job  involves  a  risk  to  the  pregnancy.  Alternatively,  women  can  take  the  five  months 
maternity leave entirely after the birth, provided that a national health service specialist 
deems that there is no risk to the mother and to the unborn child (Article 1, Paragraph 485 
of Law 145/2018, which amended Article 16 of Decree No. 151/2001). 

5.3.2  Obligatory maternity leave 

Compulsory maternity leave, under Articles 16 and 20 of Decree No. 151/2001, lasts for 
five months: two to be taken before the birth, three after the birth. This entire period can 
be postponed by one month if a national health service specialist deems that there is no 
risk to the mother and to the unborn child, or it can be brought forward when the worker’s 
job involves a risk to the pregnancy.  

Alternatively, women can take the five months of maternity leave entirely after the birth, 
provided that a national health service specialist deems that there is no risk to the mother 
and the unborn child (Article 1, Paragraph 485 of Law 145/2018, which amended Article 
16 of Decree No. 151/2001). Although this measure is likely to be appreciated by working 
mothers, and has been prudently accompanied by a thorough medical evaluation, it also 
raised  some  criticism  as  regards  the  risk  of  exposing  women,  particularly  those  in 
precarious  employment,  to  possible  pressures  to  keep  on  working  until  the  birth  of  the 
child.  Careful  monitoring  of  the  implementation  of  this  measure  would  be  advisable,  at 
least for the first few years. 

5.3.3  Legal protection of employment rights (Article 5, 6 and 7 of Directive 92/85)  

The  protective  measures  mentioned  in  Articles  4  to  6  of  Directive  92/85  have  been 
implemented by Decree No. 645/1996, which was later included in Decree No. 151/2001 
(Chapter II).  

Article  11  of  Decree  No.  151/2001  provides  for  a  specific  ‘health  and  safety  risk 
assessment’ related to pregnancy, which must be included in the general assessment to 
be drawn up for all workers under Decree No. 81/2008, and also provides that employees 
and their representatives must be informed of the results and the respective measures to 
be enacted.  

Article  7  imposes  a  ban  on  performing  duties  that  involve  the  lifting  of  weights  or  that 
could be too strenuous, or pose a risk to the health of the mother and/or of the child, as 
specifically  listed  in  two  annexes  to  the  decree,  and  provides  that  the  worker  must  be 
transferred to another job. The Labour Inspectorate can also order a change of job where 
the  worker  or  the  child  has  serious  health  problems  or  if  the  working  or  environmental 
conditions are held to be prejudicial to their state of health. In both cases maternity leave 
is anticipated if no different jobs are available. 

Under  Article  12,  following  the  results  of  the  risk  assessment  mentioned  above,  the 
employer must change the working conditions or schedule so as to avoid possible risks to 
the worker and, if this is not possible, the worker must be transferred to another job. The 
Labour  Inspectorate  must  be  informed  and  it  can  then  order  an  extension  of  the 
compulsory  maternity  leave  to  cover  the  whole  period  (until  the  child  is  seven  months 
old). 

Article 53 of Decree No. 151/2001 provides for a ban on night work (from midnight to 6 
o’clock)  from  the  certified  beginning  of  pregnancy  until  the  child  is  one  year  old. 
Furthermore, Article 53 states that workers cannot be required to work at night when they 
are: a mother of children aged less than 3 years or their cohabiting father; single parents 
of cohabitant children aged less than 12 years; an adoptive or foster mother of children 
during the first 3 years since adoption or beginning of legal custody or alternatively the 

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adoptive or foster father cohabiting with the mother; a mother or father who care for a 
disabled person. In these cases, workers are given daytime work, unless this is impossible 
for the arrangements of the enterprise. 

Finally,  Article  1,  Paragraph  137,  Law  234/2021  (Budget  Act  for  2022)  includes  an 
experimental measure for the year 2022 aimed at encouraging working mothers to return 
to work: women working in the private sector will benefit from a 50 % cut in contributions 
for one year after the compulsory maternity leave. 

The  Italian  legislation  goes  further  than  the  EU  directive,  as  it  provides  the  same 
guarantees to fathers as it does to mothers.  

5.3.4  Legal protection of rights ensuing from the employment contract  

Pregnancy and maternity leave are counted as actual work as regards seniority, annual 
leave, the thirteenth month and must be deemed, for the purposes of promotion, to be a 
period of employment, unless any special requirements are laid down for the purpose by 
collective agreements (Article 22, Decree No. 151/2001). The same provision also applies 
when  the  compulsory  maternity  leave  is  anticipated  or  extended  by  the  Labour 
Inspectorate or arises from the impossibility of transferring the worker from a risky job or 
from  night  work.58  Furthermore,  the  Budget  Act  for  2016  (Law  208/2015,  Article 1, 
Paragraph 183) clarified that compulsory maternity leave must take into account the aim 
of the productivity bonus, meaning that the suspension of the working relationship in this 
period cannot jeopardise the mother’s income in respect of wage incentives.59 

5.3.5  Level of pay or allowance 

During the whole period of maternity leave, mothers are entitled to a daily benefit paid by 
the National Institute for Social Security (INPS). This benefit is granted to those working 
in  the  private  and  public  sectors,  to  self-employed  persons  and  to  professionals.  The 
amount  of  the  maternity  benefit  is  80 %  of  the  average  overall  daily  wage.  During  the 
leave,  figurative  contributions  are  taken  into  account  for  pension  rights  and  amounts. 
There is no ceiling to the allowance. 

Therefore, the maternity leave allowance is considerably higher than the sick leave pay in 
both the private and public sector (from 20 % to 40 % higher). 

5.3.6  Additional statutory maternity benefits 

Most  collective  agreements  (such  as,  for  instance,  the  collective  agreements  for  the 
chemical sector industries and the tourism sector) provide for an integration of maternity 
allowance of up to 100 % for the first five months to be paid by the employer. Women in 
the  civil  service,  according  to  their  employment  contract,  are  entitled  to  a  maternity 
allowance equal to their full wage. 

5.3.7  Conditions for eligibility (Article 11(4) of Directive 92/85) 

Maternity benefits do not require a minimum amount of national insurance contributions 
to have been paid: it is enough that the claimant was employed at the time the compulsory 
leave period began and no minimum length of service is required.60 

58   In the event that the worker has been transferred to a different job at a lower level she has the right to 
retain her previous remuneration and level; if the job is at a higher level, she is entitled to be promoted 
under the conditions provided by the ordinary ruling for all other workers. 

59   Under Paragraph 635 of Article 1 of Law 205/2017 (the Budget Act), the expiry of university researchers’ 
fixed-term contracts was postponed for 5 months corresponding to the length of compulsory maternity 
leave. 

60   There is also a right to the maternity leave allowance in cases where the dismissal is exceptionally justified 

within the first year of the life of the child (Article 3 Decree No. 80/2015). 

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5.3.8  Right to return to the same or an equivalent job (Article 15 of Directive 2006/54) 

Article 56 of Decree No. 151/2001 guarantees the right of a woman to return to her job 
or to an equivalent job after her maternity leave, on terms and conditions that are no less 
favourable to her, and to benefit from any improvement in working conditions to which 
she would have been entitled during her absence. It also provides for the right to return 
to the same workplace or to another workplace in the same municipality and to work there 
until the child is one year old. 

5.3.9  Legal right to share maternity leave 

According  to  Article  28  of  Decree  No.  151/2001,  working  fathers  may  obtain  maternity 
leave  in  cases  provided  for  by  Article  28  of  Decree  No.  151/2001.  Under  Article  28  of 
Decree No. 151/2001 maternity leave is granted to the father after the birth for the whole 
length of the maternity leave or for the remaining period in special cases, that is: where 
the mother, including a professional and self-employed mother, dies or becomes seriously 
ill; in the event that the mother abandons the child; if the child is in the sole custody of 
the father. Adoptive and foster fathers can also take the maternity leave in place of the 
mothers in the same special cases (Article 31). The same economic and working conditions 
as well as notional contributions provided for the maternity leave are granted to the father. 

Moreover,  under  Article  1  Paragraph  278  of  Law  145/2018,  following  Article  4  of 
Law 92/2012, fathers have the (optional) right to take one day of leave (taken from the 
mother’s leave allocation) within the first five months after the child’s birth.  

5.3.10 Case law 

The Constitutional Court of 13 July 2018 ruled that Paragraph 3 of Article 24 of Decree 
No. 151/2001  on  the  protection  of  motherhood  and  fatherhood  contradicts  the 
Constitution.  Article  24  extends  the  right  to  maternity  allowance  for  the  period  of 
compulsory maternity leave to working mothers who, at the beginning of this period, are 
temporarily  absent  from  work,  or  on  leave  from  work  with  no  right  to  remuneration  or 
have been unemployed for less than 60 days. Under Paragraph 3 of Article 24, absences 
due to illness or an accident at work, leave due to care for a sick child, absence due to 
foster care, or periods of interruption of work in case of a vertical part-time contract,61 are 
exceptions  and  not  to  be  reckoned  under  the  time  limit  of  60  days.  The  Constitutional 
Court  ruled  that  paragraph  3,  which  does  not  include  periods  of  leave  to  take  care  of 
disabled relatives in these exceptions, is not in compliance with Articles 3, 31 and 37 of 
the Constitution ensuring the principle of equality and the protection of the family and of 
motherhood.  The Court  underlined  in  its  ruling  that the  remunerated  period of  leave to 
take care of a disabled relative, which is grounded on objective and strict requirements, 
must  be  included  in  the  other  exceptions  provided  by  the  law  mentioned  above  as  it 
responds  to  the  need  of  assuring  that  the  necessary  care  for  disabled  persons  can  be 
provided by their family. Not recognising the need to care for  a disabled relative would 
also arbitrarily sacrifice the special protection granted by Article 37 of the Constitution to 
both the mother and the child as it would compel the mother to choose between taking 
care of the disabled person or returning to work to benefit from the maternity allowance. 
The judgment of the Constitutional Court, which added the period of leave to take care of 
disabled  persons  to  the  exceptions  expressly  laid  down  by  paragraph  3  of  Article  24, 
further  strengthened  the  protection  of  maternity  and  was  a  necessary  intervention  (as 
stated by the Court itself) as case law could not merely add it to the list of exceptions by 
way of interpretation.  

61   A vertical-time part-time employment scheme provides for full-time employment, but only at 

predetermined times, that is, in some days of the week, in some weeks of the month, or in some months of 
the year. 

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In  sex  discrimination  cases,  Article  40  of  Decree  No.  198/2006  provides  for  the  partial 
reversal of the burden of proof: the Court of Appeal of Milano of 17 June 2009, ruled that 
when a pregnant women did not have access to work and alleged facts from which it may 
be presumed that there had been direct or indirect discrimination, then it was up to the 
employer  to  prove  the  absence  of  discrimination  on  the  basis  of  pregnancy;  the  same 
decision awarded compensation for damages of one year’s pay.  

One of the main problems in relation to maternity leave is the consequences of taking the 
leave on future pay. The Court of Appeal of Turin recently deemed a clause of a collective 
agreement at the enterprise level to be discriminatory as it infringed Articles 3 and 37 of 
the  Constitution,  25  Paragraph  2bis  of  Decree  No.  198/2006  and  Article  3  of 
Decree No. 151/2001.62  The  clause  provided  ‘real  presence  at  work’  as  a  criteria  to  be 
eligible  to  receive  additional  remuneration  as  an  incentive,  and  did  not  regard  family-
related leave, including compulsory maternity leave, parental leave and leave for illness 
as  working  time.  Although  the  criterion  is  officially  neutral,  it  results  in  indirect  pay-
discrimination (direct as far as maternity leave is concerned), since a higher percentage 
of female workers than male workers take family-related leave. Moreover, the company 
in this case had not provided a permissible justification regarding the requirement of ‘real 
presence at work’. The employer was ordered: to cease the discrimination by regarding 
such leave as actual work with the aim of providing remuneration as an incentive; to pay 
the additional remuneration incentive to the claimants; and to enhance a plan to remove 
the discrimination where the change of the criteria mentioned above had to be included in 
future  collective  bargaining  at  the  enterprise  level.  The  latter  was  promoted  by  the 
intervention of the regional equality adviser, as it was a case of collective discrimination 
(in such cases the advisers can act on their own in court). 

Another case is on the right to return to the same job after taking maternity leave: during 
the employee’s maternity leave, the company hired another worker to whom she had to 
report for duties that she used to carry out autonomously. This change, which occurred 
when she returned to work, put her in a disadvantageous condition, and the Tribunal of 
Ferrara  of  11  September  2017  stated  it  was  not  justified  by  objective  reasons.  The 
company  was  sentenced  to  cease  the  discriminatory  behaviour  by  eliminating  the 
supervision of her activity, to refund damages and to advertise the judgment both in the 
firm and in a local newspaper.  

Some published cases dealt with the right to the compulsory maternity leave allowance: 
the right to the allowance for vertical part-timers, workers performing their job in seasonal 
activities  and  workers  whose  employment  relationship  legitimately  ended  during 
pregnancy.63  

A judgment of the Tribunal of Florence of 6 February 2014 found  gender discrimination 
where the Health and Insurance Institute, which had to pay the maternity allowance to a 
hostess  of  an  airline  company,  calculated  only  50 %  of  the  ‘flight  allowance’  in  the 
definition of remuneration, making reference to the same definition of remuneration used 
to calculate the sick pay allowance. The judgment is particularly interesting as it deals with 
the  problem  of  the  comparator  in  the  gender  pay  gap.  In  particular,  the  tribunal 
emphasised that discrimination does not necessarily involve a comparison (between some 
subjects  who  suffer  detrimental  treatment  compared  to  other  subjects  in  the  same 
conditions),  as  maternity  is  biologically  connected  to  gender.  As  a  consequence,  the 
detrimental treatment is discriminatory in that it affects a working woman on the ground 
of her condition, without any need to find an existing or hypothetical comparator.64  

62   Court of Appeal of Turin, 10.1.2018. 
63   Constitutional Court, 29-03-1991, No. 132; Pretura of Milan, 23-10-1987; Court of Cassation civ., 09-11-

1984, No. 5668. 

64   See CJEU, judgment of 8 November 1990, Dekker v. Stichting Vormingscentrum voor Jong Volwassenen, C-

177/88, ECLI:EU:C:1990:383. 

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There are a few other cases of relevance, relating to: considering compulsory maternity 
leave as part of the length of service in a public competition; the legitimacy of the worker’s 
behaviour if she does not inform the employer of her pregnancy before recruitment on a 
fixed-term contract; the legitimacy of the employer’s behaviour if a pregnant women is 
not hired, despite her overcoming the practical test, because there is no job in the firm 
compatible with her health during pregnancy; the illegitimacy of the employer’s behaviour 
if a pregnant women is not hired because she should be assigned to a job dangerous for 
her  and  her  child’s  health;  the  illegitimacy  of  the  exclusion  from  access  to  work  of  a 
pregnant  worker  by  an  employment  exchange;  the  illegitimacy  of  pregnancy  tests  for 
access to work.65  

5.4  Adoption leave 

5.4.1  Existence of adoption leave in national law 

Decree No. 151/2001 extends the same provisions on maternity leave and the respective 
rights/protection to national and international adoption and official custody of a child. The 
Italian regulations fulfil the EU requirements, as the general rules on the forms of leave 
provided by the decree have been adapted to the particular needs of adoption and official 
custody:  for  example,  for  adoption,  maternity  leave  must  be  taken  during  the  first  five 
months after the minor comes to live with the family and it lasts for five months (with no 
limits as to the age of the child); in the case of an international adoption, maternity leave 
can also be taken before the child has entered the family, that is during the stay in the 
territory of the country involved in the adoption. In the case of fostering, the leave must 
be taken within five months of the minor coming to live with the family and it lasts for 
three months. Just as for natural mothers, if the child is in hospital such periods of leave 
can be postponed – but only once. 

5.4.2  Protection against dismissal (Article 16 of Directive 2006/54) 

The same protection against dismissal provided for natural parents is granted to adoptive 
or foster parents until one year after the child has entered the family. In the case of an 
international adoption, the ban on dismissal provided by Article 54 of Decree No. 151/2001 
is enforceable from the communication of the proposal by the association that is in charge 
of the case. Article 56 of Decree No. 151/2001 also extends the same rights after the end 
of adoption leave, as provided for the maternity leave, to adoptive and foster parents until 
one year after the child has entered the family. 

5.4.3  Case law 

There  is  no  relevant  national  case  law  available  in  relation  to  adoption  leave,  related 
employments rights and/or return to work after adoption leave. 

5.5  Parental leave 

5.5.1  Implementation of Directive 2010/18 

Directive  2010/18 was  implemented by  the  2013  Budget Act:  Law  228/2012 (Article  1, 
Paragraph 339) which provided some slight amendments to Decree No. 151/2001.66 The 

65   Puglia Regional Administrative Court (TAR), sez. I, 25-06-1990, No. 570; Tribunal of Siracusa of 10-05-
2017; Court of Cassation civ., sez. lav., 24-08-1995, No. 8971; Court of Appeal of Milan, 17-06-2009; 
Pretura Florence, 05-08-1988; Court of Cassation civ., sez. lav., 09-10-1997, No. 9800; Pretura Pistoia, 
06-04-1996; Court of Cassation, civ., 16-04-1991, No. 4064; Council of State, sez. VI, 05-08-1991, No. 
505; Pretura Domodossola, 15-10-1981. 

66   Law 228/2012 did not mention its implementing nature and no tables were drawn up to illustrate the 

correlation between Directive 2010/18 and the transposition measures. Indeed, the implementing nature of 
Paragraph 339 of Article 1 of Law 228/2012 can be assumed by a previous attempt at fulfilling Directive 

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terms of the implementation were very limited, however. This was because Articles 32 to 
38 of Decree No. 151/2001 already provided for a scheme on parental leave that was very 
comprehensive in comparison with EU standards.  

5.5.2  Applicability to public and private sectors (Clause 1 of Directive 2010/18) 

The  provisions  on  parental  leave  provided  by  Decree  No.  151/2001  apply  to:  all  the 
employees of the private and the public sector, including apprentices and employees of 
cooperative companies (i.e. companies formed by workers who work within the company 
but who are at the same time associated with the company).  

5.5.3  Scope of the transposing legislation 

The  legislation  on  parental  leave  provided  by  Decree  No.  151/2001  also  applies  to: 
contracts of employment or employment relationships related to part-time workers; fixed-
term  contract  workers  or  persons  with  a  contract  of  employment;  or  an  employment 
relationship with a temporary agency. 

5.5.4  Length of parental leave 

Parental  leave  lasts  for  a  total  of  10  months  for  both  parents.  As  a  general  rule,  each 
parent  cannot  take  up  more  than  six  months  of  the  leave,  although  single  parents  are 
entitled to 10 months. It may be taken by either the father or the mother during the first 
12 years of the child’s life, or during the 12 years after the child entered the family in the 
case of adoption or fostering (however the leave cannot be taken when the child comes of 
age).  If  a working  father decides  to  take  no  less than  three  months  off  from work,  the 
total time allowed to both parents is eleven months. This law is  clearly an incentive for 
working fathers to take leave (Articles 32 and 36 of Decree No. 151/2001). 

5.5.5  Age limits 

Parental leave can be taken during the first 12 years of the child’s life or from when the 
child  entered  the  family  in  the  case  of  adoption  or  fostering  (Article  32  of  Decree  No. 
151/2001). Therefore, in the case of adoption or fostering, the age of the child is irrelevant. 

5.5.6  Individual nature of the right to parental leave  

Parental leave is an individual right for each of the parents.  

5.5.7  Transferability of the right to parental leave  

As  the  total  period  of  parental  leave  is  10  months,  and  the  total  for  each  parent  is  six 
months, the result is that two months of leave can be transferred from one parent to the 
other; in this case the ‘donor parent’ retains the right to four months of leave for his/her 
own use (Articles 32 and 36 of Decree No. 151/2001).  

5.5.8  Form of parental leave 

Parental leave can be taken for one continuous period or various periods. The means of 
application of the parental leave on an hourly basis are stipulated by collective agreements 
or by the law (Article 32, Decree No. 151/2001). 

5.5.9  Work and/or length of service requirements (Clause 3(b) of Directive 2010/18)  

2010/18/EU, which mentioned its objective and the content of which was identical to that of Paragraph 339. 
This Government Decree (No. 216/2011), however, was never converted into law and has thus lapsed. 

55 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - gender equality – Italy - 2022 

There is no work and/or length of service requirement in order to benefit from parental 
leave. 

5.5.10 Notice period 

Notice  must  be  given  by  the  employee  to  the  employer  when  exercising  the  right  to 
parental leave and cannot be less than five days or two days in case of hourly use. The 
worker, as a consequence of the implementation of Directive 2010/18/EU, has to specify 
the beginning and the end of the period of leave. The worker’s interests have priority in 
respect of parental leave. Previous notice is not required to be given in case of an objective 
impossibility  (Article  32  of  Decree  No.  151/2001,  as  modified  by  Decree  No.  80/2015). 
The  Ministry  of  Labour  has,  however,  issued  a  lawful  interpretation  –  interpello  (under 
Article 9  of Decree No. 124/2004, specifically  Interpello No.  13  of  11  April 2016)67  –  of 
Article 32  of  Decree  No.  151/2001.  The  amendment  provided  by  Decree  No.  80/2015 
reduced  the  notice  period  to  take  parental  leave  from  15  to  5  days,  but  the  interpello 
stated that clauses of collective agreements signed before the amendment and providing 
for a longer period of notice of 15 days (by reference to the previous text of the decree) 
are still enforceable. 

5.5.11 Postponement of parental leave (Clause 3(c) of Directive 2010/18) 

Parental  leave  cannot  be  postponed.  Law  228/2012,  however,  provided  that  special 
arrangements for the application of parental leave – including the possibility to postpone 
the granting of the leave by the employer – can be stipulated by collective agreements, 
for the security/defence sector and the fire service. Moreover, the Ministry of Labour issued 
a  lawful  interpretation  or  interpello  (under  Article  9  of  Decree  No.  124/2004,  Interpello 
No. 13 of 11 April 2016)68 that reiterated that, where the employer wishes to postpone 
the parental leave, the worker’s interest has priority, although it opened up the possibility 
for  possible  monthly  agreements  with  the  worker  or  union  representative  aimed  at 
reconciling the right to parental leave with the needs of the enterprise. 

5.5.12 Special arrangements for small firms (Clause 3(d) of Directive 2010/18) 

There are no special arrangements for small firms. 

5.5.13 Special rules and exceptional conditions for parents of children with a disability or 

long-term illness (Clause 3(3) of Directive 2010/18) 

Under Article 33 of Decree No. 151/2001 an extension of parental leave for up to three 
years in total during the first 12 years of the child’s life is provided on condition that the 
child  is not hospitalised  in  a  specialist institution  (unless the  presence  of  the parents is 
required by doctors). This leave can be taken for a continuous period or during various 
periods,  and  is  an  alternative  to  the  legally  sanctioned  rest  periods  for  the  parents  of 
disabled children (amounting to two hours paid rest each day, or three days paid rest each 
month). The time off/leave is paid by the employer, who then deducts the amount from 
what is owed to the relative welfare agency. 

Moreover, working mothers or fathers of children who have been severely disabled for at 
least five years may also take a continuous or split period of up to two years off from work. 
The benefit during this period is the same as the last salary earned, up to an annual ceiling. 
Notional contributions are calculated (Article 42, Paragraph 5 of Decree No. 151/2001). 

67   http://www.lavoro.gov.it/notizie/Documents/13-2016.pdf. 
68   http://www.lavoro.gov.it/notizie/Documents/13-2016.pdf. 

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5.5.14 Measures addressing the specific needs of adoptive parents (Clause 4 of Directive 

2010/18) 

Parental  leave  provisions  apply  to  all  parents,  on  the  same  conditions,  including  in  the 
case of national and international adoption and legal custody of children. Parental leave 
can  be  taken  during  the  first  12  years  after  the  child  entered  the  family  in  the  case  of 
adoption or fostering. Therefore, in respect of adoption or fostering, the age of the child 
is irrelevant; however the leave cannot be taken when the child comes of age (Article 36 
of Decree No. 151/2001). 

5.5.15 Provisions  protecting  workers  against  less  favourable  treatment  or  dismissal 

(Clause 5(4) of Directive 2010/18) 

According to Article 25 of the Equal Opportunities Code (Decree No. 198/2006) and Article 
3 of Decree No. 151/2001, less favourable treatment related to pregnancy, motherhood 
or  fatherhood  as  well  as  to  the  respective  rights,  are  regarded  as  direct  gender 
discrimination. This is also true for adoptive mothers and fathers. Dismissal on the grounds 
of an application for or the taking of parental leave is null and void and the special remedy 
of reinstatement provided by Article 18 of the Worker’s Statute is enforceable (Article 54 
Decree No. 151/2001). Compensation is also possible in place of reinstatement. 

5.5.16 Right to return to the same or an equivalent job (Clause 5(1) of Directive 2010/18) 

Under Article 56 Paragraph 3 of Decree No. 151/2001, at the end of the parental leave 
workers  have  the  right  to  return  to  the  same  workplace  or,  if  this  is  not  possible,  to  a 
workplace in the same municipality as the previous one, to the same job or, if that is not 
possible, to an equivalent job. 

5.5.17 Maintenance of rights acquired or in the process of being acquired by the worker 

(Clause 5(2) of Directive 2010/18) 

There is no explicit provision that states that all rights acquired or in the process of being 
acquired by the worker on the date on which parental leave starts are maintained as they 
leave.  However,  under  Article  34  of 
stand  until 
Decree No. 151/2001, periods of leave count towards the worker’s length of service. They 
do not count as regards paid or unpaid holidays and Christmas bonuses. 

the  parental 

the  end  of 

5.5.18 Status of the employment contract or relationship during parental leave 

The employment relationship is suspended during parental leave. 

5.5.19 Continuity of entitlement to social security benefits 

The continuity of entitlements to social security covered under the different schemes, in 
particular healthcare, is provided.  

Benefits are granted even if the due premiums have not been paid (under the principle of 
automatic payment of benefits of Article 2116 of the Civil Code).  

5.5.20 Remuneration 

During the leave period, the employer only forwards an allowance, which is actually paid 
by the INPS (National Institute for Social Security). 

5.5.21 Social security allowance 

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During the periods of parental leave, for the first six years of the child’s life (or during the 
first  six  years  from  the  day  that  the  child  enters  the  family  in  the  case  of  adoption  or 
official custody),69 parents are entitled to a benefit equal to 30 % of their normal wages 
for  a  total  of  six  months  for  both  parents.  So  out  of  the  10  (or  11)  months  only  6  are 
partially paid. Notional contributions, that is contributions credited by the state, are taken 
into account for pension rights and amounts. This also applies to any period of extended 
leave for parents of severely disabled children.  

For any leave taken after the child reaches the age of six, or over the maximum period of 
six months, the benefit is only paid if the claimant’s earnings are less than 2.5 times the 
minimum pension paid under the general compulsory insurance system and for children 
aged 8 or under. In this case, the notional contribution calculations for pension purposes 
are  reduced,  but  the  amount  can  be  fully  supplemented  through  the  redemption  of 
contributions (Articles 34 and 35 of Decree No. 151/2001). 

5.5.22 More favourable provisions (Clause 8 of Directive 2010/18) 

Italian  legislation  provides  for  more  favourable  provisions  than  those  laid  down  by 
Directive  2010/18/EU.  These  concern:  the  length  of  the  leave;  its  provision  on  a  non-
transferrable basis (just two months out of six for each parent can be transferred); the 
fact that parental leave and the allowance paid during that period are not subject to any 
qualification periods; high-level provisions for parents of children with a disability or long-
term illness; incentives for working fathers to take the leave; the application of the same 
sanctions system as that which applies to discrimination in relation to any threat to the 
enjoyment of parental leave and respective rights; the availability of forms of leave paid 
by the social security system; and the continuity in social security coverage, for example 
as regards pensions. 

5.5.23 Case law  

Most of the cases on parental leave, which are very few, concern the relationship between 
the leave and the employer’s organisation of work. For example, the Tribunal Trieste of 
13 July 2007 ruled against parental leave being divided into small fractions because it did 
not fit with the employer’s organisation of activity, which was of public interest. On the 
other hand, the Council of State ruled that a firm’s organisation cannot interfere with the 
enjoyment  of  parental  leave,  as  this  is  specifically  targeted  at  the  care  of  children.70 
Similarly,  the  Court  of  Cassation  has  stated  that  parental  leave  is  linked  to  the  care  of 
children and that it cannot be used to substitute the spouse at work in order to allow her 
to take care of children.71 

5.6  Paternity leave 

5.6.1  Existence of paternity leave in national law 

Under Article 28 of Decree No. 151/2001, paternity leave is granted to the father after the 
birth  for  the  whole  length  of  the  maternity  leave  or  for  the  remaining  period  in  special 
cases,  that  is:  the  mother,  including  a  professional  and  self-employed  mother,  dies  or 
becomes seriously ill; in the event of the abandonment of the child; if the child is in the 
exclusive custody of the father. Adoptive and foster fathers can also take paternity leave 
in place of the maternity leave of mothers in the same special cases (Article 31 of Decree 
No.  151/2001).  The  same  economic  and  working  conditions  as  well  as  notional 
contributions provided for during maternity leave are granted to the father. 

69   Article 9 of Decree No. 80/2015, which amended Decree No. 151/2001, extended this period to six years.  
70   Council of State, sez. VI, 25-06-2007, No. 3564. See also: Council of State, sez. VI, 08-05-2008, No. 2112. 
71   Court of Cassation, civ., sez. lav., 16-06-2008, No. 16207. 

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Furthermore,  fathers are also entitled to 10 days compulsory paid paternity leave in the 
first five months following the child’s birth. The latter can also be used at the same time 
as the mother’s compulsory leave and is in addition to paternity leave. Moreover fathers 
are entitled to one day’s paid optional leave, (to be taken from the mother’s allocation), 
within the first five months following the child’s birth.72  

These forms of leave are also granted in the case of national and international adoption or 
fostering. 

Periods of paid leave are taken into account for pension purposes. 

5.6.2  Protection against unfavourable treatment and/or dismissal (Article 16 of Directive 

2006/54) 

Under Article 54 of Decree No. 151/2001, the same protection against dismissal provided 
for during maternity leave is extended to the father, natural or adoptive/foster, from the 
birth/entrance into the family of the child until he or she is one year old. Dismissal on the 
grounds of an application for or the taking of paternity leave, therefore, is null and void 
and the special remedy of reinstatement provided by Article 18 of the Worker’s Statute is 
enforceable. The same protection as mothers are entitled to as regards ‘blank resignation’ 
is provided by Article 55, Paragraph 4 of Decree No. 151/2012. The mutual termination of 
the employment contract or the resignations of a working father must be signed in front 
of an inspector of the Minister of Labour during their child’s first three years of age. The 
same rule applies to adoptive parents or persons who have been given the official custody 
of a child from the date of birth/entering the family.  

The same holds true for the rights after the end of the paternity leave (Article 56). Indeed, 
at the end of paternity leave, workers have the right to return: a) to the same workplace 
or, if not possible, to a workplace in the same municipality as the previous one; b) to the 
same job or, if that is not possible, to an equivalent job. Furthermore, a man on paternity 
leave has a right to benefit at the end of this period from any improvement in working 
conditions to which he would have been entitled during his absence. Article 29 of Decree 
No. 151/2001 stipulates that paternity leave is to be counted as actual work as regards 
seniority,  annual  holidays  and  the  13th-month  bonus  and  that,  for  the  purposes  of 
promotion, paternity leave  is to  be  regarded as  a  period  of employment,  unless  special 
requirements have been made for that purpose by collective agreements. 

5.6.3  Case law 

A male worker contested his dismissal, claiming that it was discriminatory under Article 
35 of  Decree  No.  198/2006,  as it took  place within  the year following his  marriage.  He 
argued  that  the  ban  on  dismissal  during  the  first  year  of  marriage  to  protect  against 
discrimination  applies  to  male  workers  in  the  same  way  as  to  female  workers.  In  fact, 
although Article 35 expressly refers to female workers, it aims to protect the workers’ right 
to have a family. Moreover, he argued that the personal scope of the Equal Opportunities 
Code (Decree No. 198/2006) includes both sexes and that any differential treatment would 
not be consistent with EC Directive 76/207 on the implementation of the principle of equal 
treatment for men and women as regards access to employment, vocational training and 
promotion,  and  working  conditions  as  it  would  cause  sex  discrimination.  The  Court  of 
Cassation confirmed the second instance judgment, which deemed the personal scope of 
Article 35 to be limited to female workers.73 This provision is the expression of the specific 

72   Article 4, para. 24, Law 92/2012; Article 1, para. 205, Law 208/2015 (Budget Act 2016); Article 1, para. 
354, Law 232/2016 (Budget Act 2017); Article 1, para. 278, Law 145/2018 (Budget Act 2019); Article 1, 
para. 342 Law 160/2019 (Budget Act for 2020); Article 1, paras 363 and 364, Law 178/2020 (Budget Act 
for 2021); Article 1, para. 134, Law 234/2021, which turned the compulsory 10 days’ paternity leave into a 
permanent measure. 

73   Court of Cassation, 12-11-2018, No. 28926. 

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constitutional  protection  awarded  to  working  women.  The  Court  underlined  that  the 
protection against discriminatory dismissal on grounds of marriage had been introduced 
in  the  1960s  to  strengthen  the  protection  of  women’s  employment  rights.  This  specific 
protection  is  perfectly  in  line  with  the  social  reality,  since  employers  tend  to  dismiss 
recently  married  female  workers  as  they  expect  long  absences  from  work  due  to 
subsequent  pregnancies.  Moreover,  it  responds  to  the  same  objectives  as  the 
constitutional principles of both the protection of motherhood and equality, which provide 
that maternity  must not be an obstacle to women’s effective participation in the labour 
market. Consequently, this stronger protection awarded to women is not discriminatory, 
even under EU law. This can justify a differential treatment as men are not in an analogous 
situation. The Court underlined once again the principle ruled by the Constitutional Court, 
following  which  a  different  protection  based  on  gender  cannot  be  deemed  to  be 
discriminatory in itself. It mainly shed light on the development of the protection of female 
workers as mothers in Italian legislation in order to clarify the reason for excluding male 
workers from the personal scope of Article 35, and the consistency of this exclusion with 
the  principle  of  equal  opportunities.  In  particular,  it  noted  the  legitimacy  of  maternity 
protection measures as an instrument to achieve substantial equality for working women, 
in line with well-established CJEU case law.74 

The  ruling  of  the  Court  of  Cassation  of  11  July  2012  (No.  11676)  ruled  that  protection 
against ‘blank resignation’ only applies if the father is on paternity leave.  

5.7  Time off for force majeure 

5.7.1  Time off for force majeure 

There are no specific provisions on time off for force majeure in the Italian legal system. 
However, Article 4 of Act No. 53/2000 provides for leave for death or serious illness, which 
can  be  regarded  as  time  off 
force  majeure  according  to  Article  7  of 
Directive 2019/1158. This may be taken by a private or public sector employee upon the 
death or serious illness of a spouse or of another relative in the second degree, whether 
or not they lived or live together, or of anybody who belongs to the registered family of 
the employee. Leave consists of the right to take a maximum of three days off work per 
year. The wage for the days of leave is paid by the employer and not by publicly financed 
social security. 

for 

5.7.2  Case law 

There is no case law on this issue. 

5.8  Care leave 

5.8.1  Existence of care (or carers’) leave in national law  

According to Articles 47 to 52 of Decree No. 151/2001, both parents, alternatively, may 
take time off from work if a child younger than three becomes ill; the leave can last for 
the whole  duration  of  the  child’s illness (without  any  limits).  The  parents,  alternatively, 
may also take up to five days off from work per annum if a child aged between three and 
eight  becomes  ill.  Leave  of  absence  for  a  sick  child  is  unpaid.  However,  notional 
contributions are calculated when the child is younger than three. These are reduced when 
the child is between three and eight, but the amount can be fully made up through the 
redemption of contributions. Periods of leave of absence for a sick child count toward a 
worker’s length of service, but they do not count as regards paid or unpaid holidays and 

74   Such as for instance CJEU, judgment of 19 March 2002, Lommers C 476/99, ECLI:EU:C:2002:183, 

https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:61999CJ0476&rid=1, and judgment of 11 
November 2010, Danosa, C 232/09, ECLI:EU:C:2010:674, 
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62009CJ0232&rid=1. 

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Christmas bonuses. Leave is also allowed, with higher age limits, when the child has been 
adopted or a parent has official custody. The same regulations apply to the civil service. 
Civil  servants,  however,  enjoy  more  favourable  collective  bargaining  conditions  than 
workers in the private sector. 

Article 42, Paragraph 5 of Decree No. 151/2001 states that workers in the private or public 
sector  who  take  care  of  a  severely  disabled  cohabiting  spouse  who  is  not  hospitalised 
(unless continuous assistance is required in hospital) may take a continuous or split period 
of up to two years off from work. If there is no cohabiting spouse, then this right belongs 
to the relatives of the disabled person. This two-year period may be used only once in an 
entire working life. The benefit during this period is the same as the last salary earned, up 
to a maximum of EUR 43 579 per year, but this figure is constantly reviewed. The period 
of leave is covered by notional contributions but it does not count towards the length of 
service.  The  leave  is  paid  by  the  employer,  who  then  deducts  the  amount  from 
contributions owed to the relative welfare agency. 

Article 33 of Law 104/1992 states that workers in the private or public sector who take 
care of a severely disabled relative who is not hospitalised are granted three days of leave 
a  month  (also  consecutive).  Both  parents,  including  adoptive  parents,  of  a  severely 
disabled child are entitled to this leave and can use it alternately. The leave also applies 
to the guardian of a severely disabled person. For these periods of leave, a benefit equal 
to the claimant’s normal wage is paid. The period of leave is covered by figurative/notional 
contributions.  Article  33  also  provides  (in  Paragraph  2)  that  working  parents  (including 
adoptive parents) of a seriously disabled child of less than three years of age are entitled 
to two hours’ paid rest per day; for these periods of rest a benefit equal to the claimant’s 
normal wage is paid. A reduced form of notional contribution calculations is applied to this 
benefit, but a redemption of contributions can be made to fill the gap that is left. 

Employers must allow working mothers, during the first year of the child’s life, to take two 
rest periods of one hour each, which may be added and taken during the working day. In 
the case of multiple births, the rest periods are doubled. Rest periods are considered to 
be working hours for the sake of work and pay. A reduced figurative/notional contribution 
is recognised during the rest periods, but the gap can be made up through a redemption 
of contributions. These regulations also apply in the case of adopted or foster children for 
the first year of the child’s life within the family. Rest periods are granted to fathers in the 
following cases: when children are under the father’s exclusive custody; as an alternative 
to the working mother; when the mother is not employed;  or when the mother dies or 
becomes  seriously  ill.  In  the  event  of  multiple  births,  the  father  may  decide  to  use  the 
extra time allowed (Articles 39-41 of Decree No. 151/2001). 

Article 4 of Law 53/2000 (implemented by Ministerial Decree No. 78/2000) provides for 
three  days  off  from  work  per  year,  fully  paid  by  the  employer,  in  case  of  the  death  or 
serious illness of a close relative – or the worker can choose, as an alternative, to reach 
an agreement with the employer to modify his or her working conditions (i.e. part-time, 
telework, a change of workplace) – and two years unpaid leave for serious family reasons, 
which can be taken all at once or in parts and may be used only once in an entire working 
life. The employer may deny such a leave of absence, provided an adequate explanation 
linked to organisational or productive reasons is given. 

5.8.2  Case law  

In case law there is only a case – the decision of the Tribunal of Pavia of 19 September 
2009 – but it is quite interesting. According to this decision, the unpaid leave for serious 
family reasons of Article 4 of Law 53/2000 must be counted towards the length of service; 
indeed, the norm that excludes this period from the length of service was regarded by the 
court as unconstitutional as it infringes Directive 2000/78/EC as interpreted by the CJEU 

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in Coleman, which stated that the ban on discrimination on the ground of disability is to 
be applied to both the disabled person and the care givers of the disabled person.75 

5.9  Leave in relation to surrogacy 

There are no provisions on surrogacy in national legislation. 

5.10 Flexible working time arrangements 

5.10.1 Right to reduce or extend working time 

Workers/employees have no a general legal right to reduce their working time on request, 
with the exception of: time off for breastfeeding (two hours a day until the child is one 
year old under Article 39 of Decree No. 151/2001); the use of parental leave on an hourly 
basis,  or  as  non-continuous  periods/days  (Article  32  of  Decree  No.  151/2001),  or  as  a 
conversion to part-time work with a maximum reduction of 50 %; other time off/leave for 
care. There are a few cases in which workers have a right to work part time or the shift to 
part time is made easier or encouraged. 

Under Article 8 (Paragraph 3) of Decree No. 81/2015, a private or public employee has a 
right to work part time when he or she suffers from an oncological disease that impairs 
his/her working capacity. A worker who has changed to part time has a right to return to 
full-time work. 

Under the same rule, a priority in converting to part-time work and in returning to full time 
is recognised when an employee’s relative is suffering from oncological diseases, when he 
or she assists a live-in relative who is not self-sufficient or when an employee takes care 
of a child who lives with them who is younger than 13 or who is disabled. 

Under  Article  1,  Paragraph  58  of  Law  662/1996  (as  modified  by  Article  73  of  Decree 
No. 112/2008 and Article 16 of Law 183/2010), the public administration can authorise a 
shift from full-time work to part-time work, within 60 days from the request, on condition 
that it does not clash with organisational needs. Under Article 6, Paragraph 4 of Decree 
No. 79/1997, the worker has the right to return to full-time work after two years. 

Part-time  work  is  mainly  addressed  as  a  reconciliation  measure  in  certain  policies.  For 
instance, Article 9 of Law 53/2000 provides for the allocation of a part of the Family Fund 
to public bodies (such as local health units and hospitals), and to private businesses and 
associated  businesses  (with  priority)  that  enforce  collective  agreements  concerning 
targeted  positive  action  by  adopting  a  flexible  working  schedule  through  different 
measures, including part-time work. 

5.10.2 Right to adjust working time patterns 

A right to adjust working time patterns is provided in limited situations.  

Article 53 of Decree No. 151/2001 and Article 11 of Decree No. 66 of 8 April 2003 provide 
the right not to perform night work for: a working mother of a child up to three years old 
or alternatively for the cohabiting father (also adoptive or foster until the third year after 
the child entered the family, subject to the condition that the child is not older than 12); 
a working mother or father (also adoptive or foster) who is the only person taking care of 
the child up to 12 years old living with her/him; and a female or male employee who takes 
care of a seriously disabled person under Law 104/1992. 

75   CJEU, judgment of 17 July 2008, Coleman, C-303/06, ECLI:EU:C:2008:415. 

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Article 4 of Law 53/2000 states that in cases of the certified serious illness of the spouse, 
the  cohabitant  or  relatives  within  the  second  degree,  the  worker  can  either  take  up  to 
three days a month in time off or reach agreement with the employer to modify his or her 
working conditions (i.e. part time, telework, or a change of workplace, etc). 

5.10.3 Right to work from home or remotely  

No legal right to work from home or remotely on request is provided in either the private 
or public sector.  

Telework is provided in the public sector, by Article 4 of Law 191/1998, Presidential Decree 
No. 70/1999 and national contractual agreement of 23 March 2000, as an opportunity to 
assure savings and higher standards of efficiency/quality of services, rather than as a tool 
for the reconciliation of work and family life. However, there is no right to teleworking and 
the  employer  can  refuse  a  request  to  telework;  such  working  arrangements  must  be 
authorised by the employer as part of a project geared towards enhancing the quality and 
efficiency of services through flexible working. Reconciliation is taken into consideration 
as a priority criteria only in order to be admitted to teleworking projects where there is a 
surplus  of  applications,  for disabled  workers  who  find  it  difficult  to  reach  the  workplace 
and for workers taking care of children who are younger than eight or a live-in relative 
who has a certified illness or disability. The worker has a right to return to the prior working 
arrangements and to the same workplace, after the agreed minimum period of teleworking 
provided in the project has elapsed. 

Article  23  of  Decree  No.  80/2015  states  that  with  the  aim  of  promoting  telework  as  a 
reconciliation measure, employees who telework are not counted in the application of an 
employer’s obligation that depends on the size of the company. 

5.10.4 Other legal rights to flexible working arrangements 

Decree No. 151/2015 provides for the possibility for people working for the same employer 
to transfer for free a part of their days of rest to the parent of children who need continuous 
care and the parent’s presence for health reasons. Limits and criteria for this transfer are 
to be provided by collective agreements signed by most representative unions. 

Moreover,  the  Minister  of  Labour  and  Social  Policies,  together  with  the  Minister  of 
Economics and Finance, issued a Decree on 12 September 2017 to implement Article 25 
of  Decree  No.  80/2015  on  the  allocation  of  resources  for  measures  of  reconciliation 
between  family  and  working  life.  The  decree  sets  criteria  entitling  employers  who  can 
demonstrate that they promote reconciliation measures through company-wide collective 
agreements  to  ask  for  a  reduction  in  their  social  contributions.  Measures  must  cover 
parenthood  (an  extension  of  paternity  leave  and/or  the  integration  of  the  respective 
allowance, crèches, e-learning for employees returning to work, vouchers for babysitting 
services),  organisation  (smart  working,  flexible  working  hours,  part-time  work  and  the 
transfer of holiday leave) and enterprise welfare (offers of time-saving services, offers of 
care  services,  vouchers  for  care  services).  The  collective  agreement  must  provide  two 
measures and at least one must be included in the first two areas to entitle the employer 
to  access  the  benefit.  Moreover,  the  intervention  must  be  innovative  and  grant  better 
conditions compared to previous agreements and concern at least 70 % of the workforce 
employed during the year before the application.76 

Articles  15  to  20  of  Law  81/2017  provide  for  the  regulation  of  smart  working,  which 
involves  the  working  activity  being  performed  in  a  more  flexible  way  in  terms  of  both 

76   Funds have been allocated to sustain the experimental measures in 2016-2018 (EUR 55 200 000 for 2017 

and 54 600 000 for 2018). 20 % of the Fund will be shared equally among all employers while 80 % will be 
shared in proportion to the workforce that they employed during the year before the application. Employers 
can participate only once given that it is a pilot scheme. 

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location and working hours. The act, which applies to both the private and public sectors, 
sets out a very soft framework and is mainly aimed at boosting the widespread adoption 
of  smart  working.  The  implementation  of  flexible  working  relationships  will  rely  almost 
entirely on an individual agreement with regard to central issues, such as the duration of 
the  working  arrangement,  the  employer’s  power  of  control  and  management,  the 
performance  of  the  employee  whilst  working  outside  the  office,  rest  periods  and  the 
possible  use  of  technological  devices  for  teleworking.  The  explicit  goals  of  the  new 
provisions are that of increasing productivity and furthering a reconciliation of work with 
family life. These provisions were recently amended by Article 1, Paragraph 486 of Decree 
No. 45/2018  (Budget  Act  for  2019):  according  to  this  norm,  both  public  and  private 
employers  who  sign  smart  working  agreements  must  give  priority  to  working  mothers 
within three years after the end of the compulsory maternity leave and to working parents 
of  seriously  disabled  persons).  The  decision  of  the  legislature  to  entitle  only  working 
mothers  and  not  working  fathers,  too,  to  priority  in  accessing  smart  working  is  a  step 
backward in what had been the progressive extension to fathers of the mothers’ right to 
take care of children. Indeed, after the Budget Act came into force, the main trade unions, 
the  public  administration  and  national  level  agencies  (such  as  the  National  Labour 
Inspectorate,  the  Revenue  Agency  and  the  Postal  Services  Company)  signed  some 
agreements implementing smart working, which provide only the priority criteria already 
ruled by Article 1, Paragraph 486, without any extension to other categories of workers.77 

5.10.5 Case law  

There is no relevant national case law available in relation to workers’ requests for flexible 
working arrangements. 

5.11 Evaluation of implementation 

Decree No. 151/2001 on the protection of motherhood and fatherhood, which includes all 
rules  on  this  subject,  and  also  implements  Directives  2006/54  and  2010/18,  does  not 
provide  for  a  specific  definition  of  a  pregnant  worker,  a  worker  who  has  recently  given 
birth or a worker who is breastfeeding.  

On the other hand, the protective measures mentioned in Articles 4-6 of Directive 92/85 
have  been  implemented  by  Decree  No.  645/1996,  which  was  later  included  in  Decree 
No. 151/2001.  

As  regards  prohibition  of  night  work,  the  Italian  legislation  goes  further  than  the  EU 
directive, as provides the same guarantees to fathers as to mothers.  

In relation to prohibition of dismissals, the EU legislation (Article 10(1) of Directive 92/85) 
has  been  fulfilled  and  the  Italian  legislation  goes  even  further.  Indeed,  the  protection 
afforded is ensured purely on grounds of pregnancy, regardless of whether the employer 
has  been  informed  or  not  and  it  lasts  for  a  period  of  12  months  following  the  date  of 
confinement, long past the end of maternity leave. Furthermore, there is also a law against 
‘blank  resignation’.  Italian  law  is  in  compliance  with  Article  10(2)  of  Directive  92/85  as 
employers must indicate substantiated grounds for the dismissal in writing. 

The protection of working mothers under Italian law is very comprehensive in comparison 
with EU standards and complies with the relevant EU legislation, sometimes even greatly 
exceeding EU protection, for example in terms of the length of paid leave and guarantees 

77   Agreement on the Experimentation of Smart Working signed by the National Labour Inspectorate on 8 

January 2019, published on: https://www.ispettorato.gov.it/it-it/progetti/Documents/Protocollo-intesa-INL-
OO-SS-per-avvio-sperimentazione-lavoro-agile-08012019.pdf; Agreement on Smart Working signed by the 
Revenue Agency on 10 January 2019, published on: https://www.fisaccgilaq.it/wp-
content/uploads/2019/01/Smart-working-10-gen-2019.pdf; Agreement on Smart Working signed by the 
Postal Services Company on 23 January 2019, published on: http://www.slp-
cisl.it/documenti/allegati/Accordo%2023genn2019%20e%20allegati.pdf. 

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for fathers. Furthermore, less favourable treatment related to pregnancy, motherhood or 
fatherhood  (including  for  adoptive  parents),  as  well  as  to  the  respective  rights  are 
considered  equal  to  direct  gender  discrimination  (Article  25  of  the  Equal  Opportunities 
Code).  

As  regards  the  provisions  of  adequate  rights  during  leave,  it  is  important  to  refer  to 
Article 56 of Decree No. 151/2001, as modified by  Law 101/2008, which lays down the 
right  of  a  woman  on  maternity  leave  to  benefit,  at  the  end  of  this  period,  from  any 
improvement  in  working  conditions  to  which  she  would  have  been  entitled  during  her 
absence.  

Italian law also provides the right of a woman to return to her job or to an equivalent job 
after her maternity leave. 

The maternity leave allowance is considerably higher than the sick leave benefit in both 
the private and public sector. 

The Italian legislation also goes further than the EU directives in respect of conditions for 
eligibility, as maternity benefits do not require a minimum amount of national insurance 
contributions to have been paid. 

Decree No. 151/2001 extends the same provisions on maternity leave and the respective 
rights/protection to cases of national and international adoption and official custody of a 
child. The Italian regulations fulfil the EU requirements, as the general rules on the forms 
of leave provided by Decree No. 151/2001 have been adapted to the particular needs of 
adoption and official custody. 

EU legislation on parental leave was implemented by the 2013 Budget Act (Law 228/2012, 
Article 1, Paragraph 339).  However, the terms of the implementation were very limited 
because Articles 32 to 38 of Decree No. 151/2001, on the protection of motherhood and 
fatherhood,  already  provided  legislation  on  parental  leave  that  was  comprehensive  in 
comparison to EU standards.  

The  Italian  legislation  provides  for  more  favourable  provisions  than  those  set  by 
Directive 2010/18/EU  as  regards:  the  length  of  leave;  provision  of  leave  on  a  non-
transferrable basis (just two months out of six for each parent can be transferred); the 
fact  that  parental  leave  and  the  allowance  paid  during  that  period  are  not  subject  to 
qualifications periods whatsoever; a postponement of the granting of parental leave can 
only be authorised in the security/defence sector and for firemen; the high-level provisions 
for  parents  of  children  with  a  disability  or  long-term  illness;  the  incentives  for  working 
fathers to take the leave; the application of the same sanctions system as discrimination 
in relation to any threat to the enjoyment of parental leave and respective rights; and the 
availability of leave paid by the social security system. 

The  situation  is  less  satisfying  as  regards  paternity  leave.  Indeed,  paternity  leave  is 
allowed to fathers only as an alternative to maternity leave in very specific cases: that is, 
if the mother dies or becomes seriously ill, or in the event of the abandonment of the child, 
or if the child is in the exclusive custody of the father. This is a limitation on the rights of 
the father, and on promoting a better balance in care duties as well as the reconciliation 
of  work  and  family  life.  Furthermore,  the  special  paternity  leave  introduced  by 
Law 92/2012  is  also  a  very  weak  measure  from  the  perspective  of  the  promotion  of  a 
better balance in care duties within the family – which is the declared aim of the measure 
– as it is short and temporary. Fathers rarely used the three days allowed (which must be 
taken from the mother’s leave allocation). 

As regards the existence of care leave in national law (Clause 7 of Directive 2010/18), the 
Italian legislation goes further the EU requirements, as it provides for a structured system 

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of care leave. However, the lack of specific protection against dismissal for those who take 
care of disabled people and who are not mothers or fathers (including adoptive parents) 
is a problem, as they do not have specific anti-discrimination legislation to protect them. 

5.12 Remaining issues 

Article  24  of  Decree  No.  80  of  15  June  2015,  implementing  Delegation  Law 183/2014 
introduced some measures aimed at supporting victims of gender based violence. A period 
of  leave  of  three  months  is  given  to  women  victims  of  gender-based  violence  who  are 
under a protection programme certified by local authorities. 

Article 4 of the bill for the proposed ‘Family Act’ (see section 4.5 above) gives powers to 
the Government to issue, within two years of the act coming into force, on a proposal of 
the Minister for Equal Opportunities and Family and the Minister of Labour, together with 
the Minister for Research and Universities and the Minister of the Public Administration, a 
decree to reform the regulation of parental leave, in order to strengthen and harmonise 
it. The framework of the new regulation will have to respect the following criteria:  

- 

- 

- 

More flexible use of parental leave, in a way that is compatible with the employer’s 
organisational needs and following the provisions of collective agreements, will have 
to be provided.  
Parents  will  be  entitled  to  five  hours  remunerated  time  off  to  talk  to  the  child’s 
teachers during the school year. 
At least two months of parental leave will have to be given to each parent as non-
transferrable leave.  

However, the reform of parental leave risks being a step backwards. In fact, the current 
regulation is already very flexible (parental leave can also be taken hourly), while the new 
reference  to  the  organisational  needs  of  employers  could  hamper  the  use  of  this  right. 
Moreover, at present, each parent is entitled to six months of parental leave covered by 
an allowance of 30 % of the remuneration paid by the INPS with a maximum of ten months 
for each child, which can be increased to eleven months where the father takes up at least 
three months of leave. The implementation of the principles provided by the  bill, where 
only two months of leave are to be assigned as non-transferrable, could paradoxically have 
an impact contrary to the declared objectives of the reform. Moreover, no increase of the 
allowance has been provided and the latter is one of the main reasons for the scarse use 
of parental leave by fathers, along with cultural reasons. 

Paternity  leave  is  also  likely  to  be  reformed  by  the  Family  Act.  In  line  with  EU 
Directive 2019/1158 of 20 June 2019 on work-life balance for parents and carers, the bill 
provides  10  days  compulsory  leave  for  each  child  to  be  used  by  the  working  father, 
regardless of his marital status. No minimum contribution or length of employment will be 
required. Only a notification to the employer will be required according the provisions of 
the collective agreements. Paternity leave will also be extended to the public sector and 
to different forms of self-employment. Therefore, there is an appreciable improvement as 
regards  paternity  leave.  However,  this  period  is  not  long  enough  to  help  change  the 
traditional distribution of roles within the family. In particular, it should be noted that no 
sanctions are provided in the event that the father does not take the leave and data shows 
a very low use of this right, although it is slowly increasing year by year. However, the 
Family Act is still a bill; the sole intervention made so far in this area is that of making 
permanent the 10 days’ compulsory paternity leave, which had initially been conceived as 
temporary (Article 1, Paragraph 134, Law 234/2021).  

According  to  the  Family  Act,  there  will  be  another  decree  to  provide  for  a  priority  in 
agreeing to smart working arrangements for parents of children younger than 14 and for 
incentives  to  employers  to  provide  reversible  flexible  working  conditions  to  working 
parents according to national collective agreements.  

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The Budget Act for 2021 (Law 178/2020) should also be mentioned here. In particular, 
Article  1,  Pargaph  23  allocated  a  further  EUR  50  million  for  2021  to  increase  the 
EUR 10 million a year fund supporting family policies run by the Prime Minister’s Office. 
The  allocation  is  explicitly  aimed  at  supporting  organisational  measures  on  the  part  of 
employers to help working mothers to go back to work after childbirth. Moreover, at the 
Ministry of Labour, another fund of EUR 30 million a year for 2021, 2022 and 2023 has 
been  allocated  by  Article  1,  Paragraph  334  of  the  Budget  Act  2021  to  support  the 
enactment of legislative provisions to recognise the social and economic value of family 
caregivers. Paragraph 365 of Article 1 entitles unemployed or working women who are the 
only breadwinner in the family to an allowance of up to EUR 500 a month, in cases where 
they take care of a disabled child with a certified disability of a minimum of 60 %. Finally, 
for the next few years, there is a remarkable and progressive increase of State investment 
in  funds  for  municipalities  to  support  the  development  of  crèches  (Article  1, 
Paragraphs 791  and  792).  However,  the  real  impact  of  these  interventions  cannot  be 
evaluated at present. In fact, the criteria for access to most of the funds mentioned above, 
as well as for monitoring the enhancement and effects of different measures, are to be 
decided  by  subsequent  decrees  to  be  issued  by  the  relevant  minister  together  with  the 
Minister of Economy. 

The COVID-19 pandemic brought with it, in many periods during the years 2020 and 2021, 
the  recommendation  for  smart  working,  and  the  closure  of  schools.  As  a  consequence, 
many working parents were dealing with an increased need to care for their children. In 
the meantime, these restrictive measures had an impact on assistance to the elderly and 
to  people  with  a  disability.  To  mitigate  this,  Law  Nos.  27/2020,  77/2020,  126/2020, 
176/2020, 61/2021, 69/2021, 106/2021, 215/2021 and Decree No. 4/2022 provided, for 
both the private and the public sector, the strengthening of the right to parental leave and 
economic  support  for  families  with  care  duties,  including  the  right  for  those  assisting  a 
disabled relative to carry out their work through smart working. In particular, the COVID-
19  legislation,  which  is  temporary  until  the  end  of  the  pandemic,  provided  for:  special 
leave, to be taken, alternatively, by parents of children up to 12 years old or of seriously 
disabled children (in this case an allowance of 50 % of the remuneration  and figurative 
contributions were granted); unpaid leave, to be taken for the whole period during which 
school activities were suspended by employees taking care of children up to 16 years old; 
as an  alternative  to  the leave mentioned  above,  a  voucher for babysitting  services  was 
provided for working parents (employed and self-employed) of children aged 12 years or 
younger; a further  12 days each two months of paid leave to be added to the ordinary 
three days a month time off, which are provided by Article 33 of Law 104/1990 to workers 
of both the private and the public sector assisting a relative with a disability of certified 
seriousness; the entitlement of housekeepers and care workers to a temporary monthly 
allowance, on the condition they had a contract of at least 11 hours a week and they did 
not live with their employers; workers’ right to smart working (provided that the job can 
be  performed  in  this way)  until  the  end  of the  COVID-19  emergency  period, where the 
worker’s  family  unit  includes  a  person  with  a  disability  of  certified  seriousness  or  with 
specific learning disorders or special educational needs or attended a day care centre that 
is closed for the pandemic, or the worker him or herself is a seriously disabled person; the 
workers’ right to smart working (provided that the job can be performed in this way) until 
the end of the COVID-19 emergency period, for parents of children aged 14 or younger; 
the working parents’ right to smart working in the event that a child of up to 16 years old 
has been quarantined by the Health Service following cases detected at school or in other 
educational activities, or where the school had to suspend physical lessons and organise 
online  ones  (in  this  last  case,  if  the  job  cannot  be  performed  using  smart  working,  the 
working parent of a child up to 14 years can take up paid parental leave, which is 50 % of 
the  worker’s  remuneration,  covered  by  figurative  contributions,  for  the  whole  period  of 
quarantine, or until the child can go back to school; while for working parents of children 
up to 16 a mere suspension of the working relationship has been provided); smart working 
in the public sector as the ordinary way of working (provided the job can be performed in 
this way), until the end of the COVID-19 emergency period (this will be gradually adapted 

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to  the  organisational  and  citizens’  needs,  taking  into  consideration  the  progressive 
reopening  of  both public offices  and  businesses);  a  bonus  of up  to  EUR 100  a  week for 
babysitting/childcare services for a child of up to 14 years who has been quarantined in 
favour  of  autonomous  and  para-subordinated  workers,  defence  personnel  and  public 
rescue sector personnel assigned to face the COVID-19 emergency, and health services 
workers. 

All these urgent measures are to be appreciated as they show that the economic measures 
also address gender equality issues. Nevertheless, the economic crisis hit women harder 
because  of  existing  gender  inequalities;  the  pandemic  is  having  a  regressive  effect  on 
women’s participation in the labour market. Most critics already highlighted the need for 
a really strong and long-term effort to push for greater gender equality as fast as possible. 
This is not just to avoid taking a step backwards with regard to gender quality, but also 
for the benefit of economic growth. 

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6 

Occupational social security schemes (Chapter 2 of Directive 2006/54) 

6.1  General (legal) context 

6.1.1  Surveys  and  reports  on  the  practical  difficulties  linked  to  occupational  and/or 

statutory social security issues 

Research  on  the  implementation  of  the  EU  anti-discrimination  legislation  as  regards 
occupational schemes in Italy is non-existent. The lack of debate is, first, a consequence 
of the limited attention paid to the subject of social protection: despite the importance of 
social protection at both the social and economic levels, there is only a small number of 
outdated studies and research in the field. Secondly, the EU anti-discrimination legislation 
has not yet been absorbed by the judiciary.  

The  main  gender  discriminatory  features  in  occupational  funds  relate  to  the  survivors’ 
pensions  rights  of  cohabitants  and  partners,  who  are  often  women;  it  must  also  be 
reminded that the regulation of occupational funds makes no provisions for the recovery 
of  wasted  contributions  during  pregnancy/maternity.  Some  occupational  funds  do  not 
allow  subscriptions  to  short-term  employees.  Sometimes,  disability  benefits  are 
conditioned on extra contributions or age requirements. Over and above this, one has to 
bear  in  mind  that  the  benefits  rights  of  atypical  workers,  intermittent,  temporary, 
occasional and part-time workers as well as those of workers with earnings inferior to the 
average standards, many of whom are women and young workers, will be always at risk, 
as  their  qualifying  conditions,  contributions  record  and  benefit  amount  depends  on  the 
regularity  of  their  careers.  The  occupational  funds,  in  particular,  tend  to  mirror  the 
differences between workers in the labour market and this is a cause for concern in the 
light of a social protection system in which public and supplementary schemes are seen 
as complementary to the end of maintaining adequate levels of welfare cover. 

The situation described above is reflected in a recent research study on occupational and 
private complementary social protection funds.78 This study shows that the gender gap in 
the labour market is also reflected in occupational pensions schemes, where 61.1 % of the 
participants are men and only 38.9 % are women. As regards the gender percentage of 
workforce, 27.2 %  of  the  male  workforce takes  part  in  occupational funds  compared  to 
23.5 %  of  the  female  workforce.  The  fact  that  occupational  funds  tend  to  mirror  the 
differences between workers that exist in the labour market and the gender pay gap in 
particular is also shown by the 2016 survey led by the Labour Commission of the Chamber 
of Deputies at the Italian Parliament.79 The commission recommends: the introduction of 
better instruments to evaluate the gender impact in the pensions system; an increase of 
notional  contributions80  and  instruments  that  help  to  avoid  the  consequences  in  the 
pension system of periods of absence for caring reasons; and finally, the introduction of a 
safety  net  in  the  social  security  system  for  those  whose  careers  are  fragmented  and 
characterised by instability. 

78   See on this also Valeriani, A. (2017) Le prospettive evolutive della previdenza complementare. 

Un’opportunità per superare anche il gap previdenziale di genere (The evolution of occupational and 
integrative funds. A chance of overtaking the gender gap in social security), in Working Paper Adapt, 
University Press. Valeriani is a member of COVIP (the Supervisor Commission for Pension Funds). Available 
at: https://moodle.adaptland.it/pluginfile.php/29543/mod_resource/content/0/wp_5_2017_valeriani.pdf. 

79   Published in 

http://www.camera.it/leg17/1079?idLegislatura=17&tipologia=indag&sottotipologia=c11_pensionistici&ann
o=2016&mese=07&giorno=06&idCommissione=11&numero=0013&file=indice_stenografico#stenograficoC
ommissione.tit00030. 

80   Those are contributions that are credited without cost to the employee for periods during which the worker 
has not worked (for example, in the case of illness or maternity) and therefore he or she has received 
benefit payments from the national social security system (INPS).  

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6.1.2  Other issues related to gender equality and social security 

No other issues that have not been reported so far emerge as regards occupational funds 
and gender equality. 

6.1.3  Political and societal debate and pending legislative proposals 

Occupational  schemes  are  regulated  by  Decree  No.  252/2005.  Decree  No.  5/2010  has 
added  Article  30bis  to  the  Equal  Opportunities  Code  in  order  to  implement  the  Recast 
Directive as regards occupational funds. At present, there is no political or social debate 
on gender equality in occupational schemes, nor are there pending reforms. 

6.2  Direct and indirect discrimination 

Article  30bis  of  Decree  No.  198/2006,  introduced  by  Article  1  of  Decree  No.  5/2010  to 
implement the Recast Directive, states:  

‘There shall be no direct or indirect discrimination on grounds of sex in occupational 
social security schemes, in particular as regards: a) the scope of such schemes and 
the conditions of access to them; b) the obligation to contribute to and the calculation 
of contributions; c) the calculation of benefits, including supplementary benefits due 
in respect of a spouse or dependants, and the conditions governing the duration and 
retention of an entitlement to benefits’. 

There is no case law on the interpretation of this article. 

6.3  Personal scope 

Article  30bis  of  Decree  No.  198/2006  applies  the  principle  of  non-discrimination  to 
occupational  schemes  regulated  by  Decree  No.  252/2005.  This  decree’s  personal  scope 
includes  workers  in  all  sectors,  private  and  public,  self-employed,  professionals  and 
working partners of cooperative societies. Therefore, the personal scope of this rule is not 
as wide as that of the EU directive: persons seeking employment and those claiming under 
the  rights  of  workers  included  in  occupational  schemes  in  accordance  with  national  law 
and/or practice are not mentioned. 

6.4  Material scope 

Article  30bis  of  Decree  No.  198/2006  refers  to  Decree  No.  252/2005,  which  regulates 
occupational  pensions.  The  decree  is  applicable  to  invalidity,  retirement,  old-age  and 
survivors’ pensions. It does not include: sickness, unemployment, industrial accidents and 
occupational  diseases.  Therefore,  the  material  scope  of  Article  30bis  is  more  restricted 
than that of the EU directive. 

6.5  Exclusions 

The exclusions from the material scope as specified in Article 8 of Directive 2006/54 have 
not been implemented in national law. 

6.6  Laws  and  case  law  falling  under  the  examples  of  sex  discrimination 

mentioned in Article 9 of Directive 2006/54 

As  regards Article  9(g)  of  Directive  2006/54,  the  law  on  supplementary funds  does  not 
contain  any  provision  which  ensures  that  fictional  contributions  are  made  (by  the 
employer/the state) on behalf of the employee during her maternity leave/leave for serious 
family  reasons.  Therefore,  the  law  does  not  require  the  fund  regulations  to  include 
provisions which would ensure compliance with Article 9g. In the case of maternity, many 

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fund  regulations  provide  for  a  reduced  rate  of  notional  contributions,  i.e.  only  the 
contributions corresponding to the amount of the maternity allowance are credited.81  

Collective agreements and regulations of funds may contain other indirectly discriminatory 
features, as some of them not do not offer subscriptions to short-term employees, who 
often are women. 

6.7  Actuarial factors 

Decree No. 5/2010 implementing the Recast Directive allows the setting of different levels 
of benefits in so far as may be necessary to take account of actuarial calculation factors, 
which differ according to sex in the case of defined contribution schemes. In the case of 
funded defined benefit schemes, certain elements may be unequal where the inequality of 
the amounts results from the effects of the use of actuarial factors differing according to 
sex at the time when the scheme's funding is implemented. The decree states that  the 
actuarial factors used must be sound, relevant and accurate; the Supervisory Commission 
for  Pension  Funds  (COVIP)  and  the  Equal  Opportunities  National  Committee  are  called 
upon to monitor the legitimacy and the non-discriminatory nature of the actuarial factors 
used. The limits of Article 9(1) of Directive 2006/54/EC have been fulfilled; the legislation 
goes even further by providing for monitoring of the use of these factors. 

Both the funds with defined contributions and those with defined payments take actuarial 
factors into account for the benefit calculation. Among the actuarial factors, the higher life 
expectancy  of  women  is  taken  into  consideration.  No  other  gender-related  factors  are 
taken into consideration.  

The funds of self-employed workers do not have different levels for workers’ contributions 
in relation to the use of actuarial calculation factors. 

The exclusions of Article 8 of Directive 2006/54 would not necessarily be detrimental for 
women if applied – and they are not applied in Italian law anyway. The examples of sex 
discrimination in Article 9 of Directive 2006/54 might amount to direct or indirect gender 
discrimination: thus the lack of provision on recovery of notional contributions during care 
leave  and  the  banning  of  short-term  employees  by  some  funds  may  be  detrimental  to 
gender equality. Finally, actuarial factors that take sex into account might be detrimental 
for  women,  for  example  if  their  life  expectancy,  higher  than  that  of  men,  is  taken  into 
account as this can reduce the monthly pension amount or increase their contributions. 

6.8  Difficulties 

The European Court of Justice in Commission v. Italy,82 declared the pension scheme for 
civil  servants  managed  by  INPDAP  to  be  discriminatory  on  the  basis  of  Article  141  EC, 
since it provides that the general pensionable age for men is 65 and for women 60. The 
Court,  therefore,  regarded  the  INPDAP  scheme  as  occupational.  By  contrast,  Italian 
legislation dealt with it as a statutory pension scheme and regulated it according to the 
legislation on public schemes (Law 335/1995). Obviously, if the INPDAP pension scheme 
was considered to fall under the scope of Directive 79/7, then the pensionable age would 
have been a possible exception to the application of the equality principle on grounds of 
gender  under  Article  7(1)(a).  However,  following  the  Court  of  Justice  decision, 

81   Until 2017, legislation on occupational pensions failed to implement the Recast Directive as regards the 

pensionable age (Article 9(f) of Directive 2006/54), which was different for men and women. Indeed, the 
occupational old-age pension is awarded upon reaching the pensionable age as established in the statutory 
system, where, until 2017, women’s pensionable age was lower than that for men. Since 2018, however, 
men and women have the same pensionable age, fixed at 66 years and 7 months (Law 214/2011, which 
provided for a gradual increase in the pensionable age, which has been equalised for men and women since 
2018). Thus the Recast Directive has now been implemented as regards the pensionable age in 
occupational funds in both the private and public sectors. 

82   Judgment of 13 November 2008, Commission v. Italy, C-46/07, ECLI:EU:C:2008:618. 

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Law 102/2009, as modified by Law 122/2010, equalised the pensionable age for men and 
women in the civil service. Finally, INPDAP was abolished by Article 21 of Law 214/2011 
and no longer exists. 

6.9  Evaluation of implementation 

As regards the introduction of direct and indirect discrimination, Article 30bis of Decree 
No. 198/2006 implements the Recast Directive. However, the personal scope of this rule 
is not as wide as that of the EU directive: persons seeking employment and those claiming 
under the rights of workers covered by occupational schemes in accordance with national 
law  and/or  practice  are  not  mentioned.  Moreover,  the  material  scope  has  not  been 
implemented  correctly,  as  pensions  related  to  sickness,  unemployment,  industrial 
accidents and occupational diseases are left out. 

The exclusions from the material scope as specified in Article 8 of Directive 2006/54 have 
not been implemented in national law. 

As regards Article 9(g) of Directive 2006/54, the supplementary funds regime makes no 
provision for the recovery of notional contributions during maternity leave or during leave 
for  serious  family  reasons.  Collective  agreements  and  regulations  of  funds  may  contain 
other  indirectly  discriminatory  features,  as  some  of  them  not  do  not  allow  short-term 
employees, who are often women, to subscribe to them. 

Finally,  the  limits  of  Article  9(1)  of  Directive  2006/54/EC  have  been  fulfilled  as  regards 
actuarial factors; the legislation goes even further by providing for monitoring by COVIP 
(the Supervisory Commission on Pension Funds) on the use of these factors. 

6.10 Remaining issues 

There are no remaining issues regarding occupational social security schemes and gender 
equality that have not been discussed so far. 

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7 

Statutory schemes of social security (Directive 79/7) 

7.1  General (legal) context 

7.1.1  Surveys and reports on the practical difficulties linked to statutory schemes of social 

security (Directive 79/7) 

There is very little research on the implementation of the EU anti-discrimination legislation 
as regards statutory schemes in Italy. The lack of academic debate is a consequence first, 
of the limited attention paid to the subject of social protection – despite the importance of 
social protection at both the social and economic levels, there is only a small number of 
studies and research – and secondly, the fact that the EU anti-discrimination legislation 
has not yet been absorbed by the judicial culture.  

The main issues that have been tackled by the few scholars working in the area of social 
protection  are:  the  discriminatory  ground  of  nationality  in  social  assistance  benefits; 
indirect gender and age discrimination of non-standard workers; the problem of benefits 
for cohabitants and same-sex partners; gender discrimination in occupational funds; and 
gender  discrimination  in  pensionable  age  and  early  retirement.  Some  academic  essays 
address  the  European  perspective  and,  in  particular,  deal  with  discrimination  in  social 
assistance in the European legislation as well as with the case law of the CJEU in relation 
to gender equality in statutory and occupational pensions. The principal problem is that 
the European and domestic perspectives are rarely compared, that is to say the domestic 
law is not analysed in the light of EU law. 

The lack of familiarity with the EU legislation is shown by the total absence of references 
to it in the little case law on discrimination in social security. Different factors are at the 
root  of  this  issue:  lack  of  awareness  of  the  anti-discrimination  legislation  among  the 
judiciary  and  lawyers;  a  general  feeling  of  distrust  about  the  efficacy  of  the  anti-
discrimination  legislation;  difficulties  of  proof;  and  the  absence  of  a  policy  of  strategic 
litigation. Another element that makes the anti-discrimination framework hostile territory 
for social protection case law is the fact that Government decisions in the social security 
field are mainly determined by economic constraints – judges are aware of that and avoid 
decisions  that  can  radically  modify  the  social  security  budget  allocation.  When  EU  legal 
rights  are  involved,  judges  tend to  use  general  principles  and  instruments,  such  as  the 
principle  of  reasonableness,  and  to  bypass  the  EU  provisions  on  discrimination.  In  this 
context, it is not surprising that CJEU case law that does not concern Italian domestic law 
has no impact on the Italian case law on discrimination. The case law of the CJEU generally 
gives  rise  to  a  theoretical  interest  among  academics,  rather  than  a  practical  one:  the 
impact of such decisions on the Italian system is not taken into consideration.  

As regards statutory social security schemes, aspects of indirect discrimination in relation 
to  gender  are  evident  in  the  areas  of  part-time  and  temporary  work  and  other  non-
standard  working  patterns,  where  there  is  a  massive  presence  of  women  and  young 
people. In particular, under the pay-based pension scheme, the amount and number of 
contributions paid and continuity of payment determine the eligibility to social insurance 
as  well  as  the  benefit  levels;  the  increase  in  minimum  insurance  and  contribution 
requirements in Italy during the past decades is bound to have a negative impact on the 
pensions of atypical workers, such as intermittent, temporary, occasional and part-time 
workers. Moreover, those who have high pay fluctuation during the period of reference for 
the calculation of pensionable income are disadvantaged in relation to the calculation of 
the  amount  of  pension.  Again,  a  temporary  worker  will  have  substantial  reductions  of 
his/her contribution period for the purpose of calculating the amount of pension and this 
will  naturally  cause  a  reduction  of  the  pension  amount.  Under  the  contribution-based 
pension  system,  the  earnings  variations  as  well  as  the  continuity  and  regularity  of 
employment  of  the  claimants  appear  once  more  to  be  of  crucial  importance,  as  the 
qualifying  conditions  for  benefits  and  the  pension  amount  are  very  sensitive  to  these 

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factors. Furthermore, in invalidity pension schemes, the working contribution condition is 
one that is almost impossible for workers with recent spells of inactivity to fulfil.83 

The fact that statutory pension schemes tend to mirror the differences between workers 
existing in the labour market and the gender pay gap in particular is also shown by the 
2016  survey  by  the  Labour  Commission  of  the  Chamber  of  Deputies  at  the  Italian 
Parliament.84  The  commission  recommends  the  introduction  of  better  instruments  to 
evaluate the gender impact in the pensions system; the proposal is to increase notional 
contributions85 and the instruments that help to avoid the consequences in the pension 
system of periods of absence for caring reasons. The commission also recommends the 
introduction of a safety net in the social security system for those people whose careers 
are fragmented and characterised by instability. 

7.1.2  Other relevant issues  

Cohabiting  and  same-sex  partners  are  not  entitled  to  survivors’  pensions  and  to  family 
income support. 

7.1.3  Overview of national acts 

The  basic  national  act  that  contains  provisions  on  statutory  social  security  schemes  is 
Law 335/1995: the principal aims of this law were to balance the budget and harmonise 
the  various  pension  schemes.  The  act  moved  away  from  a  pay-based  system  when 
calculating pensions, based on what the applicant’s salary had been, to a contributory one, 
based on the amount of contributions paid over the years. Moreover, this  act stabilised 
pensions expenditure, in rigorous accordance with the trends in the gross domestic product 
(GDP) and its variations. The 1995 reform provided for an extremely long transition period 
before the act came fully into force: this was determined by the necessity of granting to 
workers  their  acquired  rights  as  well  as  their  expectations.  However,  this  led  to  a 
postponement of the operation of the financial equilibrium mechanisms and, consequently, 
new  instruments  for  an  immediate  saving  of  resources  had  to  be  devised.  That  is  the 
reason  for  limits  being  imposed  on  the  aggregation  of  contributions  and  the  constant 
increase of contributions rates. In the years following the reform, the legislative changes 
have been characterised by the continuous search  for immediate savings, regardless of 
the eventual inconsistencies introduced into the system. In attempting to adapt the social 
security  system  to  the  changing  socio-economic  situation,  the  legislature  has: 
progressively enhanced the pensionable age, which is now equal for men and women in 
all sectors of the economy and is biannually adjusted to the increase of the average life 
expectancy;  abolished  the  years-of-service  pension;  modified  the  transformation 
coefficients of the individual contribution total so as to reduce the pension amount; shifted 
social protection from the public to the private funds.86 Law 214/2011, in particular, had 
the  objective  of  strengthening  the  sustainability  of  the  pensions  system  over  time  in 
relation to the impact of social protection expenses on gross domestic product. This piece 
of  legislation  generalised  the  contribution  system  criteria  of  pension  calculation  for  all 
contributions  matured  since  1  January  2012  onwards.  Moreover,  several  solidarity 

83   See on this also Valeriani, A. (2017) Le prospettive evolutive della previdenza complementare. 

Un’opportunità per superare anche il gap previdenziale di genere (The evolution of occupational and 
integrative funds. A chance of overtaking the gender gap in social security), Working Paper Adapt, 
University Press. Valeriani is a member of COVIP. Available at: 
https://moodle.adaptland.it/pluginfile.php/29543/mod_resource/content/0/wp_5_2017_valeriani.pdf. 
84   Labour Commission (2016) ‘Study on the impact of legislation on the disparity between men and women’s 

pensions’, published in 
http://www.camera.it/leg17/1079?idLegislatura=17&tipologia=indag&sottotipologia=c11_pensionistici&ann
o=2016&mese=07&giorno=06&idCommissione=11&numero=0013&file=indice_stenografico#stenograficoC
ommissione.tit00030. 

85   Those are contributions that are credited without cost to the employee for periods during which the worker 
has not worked (for example, in the case of illness or maternity) and therefore he or she has received 
benefit payments from the national social security system (INPS).  

86   Law 243/2004, Law 247/2007, Law 102/2009, Law 214/2011. 

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contributions were introduced, the automatic equalisation was reduced and the costs of 
unification of national insurance periods were increased.  

Article  30  of  the  Equal  Opportunities  Code  (Decree  No.  198/2006),  is  important  in  this 
respect. The rule, as modified by Decree No. 5/2010 implementing the Recast Directive, 
states  that:  women  workers  who  have  reached  the  requirements  to  apply  for  pensions 
have a right to keep on working until the same age as men; women have the same rights 
as  men  to  benefit  from  family  income  support;  women  have  the  same  right  as  men  to 
survivors  pensions;  and  men  and  women  have  the  same  rights  as  regards  survivors 
pensions under the scheme in relation to industrial accidents and professional diseases. 

Finally, it is notable that the social security system has been strongly conditioned by the 
constitutionalisation of the European Union budgetary constraints contained in the fiscal 
compact and embodied in Article 81 of the Italian Constitution. 

7.1.4  Political and societal debate and pending legislative proposals 

The  current  social  debate  is  focused  on  pensionable  age and  on the possibility  to retire 
earlier than the statutory age (67 years of age for both men and women in all sectors), 
which  is  to  be  changed  biannually  on  the  basis  of  life  expectancy,  although  the  age 
requirement can be replaced by having a contribution record of 42 years and 10 months 
for men and 41 years and 10 months for women. In particular, Decree No. 4/2019 makes 
it possible, as a trial for the years 2019-2021, to claim an early pension at 62 years of age 
with  38  years  of  contributions  (known  as  ‘quota  100’).  The  option  of  taking  an  early 
pension  provided  by  Decree  No.  4/2019,  however,  is  not  likely  to  favour  women,  but 
instead  favours  men.  Indeed,  this  option  favours  those  with  a  stable  and  long-term 
presence  in  the  labour  market  and  with  higher  pay  levels,  which  are  normally  men  as 
women usually have more fragmented careers and lower pay levels.87 The same decree 
postpones the operation of the ‘women’s option’: women aged 58 (59 for self-employed 
women) and with 35 years of contributions by 31 December 2018, can benefit  from an 
early pension, although it is calculated entirely on the contributory system. 

7.2  Implementation of the principle of equal treatment for men and women in 

matters of social security 

Directive  79/7/EEC  on  statutory  schemes  of  social  security  has  never  been  specifically 
implemented, although domestic legislation is, on the whole, in line with EU law on gender 
equality.  

Article 30 of the Equal Opportunities Code (Decree No. 198/2006), as modified by Decree 
No.  5/2010,  implementing  the  Recast  Directive,  states  that:  women  workers  who  have 
reached the requirements to apply for pensions have a right to keep on working until the 
same  age  as  men;  women  have  the  same  rights  as men  to  benefit  from  family income 
support; women have the same right as men to survivors pensions; men and women have 
the same rights as regards survivors pensions under the scheme in relation to industrial 
accidents and professional diseases. 

The Italian family income support scheme has discriminatory features in respect of part-
time workers working less than 24 hours a week and vertical part-timers, who are entitled 
to  benefits  in  proportion  to  the  number  of  days  spent  at  work,  independent  from  the 
number  of  hours  worked  each  day.  Indeed,  workers  are  entitled  to  full  weekly  family 
benefits when they work at least 24 hours a week. Part-time employees working less than 

87   Canal T., Cirillo V. (2019), Pensioni: chi beneficierà della cosiddetta quota cento e quanto l'opzione donna 
aiuta davvero le lavoratrici? Un'analisi di genere delle nuove politiche previdenziali (Pensions: who will 
benefit from quota 100 and to what extent will women benefit from the ‘women’s option’? A gender analysis 
of the new pension policies) in: http://www.ingenere.it/articoli/quota-cento-opzione-donna-politica-non-ci-
vede. 

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24 hours a week are entitled to family benefits in proportion to the number of days spent 
at  work,  independent  from  the  number  of  hours  worked  per  day:  thus,  if  a  part-timer 
works  one  hour  a  day  for  five  days  a  week,  they  will  receive  five  daily  family  benefits, 
while if she/he works 21 hours a week during three days, they will receive only three daily 
benefits; vertical part-timers do not get any benefit in relation to the spells of inactivity. 
The scheme, however, is coherent with the exclusions in Article 3(2) of the Directive.  

There  are  no  other  conditions  regarding  the  affiliation  to  a  scheme  or  entitlement  to 
statutory benefits that are different for men and women. However, as regards statutory 
social security schemes, aspects of indirect discrimination in relation to gender are evident 
in the areas of part-time and temporary work and other non-standard working patterns, 
where  there  is  a  massive  presence  of  women.  In  particular,  the  increase  in  minimum 
insurance and contribution requirements in Italy over the past decades is bound to have 
a negative impact on the pensions of atypical workers, such as intermittent, temporary, 
occasional and part-time workers. The same goes for the economic thresholds for access 
to benefits, i.e. 1.5 times the social allowance for retirement aged 67 and 2.8 times the 
social  allowance  for  retirement  at  the  age  of  64,  in  both  cases  with  20  years  of 
contributions.  Also,  the  earnings  variations  as  well  as  the  continuity  and  regularity  of 
employment  of  the  claimants  appear  once  more  to  be  of  crucial  importance,  as  the 
qualifying  conditions  for  benefits  and  the  pension  amount  are  very  sensitive  to  these 
factors. Furthermore, in invalidity pension schemes, the working contribution condition is 
one that  is almost  impossible  for workers  with  recent spells  of inactivity  to fulfil.  These 
types of discrimination are very difficult to demonstrate and prove in the Italian system. 
This is because the structure of the current pension system proposes a uniform calculation 
mechanism for all workers, aimed at guaranteeing everyone a benefit proportional to the 
contributions paid, to the retirement age and to life expectancy, even if then the system 
is ill-suited for the characteristics of precarious work. Non-standard workers are also not 
helped by the abolition of the minimum pension supplement and its replacement with the 
social allowance (which has more stringent income limits), in the contribution system. The 
instruments  supporting  the  contributory  position  in  relation  to  inactive  periods,  i.e. 
voluntary contribution, redemption and notional contribution, are also quite weak in the 
Italian system; moreover, redemption and voluntary contribution are quite onerous. 

It  is worth  mentioning here  the  2016 Court  of  Cassation  case  No.  8564.88 The  Court  of 
Cassation took account of the ECJ decision in Bruno and Others, joined cases C-395/08 
and C-396/08, to rule that the principle of non-discrimination between part-time workers 
and full-time workers (referred to in European Directive No. 97/81) implies that the length 
of  contributions  useful  for  determining  the  date  of  acquisition  of  the  pension  right  is 
calculated for the part-time worker as if he had occupied a full-time position, also taking 
unpaid periods into consideration in full, given that part-time work is a particular way of 
performing  the  employment  relationship,  characterised  by  the  mere  reduction  of  the 
normal length of work; therefore, vertical part-timers must be credited with contributions 
for the weeks when they do not carry out their work activity, for the purpose of gaining 
access to pension. For the Court of Cassation decision, ECJ decisions C-385/11, C-527/13 
and C-161/18 were also extremely important in relation to European Directive No. 79/7.89 
The  problem  of  the  reduction  of  the  contribution  record,  however,  remains  for  other 
precarious workers and for the self-employed. 

Advantages as regards old age pensions are granted to women for the purpose of child 
rearing.  

88   Court of Cassation (Cassazione 29/4/2016, No. 8564) in relation to judgment of 10 June 2010 in joined 

cases Bruno and Pettini, C-395/08 and Lotti and Matteucci, C-396/08, ECLI:EU:C:2010:329. See: 
https://www.tcnotiziario.it/Articolo/Index?idArticolo=339316&tipo=&cat=ULTLAV&fonte=Teleconsul.it%20-
%20Ultimissime%20Lavoro. 

89   Judgment  of  22  November  2012,  Moreno,  C-385/11,  ECLI:EU:C:2012:746,  judgment  of  14  April  2015, 
Cachaldora Fernández, C-527/13, ECLI:EU:C:2015:215 and judgment of 8 May 2019, Villar Láiz, C-161/18, 
ECLI:EU:C:2019:382. 

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In Italy, there is a difference between men and women in early pension provisions: this 
difference  does  not  depend  on  the  pensionable  age,  but  depends  on  the  number  of 
contributions required to benefit from an early pension (before 67 years of age), that is 
42 years and 10 months for men and 41 years and 10 months for women (Law 214/2011, 
known as ‘Legge Fornero’). According to Article 4 of Law 108/1990, in private employment, 
women who have reached 41 years and 10 months of contributions, cannot be obliged to 
retire until they reach the pensionable age, however, they can be dismissed first in the 
round  of  a  redundancy  procedure.  When  women  are  compelled  to  retire  for  the  above 
reasons,  they will get one  year  less  contributions than men, which  will in  turn  result  in 
their pension amount being less. The situation is slightly different in public employment. 
Here, Article 72 of Law 133/2008 states that ‘with a legitimate decision with reference to 
organisational needs and selection criteria applied and without prejudice to the functional 
provision  of  services,  public  administrations  may,  starting  from  the  accrual  of  the 
contributions requirement for access to retirement as stated by Article 24 of Law 214/2011 
…, terminate the employment relationship and the individual contract … with six months' 
notice’. It must be stressed that, according to Article 72, the fulfillment of early pensions 
requirements  is  not  sufficient  for  dismissals,  and  there  must  also  be  organisational 
reasons. 

Another early retirement option is provided by Decree No. 4/2019, which postpones the 
operation  of  the  so-called  ‘women’s  option’:  women  aged  58  (59  for  self-employed 
women) who have 35 years of contributions by 31 December 2018, can benefit from an 
early  pension,  although  the  amount  is  calculated  entirely  according  to  the  contributory 
system. In this case, women are not obliged to retire earlier. 

Cohabitants  and  partners  are  not  included  in  survivors’  schemes  and  family  income 
support. 

7.3  Personal scope 

The statutory system is compulsory for all types of workers and its coverage is not subject 
to any limitations. 

7.4  Material scope 

The compulsory statutory system covers the risks listed in Article 3(1) of Directive 79/7.  

The Italian family income support scheme comes under the exclusions in Article 3(2) of 
the  directive.  The  scheme  reveals  discriminatory  features  as  regards  part-time  workers 
working less than 24 hours a week and vertical part-timers, who are entitled to benefits 
in proportion to the number of days spent at work, independent from the number of hours 
worked each day. Indeed, workers are entitled to full weekly  family benefits when they 
work at least 24 hours a week. Part-time employees working less than 24 hours a week 
are  entitled  to  family  benefits  in  proportion  to  the  number  of  days  spent  at  work, 
independent from the number of hours worked per day: thus, if a part-timer works one 
hour a day for five days a week, they will receive five daily family benefits, while if she/he 
works  21  hours  a  week  during  three  days,  they  will  receive  only  three  daily  benefits; 
vertical part-timers do not get any benefit in relation to the spells of inactivity. 

On the other hand, Article 30 of the Equal Opportunities Code (Decree No. 198/2006) lays 
down the principle of gender equality in relation to survivors’ pensions. 

Cohabitants  and  partners,  however,  are  not  included  in  survivors’  schemes  and  family 
income support.  

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7.5  Exclusions 

The exclusions  in  Article  7(1)  of  the  directive  have  been  used  in  the  pension system  in 
relation to the advantages as regards old-age pensions for the purpose of child rearing, 
under the new contribution system, for the benefit of women. More favourable coefficients 
of transformation (according to which pensions are calculated) are fixed for maternity. In 
relation to maternity, a reduction in the retirement age of four months per child is granted, 
with  a  maximum  limit  of  12  months.  As  an  alternative  to  this,  it  is  also  provided  that 
women  with  children  are  able  to  receive  a  retirement  pension  subject  to  reduced 
conditions. 

There  also  is  a  difference  between  men  and  women  in  early  pension  provisions:  this 
difference  does  not  depend  on  the  pensionable  age,  but  depends  on  the  number  of 
contributions required to benefit from an early pension, that is 42 years and 10 months 
for men and 41 years and 10 months for women. Moreover, Decree No. 4/2019 postpones 
the operation of the ‘women’s option’: women aged 58 (59 for self-employed women) who 
have 35 years of contributions by 31 December 2018, can benefit from an early pension, 
although the amount is calculated entirely according to the contributory system. 

7.6  Actuarial factors 

Sex is not used as an actuarial factor in statutory schemes. 

7.7  Difficulties 

The  fact  that  domestic  legislation,  on  the  whole,  is  fairly  in  line  with  EU  law  on  gender 
equality may explain the lack of a specific act transposing the EU directives: the adoption 
of a specific act may be considered less urgent at the political level. Nonetheless, in the 
view of the author of this report, such a transposition is still crucial because EU directives 
provide  a  benchmark  for  domestic  law.  Indeed,  the  main  problems  as  regards  gender 
equality can be detected in those fields that have been omitted from the EU gender anti-
discrimination framework, such as family allowances. Moreover, the latest legislation on 
pensions is far from women-friendly and the relevant conditions are particularly difficult 
to  fulfil  for  those  engaged  in  non-standard  work,  such  as  intermittent,  temporary, 
occasional and part-time work, which is often done by women.  

7.8  Evaluation of implementation 

Directive  79/7/EEC  on  statutory  social  security  schemes  has  never  been  specifically 
implemented. Notwithstanding that, domestic legislation is, on the whole, in line with EU 
law on gender equality.  

The main feature of - indirect - gender discrimination in statutory schemes can be found 
in the areas of part-time and temporary working and other non-standard working patterns, 
where there is a massive presence of women and young people. In particular, under the 
pay-based pension scheme, the amount and number of contributions paid and continuity 
of payment determine the eligibility to social insurance as well as the benefits level. The 
increase in minimum insurance and contribution requirements in Italy during the last few 
decades is bound to have a negative impact upon the pensions of atypical workers, such 
as intermittent, temporary, occasional and part-time workers. Moreover, those who have 
high  pay  fluctuation  during  the  period  of  reference  for  the  calculation  of  pensionable 
income are disadvantaged in relation to the calculation of the pension amount. Again, a 
temporary  worker  will have  substantial  reductions  in  his/her  contribution  period  for the 
purpose of calculating the amount of pension and this will naturally cause a reduction in 
the pension amount. Under the contribution-based pension system, the earnings variations 
as well as the continuity and regularity of employment of the claimants appear once more 
to be of crucial importance, as the benefit qualifying conditions and the pension amount 

78 

 
 
 
 
 
 
 
 
 
 
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are very sensitive to those factors. Furthermore, the option of an early pension provided 
by Decree No. 4/2019 is not likely to favour women, but rather men. Indeed, it favours 
those  with  a  stable  and  long-term  presence  in  the  labour  market  and  with  higher  pay 
levels, which are normally men, given that women usually have more fragmented careers 
and lower pay levels. Furthermore, in invalidity pension schemes, the working contribution 
condition  is  one  that  is  almost  impossible  for  workers  with  recent  spells  of  inactivity  to 
fulfil. Finally, cohabiting and same-sex partners are not entitled to survivors’ pensions and 
to family income support.  

The statutory system is compulsory for all types of workers and its coverage is not subject 
to any limitations. 

The compulsory statutory system covers the risks listed in Article 3(1) of Directive 79/7. 
The Italian family income support scheme falls under the exclusions in Article 3(2) of the 
directive.  The  scheme  reveals  discriminatory  features  as  regards  part-time  workers 
working less than 24 hours a week and vertical part-timers. 

The  exclusions  in  Article  7(1)  of  the  directive  have  been  used  in  the  new  contribution 
pension system in relation to advantages as regards old-age pensions for the purpose of 
child rearing, for the benefit of women. 

Sex is not used as an actuarial factor in statutory schemes. 

7.9  Remaining issues 

There  are  no  remaining  issues  regarding  statutory  social  security  that  have  not  been 
discussed so far. 

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8 

Self-employed  workers  (Directive  2010/41/EU  and  some  relevant 
provisions of the Recast Directive) 

8.1  General (legal) context 

8.1.1  Surveys and reports on the specific difficulties of self-employed workers 

The  Italian  labour  market  has  always  been  characterised  by  a  high  level  of  self-
employment. According to an ISTAT (the National Institute for Statistics) survey, in 2017, 
self-employed workers made up about 23.2 % of the total workforce (compared to an EU 
average of 15.7 %). Despite a decrease in self-employment of over 10 % in the last nine 
years,  this  accounts  for  a  large  part  of  the  gross  domestic  product  (about  18 %).  This 
sector includes many different occupations, such as farmers, professionals, shopkeepers, 
quasi-subordinated workers (that is, a sort of dependent self-employed worker, known as 
DSE,  among  whom  the  majority  are  women),  small  entrepreneurs  and  self-employed 
workers without employees. Their work organisation and regulation can differ greatly. As 
a consequence, each category has its own peculiarities. In general terms we can say that 
their  representative  associations  usually  highlight  the  same  chronic  problems,  that  is  a 
lack of infrastructure, bureaucracy, delays in payments, absence of illness protection and 
fiscal  pressure.  All  categories  of  self-employed  workers  have  had  to  face  the  economic 
crisis through income reduction, increased costs of production, or difficulties arising from 
a more complex market.90  

According to the results of a 2013 study by ISFOL (the Institute for the Development of 
Vocational  Training  for  Workers),91  another  common  and  remarkable  problem  affecting 
those  in  self-employment  is  the  lack  of  professional  training.  In  practice,  resources  are 
mainly allocated to maintain workers in the employment sector and the cost of professional 
training, which is compulsory only for some categories, rests entirely on the self-employed. 
The research also showed the average self-employed person, irrespective of the category, 
to be fully dedicated to their profession, performing the activity on his own, following a 
typically and deeply-rooted male model of work, characterised by long hours, which tend 
to  extend  into  and  mix  with  private  life.  This  is  probably  one  of  the  main  reasons  why 
women  are  traditionally  underrepresented  in  self-employment  and  account  for  a  lower 
average turnover and income, than men. In fact, the research focused on professionals, 
tradesmen, craftsmen, farmers and small businessmen, the majority of whom are men. 
The problems faced by self-employed women are mainly linked to de facto obstacles rising 
from double work in and out of the family or to old-fashioned stereotypes.  

However, the diverse world of self-employment also includes quasi-subordinated workers, 
where women are in the majority. These forms of collaboration – which also includes very 
different situations, from the performance of a professional service in favour of different 
customers to (in most cases) a job for a single employer, coordinated by the latter and 
performed within his enterprise – are often arranged simply to save on social contributions 
and  to  avoid  the  enforcement  of  labour  law  rules,  but  in  practice  hide  an  employment 
relationship. To counteract the misuse of DSE contracts, contribution charges have been 
gradually increased, reducing the gap in comparison with dependent work, and some strict 
legal  requirements  for  the  contracts  have  been  provided.  The  problems  that  can  affect 
these working relationships are obviously similar to those affecting employees, because 
they  are  often  carried  out  in  the  enterprise.  The  legislature  has  also  extended  the 
protection against blank resignation to these workers.  

90   ISTAT (2018), Independent workers - Data for 2017, available at: 

https://www.istat.it/it/files//2018/11/Focus_indipendenti_2018.pdf. 

91   ISFOL (2013), Lavoratori autonomi: identità e percorsi formativi (Self-employment: identity and 
professional training) in: http://bw5.cineca.it/bw5ne2/opac.aspx?WEB=INAP&IDS=19286. 

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8.1.2  Other issues 

There are no other issues in relation to self-employed workers that might be considered 
relevant in order to sketch the general context. 

8.1.3  Overview of national acts 

The  main  national  acts  relating  to  self-employment  are:  the  Equal  Opportunities  Code 
(Decree  No.  198/2006),  the  Decree  on  the  protection  of  motherhood  and  fatherhood 
(Decree No. 151/2001), Law 228/2012 and Law 81/2017. 

The  Equal  Opportunities  Code  and  the  Decree  on  the  protection  of  motherhood  and 
fatherhood implement Directive 2010/41/EU. Law 228/2012 issued slight amendments to 
both decrees to avoid an action for non-compliance.  

Law 81/2017 (the Jobs Act for self-employed workers), aims to strengthen their rights and 
welfare.  Some  improvements  involve  the  protection  of  motherhood  and  fatherhood. 
Moreover, Article 13 states that all autonomous workers performing a continuous activity 
for  a  customer  will  have  the  right  to  suspend  their  working  relationship  for  pregnancy, 
illness and accident at work for a maximum period of 150 days during each year, taking 
into account the customer’s interests.  

8.1.4  Political and societal debate and pending legislative proposals 

The  debate  on  self-employment  is  focused  on  the  main  problems,  which  are:  lack  of 
infrastructure,  bureaucracy,  delay  in  payments,  lack  of  illness  protection  and  fiscal 
pressure. These problems were left open by the last legal intervention, the Jobs  Act for 
self-employed workers. In particular, it is  stressed that the category of dependent self-
employed  worker  (DSE),  who  are  most  in  need  of  social  protection,  has  not  been 
specifically addressed.92 

At  present,  there  is  a  legislative  proposal  to  address  the  problem  of  those  forms  of 
collaboration  –  which  include  very  different  situations,  from  the  performance  of  a 
professional service in favour of different customers to (in most cases) a job for a single 
employer, coordinated by the latter and performed within his enterprise – which are often 
stipulated just to save on social contributions and to avoid the enforcement of labour law 
rules, but which, in practice, hide an employment relationship. It is proposed to counteract 
the misuse of such contracts by changing the VAT regulations.93 

8.2  Implementation of Directive 2010/41/EU 

The  Equal  Opportunities  Code,  issued  by  Decree  No.  198/2006,  and  the  Decree  on  the 
protection of motherhood and fatherhood, (Decree No. 151/2001), already ensured a good 
level of implementation of Directive 2010/41/EU. Law 228/2012 made slight amendments 
to  both  decrees  to  avoid  an  action  for  non-compliance.  In  particular,  Law 228/2012 
changed Article 27 of the Equal Opportunities Code and applied the ban on discrimination 
in the access to work to the establishment, equipment or extension of a business or the 
launching or extension of any other form of self-employed activity.  

92   See: https://www.altalex.com/documents/news/2017/07/03/jobs-act-del-lavoro-autonomo and Tiraboschi, 

M. (2017), Lavoro autonomo: il nuovo quadro legale (Self employment: the new legal framework), in 
Bollettino Adapt.it, available at: http://www.bollettinoadapt.it/lavoro-autonomo-il-nuovo-quadro-legale/. 

93   See the bill proposed by the political party M5S (Five Star Movement), in 

https://www.informazionefiscale.it/partita-iva-legge-falso-lavoro-autonomo-novita. 

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8.3  Personal scope 

8.3.1  Scope 

Neither the Code of Equal Opportunities nor the Decree on the protection of motherhood 
and  fatherhood  defines  self-employment.  The  legislature  has  laid  down  no  specific 
conditions. Therefore, the concept of self-employment that is relevant for the enforcement 
of  the  principle  of  equal  treatment  is  very  broad  and  includes  a  large  number  of  very 
different categories, as well as self-employed persons who employ other persons. 

8.3.2  Definitions 

Neither the Equal Opportunities Code nor the Decree on the protection of motherhood and 
fatherhood defines self-employment. The legislature has laid down no specific conditions. 
Therefore,  the  concept  of  self-employment  that  is  relevant  for  the  enforcement  of  the 
principle of equal treatment is very broad and includes a large number of very different 
categories, as well as self-employed persons who employ other persons. The provisions in 
other pieces of legislation define self-employed persons (Article 2222 of the Civil Code) as 
‘persons who commit themselves to make a service or a work totally or mainly by means 
of  their  labour  and  without  any  subordination  towards  the  customer’  and  small 
entrepreneurs (Article 2083 of the Civil Code) as ‘small independent farmers, craftsmen, 
traders and those who professionally perform an activity which is organised mainly with 
their work and with the work of their family.’ The law does not define quasi-subordinated 
work, that is, a sort of dependent self-employed worker (known as DSE).  

As  regards  the  protection  of  the  working  mother,  Decree  No.  151/2001  provides  for  a 
definition  of  a  worker  that  refers  to  employees  save  in  cases  where  it  is  specified 
differently.  In  fact,  two  chapters  of  the  decree  specifically  address  all  self-employed 
workers and professionals and another one addresses various categories, including quasi-
subordinated workers, thereby providing for the respective maternity/paternity rights.  

8.3.3  Categorisation and coverage 

Although the regulations covering the respective categories of self-employed persons can 
be  remarkably  different,  they  all  are  fully  covered  by  the  decrees  implementing 
Directive 2010/41/EU, as they are included in the general concept of self-employment. 

The  agricultural  sector  has  specific  regulations,  but  all  rights  provided  by 
Directive 2010/41/EU are also guaranteed to these self-employed persons. 

8.3.4  Recognition of life partners 

Italian legislation does not recognise life partners. However, under the regulations of the 
Decree on the protection of motherhood and fatherhood, maternity rights are individual 
rights. Moreover, allowances for poor families, which are paid by the municipalities, do not 
depend on marriage. Where life partners (e.g., the partner whether formally married or 
not) habitually participate in the activities of the self-employed partner and perform the 
same or ancillary tasks, this relationship has to be considered as an employee relationship. 

8.4  Material scope 

8.4.1  Implementation of Article 4 of Directive 2010/41/EU 

National legislation has implemented Article 4 of Directive 2010/41/EU through the Equal 
Opportunities Code (Decree No. 198/2006). 

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8.4.2  Material scope 

The very wide formulation of Article 1 of the Equal Opportunities Code, which states that 
‘Equal  treatment  between  men  and  women  must  be  assured  in  all  fields,  including 
employment,  work  and  remuneration’  assures  the  implementation  of  Article  4  of  the 
directive. The definitions of harassment and sexual harassment also repeat the wording of 
the directive and are regarded as discrimination; these definitions include less favourable 
treatment  based  on  a  worker’s  rejection  of  or  submission  to  harassment  or  sexual 
harassment (Articles 26, 50bis and 55bis of the Equal Opportunities Code). The same goes 
for instructions to discriminate (Article 25 of the Equal Opportunities Code). 

Specifically as regards the ban on discrimination, the wide definition provided by Article 27 
refers to all forms of work, employment, self-employment or any other work, including the 
‘establishment, equipment or extension of a business or the launching or extension of any 
other form of self-employed activity.’ The latter amendment provided by  Law 228/2012 
has definitely clarified the personal scope of the Equal Opportunities Code, dispensing with 
all possible doubts arising from the fact that autonomous work and entrepreneurship do 
not fully correspond; therefore, the ban on discrimination also applies to entrepreneurship. 
Article 27  is  also  enforceable,  under  Paragraph  3,  for  vocational  guidance,  vocational 
training, advanced vocational training and retraining, including practical work experience 
and for the membership of, and involvement in, an organisation of workers or employers, 
or  any  organisation  whose  members  carry  out  a  particular  profession  (including  the 
benefits provided for by such organisations). 

8.5  Positive action 

Before  the  implementation  of  Directive  2010/41/EU,  the  Equal  Opportunities  Code 
(Articles 52 et seq. Decree No. 198/2006) already provided for positive action in the field 
of  entrepreneurial  activity.  The  Equal  Opportunities  Code  implements  the  principle  of 
substantive  equality,  providing  for  the  promotion  of  female  self-employment  through 
preferential measures meant to favour access to bank credits and public funds, to improve 
professional  training  and  qualifications  for  women  in  this  field,  and  to  promote  the 
presence of businesses owned or managed by a high percentage of women in the most 
innovative areas of different production sectors. 

In the field of entrepreneurial activity, in particular, positive action measures are provided 
as  preferential  measures  meant  to  favour  access  to  bank  credits  and  public  funds 
(Articles 52 to 55 of the Equal Opportunities Code). The subjects entitled to these benefits 
are partnerships or cooperatives made up of at least 60 % women, limited and unlimited 
companies at least two-thirds owned by women and whose board of management is made 
up of at least two-thirds women, individual female businesses and finally businesses, their 
consortia  (consorzi)  and  associations,  and  bodies  for  the  promotion  of  entrepreneurial 
activity that promote professional training on self-employment or services for professional 
advice and assistance on management techniques reserved to a quota of at least 70 % 
women. 

Possible problems in the effectiveness of these measures are mainly linked to insufficient 
funds and to bureaucratic aspects, such as the complexity of the application and timing in 
the assessment and payment of the projects. Positive action measures may have a positive 
effect on the creation of start-up enterprises, but they are less efficacious as regards the 
performance and survival of such enterprises. In any case, expectations for these projects 
are rather high as the applications definitively exceed the amount of funds available. 

8.6  Social protection 

Self-employed  persons  fall  under  the  protection  of  social  insurance  as  regards  old-age 
pensions, invalidity benefits and survivors’ pensions, industrial accidents and occupational 

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diseases, maternity and family income support and sickness benefits. The pensions system 
is contribution-based. The self-employed are also covered by the National Health System, 
as  are  all  other  Italian  citizens.  The  various  categories  of  self-employed  persons  are 
protected by different pension systems, but all of them are mandatory and contribution-
based. 

As regards helping spouses and life partners, the Italian system includes different notions 
of a family business, which often overlap. What is relevant in relation to social protection, 
however, is both the form that the work relationship within the family enterprise takes and 
the fact that the work carried out produces an income. If this relationship takes the shape 
of a contract of employment, all provisions concerning employees will cover the assisting 
spouse. If  the person engaged in a family business is regarded as self-employed – and 
particularly as a ‘helping relative’ – the coverage in terms of social protection is provided, 
as stated above, by specific public schemes. 

On  the  other  hand,  it  is  not  completely  clear  which  kind  of  social  protection  could  be 
reserved for those engaged in the family business described in Article 230bis of the Civil 
Code (that is, family businesses). It could be argued that when the work relationship within 
the enterprise is not classified as one of self-employment or as a contract of employment, 
then  it is  regulated  by Article  230bis  of  the Civil Code.  These workers,  at  any  rate, are 
covered by the old-age, invalidity and survivors’ schemes of self-employed persons, which 
are both contribution-based and mandatory. 

If  the  work  carried  out  cannot  be  regarded  as  a  source  of  income,  then  there  is  no 
obligation to pay contributions for pension purposes; the sole social insurance provision 
that covers helping spouses in this case is the accident at work and professional diseases 
insurance. 

8.7  Maternity benefits 

The  Decree  on  the  protection  of  motherhood  and  fatherhood  (Decree  No.  151/2001) 
guarantees the right to maternity allowances provided by Article 8 of the directive to all 
categories of self-employed persons. 

The maternity allowance is granted to quasi-subordinated workers (a sort of dependent 
self-employed worker, known as DSE) for a period of five months. They are entitled to the 
allowance under a mandatory system subject to the condition that they have paid at least 
three  months  of  contributions  in  the  year  before  the  period  covered  by  the  allowance, 
regardless of their decision as to whether or not to suspend their working activity.94 The 
latter  amounts  to  80 %  of  1/365  of  the  income  based  on  which  the  contribution  has 
actually been paid in the preceding 12 months, which is consistent with Article 8(3)(b) of 
the  Directive,  which  refers  to  the  average  loss  of  income  or  profit  in  relation  to  a 
comparable preceding period subject to any ceiling laid down under national law. 

Self-employed women, including self-employed fisherwomen in small-scale coastal, inland 
fishing  and  helping  spouses,  are  entitled  to  a  maternity  allowance,  regardless  of  their 
decision as to whether or not to suspend their working activity.95 The allowance is paid for 
five months and amounts to 80 % of the minimum pay for contribution purposes.  

94   Law 81/2017, Article 13 and Article 13 of Decree No. 80/2015, which amended Decree No. 151/2001; the 
right to the allowance is also recognised when the employer does not pay the contribution (previously this 
rule only applied to employees). 

95   Article 15 of Decree No. 80/2015, which amended Decree No. 151/2001, states that the self-employed 
father is entitled to benefit from the self-employed mother’s maternity allowance after the birth for its 
whole length or for the remaining period in special cases (the mother dies or becomes seriously ill, or in the 
event of the abandonment of the child, or if the child is under the exclusive custody of the father he is 
entitled to the same period of leave of the mother), as well as fathers working under an employment 
contract. The same extension concerns professional fathers under Article 18 of the decree, as a permanent 
amendment. 

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Women  engaged  in  the  liberal  professions  and  members  of  the  Welfare  and  Assistance 
Fund  of  their  category  (i.e.  advocates,  doctors,  surveyors,  architects,  accountants)  are 
also entitled to five months of maternity allowance, regardless of interruption of their work. 
The  allowance  amounts  to  80 %  of  5  months  of  the  yearly  income  earned  during  the 
second  year  preceding  the  birth.  Five  months  of  contributions  are  credited  for  pension 
purposes here. 

During the types of leave mentioned above, notional contributions96 are counted towards 
pension rights and amounts. All these categories are obliged to pay contributions to sustain 
maternity allowances and they are all covered for this risk, including in cases of national 
and international adoption and fostering. 

Italy does not have services supplying temporary replacements and the only provision that 
is aimed at favouring the replacement of the working mother in the enterprise has been 
extended to self-employed persons. Article 4, Paragraph 5 of Decree No. 151/2001 states 
that in businesses where self-employed women are engaged, if women go on maternity 
leave they can be replaced, in the first year after childbirth or after the child has entered 
the family in the event of an adoption, by an employee working on a fixed-term contract 
and (if the enterprise employs less than 20 people) with special reductions in contributions 
for the business.  

The  maternity  allowance  is  not  an  alternative  to  any  national  social  service  or  services 
supplying  temporary  replacements.  Social  services  can  be  accessed  by  everybody 
depending on  their  revenue  regardless  of the  subordinate  or  autonomous  nature  of  the 
working relationship. 

Another  provision,  Article  1,  Paragraph  239,  Law  234/2021  (Budget  Act  for  2022), 
concerns autonomous workers with low revenues: in the event that their annual income 
in the year before the birth of the child is lower than EUR 8 145 indexed to inflation, they 
can benefit from three additional months of maternity allowance. 

Finally,  Article  8,  Paragraph  4  of Law  81/2017  provides for six  months  of  paid parental 
leave, to be taken within the first three years of the child’s life for those workers who are 
registered  in  the  so-called  gestione  separata,  which  is  a  compulsory  pension  scheme 
covering quasi-subordinate workers (DSE) and similar categories (including professionals 
in those categories who do not have their own pension schemes). Furthermore, Article 13 
provides an allowance for maternity leave for them irrespective of the actual absence from 
work, the same as is provided for professionals. These provisions are also enforceable in 
cases of adoption or fostering.  

Moreover, Article 14 of Law 81/2017 states that all self-employed workers performing a 
continuous activity for a customer have the right to suspend their working relationship for 
a  maximum  period  of  150  days  for  pregnancy  during  each  year,  while  also  taking  into 
account the customer’s interests; in this case, the worker can be substituted by a colleague 
or by a partner.  

8.8  Occupational social security 

8.8.1  Implementation of provisions regarding occupational social security 

The  Recast  Directive  has  been  implemented  as  regards  occupational  social  security  by 
Decree No. 5/2010, which has added Article 30bis to Decree No. 198/2006. This piece of 
legislation,  however,  does  not  include  any  provisions  on  self-employment.  Despite  this, 
the  domestic  legislation,  on  the  whole,  is  fairly  in  line  with  EU  anti-discrimination  law. 

96   Those are contributions that are credited without cost to the employee for periods during which the worker 
has not worked (for example, in the case of illness or maternity) and therefore he or she has received 
benefit payments from the national social security system (INPS).  

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However,  the  regulations  on  occupational  funds  make  no  provisions  for  the  recovery  of 
wasted contributions during pregnancy/maternity. 

8.8.2  Application  of  exceptions  for  self-employed  persons  regarding  matters  of 

occupational social security (Article 11 of Recast Directive 2006/54) 

The  Recast  Directive  has  not  been  implemented  as  regards  self-employed  occupational 
social security. Therefore no use was made of the option to make exceptions as provided 
in Article 11 of the Recast Directive. 

8.9  Prohibition of discrimination 

Under  Article  27  of  the  Equal  Opportunities  Code,  the  prohibition  on  direct  and  indirect 
discrimination  concerns  access  to  employment,  self-employment  or  any  other  form  of 
work, as well as selection criteria, recruitment conditions at all levels of the professional 
hierarchy,  and  promotion.  It  applies  to  all  sectors,  both  public  and  private,  and 
encompasses  all  types  of  work  relationships,  subordinate,  autonomous  or  ‘any  other’, 
including entrepreneurship. 

8.10 Evaluation of implementation 

The  Equal  Opportunities  Code,  issued  by  Decree  No.  198/2006,  and  the  Decree  on  the 
protection of motherhood and fatherhood, (Decree No. 151/2001), already ensured a good 
level of implementation of Directive 2010/41/EU. Law 228/2012 made slight amendments 
to  both  decrees  to  avoid  an  action  for  non-compliance.  In  particular,  Law 228/2012 
changed Article 27 of the Equal Opportunities Code and applied the ban on discrimination 
in the access to work to the establishment, equipment or extension of a business or the 
launching  or  extension  of  any  other  form  of  self-employed  activity.  Law 228/2012  also 
extended the regulations on both maternity allowance and parental leave provided for self-
employed workers by the Decree on the protection of motherhood and fatherhood to self-
employed  fisherwomen  in  small-scale  coastal  and  inland  fishing.  It  also  changed  the 
regulations on parental leave by entitling parents to use this leave by the hour, according 
to  criteria  to  be  established  by  collective  agreements.  Following  Law 228/2012,  specific 
regulations  (including  the  option  to  postpone  the  leave)  are  also  to  be  provided  by 
collective agreements for the defence forces, the public rescue sector and firemen, with 
the aim of taking into consideration the specific organisational needs of these services.  

It  is  also  to  be  recalled  here  that  Italian  legislation  does  not  recognise  life  partners. 
However,  under  the  regulations  of  the  Decree  on  the  protection  of  motherhood  and 
fatherhood,  maternity  rights  are  individual  rights  (available  to  life  partners).  Moreover, 
allowances  for  poor  families,  which  are  paid  by  the  municipalities,  do  not  depend  on 
marriage.  Where  life  partners  (e.g.,  the  partner  whether  formally  married  or  not) 
habitually participate in the activities of the self-employed partner and perform the same 
or  ancillary  tasks,  this  relationship  has  to  be  considered  as  a  remunerated  work 
relationship. 

Finally, the Recast Directive has been implemented as regards occupational social security 
by Decree No. 5/2010, which has added Article 30bis to Decree No. 198/2006. However, 
it  does  not  include  any  provisions  on  self-employment.  Despite  this,  the  domestic 
legislation, on the whole, is fairly in line with EU anti-discrimination law. 

8.11 Remaining issues 

It is worth mentioning here the Budget Act for 2021 (Law 178/2020). Indeed, Article 1, 
Paragraph 97 to Paragraph 108, allocated EUR 20 million for 2021, and the same amount 
for 2022, to support female entrepreneurship, with a special focus on the development of 
new technologies. Planned measures to be financed include: grants, zero-interest loans, 

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assistance  in  setting  up  or  running  the  business,  investments  in  capital,  professional 
training and educational campaigns. 

The  legislation  on  the  COVID-19  pandemic  provided,  temporarily  until  the  end  of  the 
pandemic, for special leave, to be taken by self-employed or quasi-subordinated workers 
(DSE) who are parents of children up to 12 years old or of seriously disabled children; in 
this case an allowance of 50 % of the remuneration and figurative contributions have been 
granted. As an alternative to the leave mentioned above, a voucher for babysitting services 
has been provided for working parents of children aged 12 years or younger.97 

There are no remaining issues regarding self-employed persons. 

97   Law 27/2020, Law 77/2020, Law 126/2020 and Law 176/2020. 

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9 

Goods and services (Directive 2004/113)98 

9.1  General (legal) context 

9.1.1  Surveys and reports about the difficulties linked to equal access to and supply of 

goods and services 

In Italy, there is no debate regarding discrimination based on sex in the access to or prices 
of services and such differential treatment is very rare. The sector where discrimination is 
most likely to take place is that of insurances and financial services, and with respect to 
this, the directive is crucially important in Italy, as elsewhere. There is no case law on the 
enforcement of Directive 2004/113. 

9.1.2  Specific  problems  of  discrimination 

in 

the  online  environment/digital 

market/collaborative economy 

We are not aware of any specific problems of gender discrimination concerning the access 
to and supply of goods and services in the online environment/digital market/collaborative 
economy. There is no evidence of any engagement in gender discrimination in relation to 
this  issue  by  any  private  or  public  stakeholders,  such  as  national  equality  bodies  and 
collective agreements. On the side of consumer protection bodies, however, the Consiglio 
Nazionale dei Consumatori e degli Utenti (CNCU) 2016 report recommends responsibility, 
respect  of  general  rules  –  therefore  also  anti-discrimination  rules  contained  in  our 
Constitution  and  labour  law  legislation  –  and  platform  transparency  in  the  online 
environment/digital  market/collaborative  economy.  The  report  was  presented  at  the 
region’s conference, where the question of whether the collaborative economy increases 
or decreases equality was raised.99 

9.1.3  Political and societal debate 

There is no debate among scholars or any other initiatives aimed at spreading awareness 
of Directive 2004/113. This is probably both the cause and the effect of the merely formal 
implementation  of  the  directive.  Indeed,  Decree  No.  196/2007,  which  implemented  EC 
Directive 2004/113, repeats the text of the directive literally. Substantive implementation 
would require measures aimed at making people and institutions aware of the importance 
of this issue.  

9.2  Prohibition of direct and indirect discrimination 

EC Directive  2004/113  has  been  implemented  by  Decree  No.  196/2007,  which  adds  10 
articles 
to  55decies  of 
Decree No. 198/2006). The decree literally repeats the text of the directive. 

the  Equal  Opportunities  Code 

(Articles  55bis 

to 

We  do  not  yet  have  any  examples  of  cases  regarding  the  implementation  of 
Directive 2004/113. Nor were there any reported cases on gender discrimination regarding 
goods and services before the implementation of the directive.  

9.3  Material scope 

The  Italian  transposition  is  worded  in  the  same  way  as  the  directive  (Article  55ter 
Decree No. 198/2006). 

98   See e.g. Caracciolo di Torella, E. and McLellan, B. (2018) Gender equality and the collaborative economy, 

European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4573-gender-equality-and-the-collaborative-economy-pdf-721-kb. 

99   See http://www.newtuscia.it/2017/04/19/ruolo-delle-associazioni-dei-consumatori-nelleconomia-

collaborativa/. 

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9.4  Exceptions 

The  Italian  transposition  is  worded  in  the  same  way  as  the  directive  (Article  55ter 
Decree No. 198/2006). 

9.5  Justification of differences in treatment 

The differences in treatment provided by the directive have been copied by Article 55bis, 
Paragraph  7  of  Decree  No.  198/2006.  No  explicit  examples  or  specific  exceptions  have 
been provided in the national legislation. 

9.6  Actuarial factors 

Article  55quater  of  Decree  No.  198/2006,  modified  by  Article  25,  Paragraph  1  of 
Law 161/2014, states that  

‘in all new contracts concluded after 20 December 2012, the use of sex as a factor 
in the calculation of premiums and benefits for the purposes of insurance and related 
financial services shall not result in differences in individuals' premiums and benefits.’  

The rule also states that ‘In any event, costs related to pregnancy and maternity shall not 
result  in  differences  in  individuals'  premiums  and  benefits.’  The  Institute  for  Insurance 
Supervision  (IVASS)  must  ensure  that  Article  55quater  is  respected  by  insurance 
companies. Any breach of the rule is qualified as gender discrimination. 

9.7  Interpretation of exception contained in Article 5(2) of Directive 2004/113 

Test-Achats has been implemented in Italy by Article 25, Paragraph 1 of  the Law of 30 
October  2014, No.  161, which has  amended Article  55quarter  of Decree  No. 198/2006. 
The rule provides that, before 21 December 2012, proportionate differences in individuals’ 
premiums  and  benefits  are  allowed  only  on  condition  that  the  Institute  for  Insurance 
Supervision (IVASS) ensures that the use of sex is a determining factor in the assessment 
of risk based on relevant and accurate actuarial and statistical data. After 20 December 
2012,  the  use  of  sex  as  a  factor  in  the  calculation  of  premiums  and  benefits  for  the 
purposes of insurance and related financial services must not result in differences in the 
premiums and benefits of individuals. 

9.8  Positive action measures (Article 6 of Directive 2004/113) 

Article  55novies  of  Decree  No.  198/2006  expressly  provides  for  positive  action  to  be 
promoted  by  the  office  for  the  promotion  of  equal  treatment  in  access  to  goods  and 
services at the Minister for Equal Opportunities and Family. Positive action measures can 
be  carried  out  by  public  and  private  bodies  and,  in  particular,  by  associations  and 
organisations  promoting  equal  treatment  listed  in  a  ministerial  decree.  At  present, 
however, there are no records of positive action in this field. 

9.9  Specific problems related to pregnancy, maternity or parenthood 

There are no specific grounds or case law on discrimination on the grounds of pregnancy, 
maternity or parenthood in relation to the access to and the supply of goods and services. 
Article 4(2) of Directive 2004/113 has been applied to maintain the exemption from fees 
for  all  clinical  tests  related  to  pregnancy  and  for  certain  clinical  tests  during  the  same 
period. Moreover, having children is regarded as a preferential ground to gain access to 
public housing, while having more than one child is a preferential ground to gain access 
to a public kindergarten. These are sex neutral provisions. 

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9.10 Evaluation of implementation 

Decree No. 196/2007 literally repeats the text of the EU directive, including the provisions 
on its substantive scope and on the allowed exceptions. It has to be emphasised that the 
textual reproduction of directives in our system can be regarded as bad practice, which 
certainly does not ensure the necessary coordination with other existing provisions.  

One provision that is slightly different from the text of the directive relates to the body for 
the  promotion  of  equal  treatment.  On  this  specific  item,  it  can  be  observed  that  some 
doubts  have  arisen  regarding  the  real  independence  of  the  Equality  Office  provided  by 
Article  55novies  of  Decree No.  198/2006,  as it  comes under the  general  division  of  the 
Minister for Equal Opportunities and Family, part of the Prime Minister’s Offices, without 
any  budget  allocation.  Article  55novies  adds  the  promotion  of  studies,  research, 
professional training and exchange of good practice, aimed at working out guidelines on 
fighting discrimination, to the other functions expressly provided for by the  directive as 
regards  equality  bodies.  It  also  states  that,  for  this  purpose,  the  general  division  can 
partner  with  associations,  organisations  or  other  legal  entities  that  have  a  legitimate 
interest  in  ensuring  that  the  provisions  of  the  directive  are  complied  with  and  that  are 
entitled on this ground to engage, on behalf or in support of the claimant, with his or her 
approval, in any judicial and/or administrative procedure.  

In case of ascertained discrimination by public or private subjects that have contracts for 
public  works,  or  services  or  supplies,  the  public  administration  can  revoke  financial  or 
credit benefits allowed to them (Article 55quinquies of Decree No. 198/2006, as modified 
by Article 34 of Decree No. 150/2011).  

9.11 Remaining issues 

There are no other issues regarding goods and services that have not been discussed so 
far. There are no issues regarding access to goods and services related to the COVID-19 
crisis.  

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10  Violence against women and domestic violence in relation to the Istanbul 

Convention 

10.1 General (legal) context 

10.1.1 Surveys and reports on issues of violence against women and domestic violence 

One of the objectives of the ‘Extraordinary plan against violence’ provided under Article 5 
of  Decree  No.  93/2013  is  to  provide  for  annual  data  collection  on  cases  of  all  forms  of 
violence,  including  a  map  of  specialist  support  services.  The  decree  also  provides  for 
coordination of the existing data collection (Paragraph 2 of Article 5). So far, data collection 
on  all  forms  of  violence  has  been  made  available  by  ISTAT,  the  National  Institute  for 
Statistics. The ISTAT datasets are available to the public.  

The latest collection of data on violence against women was led by ISTAT in cooperation 
with  the  Department  of  Equal  Opportunities  and  dates  back  to  2014.  According  to  the 
survey, 6 788 000 women have been victims of some form of violence, either physical or 
sexual,  during  their  life,  that  is  31.5 %  of  women  aged  16-70:  20.2 %  have  been  the 
victim of physical violence; 21 % of sexual violence; and 5.4 % of the most serious forms 
of  sexual  violence  such  as  rape  and  attempted  rape.  Furthermore,  foreign  women  are 
victims  of  sexual  or  physical  violence  on  a  similar  scale  to  Italian  women.  However, 
physical violence is experienced more frequently by foreign women, while sexual violence 
is more commonly experienced by Italian women. Current and former partners of victims 
are those who commit the most serious crimes: 62.7 % of rapes  are committed by the 
current or the former partner, while  in the majority of cases of sexual harassment,  the 
perpetrators are unknown (76.8 %). As to the age of the victim, 10.6 % of women have 
been  victims  of  sexual  violence  prior  to  the  age  of  16.  The  rate  of  children  witnessing 
violence against women in cases has increased to 65.2 % (compared to the 2006 figure 
of 60.3 %). Women who are separated or divorced are far more exposed to physical or 
sexual violence (51.4 % as compared to 31.5 % relating to all other cases). The situation 
of women with disabilities or illnesses remains a great concern: 36 % of women with bad 
health  conditions  and  36.6 %  of  those  with  serious  limitations  have  been  victims  of 
physical or sexual violence. The risk of being exposed to rape or attempted rape doubles 
compared to women without any health problems (10 % compared to 4.7 %). However, 
compared to 2006, the number of sexual and physical violence cases has decreased from 
13.3 %  to  11.3 %.  This  is  the  result  of  an  increased  awareness  by  women  of  existing 
protection tools and public opinion  in general, in addition to an overall social climate of 
condemnation  and  no  tolerance  for  such  crimes.  Women  are  far  more  aware  that  they 
have survived a crime (from 14.3 % to 29.6 % in case of violence by the partner) and the 
violence is reported far more often to the police (up from 6.7 % to 11.8 %). Victims are 
increasingly likely to talk about the violence with someone (up from 67.8 % to 75.9 %) 
and look for professional help (up from 2.4 % to 4.9 %). The same applies in the event of 
violence by a non-partner. Compared to the 2006 figures, survivors are far more satisfied 
with the relevant work carried out by the police.  

The  improved  data  are  certainly  linked  to  the  enactment  of  Decree  No.  93/2013 
implementing the Istanbul Convention. Conversely, negative results emerge in relation to 
cases  of  rape  or  attempted  rape.  The  forms  of  such  violence  are  far  more  serious  and 
there has been an increase in the number of victims with injuries (from 26.3 % to 40.2 % 
in cases when the partner is the perpetrator); and an increase in the number of women 
who feared that their life was in danger (from 18.8 % in 2006 to 34.5 % in 2014). The 
forms  of  violence  inflicted  by  a  non-partner  are  also  more  serious:  3 466 000  women 
(16.1 %)  have  been  victims  of  stalking  during  their  lifetime,  of  whom  1  524  000  have 
been  stalked  by  their  former  partner  and  2 229 000  by  a  person  other  than  a  former 
partner.  

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The  ISTAT  survey  also  presents  estimated  data  on  the  years  2015-2016,  on  sexual 
harassment  suffered  by  women  and  men  and  of  women  victims  of  sexual  blackmail  at 
work. It is estimated that 8 816 000 women between 14 and 65 years of age (43.6 %) 
were  victims  of  sexual  harassment  in  the  course  of  their  lives.  In  the  last  three  years 
approximately  3  118  000  women  will  have  been  the  victims  of  sexual  harassment 
(15.4 %). Taking only the forms of sexual harassment recorded in the 2008-2009 survey, 
the data showed a significant decrease. Male victims of sexual harassment were estimated 
to  be  3  754  000  (18.8 %)  in  the  course  of  their  life,  with  1 274 000  men  (6.4 %) 
experiencing sexual harassment in the last three years. Perpetrators of sexual harassment 
were mostly men.  

Other forms of harassment were those perpetrated through the internet: 6.8 % of women 
had inappropriate proposals or obscene or malicious comments on their account through 
social networks and 1.5 % of women were the victims of someone using their accounts 
(identity theft) to send embarrassing or threatening or offensive messages to other people. 
In this respect, the data regarding men are not particularly different (2.2 % and 1.9 % 
respectively).100 

Another survey was carried out by Ipsos (a private survey firm) in 2018. This reveals that 
57 % of the persons interviewed (1 300) are convinced that violence against women is an 
understated subject, and 71 % of them consider that public authorities do not do enough 
about  it.  Furthermore,  83 %  of  those  interviewed  asked  for  a  state  fund  for  victims  of 
violence. 

Finally,  in  2018,  a  survey  was  conducted  by  associations  against  violence  against 
women.101  The  survey  highlights  the  obstacles  to  a  full  implementation  of  the  Istanbul 
Convention,  including:  lack  of  education  and  professional  training  on  these  issues;  low 
financing of services such as shelters and anti-violence centres; lack of accountability in 
relation to services against violence; lack of homogeneity of data collection; problems as 
regards  the  high  percentage  of  violence  against  disabled  and  immigrant  women,  with 
respect  to  whom  little  attention  is  given  in  the  legislation  and  services  provided;  low 
effectiveness of the criminal and civil redress system. 

10.1.2 Overview of national acts on violence against women, domestic violence and issues 

related to the Istanbul Convention 

Italy signed the Istanbul Convention on 27 September 2011 and ratified it with the Law of 
27 June 2013, No. 77. Following Italy’s accession to the Istanbul Convention, Decree 14 
August  2013,  No.  93  (converted  in  Law  119/2013)  was  introduced.  The  decree 
strengthened  measures  aimed  at  tackling  crimes  such  as  domestic  violence,  sexual 
violence, and ‘persecutory acts’. Recently, Article 1, Paragraphs 149, 150 and 661-664 of 
Law 234/2021  slightly  modify  Decree  No.  93/2013  and  increase  the  Fund  for  Equal 
Opportunities,  for  2022,  with  the  aim  of  combating  gender  and  domestic  violence.  In 
particular, a national strategic plan for combating gender violence will be issued at least 
every three years by the Prime Minister; moreover, an interinstitutional monitoring unit 
and an obseratory on gender and domestic violence against women will be set up at the 
Department for Equal Opportunities.  

Stalking  (that 
time  by 
Decree No. 11/2009,  converted  into  Law  38/2009.  Article  12  of  Decree  No.  11/2009 
provides for a free-of-charge, state-wide, round-the-clock telephone helpline (1522), to 

‘persecutory  acts’),  was  regulated 

first 

the 

for 

is, 

100  Data are quoted from the ISTAT Survey on violence against women of 2014, published in 

https://www.istat.it/it/files//2015/09/EN_Violence_women.pdf and 
https://www.istat.it/en/archivio/209122. 

101  Grevio (2018) L’attuazione della Convenzione di Istanbul in Italia. Rapporto delle associazioni di donne (The 

implementation of the Istanbul Convention in Italy. Report of women’s associations) available at: 
https://www.direcontrolaviolenza.it/wp-content/uploads/2018/10/GREVIO.Report.Ital_.finale-1.pdf. 

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offer initial psychological and judicial assistance and to report to the police urgent cases 
on the victim’s request.  

Article  24  of  Decree  No.  80  of  15  June  2015  implementing  Delegation  Law 183/2014 
introduced  some  measures  aimed  at  supporting  victims  of  gender  violence.  A  period  of 
leave of three months is given to women victims of gender-based violence who are under 
a protection programme certified by local authorities. The leave is remunerated and equal 
to the last month of remuneration; it is counted as actual work with regard to seniority, 
the annual vacation, and severance pay, and can be used on a daily or hourly basis, within 
the time frame of three years, following criteria stipulated by collective agreements or by 
law.  Victims  of  gender-based  violence  are  also  entitled  to  convert  their  working 
relationship  from  full  time  to  available  part-time  positions,  on  a  temporary  basis.  A 
suspension  of  the  working  relationship  for  a  maximum  period  of  three  months  is  also 
provided  for  continuous  and  coordinated  collaborations  that  are  a  form  of  self-
employment.  Moreover,  Article  1,  Paragraph  217  of  Law  205/2017  (Budget  Act 2018) 
extended the period of leave available to female victims of gender-based violence who are 
under a protection programme for domestic workers.  

In 2021, Italy was the first  EU Member State to ratify ILO Convention No. 190 concerning 
the  elimination  of  violence  and  harassment  in  the  world  of  work,  by  Law  No.  4/2021. 
Overall, the current Italian regulatory framework already appears to be in line with the 
provisions of the convention. 

10.1.3 National provisions on online violence and online harassment 

There are not yet specific provisions on online violence and online harassment of women 
and  girls,  despite  the  fact  that  the  phenomenon  is  quite  common  in  Italy.  Indeed  the 
Parliamentary Commission set up in 2017 to investigate the scale and causes of feminicide 
and violence against women recommended the adoption of a specific law on the issue.102 
The recommendation has not been disregarded as Law 69 of19 July 2019, known as ‘the 
Red  Code’,  on  the  improvement  of  criminal  law  and  redress  protection  of  victims  of 
violence,  has  recently  been  approved.  The  Law  aims  to  accelerate  legal  proceedings 
regarding  domestic  violence  against  women  and  to  improve  privacy  in  these  cases  and 
specific  crimes  are  also  introduced  for  identity  injuries  and  online  revenge  porn.  In 
addition, compulsory professional training on these issues is provided for police forces.103 

10.1.4 Political and societal debate 

The problem of violence against women and domestic violence is strongly recognised in 
Italy and the issue is present across the media. In particular, a Parliamentary Commission 
was set up in 2017 in order to investigate the scale and causes of feminicide and violence 
against  women.104  The  commission  recommended:  the  improvement  of  statistical  data 
collection;  better  criminal  legislation  in  relation  to  child  witnesses,  the  issuing  of 
emergency orders for preventing violence, identity injuries and feminicide; the promotion 
of a socio-cultural change through education, professional training of police, social services 
and physicians, guidelines to the media on how to report on gender violence; the adoption 
of  specific  norms  on  online  violence  and  online  harassment;  and  the  improvement  of 
psychological assistance for male perpetrators of violence. 

In  the  pandemic  period,  the  network  of  anti-gender  violence  centres  (D.i.Re)  noted  a 
decrease in reports of new cases, but a high increase in help requests from women who 
were  already  being  assisted  by  an  anti-violence  centre.105  In  practice,  the  lockdown 

102  http://www.senato.it/documenti/repository/commissioni/femminicidio/DocXXII-bis_9.pdf. 
103  https://www.altalex.com/documents/leggi/2019/07/26/codice-rosso.  
104  http://www.senato.it/documenti/repository/commissioni/femminicidio/DocXXII-bis_9.pdf. 
105  https://www.direcontrolaviolenza.it/violenza-covid19-2867-donne-si-sono-rivolte-ai-centri-antiviolenza-d-i-

re-durante-il-lockdown/. 

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measures  remarkably  worsened  women’s  experience  of  domestic  violence.  Indeed,  the 
media  increasingly  reports  cases  of  violence  against  women  due  to  enforced  cohabiting 
because of lockdown. The situation is likely to become even more serious considering the 
predicted effects of the crisis.  

In  light  of  this,  Article  18bis  of  Decree  No.  18/2020  provides  for  the  allocation  of 
EUR 3 million  in  2020  to  support  both  public  and  private  refuge  houses  to  counteract 
domestic  violence  and  to  protect  women.  Furthermore,  Article  26bis  of  Decree 
No. 104/2020  allocated  EUR  1  million  to  support  rehabilitation  centres  for  criminals 
sentenced for gender violence. Finally, under Article 1, Paragraph 1134 of Law 178/2020 
(Budget Act for 2021), a fund set up at the Prime Minister’s Office to combat gender-based 
violence will be financed from 2021 until 2023, with EUR 2 million a year. These resources 
are  mainly  addressed  to  the  operation  of  associations  fighting  against  gender  violence. 
Paragraph 27 of Article 1 of Budget Act for 2021 also allocated EUR 2 million a year from 
2021 until 2023 for the creation and the consolidation of specialist psychological support 
services in prisons for perpetrators of crimes of gender-based violence, with the aim of 
preventing  reoffending.  The  simple  allocation  of  this  fund  is  likely  to  be  too  weak  an 
intervention to be effective.  

10.2 Ratification of the Istanbul Convention 

Italy signed the Istanbul Convention on 27 September 2011 and ratified it with the Law of 
27 June 2013, No. 77. Our country did not issue any reservation to the provisions of the 
Convention. The pre-existing legal framework was not completely in compliance with the 
obligations  under  the  Convention.  In  particular,  it  did  not  comply  as  regards  forced 
abortion, which is not mentioned by Article 18 of Law 194/1978 on abortion; moreover, 
crimes  such  as  forced  sterilisation  and  forced  marriage  were  not  included  in  the  Italian 
Criminal  Code.  Furthermore,  free  legal  aid  for  victims  was  not  provided  and  protective 
measures had to be strengthened. 

Following Italy’s accession to the Istanbul Convention, Decree No. 93 of 14 August 2013, 
(implemented  in  Law  119/2013)  was  introduced.  The  decree  strengthened  measures 
aimed at tackling crimes such as domestic violence, sexual violence, and ‘persecutory acts’ 
(stalking, which was regulated for the first time by Decree No. 11/2009, implemented in 
Law 38/2009). Two articles are particularly important as regards the implementation of 
the  Convention:  Articles  5  and  5bis  of  Decree  No.  93/2013.  Article  5  provides  for  an 
‘Extraordinary  plan  against  violence’  to  tackle  such  crimes  to  be  issued  by  the  Prime 
Minister’s  Adviser  on  Equal  Opportunities,  including  multiple  measures  aimed  at 
prevention,  strengthening  anti-violence  centres  and  social  services,  increasing  the 
protection of victims, improving the professional training of experts, gathering figures on 
these cases and carrying out positive action measures. Article 5bis promotes and finances 
both the creation and the consolidation of specialist support services and shelters, which 
can be set up by local authorities or voluntary associations and organisations and that are 
due to operate in coordination with the National Health Service network of local clinics. 

Article  4  of  Decree  No.  93/2013  provides  for  a  special  residence  permit  for  reasons  of 
protection of foreign victims of domestic violence. The permit is issued by the competent 
authority, authorised by the judge, when there is a situation of domestic violence against 
a foreign person, detected during policy operations, investigations or criminal proceedings. 
The  permit  can  also  be  issued  when  the  domestic  violence  is  detected  during  the 
intervention of general and specialist support services.  

The  issuing  of  Decree  No.  93/2013  was  a  further  and  important  step  towards  better 
protection for woman against violence. Stronger sanctions have been provided, together 
with  further  precautionary  measures  and  some  improvements  in  the  protection  of  the 
victim. Nevertheless, criticisms have been raised concerning the merely repressive nature 
of this intervention and on the lack of funding, which risks depriving it of any effectiveness. 

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In  particular,  it  has  been  highlighted  that  the  decree  is  extremely  weak  as  regards 
prevention, which is crucial to combating violence and no attention at all has been paid to 
the professional training of experts and to health and social help/assistance aimed at the 
rehabilitation of the perpetrator. The extraordinary plan itself is unlikely to work at little 
cost.  

The  extraordinary  plan  against  violence,  which  will  be  two-yearly,  will  be  monitored 
annually  by  the  Minister  for  Equal  Opportunities  and  Family.  The  first  plan  was 
implemented by a Decree of the Prime Minister of 25 August 2015 and after the first plan 
expired,  a  new  plan  was  published  for  the  period  2017-2020.  The  new  plan  contains 
measures aimed at: the prevention of violence against women by raising social awareness, 
professional  training  and  social  education,  and  treatment  of  abusers;  the  support  of 
women who have experienced violence by the creation and the consolidation of specialist 
support  services  and  shelters,  economic  and  financial  empowerment  of  women  and 
incentives to housing autonomy; the prosecution and punishment of the perpetrators of 
violence;  regular  monitoring  of  the  plan’s  effects  and  impact;  constitution  of  a  control 
room to coordinate the local and national policies geared towards tackling violence against 
women.106 

No other legal provisions are currently planned to be introduced.  

106  See on these issue http://www.pariopportunita.gov.it/contro-la-violenza-sessuale-e-di-genere/.  

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11  Compliance  and  enforcement  aspects  (horizontal  provisions  of  all 

directives)  

11.1 General (legal) context 

11.1.1 Surveys  and  reports  about  the  particular  difficulties  related  to  obtaining  legal 

redress 

There are no surveys and/or reports that have been published in Italy over the last five 
years  that  provide  insights  into  the  particular  difficulties  that  victims  of  gender 
discrimination face in practice in obtaining legal redress. 

11.1.2 Other issues related to the pursuit of a discrimination claim 

A step forward in legal aid and the spreading of a ‘culture’ of bringing legal proceedings 
was taken by the allocation of funds to support the equality advisers (which strengthens 
the worker’s financial and psychological position and assures the assistance of an expert 
both before and during the trial), but funding has been progressively cut every year and 
the ability to fully maintain equality advisers has been reduced.  

11.1.3 Political and societal debate and pending legislative proposals 

There is no political and/or societal debate or pending legislative proposals. 

11.1.4 Gender mainstreaming 

Gender mainstreaming is not specifically incorporated in law and policy making in Italy. 
There are no specific guidelines, procedures (such as gender impact assessments) or rules 
for law and policy makers to follow with regards to gender mainstreaming.  

11.2 Victimisation 

Article  26  of  the  Equal  Opportunities  Code  provides  protection  against  victimisation  for 
employees  and  all  other  persons  who  are  victims  of  detrimental  treatment  by  their 
employer in reaction to requiring compliance with the principle of equal treatment between 
men  and  women.  Italian  legislation  fully  complies  with  the  directives  in  this  respect. 
Moreover, Article 1, Paragraph 218 of Law 205/2017 (Budget Act 2018) partially amended 
Article 26 so as to expressly state that acts, pacts or provisions amending the employment 
relationship  of  workers  who  are  victims  of  less  favourable  treatment  and  adopted  in 
retaliation for the worker’s rejection or reporting of harassment on the ground of sex or 
sexual harassment are null and void. The same law also added Paragraph 3bis to Article 
26,  specifying  that  all  types  of  less  favourable  treatment  mentioned  above,  including 
dismissal, transfer and change of job or any organisational measure that has a direct or 
indirect negative effect on the working condition of the worker who brings a case to court 
for  harassment  or  sexual  harassment  are  null  and  void.  The  sole  exception  to  the 
enforcement of this protection is in case of ascertained criminal liability of the claimant for 
libel or slander. No case law has been recorded on this type of discrimination. 

Article 41bis of the Equal Opportunities Code also provides for an extension of special legal 
redress  (assistance  by  the  equality  advisers,  trade  unions  and  other  associations 
promoting equal opportunities) to cases of victimisation. 

11.3 Access to courts 

11.3.1 Difficulties and barriers related to access to courts  

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Some obstacles in relation to access to redress procedures  are likely to  arise from: the 
discouragement of women, that is a general lack of faith in the legal system; the fact that 
the  legal  proceeding  are  often  too  slow  and  in  some  cases  provide  sanctions  (such  as 
nullification of the discriminatory act that provides advantages to one gender) that do not 
award any benefit to the victims; the difficulty of proof as regards discrimination cases; 
and the lack of a widespread knowledge and consciousness of these items by the victims 
themselves and by union representatives, lawyers, judges and labour inspectors. 

11.3.2 Availability of legal aid 

Articles 37 and 38 of Decree No. 198/2006 empower equality advisers to assist victims of 
discrimination.  National  and  regional  equality  advisers  can  act  directly  in  their  name  in 
cases of collective discrimination, even where the employees affected by the discrimination 
are not immediately identifiable. Regional and provincial advisers can also proceed when 
delegated by an individual employee or can intervene in a process initiated by the latter. 

National and regional equality advisers can also propose a conciliation agreement before 
going to court, asking the person responsible for the discrimination to set a plan to remove 
it within 120 days. If the plan is considered to be suitable for removing the discrimination, 
on the equality adviser’s request, the parties sign an agreement, which becomes a writ of 
execution through a decree of the judge. 

Under  Article  38  of  Decree  No.  198/2006,  associations  and  organisations  promoting 
respect for equal treatment between male and female workers, as well as trade unions, 
are entitled to act on behalf of workers.107  

The sensitivity of social partners on these issues, however, is still not uniform in all regions 
and sectors.  

Case law is really scarce on gender anti-discrimination issues and no relevant examples 
are to be recorded as regards gender equality interest groups or other legal entities.  

11.4 Horizontal effect of the applicable law 

11.4.1 Horizontal effect of relevant gender equality law 

The question of the horizontal effect of the applicable gender equality law is accepted in 
Italy  and  it  does  not  pose  any  particular  problem  in  ensuring  compliance  with  or  in 
enforcing gender equality legislation. 

11.4.2 Impact of horizontal direct effects of the charter after Bauer 

The recognition of horizontal direct effects of the Charter provisions (in the Bauer ruling 
of the CJEU)108 might have relevance for better enforcement of gender equality law in our 
country. 
the 
precise, clear and unconditional nature of the Charter articles involved, and those articles 
similar to them, as well as about the fact that they do not call for additional measures, at 
either national or European level. 

ruling  dispels  any  possible  doubt  as 

the  Bauer 

Indeed, 

to 

107  Law 205/2017 (Budget Act 2018), Article 1, Paragraphs 465 and 466, provide for amendments to civil and 
criminal procedural law respectively. Para. 465 states that, when the defendant certifies her pregnancy or 
an adoption/fostering procedure, the judge must decide on a continuation of the trial taking into 
consideration the period of two months before and three months after the birth/adoption/fostering. The 
amendment also states that this provision should not be seriously detrimental to the parties where urgent 
treatment is necessary. Paragraph 466 provides that during the period mentioned above the defendant 
does not have to attend court. 

108  Judgment of 6 November 2018, Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina 

Broßonn, joined Cases C-569/16 and C-570/16, EU:C:2018:871. 

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11.5 Burden of proof 

On the whole, the partial reversal of the burden of proof provided by Decree No. 198/2006 
can be deemed to be a satisfactory implementation of Directive 54/2006/EC (in light of 
CJEU case law, as well), also considering that in labour law disputes, under Article 421 of 
the Code of Civil Procedure, the judge can order the acquisition of whatever sort of proof 
at any time. The partial reversal of the burden of proof has been used by the little case 
law that there is on indirect discrimination. As regards the use of quantitative/statistical 
data, the Equal Opportunities Code goes further than EU law as it requires companies with 
more than 100 employees to draw up reports every two years (and to deliver them to the 
company union representatives and to the regional equality advisers) on the situation of 
male  and  female  workers  as  regards,  for  example,  recruitment,  professional  training, 
career opportunities, remuneration, dismissals and retirement.  

11.6 Remedies and sanctions  

11.6.1 Types of remedies and sanctions 

Minor  criminal  sanctions  were  provided  for  the  infringement  of  the  prohibition  on 
discrimination in access to work and working conditions, The decriminalisation provided 
by Decree No. 8 of 15 January 2016, however, involved changes in the sanctions for the 
infringement of the ban on gender discrimination in the working relationship: that is minor 
criminal sanctions (a fine from EUR 250 to 1 500) have been substituted by administrative 
sanctions of fines ranging from EUR 5 000 to 10 000. The change concerns all cases of 
discrimination covered by the Equal Opportunities Code (Decree No. 198/2006), that is all 
sectors,  both  public  and  private  and  all  aspects  of  the  working  relationship.  Both 
administrative and criminal sanctions are provided for the protection of motherhood and 
fatherhood. 

Positive action measures are also provided as remedies against collective discrimination 
ascertained by the judge. The revocation of public benefits or even the exclusion, for a 
certain period, from any further award of financial or credit inducements or from any public 
tender is also provided in the case of direct or indirect discrimination. The general remedy 
of  nullity  is  enforceable  for  all  discriminatory  acts;  moreover,  the  special  remedy 
(reinstatement) provided by Article 18 of the Workers’ Statute is enforceable in the case 
of  a  dismissal  on  the  ground  of  pregnancy  or  marriage  after  the  finding  of  gender 
discrimination  in  such  cases.  Compensation  for  economic  damage  can  also  be  awarded 
following the general principles on contractual and extra-contractual liability. In general, 
the  prohibition  on  the  setting  of  an  upper  limit  for  compensation  or  reparation  is  not 
provided by the law, as such a limit does not exist in the Italian system. 

The  backdating  of  awards  follows  the  general  rules  on  prescription:  5  years  for  wage 
credits, under contractual liability;109 and 10 years for awards of damages under extra-
contractual liability, with the right to damages to be proved by the claimant. 

11.6.2 Effectiveness, proportionality and dissuasiveness 

This  piece  of  national  legislation  can  reasonably  be  considered  to  be  in  line  with  the 
directive in the light of the principles stated by the CJEU case law on sanctions. However, 
the 2016 decriminalisation provided by Decree No. 8 of 15 January 2016, although it aims 
to  reduce  the  workload  of  the  criminal  courts,  represents  a  retrograde  step  in  the 
effectiveness  of  sanctions.  Indeed,  although  the  new  sanctions  are  harsher  than  the 
previous ones, they have lost both the greater deterrent effect of criminal sanctions and 
the  enforceability  of  the  special  procedure  of  Article  15  of  Decree  No.  124/2004,  which 
allowed the employer to avoid a criminal trial by the restoration of a lawful condition (i.e. 

109  See Court of Cassation, 8-07-2002, No. 9877. 

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halting the unlawful situation, if possible) and the payment of a quarter of the maximum 
fine. 

11.7 Equality body  

As  regards  the  functions  required  by  EU  law,  a  central  role  is  played  by  the  Equal 
Opportunities National Committee (EONC) set up by the Labour Ministry Central Offices 
(Articles 8 et seq Decree No. 198/2006),110 which is in charge of preparing (by 28 February 
of  each  year)  a  programme  to  fix  the  targets  for  positive  action  measures  and  of 
monitoring their implementation as well as the enforcement of equality principles. It can 
also propose solutions to collective disputes and, among other things, is entrusted with 
the task of stimulating social dialogue and dialogue with non-governmental organisations 
on equality issues and of exchanging information with the EU bodies that operate in the 
field of equal treatment. 

The National Equality Adviser111 is a member of the EONC and coordinates the Conference 
of Equality Advisers,112 which gathers all local equality advisers and has been established 
to support their activities through the spreading of information and good practice. Equality 
advisers  are  charged  with  several  tasks:  they  participate  in  central  and  local  (following 
their  respective  territorial  competence)  employment  commissions  with  the  appropriate 
powers;  promote  positive  action;  monitor  the  results  of  positive  action  measures;  and 
monitor  gender  underrepresentation,  employment  policies,  and  the  consistency  of 
territorial development plans with European directives on equal opportunities (Articles 12 
et seq Decree No. 198/2006). Furthermore, Decree No. 151/2015 has strengthened the 
collaboration  of  equality  advisers  with  the  labour  inspectors.  As  of  15  January  2020, 
Equality Advisers have a new tool at their disposal in fighting discrimination and promoting 
equal opportunities. They are all connected on a digital platform hosted by the Ministry of 
Labour. The aim of this instrument, which can be accessed only by authorised users, is to 
increase the efficacy of the Equality Advisers’ intervention through the use of technology. 
In fact, this platform is an easy way to share information, personal experiences and good 
practice and to spread the planning of different events. Moreover, it includes a messenger 
system, which bypasses traditional (and less smart forms of) communication. 

The law states that equality bodies will perform independent activities, but it is up to the 
Minister of Labour and the local bodies to set the conditions for the organisation and the 
functioning of the  equality  advisers’ staff. Equality bodies have been excluded from the 
‘spoil system’, provided by Article 6(1) of Law 145 of 15 July 2002; as a consequence of 
this, they cannot be removed from office solely on the ground of a change in Government 
(Decree No. 151/2015). 

Providing  assistance  to  the  victims  of  discrimination  is  also  a  duty  of  equality  advisers. 
According  to  the  national  or  local  significance  of  a  case  of  discrimination,  the  national 
adviser  and  the  regional  advisers  can  act  directly  in  cases  of  collective  discrimination. 
Regional and provincial advisers can also proceed under the delegation of the individual 
employee  or  intervene  in  a  process  initiated  by  the  latter,  according  to  their  territorial 
competence. 

110  https://www.lavoro.gov.it/temi-e-priorita/parita-e-pari-opportunita/focus-on/Comitato-Nazionale-

Parita/Pagine/default.aspx and 
http://sitiarcheologici.lavoro.gov.it/AreaLavoro/ParitaPariOpportunita/comitatoNazionaleParita-SPOSTATO-
/Pages/default.aspx. 

111  http://consiglieranazionale.lavoro.gov.it and https://www.lavoro.gov.it/ministro-e-ministero/Organi-
garanzia-e-osservatori/ConsiglieraNazionale/Consigliera-nazionale-di-parita/Pagine/default.aspx. 

112  That is the former network of equality advisers, which was renamed by Decree No. 151/2015. Website: 

https://www.lavoro.gov.it/notizie/Pagine/Conferenza-Nazionale-Consigliere-di-Parita.aspx. 

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11.8 Social partners  

Under  Article  44  of  the  Equal  Opportunities  Code  (Decree  No.  198/2006),  the  social 
partners can access funding for voluntary positive action plans and priority in admission 
to the reimbursement of costs is provided for positive action plans adopted on the basis 
of collective agreements reached between employers and trade unions. The social partners 
also  participate  in  the  Equal  Opportunities  National  Committee  (EONC)  with  their 
representatives. 

As regards legal redress, under Article 38 of the Equal Opportunities Code, trade unions 
can bring discrimination cases to court on the worker’s behalf using an urgent procedure.  

Moreover, the biennial report on working conditions differentiated by gender provided by 
Article  46  of  the  Equal  Opportunities  Code,  must  also  be  submitted  to  the  workers’ 
representatives  at  the  workplace.  It  can  be  an  important  instrument  in  detecting  and 
providing  evidence  of  discrimination  as  it  summarises  the  worker’s  situation  (male  and 
female), as regards recruitment, professional training, career opportunities, remuneration, 
dismissal and retirement. Nevertheless, the intervention of trade unions in this field seems 
quite marginal, although it must be underlined that no data are available as regards, for 
instance, possible extrajudicial agreements. This can be regarded as a good practice. 

The collective agreements are not binding and are not used as a means to implement EU 
gender equality law. 

11.9 Other relevant bodies 

No  other  relevant  agencies  or  bodies  that  are  engaged  in  the  enforcement  of  gender 
equality law (e.g. through strategic litigation) are provided for by legislation in our country.  

11.10 Evaluation of implementation 

Italian  legislation  on victimisation fully  complies  with the  directives. Article  41bis  of the 
Equal  Opportunities  Code  even  provides  for  an  extension  of  special  legal  redress 
(assistance by the equality advisers, trade unions and other associations promoting equal 
opportunities) to cases of victimisation. 

The Italian legislation fully complies with EU law in respect of access to court. However, 
some obstacles in relation to access to redress procedures arise from: the discouragement 
of women, that is a general lack of faith in the legal system, which is often too slow and 
in some cases provides sanctions (i.e. nullification of the discriminatory act that provides 
advantages to one gender) that do not award any benefit to the victims; the difficulty of 
proof  as  regards  discrimination  cases;  the  lack  of  a  widespread  knowledge  and 
consciousness  of  these  tools  by  the  victims  themselves  and  by  union  representatives, 
lawyers,  judges  and  labour  inspectors.  These  may  be  the  reasons  why  we  do  not  have 
good case law on gender issues.  

The question of the horizontal effect of the applicable gender equality law is accepted in 
Italy  and  it  does  not  pose  any  particular  problem  in  ensuring  compliance  with  or  in 
enforcing gender equality legislation. 

On the whole, the partial reversal of the burden of proof provided by Decree No. 198/2006 
can be deemed to be a satisfactory implementation of Directive 2006/54/EC. As regards 
the use of quantitative/statistical data, the Equal Opportunities Code goes further than EU 
law as it requires companies with more than 100 employees to draw up reports every two 
years  (and  to  submit  them  to  the  company  union  representatives  and  to  the  regional 
equality  advisers)  on  the  situation  of  male  and  female  workers  as  regards  recruitment, 
professional training, career opportunities, remuneration, dismissals and retirement.  

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The legislation on remedies and sanctions can be considered to be reasonably in line with 
the  directive  in  the  light  of  the  principles  stated  by  the  CJEU  case  law  on  sanctions. 
However,  the  2016  decriminalisation  provided  by  Decree  No.  8  of  15  January  2016, 
although it aims to reduce the workload of the criminal courts, represents a retrograde 
step in the effectiveness of sanctions. On the other hand, that positive action measures 
are provided as remedies against collective discrimination ascertained by the judge is an 
effective  tool.  Also  effective  is  the  sanction  of  revocation  of  public  benefits  or  even  the 
exclusion, for a certain period, from any further award of financial or credit inducements 
or from any public tender in the case of direct or indirect discrimination. 

Finally, the legislation on the role of equality bodies and social partners also complies with 
the EU law. However, equality bodies have problems in relation to financing, which Decree 
No.  151/2015  did  not  solve:  it  amended  Article  18  of  Decree  No.  198/2006,  which 
regulates the fund for the activity of equality advisers, with the result that the situation 
on the financing of the remuneration/allowance for local equality advisers is not as clear 
as  before.  Furthermore,  Article  18  does  not  make  any  mention  of  expenses  for  the 
activities  of  local  equality  advisers,  including  trial  expenses,  which  local  governmental 
bodies  can hardly  meet.  Another problem for  equality  bodies,  which is  linked to that  of 
financing, is their independence. Indeed, the EONC’s president and deputy president are 
appointed by the Minister of Labour. Some doubts on the body’s independency are also 
raised by the fact that its functioning, organisation and financing depend on the Ministry 
of  Labour.  Equality  advisers  have  been  excluded  from  the  ‘spoil  system’,  provided  by 
Article 6(1) of Law 145 of 15 July 2002, which means that they cannot be removed from 
office solely on the ground of a change in Government, as happened in the past (Article 14 
Decree  No.  198/2006,  as  modified  by  Article  32  of  Decree  No.  151/2015).  However, 
equality advisers are financed and organised by the Ministry of Labour or the local bodies 
where  they  are  set  up,  which  implies  that  they  are,  to  say  the  least,  economically 
dependent on the bodies that host them. 

11.11 Remaining issues 

As  regards  enforcement  and  compliance  aspects,  it  is  worth  mentioning  Decree 
No. 77/2021 (converted into Law No. 108/2021), ruling the complex governance of the 
national recovery plan financed by the Next Generation EU programme, as it provides for 
some  measures  regarding  gender  equality.  Article  47  of  the  Decree  provides  that 
companies participating in the tenders of the National Recovery and Resilience Plan (PNRR) 
financed, totally or in part, by the Next Generation EU and by the Complementary National 
Plan  (PCN  -  aimed  at  integrating  PNRR  interventions  with  national  resources)  must 
guarantee gender equality within their workforce, both in business processes and in the 
activities of the company. Rewards for good practices and penalties for those who do not 
respect equal opportunities are also provided.  

Under  Article  47,  Paragraph  2,  public  and  private  companies  employing  more  than  100 
employees  must  show  that  they  complied  with  the  obligation  provided  by  Article  46  of 
Decree No. 198/2006 on Equal Opportunities. In particular, in order to participate in the 
tender, they have to include a copy of the biennial report concerning the situation of male 
and female employees in every job in the company and certify that it has been submitted 
to  the  regional  adviser  and  trade  unions.  Smaller  companies  employing  from  15  to  99 
employees  have  to  submit  a  similar  report  to  the  contracting  body,  trade  unions  and 
regional equality adviser within six months of signing the contract (Article 47, Paragraph 
3). In the event that a smaller company of 15 up to 99 employees does not submit the 
report on male and female working conditions provided by Article 47, Paragraph 3, it will 
not  be  allowed  to  take  part  in  other  calls  for  tenders  of  the  PRNN  or  the  PCN  for  the 
following 12 months. 
This strengthening of the obligation to submit the report mentioned above might be useful 
as regards data availability as it includes all aspects of the working relationship; moreover 

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these reports will be also published on the website of the Public Administration and sent 
to the Prime Minister’s Office and to the Minister for Equal Opportunities.  

Under Article 47 Paragraph 4, contracting bodies in calls for tender, invitations and public 
notices  must  require  that  at  least  30 %  of  the  recruitment  necessary  to  carry  out  the 
provisions  of  the  contract  is  intended  for  the  employment  of  women.  If  the  percentage 
cannot be assured, totally or in part, due to the work covered by the contract, the nature 
of  the  project  or  to  contrasting  objectives  of  universality  and  sociality,  of  efficiency,  of 
economy and quality of service as well as optimal use of public resources, the contracting 
station must give a justification explaining the reason for the impediment. Higher scores 
in the evaluation of the tender are provided for companies that: in the last three years, 
have not had acts or investigations for discriminatory behaviour; in the last three years, 
have respected gender equality principles and promoted gender opportunities, taking into 
account women’s percentage in recruitment, pay levels and appointment to top positions; 
and use or undertake to use work-life balance measures for their employees as well as 
innovative ways of organising work. Penalties will also be imposed in tenders in the event 
of infringement of provisions regarding gender equality.  

Article  47bis  of  the  Decree  provides  that  the  composition  of  different  public  bodies 
established by the Decree to ensure the governance of the national recovery plan and their 
administrative structures must comply with the principle of gender equality. This obligation 
does not apply to bodies composed exclusively of members of the Government and holders 
of  other  institutional  offices.  This  amendment  is  very  important  as  a  real  promotion  of 
gender  equality  necessarily  goes  hand  in  hand  with  women’s  participation  in  decision-
making roles, starting from the structures for the governance of the PNRR.  

There are no other remaining issues regarding enforcement and compliance that have not 
been discussed so far. 

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12  Overall assessment  

The following transposition problems were mentioned in this report: 

1. 

2. 
3. 
4. 
5. 

6. 

7. 

8. 

There is no system to monitor positive action measures and their impact or their lack 
of financing. 
There is no specific protection for transgender, intersex, and non-binary persons. 
Domestic legislation lacks an explicit provision on multiple discrimination. 
There is a lack of any specific legal instruments on algorithmic discrimination. 
In relation to job classification, no formalised job evaluation and job analysis systems 
are available in our legal and industrial relationships arrangements. 
National law does not lay down any parameters for establishing the equal value of 
the work performed. 
The European Commission’s Recommendation of 7 March 2014 on strengthening the 
principle of equal pay between men and women through transparency has not yet 
been applied. 
Paternity leave is allowed for fathers only as an alternative to maternity leave and 
only in very special cases; the special paternity leave introduced by Law 92/2012 is 
a very weak measure from the perspective of the promotion of a better balance in 
care duties within the family.  

9.  Workers returning from parental leave are not generally entitled to a right to change 
their working hours and/or patterns for a set period of time as a consequence of the 
leave or of their condition as parents, and employers are not obliged to consider and 
respond to such requests. 
In occupational social security schemes, the personal scope of Article 30bis of Decree 
No. 198/2006, which implements the Recast Directive, is not as wide as that of the 
EU directive; the material scope has not been implemented correctly. 

10. 

11.  As regards Article 9(g) of Directive 2006/54, the law on supplementary funds does 
not contain any provision which ensures that fictional contributions are made (by the 
employer/the state) on behalf of the employee during her maternity leave/leave for 
serious family reasons.  

12.  Directive 79/7/EEC has never been specifically implemented in respect of statutory 

social security schemes. 
Italian legislation does not recognise life partners. 

13. 
14.  The  implementation  of  the  Recast  Directive  as  regards  occupational  pension 
schemes,  by  Decree  No.  5/2010,  does  not  include  any  provisions  on  self-
employment. 

15.  The equality bodies lack independence and resources. 

Legislative  interventions  during  the  last  20  years  have  resulted,  on  the  whole,  in  an 
effective  implementation  of  the  EU  directives  on  gender  discrimination  in  Italy  and, 
sometimes, domestic legislation has gone even further than EU law. Decree No. 198/2006, 
a consolidating act called the Code of Equal Opportunities between Men and Women’ (the 
Equal  Opportunities  Code),  contains  all  anti-discrimination  provisions  relating  to  gender 
that were issued to implement EU directives or that were already in conformity with them. 
It combined all the provisions on gender discrimination and equal opportunities in all civil, 
political,  social  and  economic  fields,  including  working  relationships.  Another  important 
piece  of  legislation  in  this  field  is  Law  53/2000  (and  its  subsequent  amendments)  on 
supporting  motherhood  and  fatherhood,  time  for  care  and  for  vocational  training,  and 
coordination of hours in the town’s public services. Decree No. 151/2001 on the protection 
of  motherhood  and  fatherhood,  includes  all  rules  on  pregnancy,  maternity,  paternity, 
parental  leave  and  leave  related  to  work-life  balance,  as  well  as  implementing 
Directives 2006/54 and 2010/18. Law 120 of 12 July 2011 introduced a quota system for 
the  appointment  of  managing  directors  and  auditors  of  listed  companies  and  state 
subsidiary companies, where each sex cannot be represented in a proportion lower than 
one third. Furthermore, Law 215 of 23 November 2012, Law 13/2014 and Law 65/2014 

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introduced  new  regulations  aimed  at  achieving  gender  equality  in  politics  and  in  hiring 
procedures in public administration.  

In relation to the implementation of central concepts, several legislative interventions in 
the  last  20  years  have  created,  on  the  whole,  a  good  level  of  implementation  of  EU 
directives.  Sometimes  domestic  legislation  has  gone  further  than  EU  law  in  the 
implementation of central concepts.  

As regards the justification clauses, the definition of indirect discrimination, for example, 
is stricter than EU law: in fact, neutral criteria which result in a disparate impact are only 
legitimate if they are essential requirements for the job. Furthermore, in relation to the 
use  of  quantitative/statistical  data,  Decree  No.  198/2006  goes  further  than  EU  law,  as 
Article 46 requires companies with more than 50 employees to draw up reports every two 
years on the situation of workers (male and female) as regards recruitment, professional 
training,  career  opportunities,  mobility  between  categories  and  grades,  other  mobility 
aspects,  remuneration,  dismissals  and  retirement.  The  report  is  made  available  to  the 
company’s union representatives and to the equality advisers. Smaller companies will be 
enabled to submit the same report on a voluntary basis. 

The definition of direct discrimination literally repeats the concepts defined by the Recast 
Directive. 

The concept of positive action adopted in Italy is harmonised with that provided by the EU 
legislation. Further, this is an area where the Italian legislation goes further than the EU 
directives, as it provides for a structured system with different types of measures. Indeed, 
in  relation  to  positive  action,  the  difficulties  are  mainly  financial,  that  is,  there  is  little 
financing of the plans and few incentives to create positive action plans. Furthermore, we 
lack a system to monitor positive action measures and their impact. 

The legislation on sexual harassment is also in line with EU legislation.  

An important gap in our legislation, on the other hand, is the absence of specific protection 
for transgender, intersex and non-binary persons. Nonetheless, in the view of the author 
of this report, gender reassignment, can be included under the discrimination grounds of 
sexual orientation and even of gender discrimination, despite the fact that it is not explicitly 
provided for by our legislation. 

Other  gaps  are  the  lack  of  explicit  provisions  in  domestic  legislation  on  multiple 
discrimination and on algorithmic discrimination. 

The  principle  of  equal  pay  for  equal  work  or  work  of  equal  value  is  satisfactorily 
implemented  in  national  legislation.  This  is  despite  the  fact  that  in  Italy,  the  equal  pay 
principle  and  gender  equality  at  work  have  a  very  low  profile  on  the  policy  agenda. 
Therefore,  there  is  a  problem  of  awareness  and  of  political  priorities.  It  is  important  to 
enhance  policies  directed  at  the  dissemination  of  information  among  those  engaged  in 
wage bargaining to raise awareness of the extent and seriousness of the problem.  

The concept of pay is not defined by the law, but has widely been construed by the Italian 
courts, on the basis of collective agreements, as including any economic benefit in cash or 
in kind directly and indirectly paid on the ground of the employment relationship. Therefore 
it fully complies with the definition of Article 157(2) TFEU. 

Article 4 of Recast Directive 2006/54 is explicitly implemented by Article 28 of the Equal 
Opportunities Code (Decree No. 198/2006), which states that occupational classification 
systems applied for the purpose of determining remuneration must adopt common criteria 
for men and women and be drawn up so as to eliminate any discrimination. Therefore, job 
classification, normally contained in collective agreements, is gender neutral; however, no 

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formalised job evaluation and job analysis systems are available in our legal and industrial 
relationships systems.  

No  justifications  for  differences  in  pay  are  provided  by  the  Equal  Opportunities  Code, 
except those permitted on the ground of the general notion of indirect discrimination. 

The general definitions of both direct and indirect discrimination provided by Article 25 of 
the  Code  of  Equal  Opportunities  (Decree  No.  198/2006)  refer  to  a  comparator  and  are 
enforceable  with  regard  to  all  working  conditions,  including  remuneration.  The  concise 
wording of the definition of direct discrimination opened a debate on the real need for a 
comparison. No overriding opinion has been recorded that calls for the need for an actual 
comparator.  

National  law  does  not  lay  down  any  parameters  for  establishing  the  equal  value  of  the 
work performed. 

The  European  Commission’s  Recommendation  of  7  March  2014  on  strengthening  the 
principle of equal pay between men and women through transparency has not yet been 
applied. We have, however, Article 46 of the Equal Opportunities Code on the release of 
information on pay to individuals and other data at firm level. 

Under the broad definition of Article 27 Paragraph 1 of the Equal Opportunities Code, the 
personal scope in relation to access to work and vocational training expressly encompasses 
all types of contracts, subordinate, autonomous or ‘any other’.  

With regard to the implementation of Article 14 of Directive 54/2006, the prohibition on 
discrimination provided by the Equal Opportunities Code applies to all persons employed 
in  any  sector  (both  public  and  private),  irrespective  of  the  length  of  the  employment 
relationship, including part-time workers, fixed-term workers, apprentices, employees on 
education  contracts,  home  workers,  working  spouses  or  relatives,  as  well  as  persons 
working in cooperatives, and irrespective of the size of the enterprise/employer. On the 
whole the personal scope of these provisions is very wide and covers the notion of a worker 
as defined by CJEU. 

As regards material scope (Article 14(1) Recast Directive 2006/54), Article 27 of the Equal 
Opportunities  Code  merely  translates  the  wording  of  the  Recast  Directive  and  of 
Article 4(1)  of  Directive  41/2010,  except  as  regards  vocational  training,  where  the 
prohibition  on  discrimination  expressly  includes  both  access  to  and  the  content  of 
vocational training. 

The  implementation  of  the  exception  on  occupational  activities  (Article  14(2)  Recast 
Directive 2006/54) has always been deemed to comply with the exceptions provided by 
EU law.  

National  law  and  case  law  provide  for  sufficient  protection  against  the  non-hiring,  non-
renewal of a fixed-term contract, non-continuation of a contract and dismissal of women 
connected to their state of pregnancy and/or maternity. 

The exception on the protection of women as regards pregnancy and maternity (Article 28 
of  the  Recast  Directive)  has  not  been  expressly  provided.  Nevertheless,  Decree 
No. 198/2006 on Equal Opportunities refers to Decree No. 151/2001 for the protection of 
maternity and paternity, which provides for all specific rights linked to motherhood and 
fatherhood involving the safeguarding of these provisions. 

In the area of work-life balance, the main difficulties in our country are not related to a 
lack of legislation on reconciliation of work and family life or care leave, but are related to 
a lack of services. In fact,  the structures and services useful to workers who have care 

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duties are greatly insufficient and access to them is also too expensive compared to the 
average income of workers; all the more so for women whose income is normally lower 
than that of men. Furthermore, the quality of public transport is often a problem. Part-
time working, which is not always a solution considering the economic aspect mentioned 
above, is neither a worker’s right in the private sector nor offered as a temporary measure. 
Moreover, except for the cases where a leave (even unpaid) is granted to the worker, the 
choice of giving up the job is a hard one, as re-entering labour market is not an easy task 
due to the high unemployment rate. Traditional stereotypes concerning the parents’ roles 
and the low percentage of women in high qualified and well paid jobs and in positions of 
responsibility does not help, but acts as a multiplier.  

We  also  have  a  problem  of  effectiveness  of  legislation:  workers  tend  to  refrain  from 
exercising  their  rights,  as  they  are  afraid  of  the  consequences  from  their  employer.  In 
particular,  employees  on  fixed-term  contracts  or  in  project  work  or  other  types  of 
temporary work, are afraid that their contract will not be renewed. This is especially true 
for  younger  generations:  the  majority  of  young  people,  the  potential  parents,  work  in 
precarious jobs, lacking a secure and constant income as well as the respective pension 
and insurance contributions. This deprives them of the choice to exercise their rights. 

Furthermore, it is quite unusual in Italy for fathers to take parental leave. The gender pay 
gap and the fact that men are the main breadwinners has a great influence on this. As 
parental leave is calculated as a percentage of the worker’s pay, it is more convenient for 
families to lose part of the woman’s pay than of the man’s pay, because men earn much 
more than women and the percentage of pay lost in the event of parental leave is higher 
for men than for women.  

Another  problem  is  that  paternity  leave  is  allowed  to  fathers  only  as  an  alternative  to 
maternity leave and only in very special cases. On the other hand, the special paternity 
leave introduced by Law 92/2012 is also a very weak measure from the perspective of the 
promotion of a better balance in care duties within the family.  

Finally,  a  weak  point  of  the  Italian  legislation,  despite  Article  9  of  Law  53/2000  (which 
funds businesses that enforce collective agreements on positive action aimed at allowing 
parents  to  adopt  a  flexible  working  time  schedule,  even  after  parental  leave),  is  that 
workers returning from parental leave are not generally entitled to a right to change their 
working hours and/or patterns for a set period of time as a consequence of the leave or of 
their condition as parents, and employers are not obliged to consider and respond to such 
requests.113 

The only answer to all this is to change the social stereotypes of the distribution of roles 
within the family. This means improving leave provisions for men and improving services 
and  facilities,  such  as  kindergartens.  In  particular,  access  to  social  services,  such  as 
crèches, school holiday camps and other school activities, mainly depend on the income 
of the parent/s and the offer is dramatically insufficient in comparison with the needs of 
families (both for employed and self-employed parents). 

The protection of working mothers under Italian law is very comprehensive in comparison 
with EU standards and complies with the relevant EU legislation, sometimes even greatly 
exceeding EU protection.  

EU  legislation  on  parental  leave  has  been  implemented  by  the  2013  Budget  Act 
(Law 228/2012, Article 1, Paragraph 339). The terms of the implementation were however 
very  limited,  because  Articles  32  to  38  of  Decree  No.  151/2001,  on  the  protection  of 
motherhood and fatherhood, already provided for a parental leave scheme that was very 

113  As regards flexible working arrangements, see Directive 2019/1158/EU. 

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comprehensive in comparison with EU standards. Indeed, the Italian scheme even exceeds 
EU protection in some areas.  

Furthermore, the Italian legislation goes further the EU requirements in relation to care 
leave Clause 7 of Directive 2010/18), as it provides for a structured system of care leave.  

In occupational social security schemes, as regards the introduction of direct and indirect 
discrimination,  Article  30bis  of  Decree  No.  198/2006  implements  the  Recast  Directive. 
However,  the  personal  scope  of  this  rule  is  not  as  wide  as  that  of  the  EU  directive. 
Moreover, the material scope has not been implemented correctly. 

The exclusions from the material scope as specified in Article 8 of Directive 2006/54 have 
not been implemented in national law. 

As regards Article 9(g) of Directive 2006/54, the regime of the supplementary funds makes 
no  provision  for  the  recovery  of  notional  contributions during  maternity  leave  or  during 
leave  for  serious  family  reasons.  Collective  agreements  and  regulations  of  funds  may 
contain other indirectly discriminatory features, as some of them not do not allow short-
term employees, who often are women, to subscribe to them. 

Finally,  the  limits  of  Article  9(1)  of  Directive  2006/54/EC  have  been  fulfilled  as  regards 
actuarial  factors;  the  legislation  goes  even  further  by  providing  for  monitoring  by  the 
COVIP (the Supervisory Commission on Pension Funds) of the use of these factors. 

Directive 79/7/EEC has never been specifically implemented in respect of statutory social 
security schemes. Notwithstanding that, domestic legislation is, on the whole, fairly in line 
with EU law on gender equality.  

The main features of – indirect – gender discrimination in statutory schemes can be found 
in the areas of part-time and temporary working and other non-standard working patterns, 
where there is a massive presence of women and young people. In particular, under the 
pay-based pension scheme, the amount and number of contributions paid and continuity 
of payment determine the eligibility for social insurance as well as the benefits level; the 
increase in minimum insurance and contribution requirements in Italy during the last few 
decades  is  bound  to  have  a  negative  impact  upon  the  pensions  of  all  atypical  workers, 
such as intermittent, temporary, occasional and part-time workers. Moreover, those who 
have high pay fluctuation during the period of reference for the calculation of pensionable 
income  are  disadvantaged  in  relation  to  the  definition  of  pension  amount.  Again,  a 
temporary  worker  will have  substantial  reductions  in  his/her  contribution  period  for the 
purpose of calculating the amount of pension and this will naturally cause a reduction of 
the pension. Under the contribution-based pension system, the earnings variations as well 
as the continuity and regularity of employment of the claimants appear once more to be 
of crucial importance, as the benefit qualifying conditions and the pension amount are very 
sensitive to these factors.  

Sex is not used as an actuarial factor in statutory schemes. 

The fact that domestic legislation, on the whole, is in line with EU law on gender equality 
may explain the lack of a specific act transposing the EU directives on statutory schemes: 
the  adoption  of  a  specific  act  may  be  considered  less  urgent  at  the  political  level. 
Nonetheless, in the view of the author of this report, such a transposition is still crucial 
because EU directives provide a benchmark for domestic law. Indeed, the main problems 
as regards gender equality can be detected in those fields that have been omitted from 
the EU gender anti-discrimination framework, such as family allowances.  

In  the  area  of  self-employment,  the  Equal  Opportunities  Code,  issued  by  Decree 
No. 198/2006, and the Decree on the protection of motherhood and fatherhood (Decree 

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No. 151/2001), already ensured a good level of implementation of Directive 2010/41/EU. 
Law 228/2012  made  slight  amendments  to  both  decrees  to  avoid  an  action  for  non-
compliance.  

Italian legislation does not recognise life partners. However, under the regulations of the 
Decree on the protection of motherhood and fatherhood, maternity rights are individual 
rights. Moreover, allowances for poor families, which are paid by the municipalities, do not 
depend on marriage.  

Finally,  the  implementation  of  the  Recast  Directive  as  regards  occupational  pensions 
schemes,  by  Decree  No.  5/2010,  does  not  include  any  provisions  on  self-employment. 
Despite this, the domestic legislation, on the whole, is in line with EU anti-discrimination 
law. 

In the area of goods and services, Decree No. 196/2007 literally repeats the text of the 
EU  directive,  including  the  provisions  on  its  substantive  scope  and  on  the  allowed 
exceptions. It has to be emphasised that the reproduction of the texts of the directives in 
the Italian legal system can be regarded as bad practice, which certainly does not ensure 
the  necessary  coordination  with  other  existing  provisions.  There  is  no  debate  among 
scholars or any other initiatives aimed at spreading the knowledge of Directive 2004/113. 
This is probably both the cause and the effect of the merely formal implementation of the 
directive. Substantive implementation may need measures aimed at making people and 
institutions aware of the importance of this issue.  

Italy signed the Istanbul Convention on 27 September 2011 and ratified it with the Law 77 
of 27 June 2013. Following Italy accession to the Istanbul Convention, Decree No  93 of 
14 August 2013, (converted in Law 119/2013) was introduced. The decree strengthened 
measures  aimed  at  tackling  crimes  such  as  domestic  violence,  sexual  violence,  and 
‘persecutory acts’. Stalking (that is, ‘persecutory acts’), was regulated for the first time by 
Decree No. 11/2009, converted into Law 38/2009. Article 24 of Decree No. 80 of 15 June 
2015  implementing  Delegation  Law 183/2014  introduced  some  measures  aimed  at 
supporting  victims  of  gender  violence,  such  as  a  period of  leave  of  three  months  to  be 
given to women victims of gender-based violence who are under a protection programme 
certified by local authorities. 

The problem of violence against women and domestic violence is strongly recognised in 
Italy and the issue is present across the media. In particular, a Parliamentary Commission 
was set up in 2017 in order to investigate the scale and causes of feminicide and violence 
against  women.114  The  commission  recommended:  the  improvement  of  statistical  data 
collection;  better  criminal  legislation  in  relation  to  child  witnesses,  the  issuing  of 
emergency orders for preventing violence, identity injuries and feminicide; the promotion 
of socio-cultural change through education, professional training of police, social services 
and physicians, guidelines to the media on how to report on gender violence; the adoption 
of  specific  norms  on  online  violence  and  online  harassment;  and  the  improvement  of 
psychological assistance for male perpetrators of violence. 

Law 69/2019, known as ‘the Red Code’, on the improvement of criminal law and redress 
protection of victims of violence has been approved.115  

In relation to compliance and enforcement aspects, Italian legislation on victimisation fully 
complies with the directives. Article 41bis of the Equal Opportunities Code even provides 
for an extension of special legal redress (assistance by the equality advisers, trade unions 
and other associations promoting equal opportunities) to cases of victimisation. 

114  http://www.senato.it/documenti/repository/commissioni/femminicidio/DocXXII-bis_9.pdf. 
115  https://www.altalex.com/documents/leggi/2019/07/26/codice-rosso. 

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The Italian legislation fully complies with EU law in relation to access to court. However, 
some obstacles in relation to access to redress procedures arise from: the discouragement 
of women; a general lack of faith in the legal system, which is often too slow and in some 
cases  provides  sanctions  (i.e.  nullification  of  the  discriminatory  act  that  provides 
advantages to one gender) that do not award any benefit to the victims; the difficulty of 
proof  as  regards  discrimination  cases;  and  the  lack  of  a  widespread  knowledge  and 
awareness of these tools by the victims themselves and by union representatives, lawyers, 
judges and labour inspectors. These may be the reasons why we do not have good case 
law on gender issues.  

The question of the horizontal effect of the applicable gender equality law is accepted in 
Italy and does not pose any particular problem in ensuring compliance with or in enforcing 
gender equality legislation. 

On the whole, the partial reversal of the burden of proof provided by Decree No. 198/2006 
can be deemed to be a satisfactory implementation of Directive 54/2006/EC. As regards 
the use of quantitative/statistical data, the Equal Opportunities Code goes further than EU 
law as it requires companies with more than 100 employees to draw up reports every two 
years  (and  to  submit  them  to  the  company  union  representatives  and  to  the  regional 
equality  advisers)  on  the  situation  of  male  and  female  workers  as  regards  recruitment, 
professional training, career opportunities, remuneration, dismissals and retirement.  

The legislation on remedies and sanctions can be considered to be reasonably in line with 
the  directive  in  the  light  of  the  principles  stated  by  the  CJEU  case  law  on  sanctions. 
However,  the  2016  decriminalisation  provided  by  Decree  No.  8  of  15  January  2016, 
although it aims to reduce the workload of the criminal courts, represents a retrograde 
step in the effectiveness of sanctions. Nevertheless, the fact that positive action measures 
can be provided as remedies against collective discrimination ascertained by the judge is 
an effective tool. Also effective is the sanction of revocation of public benefits or even the 
exclusion, for a certain period, from any further award of financial or credit inducements 
or from any public tender in the case of direct or indirect discrimination. 

Finally, the legislation on the role of equality bodies and social partners complies with the 
EU  law,  too.  However,  equality  bodies  experience  problems  in  relation  to  financing. 
Another issue for equality bodies, linked to that of financing, is their independence. Indeed, 
the EONC’s president and deputy president are appointed by the Minister of Labour. Some 
doubts  as  to  the  body’s  independence  are  also  raised  by  the  fact  that  its  functioning, 
organisation and financing depend on the Ministry of Labour. Equality advisers are financed 
and managed by the Ministry of Labour or the local bodies where they are set up, which 
implies that they are, to say the least, economically dependent on the bodies that host 
them. 

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Bibliography 

Barbera,  M.  (2007),  Il  nuovo  diritto  antidiscriminatorio  (The  new  anti-discriminatory 
legislation), Giuffrè, Milan. 

Bonardi O. & Altra Velocità Group (2017), Eguaglianza e divieti di discriminazione nell’era 
del diritto del lavoro derogabile (Equality and non-discrimination in the era of derogated 
labour law), Ediesse, Rome. 

Bonardi,  O.  (2012),  Sistemi  di  welfare  e  principio  di  uguaglianza  (Welfare  systems  and 
equality), Giappichelli, Turin. 

De  Simone,  G.  (2001),  Dai  principi  alle  regole.  Eguaglianza  e  divieti  di  discriminazione 
nella  disciplina  dei  rapporti  di  lavoro  (From  principles  to  legislation.  Equality  and  anti-
discrimination legislation in labour Law), Giappichelli, Turin. 

Gottardi, D., Calafà, L. (2009), Il diritto antidiscriminatorio tra teoria e prassi applicativa 
(Anti-discrimination legislation: theory and implementation), Ediesse, Rome. 

Izzi, D. (2005), Eguaglianza e differenze nei rapporti di lavoro (Equality and differences), 
Jovene, Naples. 

110 

 
 
 
 
 
 
 
 
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