Chronicles of ordinary racism 2011 - Cronache di ordinario razzismo

The municipality of Brescia, not well‐pleased (just consider the amount of public money
involved in these trials…), backed a standard lower court ruling (ex art. 669 octies c.p.c.)
in the hope of having the case referred to an ‘administrative’ judge (as opposed to an
‘ordinary’ one), and filed an appeal to determine legal jurisdiction before the Court of
Cassation (supreme court).
But, the Sezioni Unite (appeals division) of this court stated that “the transparency of
extant legislation does not admit any doubt as to the jurisdiction of the ‘ordinary’ judge
over matters concerning the protection against actions and behaviour that contravene
the principle of equality” 197
Therefore, the jurisdiction of the ‘ordinary’ judge having received official confirmation,
we can but wait for the continuation of the trial in Court, which is, unfortunately, taking
a long time to get underway.
The baby bonus as established by the municipality of Tradate
Another episode to make the headlines was the subsidy for newborns instituted by the
Municipality of Tradate, unusual inasmuch as it represents a case of “discrimination
against foreigners” but also, concurrently, of “discrimination on the grounds of ethnic
or racial identity and descent” as defined by national and international legislation.
The peculiarity of the bonus in question (unique, in this respect, in the field of municipal
regulations) 198 was the inclusion of the Italian citizenship of “both parents” as a requisite.
This entailed two obvious consequences: a) a number of Italian children were also
excluded from the subsidy in view of alleged “ethnic” attributes owing to the different
nationality of one of the parents; b) a “financial disincentive” to the union of mixed
couples was introduced by guaranteeing a greater degree of financial support to those
who married a fellow countryman than to those who chose a foreign national as their
partner.
This inevitable outcome found resounding and unforeseen confirmation in the
elucidations appended to the decree, stated in the lower court ruling. In an attempt to
justify the decision to limit the bonus to children with two Italian parents, the local
council claimed that the subsidy was rooted in Europe’s demographic decline,
intrinsically linked to “the death of individual cultures” and that it had stemmed from
considerations surrounding “the future of European culture as firmly linked to
European populations” and it therefore represented a “special incentive towards
cultural conservation”.
A Milan Court, in the course of the trial and on appeal, ascertained and asserted the
discriminatory nature of Tradate’s conduct and requested an amendment of the
municipal ruling. Moreover, in the course of the appeal hearing the court ordered that
4) Court of Brescia, ord 27 May 2009, pres. est. Tropeano.
In http://www.asgi.it/public/parser_download/save/brescia._bb_27maggio09.pdf .
197 Supreme Court, Appeals Division, 15 February 2011, n. 3670. This ruling confirms that the anti-discrimination
judicial action under art. 44 of decree n. 286/98 was identified by the legislator as a prototype in the legal battle
against discrimination, to be applied whenever the act in question is contested as discriminatory, regardless of
whether said discrimination was carried out by private parties or public administration and therefore whether
involves legal positions defined as subjective rights or legitimate interests. See:
http://www.asgi.it/public/parser_download/save/cassazione_sentenza_3670_11_15022011.pdf.
198 With the possible exception of subsidy instituted by the Municipality of Adro establishing a “baby bonus”
reserved for children with both parents in possession of EU citizenship. Cf. footnote 1.
79