Sui rimedi per violazione del principio di non discriminazione. in margine alla sentenza della corte di giustizia nel caso Gérard Buono

The identification of remedies capable to restore equality, after that a breach of the principle of non-discrimination has occurred, is a controversial issue in general theory of law. In dealing with this issue, in a consistent case law, the ECJ tends to identify which are the measures that, in a system of rules, establish an unreasonable treatment for a certain class of situations and, then, proclaims the invalidity of such measures only. This approach was also adopted by the ECJ in its recent decision in joint Cases C-12/13 P e C-13/13 P, Gérard Buono. Such classical scheme of analysis, however, seems to be applicable only when certain pre-conditions are at stake: in particular, this is when there is the possibility to construe the rule establishing a discriminatory treatment as an exception to the otherwise uniform beneficial treatment established by another rule. In the absence of these pre-conditions, such a scheme reveals a number of theoretical and practical shortcomings.