Acceso usuarios
Maria Vittoria Ballestrero
Italian Act 125/1991 provides the fostering of equal opportu-níty between men and women by means of affirmative actíon ai-med at realizing women's substantive equality as regards vocatio-nal training, access to employment and working conditions. Two recent judgements (the ECJ's judgement Kalanke, and the Italian Constitutional Court's judgement n. 422/1995) question the con-struction of equal opportunity and affirmative actíon accepted by scholars' prevailing opinion.
The ECJ ruled that Article 2, par. 4, of Council Directive 76/ 207 precludes national rules which automatically give priority to women shortlísted for promotion in sectors where they are under-represented. The Constitutional Court, in turn, ruled that the legi-slature may not provide any differential measures in favour of wo-men amounting to derogating some fundamental rights. The case related to a legislative provision which stated that «as a rule, nei-ther of the two sexes should be represented by a quorum of more than two thirds on the election lists». According to the Court, men's fundamental right to be elected may not be diminíshed so as to favour another group of citizens (women).
Both the ECJ and the Constitutional Court maíntained that af-firmative action is legitimate in so far as it is aimed at raising the point of departure for groups which are victims of past díscrimination. The two Courts excluded that affirmative action may di-rectly achieve equal representation of men and women.
The paper spreads out a criticism of such a narrow construc-tion of affirmative action. Accordíng to the author, such a con-struction leads to call in question the principie of substantive equality, on which Italian Act 125/1991 has been established.
