Research Handbook on EU Disability Law (Research Handbooks in European Law series) 178897641X, 9781788976411

Table of contents :
Front Matter
Copyright
Contents
Contributors
Preface
Acknowledgements
1. Introduction to the Research Handbook on EU Disability Law
PART I THE HISTORY OF EU DISABILITY LAW, ITS SCOPE AND INSTITUTIONAL ASPECTS
2. The EU disability strategy and the future of EU disability policy
3. Disability in the EU Charter of Fundamental Rights
4. Negotiation, ratification and implementation of the CRPD and its status in the EU legal order
5. The EU framework for monitoring the CRPD
6. Political participation of people with disabilities in the EU
7. EU citizenship and disability
PART II DISABILITY RIGHTS IN EU LAW
8. Disability in EU non-discrimination
9. Disability in EU labour law beyond non-discrimination
10. Freedom of movement for persons with disabilities and coordination of social security within the EU
11. Disability in EU transport legislation
12. Disability in EU copyright law
13. Accessibility of goods and services
14. Disability and standardization
15. Disability and EU public procurement
16. Public services and disability
17. State aid law and disability
18. EU structural and investment funds and disability
19. The rights of people with disabilities in EU consumer law
20. Disability in EU asylum law
PART III EXTERNAL DIMENSIONS
21. Disability in EU development cooperation
22. Disability in EU trade and investment agreements
23. The European Convention on Human Rights and Disability
24. The European Social Charter and disability
25. Conclusion to the Research Handbook on EU Disability Law
Index

Citation preview

RESEARCH HANDBOOK ON EU DISABILITY LAW

RESEARCH HANDBOOKS IN EUROPEAN LAW This important series presents a comprehensive analysis of the latest thinking, research and practice across the field of European Law. Organised by theme, the series provides detailed coverage of major topics whilst also creating a focus on emerging areas deserving special attention. Each volume is edited by leading experts and includes specially commissioned chapters from distinguished academics as well as perspectives from practice, providing a rigorous and structured analysis of the area in question. With an international outlook, focus on current issues, and a substantive analysis of the law, these Research Handbooks are intended to contribute to current debate as well as providing authoritative and informative coverage. Forming a definitive reference work, each Research Handbook will be essential reading for both scholars in European law as well as for practitioners and policymakers who wish to engage with the latest thinking and ongoing debates in the field. Titles in this series include: Research Handbook on EU Health Law and Policy Edited by Tamara K. Hervey, Calum Alasdair Young and Louise E. Bishop Research Handbook on EU Law and Human Rights Edited by Sionaidh Douglas-Scott and Nicholas Hatzis Research Handbook on EU Tort Law Edited by Paula Giliker Research Handbook on EU Energy Law and Policy Edited by Rafael Leal-Arcas and Jan Wouters Research Handbook on Legal Pluralism and EU Law Edited by Gareth Davies and Matej Avbelj Research Handbook on EU Sports Law and Policy Edited by Jack Anderson, Richard Parrish and Borja García Research Handbook on the EU’s Common Foreign and Security Policy Edited by Panos Koutrakos and Steven Blockmans Research Handbook on EU Economic Law Edited by Federico Fabbrini and Marco Ventoruzzo Research Handbook on European Union Taxation Law Edited by Christiana HJI Panayi, Werner Haslehner and Edoardo Traversa Research Handbook on the Brussels Ibis Regulation Edited by Peter Mankowski Research Handbook on EU Environmental Law Edited by Marjan Peeters and Mariolina Eliantonio Research Handbook on EU Disability Law Edited by Delia Ferri and Andrea Broderick

Research Handbook on EU Disability Law Edited by

Delia Ferri Professor of Law, Department of Law, Maynooth University, Ireland

Andrea Broderick Assistant Professor of International and European Law, Maastricht University, the Netherlands

RESEARCH HANDBOOKS IN EUROPEAN LAW

Cheltenham, UK • Northampton, MA, USA

© The Editors and Contributors Severally 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020944600 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781788976428

02

ISBN 978 1 78897 641 1 (cased) ISBN 978 1 78897 642 8 (eBook)

Contents

List of contributorsvii Prefacexi Acknowledgementsxii 1

Introduction to the Research Handbook on EU Disability Law Delia Ferri and Andrea Broderick

PART I

1

THE HISTORY OF EU DISABILITY LAW, ITS SCOPE AND INSTITUTIONAL ASPECTS

2

The EU disability strategy and the future of EU disability policy Charles O’Mahony and Shivaun Quinlivan

12

3

Disability in the EU Charter of Fundamental Rights Delia Ferri

29

4

Negotiation, ratification and implementation of the CRPD and its status in the EU legal order Merijn Chamon

5

The EU framework for monitoring the CRPD Alexander Hoefmans

71

6

Political participation of people with disabilities in the EU Lisa Waddington and Andrea Broderick

89

7

EU citizenship and disability Charles Edward O’Sullivan

PART II

52

105

DISABILITY RIGHTS IN EU LAW

8

Disability in EU non-discrimination law Andrea Broderick and Philippa Watson

121

9

Disability in EU labour law beyond non-discrimination Miet Vanhegen and Frank Hendrickx

146

10

Freedom of movement for persons with disabilities and coordination of social security within the EU Anne Pieter van der Mei

11

Disability in EU transport legislation Eliza Varney and Abigail Pearson v

164 182

vi  Research handbook on EU disability law 12

Disability in EU copyright law Caterina Sganga

201

13

Accessibility of goods and services Stelios Charitakis

221

14

Disability and standardization David Hosking

243

15

Disability and EU public procurement Christopher Bovis

263

16

Public services and disability Juan Jorge Piernas López

284

17

State aid law and disability Delia Ferri and Juan Jorge Piernas López

301

18

EU structural and investment funds and disability Emma McEvoy

321

19

The rights of people with disabilities in EU consumer law Federica Casarosa

343

20

Disability in EU asylum law Carmine Conte

359

PART III EXTERNAL DIMENSIONS 21

Disability in EU development cooperation Tina Van den Sanden

379

22

Disability in EU trade and investment agreements Sondra Faccio

396

23

The European Convention on Human Rights and Disability Silvia Favalli

414

24

The European Social Charter and disability Giuseppe Palmisano

431

25

Conclusion to the Research Handbook on EU Disability Law Andrea Broderick and Delia Ferri

448

Index460

Contributors

Christopher Bovis is Professor of Business Law at the University of Hull. He is an internationally renowned specialist in public sector management, public procurement and public– private partnerships. Andrea Broderick is Assistant Professor of International and European Law at Maastricht University. She is also the National (Dutch) Director and the EMA Director (on behalf of Maastricht University) of the European Master’s Programme in Human Rights and Democratisation (Venice). Andrea holds, among others, a PhD in international and European disability law from Maastricht University, an LLM in international and comparative disability law from National University of Ireland Galway (NUIG), an LLB from NUIG and a BA International from NUIG and the University of Poitiers. Furthermore, she is qualified as a solicitor and has been enrolled at the Law Society of Ireland since 2012. She was awarded the Edmond Hustinx Prize for Science 2018. Federica Casarosa is part-time Professor at the Centre for Judicial Cooperation at the European University Institute. Her research interests focus on the intersection between private law and fundamental rights in consumer protection, data protection and media law. She has developed rich experience in developing training for legal professionals through her role as a scientific coordinator in several training projects led by the Centre for Judicial Cooperation. Federica holds a bachelor’s degree in private law (University of Pisa, 2001) and a PhD in Law (European University Institute, 2008). Merijn Chamon is Assistant Professor of EU Law at Maastricht University, Visiting Professor at the College of Europe (Bruges) and voluntary collaborator at the Ghent European Law Institute. Merijn’s research interests encompass EU constitutional and institutional law, as well as EU external relations law and the law of the EU internal market. Stelios Charitakis is a Senior Consultant on equality law at ICF. He is an affiliated lecturer at the Center for European Studies of Maastricht University. He obtained a Marie Curie Early Stage Research Fellowship to complete a PhD in international and European disability law at the Faculty of Law, Maastricht University. His PhD research, which he completed in 2018, was part of an Initial Training Network entitled ‘Disability Rights Expanding Accessible Markets’ (DREAM). He researches in the fields of international human rights and European law, with a focus on disability law. Carmine Conte is an expert in EU law on anti-discrimination, migration and integration. As a legal policy analyst at the Migration Policy Group in Brussels, he conducts international research on these topics. He also contributes to the European network of legal experts in gender equality and non-discrimination. Carmine holds a PhD in EU equality law from Middlesex University of London.

vii

viii  Research handbook on EU disability law Sondra Faccio is a Research Fellow at the School of International Studies of the University of Trento (Italy), where she works on the project ‘The EU Trade Policy in Civil Wars and Other Cases of Contested Sovereignty: An International Law Perspective’. Silvia Favalli is a Postdoctoral Research Fellow in international law at the Department of Political and Social Sciences of the University of Pavia (Italy). She is currently the principal investigator of the interdisciplinary research project ‘RISID – Realizing the Right to Social Inclusion for Persons with Disabilities through New Tools of Smart Communication and Sharing Knowledge: From International to Local Effectiveness’, financed by Fondazione Cariplo. She holds a PhD from the School of Law of the University of Pavia. Delia Ferri is Professor of Law at Maynooth University and Co-Director of the Maynooth ALL Institute. She is an affiliated researcher at the Dirpolis Institute of Scuola Superiore Sant’Anna of Pisa and at the Burton Blatt Institute of Syracuse University, as well as a member of the Royal Irish Academy Standing Committee in International Affairs. She is also a qualified attorney at law (Avvocato), enrolled at the Verona Bar since 2008. Frank Hendrickx is Professor of Labour Law at the Faculty of Law of the University of Leuven (Belgium) and Director of the Institute for Labour Law. He is, among others, Editor-in-Chief of the European Labour Law Journal (Sage). He is a member of the board of the Belgian Association for Labour Law and Social Security Law, the Belgian Association for Industrial Relations and the Labour Law Working Group of the International Labour and Employment Relations Association (ILERA). Alexander Hoefmans works at the Belgian Ministry of Justice as head of the Unit Data Protection and Equal Opportunities. He is also affiliated to the Free University of Brussels (VUB) as a member of the Research Group on Fundamental Rights. David Hosking is affiliated to the Victoria Disability Resource Centre in Victoria, Canada. He holds a PhD in Law from the University of Leicester. Emma McEvoy is a Postdoctoral Researcher in the Department of Law at Maynooth University (Ireland). Emma works on the H2020 funded project ‘Supporting independence and enhanced quality of life for Europe’s ageing population (SHAPES)’ led by Maynooth University’s Assisting Living and Learning Institute (ALL). She is also a board member of the Irish Social Enterprise Network. Emma holds a Doctorate in Law from Maynooth University. Charles O’Mahony is Lecturer in Law at National University of Ireland Galway and Head of School. He completed a PhD at the Centre for Disability Law and Policy, National University of Ireland Galway, entitled ‘Diversion: A Comparative Study of Law and Policy Relating to Defendants and Offenders with Mental Health Problems and Intellectual Disability’. He previously worked as Amnesty International Ireland’s Legal Officer on its mental health campaign and as a legal researcher for the Law Reform Commission of Ireland. Charles Edward O’Sullivan is Lecturer at the School of Law at Ulster University. He has previously held similar positions at Dublin City University and Maynooth University. Charles holds a PhD from the Department of Law, Maynooth University. His research interests explore the intersection of social security and non-discrimination law, placing an emphasis on the

Contributors  ix rights of migrants and persons with disabilities. He has published widely in academic journals and edited volumes on these issues. Giuseppe Palmisano is Professor of International Law and International Human Rights Law at the Department of Law at the University of Roma Tre. He is a member (since 2011) and currently President of the European Committee of Social Rights of the Council of Europe. He is an affiliated member of the Institute for International Legal Studies of the National Research Council of Italy, and was Vice-President (in 2018–2019) of the Italian Society of International Law and EU Law (SIDI). Abigail Pearson is Lecturer in Law at Keele University and a member of the Keele Institute for Social Inclusion. She holds a PhD in Law from Keele University. Her publications include articles in Northern Ireland Legal Quarterly and the European Journal of Legal Issues. Juan Jorge Piernas López is Senior Lecturer of EU and International Law at the University of Murcia (Spain), and consultant to the World Bank in State Aid Law and Policy. He holds a PhD in Law from the European University Institute in Florence. Shivaun Quinlivan is Lecturer in Law at National University of Ireland Galway. Dr Quinlivan’s research interests are in the areas of equality and education. She is particularly interested in the right to equality in education for children with disabilities. For the past number of years, her research focus has been on the right to inclusive education, and she co-leads two research projects on inclusive education in Higher Education. Shivaun holds a PhD from Trinity College Dublin, an LLM from King’s College London and an LLB and BA from National University of Ireland Galway. In addition, Shivaun is qualified as a Barrister at Law at the Honourable Society of King’s Inns. Caterina Sganga is Associate Professor of Comparative Private Law at the Scuola Superiore Sant’Anna (SSSA, Pisa, Italy). Prior to her appointment at SSSA, she was Assistant, and later Associate, Professor of Law at the Department of Legal Studies and the Department of Economics and Business of Central European University (CEU, 2012–2018). Since January 2020, she is the coordinator of the H2020 project reCreating Europe (‘Rethinking Digital Copyright Law for a Culturally Diverse, Accessible, Creative Europe’). She holds a PhD in Comparative Private Law from Sant’Anna, an LLM from Yale Law School, and an LLB and JD from University of Pisa. Tina Van den Sanden is a Senior Affiliated Researcher at the Institute for European Law, KU Leuven. In 2018, she obtained her PhD, titled ‘Between Constitutional Strictures and Policy Objectives: An Examination of the Legal Framework of EU Development Cooperation’. Since 2018, she has been working at the European Commission, at the Directorate-General for International Cooperation and Development. Her contribution is written in her academic and personal capacity. Anne Pieter van der Mei is appointed Professor of European Social Law in the Public Law Department at Maastricht University. In his research and teaching, Anne Pieter focuses on European social security law, European labour law and European health law.

x  Research handbook on EU disability law Miet Vanhegen is a Doctor of Law at the Faculty of Law of the University of Leuven (Belgium) and a member of the Institute for Labour Law. Her research focuses on work incapacity and reintegration in the context of labour law. Eliza Varney is Senior Lecturer in Law at Keele University and a member of the Keele Institute for Social Inclusion. She holds a PhD in Law from the University of Hull. Her publications include the monograph Disability and Information Technology (Cambridge University Press, 2013), book chapters and articles in Legal Studies, Northern Ireland Legal Quarterly, Journal of Business Law, Communications Law, Utilities Law Review and Zeitschrift fur Rechtssoziologie. Lisa Waddington holds the European Disability Forum Chair in European Disability Law. Professor Waddington works at the Department of International and European Law, Maastricht University. Philippa Watson is Professor of Law at City Law School, London. She is also Visiting Professor at Queen Mary University of London, and a barrister at Essex Court Chambers.

Preface

This Research Handbook complements our textbook on International and European Disability Law, which was our first joint research endeavour, and which was published in 2019. By bringing together in this Research Handbook not only key authors in the disability field but also scholars from different backgrounds and at different stages of their careers, we have tried to offer a diverse, wide-ranging – and yet substantive – exploration of key topics and sub-domains in the field of European Union (EU) disability law. We have also striven to take into account the most recent developments brought about by the EU’s accession to the UN Convention on the Rights of Persons with Disabilities (CRPD). Most of the contributions included in this Research Handbook were completed at the end of 2019. The Research Handbook on the whole was finalized in early 2020, just at the beginning of the outbreak of the COVID-19 pandemic, which has profoundly impacted not only on our own daily lives, but also on the EU law landscape. Since March 2020, the priority for the EU institutions and Member States alike has been to safeguard the health of European citizens, by reinforcing national healthcare systems and adopting a range of measures to contain the spread of the virus. Alongside those measures, the EU has also engaged in several short-term reforms to mitigate the detrimental socio-economic side effects of the pandemic. As a consequence, we are now experiencing fast-paced legal developments in several fields, such as State aid control, public services, public procurement, structural funds and free movement of people within the EU. Those unpredicted and unparalleled developments could not be included in this first edition of this Research Handbook. It would have been unfair to our esteemed authors to delay the publication and ask them to rework their chapters during these unprecedented and challenging times. At the moment of writing this preface, it is quite unclear how the current crisis will pan out; neither is it clear for how long the pandemic will continue. It is, however, quite evident that people with disabilities run the risk of being affected most by the COVID-19 pandemic, in multiple ways. On 30 April 2020, Commissioner Helena Dalli, in her speech at the Disability Intergroup of the European Parliament, emphasized that the EU’s implementation of the CRPD ‘has been put to the test and becomes even more relevant in this crisis situation’. Against this background, we, as editors, feel that this Research Handbook has provided an up-to-date and comprehensive picture of the status of EU disability law and related developments up to the beginning of 2020. This, in itself, is essential to enable an understanding of the further steps that the EU needs to take in order to ensure that people with disabilities do not face discrimination and enjoy their right to the highest attainable standard of health during the COVID-19 pandemic. We will, however, be preparing for future editorial endeavours, to capture the zeitgeist of the current emergency. Such a period of profound crisis gives us a renewed opportunity for deep analysis and for further contextualizing our research on EU disability law. In the meantime, we hope that the readers will enjoy this Research Handbook and look forward to a second edition in due course. Delia Ferri and Andrea Broderick Maynooth/Maastricht, 30 April 2020 xi

Acknowledgements

As editors, we are indebted to many people who, in different capacities, helped us to create this innovative and up-to-date Research Handbook on EU Disability Law. First and foremost, we would like to warmly thank the contributing authors, who have, together with the editors, traced the boundaries and highlighted the most distinctive features of this new and dynamic field of EU law. Most authors joined us at the very beginning of this project and some others came on board at a later stage, but all of them have greatly supported us as editors of this Research Handbook. The book would not have been possible without their enthusiasm and commitment. We would also like to thank Mr Steven Baldesco (Maastricht University), who provided editorial assistance in a later phase of the project. Finally, our special thanks also go to Laura Mann and the whole publishing team at Edward Elgar Publishing for their advice, patience and for their support throughout the process. Delia Ferri and Andrea Broderick Maynooth/Maastricht, 30 April 2020

xii

1. Introduction to the Research Handbook on EU Disability Law Delia Ferri and Andrea Broderick

1.

DISABILITY LAW AS AN EMERGING FIELD OF EUROPEAN UNION LAW

In the past 20 years, the European Union (EU) has adopted a wide range of legislative measures addressing, to varying degrees, the rights of persons with disabilities. It has also put forward various policy initiatives to complement, as well as to boost the effects of, those measures. Well-established scholarship has highlighted that the major drivers of the development of this complex net of EU legislation and policies were,1 first, the entry into force of the Treaty of Amsterdam, and second, the conclusion by the EU2 of the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention).3 Before 1999, the former European Community (EC) had addressed disability mainly through the use of soft law and by means of programmes aimed at supporting Member States’ actions.4 The Treaty of Amsterdam conferred a sound competence on the EC to combat, inter alia, disability discrimination, by virtue of Article 13 EC (now Article 19 of the Treaty on the Functioning of the European Union – TFEU). This constitutional change prompted the adoption of Directive 2000/78/EC,5 establishing a general framework for equal treatment in

1 See generally Lisa Waddington, From Rome to Nice in a Wheelchair: The Development of a European Disability Policy (Europa Law Publishing 2005). See also Gerard Quinn, ‘The Human Rights of People with Disabilities under EU Law’ in Philip Alston, Mara R Bustelo and James Heenan (eds), The EU and Human Rights (Oxford University Press 1999) 281–326; see further Lisa Waddington, ‘The Influence of the UN Convention on the Rights of Persons with Disabilities on EU Anti-discrimination Law’ in Uladzislau Belavusau and Kristin Henrard (eds), EU Anti-discrimination Law beyond Gender (Hart Publishing 2018) 339–61. 2 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. 3 Annex I UN Convention on the Rights of Persons with Disabilities, 13 December 2006, in force 03 May 2008, UN Doc. A/RES/61/106. 4 Mark Priestley, ‘In Search of European Disability Policy: Between National and Global’ (2007) 1 ALTER – Revue Européenne de recherche sur l’handicap 61. 5 This Research Handbook does not discuss the constitutional nature of the EU, and it does not endeavour to contribute to the scholarly debate on the constitutionalization of the EU. However, it refers to the Treaties and the EU Charter of Fundamental Rights (CFR) as the constitutional acts of the EU, in line with the Court of Justice of the European Union (CJEU) case law. See, to this effect, Case C‑621/18 Andy Wightman EU:​C:​2018:​999, para 44: ‘[i]n that respect, it must be borne in mind that the founding Treaties, which constitute the basic constitutional charter of the European Union (judgment of 23 April 1986, Les Verts v Parliament, 294/83, EU:​C:​1986:​166, paragraph 23), established, unlike ordinary international treaties, a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals’.

1

2  Research handbook on EU disability law employment and occupation (Employment Equality Directive),6 which marked the first legislative intervention designed to address discrimination on the ground of disability. The Treaty of Amsterdam also included a Declaration stating that the EU institutions must take account of the needs of persons with disabilities in drawing up measures under the former Article 95 EC (now Article 114 TFEU). That Declaration encouraged the use of internal market legislation to address, where feasible, the rights of persons with disabilities. The EU Charter of Fundamental Rights (CFR or Charter),7 proclaimed in 2000, gave a renewed focus to the rights of people with disabilities by including, alongside an all-embracing prohibition of discrimination (Article 21 CFR), a provision on the integration of persons with disabilities in society (Article 26 CFR). However, the Charter per se did not stimulate the development of EU disability policies. The arguably limited effects of the Charter are related, on the one hand, to its initial lack of binding force, as the Charter only acquired the same legal status as the Treaties in 2009, following the entry into force of the Treaty of Lisbon; and, on the other hand, to the fact that the Charter was never intended to expand the reach of EU legislation. In its original formulation, Article 51(2) CFR stated that the Charter did not ‘establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties’. That provision still constitutes a blatant limitation on the operation of the Charter, even in its slightly amended formulation. The second major driver of the development of EU disability law and policy was, as mentioned above, the conclusion by the EU (alongside its Member States) of the CRPD, which occurred approximately ten years after the entry into force of the Treaty of Amsterdam. The need to comply with the wide-ranging obligations provided for in the CRPD gave rise to an immediate and visible shift in the EU’s approach to disability. While the entry into force of the Treaty of Amsterdam had resulted in a qualitative and quantitative shift in the EU action – allowing for the adoption of EU secondary law addressing the rights of persons with disabilities – the ratification of the CRPD has triggered a more substantive change. In the first instance, the promotion of the rights of persons with disabilities became a priority and a key area of action for the EU. In the second instance, a social model of disability has been creeping into EU law8 – as will be discussed further in this Research Handbook – mainly through the jurisprudence of the Court of Justice of the EU (CJEU). After the ratification of the CRPD, the European Disability Strategy 2010–2020 (EDS)9 was adopted, with the express aim to implement the UN Convention. It represents the first evidence of the shift in the Union’s approach to disability. The EDS elaborates a comprehensive policy framework on disability, and identifies cross-cutting EU-level actions and new legislative measures that span the whole spectrum of EU competences. The EDS has, in itself, contributed to the emergence of the self-standing field of ‘EU disability law’, which is arguably the newest (and one of the most dynamic) fields of EU law. Recent developments, such as the publication of the European Accessibility Act in

6 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 7 Charter of Fundamental Rights of the European Union [2000] OJ C364/1. On the CFR, see, among many others, Robert Schütze, European Constitutional Law (Cambridge University Press 2012) 422–28. 8 See, among many others, Tom Shakespeare and Nicholas Watson, ‘The Social Model of Disability: An Outdated Ideology?’ (2001) 2 Research in Social Science and Disability 9. 9 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final.

Introduction to the research handbook on EU disability law  3 the Official Journal of the EU (OJ) in June 2019,10 suggest that the dynamism of EU disability law is destined to continue. Interestingly, the entry into force of the Treaty of Lisbon, which had the result that the CFR acquired constitutional status, took place almost concurrently with the ratification of the CRPD, in December 2009. The Treaty of Lisbon has clarified (and, to some extent, extended) EU competences; placed a major emphasis on human rights protection; included among its own objectives those of combating social exclusion and discrimination and promoting social justice; and included a reference to a ‘social market economy’. Moreover, it has introduced two cross-cutting clauses that allow the EU to mainstream social considerations (broadly conceived) in its internal market legislation. In that regard, Article 9 TFEU states that: [i]n defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.

In addition, Article 10 TFEU requires that, ‘in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on […] disability […]’, allowing the EU to integrate the fight against disability discrimination into all EU actions. Yet, the Treaty of Lisbon has neither altered the limited scope of EU social policy per se nor the Union’s competence in this domain. Moreover, that Treaty did not inject many references to disability into the EU’s constitutional framework. Article 19 TFEU, the legal basis for the adoption of EU non-discrimination and equality legislation, remains the core provision explicitly related to the rights of persons with disabilities. Hence, the renewed constitutional framework has only facilitated, rather than prompted, the development of a pan-European disability law. Against this background, and approximately ten years after the conclusion of the CRPD and the release of the EDS, on the tenth anniversary of the entry into force of the Treaty of Lisbon, the time seems ripe to reflect on the current status of EU disability law and to discuss the challenges that lie ahead. In that vein, this first Research Handbook on EU Disability Law includes various contributions that address, from different angles and perspectives, key questions related to the scope and effects of EU disability law, its compliance with the CRPD and the gaps that remain to be filled. All of the chapters, either expressly or implicitly, refer to the scant attention paid to disability until the ratification of the UN Convention by the EU. Many chapters critically discuss whether the somewhat commercially driven nature of the EU is undermining the adoption of a human rights approach to disability. Several contributions highlight how the CRPD, and more generally international human rights law, has supported the mainstreaming of disability in EU legislation. Each chapter adopts a different perspective (which does not necessarily reflect that of the editors) on the current EU legal framework, discussing the extent to which the rights of persons with disabilities are protected in various spheres of EU law. On the whole, the Research Handbook traces the boundaries of EU disability law as a distinct field of research, highlighting the interconnection between the development of the EU disability agenda and the conclusion of the CRPD.

10 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70.

4  Research handbook on EU disability law

2.

THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AS THE NORMATIVE STANDARD OF ANALYSIS

In analysing various facets of EU disability law, this Research Handbook refers to the CRPD not only as a driver of policy development at the supranational level, but also as the normative standard to which the EU adheres with regard to the rights of individuals with disabilities. The Research Handbook does not engage to any great extent with the CRPD itself. However, all of the chapters cite relevant CRPD provisions or relevant jurisprudence, to ascertain the extent to which EU law complies with the obligations laid out in the UN Convention. On the whole, this Research Handbook endeavours to investigate the extent to which the EU protects and fulfils the rights set out in the Convention. It is well known that the CRPD aims to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.11 Scholars claim that the CRPD has ‘modified, transformed and added to traditional human rights concepts in key respects’;12 and as suggested by de Beco, the CRPD also blurs the distinction between the traditional categories of civil and political rights, on the one hand, and social, economic and cultural rights, on the other hand.13 Alongside the recognition that human rights and fundamental freedoms must be realized for people with disabilities in order for them to meaningfully participate in society on an equal basis with others, the CRPD endorses the shift from the medical model of disability – which perceives the inability of people with disabilities to participate in society as the ‘inevitable result of their own impairment rather than as a consequence of any disabling and discriminatory barriers in society’14 – to the social-contextual model of disability.15 The latter model is a more refined elaboration of the ‘pure’ social model, which attracted much criticism on account of the fact that it focused on societal barriers (physical, attitudinal and legislative, among others), and neglected the role of impairment in disabling the individual concerned.16 In that connection, the social-contextual model recognizes that ‘disability results from the interaction between persons with impairments and attitudinal and environmental barriers

Article 1 CRPD. Rosemary Kayess and Philip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8(1) Human Rights Law Review 32. 13 See generally Gauthier De Beco, ‘The Indivisibility of Human Rights in Light of the Convention on the Rights of Persons with Disabilities’ (2019) 68(1) International and Comparative Law Quarterly 141. 14 Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 1. 15 The term ‘social-contextual model’ (in connection with the CRPD) was coined by Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities (n 14) 77. Several authors still refer to the CRPD as purporting the social model of disability (e.g. Anna Arstein-Kerslake, Restoring Voice to People with Cognitive Disabilities: Realizing the Right to Equal Recognition before the Law (Cambridge University Press 2017) 72). 16 For a critique of this aspect of the social model, see Deborah Marks, ‘Dimensions of Oppression: Theorising the Embodied Subject’ (1999) 14(5) Disability & Society 661. See also Jenny Morris, Pride against Prejudice: Transforming Attitudes to Disability. A Personal Politics of Disability (Women’s Press 1991) 10. 11 12

Introduction to the research handbook on EU disability law  5 that hinder their full and effective participation in society on an equal basis with others’.17 This social-contextual conceptualization of disability informs the analysis carried out in the various chapters compiled in this Research Handbook. Consistently with this conceptualization, the various contributions adhere to the ‘language of rights’, and – as far as possible – to ‘people-first language’,18 which is used in the CRPD (as well as in the English versions of EU legislation and case law).19 The term ‘persons/people with disabilities’ is used for the most part. However, some authors refer occasionally to ‘disabled persons/people’ – but always in line with the CRPD’s understanding of disability. While the social-contextual model of disability defines how disability arises and explains the marginalization of people with disabilities, the substantive provisions of the UN Convention embrace the human rights model of disability.20 The latter model builds on the social-contextual model in that it recognizes that ‘disability is a social construct’.21 However, it goes further in conceiving of disability as ‘one of several layers of identity’ and in placing emphasis on human dignity.22 Without delving deeply into a discussion of the human rights model of disability, whose traits will emerge across the various contributions in this Research Handbook, it suffices to point out that it is informed by the general principles listed in Article 3 CRPD. Among them is the recognition of the inherent dignity of people with disabilities, and of their individual autonomy and independence. People with disabilities are to be valued because of their self-worth, according to the human rights model. Alongside dignity as a cornerstone of the UN Convention, the principle of non-discrimination has been described as the ‘leitmotif’ of the CRPD,23 as it cuts across both civil and political rights, such as the right to legal capacity; and economic, social and cultural rights, such as the right to education. Article 2 CRPD provides a broad definition of discrimination on the basis of disability, highlighting that such discrimination includes the denial of reasonable accommodation. The duty to reasonably accommodate is also defined in Article 2 CRPD as ‘necessary and appropriate modification and adjustments’, ‘where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. The duty to provide reasonable accommodation must be Preamble para (e), CRPD. Phil Foreman, ‘Language and Disability’ (2005) 30(1) Journal of Intellectual and Developmental Disability 57. 19 The booklet ‘Inclusive Communication in the GSC’ also refers to the CRPD. See Council of the European Union, ‘Inclusive Communication in the GSC’ (General Secretariat of the Council 2018) www​.consilium​.europa​.eu/​media/​35446/​en​_brochure​-inclusive​-communication​-in​-the​-gsc​.pdf accessed 7 February 2020. In that connection, it requires EU civil servants ‘to be aware of and avoid negative stereotypes or stigmatising language’. The booklet suggests using person-first language (i.e. ‘a person with a disability’), to ‘emphasise each person’s individuality and capabilities rather than defining them by a condition’ and ‘avoid phrases like “suffers from” and passive “victim” words’. 20 Committee on the Rights of Persons with Disabilities (CRPD Committee), General Comment No. 6 on equality and non-discrimination, UN Doc. CRPD/C/GC/6 (2018), para 11. On the human rights model of disability, see generally Theresia Degener, ‘A New Human Rights Model of Disability’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 41–60. 21 CRPD Committee, General Comment No. 6 (n 20) para 11. 22 Ibid. 23 Oddny Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 41–66, p. 41. 17 18

6  Research handbook on EU disability law distinguished from legal obligations to achieve accessibility, which is also a general principle of the CRPD – mentioned in Article 3, and whose obligations are laid down in Article 9. The latter provision requires States Parties to take appropriate measures to ensure that people with disabilities have access to environments, facilities, information and services on an equal basis with others. Accessibility duties are generalized (group-based) and anticipatory (not triggered by an individual request).24 The principle of participation and inclusion of people with disabilities in society is also a core feature of the UN Convention, and requires engagement ‘with all persons, including persons with disabilities, to provide for a sense of belonging to and being part of society’.25 Ensuring participation of persons with disabilities is particularly important in fostering awareness-raising, and promoting respect for the rights and dignity of persons with disabilities.26 The foregoing principles and duties, which are intended to guide States Parties in implementing the CRPD, inform, to varying degrees (depending on the topic at stake), the contributions collected in this Research Handbook. Each contribution compares, to different extents, the scope of protection afforded by EU law to the rights provided for in the CRPD.

3.

THE SCOPE AND METHODOLOGY OF THE RESEARCH HANDBOOK

The overall aims of this Research Handbook are to discuss the scope and effects of EU disability law, as well as to examine how the CRPD has been implemented to date in EU law and how its goals might be realized in the future. In order to achieve these objectives, the editors have carefully selected the topics to be covered in the Research Handbook on the basis of a systematic review of the relevant areas in which the CRPD has already influenced, or could potentially influence, the substantive provisions of EU law. This Research Handbook does not intend to replicate or reproduce pre-existing academic work. For this reason, while considering the historical legacy of the former Community disability policies, the various contributions focus on the present relationship between EU law and the CRPD, as well as on the extent to which disability rights are currently protected and promoted in EU law and policy. Notably, the Research Handbook also presents a wide range of future perspectives in the field. The contributions in this Research Handbook were finalized, for the most part, by the beginning of January 2020. Thus, the Research Handbook as a whole covers legal developments that occurred up until the end of December 2019. It is noteworthy that this Research Handbook focuses on EU law as such, and does not discuss national legislation. It also engages with the ‘global reach’ of EU law,27 to adopt an 24 Lisa Waddington and Andrea Broderick, Disability Law and the Duty to Reasonably Accommodate Beyond Employment: A Legal Analysis of the Situation in EU Member States (European Commission 2016) 45. 25 CRPD Committee, General Comment No. 7 on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, UN Doc. CRPD/C/GC/7 (2018), paras 27 and 33. 26 Ibid para 76. 27 As noted by Fahey, ‘[t]he global reach of EU law nowadays denotes a variety of situations where the EU acts as a “rule-exporter” to many countries, organisations and associations and gives its rules or compels others to take them, setting high standards or cohesive standards for a block of half a billion

Introduction to the research handbook on EU disability law  7 expression used by Fahey.28 Given the uncertainty surrounding the future relations between the United Kingdom (UK) and the EU after the UK’s withdrawal from the Union, better known as ‘Brexit’, the Research Handbook does not include a chapter on Brexit and disability. A revised Withdrawal Agreement was agreed at the European Council,29 but at the time of writing the UK is in a transition period, and all EU law will remain applicable until the end of this period (the end of December 2020).30 The EU’s willingness to maintain a close relationship with the UK has been evident throughout the negotiations related to the Withdrawal Agreement and has recently been expressed in a Commission Recommendation.31 However, the UK seems reluctant to engage in a partnership which extends beyond the boundaries of a trade agreement, given that it seeks to regain complete control of its external policy and economic choices and restrict immigration from other EU countries into the UK territory.32 Hence, as it stands, the contours of the future relationship between the EU and the UK are too blurred to predict with any degree of certainty the impact on the rights of persons with disabilities of Brexit – albeit that it can be presumed that this impact will most likely be negative. In terms of methodology, the Research Handbook adopts a doctrinal approach, which, as is well known, involves examining the content of legal dicta, in order ‘to evaluate whether it was effectively reasoned or to explore its implications for future cases’.33 For the purpose of this Research Handbook, the use of traditional legal doctrinal methodology allows a focus to be maintained on the most relevant legal sources – legislative provisions, case law and academic scholarship – with a view to systematically interpreting them and clarifying the current state of the law. Comparative approaches will emerge at various junctures throughout the book. In the first instance, comparative elements will be evident when examining CJEU case law, since, as noted by Lenaerts, the CJEU is itself a ‘comparative institution’, situated ‘at the crossroads of different, yet closely intertwined, legal cultures’.34 In the second instance, comparative elements will emerge when comparing the level of protection afforded by the CRPD and that afforded by EU legislation, or when addressing relevant divergences or convergences between the EU legal order and that of the Council of Europe. On the whole, the methodology adopted throughout this book enables an evaluation of the extent to which disability rights and consid-

consumers, traders and enterprises and so on’ (Elaine Fahey, ‘The Global Reach of EU Law and Brexit: Between Theory and Praxis?’ (2017) 20(1) Irish Journal of European Law 1, p. 17). 28 See generally Elaine Fahey, The Global Reach of EU Law (Routledge 2016). 29 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] OJ C384I/1. 30 Tobias Lock, ‘One Foot In, the Other Foot Out: The Brexit Transition Period in the Withdrawal Agreement’ (2019) https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3352027 accessed 30 March 2020. 31 Commission, ‘Recommendation for a Council Decision Authorising the Opening of Negotiations for a New Partnership with the United Kingdom of Great Britain and Northern Ireland’ COM (2020) 35 final. 32 UK Government, ‘The Future Relationship with the EU: The UK’s Approach to Negotiations’ (Presented to Parliament by the Prime Minister By Command of Her Majesty, 3 February 2020) https://​ assets​.publishing​.service​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​868874/​The​ _Future​_Relationship​_with​_the​_EU​.pdf accessed 30 March 2020. 33 Emerson H Tiller and Frank B Cross, ‘What Is Legal Doctrine’ (2006) 100(1) Northwestern University Law Review 517, p. 518. 34 Koen Lenaerts, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52(4) International and Comparative Law Quarterly 873, p. 905.

8  Research handbook on EU disability law erations have been mainstreamed in existing EU law, and have prompted the development of new EU legislation and policy.

4.

THE STRUCTURE OF THE RESEARCH HANDBOOK

This Research Handbook adopts a tripartite structure. Part I traces the history of EU disability law, and critically discusses the nature of the relationship between EU law and the CRPD. It examines whether the principles enshrined in the CRPD are reflected in EU disability law and policy on the whole. It provides the backdrop for the discussion conducted in Part II, which analyses different strands of EU legislation. That Part evaluates, through various lenses, the extent to which disability rights are protected and promoted in EU law and policy. It also discusses the changes that have been brought about in EU law by the conclusion of the CRPD, and presents the most up-to-date developments in the various domains in which the EU has exercised its competence to act in the field of disability. Part III looks beyond the EU and focuses on how disability has been relevant to date in EU external relations, as well as in the interrelation between EU law and other legal instruments and systems, such as the European Convention on Human Rights (ECHR) of the Council of Europe. Each part of the Research Handbook attempts to provide original perspectives on the approach to disability adopted by the EU, and it highlights a sort of scaffold for the development of legal and policy solutions that comply with the CRPD. Issues that have recently gained prominence in the EU legislative agenda, such as accessibility, are examined in the Research Handbook at various junctures. All of the chapters engage critically and analytically with the existing legal framework(s). Many contributions raise questions for further discussion and highlight avenues for future research. The diversity of the authors’ positions, reflections and personal views – a point which will be elaborated on in the concluding chapter of this Research Handbook – allows for a deep consideration of current understandings of how disability rights can be fulfilled in the EU internal market. The first chapter of Part I – Chapter 2, co-authored by O’Mahony and Quinlivan – considers the development of European disability policy from the 1970s onwards, charting the evolution of policy that was rooted in the charity and medical models of disability, towards a human rights-based approach. Chapter 2 also explores how the CRPD will shape the post-2020 EU Disability Strategy, and how it will impact upon disability policy as a whole in the EU. Chapter 3, authored by Ferri, addresses the role of the CFR in protecting the rights of persons with disabilities. It critically discusses the extent to which the CJEU has referred to the Charter, and examines the interplay between the Charter and the CRPD. Chapter 4, authored by Chamon, analyses the CRPD from an EU perspective, focusing on its status and effects as a mixed agreement. In Chapter 5, Hoefmans examines the role of the EU institutions in contributing to the implementation and monitoring of the CRPD, and discusses the implementation of Article 33 CRPD at the EU level. Chapter 6, co-authored by Waddington and Broderick, analyses the extent to which people with disabilities participate in the EU policy system and the extent to which their right to political participation is protected under EU law. Chapter 7, authored by O’Sullivan, concludes Part I by examining the interaction between EU citizenship law and disability. That chapter adopts a theoretical approach and investigates the differences between the notion of ‘social’ citizenship that developed in the post-Second World War landscape and

Introduction to the research handbook on EU disability law  9 that of EU citizenship, ultimately reflecting on the complex relationship between disability and current Union citizenship norms. Part II examines various strands of EU legislation. Each chapter looks at measures considered to fall within the category of ‘positive integration’, and analyses related case law, addressing the role of the CJEU in interpreting EU legislation. Where relevant, an analysis of soft law measures is also included. The chapters in Part II focus mainly on the post-Lisbon Treaty context, and they highlight changes that have occurred after the conclusion of the CRPD. While necessarily selective, Part II encompasses contributions that examine the most significant areas of EU law in which disability concerns have been mainstreamed and disability rights incorporated. At various junctures, the chapters highlight connections, overlaps, inconsistencies and remaining gaps in the field. The contributions in Part II identify and examine disability provisions in EU legislation, and trace ‘disability patterns’ in selected strands of legislation. They also discuss future perspectives and put forward novel solutions, designed to address – in a manner that is compliant with the CRPD – the gaps that exist in EU law with regard to protection of the rights of persons with disabilities. Part II commences with a contribution – Chapter 8, co-authored by Broderick and Watson – on the most traditional field of disability action, that of non-discrimination and equality law. It examines the extent to which the current EU legal framework effectively protects persons with disabilities and discusses the most relevant CJEU jurisprudence in that regard. In Chapter 9, Vanhegen and Hendrickx investigate the extent to which disability rights are protected in EU labour law, beyond non-discrimination. The chapter considers the most recent developments with regard to ensuring active inclusion and full participation of disabled people in the labour market, and critically examines the contribution of the European Pillar of Social Rights (EPSR) in that connection. Van der Mei complements that analysis by focusing on social security regulations and the portability of disability benefits across the EU in Chapter 10. In Chapter 11, Varney and Pearson address the multifaced provisions protecting the right of people with disabilities to access and use different means of transport. That chapter also reflects on the centrality of transport to realizing the full enjoyment of human rights for persons with disabilities. In Chapter 12, Sganga provides a diachronic analysis of the regulatory solutions adopted by the EU legislator from 2001 to date, to ensure access to copyrighted works to people with disabilities. While discussing the limits and the strengths of Article 5(3)(b) of the InfoSoc Directive (2001/29/EC)35 and its national implementation, Chapter 12 also provides a timely account of the Directive and Regulation implementing the Marrakesh Treaty,36 enacted in 2018.37 Chapter 13, authored by Charitakis, discusses the accessibility of goods

35 Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society [2001] OJ L167/10. 36 Directive (EU) 2017/1564 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2017] OJ L242/6; Regulation (EU) 2017/1563 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled [2017] OJ L242/1. 37 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, VIP/DC/8 REV (2013).

10  Research handbook on EU disability law and services more generally, with a focus on the European Accessibility Act.38 In Chapter 14, Hosking discusses EU standardization policy as a key instrument in the pursuit of accessibility in the EU. Chapter 15, written by Bovis, analyses the extent to which EU public procurement law encompasses disability concerns and promotes the rights of persons with disabilities. In Chapter 16, Piernas López examines the way in which EU law affects (and regulates) public services aimed at persons with disabilities. That chapter looks at Article 106 TFEU and its implementation, in order to foster an understanding of the role of the EU in that regard. Chapter 17, co-authored by Ferri and Piernas López, analyses whether the Commission, in exercising State aid control, has streamlined national funding towards the implementation of the CRPD, focusing on the derogations contained in Articles 107(2) and 107(3) TFEU, and on the Commission Regulation (EU) 651/2014 – better known as the General Block Exemption Regulation (GBER).39 Chapter 18, authored by McEvoy, discusses Structural and Investment Funds, and focuses on the extent to which disability considerations have been mainstreamed into relevant EU legislation. Chapter 19, written by Casarosa, examines the protection of the rights of disabled consumers, and discusses the most recent developments in the field. In Chapter 20, Conte discusses the rights of asylum seekers with disabilities, reflecting on the ongoing reform of EU asylum legislation. Part III of the Research Handbook includes miscellaneous contributions that examine relevant developments in EU external relations and other developments that have taken place beyond the boundaries of the EU. Chapter 21, authored by Van den Sanden, addresses disability in EU development cooperation, while Chapter 22, written by Faccio, discusses the extent to which trade agreements concluded by the EU with third countries incorporate disability rights. Chapters 23 and 24, authored by Favalli and Palmisano respectively, look beyond the EU to discuss the ECHR and the European Social Charter (ESC). Those chapters address, in particular, the direct or indirect influence that the Council of Europe’s system of human rights protection is having on the EU, as well as the more limited influence that EU law has had on that system. In those chapters, the authors also delineate, more generally, the interplay between the ECHR, the ESC and EU law. Finally, Broderick and Ferri close this edited collection with a brief reflection on the trends and patterns in current EU disability law, and highlight likely future developments in the way in which the EU protects and promotes the rights of persons with disabilities.

38 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. 39 Commission Regulation (EU) No 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty [2014] OJ L187/1.

PART I THE HISTORY OF EU DISABILITY LAW, ITS SCOPE AND INSTITUTIONAL ASPECTS

2. The EU disability strategy and the future of EU disability policy Charles O’Mahony and Shivaun Quinlivan

1. INTRODUCTION This chapter considers the emergence of disability rights, and its evolution from an obscure area of policy-making within the European Union (EU) to an area that is now placed firmly on the EU policy-making agenda. This chapter considers the development of EU disability policy from the 1970s, charting the evolution of policy that was rooted in the charity and medical models of disability towards a human rights-based approach.1 In section 2, this chapter critically considers the different iterations of EU Disability Strategies before the adoption by the EU of the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention), including the European Community (EC) action programmes 1974–1996,2 the Equality of Opportunity for People with Disabilities: A New European Community Disability Strategy (1996)3 and the EU Disability Action Plan 2003–2010.4 In section 3, the relevance of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive)5 and the Charter of Fundamental Rights of the EU (CFR or Charter)6 are considered as they relate to disability. In section 4, the rights-based approaches to disability policy and the EU’s ratification of the CRPD are examined. That section then analyses the European Disability Strategy 2010–2020 (EDS 2010–2020)7 and considers how the UN Convention will shape the next EU disability strategy and impact upon EU disability policy. Section 5 sets out concluding remarks.

See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. Council Resolution establishing the initial Community Action Programme for the vocational rehabilitation of handicapped persons [1974] OJ C80/30. See also First Community Action Programme on the Social Integration of the Handicapped People 1983–1988 [1981] OJ C347/1. 3 Commission, ‘Equality of Opportunity for People with Disabilities: A New Community Disability Strategy’ COM (96) 406 final. 4 Commission, ‘Equality Opportunities for People with Disabilities: A European Action Plan’ COM (2003) 650 final. 5 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 6 Charter of Fundamental Rights of the European Union [2000] OJ C364/1. See infra Delia Ferri, ‘Disability in the EU Charter of Fundamental Rights’, in this volume. 7 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 1 2

12

The EU disability strategy and the future of EU disability policy  13

2.

THE ORIGINS OF EU DISABILITY POLICY

The EU needs a legal basis in order to act in a particular area. The Rome Treaty (1957), the Single European Act (SEA) and the Maastricht Treaty (1993) did not contain any reference to disability as an area of competence. It was not until the Treaty of Amsterdam (1997) that a first, explicit reference to disability was included in the constitutional law of what we now know as the EU.8 Under a set of circumstances where disability was invisible, the Community institutions were limited in what they could do to develop and advance disability policy. Therefore, the action that the institutions initiated prior to the Treaty of Amsterdam can be characterized as soft law in nature – mainly non-binding action programmes that essentially facilitated the exchange and dissemination of information. The one legislative proposal that was advanced relating to the safe transport to work of persons with disabilities was not adopted.9 2.1

The European Community Action Programmes 1974–1996

From the early 1970s to the mid-1990s, the Community Action Programmes were the ‘mainstay of European Community disability policy’.10 These programmes were the main policy activity in this period, which reflected the limited legal competency for Community action in the area of disability.11 In total, the former EC developed four rolling action programmes focused on disability between 1974 and 1996. As mentioned above, the modus operandi of these programmes was to facilitate exchange and dissemination of information. The HELIOS (Handicapped People in the European Community Living Independently) action programmes were very much rooted in the charity model of disability, seeking to ‘help’ persons with disabilities to integrate into society and the labour market and to live independently. HELIOS I ran from 1988 to 1992,12 and HELIOS II ran from 1993 to 1996.13 The main objective of the HELIOS programmes was to continue the development of coordination and cooperation with Member States undertaken under the auspices of the first action programme,14 which was concluded by the end of 1987. HELIOS I was the first EC attempt to develop a coherent overall policy on all questions relating to persons with disabilities. In the absence of EC competence in the area of disability, the HELIOS programmes provided a basis and framework for developing disability policy measures, including proposals for Community legislation, albeit limited in scope and approach. The focus of HELIOS I was on mobility for

8 Lisa Waddington, ‘From Rome to Nice in a Wheelchair: The Development of a European Disability Policy’ (Europa Law Publishing 2006) 3–4 https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​ _id​=​1026549 accessed 19 March 2020. 9 Commission, ‘Proposal for a Council Directive on minimum requirements to improve the mobility and the safe transport to work of workers with reduced mobility’ COM (90) 588 final. 10 Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8) 4. 11 Council Resolution establishing the initial Community Action Programme for the vocational rehabilitation of handicapped persons [1974] OJ C80/30. See also First Community Action Programme on the Social Integration of the Handicapped People 1983–1988 [1981] OJ C347/1. 12 HELIOS I Community Action Programme for Disabled People (1988–1991) [1988] OJ L104/38. 13 Council Decision 93/136/ EEC on HELIOS II Community Action Programme to Assist Disabled People (1993–1996) [1993] OJ L56/30. 14 Council Resolution establishing the initial Community Action Programme for the vocational rehabilitation of handicapped persons (n 11).

14  Research handbook on EU disability law persons with disabilities, access to public buildings, integration into mainstream schools and the impact of new technologies on persons with disabilities. The HELIOS initiatives sought to maximize work on disability that was carried out at both the local and national levels, by stepping up technical cooperation and improving coordination, increasing exchanges of experience between Member States, promoting innovation and providing better information for interested parties on projects that were considered good practice. Of particular note in these early disability policy approaches was the recognition of the need to directly involve persons with disabilities in the preparation of decisions on specific measures to be taken by the EC.15 This also involved consultation with disabled persons’ families, industry and government experts. Public awareness-raising activities on disability were another key initiative in this period. The early action programmes from the 1970s and 1980s established European networks that explored themes around employment, vocational training and a network for rehabilitation centres. When the HELIOS II programme was coming to the end of its lifespan in the mid-1990s, it was decided not to renew the initiative. Waddington notes that it was not possible to reach agreement within the Council on its continuation, and indeed on the continuation of a number of other social action programmes.16 The lack of agreement stemmed from a changed political climate that was focused on the principle of mainstreaming.17 In the early 1980s, a Unit for the Integration of Persons with Disabilities was created within the structure of the Directorate General (DG) for Employment, Social Affairs and Equal Opportunities.18 The Unit was established in response to the UN International Year of Disabled Persons in 1981.19 The stated mission of this Unit was to promote equal opportunities for people with disabilities at the EC level. The role of the Unit evolved over time, to place a greater focus on the facilitation of cooperation between Member States in developing their disability policies. The Unit also endeavoured to ensure that the disability perspective was sufficiently taken into account in the European Commission’s internal affairs and in the formulation of relevant Community legislation, programmes and policies. The other key tenet of the Unit’s work was to take the lead on awareness-raising on disability throughout the EC by supporting non-governmental organizations, and through strategic activities, such as organization of the European Day of Disabled People.20 The priority areas of work for the Unit included the development of employment policy for disabled people and information sharing through harnessing all useful aspects of existing best practice, and developing information and communications technologies. The creation of this Unit was an important development in the history of European disability policy, as its creation placed disability more firmly on the European Commission’s agenda.

See generally Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8). Ibid 6. 17 Ibid. 18 Eilionóir Flynn, From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities (Cambridge University Press 2011) 63. 19 United Nations General Assembly, ‘International Year of Disabled Persons’, UN Doc. A/ RES/31/123 (1976). 20 Andreas Sturm, Anne Waldschmidt, Anemari Karačić and Timo Dins, ‘Exercising Influence at the European Level: Political Opportunity Structures for Disability Rights Advocacy and the Impact of the UN CRPD’ in Rune Halvorsen, Bjørn Hvinden, Jerome Bickenbach, Delia Ferri and Ana Marta Guillén Rodriguez (eds), The Changing Disability Policy System: Active Citizenship and Disability in Europe Volume 1 (Routledge 2017) 159–76, p. 162. 15 16

The EU disability strategy and the future of EU disability policy  15 2.2

Early European Community Policy Initiatives on Disability

A recommendation adopted by the EC in 1986 in the area of employment can be considered the first wide-ranging policy initiative on disability.21 A recommendation is a non-binding instrument that allows the institutions to make their views known on a particular topic and to suggest a line of action to Member States, without imposing any legal obligation to take action in the particular area. This 1986 Recommendation advised Member States that they ought to take action to promote the employment of persons with disabilities domestically. The Recommendation called on Member States to ‘take all appropriate measures to promote fair opportunities for disabled people in the field of employment and vocational training, including initial training and employment as well as rehabilitation and resettlement’.22 An annex to the Recommendation set out a ‘guideline framework for positive action to promote the employment and vocational training of disabled people’.23 While the Recommendation itself was drafted in a relatively vague manner, the guideline framework was more detailed, setting out actions for Member States on issues such as job creation, sheltered employment, guidance, assessment, placement services, employers’ and workers’ organizations, and so on. While this was the first wide-ranging policy initiative in the area of disability, the Recommendation is regarded as having been unsuccessful.24 In particular, the Recommendation failed to deliver greater access to the labour market across the EC for persons with disabilities. This reflects the inherent weakness of recommendations as a regulatory tool, in that recommendations do not impose legal obligations upon Member States to take the suggested actions. This Recommendation on employment’s lack of traction subsequently encouraged the European Commission to propose a different regulatory approach to address the issue of disability in the context of transport, namely a directive. A directive, unlike a recommendation, is a binding legislative act that sets out a goal that all EC Member States must achieve. However, it is up to the individual Member States to devise their own laws on how to achieve the stated goals. Therefore, in 1991, the Commission brought forward a Directive on minimum requirements to improve the mobility and the safe transport to work of workers with reduced mobility.25 The legal basis for the proposal was Article 118a of the Treaty Establishing the European Community (TEC). Article 118a TEC was not disability-specific; rather, it essentially required Member States to pay particular attention to encouraging improvements, especially in the working environment, and with regard to the health and safety of workers. Therefore, the scope of the proposed directive was broad, including public transport, transport provision by employers and transport services for persons with disabilities. In the early 1990s, the Commission considered that it did not have a sufficient legal basis on which to propose a directive seeking to make transport accessible for persons with disabilities. As such, it was considered more expeditious to propose a directive promoting employees’ health and safety. The stated objective of the proposed directive was to promote health and safety in the provi-

21 Council Recommendation 86/379/EEC on the employment of disabled people in the Community [1986] OJ L225/43. 22 Ibid 43. 23 Ibid 46. 24 Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8) 9. 25 Commission, ‘Proposal for a Council Directive on minimum requirements to improve the mobility and the safe transport to work of workers with reduced mobility’ (n 9).

16  Research handbook on EU disability law sion of transport. The proposed directive clearly articulated a preference for public transport, the rationale being that if public transport was accessible for workers with disabilities, it would also be accessible for all.26 Despite the creative approach to taking action in this area, there was insufficient support for the proposal from EU Member States. The Council considered that the health and safety justification for the Directive based on Article 118a TEC was an insufficient justification for legislative action, and the proposed Directive died. Waddington concludes that while many of the disability-specific initiatives developed by the European Commission up until the 1990s were important, ‘their overall impact was minimal’.27 The most obvious reason for this conclusion was the hesitancy of Member States to agree to obligations that would be binding in nature. 2.3

The Evolution of European Community Disability Policy

Until the mid-1990s, the Community’s approach to disability policy was informed by the medical model of disability.28 The medical model assumes that any reduction in quality of life, or ability to participate in society, is as a result of a medical condition intrinsic to the individual. Therefore, the focus of the medical model is on medical solutions, such as health care, sheltered employment and related services. The focus under this model is on addressing the functionality of the individual, to allow them to live a more ‘normal’ life – in other words, the medical model presumes that all the failings are with the individual.29 Degener highlights that this has resulted in a number of assumptions, for example that people with disabilities need to be minded and protected, or are not capable or able.30 These assumptions have led to the development of segregated, or separate, laws and social policies, such as mental health and guardianship laws, the development of special schools, special employment and segregation in institutions. The medical model informed the development of law and policy in relation to persons with disabilities for many generations, including the Community’s early initiatives on disability.31 In contrast, the social model of disability ‘focuses on how society and societal constraints and barriers seek to limit or inhibit full participation by, and inclusion of persons with disabilities in society’.32 Those barriers to inclusion could be legal, physical or attitudinal, but they all serve to exclude an individual with a disability. This model differentiates between ‘impairment’ and ‘disability’: impairment relates to a condition, whether it is physical, mental or sensory; disability, on the other hand, is the consequence of a discriminatory response by society to that impairment. From the mid-1990s, an awareness of the social model of disability began to appear in some of the policy documents developed by the Commission. For example, a Communication of the Commission on Equality of Opportunity for People with Disabilities in 1996 placed an emphasis on identifying and removing the barriers to equal opportunities Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8) 10. Ibid 13. 28 Ibid 16. See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 29 See generally Shivaun Quinlivan, ‘The United Nations Convention on the Rights of Persons with Disabilities: An Introduction’ (2012) 13(1) ERA Forum 71. 30 See generally Theresia Degener, ‘Disability in a Human Rights Context’ (2016) 5(3) Laws 35, p. 37. 31 See generally Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8). 32 Quinlivan, ‘The United Nations Convention on the Rights of Persons with Disabilities: An Introduction’ (n 29) 74. 26 27

The EU disability strategy and the future of EU disability policy  17 and full participation in all aspects of life for persons with disabilities.33 The Commission acknowledged how the charity model approach ‘compounded the problem of exclusion and under-participation’.34 The Commission advocated for a rights-based approach to disability and placed an emphasis on the principle of mainstreaming.35 This Communication by the Commission and the Council is a milestone in the development of disability policy. The principle of the social model of disability was clearly embraced and informed the European Community’s first strategy on disability and subsequent policies and strategies. Waddington has identified that one of the major failings in the development of Community disability policy was the exclusion of persons with disabilities.36 For example, she highlights that members of networks established under disability initiatives were occasionally encouraged not to send disabled delegates on study visits and to meetings, as these initiatives were ‘targeted at professionals’ and some events were held in inaccessible buildings.37 This led to the realization that persons with disabilities were central to the development of disability policy, and priority was placed on inclusion in the different initiatives under the HELIOS action programmes. In particular, HELIOS II developed a sophisticated consultation system.38 2.4

The European Community Disability Strategy 1996 and the European Disability Action Plan 2003–2010

The Communication of the Commission on Equality of Opportunity for People with Disabilities: A New European Community Disability Strategy, from 1996, was the first Community disability strategy. The Communication was heavily influenced by the UN Standard Rules on the Equalization of Opportunities for People with Disability (Rules).39 That instrument, adopted in 1993, was one of the major outcomes of the UN Decade of Disabled Persons 1983–1992. The Rules were not a legally binding instrument; rather, they represented a strong moral and political commitment of governments to take action to attain equalization of opportunities for persons with disabilities. The Rules served as an instrument to inform policy-making and as a basis for technical and economic cooperation, and, importantly, they adopted a human rights perspective on disability. The Commission’s Communication was subsequently recognized in a Resolution of the Council of Ministers in December 1996.40 This Resolution asked Member States to consider if their relevant national policies sufficiently empowered persons with disabilities to participate in society, mainstreamed the disability perspective into all relevant sectors of policy formulation, enabled people with disabilities to participate fully in society by removing barriers and nurtured public opinion to be receptive to

33 Commission, ‘Equality of Opportunity for People with Disabilities: A New European Community Disability Strategy 30 July 1996’ COM (96) 406 final, p. 7. 34 Ibid. 35 Ibid 8. 36 Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8) 21. 37 Ibid. 38 Ibid. 39 United Nations General Assembly, ‘Standard Rules on the Equalization of Opportunities for Persons with Disabilities’, UN Doc. A/RES/48/96 (1994). 40 Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 20 December 1996 on equality of opportunity for people with disabilities [1997] OJ C12/1.

18  Research handbook on EU disability law the abilities of people with disabilities and towards strategies based on equal opportunities.41 The 1996 Strategy was an important development in this history of disability policy at the EU level. The Strategy was explicitly based on the equality of opportunities model,42 and was also important in setting the scene and guiding the development of subsequent strategies and initiatives. The 1996 Strategy placed the primary responsibility for action in the area of disability in the hands of individual Member States. While the Strategy highlighted the importance of including persons with disabilities in the labour market, it was significant that it also acknowledged the need for awareness-raising, to challenge attitudinal barriers that excluded persons with disabilities from participating throughout the Member States. While the 1996 Strategy recognized the central role required of Member States, it also recognized the EU’s role in cultivating co-operation amongst Member States in the development of effective disability policy initiatives.43 An important part of the 1996 Strategy was the decision of the European Commission to establish a High Level Group of Member States’ Representatives on Disability, which provided a forum for the Commission and ministries with responsibility for disability across the EU to identify what the key priorities for disability policy should be. This High Level Group also played an important role in identifying good disability policies and facilitating cooperation among Member States. Another noteworthy aspect of the 1996 Strategy was that it acknowledged the importance of the perspective of persons with disabilities in the development and implementation of the Strategy. The next phase of European disability policy emerged in 2003, when the Commission adopted a new Action Plan that set out what the Commission saw as a sustainable and operational approach to disability issues in the enlarged EU.44 The plan had three central objectives: first, to implement in full the Employment Equality Directive (which will be discussed below);45 second, to reinforce mainstreaming of disability issues in relevant policies; and third, to improve accessibility for all. A decision of the Council made 2003 the European Year of People with Disabilities. This coincided with the launch of the European Disability Action Plan 2003–2010, which consisted of action plans that spanned two-year cycles: 2004–2005, 2006–2007 and 2008–2009. These rolling action plans on disability were closely linked to the Action Plan for Social Inclusion,46 which was proactive in requiring Member States to develop national action plans on social inclusion. These plans were broad and required reporting on progress in the area of integration of persons with disabilities at the domestic level. The expansion in the scope of EU action in the area of disability is evident from these disability action plans. At the beginning, the focus of the Action Plans was on employment.47 However, as EU social policy developed throughout the 2000s, the scope of the action plans also expanded. The Action Plans 2006–2008 and 2008–2009 engaged with broader issues than employment, such as the promotion of independent living, encouraging economic activity, quality support and Ibid. Gerard Quinn and Lisa Waddington (eds), European Yearbook of Disability Law (Intersentia 2009) 159. 43 Ibid. 44 Commission, ‘Equality Opportunities for People with Disabilities: A European Action Plan’ COM (2003) 650 final. 45 See section 3 below. 46 See Flynn, From Rhetoric to Action (n 18) 65. 47 Commission, ‘Equality Opportunities for People with Disabilities: A European Action Plan’ COM (2003) 650 final. 41 42

The EU disability strategy and the future of EU disability policy  19 care services and accessibility of mainstream goods and services. The final Disability Action Plan 2008–2009 coincided with the finalization of the negotiations leading to the ratification of the CRPD by the EU.48 That final Disability Action Plan called on the Commission to prepare a new disability strategy and identified the measures necessary for the EU to accede to the CRPD, which will be discussed later.49

3.

LEGISLATIVE DEVELOPMENTS IN EU DISABILITY POLICY

Following the analysis of policy developments above, this section analyses the relevant legislative developments that have taken place since 2000. 3.1

The Employment Equality Directive

It is noteworthy that EU law and policy in the area of disability has been influenced by the civil rights approach adopted in the United States. It has been suggested that the advocacy directed towards expanding the European Commission’s competence in promoting equality was directly influenced by US legal developments in the 1990s, in particular the implementation of the Americans with Disabilities Act 1990.50 Therefore, the adoption of the Employment Equality Directive in 2000 was a major milestone for the development of EC disability policy. As mentioned above, the original EC Treaty contained limited non-discrimination provisions. These provisions were primarily designed to protect nationals of one Member State against discrimination in another Member State, and to guarantee equal pay for equal work for women. There was no general prohibition under Community law that prohibited discrimination (direct or indirect) based on characteristics such as age, sexual orientation or disability.51 The limited legal basis for European Commission action in the area of disability led Disabled Persons’ Organizations (DPOs) to campaign in the lead-up to the Treaty of Amsterdam for an extensive range of Treaty changes. In 1997 the Amsterdam Treaty, in Article 13, provided a new legal basis for Community competence in the area of non-discrimination. Article 13 EC (now Article 19 of the Treaty on the Functioning of the European Union – TFEU) provides: 48 Gráinne de Búrca, ‘The European Union in the Negotiation of the UN Disability Convention’ (2010) 35 European Law Review 174. 49 Resolution of the Council of the European Union and the representatives of the Governments of the Member States meeting within the Council of 17 March 2008 on the situation of persons with disabilities in the European Union [2008] OJ C75/1. See section 4 below. 50 Gerard Quinn and Eilionóir Flynn, ‘Transatlantic Borrowings: The Past and Future of EU Non-discrimination Law and Policy on the Ground of Disability’ (2012) 60(1) The American Journal of Comparative Law 47. 51 Gerard Quinn and Shivaun Quinlivan, ‘Disability Discrimination: The Need to Amend the Employment Equality Act 1998 in light of the EU Framework Directive on Employment’ in Cathryn Costello and Eilis Barry (eds), Equality in Diversity: The New Equality Directives (Irish Centre for European Law 2003) 213–42; see also Richard Whittle, ‘The Framework Directive for Equal Treatment in Employment and Occupation: An Analysis from a Disability Rights Perspective’ (2002) 27(3) European Law Review 303; see further Lisa Waddington and Anna Lawson, Disability and Non-discrimination Law in the European Union: An Analysis of Disability Discrimination Law Within and Beyond the Employment Field (European Commission 2010).

20  Research handbook on EU disability law [w]ithout prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

The importance of the Treaty of Amsterdam from a disability policy perspective is significant. As noted above, in this Treaty, for the first time, the EC included a specific reference to disability. The Commission, on receiving this new legal competence, acted with speed and proposed new non-discrimination measures, which received the necessary unanimity from the European Council in 2000. The most important of these measures from a disability perspective was the Employment Equality Directive, which prohibits discrimination in employment and occupation on several grounds, including religion or belief, disability, age or sexual orientation.52 The introduction of the Employment Equality Directive was a significant breakthrough in the development of disability policy at the EU level. Not only does the Directive prohibit discrimination in the context of employment; it also requires reasonable accommodation. The scope of the Directive is set out in Article 3 – it applies to both public and private sector employees, to pre-employment practices, to employment conditions, through to dismissals. Vocational training, self-employment and membership of organizations of workers or employers, or members of a particular profession, come within the parameters of the Directive. The scope is comprehensive in that it attempts to cover all aspects of working life, from application through to dismissal. The introduction of the Directive was very positive; however, some of the interpretations of its provisions were less so. The Directive failed to define disability, and as a result it fell to the Court of Justice of the EU (CJEU) to provide such a definition.53 This happened in the case of Chacón Navas v Eurest Colectividades SA,54 where the CJEU was asked to consider the parameters of the definition of disability for the purposes of the Directive. The applicant in this case challenged her dismissal as discriminatory as she had been on a leave of absence and temporarily unfit for work for eight months. The Spanish Court asked the CJEU for its view on the relationship between sickness and disability, and whether sickness was a disability for the purposes of the Directive. The Advocate General (AG) in the case argued for a restrained interpretation of the concept of ‘disability’ and raised concerns due to potentially negative economic consequences that might arise from claims by disabled persons.55 He argued that it was desirable that a uniform interpretation of the concept of ‘disability’ be developed in the EC.56 He did acknowledge the existence of the social model of disability, but adopted a medical model approach, defining ‘disability’ as a concept that extends protection to persons ‘with serious functional limitations (disabilities) due to physical, psychological or mental

52 See infra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 53 For a thorough analysis of the definition of disability and the case law of the Court of Justice of the European Union under the Employment Equality Directive, see infra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 54 Case C-13/05 Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456. 55 Ibid paras 47–51. 56 Ibid para 6.

The EU disability strategy and the future of EU disability policy  21 afflictions’.57 The Grand Chamber of the CJEU in its judgment followed the decision of the AG in July 2006. The Court held that the concept of ‘disability’ must be understood to refer to a ‘limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life’,58 and that by using the concept of ‘disability’ in Article 1 of the Employment Equality Directive, the legislature deliberately chose a term which differs from sickness. Therefore, the court stated that the two concepts could not be treated in the same manner.59 While in certain cases the two concepts may overlap, not every sickness could qualify as a disability under the Directive. The CJEU also stated that ‘[i]n order for the limitation to fall within the concept of “disability”, it must therefore be probable that it will last for a long time’.60 The judgment of the CJEU and the opinion of the AG are open to criticism on a number of grounds. The primary difficulty with the reasoning adopted by the CJEU is its determination that disability for the purposes of the Directive encompasses only narrow medically based limitations of a long-term nature.61 It has been argued that labelling the applicant as ‘sick’ excluded her from also being labelled as ‘disabled’,62 thereby narrowing the scope of the Directive. By narrowing those eligible to be considered disabled, the CJEU effectively devised a definition of disability that significantly restricted protection for employees under the Directive. It was also concerning that the CJEU provided no consideration of the social model of disability, and instead appeared to adopt the medical model of disability, which was at odds with the corpus of European disability policy. While this decision was unfortunate, it is of note that a second decision of the CJEU that related to disability, Coleman,63 took an admirably progressive and expansive approach to the protection provided under the ground of disability. One of the criticisms of EU non-discrimination legislation is that there is greater legislative protection against discrimination on the grounds of race or ethnic origin than there is protection from discrimination on the grounds of religion, belief, disability, age or sexual orientation.64 Despite some of the criticisms of the interpretation of the Employment Equality Directive, the Directive nonetheless places an obligation on Member States to provide reasonable accommodation (Article 5) and permits the maintenance or introduction of positive action in the area of disability in the employment context (Article 7). Since the Employment Equality Directive was adopted in 2000, the institutions of the EU have initiated a range of actions that have sought to develop disability policy. The Community’s commitment to main57 Opinion of Advocate General Geelhoed, delivered on 16 March 2006, Case C-13/05 Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456, para 76. 58 Case C-13/05 Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456, para 43. 59 Ibid para 44. 60 Ibid para 45. 61 Lisa Waddington and Anna Lawson argue that the adoption of the medical model of disability is questionable in light of the recognition by the EU Parliament and the EU Commission in a number of documents and communications of the social model of disability. See Waddington and Lawson, Disability and Non-discrimination Law in the European Union (n 51) 16. 62 David Hosking, ‘A High Bar for EU Disability Rights’ (2007) 36(2) Industrial Law Journal 228, pp. 232–33. 63 Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. 64 See European Union Agency for Fundamental Rights (FRA), ‘Opinion on the Situation of Equality in the European Union 10 Years on from Initial Implementation of the Equality Directives’ (1 October 2013), p.  36 https://​fra​.europa​.eu/​en/​publication/​2013/​fra​-opinion​-situation​-equality​-european​-union​-10​ -years​-initial​-implementation accessed 1 February 2020.

22  Research handbook on EU disability law streaming disability, as articulated in a Communication from 1996, has since been embedded in other official policy documents.65 Indeed, the Treaty of Amsterdam itself, in Declaration 22, requires the EU institutions to take account of the needs of disabled persons when adopting internal market legislation.66 Since the Lisbon Council in 2000, there has been an increased focus on social policy.67 As will be discussed in the next sub-section of this chapter, the CFR has strengthened the impetus for developing a rights-based approach to disability, which has been consolidated by the ratification by the EU of the CRPD, discussed in section 4 below. 3.2

The Charter of Fundamental Rights of the European Union

The CFR became legally binding with the entry into force of the Treaty of Lisbon in December 2009. As is evident from this chapter, disability rights have developed over time, in different forms and through different legal instruments. The Charter addresses rights under six titles: dignity, freedom, equality, solidarity, citizen’s rights and justice. To reflect the contemporary changes in society, the Charter also includes rights such as the right to data protection, guarantees on bioethics and transparent administration. In the context of disability there are two rights that specifically mention disability: both are contained in Title III addressing equality. Article 21 addresses non-discrimination and provides: [a]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Within the same Title, Article 26 addresses the integration of persons with disabilities and provides: [t]he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

While the scope of both Articles is broad, it is important to note that the terms of the Charter are addressed to the institutions and bodies of the EU and to national authorities when those authorities are implementing EU law. The Charter was not intended to extend the scope of EU competences to matters not part of its existing remit. The European Commission has adopted a Strategy for the effective implementation of the CFR.68 However, the Charter does not establish a general power for the European Commission to intervene in the area of fundamental rights. It may only intervene when EU law comes into focus.69 The Strategy therefore includes the objective of ensuring that the rights and principles of the Charter are appropriately addressed and considered at every step of the legislative process. The Charter operates more as a guide for future legislative developments,

Waddington, ‘From Rome to Nice in a Wheelchair’ (n 8) 38. Under former Article 95 EC (now Article 114 TFEU). 67 Mary Daly, ‘EU Social Policy after Lisbon’ (2006) 44(3) Journal of Common Market Studies 46. 68 Commission, ‘Strategy for the Effective Implementation of the Charter of Fundamental Rights by the European Union’ COM (2010) 573 final. 69 See infra Delia Ferri, ‘Disability in the EU Charter of Fundamental Rights’, in this volume. 65 66

The EU disability strategy and the future of EU disability policy  23 ensuring that human rights are considered throughout that process. It is, in effect, a sort of future-proofing of EU legislation. At the national level, there is some evidence that national courts are referring to the Charter; however, it is evident that the Charter is not used to its full potential, and that awareness of it remains low.70

4.

THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES, THE EUROPEAN DISABILITY STRATEGY 2010–2020 AND THE FUTURE OF EU DISABILITY POLICY

4.1

The Ratification of the CRPD by the EU

The single most important development in European disability policy has been the EU’s ratification of the CRPD, which was given effect by Council Decision 2010/48/EC.71 For the EU, the CRPD entered into force in January 2011. It is of note that, as of 2018, all EU Member States have signed and ratified the CRPD. The UN Convention is the first international, legally binding human rights convention to which the EU has become a party. The main elements of the UN Convention are reflected in the EDS 2010–2020, which is discussed below.72 As Lawson has noted, the EU’s ratification of the CRPD ‘raises interesting and sometimes perplexing questions about the nature and extent of the commitments involved and about the challenges and opportunities associated with their implementation’.73 The CRPD is a ‘mixed agreement’.74 Mixed agreements are signed and concluded by the EU and a third party. The reason it is a mixed agreement is because part of the scope of the CRPD falls within the ambit of EU powers and part falls within the ambit of the competences of the Member States. Joint participation is necessary, as neither the Member States nor the EU can fully exert the powers of a Party to the agreement. That stated, a mixed agreement that is concluded by the EU, its Member States and a Third Party has the ‘same status in the [EU] legal order as purely [EU]

70 Commission, ‘Special Eurobarometer 487b – Summary: Awareness of the Charter of Fundamental Rights of the European Union’ (June 2019) http://​ec​.europa​.eu/​commfrontoffice/​publicopinion/​index​ .cfm/​ResultDoc/​download/​DocumentKy/​86864 accessed 1 February 2020. 71 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35 enumerated the legal capacity to sign the UN Convention. It should be noted that EU competence to act is not static and may change over time. 72 Annex II to Council Decision 2010/48/EC listed the EU acts and matters that are governed by the CRPD. 73 Anna Lawson, ‘The European Union and the Convention on the Rights of Persons with Disabilities: Complexities, Challenges and Opportunities’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 61–76, p. 61. See also Lisa Waddington, ‘The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A Story of Exclusive and Shared Competences’ (2001) 18(4) Maastricht Journal of European and Comparative Law 431. 74 See infra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume.

24  Research handbook on EU disability law agreements in so far as the provisions fall within the scope of [EU] competence’.75 A Code of Conduct between the European Council, the Member States and the European Commission establishes the internal arrangements for the implementation by, and representation of, the EU relating to the CRPD.76 The aim of this Code of Conduct is to clarify the arrangements between the relevant parties on cooperation on various aspects of the implementation of the CRPD. The impact of the EU ratifying the CRPD is that the UN Convention is binding on the EU institutions as well as on its Member States. In practice, this means that the CRPD is now an integral part of EU law and will be the significant driver of disability policy initiatives at the EU level. The CRPD is considered lower in status in the hierarchy of EU law than the provisions of the TFEU, but of a higher status than secondary EU law, such as directives. This is perhaps best evidenced in the decisions of the CJEU on the Employment Equality Directive. For example, in the HK Danmark case, the CJEU again addressed the issue of the definition of disability in the Employment Equality Directive, post-ratification, by the EU, of the CRPD. The CJEU held that the CRPD was an integral part of the EU legal order and that: [t]he primacy of international agreements concluded by the European Union over instruments of secondary law means that those instruments must as far as possible be interpreted in a manner that is consistent with those agreements.77

The CJEU then went on to interpret the term ‘disability’ in the Employment Equality Directive to reflect Article 1 of the CRPD. The CJEU held that the term ‘disability’ includes illness if: that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers and the limitation is a long term one.78

The CJEU has reiterated this position of the CRPD vis-à-vis secondary legislation in a number of cases. The impact of this is that all relevant secondary legislation must be interpreted in light of that Convention.79 It is evident from those cases that the provisions of the CRPD will significantly influence future interpretations of the Employment Equality Directive.

75 Case C-12/86 Demirel EU:​C:​1987:​400, para 9; and Case C-13/00 Commission v Ireland EU:​C:​ 2002:​184, para 14. 76 Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ C340/11. 77 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222, para 29. 78 Ibid para 93. 79 See Case C-354/13 Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft, v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (Kaltoft) EU:​C:​2014:​2463; Case C-363/12 Z. v A Government department, The Board of management of a community school EU:​C:​ 2014:​159; Case C-395/15 Daouidi v Bootes Plus SL EU:​C:​2016:​917; and Case C-406/15 Milkova v Izpalnitelen director na Agentsiata za privatizatsia I sledprivatizatsionen control EU:​C:​2017:​198.

The EU disability strategy and the future of EU disability policy  25 In addition to the impact of the CRPD on case law, the EU must also report periodically to the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) about the measures taken to implement the Convention. The EU reported to the CRPD Committee in 2015, and is due to report again in January 2021. The Concluding Observations of the CRPD Committee on the first report of the EU raised a number of concerns and courses of action that the EU should undertake in order to comply with the UN Convention. The Committee made a number of recommendations, including that the EU extend the principle of equal treatment to all areas of EU competence,80 introduce a European Accessibility Act,81 and ensure that the European Structural and Investment Funds are not used to build new institutions that segregate people with disabilities.82 The impact of ratification of the CRPD by the EU is clear when we consider the case law of the CJEU, but it is equally evident that the EU responded to the Concluding Observations on its initial report. This is evident in the EDS 2010–2020, which proposed an Accessibility Act, among other initiatives. Therefore it is evident that EU action in the area of disability rights has evolved from narrow, weak, soft and technical cooperation to more robust proactive and ambitious action in the area of disability. 4.2

The European Disability Strategy 2010–2020

The Commission adopted the EDS 2010–2020, which establishes objectives and actions necessary to ensure the implementation of disability policy, including the CRPD, at the EU level. The EU, in its reporting to the CRPD Committee, stated that the EDS effectively sets out its disability policy.83 The EDS aims to promote a barrier-free Europe and to empower people with disabilities in order to ensure that they can participate fully in European society. The EDS focuses on the elimination of barriers in eight main areas: accessibility, participation, equality, employment, education and training, social protection, health and external action. It is important to note that these areas of action were decided upon following extensive consultation with stakeholders. It is clear to see the influence of the CFR on some of these areas, for example, the focus on participation sought to ensure that persons with disabilities enjoy all the benefits of EU citizenship and the removal of barriers to their participation in public life, leisure activities and other spheres of society. It therefore addressed the goal of integration and participation by people with disabilities. Equally, Article 21 CFR is reflected in the EDS when the EDS provides that the goal of equality includes the necessity to combat discrimination based on disability and the necessity to promote equal opportunities. It is noteworthy that while the EDS is primarily concerned with actions at the EU level, throughout the document there are numerous references to the intention that these actions will complement and reinforce actions taking place at the domestic level by Member States of the EU.

80 Committee on the Rights of Persons with Disabilities (CRPD Committee), Concluding Observations on the Initial Report of the European Union, UN Doc. CRPD/C/EU/1 (2015), para 19. 81 Ibid para 29. 82 Ibid para 23. 83 Ibid para 18.

26  Research handbook on EU disability law The EDS has resulted in a number of initiatives that include a proposal for a European Accessibility Act, which was eventually adopted in March 2019.84 In addition, other initiatives include a Directive on Web Accessibility,85 and the Erasmus+ Programme.86 As this EDS draws to a close, the European Commission is currently evaluating its implementation through consultations collating feedback from EU citizens and stakeholders.87 This evaluation will assess the effectiveness of the EDS in the implementation of the UN Convention for persons with disabilities at the EU level. This evaluation, drawing from the available evidence, should inform the future of EU disability policy after 2020. The EDS built upon earlier disability action plans developed by the European Commission, which were discussed above in section 2. The EDS, however, can be regarded as being more ambitious than its predecessors. The commitment in the EDS to take actions at EU level was reinforced by commitments to provide what are described as cross-cutting supports, through initiatives such as awareness-raising, financial support through EU funds, and collecting statistics and monitoring. However, the EDS came under intense scrutiny in the CRPD Committee’s examination of the EU’s implementation of the CRPD. The European Disability Forum (EDF) was highly critical of the EU’s approach to the implementation of its obligations under the CRPD. In its alternative report to the Committee, it highlighted as its number one concern that the ‘EU does not have a specific strategy aimed at the overall implementation of the UN CRPD by all EU institutions’.88 EDF was critical of the limited scope of the EDS and pointed to the lack of funding allocated for its implementation. The lack of funding, it suggested, hampered the EU in reaching its targets on employment, social inclusion and poverty reduction for persons with disabilities. EDF recommended the development of a European Disability Pact, to be included in the Europe 2020 Strategy as a horizontal flagship,89 calling for the employment, social inclusion and poverty reduction of persons with disabilities, underpinned by a sufficient financial allocation.90 Lawson has suggested that these concerns reflect the criticism that the EDS was ‘limited because it is essentially a Commission strategy and not an EU strategy with high profile backing and cross-institution commitment’.91

84 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. On the European Accessibility Act, see infra Stelios Charitakis, ‘Accessibility of Goods and Services’, in this volume. 85 Directive (EU) 2016/2102 on the accessibility of the websites and mobile applications of public sector bodies [2016] OJ L327/1. On the Web Accessibility Directive, see infra Stelios Charitakis, ‘Accessibility of Goods and Services’, in this volume. 86 See https://​ec​.europa​.eu/​programmes/​erasmus​-plus/​node​_en accessed 20 March 2020. 87 Irmgard Anglmayer, ‘EU Implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD): European Implementation Assessment’ (European Parliamentary Research Service February 2016), p.  26 https://​www​.europarl​.europa​.eu/​RegData/​etudes/​IDAN/​2016/​536347/​ EPRS​_IDA(2016)536347​_EN​.pdf accessed 20 March 2020. 88 European Disability Forum (EDF), ‘Alternative Report on the Implementation of the Convention on the Rights of Persons with Disabilities’ (European Disability Forum 2015) https://​www​.dropbox​.com/​ s/​88lg96uknfgy8ps/​2015​%2003​%2004​%20EDF​%20Alternative​%20report​%20final​%20ACCESSIBLE​ .pdf​?dl​=​0 accessed 19 March 2020. 89 Commission, ‘Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth’ COM (2010) 2020. 90 Ibid. 91 Lawson, ‘The European Union and the Convention on the Rights of Persons with Disabilities: Complexities, Challenges and Opportunities’ (n 73) 73.

The EU disability strategy and the future of EU disability policy  27 At the time of writing, the European Commission is evaluating the EDS 2010–2020 through an open consultation process taking place through 2019 to 2020. This consultation exercise will evaluate and assess how successfully the EDS translated into effective policies, as well as how it contributed to the implementation of the CRPD at the EU level. Clearly, this will also feed into the EU’s decision-making on what will replace the EDS. DPOs such as EDF are advocating that the EU does not simply extend the EDS for the next decade, but rather that something much stronger, with more ambitious goals, be developed in order to implement the CRPD.92 It remains to be seen which direction will be adopted by the EU in the next chapter of EU disability policy development. However, it is clear that the next phase of EU disability policy is critical, as it will establish whether the EU will make real progress in implementing its obligations under the UN Convention.

5. CONCLUSION The initial scope of the Community action in the area of disability policy was narrow, reflecting the limited competences provided for in the Treaties. Therefore, the action programmes dating from the 1970s and 1980s were non-binding, soft law initiatives that focused principally on information exchange, dissemination and networking.93 These initiatives contrast starkly with current disability policy, which is broad and informed by a human rights-based approach to disability. The current Article 19 TFEU bestowed upon the European Commission the competence needed to address disability discrimination, enshrining in EU law an explicit reference to disability for the first time. The Commission and the Council’s commitment to the social model of disability, as articulated in 1996, was a milestone in the story of the evolution of European disability policy. This commitment to the social model of disability facilitated a greater role for disabled persons and DPOs in the development of subsequent disability policy. The then Community embraced the legal basis for action in the area of disability with the introduction of the Employment Equality Directive in 2000. The prohibition of disability discrimination and the requirement of reasonable accommodation were significant developments for employees with disabilities across the EU. Twenty years on, the Employment Equality Directive remains the major legislative achievement in respect of EU disability policy. The Directive had a significant impact upon the domestic legislation of the Member States of the EU. However, it is somewhat surprising that the Commission has not meaningfully built upon this Directive with other legislative measures that would have embedded non-discrimination beyond the limited scope of employment. The EU’s ratification of the UN Convention is without doubt the most important development in the history of EU disability policy. It should ensure that disability policy will remain a key priority for decades to come. The external scrutiny by the CRPD Committee of the EU’s actions in the area of disability should encourage a broader and more ambitious approach to disability policy. The CRPD creates significant challenges for the EU but also provides unprecedented opportunities

92 European Disability Forum (EDF), ‘The European Disability Rights Agenda 2020–2030: Following on from the Disability Strategy 2010–2020’ (European Disability Forum 2019) http://​www​ .edf​-feph​.org/​disability​-strategy​-europe​-2020 accessed 19 March 2020. 93 Waddington, ‘The European Union and the United Nations Convention on the Rights of Persons with Disabilities’ (n 73) 433.

28  Research handbook on EU disability law for DPOs to work with the European Commission and Member States to make progress on the disability rights agenda. The ratification provides a fertile environment for the EU to adopt a more ambitious approach to disability policy development and strategic planning. Lawson has noted that the potential of the CRPD to drive policy development in the area of disability will be dependent upon a number of factors, ‘including the willingness of Member State governments to invest in processes of collaboration and dialogue to move toward the shared goals that are set out in the CRPD’.94

94 Lawson, ‘The European Union and the Convention on the Rights of Persons with Disabilities: Complexities, Challenges and Opportunities’ (n 73) 75.

3. Disability in the EU Charter of Fundamental Rights Delia Ferri

1. INTRODUCTION In the past 20 years, the Charter of Fundamental Rights (CFR or Charter)1 of the European Union (EU) has evolved from a non-binding proclamation to a constitutional document.2 The original impetus for the drafting of the Charter arose in 1999. The Presidency Conclusions of the European Council, held in Cologne on 4 June 1999, called for ‘fundamental rights applicable at Union level [to] be consolidated in a Charter and thereby made more evident’.3 A decision,4 annexed to those Conclusions, set up a ‘body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments’ to draft the text of the Charter.5 An initial disagreement over the legal status of the proposed Charter resulted in a compromise.6 The CFR was not incorporated into the EU Treaties, but was solemnly proclaimed on 7 December 2000. After the failure of the Constitutional Treaty, a slightly amended text of the Charter was, once again, officially proclaimed in 2007. Following the entry into force of the Treaty of Lisbon in 2009, the CFR acquired the same legal status as the Treaties by virtue of Article 6(1) of the Treaty on European Union (TEU). As part of the constitutional fabric of the EU, and within the limits of its scope of application,7 the Charter fulfils a threefold function.8 First, the Charter serves as an aid to the inter Charter of Fundamental Rights of the European Union [2000] OJ C364/1. In line with the approach adopted in this volume, as discussed in the Introduction, this chapter refers to the Treaties and the Charter of Fundamental Rights of the EU (CFR) as the constitutional acts of the EU, which is in line with the case law of the Court of Justice of the European Union (CJEU). See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 3 Cologne European Council, ‘Presidency Conclusions’ 3 and 4 June 1999 https://​www​.europarl​ .europa​.eu/​summits/​kol1​_en​.htm accessed 20 January 2020. 4 Cologne European Council, ‘Decision on the Drawing up of a Charter of Fundamental Rights of the European Union’, 3 and 4 June 1999 https://​www​.europarl​.europa​.eu/​summits/​kol2​_en​.htm​#an4 accessed 20 January 2020. The decision stated that ‘[t]here appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens’. 5 Ibid. 6 David Anderson and Cian C. Murphy, ‘The Charter of Fundamental Rights: History and Prospects in Post-Lisbon Europe’ (2011) EUI Working Papers – Law 2011/08, p. 1 http://​ssrn​.com/​abstract​=​ 1894386 accessed 20 January 2020. On the process of elaboration of the Charter, see Gráinne de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2015) 40(6) European Law Review 799. 7 See infra section 2 of this chapter. 8 Koen Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8(3) European Constitutional Law Review 375, p. 403. 1 2

29

30  Research handbook on EU disability law pretation of EU secondary law and national law falling within the scope of EU law.9 Second, the Charter can ‘be relied upon as providing grounds for judicial review’,10 and EU legislation found to be in breach of the Charter ‘is to be held void and national law falling within the scope of EU law that contravenes the Charter must be set aside’.11 Finally, the Charter operates ‘as a source of authority for the “discovery” of general principles of EU law’.12 Bearing in mind this threefold function, this chapter aims to discuss the extent to which the Charter has contributed to the protection of the rights of persons with disabilities in the EU. In line with this objective, it focuses on the EU legal order and on case law of the CJEU. It does not investigate the domestic impact of the Charter, nor the use of the CFR by national human rights institutions (NHRIs) and national courts. This chapter acknowledges that all of the rights provided for in the Charter must be enjoyed by persons with disabilities without discrimination. However, it deliberately focuses on selected Articles of the Charter, which have been referred to by national courts in their requests for preliminary rulings to the Court of Justice of the EU (CJEU) as a ground for judicial review of EU legislation, and/or have been used by the CJEU as an aid to the interpretation of EU secondary law.13 Further to these introductory remarks, section 2 gives a brief overview of the Charter and explains its scope of application, providing a background for the subsequent analysis. Section 3 examines the extent to which Articles 21 and 26 CFR have contributed to enhancing equality and participation of disabled people in society. After a brief analysis of the content of those Articles, section 3 details, succinctly, their role in the case law of the CJEU. In doing so, it focuses on two problematic issues. First, it discusses how the limited scope of application of the CFR has emerged as a stumbling block to the relevance of the Charter. Second, it examines the ambiguous relationship between the Charter and the UN Convention on the Rights of Persons with Disabilities (CRPD). Section 4 briefly engages with Article 4 CFR, on the

Ibid. Ibid. 11 Ibid. With regard to national law, those functions were reiterated by Advocate General (AG) Bobek in Cresco Investigation GmbH: ‘[w]ith regard to national law, the Charter serves: (i) as an interpretative tool for conform interpretation of national law; (ii) as a yardstick for the compatibility of EU and national rules, with the possible consequence that where national rules (applied in the context in which the Member State acts within the scope of EU law) are incompatible with the Charter, they must be set aside by the national judge, even in disputes between private individuals’ (Opinion of Advocate General Bobek, Case C-193/17 Cresco Investigation GmbH v Markus Achatzi EU:​C:​2018:​614, para 146). 12 Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (n 8) 403. 13 The chapter does not examine case law of the CJEU in which the Charter is cursorily cited but is not relevant to the ratio decidendi. For example, in Bedi (Case C-312/17 Surjit Singh Bedi v Bundesrepublik Deutschland EU:​C:​2018:​734), which focused on the interpretation of Article 2(2) of the Employment Equality Directive (Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16), the CJEU referred to Article 28 CFR on the right to collective bargaining. The case related to a provision in a collective agreement under which the receipt of bridging assistance ended once the worker concerned was entitled to receive an early retirement pension. The Court recalled that ‘the nature of measures adopted by way of a collective agreement differs from the nature of those adopted unilaterally by way of legislation or regulation by the Member States in that the social partners, when exercising their fundamental right to collective bargaining recognized in Article 28 of the Charter, have taken care to strike a balance between their respective interests’ (para 68). It held that the right of collective bargaining proclaimed in Article 28 CFR must be exercised in compliance with EU law (para 69), including the Employment Equality Directive. 9

10

Disability in the EU Charter of Fundamental Rights  31 prohibition of torture and inhuman or degrading treatment or punishment, which is relevant in the context of asylum. Section 5 discusses Articles 6 CFR, on the right to liberty and security of person, and 47 CFR, on the right to an effective remedy and to a fair trial, when invoked with regard to detention in psychiatric hospitals. Section 6 provides some concluding remarks on the overall role of the Charter in promoting the rights of persons with disabilities in the EU.

2.

THE CHARTER OF FUNDAMENTAL RIGHTS: AN OVERVIEW

2.1

The Structure and the Content of the Charter

The Charter is composed of 54 Articles, divided into seven titles. The rights are organized within the first six titles: Dignity (Articles 1–5); Freedoms (Articles 6–19); Equality (Articles 20–26); Solidarity (Articles 27–38); Citizens’ Rights (Articles 39–46); and Justice (Articles 47–50). The last title includes horizontal provisions that guide the interpretation and application of the Charter. The CFR encompasses civil and political rights, as well as economic, social and cultural rights. It also incorporates a new generation of rights, such as the right to data protection,14 and the rights of the elderly.15 The Charter contains explicit references to disability in the title on ‘Equality’. In particular, Article 21(1) CFR lists disability as one of the grounds on which discrimination shall be prohibited, while Article 26 CFR provides for the integration of persons with disabilities in the life of the community. When it comes to the meaning of the rights included in the CFR,16 Article 52(3) EU CFR establishes that: [i]nsofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms [the ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.17

Article 52(1) CFR requires any limitation on the exercise of the rights and freedoms recognized by the Charter to be provided for by law, and to respect the essence of those rights and freedoms.18 Hence, subject to the principle of proportionality, restrictions can only be imposed

Article 8 CFR. Article 25 CFR. 16 While the Charter reflects the rights guaranteed in the European Convention on Human Rights (ECHR) and the European Social Charter (ESC), in several cases it goes beyond the provisions included in those instruments. On this point, see Filippo Fontanelli, ‘The European Union’s Charter of Fundamental Rights Two Years Later’ (2011) 3 Perspectives on Federalism 22, p. 25. On the Charter, see generally Robert Schütze, European Constitutional Law (Cambridge University Press 2012) 422–28. 17 In J. McB. the CJEU has clarified that the meaning of those CFR rights should be established not only on the basis of provisions of the ECHR, but also on clear and consistent case law of the European Court of Human Rights (ECtHR). See Case C-400/10 J. McB EU:​C:​2010:​582. 18 On the essence of rights, see, inter alia, Takis Tridimas and Giulia Gentile, ‘The Essence of Rights: An Unreliable Boundary?’ (2019) 20(6) German Law Journal 794. 14 15

32  Research handbook on EU disability law where they are necessary and genuinely meet objectives of general interest recognized by the EU, or if they are needed to protect the rights and freedoms of others.19 Notably, on foot of Article 51(1) CFR, which establishes that rights must be respected whereas principles shall be observed, Article 52(5) CFR distinguishes between rights and principles, and provides that: [t]he provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

This distinction between rights and principles emerged early on in the drafting process related to the Charter. It is rooted in the reluctance of several Member States to place economic, social and cultural rights on an equal footing with civil and political rights.20 As most recently recalled by Lock, this distinction was indeed motivated by concerns about the justiciability of social rights, and the division of powers between the EU and its Member States. However, having regard to the actual text of the Charter, not all economic, social and cultural rights that the Charter includes are principles.21 In that connection, Frantziou, commenting on the Bauer case,22 contends that ‘the fundamental social rights enshrined in the Charter have a normative core that is applicable in all disputes that fall within the scope of EU law’.23 In line with Article 52(5) CFR, the Explanations relating to the Charter state that principles ‘may be implemented through legislative or executive acts (adopted by the Union in accordance with its powers, and by the Member States only when they implement Union law)’,24 but cannot ‘give rise to direct claims for positive action by the Union’s institutions or Member States authorities’.25 The Explanations do not give further details and do not lay out an exhaustive list of principles, but only give some examples.26 Among those, Article 26 CFR, which will be further discussed in section 3, is explicitly qualified as a principle. Finally, Article 53 CFR stipulates that no provision in the Charter may be interpreted as restricting fundamental rights protected by other instruments to which the EU or its Member

See, among many others, Case T-11/17 RK v Council of the European Union EU:​T:​2019:​65, para

19

92.

20 Tobias Lock, ‘Rights and Principles in the EU Charter of Fundamental Rights’ (2019) 56(5) Common Market Law Review 1201, p. 1208. On the genesis of social rights in the Charter, see Jasper Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice’ (2015) 11(2) European Constitutional Law Review 321, pp. 323–28. 21 Lock, ‘Rights and Principles in the EU Charter of Fundamental Rights’ (n 20) 1226. In a similar vein, see Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice’ (n 20) 329. 22 Joined Cases C-569/16 and C-570/16 Bauer EU:​C:​2018:​871. 23 Eleni Frantziou, ‘(Most of) the Charter of Fundamental Rights Is Horizontally Applicable: ECJ 6 November 2018, Joined Cases C-569/16 and C-570/16, Bauer Et Al’ (2019) 15(2) European Constitutional Law Review 306, p. 315. 24 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, ad articulum. 25 Ibid. 26 Ibid.

Disability in the EU Charter of Fundamental Rights  33 States are a Party, including the European Convention on Human Rights (ECHR). In that manner, the Charter sets out a minimum ground of protection.27 2.2

The Scope of Application of the Charter

The Charter applies to all EU institutions and bodies, offices and agencies,28 but it is applicable to Member States only when ‘they are implementing Union law’, as specified by Article 51(1) CFR. Fontanelli suggests that Article 51 CFR is ‘the key provision of the Charter’s self-restraint vis-à-vis Member States’ and ‘marks the difference between the Charter and other rights charters (such as the [ECHR] and national constitutions) with respect to its scope of application’.29 Article 51(2) CFR, in a similar vein to the second alinea of Article 51(1) CFR, provides that the Charter cannot extend the competences which have been conferred on the EU by the Treaties. The Explanations relating to the Charter clarify, in relation to Article 51(1) CFR, that ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’.30 Those Explanations rely on pre-Lisbon cases such as Wachauf,31 as well as ERT.32 However, the concept of ‘implementing Union law’ has proven to be quite blurred and has given rise to a wide scholarly debate on the scope of application of the Charter.33 A review of that debate and a general discussion of the applicability of the Charter to national measures remain outside of the scope of this chapter. It suffices to point out that, as confirmed by the CJEU in its post-Lisbon case law, national legislation falling within the scope of EU law must comply with the CFR. In Åkerberg Fransson, the Court stated that ‘the applicability of [EU] law entails applicability of the fundamental rights guaranteed by the Charter’.34 In Robert Pfleger and Others, Advocate General (AG) Sharpston recalled that ‘the test is whether the situation is one in which EU law applies (that

27 Article 53 CFR allows Member States to comply with their own constitutional standards of protection of fundamental rights. However, when they implement obligations laid down in EU law, they cannot undermine the level of protection granted by the Charter and the primacy, unity and effectiveness of EU law (Case C-399/11 Stefano Melloni v Ministerio Fiscal EU:​C:​2013:​107). 28 In Joined Cases C-8/15 P to C-10/15 P Ledra Advertising v Commission and ECB EU:​C:​2016:​701, para 67, the CJEU suggested that the Charter always applies to the EU institutions, including when they act outside the legal framework of the European Union (in that case, in relation to the European Stability Mechanism – ESM). 29 Filippo Fontanelli, ‘National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu?’ (2014) 14(2) Human Rights Law Review 231, p. 233. 30 Explanations relating to the Charter of Fundamental Rights (n 24), ad articulum. 31 Case C-5/88 Wachauf EU:​C:​1989:​321. 32 Case C-260/89 ERT EU:​C:​1991:​254. 33 See, among many others, Marek Safjan, ‘Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of Conflict?’ (2012) Working Paper, EUI LAW, 2012/22 https://​ cadmus​.eui​.eu/​handle/​1814/​23294 accessed 5 March 2020; Fontanelli, ‘National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu?’ (n 29); Konstanze von Papp, ‘A Federal Question Doctrine for EU Fundamental Rights Law: Making Sense of Articles 51 and 53 of the Charter of Fundamental Rights’ (2018) 43(4) European Law Review 511. 34 Case C-617/10 Åkerberg Fransson EU:​C:​2013:​105, para 21. Emphasis added. See also paras 17–18 of this decision. On this decision, see Bas van Bockel and Peter Wattel, ‘New Wine into Old Wineskins: The Scope of the Charter of Fundamental Rights of the EU after Åkerberg Fransson’ (2013) 38(6) European Law Review 866.

34  Research handbook on EU disability law is, one that falls “within the scope of EU law”) rather than (perhaps more narrowly) whether the Member State is “implementing” EU law by taking specific positive action’.35 In essence, Article 51(1) CFR, as interpreted by the CJEU, requires a connection with EU law.36 This connection exists when Member States are applying a provision of EU law (apart from the Charter itself),37 or are applying a national law that transposes EU legislation or that is otherwise intended to implement EU law or pursues its objectives.38 National provisions concerning remedies, sanctions, and enforcement of EU law (irrespective of whether they are adopted in order to transpose EU law) qualify as ‘implementation of EU law’ for the purpose of Article 51 CFR.39 Finally, when Member States are exercising discretion within the limits allowed for in a piece of EU legislation,40 or rely on exceptions to fundamental freedoms, or restrict rights deriving from Union citizenship (for example with a view to upholding the requirements of public policy and safeguarding public security), the situation is deemed to fall within the scope of EU law.41

3.

THE ROLE OF ARTICLES 21 AND 26 OF THE CHARTER IN ENHANCING NON-DISCRIMINATION AND EQUALITY FOR PEOPLE WITH DISABILITIES

3.1

Disability Equality in the Charter

As noted in the introduction to this chapter, the effective protection and promotion of the rights of persons with disabilities within the EU legal order is linked to the application of all the provisions of the Charter. Most prominently, it is connected to the principles of equality and non-discrimination, set out in Article 20 CFR, on equality before the law; Article 21 CFR, on non-discrimination; and Article 26 CFR, on the integration of persons with disabilities.

35 Opinion of Advocate General (AG) Sharpston, Case C-390/12 Robert Pfleger and Others EU:​C:​ 2013:​747, para 41. Italics in the original. See also Case C-390/12 Robert Pfleger and Others EU:​C:​2014:​ 281, paras 30–36. 36 Case C-198/13 Víctor Manuel Julian Hernández and others EU:​C:​2014:​2055, para 34. 37 See Opinion of AG Jääskinen, Case C-354/13 Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft, v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (Kaltoft) EU:​C:​2014:​2463, para 22. 38 In Siragusa, the CJEU stated that, in order to ascertain whether national legislation involves the implementation of EU law for the purposes of Article 51 CFR, it is to be determined ‘whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it’ (Case C-206/13 Siragusa EU:​C:​2014:​126, para 25). However, ‘the mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter applicable’ (Case C-198/13 Víctor Manuel Julian Hernández and others EU:​C:​2014:​2055, para 36). 39 Case C-218/15 Paoletti EU:​C:​2016:​748, paras 13–18. 40 Joined Cases C-411/10 and C-483/10 N.S. and others EU:​C:​2011:​865. 41 Case C-165//14 Rendon Marin EU:​C:​2016:​675, para 81.

Disability in the EU Charter of Fundamental Rights  35 Article 20 CFR enshrines the principle of equal treatment, which is a general principle of EU law.42 This principle, according to the CJEU’s established case-law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified.43 A breach of the principle of equal treatment as a result of a different treatment presupposes that ‘the situations concerned are comparable, having regard to all the elements which characterize them’.44 Article 21 CFR establishes the principle of non-discrimination. In that connection, as suggested by Muir,45 ‘the Court does not rigorously distinguish between Articles 20 and 21 [CFR]: both are understood as expressions of the general principle of equal treatment’.46 Article 21 CFR lists disability as one of the grounds on which discrimination must be prohibited.47 The wording of this provision – ‘any discrimination based on any ground such as […]’ – could be interpreted as allowing the protection of further categories of discrimination beyond those explicitly listed, within the scope of application of EU law. However, the Explanations relating to the Charter make clear that the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law.48

Notably, the general principle of equality (enshrined in Articles 20 and 21 of the Charter) has been deemed to be horizontally applicable, and can be relied upon in disputes between private parties.49 However, as yet, the CJEU has only explicitly held that the prohibition of discrimina-

42 Case T-737/17 Wattiau v European Parliament EU:​ T:​ 2019:​ 273, para 62. As noted in the Explanations relating to the Charter (n 24), Article 20 CFR ‘corresponds to a principle which is included in all European constitutions and has also been recognized by the Court of Justice as a basic principle of [EU] law’. 43 Case C-463/12 Copydan Båndkopi EU:​C:​2015:​144, paras 31 and 32. See also C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para  43. 44 Inter alia, Case C-195/12 Industrie du bois de Vielsalm & Cie (IBV) SA EU:​C:​2013:​598, para 51. 45 Elise Muir, ‘The Essence of the Fundamental Right to Equal Treatment: Back to the Origins’ (2019) 20(6) German Law Journal 817, p. 832. 46 The Court has stated that Article 21 CFR is ‘a particular expression’ of the general principle of equality. See to that effect Case C‑190/16 Fries EU:​C:​2017:​513, para 29. 47 It draws on the former Article 13 of the EC Treaty (Article 19 TFEU), as well as on Article 14 ECHR and on Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage (Explanations relating to the Charter of Fundamental Rights (n 24), ad articulum). It must be noted, however, that Article 14 ECHR does not explicitly mention disability, but disability discrimination is covered under the ‘other status’ clause. See Glor v Switzerland, Application No. 13444/04 (ECtHR, 30 April 2009). 48 Explanations relating to the Charter of Fundamental Rights (n 24), ad articulum. 49 On the horizontal effect of fundamental rights, see Eleni Frantziou, The Horizontal Effect of Fundamental Rights in the European Union: A Constitutional Analysis (Oxford University Press 2019). See also Dorota Leczykiewicz, ‘Horizontal Application of the Charter of Fundamental Rights’ (2013) 38(4) European Law Review 479.

36  Research handbook on EU disability law tion on the grounds of religion or belief,50 and of age,51 display direct horizontal effect within the scope of application of EU law. There are, as yet, no relevant cases in this respect with regard to disability discrimination. Article 26 CFR, on the integration of persons with disabilities, establishes that the EU ‘recognizes and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’.52 It ‘is reflective of the social model, focusing on inclusion and participation in society and the need to ensure the independence of persons with disabilities’.53 Article 26 CFR has been classified as a principle, rather than a right.54 As noted above in section 2, this means that it is intended to guide the EU institutions when they legislate, but does not oblige them to act and is not directly enforceable. This was made explicit by the CJEU in Glatzel: although Article 26 of the Charter requires the [EU] to respect and recognise the right of persons with disabilities to benefit from integration measures, the principle enshrined by that article does not require the EU legislature to adopt any specific measure. In order for that article to be fully effective, it must be given more specific expression in European Union or national law. Accordingly, that article cannot by itself confer on individuals a subjective right which they may invoke as such.55

The CJEU does not cast any doubt on the binding nature of Article 26 CFR (and, more generally, on the binding nature of principles). As Lock clearly points out, the binding nature of a principle ‘only removes the legislature’s discretion as far as the question is concerned whether it needs to comply’, but ‘leaves intact the legislature’s discretion as to how it should comply’.56 The CJEU also makes clear that the justiciability of Article 26 CFR requires its prior implementation by the EU. Ward suggests that the approach taken by the Court minimizes the impact of Article 26 CFR in the field on non-discrimination.57 However, the Luxembourg judges leave the door open for the EU to act, within the remit of its discretion, and for the Court to intervene and assess implementing legislation vis-à-vis Article 26 CFR. In fact, in Glatzel, while the overall outcome of the CJEU’s analysis has been considered disappointing by some scholars,58 the Court looked at the aim of the Directive under review (which was that

Case C-414/16 Egenberger EU:​C:​2018:​257. Case C-441/14 Dansk Industri (DI), acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen EU:​C:​2016:​278, paras 22–27. 52 This provision is based on Article 15 of the European Social Charter (ESC), and builds on point 26 of the Community Charter of the Fundamental Social Rights of Workers. 53 Andrea Broderick and Delia Ferri, International and European Disability Law: Text Cases and Materials (Cambridge University Press 2019) 310. 54 On Article 26 CFR (and related case law), see Charlotte O’Brien, ‘Article 26 – Integration of Persons with Disabilities’ in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014) 709–48. 55 Case C-356/12 Wolfgang Glatzel v Freistaat Bayern EU:​C:​2014:​350, para 78. Emphasis added. 56 Lock, ‘Rights and Principles in the EU Charter of Fundamental Rights’ (n 20) 1222. 57 Angela Ward, ‘The Impact of the EU Charter of Fundamental Rights on Anti-discrimination Law: More a Whimper than a Bang?’ (2018) 20 Cambridge Yearbook of European Legal Studies 32, p. 41. 58 Charlotte O’Brien, ‘Driving Down Disability Equality? Case C-356/12 Wolfgang Glatzel v Freistaat Bayern, Judgment of 22 May 2014’ (2014) Maastricht Journal of European and Comparative Law 723. 50 51

Disability in the EU Charter of Fundamental Rights  37 of making ‘it easier for physically disabled persons to drive vehicles’)59 and held that that Directive implemented Article 26 CFR. Hence, it assessed its validity in light of that Article. It also remains possible that the Court will engage in a deeper manner with the content of Article 26 CFR in future decisions, and that it might consider specific disability legislation, such as the European Accessibility Act (EAA),60 to be an implementing act of Article 26 CFR. 3.2

The Role of Articles 21 and 26 of the Charter in the Case Law of the Court of Justice

After a brief overview of Articles 21 and 26 CFR, this sub-section aims to outline the CJEU’s case law concerning discrimination on the ground of disability, and to examine how and to what extent the Charter has been used within that line of case law. It does not delve into the details of the decisions, which have been thoroughly discussed by scholars,61 and which are examined elsewhere in this Research Handbook.62 Rather, it focuses on the role of Articles 21 and 26 CFR in the judgments of the Court. As yet, in the handful of cases that the Court has examined on disability discrimination, except for Glatzel,63 the significance of Articles 21 and 26 CFR has been negligible. In Chacón Navas,64 and in Coleman65 – both cases which predate the entry into force of the Treaty of Lisbon – there is no reference to the Charter. One might argue that this is due to the fact that at that time the Charter was not binding. However, in other core disability cases post-2009, such as HK Danmark,66 Ruiz Conjero,67 and DW v Nobel Plastiques Ibérica SA,68 the Court did not refer to the Charter (not even a fortiori). Arguably, the Charter did not feature in the questions raised by the national courts, but it is nonetheless striking that the Court did not

Case C-356/12 Wolfgang Glatzel v Freistaat Bayern EU:​C:​2014:​350, para 75. Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. 61 See, among others, Lisa Waddington and Anna Lawson, ‘The Unfinished Story of EU Disability Non-discrimination Law’ in Andrew Bogg, Cathryn C Costello and ACL Davies (eds), Research Handbook on EU Labour Law (Edward Elgar Publishing 2016) 449–74. An account of these decisions is also included in Lisa Waddington, ‘The Influence of the UN Convention on the Rights of Persons with Disabilities on EU Anti-discrimination Law’ in Uladzislau Belavusau and Kristin Henrard (eds), About EU Anti-discrimination Law beyond Gender (Hart 2018) 339–61. 62 See infra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 63 Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350. 64 Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456. 65 Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. In his Opinion, AG Maduro only cites the Charter in a footnote (fn 4), in which he lists relevant human rights instrument enshrining the principle of equality and non-discrimination (Opinion of AG Maduro Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​61). 66 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring, v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge, v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222. 67 Case C-270/16 Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal EU:​C:​2017:​788. 68 Case C-397/18 DW v Nobel Plastiques Ibérica SA EU:​C:​2019:​703. 59 60

38  Research handbook on EU disability law even cursorily cite Article 21 CFR. In two other cases (first Kaltoft,69 and then Daouidi70), the (limited) scope of application of the Charter prompted the Court to focus on EU secondary law (namely on Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation – the Employment Equality Directive),71 and on its interpretation in light of and in compliance with the CRPD, rather than on the CFR, as will be discussed further in the remainder of this section. In Milkova,72 the Court engaged briefly with the Charter, which was used, in essence, as an aid to the interpretation of the Employment Equality Directive, in order to ultimately assess whether the Bulgarian legislation at stake contravened that Directive and the Charter and should be set aside. The case originated from a request for a preliminary ruling from the Supreme Administrative Court of Bulgaria and concerned the interpretation of Articles 4 (on occupational requirements) and 7 (on positive action) of the Employment Equality Directive, and of Article 5 CRPD (on non-discrimination).73 That request followed an action brought by Ms Milkova against a decision to terminate her employment relationship. In particular, Ms Milkova, who is a person with a disability, had alleged that the Bulgarian legislation was discriminatory in conferring on employees with certain disabilities a specific protection in the event of dismissal, without extending such protection to civil servants with the same disabilities. The referring court did not allude to the Charter in its questions to the CJEU, but briefly mentioned it in its order, without ‘spell[ing] out how that instrument of EU law might be relevant to the facts of the dispute in the main proceedings’.74 AG Saugmandsgaard Øe suggested that the Employment Equality Directive was not applicable in circumstances similar to those in the case, ‘where the differentiation at issue was based on a criterion other than those exhaustively listed in Article 1’ of the Directive.75 Consequently, he suggested that the Directive could not be interpreted in the light of the provisions of the Charter.76 The Court did not follow the latter indication. Rather, it considered that the Bulgarian legislation at issue in the main proceedings came within the scope of Article 7(2) of the Employment Equality Directive, and, since it pursues ‘an objective covered by EU law’, it fell ‘within the implementation of EU law within the meaning of Article 51(1) of the Charter’. Ultimately, the CJEU stated that Article 7(2) of the Directive read ‘in conjunction with the general principle of equal treatment enshrined in Articles 20 and 21 of the Charter’ allows for national legislation which confers on employees with certain disabilities specific protection in the event of dismissal, without 69 Case C-354/13 Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft, v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (Kaltoft) EU:​C:​2014:​2463. 70 Case C-395/15 Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal EU:​C:​2016:​917. 71 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 72 Case C-406/15 Milkova v Izpalnitelen director na Agentsiata za privatizatsia I sledprivatizatsionen control (Milkova) EU:​C:​2017:​198. 73 On the Employment Equality Directive and the CRPD, see generally Lisa Waddington and Andrea Broderick, Combating Disability Discrimination and Realising Equality: A Comparison of the UNCRPD and EU Equality and Non-discrimination Law (European Commission 2018). 74 Opinion of AG Saugmandsgaard Øe, Case C-406/15 Milkova EU:​C:​2016:​824, para 60. 75 Ibid para 64. 76 Ibid para 65. Notably the AG presented, in his opinion, ‘a number of observations in the alternative to cater for the eventuality that the Court does not follow that recommendation’. In that part, however, he did not focus on the Charter.

Disability in the EU Charter of Fundamental Rights  39 conferring such protection on civil servants with the same disabilities, unless it is established that there has been an infringement of the principle of equal treatment.77 The Court left it to the referring court to ascertain whether a violation of the principle of equal treatment occurred. As noted by Muir, the Court, in essence, held that ‘where EU legislation allows Member States a choice between various methods of implementation, the Member States must exercise their discretion in accordance with general principles of EU law, including the principle of equal treatment’.78 In Z. v A Government Department and The Board of management of a community school,79 and in Glatzel, Articles 21 and 26 were invoked by the national court as parameters against which to assess the validity of EU legislation. However, in Z. the Court held that it was unnecessary to assess the validity of Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, in the light of, inter alia, Article 21 CFR, because it considered that the subject matter did not fall within the scope of that Directive. Moreover, and more interestingly for the purpose of this analysis, the Court deemed it unnecessary to examine the validity of the Employment Equality Directive in light of, inter alia, Articles 21 and 26 of the Charter, because Mrs Z’s condition did not entail a disability for the purpose of that Directive.80 In Glatzel (which is, to date, the most interesting case), the Court did assess EU secondary legislation vis-à-vis the Charter. The case originated from a request of the Bayerischer Verwaltungsgerichtshof for a preliminary ruling in the proceedings between Mr Glatzel and Freistaat Bayern, concerning the refusal to provide Mr Glatzel with a driving licence for heavy goods vehicles, on the ground that his visual acuity in one of his eyes did not reach the minimum level required by point 6.4 of Annex III to Directive 2006/126.81 In essence, the German court asked the CJEU whether the physical conditions to be complied with by drivers constituted discrimination on the ground of disability, and violated Article 20, Article 21(1) and Article 26 CFR.82 Ultimately, the CJEU concluded that there was not ‘any information capable of affecting the validity of point 6.4 of Annex III to Directive 2006/126 in the light of Articles 20, 21(1) or 26 of the Charter’.83 With regard to Article 21(1) CFR, the Court first stipulated that a difference in treatment on the basis of visual acuity necessary to drive power-driven vehicles is not, in principle, contrary to Article 21(1) CFR, insofar as such a requirement actually fulfils a public interest objective, is necessary and is proportionate to achieving its objective.84 The Court contended that the minimum threshold of visual acuity provided for in Directive 2006/126 was specifically designed to improve road safety, which is an objective of general interest for the EU.85 It then went on to state that the principle of pro-

Case C-406/15 Milkova EU:​C:​2017:​198, para 64. Muir, ‘The Essence of the Fundamental Right to Equal Treatment: Back to the Origins’ (n 45) 838. 79 Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159. 80 On this decision, see, inter alia, Geert De Baere, ‘Shall I Be Mother? The Prohibition on Sex Discrimination, the UN Disability Convention, and the Right to Surrogacy Leave under EU Law’ (2015) Cambridge Law Journal 44. 81 Directive 2006/126/EC on driving licences (Recast) [2006] OJ L403/18. 82 Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para 37. 83 Ibid para 86. 84 Ibid para 51. 85 Ibid para 52. 77 78

40  Research handbook on EU disability law portionality requires the principle of equal treatment to be reconciled, as far as possible, with the requirements of road safety which determine the conditions for driving motor vehicles.86 In that vein, the Court examined whether point 6.4 of Annex III to Directive 2006/126 was disproportionate in relation to the objective pursued. It highlighted that the EU legislature, which has broad discretion in adopting decisions involving complex medical issues, drafted the provision at stake ‘in the light of that knowledge and attempted to limit as much as possible any interference with the rights of persons suffering from visual defects’.87 The Court also emphasized that it ‘cannot substitute its assessment of scientific and technical facts for that of the legislature on which the founding treaties have conferred that task’.88 It therefore concluded that the requirement included in point 6.4 of Annex III was not disproportionate. The CJEU refused to assess the validity of point 6.4 of Annex III vis- à-vis Article 2 CRPD, because the latter does not display direct effect,89 and confirmed its validity. Further, the Court briefly examined the validity of point 6.4 of Annex III vis-à-vis Article 26 CFR.90 After highlighting that Article 26 CFR includes a principle which is not justiciable per se, it confirmed the validity of the annex under review. Finally, the Court turned its examination to Article 20 CFR.91 It recalled that, under Annex III of Directive 2006/126, for certain drivers who do not satisfy the standards relating to visual acuity, the issue of a driving licence may be envisaged in ‘exceptional cases’ where a driver submits to an individual examination to test his fitness to drive. This possibility is not provided for drivers under point 6.4 of that Annex. The CJEU stated that this differentiation does not constitute a difference in treatment contrary to Article 20 CFR, as the situations at stake are not comparable. On the whole, the Charter has yet to play a significant role in the development of disability discrimination case law. As discussed further by Waddington and Broderick,92 a request for a preliminary ruling had been issued by the Tribunal d’Instance de Sens.93 This request focused on the Charter, and on whether Article 21 CFR and Article 39(2) CFR allow the right to vote in European Parliamentary elections to be withdrawn because a person has been placed under a guardianship measure due to his or her ‘mental disability’. It would have been interesting to see the extent to which the Court would engage with the Charter in that decision. However, the request was withdrawn by the Tribunal d’Instance de Sens in May 2019.94

Ibid para 56. Ibid para 62. 88 Ibid para 64. 89 Ibid paras 68 et seq. The CJEU followed what it had held in Z. v A Government department (Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​ 2014:​159). On the possibility for the CRPD to act as a parameter for judicial review, see infra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 90 Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para 79. 91 Ibid paras 80 et seq. 92 See infra Lisa Waddington and Andrea Broderick, ‘Political Participation of People with Disabilities in the EU’, in this volume. 93 Case C-562/18 – Request for a preliminary ruling from the Tribunal d’Instance de Sens (France) lodged on 30 August 2018 – X [2018] OJ C 408/42. 94 Case C-562/18 Order of Cancellation issued on 13 June 2019 EU:​C:​2019:​506. 86 87

Disability in the EU Charter of Fundamental Rights  41 3.3

The Scope of Application of the Charter as a ‘Stumbling Block’

Even if in Milkova the CJEU deemed the Charter applicable by showing a willingness to refer to it, Daouidi and Kaltoft reveal a more prudent approach. In Kaltoft, the CJEU considered that the Charter, as such, was not applicable. Mr Kaltoft worked as a child-minder in the Municipality of Billund, Denmark, but was dismissed from his employment. He claimed that he was a victim of discrimination on the basis that he was obese. The Danish district court, examining the complaint, decided to stay the proceedings and sought a preliminary ruling from the CJEU. It asked the Luxembourg judges four questions. The first three questions, in essence, asked whether obesity can be considered to be a protected ground of discrimination under EU law. With its fourth question, the Danish court asked whether obesity can ‘be deemed to be a disability covered by the protection provided for in [the Employment Equality Directive]’. In none of these questions did the Danish court refer overtly to the Charter. However, the first question is relevant for the purpose of this analysis,95 as the national court enquired whether it is ‘contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights’ to discriminate on the ground of obesity. Both AG Jääskinen,96 on the one hand, and the CJEU, on the other, interpreted this request as asking ‘whether EU law must be interpreted as laying down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation’.97 Along the lines traced by the AG, the Court recalled that ‘fundamental rights which form an integral part of the general principles of EU law include the general principle of non-discrimination’ but denied that EU law lays down a general principle of non-discrimination on the ground of obesity.98 The Court also stated that there was no evidence suggesting ‘that the situation at issue in the main proceedings, in so far as it relates to a dismissal purportedly based on obesity as such, would fall within the scope of EU law’.99 In that vein, it held that the Charter was not applicable.100 In Daouidi, the Court did not examine questions related to the Charter; rather, it focused on the Employment Equality Directive.101 The decision originated from a request for a preliminary ruling raised by the Social Court of Barcelona, in the course of the disability discrimination proceedings between Mohamed Daouidi and Bootes Plus SL, the Wages Guarantee Fund (Fondo de Garantía Salarial) and the Spanish Fiscal Public Prosecutor (Ministerio Fiscal).102 The Social Court asked five (quite elaborate) questions, which embraced both the CFR and the Employment Equality Directive. First, it asked whether, in essence, an employer’s deci-

95 For a more detailed analysis, see infra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 96 Opinion of AG Jääskinen, Case C-354/13 Kaltoft, paras 18 et seq. 97 Case C-354/13 Kaltoft EU:​C:​2014:​2463, para 31. 98 Ibid paras 33–35. 99 Ibid para 39. 100 Ibid. 101 For a full account of the case, see Delia Ferri, ‘Daouidi v Bootes Plus SL and the Concept of “Disability” in EU Anti-discrimination Law’ (2019) 10(1) European Labour Law Journal 69. 102 Mr Daouidi had been employed by Bootes Plus as a kitchen assistant in a hotel restaurant for more than six months. In October 2014, he slipped on the kitchen floor and dislocated his left elbow. In November 2014, Mr Daouidi received a notice of dismissal from Bootes Plus, which he challenged in front of the Social Court as being discriminatory on the ground of disability.

42  Research handbook on EU disability law sion to dismiss a worker due to his temporary incapacity (but with this being of uncertain duration) constitutes discrimination for the purpose of Article 21(1) CFR. Second, it asked whether Article 30 CFR, on protection against unjustified dismissal, requires national law on manifestly arbitrary dismissal to be applied when the discharge infringes a fundamental right. In addition, it asked whether a dismissal for temporary incapacity, such as that at stake, would come under the scope of the Charter, and in particular that of Articles 3, 15, 31, 34(1) and 35(1), and in such a case, whether those Articles could be directly applied by the national court. Last, even though Spanish legislation includes a definition of disability which mirrors the CRPD,103 the Social Court asked whether a dismissal for temporary incapacity could amount to direct discrimination on the ground of disability under the Employment Equality Directive. In his Opinion, AG Bot focused only on the fifth question regarding whether or not the dismissal could have been considered discriminatory on the ground of disability for the purpose of the Directive.104 The judgment of the Court followed the exact same pattern and arrived at the same conclusions as those of AG Bot. The Court went straight to the fifth question with a view to allowing the referring court to determine whether the condition of Mr Daouidi, that is, temporary incapacity of uncertain duration, falls within the notion of ‘disability’ within the meaning of the Employment Equality Directive; it did not consider the Charter. In that sense, the reasoning of the Court echoes the reasoning in Kaltoft. After concluding that a situation of temporary incapacity for work can amount to a disability for the purpose of the Directive when it is ‘long-term’,105 the CJEU recalled Article 51(1) CFR and highlighted that, in light of Article 6(1) TEU and Article 51(2) CFR, the Charter does not extend the scope of EU law. The Court held that it could not be established that the situation falls within the scope of a provision of EU law other than those set out in the Charter, because the fact that a person finds him or herself in a situation of temporary incapacity for work does not automatically mean that the limitation suffered by that person may be classified as ‘long-term’, and therefore does not fall squarely within the notion of ‘disability’ referred to by the Employment Equality Directive.106 The Court concluded that it did not have jurisdiction to answer the first four questions.107 In both cases, the Court ruled out the possibility to interpret national law in light of Article 21 CFR to enlarge the material scope of the prohibition of discrimination beyond the grounds listed in Article 19 of the Treaty on the Functioning of the European Union (TFEU). As noted by Ward: the CJEU is yet to adopt an approach pursuant to which an assessment is first made as to whether a substantive provision of EU law applies to a dispute, and then allowing categories of discrimination concerning the application of that provision of EU law to be prohibited going beyond the list in Article 21(1).108 103 Article 2 of Legislative Decree 1/2013 on the rights of persons with disabilities and their social inclusion of 29 November 2013 (BOE No 289 of 3 December 2013, p. 95635) defines disability as the ‘situation of persons with long-term impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others’. 104 Opinion of AG Bot, Case C-395/15 Daouidi v Bootes Plus SL EU:​C:​2016:​371. 105 Case C-395/15 Daouidi v Bootes Plus SL EU:​C:​2016:​371, para 59. 106 Ibid para 65. 107 Ibid para 68. 108 Ward, ‘The Impact of the EU Charter of Fundamental Rights on Anti-discrimination Law: More a Whimper than a Bang?’ (n 57), p. 36.

Disability in the EU Charter of Fundamental Rights  43 The unwillingness to use the Charter has raised criticism from scholars: in particular, with regard to Kaltoft, Gualco suggests that the CJEU has gone too far in attempting to include obesity within the ground of disability and should have ‘accommodated the legal value of the Charter by acknowledging its enforceability within the situation at stake’.109 On the whole, while cases like Åkerberg Fransson encompassed a broad understanding of the notion of ‘implementing EU law’ for the purposes of Article 51(1), Daouidi and Kaltoft make it clear that not all connections to EU law can trigger the application of the Charter. The application of the Charter is possible only when another EU legal provision is applicable, but the contour of the necessary connection between the situation at stake and EU law remains elusive, as the Opinion of AG Saugmandsgaard Øe in Milkova shows. Given the wide reach of EU non-discrimination legislation, there seems to be little doubt that the CJEU, by rejecting the applicability of the Charter in both cases, has denied the possibility to extend the grounds of discrimination (for example to obesity or to a limitation of temporary duration) beyond those listed in the Treaty and in the Employment Equality Directive. In doing so, it has indeed missed the opportunity to emphasize the innovative value of the Charter and to exploit its potential. However, the extensive interpretation of the ground of disability cannot be judged negatively. It is evident that the CJEU has attempted (at least formally) to comply with the social model (and with the widely formulated conceptualization of disability in Article 1 CRPD).110 3.4

The Interplay between the Charter and the CRPD

In disability discrimination cases, contrary to what can be seen for the Charter, the CRPD has played a major role in the reasoning of the Court and has influenced, in particular, the interpretation of the concept of ‘disability’.111 Interestingly, however, in Glatzel, the Court has implicitly traced a symbiotic relationship between the Charter and the CRPD, which pulls the CRPD within the constitutional fabric of the EU. As mentioned above, in Glatzel,112 Articles 21 CFR and 26 CFR were invoked as parameters of judicial review for EU secondary legislation. In its decision, the Court stated that as far as concerns the issue of discrimination on grounds of disability […] Article 21(1) of the Charter requires the EU legislature, in particular, not to apply any difference in treatment on the basis of a limitation resulting, in particular, from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the

109 Elena Gualco, ‘The Development of Age and Disability Equality within the European Union: The Court of Justice and the (Mis)implementation of EU General Principles’ (2019) 4 Diritto pubblico comparato ed europeo 979, p. 987. 110 Lisa Waddington, ‘Saying all the Right Things and Still Getting it Wrong: The Court of Justice’s Definition of Disability and Non-discrimination Law’ (2015) 22 Maastricht Journal of European and Comparative Law 576. 111 See infra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 112 Case C-356/12 Wolfgang Glatzel v Freistaat Bayern EU:​C:​2014:​350. For a comment on this decision, see Charlotte O’Brien, ‘Driving Down Disability Equality? Case C-356/12 Wolfgang Glatzel v Freistaat Bayern, Judgment of 22 May 2014’ [2014] Maastricht Journal of European and Comparative Law 723.

44  Research handbook on EU disability law person concerned in professional life on an equal basis with other persons, unless such a difference in treatment is objectively justified.113

The Court did not discuss the relationship between the Charter and the CRPD, but, in referring to disability for the purpose of the Charter, used the wording of Article 1(2) CRPD as elaborated, for the first time, in HK Denmark.114 This aspect has gone unnoticed by scholars, who have focused on the substantive endorsement (or lack of endorsement) of the social-contextual model enshrined in the CRPD.115 However, it seems of utmost importance that the Court de facto uses the CRPD (which is a sub-constitutional source within the EU legal order)116 to interpret a (formally) hierarchically superior source. Interestingly, the Court has always held (including in Glatzel)117 that the principle of consistent interpretation applies only with regard to EU secondary law, highlighting the hierarchal relation between international agreements concluded by the EU and EU secondary law.118 In Microsoft, the Court explicitly said that the principle of consistent interpretation applies only where the international agreement at issue prevails over the provision of Community law concerned. Since an international agreement, such as the TRIPS Agreement, does not prevail over primary [EU] law, that principle does not apply where, as here, the provision which falls to be interpreted is Article [102 TFEU].119

By contrast, in Glatzel, while explicitly endorsing its own previous jurisprudence, the Court interpreted the definition of disability included in Article 21(1) CFR in light of, and in compliance with, the CRPD. The implicit approach adopted by the Court sheds a new light on the relationship between EU law and the CRPD. The CJEU has always endorsed the general view that international law and EU law are not on an equal footing, but are asymmetric in the sense that international law is subordinate to primary EU law.120 So far, only the ECHR has been

Ibid para 46. Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222. 115 See generally Charlotte O’Brien, ‘Union Citizenship and Disability: Restricted Access to Equality Rights and the Attitudinal Model of Disability’ in Dimitri Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017) 509–39. 116 For a discussion, see infra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 117 In Glatzel, when it refused to assess the validity of point 6.4 of Annex III vis-à-vis Article 2 CRPD, the Court reiterated that the principle of consistent interpretation requires secondary law to be interpreted in a manner consistent with the CRPD. See, to that effect, Case C-356/12 Wolfgang Glatzel v Freistaat Bayern EU:​C:​2014:​350, paras 69 et seq. 118 Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 28. On consistent interpretation, see Antonino Alì, ‘Some Reflections on the Principle of Consistent Interpretation through the Case Law of the European Court of Justice’ in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea and Chiara Ragni (eds), International Courts and the Development of International Law (Springer–T.M.C. Asser Press 2013) 881–95; see also Federico Casolari, ‘Giving Indirect Effect to International Law Within the EU Legal Order: The Doctrine of Consistent Interpretation’ in Enzo Cannizzaro, Paolo Palchetti and Ramses Wessel (eds), International Law as Law of the European Union (Martinus Nijhoff 2012) 395–415. 119 Case T-201/04 Microsoft Corp. v Commission EU:​T:​2007:​289, para 798. 120 On this aspect, see Robert Schutze, Foreign Affairs and the EU Constitution (Cambridge University Press 2014) 47 et seq. 113 114

Disability in the EU Charter of Fundamental Rights  45 recognized as a source of special significance – first in case law, and now in Article 6 TEU.121 However, Glatzel seems to indicate that the CRPD, which is indeed the first human rights treaty ratified by the EU – with its disability-sensitive articulation of human rights – has, in fact, become part of the EU’s fundamental rights system, and of the EU’s constitutional fabric, as has been argued elsewhere.122 The request for a preliminary ruling of the Tribunal d’Instance de Sens explicitly asked whether ‘Article 21 [CFR], interpreted in the light of the United Nations Convention on the Rights of Persons with Disabilities’ allows the right to vote in European parliamentary elections to be withdrawn because a person has been placed under a guardianship. The request would have offered the Court the opportunity to interpret the Charter in light of the CRPD, and ‘constitutionalize’ the CRPD. However, as mentioned above, the request was withdrawn by the Tribunal. Other requests for preliminary rulings might occur in the future, and – if that is the case – we will see whether the CJEU will disclose a new era of openness of EU law towards international (human rights) law beyond the ECHR (which is already somewhat integrated into EU constitutional law).

4.

THE ROLE OF ARTICLE 4 OF THE CHARTER IN PROTECTING THE RIGHTS OF PEOPLE WITH DISABILITIES: THE CASE OF ASYLUM SEEKERS

Article 4 CFR prohibits torture and inhuman and degrading treatment or punishment. It has the same wording as Article 3 ECHR. Hence, as noted in the Explanations relating to the Charter, by virtue of Article 52(3) CFR, it has the same meaning and the same scope as the ECHR provision. Notably, in the Strasbourg jurisprudence Article 3 ECHR has played an important role in protecting the rights of disabled detainees. In particular, the European Court on Human Rights (ECtHR or Strasbourg Court) has consistently held that the failure to consider the specific needs of persons with disabilities or persons with chronic illnesses in detention amounts to a violation of the ECHR.123 It has also condemned conditions of detention that caused psychosocial disabilities or mental health issues. In Bamouhammad v Belgium,124 the applicant alleged, inter alia, that he had been subjected to inhuman treatment while in prison, which had affected his mental health. The Strasbourg Court held that there had been a violation of Article 3 ECHR and found that the manner of execution of the applicant’s detention, involving continuous transfers between prisons and various special measures, together with the prison authority’s delay in providing him with therapy and the refusal to consider any alternative to custody despite the decline in his state of health, had subjected him to excessive distress. In Blokhin v Russia,125 the Court concluded that there had been a violation of Mr Blokhin’s rights 121 For an overview of the relationship between the ECHR and EU law, and the prospective accession to the ECHR by the EU see, among many others, Christina Eckes, ‘EU Accession to the ECHR: Between Autonomy and Adaptation: EU Accession to the ECHR’ (2013) 76(2) The Modern Law Review 254. 122 Delia Ferri, ‘The Conclusion of the UN Convention on the Rights of Persons with Disabilities by the EC/EU: A Constitutional Perspective’ in Lisa Waddington and Gerard Quinn (eds), European Yearbook of Disability Law (Intersentia 2010), vol 2, 47–71. 123 See e.g. Florea v Romania, Application No. 37186/03 (ECtHR, 14 September 2010). 124 Bamouhammad v Belgium, Application No. 47687/13 (ECtHR, 17 November 2015). 125 Blokhin v Russia, Application No. 47152/06 (ECtHR, 23 March 2016).

46  Research handbook on EU disability law under Article 3 ECHR based upon the lack of necessary medical treatment, having regard to his young age and his particularly vulnerable situation (as he was suffering from a psychosocial disability). Article 4 CFR has primarily been invoked within the case-law of the CJEU on asylum seekers and the application of the rules related to the Common European Asylum System (CEAS), and, in particular, the Dublin III Regulation (and its predecessors),126 or in case law related to the area of freedom, security and justice (AFSJ).127 What follows focuses on asylum cases in which the Court interpreted the Dublin III Regulation (and other relevant provisions of the CEAS) in light of Article 4 CFR. In the leading case of N.S., the Court took the view that, if there are systemic flaws in the asylum procedures and reception conditions for asylum applicants in the Member State which is deemed competent for assessing the individual claim according to the Dublin system, and these flaws result in inhuman or degrading treatment, within the meaning of Article 4 CFR, the transfer of asylum seekers to that Member State would be incompatible with that provision of the Charter.128 In Abubacarr Jawo,129 the Court stated that degrading treatment would arise in a situation where the transfer would result in a person wholly dependent on State support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity.130

While in Abubacarr Jawo and other cases the Court does not make reference to disability directly, it refers, generally, to the fact that the likely and irreversible deterioration of health and mental health as a consequence of the transfer of the asylum seeker might entail degrading treatment (when it achieves a certain level of severity). The CJEU, much like the ECtHR, does not use the term psychosocial disabilities, and instead refers to psychiatric illnesses, mental health issues or similar concepts. However, while a short-term mental health problem of limited severity may not constitute a disability, ‘a mental health problem that endures or recurs is likely to constitute a psychological impairment and lead to a disability’.131 While disability and illness are considered different, the UN Committee on the Rights of persons with Disabilities (CRPD Committee), in interpreting the concept of disability purported in Article 1 CRPD, has held that ‘the difference between illness and disability is a difference of degree

126 Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/3. On the Dublin system, see https://​ec​.europa​.eu/​home​-affairs/​what​-we​-do/​policies/​asylum/​examination​-of​-applicants​_en accessed 2 March 2020. 127 See, among others, Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:​C:​ 2016:​140. On this aspect see generally Leandro Mancano, ‘Storming the Bastille: Detention Conditions, The Right to Liberty and the Case for Approximation in EU Law’ (2019) 56 Common Market Law Review 61. 128 Joined cases C-411 & 493/10 N.S. EU:​C:​2011:​865, paras 86 et seq. 129 Case C‑163/17 Abubacarr Jawo EU:​C:​2019:​218. 130 Ibid para 92. 131 Lisa Waddington and Mark Bell, The Employment Equality Directive and Supporting People with Psychosocial Disabilities in the Workplace (European Commission 2016) 31.

Disability in the EU Charter of Fundamental Rights  47 and not a difference of kind’, and that a ‘health impairment which initially is conceived of as illness can develop into an impairment in the context of disability as a consequence of its duration or its chronicity’.132 The jurisprudence of the CJEU related to Article 4 CFR, hence, might be considered important in protecting the right to health of people with disabilities, as well as in protecting people with disabilities from inhuman treatment that is contrary to their dignity. The Court has taken into account, alongside the systemic flaws in the asylum system of a Member State, the circumstantial conditions of applicants with psychosocial disabilities.133 Particularly relevant in this respect is the case of C.K.,134 in which the Court considered the transfer of a person with a ‘psychiatric condition’. The case arose from the request for a preliminary ruling of the Supreme Court of Slovenia in the proceedings between C.K. and other asylum seekers and the Republic of Slovenia, concerning the transfer of those persons to Croatia (which was the Member State responsible for examining their application for international protection in accordance with the provisions of the Dublin III Regulation). C.K., together with another asylum seeker, entered the EU territory by means of a visa validly issued by Croatia. After a short stay in that Member State, she crossed the Slovenian border and was admitted to a reception centre for asylum seekers in Ljubljana. At that time, C.K. was pregnant. The Slovenian authorities, taking the view that Croatia was, pursuant to the Dublin III Regulation, the Member State responsible for examining C.K.’s application for asylum in the main proceedings, sent a request to the authorities of that Member State to take charge of C.K. and the other asylum seekers. Croatia accepted its responsibility in regard to those persons, but C.K. was not immediately transferred and she submitted a request for asylum in Slovenia. That request was refused and she (together with other applicants) lodged an appeal. They claimed, in particular, that their transfer would have negative consequences for the state of health of C.K., and was also likely to affect the well-being of her new-born child. In this regard, they argued that C.K. had a high-risk pregnancy and that she had suffered psychiatric difficulties since giving birth. In considering the request for a preliminary ruling, the CJEU considered whether Article 4 of the Charter must be interpreted as meaning that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that [A]rticle.135

According to the CJEU, it was not possible to exclude the possibility that, ‘given the particularly serious state of health of an asylum seeker, his transfer pursuant to the Dublin III Regulation may result in such a risk for him’.136 The Court then went on to recall that the content and meaning of Article 4 CFR corresponds with that which is laid down in Article 3 ECHR. It also mentioned the ECtHR jurisprudence stating that the suffering which flows

132 Committee on the Rights of Persons with Disabilities (CRPD Committee), S.C. v Brazil, UN Doc. CRPD/C/12/D/10/2013 (2014), para 6.3. Emphasis added. 133 On this point, see Francesca Ippolito, ‘Vulnerability as a Normative Argument for Accommodating “Justice” within the AFSJ’ [2019] European Law Journal 1. 134 Case C‑578/16 PPU C.K. EU:​C:​2017:​127. See also Case C-353/16 MP EU:​C:​2018:​276. 135 Case C‑578/16 PPU C.K. EU:​C:​2017:​127, para 55. Emphasis added. 136 Ibid para 66.

48  Research handbook on EU disability law from illness, whether physical or mental, may be covered by Article 3 ECHR if it is, or risks being, exacerbated by treatment for which the domestic authorities can be held responsible.137 The CJEU contended that there were ‘no substantial grounds for believing that there are systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in Croatia, with regard to access to health care’.138 However, the Court held, inter alia, that when the transfer of an asylum seeker with a severe mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in their state of health, that transfer would constitute inhuman and degrading treatment, within the meaning of Article 4 CFR.139 In that vein, the CJEU also stated that: in particular in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from one Member State to another, but all the significant and permanent consequences that might arise from the transfer must be taken into consideration.140

Ultimately, the Court remitted this point to the national court to decide whether, even when taking all precautions, the transfer of C.K. would result in a real risk of a significant and permanent worsening of her state of health. In that case, the CJEU held that it was for the authorities of the Member State to suspend the execution of the transfer of the person concerned. On the whole, the CJEU has not yet adopted a ‘disability lens’ in such cases, but Article 4 CFR constitutes a shield to protect the rights of asylum seekers with disabilities and has significant potential in enhancing the rights of disabled people in cases of forced migration and international protection procedures.

5.

THE ROLE OF THE CHARTER IN PROTECTING PEOPLE WITH DISABILITIES ACCUSED OF CRIMES

Article 6 CFR provides for the right to liberty and security of the person. The rights that are guaranteed under this Article are those protected by Article 5 ECHR.141 The latter provision Ibid para 67. Ibid para 71. 139 Ibid para 74. 140 Ibid para 76. 141 Article 5 ECHR establishes that: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. 137 138

Disability in the EU Charter of Fundamental Rights  49 of the ECHR, at paragraph 1, refers to certain categories of individuals, including ‘persons of unsound mind’, who may be deprived of their liberty in order to have medical treatment administered or because of considerations related by social policy. The ECtHR has established that Article 5, paragraph 1 cannot justify the detention of someone ‘simply because his or her views or behaviour deviate from established norms’.142 In a number of cases related to the compulsory confinement of persons with disabilities in psychiatric institutions, the ECtHR has consistently held that a ‘person of unsound mind’ must be allowed to be heard, either in person or, where necessary, through some form of representation.143 In the case of Winterwerp v Netherlands,144 the Strasbourg Court also set out three conditions that must be satisfied in order for the detention of ‘a person of unsound mind’ to be lawful within the meaning of Article 5(1), and to avoid arbitrary institutionalization of persons with intellectual disabilities. In particular, it has held that: the individual concerned must be reliably shown to be of unsound mind before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.145 In addition, the Strasbourg Court made it clear that the possibility to hold ‘persons of unsound mind’ in detention cannot be applied so as to undermine the right to a fair trial.146 In the EU context, Article 6 CFR has featured in the case law of the CJEU mostly in relation to the AFSJ. In particular, case law on the transfer of detainees and on the European Arrest Warrant has brought to the attention of Luxemburg judges the issues of arbitrary detention and deprivation of liberty in violation, or in the absence, of clear and legally certain procedures, combined with poor conditions of imprisonment.147 Article 6 CFR (in conjunction with Article 47 CFR, on the right to an effective remedy before a court and to a fair trial) has been important in guaranteeing the effective enjoyment of procedural guarantees provided for in EU secondary law within the scope of cooperation in criminal matters.148 In Rayonna prokuratura Lom,149 the CJEU was confronted with the realities of detention in psychiatric facilities and the lack of procedural guarantees in cases involving institutionalization. This case is particularly relevant, as it shows the importance of Article 6 CFR and of Article 47 CFR in protecting Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.’ 142 ECtHR, Guide on Article 5 of the European Convention on Human Rights (2019), p. 24, citing Rakevich v Russia, Application no. 58973/00 (ECtHR, 28 October 2003) https://​www​.echr​.coe​.int/​ Documents/​Guide​_Art​_5​_ENG​.pdf accessed 2 March 2020. 143 Ibid. 144 Winterwerp v Netherlands, Application No. 6301/72 (ECtHR, 24 October 1979). 145 Ibid para 38. 146 N. v Romania, Application No. 59152/08 (ECtHR, 28 November 2017). 147 On this issue, see Mancano, ‘Storming the Bastille: Detention Conditions, The Right to Liberty and the Case for Approximation in EU Law’ (n 127). 148 For an overview, see John R Spencer, ’EU Criminal Law’ in Catharine Barnard and Steve Peers (eds), European Union Law (Oxford University Press 2014). See also https://​www​.europarl​.europa​.eu/​ factsheets/​en/​sheet/​155/​judicial​-cooperation​-in​-criminal​-matters accessed 2 March 2020. 149 Case C-467/18 Rayonna prokuratura Lom EU:​C:​2019:​765.

50  Research handbook on EU disability law and promoting the rights of persons with intellectual and psychosocial disabilities, and in preventing arbitrary institutionalization. The case originated from a request for a preliminary ruling raised by a Bulgarian District Court, concerning the interpretation of various provisions of directives related to the common minimum standards for criminal proceedings, including Article 8(2) of Directive 2012/13/EU on the right to information in criminal proceedings,150 Article 12 of Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings,151 as well as Articles 6 and 47 CFR. The request arose in judicial proceedings for an order that Mr E.P., who had admitted to having killed his mother, be committed to a psychiatric hospital. The Public Prosecutor’s Office had concluded that compulsory medical measures should be ordered on the ground that Mr E.P had intentionally committed an offence in a state of ‘mental disorder’ such that he could not be held to be criminally responsible. However, the national court had doubts as to whether the national provisions governing the compulsory admission of mentally ill persons to a medical facility invoked by the public prosecutor were in conformity with the rights guaranteed, inter alia, by the CFR. Those doubts principally concerned Article 427 et seq of the Bulgarian Code of Criminal Procedure, which allow for the committal to a psychiatric hospital of a person representing a danger to society, as well as those provisions of the Health Law allowing for the compulsory committal of a person, as a preventive measure, where there are grounds to believe that, in view of his state of health, he is likely to commit a criminal offence. In answering these questions the Court cited Article 5(1)(e) ECHR and the leading disability case of Stanev v Bulgaria.152 It reiterated that Article 5 has been construed by the ECtHR as obliging States to take measures providing effective protection of ‘vulnerable persons’.153 Accordingly, in light of the right to liberty and security guaranteed by Article 6 CFR, the Court held that Directives 2012/13 and 2013/48 cannot be interpreted as excluding from their scope judicial proceedings in which an order may be made for the committal to a psychiatric hospital of a person who, at the conclusion of earlier criminal proceedings, was found to be the perpetrator of acts constituting a criminal offence.154

In line with this finding, the CJEU recognized that all of the procedural rights guaranteed by those Directives apply in case of a procedure related to psychiatric confinement. The Court, however, held that neither EU legislation nor the Charter apply to judicial proceedings for the committal of an individual to a psychiatric hospital for therapeutic purposes, as a preventative measure. The Court also held that Article 47 CFR must be interpreted as precluding national legislation which provides for judicial proceedings authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society, where that legislation does not enable the court with jurisdiction to verify that the Directive 2012/13/EU on the right to information in criminal proceedings [2012] OJ 2012 L142/1. Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ 2013 L294/1. 152 Stanev v Bulgaria, Application No 36760/06 (ECtHR, 17 January 2012), para 120. 153 Case C-467/18 Rayonna prokuratura Lom EU:​C:​2019:​765, para 44. 154 Ibid para 46. 150 151

Disability in the EU Charter of Fundamental Rights  51 procedural rights covered by those directives were respected in proceedings prior to those before that court, which were not subject to such judicial review.155

On the whole, this case is certainly breaking new ground, and has significant implications for people with intellectual and psychosocial disabilities accused of crimes. This is likely the first time the Court has explicitly dealt with the procedural guarantees surrounding the placement of a person with a psychosocial disability in a psychiatric institution, and the first time it has held that confinement without the necessary procedural guarantees violates the Charter. This decision does, however, also illustrate the limits of EU law, and of the Charter, where provisions related to people who have been institutionalized through preventative measures are concerned. This ultimately constrains the possibility for the Charter to act as a shield against systemic violations of fundamental rights in long-term institutionalization settings.

6.

CONCLUDING REMARKS

This chapter has shown that the CFR is an important instrument for the protection and promotion of the rights of persons with disabilities. However, its potential is still largely untapped. Thus far, disability discrimination case law confirms that the Charter is ‘an instrument condensing and rationalising a settled practice (costituzione-bilancio) rather than a blueprint for further development in the area of human rights (costituzione-programma)’.156 Articles 21 and 26 CFR have undoubtedly contributed towards making the rights of people with disabilities more visible within EU constitutional law,157 but have yet to play a significant role. This confirms what de Búrca and, most recently, Ward have termed ‘a muted impact on the evolution of EU equality law’.158 The CJEU has been wary and has ruled out the applicability of the Charter, to avoid extending the grounds of discrimination (for example to obesity or to a limitation of temporary duration) beyond those listed in the Treaty and in the Employment Equality Directive. In doing so, however, it has attempted a social model-oriented interpretation of the ground of disability. Article 26 CFR, having been qualified by the CJEU as a principle which is devoid of direct enforceability per se,159 might however display significant effect in the future should the EU assess the validity of recent disability legislation such as the EAA vis-à-vis that Article. Interestingly, Articles 4 and 6 CFR – whose corresponding ECHR Articles have been of great importance in shaping the disability jurisprudence of the Strasbourg Court – feature prominently in most recent CJEU decisions related to people with intellectual and psychosocial disabilities in the field of asylum and in the AFSJ. It remains to be seen whether their potential will be exploited in the future, in particular in relation to detention conditions, and whether, for example, the issue of reasonable accommodation will be brought to the fore by the CJEU in the same way the ECtHR has done. Ibid para 63. Fontanelli, ‘National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu?’ (n 29). 157 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 158 Ward, ‘The Impact of the EU Charter of Fundamental Rights on Anti-discrimination Law: More a Whimper than a Bang?’ (n 57) 41. 159 Case C-356/12 Wolfgang Glatzel v Freistaat Bayern EU:​C:​2014:​350, para 78. 155 156

4. Negotiation, ratification and implementation of the CRPD and its status in the EU legal order Merijn Chamon

1. INTRODUCTION Following ratification by Ireland in 2018, all of the EU Member States have now ratified the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). In all, 22 Member States (including the United Kingdom) have also ratified the CRPD’s Optional Protocol (OP-CRPD). The EU itself acceded to the UN Convention in December 2010, but it has not ratified the OP-CRPD to date. The CRPD was the very first human rights convention to which the EU acceded.1 Given the EU’s complex internal division of competences, the EU and its Member States have acceded to the CRPD jointly. For this reason, the CRPD is a so-called ‘mixed’ agreement, in EU law terms. The EU’s accession to the CRPD concurrently with its Member States raises a number of important legal questions, notably in relation to the precise competence pursuant to which the EU has acceded to the UN Convention (which also explains why the EU has not acceded to the OP-CRPD), and the extent to which it has exercised its competence (which, concomitantly, determines the degree of exercise of competence by the Member States). Moreover, questions have arisen about the jurisdiction of the Court of Justice of the EU (CJEU) to interpret the CRPD. This chapter is divided into five further sections. Section 2 will briefly point out the characteristics of mixed agreements in EU law, following which section 3 will discuss the reasons for the CRPD being a mixed agreement and the repercussions this has had for the negotiation, ratification and implementation of the UN Convention. Section 4 then examines the EU law obligations that flow from mixed agreements and that are imposed on EU Member States. Section 5 applies this framework to the CRPD, while section 6 concludes.

2.

MIXED AGREEMENTS IN EU LAW

Before discussing the mixed nature of the CPRD itself, it is necessary to briefly introduce the concept of a ‘mixed agreement’ in EU law. In light of this, the specificities of the CPRD itself will be presented in section 3 below.

1 Sacha Prechal, ‘The European Union’s accession to the Istanbul Convention’ in Koen Lenaerts, Jean-Claude Bonichot, Heikki Kanninen, Caroline Naômé and Pekka Pohjankoski (eds), An Ever-Changing Union? Perspectives on the Future of EU Law in Honour of Allan Rosas (Hart Publishing 2019) 279–92.

52

Negotiation, ratification and implementation of the CRPD  53 The EU has been termed an ‘open federation’, in the sense that both the EU and its Member States may act simultaneously in the external sphere.2 EU external competences are largely parallel – or complementary, as Dashwood and Heliskoski would say3 – to the EU’s internal competence. This is reflected in Article 216(1) of the Treaty on the Functioning of the European Union (TFEU), which, inter alia, provides that the EU has external competence when this is ‘necessary to achieve […] one of the objectives referred to in the Treaties’. As a result, the EU has not been vested with plenary treaty-making power.4 This constitutional setup has provided the conditions for the practice of ‘mixity’ to flourish in the EU’s external relations. Mixed agreements are international agreements concluded by both the EU and (some or all of) the EU Member States, on the one hand, and one (or more) subject(s) of international law, on the other hand.5 In light of this, the question arises as to when an international agreement will be concluded in the form of such a mixed agreement on the part of the EU and its Member States, and when it will be concluded by the EU on its own.6 Until very recently, the position defended by most EU Member States was that the EU could only act on its own when such an agreement came wholly within the EU’s exclusive competences, as foreseen in Article 3 TFEU.7 Since the default category of EU competence is that of shared (concurrent) competences,8 mixed agreements would then constitute the rule, an agreement by the EU itself being possible only when it can be shown (typically by the EU Commission) that the EU has exclusive competence with regard to every element covered by the agreement.9 Notably, however, in a recent judgment the Court confirmed that it is possible for the EU to act alone, externally, pursuant to a merely shared (concurrent) competence.10 This, of course, complicates matters because the EU does not necessarily have to exercise the shared competences that it possesses: if the EU

2 Robert Schütze, Foreign Affairs and the EU Constitution: Selected Essays (Cambridge University Press 2014) 173. 3 Alan Dashwood and Joni Heliskoski, ‘The Classic Authorities Revisited’ in Alan Dashwood and Christophe Hillion (eds), The General Law of EC External Relations (Sweet & Maxwell 2000) 12–13. 4 Schütze, Foreign Affairs and the EU Constitution (n 2) 195–96. This is different from other ‘federal’ polities – in that regard, see the comparative analysis by Joseph Weiler, ‘The External Legal Relations of Non-unitary Actors: Mixity and the Federal Principle’ in David O’Keeffe and Henry Schermers (eds), Mixed Agreements (Kluwer 1983) 35–83. 5 Stefan Kadelbach, ‘Handlungsformen und Steuerungsressourcen in den EU-Außenbeziehungen’ in Armin Hatje and Peter-Christian Müller-Graf (eds), Europäische Außenbeziehungen (Nomos 2014) 207–71 at 227. 6 Note, however, that even in the latter case, Article 216 TFEU provides that ‘[a]greements concluded by the Union are binding upon […] its Member States’. 7 The argument proposed by the Hungarian government in relation to the Marrakesh Treaty is a typical example of this. In that regard, see Opinion of Advocate General Wahl, Opinion 1/13 on the Marrakesh Treaty EU:​C:​2016:​657, paras 118–19. 8 Article 4(1) TFEU. 9 Given the limited number of areas in which the EU has a priori exclusive competence (see Article 3(1) TFEU), the question will typically be whether the agreement comes under one of the scenarios foreseen in Article 3(2) TFEU (which codifies the notion of implied exclusive competence). On this point, the Court’s established case law provides that ‘[i]n accordance with the principle of conferral as laid down in Article 5(1) and (2) TEU, it is […] for the party concerned to provide evidence to establish the exclusive nature of the external competence of the EU on which it seeks to rely’. See e.g. Case C-114/12 Commission v Council EU:​C:​2014:​2151, para 75. 10 Case C-600/14 Germany v Council EU:​C:​2017:​935, paras 50–51.

54  Research handbook on EU disability law Council decides not to exercise an EU shared competence, it leaves the necessary legal scope for the Member States to exercise their (shared) competence. As the law currently stands, the Council’s choice in this respect is entirely discretionary.11 Mixity, then, is ‘facultative’ if shared competences are at issue (regardless of whether these are combined with EU or Member State exclusive competences), whereas it is obligatory if an agreement covers matters within the exclusive competences of both the EU and the Member States.12 If an agreement is concluded as a mixed agreement rather than an EU-only agreement, a number of practical problems (with legal ramifications) are created in terms of the implementation of the agreement and the representation of the EU and its Member States in the bodies set up by the agreement, as well as in relation to the international responsibility of the EU and its Member States for the commitments entered into through the conclusion of the agreement. In Opinion 1/94 relating to the World Trade Organization (WTO) agreements, the Commission had therefore tried to convince the Court to rule in favour of concluding the WTO agreements as EU-only agreements, despite the underlying competences being shared.13 However, the Court dismissed arguments based on the practical difficulties related to ‘mixity’, effectively confirming that EU-only agreements are only legally required insofar as the agreements come within exclusive competences, and affirming the position that if shared competences are at issue (and insofar as the ERTA doctrine does not apply), it is entirely up to the Council to decide whether or not to make use of these EU competences.14 The Court, in Opinion 1/94, was not oblivious to the ‘practical difficulties’ invoked by the Commission, but its ruling on those difficulties was rather succinct. In situations of mixed action there is, according to the Court, an obligation incumbent on the EU and the Member States to ensure close cooperation, flowing from the requirement of unity in the international representation of the Union.15 In the subsequent FAO case, the Court found that internal arrangements, such as inter-institutional agreements concluded between the EU institutions, are concrete means by which to put this duty of close cooperation, ensuring unity in the international representation of the Union, into effect.16 As the law stands, there is no obligation flowing from the requirement of unity to conclude such internal arrangements so as to ensure the proper implementation of mixed agreements, but FAO does make clear that if such arrangements have been concluded, they may be binding and, therefore, enforceable against the EU institutions (and the Member States).

11 For a discussion of the possibilities to somehow qualify this unfettered political choice, see Merijn Chamon, ‘Constitutional Limits to the Political Choice for Mixity’ in Eleftheria Neframi and Mauro Gatti (eds), Constitutional Issues of EU External Relations Law (Nomos 2018) 137–66. 12 Allan Rosas, ‘Mixity Past, Present and Future: Some Observations’ in Merijn Chamon and Inge Govaere (eds), EU External Relations Post-Lisbon: The Law and Practice of Facultative Mixity (Martinus Nijhoff Brill 2020 forthcoming). 13 Opinion 1/94 on the WTO Agreements EU:​C:​1994:​384, para 106. 14 Ibid para 107. 15 Ibid para 108. 16 Case C-25/94 Commission v Council EU:​C:​1996:​114, para 49.

Negotiation, ratification and implementation of the CRPD  55

3.

THE CRPD: A CASE OF OBLIGATORY MIXITY

Given that mixity may either be facultative or obligatory, it is useful to analyse the different provisions of the CRPD to determine whether they are all covered by either shared, supporting or exclusive EU competences. If they are, there is, in principle, an option for the Council to conclude the CRPD on behalf of the EU on its own, with the CRPD then becoming binding for the Member States by virtue of EU law. If, however, at least one provision of the CRPD comes under exclusive national competence, mixity becomes obligatory (given that there are also exclusive EU competences involved). Although addressing the competence question requires a close and detailed analysis of the international agreement in question, it would appear at first sight that the CRPD is largely covered by the EU’s supporting, shared and exclusive competences.17 At the same time, however, some CRPD obligations arguably come under the exclusive competence of the Member States, requiring their involvement in implementation and thus making mixity obligatory. Some of the CRPD provisions which may be noted in this regard are Article 18 CRPD, which deals, inter alia, with the question of nationality and registration at birth;18 Article 12 CRPD on legal capacity; and Article 23 CRPD, which affirms the right to marriage.19 Since one such element of exclusive national competence is enough to turn the whole agreement into an obligatory mixed agreement, it appears that the CRPD represents a case of obligatory mixity.20 Even regardless of these elements, however, concluding the CRPD as a mixed agreement rather than an EU-only agreement would appear preferable, given the broad scope and the far-reaching objectives of the UN Convention. Under the subsidiarity principle,21 the Member States seem to be better placed than the EU to pursue several of the commitments enshrined in the CRPD.

17 The supporting competences at issue are, notably: culture and education (Article 6 TFEU); relevant shared competences (cf. Article 4 TFEU) are, notably: social policy, research and development, internal market, and so on. In addition, given that a series of CRPD provisions affect common rules adopted by the EU institutions (such as the Employment Equality Directive), the EU also has a supervening exclusive competence for part of the CRPD. 18 Confirming the acquisition of nationality as a national (exclusive) competence (which, nonetheless, has to be exercised while respecting EU law). In that regard, see, among others, Case C-221/17 Tjebbes EU:​C:​2019:​189, para 30. 19 See Case C-673/16 Coman EU:​C:​2018:​38, para 37. 20 See Chamon, ‘Constitutional Limits to the Political Choice for Mixity’ (n 11) 141. 21 On the relevance of this principle for the EU’s external relations, see, among others, Isabelle Bosse-Platière, ‘L’application du principe de subsidiarité dans le cadre de l'action extérieure de l’Union européenne’ in Eleftheria Neframi and Mauro Gatti (eds), Constitutional Issues of EU External Relations Law (Nomos 2018) 111–36; see also Geert De Baere, ‘Subsidiarity as a Structural Principle Governing the Use of EU External Competences’ in Marise Cremona (ed), Structural Principles in EU External Relations Law (Hart Publishing 2018) 93–115; Isabelle Bosse-Platière and Marise Cremona, ‘Facultative Mixity in the Light of the Principle of Subsidiarity’ in Merijn Chamon and Inge Govaere (eds), EU External Relations Post-Lisbon: The Law and Practice of Facultative Mixity (Martinus Nijhoff Brill 2020 forthcoming).

56  Research handbook on EU disability law 3.1

Negotiation, Ratification and Implementation of the CRPD

In 2004, the Council, pursuant to current Article 218(3) TFEU, authorized the Commission to negotiate the CRPD on behalf of the EU.22 On foot of a proposal of the Commission, the Council subsequently authorized the signature of the CRPD on behalf of the EU, in accordance with current Article 218(5) TFEU.23 As with any act of the Union, the decision authorizing the signature needs to identify a legal basis in the EU Treaties which confers the necessary competences on the Union to act.24 In 2007, both the Commission, in its proposal, and the Council, in its decision, were in agreement on the legal basis, identifying the internal market legal basis (Article 114 TFEU) and Article 19 TFEU on non-discrimination, inter alia, on the ground of disability.25 However, when the final decision on the conclusion of the CRPD was proposed by the Commission, it added further legal bases. Apart from the two Treaty provisions relied upon for signature of the CRPD, the Commission also proposed to rely on Articles 31 (on the Common Customs Tariff), 53(1) and 62 (on mutual recognition of qualifications), 91(1) and 100(2) (on transport), 109 (on State Aid), 113 (on tax matters) and 338 TFEU (on statistics).26 The Council decision on the conclusion of the CRPD only refers to Articles 19 and 114 TFEU,27 however, which may be seen as an attempt to limit the scope of the commitments entered into by the EU.28 As noted above, most of the CRPD provisions would seem to come under the EU’s supporting, shared and exclusive competences, but the identification of only Articles 19 and 114 TFEU as legal bases suggests that the EU is not exercising its supporting and shared competences to the fullest. Unless the view is taken that the EU has exercised these competences to the fullest but that issues such as transport, statistics, and so on are ancillary,29 the choice of legal basis suggests that the EU only acts in relation to the CRPD’s provisions that aim to ensure the equal

22 Commission, ‘Proposal for a Council Decision on the signing, on behalf of the European Community, of the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol’ COM (2007) 77 final, p. 2. 23 See Council Decision on the signing, on behalf of the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, Doc. 7661/07. 24 Emphasizing the constitutional significance of the choice of legal basis, see Opinion 2/00 on the Cartagena Protocol EU:​C:​2001:​664, para 5. 25 See Commission, ‘Proposal for a Council Decision on the signing, on behalf of the European Community, of the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol’ (n 22). See also Draft Council Decision on the signing, on behalf of the European Community, of the United Nations Convention on the Rights of Persons with Disabilities Doc. 7401/1/07. 26 Commission, ‘Proposal for a Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities – Proposal for a Council Decision concerning the conclusion, by the European Community, of the Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities’ COM (2008) 530 final. 27 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. The Commission made a reservation to the Council’s choice of legal basis. In that regard, see Council of the European Union, 25 November 2009, Doc. 15533/09 ADD 1. 28 For a similar issue in relation to the Istanbul Convention, see Prechal, ‘The European Union’s Accession to the Istanbul Convention’ (n 1). 29 However, for the Commission, this would be difficult to argue since it included these legal bases in its proposal, suggesting that at that time, the Commission did not consider the relevant provisions to be ancillary.

Negotiation, ratification and implementation of the CRPD  57 treatment of people with disabilities in matters related to the internal market. Indeed, when Ireland, in the Mox Plant case, argued that the EU had only acceded to the United Nations Convention on the Law of the Seas (UNCLOS) in relation to the latter’s provisions on fisheries but not in relation to the environmental provision, the Court noted that the Council’s Decision approving the EU accession to UNCLOS was based, inter alia, on the current Article 192 TFEU, suggesting that the EU had also exercised its competence in environmental matters.30 The EU’s Declaration of Competence in relation to the CRPD, as finally decided upon by the Council, and which differs significantly from the one proposed by the Commission,31 can also be read in this light. It provides that ‘when Community rules exist but are not affected [by the provisions of the CRPD], in particular in cases of Community provisions establishing only minimum standards, the Member States have competence, without prejudice to the competence of the European Community to act in this field’. While this provision may be read as indicating that the EU has only exercised its exclusive competences, the Court, again in Mox Plant, interpreted an identical provision in the EU’s Declaration of Competence for the UNCLOS as a confirmation of the EU having also exercised its shared competences.32 Similarly to the Council’s approach to the Istanbul Convention, the above ‘suggests that the Council, having rejected the broad approach of the Commission, prefers a screening of the Convention, provision by provision, in order to establish the nature of the respective competences’.33 As a result, for those provisions of the CRPD coming under shared competences that are not covered by Article 19 and 114 TFEU, the EU Member States would only be bound under international law, and the EU’s enforcement mechanisms could not be relied upon to ensure the Member States’ compliance with those provisions. The Commission had also proposed that the EU (sign and) accede to the OP-CRPD.34 Since Article 19(1) TFEU iuncto Article 218(8) TFEU prescribe unanimity voting in the Council, every single Member State has a veto on the accession of the EU to the OP-CRPD. To date, at least three Member States have objected to the EU signing and acceding to it.35 Not coincidentally, there are also three EU Member States that have not signed the OP-CRPD in their individual capacity at the moment of writing: the Netherlands, Ireland and Poland.36 This may be surprising given that the Committee established pursuant to the OP-CRPD, the Committee

Case C-459/03 Commission v Ireland EU:​C:​2006:​345, para 97. Compare Annex 2 of Commission, ‘Proposal for a Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities’ (n 26), with Annex II of Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. 32 See infra section 4.2. 33 Prechal, ‘The European Union’s Accession to the Istanbul Convention’ (n 1). 34 Commission, ‘Proposal for a Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities’ (n 26). 35 See Council of the European Union, ‘Draft Council Decision on the signing, on behalf of the European Community, of the United Nations Convention on the Rights of Persons with Disabilities’, Doc. 7401/1/07 REV 1, p. 2. It may be noted that, in their individual capacity, Ireland, Poland and the Netherlands have not signed the Optional Protocol to the CRPD, while Bulgaria, Czechia and Romania have signed but not ratified the protocol. All the other EU Member States are Parties to the Optional Protocol. 36 In addition, Bulgaria, Czechia and Romania have signed but not ratified the protocol. All the other EU Member States are Parties to the Optional Protocol. 30 31

58  Research handbook on EU disability law on the Rights of Persons with Disabilities (CRPD Committee), may only issue non-binding recommendations; but, at least for the Netherlands and Ireland, it seems that these countries will postpone accession to the OP-CRPD until they have fully implemented the CRPD itself.37 In addition, the Dutch recalcitrance regarding accession seems to be inspired by past experience. Non-binding recommendations adopted pursuant to agreements similar to the OP-CRPD have apparently been relied upon by Dutch judges in legal proceedings.38 In terms of content, the Council’s decision on accession to the CRPD foresees that the Commission, the Council and the Member States must agree on a code of conduct, spelling out the arrangements for the detailed functioning of the focal points (provided for in Article 33 CRPD),39 and for the representation and voting by the EU and its Member States in the bodies set up by the CRPD.40 The Code of Conduct was adopted in 2010, specifically for the coordination of EU and Member State action under the CRPD, and it therefore applies instead of the general arrangements for EU Statements in multilateral organizations.41 The approach underlying both the general arrangements and the Code of Conduct is the same, however, and is premised on the identification of the precise competence that exists for every issue on the agenda, in order to determine which entity will act at the international level.42 While the language used in the Code of Conduct could be read as implying that it is largely a non-binding document,43 it should be noted that it actually resembles closely the language used in the FAO Arrangements that the Court held to be binding in FAO. This means that the coordination mechanisms foreseen in the Code could possibly be enforced vis-à-vis the Member States in order to ensure ‘the effectiveness of the international action of the European Union, as well as its credibility and reputation on the international stage’.44 On the whole, the Code sets out the arrangements for the preparation of, and participation in, meetings of the bodies created by the CRPD and lays down the details of the focal points’ functioning.45 It subsequently makes clear that the division of tasks between the EU institutions and the Member States is ‘based on competence’. As noted above, three main 37 See the reply of the Minister of State at the Department of Justice and Equality on 2 April 2019 to the Question of Róisín Shortall on the CRPD; a similar issue in Poland is apparent from the reply of the Undersecretary of State to interpellation No. 5217 on the possible ratification of the United Nations Convention on the Rights of Persons with Disabilities http://​orka2​.sejm​.gov​.pl/​IZ6​.nsf/​main/​5F8F7E7E accessed 1 February 2020. 38 See Vaststelling van de begrotingsstaat van het Ministerie van Buitenlandse Zaken (V) voor het jaar 2019, Eerste Kamer, Vergaderjaar 2018–2019, 35 000 V, D, pp. 1–3. 39 On the implementation of Article 33 CRPD, see Alexander Hoefmans, ‘The EU Framework for Monitoring the CRPD’, in this volume. 40 See Articles 3 to 4 of Council Decision 2010/48. 41 See Council of the European Union, EU Statements in multilateral organisations – General Arrangements Doc. 15901/11. 42 See also the critique on this by Ramses Wessel and Bart Van Vooren, ‘The EEAS’s Diplomatic Dreams and the Reality of European and International Law’ (2013) 20(9) Journal of European Public Policy 1350. 43 Notably, on the predominant use of the term ‘will’ rather than ‘shall’, see Legal Directorate of the Foreign and Commonwealth Office, Treaties and MOUs – Guidance on Practice and Procedures, March 2014, p. 15. 44 Case C-620/16 Commission v Germany EU:​C:​2019:​256, para 98. 45 Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ C340/11, p. 11.

Negotiation, ratification and implementation of the CRPD  59 Table 4.1

Modus operandi established in the Code of Conduct Modus operandi

Nature of the competence Member State competence

The Member State will aim at elaborating coordinated positions whenever it is deemed appropriate.

Exclusive EU competence

The EU will aim at elaborating Union positions.

Shared and supporting and/or supplementing competence

The Member State and the EU will aim at elaborating common positions.

competence-categories can be distinguished, and the Code of Conduct prescribes a different modus operandi for each of those (see Table 4.1). The Code of Conduct therefore distinguishes between (i) coordinated, (ii) Union and (iii) common positions. In terms of procedure, it provides that each of the three types of positions should be duly coordinated (possibly through electronic means, in urgent cases) within the relevant Council working group, and at the initiative of either the (rotating) Presidency, at the request of the Commission or (one of) the Member States. Draft statements on coordinated positions are prepared by the Presidency, while Union and common positions are drafted by the Commission. At the meetings concerned, coordinated positions will be expressed by the Presidency or by a Member State appointed by the Presidency or by the Commission, provided that all Member States present agree. Union positions, on the other hand, are expressed by the Commission. When competences are inextricably linked, common positions will be expressed ‘on behalf of the Union and its Member States’, either by the Commission or the Presidency (or a Member State). Which of the two will act thereby depends on the preponderance of the matter concerned (falling within either EU or Member State competence). The fact that arrangements, such as those included in the Code of Conduct, focus on the competence rather than on the policy question at issue has been criticized by Wessel and Van Vooren,46 because it leads to protracted internal discussions (between EU institutions and Member States) on competence questions which are immaterial to the other Parties to the CRPD. Rather than focusing on the substance of the position to be adopted by the EU (and its Member States), the EU actors devote considerable energy to the formalistic question of competence. While the critique by Wessel and Van Vooren is pertinent, in the current state of EU integration, the Member States’ sensitivities on EU competence creep appear to be inevitable, and a focus on competences seems to be unavoidable. 3.2

The CPRD’s Regional Economic Integration Organization Clause

So far, the issue of mixity has been discussed solely from an EU perspective. Of course, this is only part of the tale. Since the conferral of competences on the EU is ‘imperfect’, that is, that principle may be binding on the EU and its Member States but it cannot be enforced against third countries,47 international law will have to accommodate the EU’s peculiarities, in order

46 Wessel and Van Vooren, ‘The EEAS’s Diplomatic Dreams and the Reality of European and International Law’ (n 42) 1353–54. 47 Inge Govaere, ‘Functional and Facultative Mixity in the Light of the Principle of Partial and Imperfect Conferral’ in Merijn Chamon and Inge Govaere (eds), EU External Relations Post-Lisbon: The Law and Practice of Facultative Mixity (Martinus Nijhoff Brill 2020 forthcoming).

60  Research handbook on EU disability law for the EU and its Member States to be able to conclude agreements as mixed agreements. In the case of the CRPD, as with many multilateral conventions, this has been done through the inclusion of a regional integration organization (RIO) clause, which is included in Article 44 CRPD. That provision reads as follows: 1. ‘Regional integration organization’ shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by the present Convention. Such organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by the present Convention. Subsequently, they shall inform the depositary of any substantial modification in the extent of their competence. 2. References to ‘States Parties’ in the present Convention shall apply to such organizations within the limits of their competence. 3. For the purposes of article 45, paragraph 1, and article 47, paragraphs 2 and 3, of the present Convention, any instrument deposited by a regional integration organization shall not be counted. 4. Regional integration organizations, in matters within their competence, may exercise their right to vote in the Conference of States Parties, with a number of votes equal to the number of their member States that are Parties to the present Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.

The RIO clause in the CRPD contains a number of typical elements which are also to be found in RIO clauses contained in other conventions. In short, other Parties accept the special position of the EU and allow it to accede to the Convention jointly with its Member States, but not without securing a number of guarantees in terms of the international responsibility of the EU and in terms of voting rights. With regard to the CRPD, Article 44 provides that any international organization acceding to it must first make a declaration of competence, indicating in which areas and to which extent it has been conferred powers by its Member States. In theory, such a declaration is critically important for the other Parties to the CRPD, in order to be able to determine which Party on the EU side may be held responsible for the commitments entered into under the CRPD. The CJEU itself has held that, in the absence of a declaration of competence, the EU and the Member States are jointly responsible for fulfilling the obligations under a mixed agreement.48 For third States, it is, of course, more interesting to be able to hold both the Member States and the EU jointly and severally liable.49 In practice, however, the declarations of competence which the EU attaches to its instruments of ratification are of limited value to the other Parties to the Convention because of their lack of clarity.50 Should any dispute arise, the precise delimitation of commitments and responsibility would then have to be communicated by the EU and its Member States, without a guarantee that this would be accepted as the basis upon which to solve the dispute.51 The declarations of competence

48 Case C-316/91 Parliament v Council EU:​C:​1994:​76, paras 24–35. See also Pieter-Jan Kuijper, ‘International Responsibility for EU Mixed Agreements’ in Christophe Hillion and Panos Koutrakos (eds), Mixed Agreements Revisited (Hart Publishing 2010) 208–27, pp. 209–10. 49 Ibid 224. 50 See Andrés Delgado Casteleiro, ‘EU Declarations of Competence to Multilateral Agreements: A Useful Reference Base?’ (2012) 17(4) European Foreign Affairs Review 491. 51 Yet the ROI clause, declaration of competence and the interpretation thereof by the EU and its Member States could constitute a special rule of international law in the sense of Article 64 of the

Negotiation, ratification and implementation of the CRPD  61 themselves are unhelpful, because they typically do not set out the EU’s competence in respect of particular CRPD provisions; instead, they describe the EU’s competences in general terms and provide a list of relevant EU secondary legislation. The latter list is of crucial importance since, pursuant to the ERTA doctrine, the EU acquires an exclusive external competence to enter into international agreements insofar as those agreements ‘affect’ secondary EU legislation. However, the application of this doctrine is a matter of eternal contestation, even between EU Member States and institutions.52 Therefore, third countries cannot be said to be properly informed of the extent of the EU’s competence as a result of the EU providing a list of legislation and informing the other Parties of the existence of the ERTA doctrine. Unlike the RIO clauses in some other multilateral agreements, the clause contained in the CRPD does not explicitly put forward a condition that at least one of the international organization’s State members (in casu EU Member States) should be Party to the CRPD before the international organization itself can accede to it. In light of the AMP Antarctique case,53 this point may be of broader relevance. In that case, the Court suggested that the EU could not play an autonomous role in the implementation of the Canberra Convention,54 because its accession to the Convention (pursuant to the latter’s RIO clause) was predicated on at least one EU Member State being Party to the Convention. Although this finding was, in itself, rather questionable,55 it could still mean, a contrario, that the EU, under EU law itself, can act completely autonomously from its Member States within the CRPD framework, for example by having the Commission alone (without the Member States) present common or Union positions on the CRPD. Finally, and as Article 44(4) CRPD makes clear, an organization such as the EU may become a Party to the CRPD, but this cannot result in it acquiring more voting rights than its Member States would otherwise have.

4.

REPERCUSSIONS OF THE CRPD’S MIXED NATURE FOR THE EU LAW OBLIGATIONS OF MEMBER STATES

In the seminal Haegeman case, the Court ruled that agreements concluded by the Council on behalf of the EU form an integral part of EU law, from the date of their entry into force.56 Article 216(2) TFEU provides that ‘[a]greements concluded by the Union are binding upon the institutions of the Union and on its Member States’. However, in the case of mixed agreements (which the EU Treaties do not foresee, as such),57 this straightforward and simple rule is

Articles on the Responsibility of International Organizations (ARIO). See also Kuijper, ‘International Responsibility for EU Mixed Agreements’ (n 48) 222–23. 52 Merijn Chamon, ‘Implied Exclusive Powers in the CJEU’s Post-Lisbon Jurisprudence: The Continued Development of the ERTA Doctrine’ (2018) 55(4) Common Market Law Review 1101. 53 Joined Cases C-626/15 & C-659/16 AMP Antarctique EU:​C:​2018:​362. 54 Convention on the conservation of Antarctic marine living resources, UNTS Vol. 1329, I-22301. 55 Merijn Chamon, ‘Verplicht gemengd optreden van de Unie en de lidstaten binnen de Canberra Conventie ondanks het bestaan van een gedeelde bevoegdheid’ (2019) 67(5) Tijdschrift voor Europees en Economisch Recht 250. 56 Case 181/73 Haegeman EU:​C:​1974:​41, para 5. 57 The only recognition of mixity in the EU Treaties is the requirement of ratification by the EU and the Member States of the agreement on the EU’s accession to the ECHR in Article 218(8) TFEU.

62  Research handbook on EU disability law complicated. After all, the fact that an agreement is concluded as a mixed agreement implies, by definition, that for some provisions of the agreement, the EU does not commit itself and its Member States, those provisions not being an integral part of EU law.58 Under those provisions, the Member States are nonetheless bound, not as Member States of the EU, but as independent subjects of international law. Concretely, this means that in relation to the provisions by which the EU is bound, an obligation under EU law is also created for the Member States.59 Only for those commitments entered into as independent subjects of international law are the Member States not bound under EU law. The concrete result of this is that the enforcement mechanisms which exist under EU law, and which are much more effective than those under international law, cannot be relied upon for those latter commitments. Thus, the Commission would not be able to bring proceedings under Article 258 TFEU against Member States that fail to respect those provisions and neither would the CJEU be competent to interpret those provisions, even if they form part of an agreement concluded by the EU. While this is straightforward in itself, the situation becomes problematic since, as noted above, it is not made entirely clear in the declaration of competences for which specific provisions the EU or the Member States exercise competence. Doing so would undermine one of the advantages of ‘mixity’, that is, the fact that it allows the precise delimitation of competences between the EU and the Member States to be left in abeyance.60 One view is that, in a mixed agreement, the EU will only commit itself (and its Member States) with regard to the provisions that fall within exclusive EU competence.61 This is in line with the traditional Member State view that the EU can only conclude an agreement on its own if the whole agreement comes under EU exclusive competence. However, as noted above, the assumption that the EU cannot act independently pursuant to shared competences is legally ill-conceived, as recently confirmed by the Court.62 It is also contradicted by the Member States’ own practice in the Council.63 Determining which provisions of a mixed agreement the EU has committed itself to is, therefore, even less straightforward than determining the provisions for which the EU is exclusively competent (which in itself is already problematic). 58 See Erich Vranes, ‘Gemischte Abkommen und die Zuständigkeit des EuGH – Grundfragen und neuere Entwicklungen in den Außenbeziehungen’ (2009) 44(1) Europarecht 44; see further Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Member States (Kluwer Law International 2001) 62. 59 Case 104/81 Kupferberg EU:​C:​1982:​362, para 13; Case C-459/03 Commission v Ireland EU:​C:​ 2006:​345, para 85. 60 Guillaume Van der Loo and Ramses Wessel, ‘The Non-ratification of Mixed Agreements: Legal Consequences and Solutions’ (2017) 54(3) Common Market Law Review 735, pp. 752–58. 61 As noted by Marise Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ in Marise Cremona and Bruno de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing 2008) 125–69, p. 147. 62 Case C-600/14 Germany v Council EU:​C:​2017:​935. 63 For instance, association agreements (foreseen in Article 217 TFEU) are typically concluded as mixed agreements, but the association agreement with Kosovo was concluded by the EU on its own. Even if the Council Decision notes that this does not set a precedent, it is clear that all Member States in the Council assume that it is legally possible for the EU to conclude a broad and comprehensive agreement, such as an association agreement, on its own. See recital 5 of the preamble to Council Decision 2016/342 on the conclusion, on behalf of the Union, of the Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo [2016] OJ L71/1.

Negotiation, ratification and implementation of the CRPD  63 4.1

Determining the Court’s Jurisdiction in Relation to Mixed Agreements

The Court appears to take a lenient approach in terms of its jurisdiction to interpret the provisions of mixed agreements. As will be discussed further below, the Court takes into account the Union interest when it determines first whether the EU enjoys competence and,64 subsequently, whether it has elected to exercise that competence. In relation to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which was concluded as a mixed agreement as a result of Opinion 1/94,65 the Court noted in Hermès that the EU and its Member States had not adopted a declaration of competence, that is, they had not clarified the ‘allocation between them of their respective obligations towards the other contracting parties’.66 This meant that it was left to the CJEU to determine the matter of the sharing of competences between the EU and the Member States, since this question requires a uniform answer that only the Court is capable of giving.67 The test which the Court subsequently uses to determine whether it is up to itself or, instead, the national courts to interpret a specific provision of a mixed agreement ties in with the question as to whether the EU has already exercised its competence internally. If this is not the case, EU Member States will be deemed to have retained their competence and the provision in the TRIPS agreement will be deemed not to come within the scope of EU authority.68 In Hermès, the Court noted that the EU had already exercised its competence and therefore there was an EU interest in answering the preliminary question referred to it by the Dutch judge, even if the specific dispute at issue was not covered by EU law itself.69 Hermès, and the other cases in relation to TRIPS, all reached the Court following a preliminary reference under the current Article 267 TFEU, but another avenue that is open to the Court is the infringement procedure contained in Article 258 TFEU. The first infringement case in relation to a mixed agreement was Commission v Ireland, whereby Ireland had failed to adhere to the Berne Convention for the Protection of Literary and Artistic Works, as prescribed by the Agreement on the European Economic Area (EEA) (which was the mixed agreement in casu).70 The Court in that case suggested again that the test to determine its jurisdiction depended on whether there is an EU interest to ensure that the commitment is honoured.71 The Court tied this question to the EU having previously exercised its competences, and found that ‘the subject-matter of the Berne Convention […] is to a very great extent governed by [EU]

64 The concept of ‘Union interest’ may, of course, be used quite flexibly. While Cremona argues that it should be tied to the question of whether specific EU law (either primary or secondary) exists, she recognizes that one could also argue that it is in the Union’s interest for the Court to interpret provisions of a mixed agreement from the moment they come under the EU’s competences (regardless of whether they have already been exercised or not). See Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ (n 61) 152–54. 65 Opinion 1/94 on the WTO Agreements EU:​C:​1994:​384. 66 Case C-53/96 Hermès EU:​C:​1998:​292, para 24. 67 Joined Cases C-300/98 and C-392/98 Parfums Christian Dior EU:​C:​2000:​688, para 38; Case C-431/05 Merck Genéricos EU:​C:​2007:​496, para 37. 68 Joined Cases C-300/98 and C-392/98 Parfums Christian Dior EU:​C:​2000:​688, para 48; Case C-431/05 Merck Genéricos EU:​C:​2007:​496, paras 34–35. 69 Case C-53/96 Hermès EU:​C:​1998:​292, para 32. 70 Case C-13/00 Commission v Ireland EU:​C:​2002:​184. 71 Ibid para 19.

64  Research handbook on EU disability law legislation’.72 Despite objections from the UK, which intervened in the proceedings, the Court then confirmed its jurisdiction to rule on Ireland’s responsibility in relation to the relevant provision of the mixed EEA agreement. Similarly, in Commission v France, the Commission claimed that France had taken insufficient action to comply with the requirements imposed by the Protocol to the Barcelona Convention (a mixed agreement) for the protection of the Mediterranean Sea against pollution from land-based sources.73 While the specific infringement committed by France (the discharge of fresh water and alluvia into a saltwater marsh) was not covered by EU legislation, the Court found that it had jurisdiction: ‘Since the Convention and the Protocol […] create rights and obligations in a field covered in large measure by [EU] legislation, there is a[n] [EU] interest’74 in ensuring Member States’ compliance with the obligations imposed by the mixed agreement. The reasoning elaborated by the Court in Commission v France, invoking the notion of a ‘field covered in large measure’, might suggest that the jurisdiction of the Court under Articles 258 and 267 TFEU, respectively, is not perfectly mirrored. However, as will be discussed later in this chapter, in Lesoochranárske zoskupenie the Court subsequently also referred to this test in a preliminary ruling procedure.75 In his Opinion in Mox Plant, Advocate General (AG) Poiares Maduro argued that the threshold for the CJEU to accept jurisdiction could be further lowered, suggesting that the Commission could even bring infringement proceedings against a Member State for violations of those provisions of a mixed agreement falling outside EU competence, if such violations would also jeopardize the attainment of the EU’s objectives (given that the agreement is a mixed one).76 This proposition remains to be tested by the CJEU itself. 4.2

The Relevance of the Declaration of Competence for the Court’s Jurisdiction

It is important to note that the case law outlined above starts from the premise that the EU parties have not clarified the allocation of competences between themselves. In the TRIPS cases, as in Commission v Ireland and Commission v France, there was no declaration of competence which the Court could rely upon in its assessment. Would the same reasoning hold in those cases where there is a declaration explicitly specifying that the EU has only exercised competence in so far as there is relevant EU legislation, as is the case for the CRPD? When the EU and its Member States have given an indication of the delimitation of competences through a declaration of competences, the Court has confirmed, in the Mox Plant case, that such a declaration is also relevant for internal purposes. It can therefore be relied upon to determine whether, within the EU legal order, Member States are under an EU law obligation to respect a provision of a mixed agreement (regardless of their international responsibility).77 In Mox Plant, Ireland argued that the EU had only exercised competence in relation to

Ibid para 17. Case C-239/03 Commission v France EU:​C:​2004:​598. 74 Ibid para 29. 75 Case C-240/09 Lesoochranárske zoskupenie EU:​C:​2011:​125, para 36. 76 See the Opinion of AG Poiares Maduro in Case C-459/03 Commission v Ireland EU:​C:​2006:​42, para 33, at fn 37. As the AG notes: in such a case, the EU obligation infringed would not be the provision of the agreement but a Member State’s duty of loyal cooperation under Article 4 TEU. 77 Case C-459/03 Commission v Ireland EU:​C:​2006:​345, paras 104–11. 72 73

Negotiation, ratification and implementation of the CRPD  65 UNCLOS insofar as the EU enjoyed exclusive competence pursuant to the ERTA doctrine.78 The Court noted, however, that the declaration of competences provided that ‘[w]hen [EU] rules exist but are not affected, in particular in cases of [EU] provisions establishing only minimum standards, the Member States have competence, without prejudice to the competence of the [EU] to act in this field’.79 It relied on this to hold that the EU had exercised competence for those UNCLOS provisions pursuant to which common EU rules had been adopted, regardless of whether an ERTA effect could be shown.80 Of course, as the Court itself implies in Mox Plant, this outcome cannot be generalized for all multilateral mixed agreements, since it depends on the precise wording of the declaration of competence in question.81 However, an identical provision also features in the declaration of competence which the EU has made pursuant to Article 44 CRPD.82 Even if the Court’s reasoning in Mox Plant may be criticized,83 it would follow from that case that it may be assumed that, under the CRPD, the EU has committed itself (and its Member States) when common rules have been adopted by the EU (regardless of whether those rules are ‘affected’ in the sense of ERTA and, thus, give rise to an exclusive EU competence). In Lesoochranárske zoskupenie, the Court had to decide whether it had competence to interpret Article 9(3) of the Aarhus Convention, which is a mixed agreement. That provision prescribes that members of the public should have access to administrative or judicial proceedings in environmental cases. The NGO Lesoochranárske zoskupenie wanted to be involved in national administrative proceedings related to the granting of licences to hunt, inter alia, brown bears in Slovakia. The EU’s declaration of competence for the Aarhus Convention provided that the internal EU legal instruments in force did not fully cover the commitment under Article 9(3) of the Convention insofar as decisions by national authorities are challenged. Unless the EU were to adopt further measures, the declaration provided that the Member States remained competent in this area.84 The EU had, in fact, adopted the Aarhus Regulation,85 which regulates proceedings at EU level but does not harmonize proceedings at national level. The AG in the case concluded that the CJEU therefore had no competence to interpret Article 9(3) of the Convention, since the EU had not exercised its competence in relation to

78 Case C-459/03 Commission v Ireland EU:​C:​2006:​345, para 100, citing Article 4(3) of Annex I of the United Nations Convention on the Law of the Sea, UNTS Vol. 1833, I-31363. 79 Ibid para 104. 80 Under the ERTA doctrine, the existence of common rules is not sufficient for the EU to enjoy exclusive competence, since those common rules also need to be affected by the (provisions of the) international agreement. 81 Case C-459/03 Commission v Ireland EU:​C:​2006:​345, para 108. 82 See Annex II to Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. 83 As Cremona rightly notes, there was no real evidence of the extent to which the EU had exercised its shared competence. The Council Decision was indeed based on the EU’s environmental competence (a shared competence), but this does not tell us anything about the extent to which that competence was exercised. The declaration of competence on which the Court relied was, in fact, interpretable in multiple ways. Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ (n 61) 150–51. 84 See the declaration of competence annexed to Council Decision 2005/370 [2005] OJ L124/1. 85 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, UNTS Vol. 2161, I-37770.

66  Research handbook on EU disability law this issue.86 The Court, however, controversially found that Article 9(3) did come within the scope of EU law,87 since the EU had adopted the Habitats Directive,88 which lists the brown bear in one of its annexes. In line with Commission v France,89 the Court thus held that the issue was covered ‘to a large extent’ by EU law.90 In addition, the Court applied a Hermès-type reasoning, noting that Article 9(3) of the Convention could apply to both proceedings at EU and national level, thus warranting a uniform interpretation by the Court.91

5.

THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AS AN INTEGRAL PART OF EU LAW BINDING ON THE MEMBER STATES

It follows from the previous section that those provisions of the CRPD for which the EU has exercised competence form an integral part of EU law in the sense of Haegeman, meaning that they are binding on both EU institutions and the Member States, and fall under the jurisdiction of the CJEU. In a number of cases, the Court has also been invited to interpret the CPRD, in order to determine the obligations which it imposes on EU Member States. Procedurally, such cases may typically be brought before the Court in two ways: indirectly, through preliminary references by national judges; and directly, when the Commission brings infringement actions against the Member States for failure to comply with EU law. Procedurally, and as follows from the above, before the Court can answer such questions it needs to ascertain whether the EU has committed itself (and its Member States) in relation to the CPRD provisions invoked. 5.1

Preliminary References Related to the CRPD

In HK Danmark, the first case before the Court of Justice in which the CPRD featured, the Court referred to its general jurisprudence on the hierarchy between international agreements concluded by the EU and EU ordinary secondary legislation,92 noting that the EU’s declaration of competence refers explicitly to the Employment Equality Directive as one of the internal

86 Opinion of AG Sharpston in Case C-240/09 Lesoochranárske zoskupenie EU:​C:​2010:​436, paras 75–80. 87 The Court’s decision was criticized by several authors: see, inter alia, Laurent Coutron, ‘Chronique Droit du contentieux de l’Union européenne – Sur une apparente lapalissade: les associations de protection de l’environnement doivent pouvoir protéger l’environnement’ [2011] Revue Trimestrielle de Droit Européen 819; see also Marcus Klamert, ‘Dark Matter: Competence, Jurisdiction and the Area Largely Covered by EU Law – Comment on Lesoochranárske’ (2012) 3 European Law Review 340. For a more congenial comment on the Court’s findings, see Catherine Flaesch-Mougin, ‘Chronique action extérieure de l’Union européenne – Union européenne et système institutionnel de l’action extérieure’ [2011] Revue Trimestrielle de Droit Européen 662. 88 Council Directive (EEC) 92/43 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 89 Case C‑239/03 Commission v France EU:​C:​2004:​598. 90 Case C-240/09 Lesoochranárske zoskupenie EU:​C:​2011:​125, paras 36–38. 91 Ibid paras 42–43. 92 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk

Negotiation, ratification and implementation of the CRPD  67 measures that fall within the remit of the CRPD’s obligations.93 Substantively, as will be further discussed in Part II of this Research Handbook,94 this resulted in the Court adapting the EU definition of ‘disability’, which the Court itself had given earlier in Chacón Navas,95 so as to be in line with the conceptualization of disability provided in recital (e) of the CPRD’s preamble.96 The Z and HK Danmark cases are illustrations of how, because of the hierarchy of norms, the EU is required to follow the CPRD’s definition of ‘disability’ ‘in so far as possible’.97 ‘In so far as possible’ means that provisions of internal EU law cannot be interpreted contra legem. If an internal provision cannot be interpreted or applied in a way that is compatible with the international provision, the internal provision may be set aside, but only insofar as the provision in the international agreement has direct effect.98 The problematic nature of the ‘in so far as possible’ requirement is further illustrated in the Z and Glatzel cases.99 In Z, the Court found that the Employment Equality Directive, unlike the CPRD, does not generally target discrimination on the ground of disability, and that it does so only insofar as it results in compromising an individual’s participation in his or her professional life.100 Given the objective of the Employment Equality Directive, the general definition of disability in the CPRD could not be relied upon to broaden the scope of the Directive beyond discrimination with regard to employment and occupation.101 In Glatzel, the ‘in so far as possible’ requirement was a stumbling block because the EU provision was unequivocal. As the CJEU stated: point 6.4 of Annex III to Directive 2006/126 provides unequivocally that drivers of motor vehicles in categories C1 and C1E must have minimum visual acuity of 0,1 for the worse eye. In those circumstances, it does not appear possible to give that provision of secondary law an interpretation which would enable it to circumvent the clear rule laying down that minimum value.102

Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222, para 28. 93 Council Directive (EC) 2000/78 establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive) [2000] OJ L303/16. 94 See infra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 95 Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456, para 43. 96 See Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 38. 97 Case C-363/12 Z. v A Government department and The Board of management of a community school (Z.) EU:​C:​2014:​159, para 74; Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​ 222, para 31. 98 AG Jääskinen recently suggested to the Court to decouple the issue of the invocability of a provision of an international agreement to review the legality of EU acts from the question of that provision’s direct effect, but the Court maintained its traditional case law. See Opinion of Advocate General Jääskinen, Joined Cases C-401/12 P to C-403/12 P Council and others v Vereniging Milieudefensie EU:​ C:​2014:​310, paras 58–84. 99 Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para 71. 100 See Case C-363/12 Z. EU:​ C:​2014:​159, para 80; Opinion of Advocate General Wahl, Case C-363/12 Z. EU:​C:​2013:​604, para 90. 101 Indeed, in light of the principle of conferred powers, the EU arguably lacks competence to generally prohibit discrimination on the ground of disability. 102 Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para 71.

68  Research handbook on EU disability law In both Z and Glatzel, the Court then ascertained whether the validity of the Employment Equality Directive and Directive 2006/126,103 respectively, could be reviewed in light of the CPRD; but the Court held that this was impossible in those cases. Given the programmatic nature of the CPRD’s provisions, they were not worded in a sufficiently precise and unconditional manner so as to have direct effect.104 The Court therefore did not have to address the question as to whether the CPRD’s nature allows for direct effect.105 With regard to the Z case, however, it could be questioned whether it was at all possible to assess the validity of the Employment Equality Directive in light of the CRPD. According to the declaration of competences, the CRPD is only binding on the EU insofar as it has exercised its competence by adopting common rules. Insofar as the scope of the Directive only covers discrimination on the ground of disability in employment and occupation, and no other relevant common EU rules exist, the EU would not be bound by Articles 5, 6, 27(1)(b) and 28(2)(b) CPRD; instead, the Member States alone have assumed responsibility for these commitments.106 As a result, it would not be possible to assess the legality of EU secondary legislation in light of these provisions unless they codify customary rules of general international law,107 which arguably was not the case in Z. A final decision illustrating the complex manner in which the CRPD (as a mixed agreement) interacts with EU law and has effects vis-à-vis private parties is Milkova, where the unequal treatment of private employees and civil servants with disabilities was at issue. Again, the Court (and the AG) noted that the issue did not come under the scope of the Employment Equality Directive, because the Directive only prohibits discrimination on the ground of disability, whereas the problem at issue related to discrimination on the ground of an individual being employed as a civil servant rather than under a private employment contract. For the AG, this was the end of the story, since the prohibited grounds of discrimination are listed exhaustively in the Directive,108 and, as a result, the dispute did not even come within the scope of the Directive.109 In contrast, the Court took a different approach based on Article 7(2) of the Directive, which allows for positive action, and provides that ‘the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt […] facilities for safeguarding or promoting [disabled persons’] integration into the working environment’. The AG read this provision as confirming the sovereignty of Member States to adopt positive

Directive 2006/126/EC on driving licences (Recast) [2006] OJ L403/18. See Case C-363/12 Z. EU:​C:​2014:​159, para 90; Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para 69. Only in Glatzel did the Court suggest that not a single provision of the CRPD lends itself to direct effect, but of course this should be tested and determined for each single relevant provision. 105 Under the Court’s established jurisprudence, a provision of an international agreement concluded by the EU may only have direct effect (insofar as the agreement itself does not settle the question of direct effect): (i) when that agreement’s nature, structure and broad logic allows this and (ii) when the specific provisions relied upon are worded in a sufficiently precise and unconditional manner. 106 See also the argument of the Commission to this effect in Opinion of AG Saugmandsgaard Øe in Case C-406/15 Milkova v Izpalnitelen director na Agentsiata za privatizatsia I sledprivatizatsionen control (Milkova) EU:​C:​2017:​198, para 80. 107 See Case C-308/06 Intertanko EU:​C:​2008:​312, paras 43–51. 108 Opinion of Advocate General Saugmandsgaard Øe, Case C-406/15 Milkova EU:​C:​2016:​824, para 58. 109 Ibid para 85. 103 104

Negotiation, ratification and implementation of the CRPD  69 action, such measures falling outside the scope of EU law.110 The Court, however, noted that Article 7(2) of the Directive also had to be read in light of the CPRD, which allows for positive action and which lays down a right to equal protection, and equal benefit of the law.111 The Court then found that, if Member States pursue positive action (as permitted under Article 7(2) of the Directive), they still have to respect the principle of equal treatment. While ultimately leaving the assessment to the national judge, the Court noted that ‘the distinction made by [the national] legislation between employees with a particular disability and civil servants with the same disability does not appear to be sufficient in the light of the aim pursued by that legislation’.112 5.2

Infringement Proceedings Based on the CRPD

To date, the EU Commission has not brought any infringement proceedings against a Member State for failure to implement or respect a provision of the CRPD. However, a case was brought against Italy for failure to implement Article 5 of the Employment Equality Directive, which lays down the obligation for employers to provide reasonable accommodation. Although the Court read the notions of ‘disability’ and ‘reasonable accommodation’ in light of the CRPD, the UN Convention did not play a key role in the case, since what was in dispute was whether the lack of a clear and explicit obligation for all employers to provide reasonable accommodation amounted to an infringement of Article 5 of the Directive.113 Interestingly, following the amendment of the Italian law in question, in order to comply with the Court’s ruling, Member of Parliament (MEP) Forenza queried the Commission on whether it believed that the amendment, allowing prospective employers greater discretion in choosing which disabled persons they would employ, was in line with Articles 26 and 27 CRPD.114 In its reply, the Commission defended the view that the Italian law did not violate the EU Directive or the Charter of Fundamental Rights of the EU (CFR) and noted, equally, that it does ‘not have the competence to assess whether there is a violation of the UN Convention on the Rights of Persons with Disabilities’. This seems to be an erroneous statement, since the Commission does have such competence insofar as the matter at hand relates to an issue on which the EU has legislated or on an issue which is largely covered by EU rules (or if the standard would be further lowered as per the suggestion of AG Poiares Maduro, where there is a Union interest, pursuant to the duty of loyal cooperation, in assuring that the Member States honour the commitment in question). Indeed, even without the Court’s clarification in Milkova, Article 5 of the Employment Equality Directive needs to be interpreted in line with Article 26 and 27 CRPD, which further set out what reasonable accommodation in accessing employment should mean. This would Ibid para 72. Case C-406/15 Milkova EU:​C:​2017:​198, para 52. This type of peculiar reasoning is not uncommon in the Court’s jurisprudence. In Opinion 3/15 on the Marrakesh Treaty, the Court interpreted a provision of an EU directive, which prima facie left the Member States the freedom to restrict (or not) copyright protection, to the benefit of disabled people, not as confirming a ‘reserved domain’ for the Member States but as confirmation of the EU legislature’s intent to define an exhaustive framework on that issue. See Opinion 3/15 on the Marrakesh Treaty EU:​C:​2017:​114, para 119. 112 Case C-406/15 Milkova EU:​C:​2017:​198, para 61. 113 See Case C-312/11 Commission v Italy EU:​C:​2013:​446. 114 See Question for written answer E-005813-16 by MEP Eleonora Forenza. 110 111

70  Research handbook on EU disability law allow the Commission (and the Court) the opportunity to exercise greater scrutiny over the Member States’ policies on reasonable accommodation in infringement proceedings.

6.

CONCLUDING REMARKS

In general, and from an EU law perspective, mixed agreements, at least facultative mixed agreements, are viewed sceptically. With regard to such agreements, the formal involvement of the Member States creates a plethora of legal and practical challenges, without much evident added value. In the case of the CRPD, however, its mixed nature appears to be obligatory, because the CRPD touches on issues that come under the Member States’ reserved competences. Indeed, the mixed nature of the UN Convention is reflected in the broad scope and objectives of the CRPD. Having said this, the CRPD’s mixity is a double-edged sword, since it undoubtedly results in a legally more complex situation; but at the same time, the UN Convention being mixed means that the possibilities for effective enforcement of the CRPD by private parties vis-à-vis EU Member States are enhanced (compared to the situation where only the Member States would be Parties to the CRPD). In this regard, it should also be noted that the CRPD’s mixity is not a factor in the EU’s inability to accede to the OP-CRPD; instead, this is the result of the applicable voting threshold in the Council (i.e. unanimity), which is difficult to reach. Still, before EU mechanisms may be relied upon to ensure the enforcement of specific provisions of the CRPD vis-à-vis the Member States, it must first be determined whether the EU has in fact committed itself in relation to those provisions. When the provisions come under the EU’s exclusive competence, this issue is in principle clear, since only the EU will have the competence to undertake commitments. This question is more complicated than that, however, since the Court’s test for supervening exclusivity has evolved in recent case law and its future development is difficult to predict. For shared competences, the question is even more problematic, since the Court’s test here is whether the issue regulated by the international agreement is covered in large measure by EU legislation (France v Commission) unless a declaration of competences exists for the mixed agreement. For the CRPD, this is the case, and the declaration of competences is worded similarly to that which applies in respect of the UNCLOS (interpreted by the Court in Mox Plant). This suggests that EU mechanisms of enforcement are available for those provisions of the CRPD on which there is relevant EU legislation, regardless of whether that legislation is affected in the ERTA sense. The threshold for having recourse to the EU’s powerful enforcement mechanisms (the preliminary ruling and infringement procedures) thus seems rather low. While the Court has already developed some jurisprudence in relation to the CRPD through the preliminary ruling procedure, no infringement procedures have been brought yet in relation to the CRPD. For the latter to be the case, a bolder and more ambitious approach of the Commission seems both required and legally feasible.

5. The EU framework for monitoring the CRPD Alexander Hoefmans

1. INTRODUCTION The European Union (EU) acceded to the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention) on 23 December 2010. The CRPD entered into force for the EU on 22 January 2011.1 With this first conclusion of a human rights treaty, the EU set foot on uncharted territory.2 The EU’s accession to the CRPD was the culmination of a journey that it had started simultaneously with the Member States years before, but which had the potential to alter the dynamics between the EU and its Member States when it comes to human rights policy-making and implementation. This chapter does not aim to analyse the success or failure of the EU’s accession to the CRPD, but focuses on the status of its monitoring framework, which is in itself an indicator of the success of the accession process. As its ten-year anniversary approaches, the accession of the EU to the CRPD will undoubtedly be thrust to the forefront of academic debate, and will be the subject of retrospective and prospective analysis. Some scholars may stress that ten years is too short a timeframe to apprehend the full effect and potential of a Convention which covers such a vast field of policies as the CRPD. This is especially true given the complexities of the EU legal and institutional framework through which the UN Convention has to navigate. Those same voices can be heard when it comes to the effect of the EU Charter of Fundamental Rights (CFR),3 which – strange as it may seem, given its primary law status – is still considered to be a heavily under-used instrument.4 The presumption that implementing a policy requires a maturing process is a slippery slope for policy-makers, once the momentum of a political decision has passed. Getting it right from the start is essential. The evolution of the EU-level monitoring framework shows that re-adjusting the mechanism once it has been conceived is a formidable challenge. In section 2 of this chapter, the theoretical framework of the monitoring mechanism is set out in general terms, while the hinge that Article 33 CRPD represents as a structural incentive to successfully implementing the Convention is underlined. If the EU can be considered to be the ‘odd one out’ in terms of Parties to the Convention, its monitoring framework is certainly an equally interesting laboratory for assessing human rights implementation. The section 1 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. 2 See generally Alexander Hoefmans, ‘The EU Disability Framework under Construction: New Perspectives through Fundamental Rights Policy and EU Accession to the CRPD’ in Lisa Waddington, Gerard Quinn and Eilionóir Flynn (eds), European Yearbook of Disability Law (Intersentia 2012) vol. 3, 35–58. 3 Charter of Fundamental Rights of the European Union [2000] OJ C364/1. 4 See, for example, Chapter 2 of European Union Agency for Fundamental Rights (FRA), Fundamental Rights Report 2019 (Publications Office of the European Union 2019) https://​fra​.europa​ .eu/​sites/​default/​files/​fra​_uploads/​fra​-2019​-fundamental​-rights​-report​-2019​_en​.pdf accessed 1 February 2020.

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72  Research handbook on EU disability law focuses specifically on the guidelines which the Committee has adopted in relation to Article 33(2) CRPD, which lays down the obligation for Parties to the Convention to establish an independent monitoring mechanism. Sections 3 and 4 focus on the practical application by the EU of Article 33(2) CRPD. Section 3 describes the set-up of the EU monitoring framework and provides an analysis of the constituent bodies of the monitoring framework. Particular attention is also paid in that section to the initial review process by the Committee on the Rights of Persons with Disabilities (CRPD Committee) and to its recommendations, given the impact it has had on the further development of the framework. Section 4 then looks at the way in which the constituent bodies of the EU monitoring framework have exercised their CRPD duties and points to some shortcomings in the internal dynamics of the framework, while Section 5 sets out some concluding remarks and future perspectives.

2.

CONCEPTUALIZING THE MONITORING FRAMEWORK

2.1

Article 33 as a Driver of the Paradigm Shifts of the Convention on the Rights of Persons with Disabilities

The institutional architecture laid down in Article 33 CRPD is unique in the world of human rights implementation and monitoring mechanisms. The mixture of civil society actors, national authorities and designated monitoring mechanisms is a vital artery of consistent and coherent CRPD implementation, because it can provide for additional incentives to all major stakeholders.5 Traditionally, human rights treaties provide little guidance on national implementation and, in particular, on the mechanisms conducive to implementation. Treaty obligations are dealt with in silos by the responsible administrative authorities and are often dealt with as a subsidiary to regular national policy-making. Therefore, they are not necessarily a primary driving force leading to policy change. The implementation of treaty obligations comes to the forefront in a more subtle, indirect way of policy-making. States which have established human rights mechanisms either at governmental level (such as coordination mechanisms between authorities, parliamentary human rights committees and consultation platforms with civil society) or through independent bodies (such as National Human Rights Institutions, or NHRIs; thematic bodies, such as equality bodies; or data protection authorities) dispose of the foundations for an effective and efficient implementation of human rights treaties. However, those mechanisms will often focus on thematic issues, or will only deal with comprehensive monitoring through the process of a specific reporting procedure.6

5 For an extensive analysis of the novelty of Article 33 CRPD, see Gauthier de Beco and Alexander Hoefmans, ‘National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities’ in Gauthier de Beco (ed), Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention (Martinus Nijhoff Brill 2013) 9–66. 6 On new governance models for human rights implementation, see Sebastien Lorion, ‘A Model for National Human Rights Systems? New Governance and the Convention on the Rights of Persons with Disabilities’ (6 March 2019) https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3347628 accessed 2 February 2020. For an interesting case study on the impact of the institutional and legal framework of the CRPD on policies and practices in nine European countries, see Anne Waldschmidt, Andreas Sturm, Anemari Karaci and Timo Dins, ‘Implementing the UN CRPD in European Countries. A Comparative

The EU framework for monitoring the CRPD  73 Article 33 CRPD therefore has a clear added value. In the first place, it institutionalizes incentives to put the CRPD obligations at the forefront of policy-making through a continuous and coherent governance approach. Article 33(1) CRPD is central to that effect. Parties to the Convention should organize themselves in such a way that CRPD obligations can be efficiently implemented. Given the transversal impact of the CRPD on policy-making, it is required in Article 33(1) that governmental focal points are designated and that due consideration is given to the establishment of governmental coordination mechanisms. Second, those incentives are materialized by bringing all relevant stakeholders together, giving them a clear role and creating platforms for discussion, consultation and decision-making. If implemented correctly and with the necessary resources, implementation and monitoring frameworks can muster the required leverage for change. For a treaty which embodies fundamental ‘paradigm shifts’,7 having in place a permanent structure at multiple levels of governance is a basic necessity to follow through on the promises of the CRPD. 2.2

Interpretation of Article 33 by the Committee on the Rights of Persons with Disabilities

Given the novelty of Article 33 CRPD in the human rights landscape, there was a demand for guidance on how to apply this institutional obligation. In 2016, the CRPD Committee adopted its rules of procedure,8 and attached in an annex its ‘Guidelines on independent monitoring frameworks and their participation in the work of the Committee on the Rights of Persons with Disabilities’. These Guidelines were developed in consultation with existing monitoring frameworks and give a deeper insight into the Committee’s thinking about ways to operationalize Article 33(2) CRPD. Some core principles can therefore be drawn from them. In the first place, the CRPD Committee gives an overview of the tasks it considers essential for a monitoring framework to fulfil. They are, inter alia, promoting the harmonization of national legislation and policies with the CRPD as well as the ratification of the Convention; raising awareness of the provisions of the CRPD; providing advice to the authorities tasked with implementing the provisions of the CRPD; and, when the law allows it, carrying out investigations into, and handling, individual and group complaints alleging violations of the rights guaranteed under the CRPD.9 In terms of formal requirements for the establishment and functioning of the monitoring framework, the Guidelines mention a wide range of criteria.10 The designation or establishment of the independent monitoring framework should be done as soon as possible after the entry into force of the CRPD. The designation of the members – should there be several mechanisms – has to be done in a transparent, public, democratic and participatory manner. In particular, a broad and inclusive consultation process with persons with disabilities and their representative organizations should precede the establishment or – if a framework already exists before Study on the Involvement of Organisations Representing Persons with Disabilities’ in Rune Halvorsen, Bjørn Hvinden, Jerome Bickenbach, Delia Ferri and Ana Marta Guillén Rodriguez (eds), The Changing Disability Policy System: Active Citizenship and Disability in Europe (Routledge 2017) vol. 1, 177–95. 7 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 8 Committee on the Rights of Persons with Disabilities (CRPD Committee), Rules of Procedure, UN Doc. CRPD/C/1/Rev.1 (2016). 9 Ibid 34. 10 Ibid 34–35.

74  Research handbook on EU disability law ratification of the UN Convention – the strengthening of the monitoring framework. Once operational, involvement and participation in the framework should be meaningful and take place throughout the monitoring process. The interaction between Articles 33(2), 33(3) and 4(3) CRPD is particularly interesting in this respect. Article 4(3) CRPD anchors civil society organizations’ involvement in the actual decision-making process of implementing the CRPD obligations, which in turn reinforces its role as an external watchdog according to Article 33 CRPD. In that sense the CRPD is unique by placing representative organizations at the centre of the implementation and monitoring cycle. The Guidelines also put emphasis on the independence of the monitoring framework in relation to the focal points. In general, the authorities should refrain from directly or indirectly restricting, limiting or interfering with activities carried out by the framework. However, collaboration between the bodies of Article 33(1) and 33(2) CRPD must take place and should be formalized. The framework should also have a stable institutional basis, allowing it operational and durable independence. The mandate should be laid down in a constitutional or legislative text in order that its proper functioning is not subject to the whim of the executive branch. The framework should be appropriately funded and resourced through allocations from the national budget. It should have expeditious and full access to information, databases, records, facilities and premises, including unrestricted access to, and interaction with, any persons, entities, organizations or governmental bodies; and any requests addressed to the authorities in the exercise of its mandate should be dealt with in a timely and adequate manner. When the framework puts forward recommendations, the authorities should submit timely follow-up reports. Finally, the staff of the framework should be able to receive training on a continuous basis.11 Of particular relevance is that, when it comes to the structural set-up of the monitoring framework, the Guidelines clarify that, if the framework consists of several mechanisms, there needs to be cooperation between those entities. The framework cannot be a web of bodies acting in silos. The Guidelines do not give any indication about the type of cooperation that should take place, nor the extent to which the tasks of the framework can be shared. However, it is safe to say that Parties have discretionary power within the limits of the mandate of the various mechanisms, and to the extent that a mixed composition does not prevent the adequate functioning of the framework. However, the CRPD Committee may want to consider clarifying the boundaries of such hybrid mechanisms, to avoid deficient implementation of the monitoring framework or even non-compliance with Article 33 CRPD. The Guidelines reflect the broad consultation with NHRIs which has taken place to date, and some parts are clearly meant to provide guidance on particular challenges that specific types of human rights institutions and monitoring frameworks may face. Indeed, the importance of UN Committee Guidelines for some human rights institutions which are struggling to uphold their legitimacy in challenging national circumstances should not be underestimated. Nevertheless, having to take into account a large variety of specificities may sometimes result in vague or even mixed messages, such as the obligation of States Parties to provide, upon request of the framework, adequate support for those frameworks consisting of several mechanisms. It is not clear what form this support should take, other than the resources that it should provide; nor is it clear why support should be provided upon request of the framework when Article 33 CRPD

Ibid.

11

The EU framework for monitoring the CRPD  75 is only correctly implemented when such support is structurally guaranteed from the outset of the designation or establishment of the framework. The Guidelines also pay particular attention to States Parties with federal or decentralized administrations, recognizing the particular challenges that they encounter when it comes to, for example, ensuring coordination between the designated or established frameworks at State level.12 The Guidelines, however, put a particular emphasis on the central role of the federal or national monitoring framework, and therefore create the impression of a hierarchy amongst the relevant frameworks. This does not necessarily reflect the constitutional realities of confederations or federal States.13 Another shortcoming in the Guidelines, resulting from a preparatory consultation process limited to civil society, is that, in some respects, they reflect an introspective vision of statute and collaboration. They are very much about ensuring that the monitoring framework can properly function vis-à-vis the public authorities and, where necessary to fulfil its mandate, can obtain access to those authorities. Inversely, there is little attention paid to the pro-active role that authorities can play by collaborating with the monitoring framework outside the realm of the formal support that they are required to provide. There are areas of CRPD implementation which can benefit from synergies between implementing authorities and monitoring bodies, and which the Guidelines could have stressed. However, they sometimes fall into the trap of silo functioning. For example, they provide that advisory bodies such as disability councils or governmental committees should not be involved or take part in the activities of the monitoring framework.14 Furthermore, procedures should be put in place to prevent, regulate and resolve potential conflicts of interest or undue influence resulting from any interaction between governmental advisory bodies and the monitoring framework. This approach is, of course, particularly important for regions where independence is a major challenge, but it can be stifling in regions where close cooperation already exists, and where authorities fully respect the mandates and roles of independent institutions.

3.

THE MONITORING FRAMEWORK WITHIN THE EU LEGAL AND ADMINISTRATIVE SYSTEM

3.1

Setting Up the EU Monitoring Framework

Following EU accession to the CRPD, the European Commission came forward with a proposal to establish a monitoring framework. The Council Decision confirming EU accession designates the European Commission as the focal point for matters relating to the implementation of the CRPD,15 in accordance with Article 33(1), but omits to establish the monitoring framework. The Council Decision refers further to implementing rules which are to be developed in a code of conduct,16 but, without explicit reference to the monitoring framework, the Ibid 36. It is, for example, not clear what is meant in the Guidelines when reference is made to the central monitoring framework and why emphasis is only put on ensuring that the federal monitoring framework should be able to properly interact with the monitoring frameworks established at the other State levels. 14 CRPD Committee, Rules of Procedure (n 8) 37. 15 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23. 16 Ibid Articles 3 and 4. 12 13

76  Research handbook on EU disability law Council did not envisage anything in particular in relation to the implementation of Article 33(2) CRPD. The institutional basis for the respective designation and establishment of the bodies in accordance with Article 33(1) and 33(2) CRPD is therefore distinct. Following EU accession to the CRPD, it was not clear how Article 33(2) CRPD would be implemented. In order to properly assess the evolution of the functioning of the EU monitoring framework, a description of its initial conception is necessary. On 29 October 2012, the Council agreed, with the proposal of the European Commission indicating the following structure for the EU-level framework: the three tasks of promotion, protection and monitoring of CRPD rights would be exercised by the European Parliament’s Petitions Committee (PETI), the European Ombudsman, the European Commission, the EU Agency for Fundamental Rights (FRA) and the European Disability Forum (EDF). These five members of the framework have been mandated to exercise their Article 33(2) competences primarily in relation to EU legislation and policy (areas where the Member States have transferred competences to the EU) and, secondarily, vis-à-vis the EU institutions themselves and their internal implementation of the CRPD. Also, it has to be noted that the Commission stressed, both in its proposal and in its initial report to the CRPD Committee on behalf of the EU,17 that this framework would act complementarily to the national frameworks and independent mechanisms which, according to the Commission, bear the main responsibility for the promotion, protection and monitoring of the CRPD in the Member States. The division of the roles initially attributed to each of the five original members can be summarized as follows.18 The European Commission would play a role in fulfilling the three tasks of the framework. In terms of promotion, the Commission would encourage mutual learning, exchange of good practices and providing financial support to organizations representing persons with disabilities. Concerning the protection task, the Commission indicated that it deals with citizens’ complaints and can start infringement proceedings in the event of non-compliance by Member States. Finally, the Commission would monitor the implementation of the CRPD not only through existing mechanisms and bodies (such as ex ante impact assessments and the work of the Impact Assessment Board) but also by fulfilling its natural role as guardian of the EU treaties. In terms of monitoring, the Commission would also contribute by collecting data, through statistics, and by developing benchmarks and publishing studies. The PETI would be designated a role in the protection against CRPD breaches, through its mandate to hear petitions from EU citizens on all matters that fall within EU competence and to act as a watchdog over the EU institutions and Member States, ensuring their compliance with the CRPD. The European Ombudsman would carry out activities related to the promotion of CRPD rights, through drafting annual activity reports and via its network of ombudsmen; however, it would also play a major role in the protection and monitoring pillars, through its mandate to investigate and report on maladministration by the EU institutions, either ex officio or through citizens’ complaints. The FRA would be attributed a role with regard to both promoting and monitoring the CRPD. Raising awareness of the Convention is considered to be

17 CRPD Committee, Consideration of Reports Submitted by States Parties under Article 35 of the Convention, Initial Report of States Parties due in 2012: European Union, UN Doc. CRPD/C/EU/1 (2014) paras 227–28. 18 Ibid paras 229–40.

The EU framework for monitoring the CRPD  77 part of its mandate, which is determined by its founding Regulation 168/2007,19 as well as by its Multi-Annual Framework.20 The boundaries of its founding Regulation apply also to its monitoring role, which has been explicitly limited to the collection and analysis of data. The remit of the FRA’s competences as a member of the monitoring framework are therefore limited. Like the European Commission, the EDF would be attributed a role in executing the Article 33(2) tasks. It promotes the CRPD through its regular activities, such as awareness-raising, advocacy and publishing reports, as well as though organizing events, training and networking activities. It protects against CRPD breaches by dealing with complaints from persons with disabilities and liaising with responsible administrations to find a solution. It is not attributed a protection role in the Member States but, given its structure – it is an umbrella organization bringing together representative organizations of persons with disabilities from across Europe – the EDF will play a protection role vis-à-vis both the EU institutions and the Member States. The same applies to its monitoring role, where the EDF can examine new legislative proposals and follow their subsequent implementation. The European Commission has decided not to set up a coordination mechanism, at least not formally. In its initial report to the CRPD Committee, the EU mentions the existence of several mechanisms through which coordination takes place, including the Working Party on Human Rights (COHOM) in the Council of the EU, which developed the Code of Conduct setting out internal arrangements for the implementation by, and representation of, the EU relating to the CRPD.21 However, this Working Group only deals with the external human rights policy of the EU, so its relevance in terms of the implementation of the CRPD is limited to, for example, Article 32 CRPD (on international cooperation) or Article 11 CRPD (on situations of risk and humanitarian emergencies). Then there are the institutional questions, namely: i) to what extent it should be the COHOM Working Group that establishes the positions of the EU and its Member States before the bodies envisaged under Article 33 CRPD; and ii) which of the two should play a central role in the EU reporting procedure. The more natural working group in this respect would be the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP), which deals with the internal fundamental rights policy of the EU,22 or the Working Party on Social Questions.23 Reference is also made, in the initial report to the CRPD Committee on behalf of the EU, to the High-Level Group on Disability and the annual Work Forum on the Implementation of the UN Convention, which bring together the core of the Article 33 members (the Member States’ focal points, the European Commission and persons with disabilities and their representative organizations). However, these platforms hardly qualify as a proper governmental coordination mechanism. The Inter-Service Group on Disability, within the European Commission

19 Council Regulation (EC) 168/2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53. 20 Council Decision (EU) 2017/2269 establishing a Multiannual Framework for the European Union Agency for Fundamental Rights for 2018–2022 [2017] OJ L326/1. 21 Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ C340. 22 See generally Hoefmans, ‘The EU Disability Framework under Construction’ (n 2). 23 However, this Working Group deals with non-discrimination legislation and policies, which is too restrictive from a CRPD perspective.

78  Research handbook on EU disability law – also mentioned in relation to the implementation of the general obligations – is indeed the mechanism that comes closest to a governmental coordination mechanism. 3.2

The EU Monitoring Framework under the Scrutiny of the Committee on the Rights of Persons with Disabilities

The periodic monitoring by the CRPD Committee shows that Article 33 has been implemented in very different ways by Parties to the CRPD. Certainly, Article 33 allows for a customized implementation, taking into account the system of organization at the national (or EU) level. Also, the language of Article 33 reflects a disparity in terms of the treaty obligations contained therein, in the sense that focal points are mandatory, but coordination mechanisms are not. A monitoring framework is mandatory, but the CRPD only lays down minimum criteria, supplemented by the Guidelines adopted by the CRPD Committee. It should therefore not be surprising that the picture that emerges so far is one of major gaps in the frameworks that are being set up. In its Concluding Observations on the Initial Report of the EU, the CRPD Committee noted several concerns and recommendations which are of interest in relation to the application of Article 33. The EU monitoring of its obligations relating to specific rights is repeatedly stressed in the report. The Committee first noted in relation to the general principles and obligations that it ‘is concerned that the European Union has failed to conduct a cross-cutting, comprehensive review of its legislation aimed at harmonizing it with the Convention, and that no strategy on the implementation of the Convention across all its institutions exists’.24 The Committee therefore recommended that such a strategy be adopted, ‘with the allocation of a budget, a time frame for implementation and a monitoring mechanism’.25 In addition, the Committee pointed to the lack of a cross-cutting, overarching framework for consultation among different bodies in the EU, and with persons with disabilities, through their representative organizations. When it comes to the obligations of the EU in situations of risk and humanitarian emergencies, the Committee underlined the need to establish a monitoring and accountability framework for the implementation of EU policies and programmes.26 A similar recommendation is expressed with regard to the European Structural and Investment Funds, to ensure that they are used not for the re-development or expansion of institutions, but rather to benefit support services.27 The monitoring of the implementation of legislation on passengers’ rights,28 and progress related to the situation of women and girls with disabilities,29 is also an explicit concern of the Committee. The conclusions and recommendations of the CRPD Committee to the EU are, unfortunately, lacking in clarity. It is not clear whether the Committee mentions monitoring within the mandate of the monitoring framework or if some recommendations could be considered outside the scope of Article 33 CRPD. Aside from what may be presumed in relation to the 24 CRPD Committee, Concluding Observations on the Initial Report of the European Union, UN Doc. CRPD/C/EU/CO/1 (2015) paras 8–9. 25 Ibid. 26 Ibid para 33. 27 See infra Emma McEvoy, ‘EU Structural and Investment Funds and Disability’, in this volume. 28 CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 24) para 52. 29 Ibid paras 20–21.

The EU framework for monitoring the CRPD  79 recommendation to set up a monitoring mechanism as part of an implementation strategy, it is not explicitly stated by the Committee that the Article 33 monitoring framework at EU level should be designated to fulfil the aforementioned monitoring role, nor is it affirmed that it should be an independent monitoring body. It is therefore perfectly possible for the EU, and the European Commission specifically, to integrate separate monitoring dimensions and mechanisms into its various programmes and policies.30 In its current set-up and functioning, it would be nearly impossible for the framework to take on such a comprehensive role. This may be considered one of the shortcomings of the framework. On the other hand, regardless of which mechanism performs the monitoring role, it is clear from the obligations set by the CRPD that, in any case, the Article 33 monitoring framework should be in a position to be informed of, be associated to, or be able to evaluate, any separate monitoring exercise. Another concern of the CRPD Committee is the lack of data on persons with disabilities. This is of relevance, of course, because of the specific role that a constituent body of the monitoring framework – the FRA – plays in not only collecting data but also developing standards for comparable data. The Committee noted shortcomings in the implementation of Article 31 CRPD (on statistics and data collection) in general,31 calling for a human rights-based system of indicators and a comparable, comprehensive data collection system. The CRPD Committee has pointed more specifically to the need to step up efforts in research and data collection with regard to women and girls with disabilities,32 situations of risk and humanitarian emergencies,33 supported decision-making,34 and international development programmes.35 Finally, when it comes to Article 33 specifically, the CRPD Committee concluded that the EU implementation and monitoring framework is not fully in line with the Paris Principles,36 and that it lacks sufficient funding.37 It recommended that the European Commission withdraw from the monitoring mechanism, and that it should limit its role to acting as the focal point for the implementation of the CRPD.38 The Committee stated that, by doing so, the monitoring framework would become fully compliant with the Paris Principles. Moreover, the Committee encouraged the EU to establish a coordination mechanism in the form of an interinstitutional framework and to designate decentralized focal points in order to cover all institutions, agencies and bodies.39 The CRPD Committee also has difficulty in applying its own Guidelines to the EU. This is all the more regrettable considering the pivotal role that Article 33 plays in the implementation and monitoring of the CRPD. The legal and institutional complexity of the EU naturally does not help. The Committee seems to be, by and large, satisfied with the composition and set-up 30 The European Commission does so specifically in the area of fundamental rights through working groups on racism, non-discrimination, anti-Semitism, Roma, and so on. 31 CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 24) paras 72–73. 32 Ibid para 21. 33 Ibid para 33. 34 Ibid para 37. 35 Ibid para 75. 36 Principles relating to the Status of National Institutions (The Paris Principles) adopted by General Assembly resolution 48/134 of 20 December 1993. 37 CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 24) para 76. 38 Ibid. 39 Ibid.

80  Research handbook on EU disability law of the EU monitoring framework. Obviously, the presence of the European Commission in the framework was a point of controversy from the outset, given its central role in initiating legislation. However, a withdrawal of the Commission from the monitoring framework would not render the framework fully compliant with the Paris Principles. The sum of the remaining individual members would not necessarily amount to a fully compliant mechanism. The framework still remains a patchwork of entities, and it is debatable whether, on the basis of their nature and competences, they can fully cover the breadth of tasks to be carried out by the Article 33(2) CRPD monitoring mechanism across the spectrum of EU entities and competences.40 The European Parliament, through several of its committees, is an integral part of the monitoring framework; yet, it represents the legislative branch of the EU. While the Paris Principles indicate that representatives of Parliaments may be part of an independent NHRI, this is limited to the functioning of an NHRI which itself acts autonomously from a Parliament.41 Having a Parliament as a building block of an NHRI, without which the NHRI would not be able to perform all of its duties, is an entirely different matter. During the conception phase of the framework, the possibility was raised of having the Court of Justice of the EU (CJEU) included because of its protection role. That would have led to the absurd gathering of the actual trias politica within the realms of an independent monitoring framework. Clearly the Paris Principles were not drafted with such a set-up in mind, nor was Article 33(2) CRPD. The FRA is the member of the monitoring framework which can be considered to come closest to being a NHRI along the lines of the Paris Principles, despite some shortcomings in its functional independence. Its management board consists of two members of the European Commission, with voting rights, and the FRA is dependent on the EU institutions for its Multi-Annual Framework. Therefore, the FRA does not control the thematic areas in which it exercises its mandate and has no right of initiative other than within those fixed thematic areas. Though the thematic areas are broad and cover important fundamental rights, they fall short of giving the FRA a playing field corresponding to the entire CFR.42 In addition, the FRA has never intended to be, or to develop into, a monitoring body, in the sense conceived by the international human rights community. The founders of the FRA were explicit about that – the FRA was not to become a fundamental rights watchdog vis-à-vis the EU or its Member States.43 It was to play a role in the fundamental rights policy development of the EU, and to assist the

40 On the strength and influence of national human rights institutions and States’ incentives to establish such institutions, see Sonia Cardenas, ‘National Human Rights Institutions and State Compliance’ in Ryan Goodman and Thomas Pegram (eds), Human Rights, State Compliance and Social Change (Cambridge University Press 2012) 29–51. 41 See the section ‘Composition and Guarantees of Independence and Pluralism’, Principles relating to the Status of National Institutions (The Paris Principles) (n 36). 42 These limitations can, however, be overcome with some creativity. In that regard, see Steven Greer, Janneke Gerards and Rose Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge University Press 2018) 233. See also specifically on the sensitive issue of a potential role for the FRA in the rule of law debate, Gabriel N Toggenburg and Jonas Grimheden, ‘Upholding Shared Values in the EU: What Role for the EU Agency for Fundamental Rights?’ (2016) 54(5) Journal of Common Market Studies 1093. 43 Mark Dawson, The Governance of EU Fundamental Rights (Cambridge University Press 2017) 127.

The EU framework for monitoring the CRPD  81 EU and its Member States mainly through research and data collection.44 This is reflected in the monitoring role which the FRA has been attributed in the context of Article 33(2) CRPD. Therefore, given the limitations of its current founding Regulation,45 the FRA could never take on the role of independent monitoring framework by itself. Furthermore, as an EU Agency with a primary role to collect data, the FRA is a cornerstone in the implementation of Article 31 CRPD. This seems to have eluded the CRPD Committee, but the question remains: who monitors this watchdog when it is acting in its role as an EU authority? When it comes to persons with disabilities and their representative organizations, the Guidelines of the CRPD Committee plead for their full involvement and participation in the work of the independent monitoring framework.46 It is, however, unclear to what extent the Committee considers that they should be a formal part of the framework. Even within an NHRI, Disabled Persons’ Organizations (DPOs) could find themselves only indirectly represented, therefore not necessarily playing a role in the framework. The Guidelines seem to indicate that their involvement should be looked at through the external prism of Articles 33(3) and 4(3) CRPD. Nevertheless, in the case of the EU, the CRPD Committee accepts that the EDF is an integral part of the framework. The EDF is the main interlocutor of the European Commission for disability policies. As the only non-EU institution, body or agency within the monitoring framework, it can exercise the three tasks of the Article 33(2) mechanism. Nevertheless, its status as a non-governmental organization (NGO) prevents the EDF from disposing of some of the more pervasive powers of a human rights institution.47 The CRPD Committee Guidelines underline the importance for the framework to have full and expeditious access to any information or premises that it may require from the EU institutions and its Member States to effectively fulfil its mandate.48 Obviously, this is not the case for the EDF, which has not been attributed additional powers or status as a member of the framework. The European Ombudsman, however, fulfils this part of the mandate in relation to its protection role,49 and is the only constituent body which, in relation to exercising the protection role, unequivocally has its place within the EU Framework, in terms of both independence and its mandate.50 One final point of criticism about the recommendations of the CRPD Committee should be noted, namely that requesting the EU to designate separate focal points for each of its institutions, agencies and bodies is not necessarily a guarantee of efficient mainstreaming of CRPD implementation.51 It may make sense when it comes to applying the CRPD internally, as public 44 For a first-hand account of the evolution of the FRA, see Gabriel N Toggenburg, ‘The European Union Fundamental Rights Agency’ in Gerd Oberleitner (ed), International Human Rights Institutions, Tribunals, and Courts (Springer Singapore 2018) 444–60. 45 Council Regulation (EC) 168/2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53. 46 CRPD Committee, Rules of Procedure (n 8) 36. 47 On relations between civil society actors and EU institutions, see Mark Dawson, The Governance of EU Fundamental Rights (n 43) 39–46. 48 CRPD Committee, Rules of Procedure (n 8) 35. 49 Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (94/262/ECSC, EC, Euratom) [1994] OJ L113. 50 On the role of the European Ombudsman as a fundamental rights actor, see also Mark Dawson, The Governance of EU Fundamental Rights (n 43) 114–21. 51 CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 24) para 77.

82  Research handbook on EU disability law administration, and certainly for the EU institutions in general. However, the many bodies and agencies of the EU are not all directly concerned with the development of disability policies or policies which may have a significant impact on persons with disabilities. A sometimes theoretical, conceptual and unilateral approach appears also in other areas where insufficient flexibility is provided to take into account the administrative, institutional or practical realities of the authorities or entities concerned. The recommendations of the CRPD Committee show that it considers the EU to be on a par with any other Party to the Convention. In relation to Article 33(2) CRPD, this emerges from the emphasis placed by the Committee on the fact that the EU should fully comply with the Paris Principles. Unfortunately, the initial EU report to the Committee and its follow-up have provided little insight into the thinking of the Committee on the application of Article 33(2) CRPD with respect to the institutional uniqueness of the EU. UN expert committees are not known for their thorough grasp of constitutional or institutional complexities of Parties to international human rights treaties. Nevertheless, by its own Guidelines, the Committee has set the standard that at least one of the mechanisms of a hybrid monitoring framework should be compliant with the Paris Principles. It is not clear which of the members of the EU-level framework it considers to fulfil those criteria, or whether, and thereby deviating from its own Guidelines, it follows the logic of the EU, namely that the framework in its entirety should be taken into consideration when assessing its compliance. The latter would seem to be the case. The former, however, would provide for an interesting policy debate about the establishment of a proper EU NHRI. 3.3

The EU Monitoring Framework in Evolution

The Committee requested that the EU inform it within 12 months of the measures taken to implement the recommendations concerning the monitoring framework, thereby stressing its importance. Following the establishment of the EU implementation and monitoring framework and subsequent to the Concluding Observations on the Initial Report of the EU, several changes have indeed taken place in the structure of the framework. First and foremost, the European Commission swiftly implemented the recommendation of the CRPD Committee to withdraw from the framework. It did so even before having formalized this modification through the proper legal and institutional procedures. Given the initial insistence of the Commission to be part of, and have a major role in, the functioning of the framework, this can be considered a substantial shift, having a significant impact on the dynamics within the framework. On 16 January 2017 the revised EU-level framework was adopted by the Council,52 basically erasing the parts in which the European Commission had been mentioned. Around that time, the CRPD Committee was notified of the work in progress on the implementation of its recommendation for the Commission to withdraw from the framework.53 The Commission made it clear, however, that it had the intention to continue to exercise the functions which it had declared relevant as part of the monitoring framework. It

52 Council of the European Union, 3515th meeting of the Foreign Affairs Council, 16 January 2017, List of A-items, non-legislative activities. 53 CRPD Committee, Information received from the European Union on follow-up to the Concluding Observations, UN Doc. CRPD/C/EU/CO/1/Add.1 (2017). The European Commission had transmitted the information already in January 2017, in light of the 12-month deadline imposed by the CRPD

The EU framework for monitoring the CRPD  83 would pursue its role in the promotion, protection and monitoring of the CRPD, and it would do so separate from the tasks envisaged under Article 33(2) and in its capacity as focal point in accordance with Article 33(1) CRPD. The Guidelines of the CRPD Committee hardly touch upon the relationship between the independent monitoring mechanism and the Article 33(1) focal points and coordination mechanisms, so one is left wondering how to interpret the above-mentioned shift in operation of the framework. Presumably it should not be problematic as long as the exercise of the relevant tasks does not restrict, limit or interfere with the activities carried out by the monitoring mechanism. This should not be the case considering that each member of the framework manages its own activities independently from the others and from external actors. Subsequent to the withdrawal of the Commission from the framework, a structural dialogue has been initiated between the European Commission and the monitoring framework, to share information about ongoing activities of all types. In terms of providing adequate resources to allow the framework to perform its functions, the European Commission replied to the CRPD Committee that its withdrawal would not have any financial implications.54 Furthermore, the members of the framework would continue to carry out their respective tasks in the context of their current activities and budgets. In short, there would be no additional funding to support the framework in its mandate. Securing additional funding is, in general, a struggle for most human rights institutions. When existing structures are attributed additional competences and/or tasks, it is usually within the existing resources. Sometimes avenues are explored to create synergies, for example, through service-sharing agreements with other institutions. Separate from the issue of the extent to which it is feasible that States could or should provide additional funding to existing mechanisms or, rather, opt for the creation of new mechanisms – equally requiring the allocation of sufficient resources – this recurring type of recommendation should urge UN committees in general to strive for more synergies in the reporting and monitoring procedures, thus alleviating, at least to some extent, some of the burdens of NHRIs. With regard to the recommendation to establish an interinstitutional coordination mechanism and to designate separate focal points in each of the EU institutions, agencies and bodies, the European Commission did not give any reply to the CRPD Committee. Clearly it has so far had no intention of engaging in a formal and structural coordination dynamic covering all institutional stakeholders, despite the insistence of the European Parliament that this should happen. On 7 July 2016 the European Parliament adopted a resolution on the EU implementation of the CRPD, specifically replying to the CRPD Committee’s recommendations.55 The European Parliament has, for example, requested to be part of the Code of Conduct, calling for the strengthening of interinstitutional coordination between the implementing mechanisms of the different EU institutions.56 Ironically, the European Parliament applauded the withdrawal of the European Commission from the monitoring framework,57 but is itself requesting to be part of a comprehensive governance mechanism in accordance with Article 33(1) CRPD. Committee. While at that time, the Commission had already de facto withdrawn from the framework, it still needed the approval of the Council for the revised EU framework. 54 Ibid para 18. 55 European Parliament, Resolution of 7 July 2016 on the Implementation of the UN Convention on the Rights of Persons with Disabilities, with special regard to the Concluding Observations of the UN CRPD Committee 2015/2258 (INI) paras 165–67. 56 Ibid para 153. 57 Ibid.

84  Research handbook on EU disability law Other modifications to the framework, independent of the Concluding Observations of the Committee to the EU, have taken place. As early as December 2013, soon after the formal adoption of the EU-level framework, the European Parliament Conference of Presidents decided that the Committee on Employment and Social Affairs, in close association with the Committee on Civil Liberties, Justice and Home Affairs, would represent the European Parliament in the EU Framework. Indeed, when it comes to the substance of the CRPD, these Committees are best placed to promote, protect and monitor the rights contained in the CRPD. This shift has not, however, been reflected in the division of tasks laid down by the Council and the European Commission, and what role the European Parliament would continue to play in the framework has generally been left unclear. In its initial report to the CRPD Committee, the EU mentions the European Parliament in general – not PETI – with respect to the protection role. The aforementioned European Parliament Resolution does not take into account the decision by the Conference of Presidents, and emphasizes in an elaborate manner the protection role that PETI plays.58 Given the specific division of tasks within the framework, the role of the European Parliament is an issue which deserves clarification. Such clarification can be found in the work programmes of the EU framework, where the European Parliament, and sometimes specifically PETI, is mentioned across the three tasks of Article 33(2) CRPD. The European Parliament has, therefore, unilaterally decided to extend its role in the framework. Following a request by the European Parliament, the FRA delivered an opinion on the Article 33(2) CRPD requirements in 2016.59 Several recommendations were formulated, but only a few have materialized. When it comes to its composition and status, the FRA points to the lack of a legally binding act establishing the framework that would also identify its main tasks according to the three dimensions of Article 33(2) CRPD.60 The FRA also recommends extending the reach of the framework to relevant societal groups by setting up consultative committees and extending the competences of the FRA to be able to issue ex officio opinions on draft EU legislation with relevance to the rights of persons with disabilities.61 The FRA also looked at the working arrangements of the EU framework and is in favour of closer cooperation with all relevant actors, such as the relevant national frameworks, the European Commission, the coordination mechanisms, the CRPD Committee and NHRIs.62 Internally, the FRA pleads for enhanced coordination among the members of the framework. Undoubtedly, these recommendations have led to some debate and lobbying, but they have hardly been translated into concrete commitments or results.

Ibid paras 157–62. FRA, ‘Opinion of the European Union Agency for Fundamental Rights concerning requirements under Article 33(2) of the UN Convention on the Rights of Persons with Disabilities within the EU context’ (3/2016) https://​fra​.europa​.eu/​en/​opinion/​2016/​fra​-opinion​-concerning​-requirements​-under​ -article​-33​-2​-un​-convention​-rights​-persons accessed 2 February 2020. 60 Ibid 15–16. 61 Ibid 14. 62 Ibid 18–19. 58 59

The EU framework for monitoring the CRPD  85

4.

THE MONITORING FRAMEWORK: FROM THEORY TO PRACTICE

Initially, little guidance was given to the members of the framework. It was only decided that the framework should operate on the basis of a coordinated work plan and that the members should meet at least once a year. Decisions would have to be taken by consensus, and sufficient visibility should be given to each of the members’ fulfilment of its CRPD mandate. The annual Work Forum of the European Commission on the implementation of the Convention would provide an additional platform for the EU framework not only to exchange information and coordinate with relevant actors and mechanisms at EU level, but also to liaise with the national frameworks. This guidance has been translated into operational provisions developed by the framework.63 They lay down the working methods in terms of the guiding principles, the decision-making process, the work programme and meetings, the publicity and transparency of its activities and, finally, the possibility to review the provisions. They establish an EU framework Secretariat and clarify the role and appointment of the Chairperson of the EU framework. Together, they are the driving force of the framework. However, the member that is appointed Chairperson is not expected nor mandated by the framework to go beyond the role of chairing its meetings. This raises the question as to whether the Chairperson is überhaupt supposed to represent the framework in its external relations. This was the case in relation to representation of the EU before the CRPD Committee in the course of the review process. In its work programme for 2015–2016,64 this review process is mentioned; in particular, there is a reference to a briefing meeting with the Committee to explain the work of the EU framework and to provide background information on the functioning of the EU. Internally within the EU, the framework was also involved in the preliminary stages of drafting the initial report by the European Commission to the EU. However, the framework, as such, did not present a common alternative report. As far as the internal dynamics of the framework are concerned, the operational provisions build on the spirit of the set-up of the framework, as established by the European Commission and the Council. They underline that each member contributes to the framework within the remit of its respective competences and existing mandates, and, by doing so, they collectively exercise the mandate in accordance with Article 33(2) CRPD. Little impetus therefore exists for developing synergies between the members. The operational provisions merely state that the coordinated annual work programme of the framework consists of activities of the individual members and, where appropriate, may include concerted activities between members or by the framework as a whole.65

63 FRA, ‘The EU Framework to Promote, Protect and Monitor the UNCRPD: Operational Provisions’ https://​fra​.europa​.eu/​sites/​default/​files/​fra​_uploads/​eu​_crpd​_framework​_operational​_rules​.pdf accessed 3 February 2020. 64 FRA, ‘EU Framework to Promote, Protect and Monitor the Implementation of UN CRPD Work Programme 2015–2016’ (March 2015) https://​fra​.europa​.eu/​sites/​default/​files/​fra​_uploads/​eu​_crpd​ _framework​_work​_programme​_2015​-2016​.pdf accessed 3 February 2020. 65 FRA, ‘The EU Framework to Promote, Protect and Monitor the UNCRPD: Operational Provisions’ (n 63) 3.

86  Research handbook on EU disability law When looking at the bi-annual work programmes of the framework, they contain a list of recurring activities sub-divided according to the three tasks of promotion, protection and monitoring. Those activities are sufficiently general so as to be able to include more than one of the members or all members of the framework. Under the promotion task, the following type of activities can generally be found: developing and maintaining the framework webpages; providing information on the monitoring of CRPD implementation both internally, to staff, and externally, to relevant stakeholders; facilitating communication and coordination with national frameworks; and analysing draft and existing EU legislation. The protection task is limited to the collection and dissemination of information about complaints and any follow-up given to the complaints, on the one hand. On the other hand, there is the possibility for inquiries to be carried out on the initiative of members of the framework, and some of the members may also organize hearings. The work programme for 2019–2020, however, lacks any indication as to the type of inquiries or hearings which may be envisioned.66 Finally, under the monitoring task, emphasis is put on reaching out to relevant stakeholders to collect data on persons with disabilities, as well as on the application of EU law in relation to disability rights. Other activities may be either time-bound, such as providing input for review of the European Disability Strategy 2010–2020 (EDS)67 or participation in the initial CRPD Committee review process. They can also be proposed by one member, such as the initiatives by the EDF to develop a compendium of transferable promising practices regarding the implementation of the CRPD or an expert study on the status of the CRPD in the EU legal order. The work programmes are a mixture of solid commitments by individual members and an indication of possible activities – either existing or upcoming, under an individual or shared heading. The work programmes clearly reflect the spirit of the EU monitoring framework. They are coordinated because they represent a compilation of individual efforts, with a view to achieving the common objective underpinning Article 33(2) CRPD, but they lack coordination on the substance of the tasks. The EU framework hardly seems to supersede the sum of the efforts of its individual members; however, there is one thing that the framework has taken seriously, and that is giving sufficient publicity to its work. The minutes of its meetings show tentative discussions about moving the EU framework into a more concerted process that would transcend individual activities.68 Coordinating input and positions on relevant issues through thematic and political meetings of the framework has been explored. Likewise, discussions have begun on preparing the role of the framework for the upcoming combined second and third CRPD Committee review. The organization of a joint hearing in early 2020, to map progress towards CRPD implementation, is said to be an option.69 Until those attempts bear fruit, coordination within the EU framework is still, by and large, limited to: (i) the sharing of information about the individual activities of each member: (ii) the preparation of 66 FRA ‘EU Framework for the UN Convention on the Rights of Persons with Disabilities’ https://​fra​ .europa​.eu/​en/​theme/​people​-disabilities/​eu​-crpd​-framework accessed 5 February 2020. 67 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 68 FRA, ‘EU CRPD Framework – Resources’ https://​fra​.europa​.eu/​en/​theme/​people​-disabilities/​eu​ -crpd​-framework/​resources accessed 5 February 2020. 69 EU Agency for Fundamental Rights, ‘EU CRPD Framework Meeting 17-09-2018 Minutes’ (17 September 2018) https://​fra​.europa​.eu/​en/​theme/​people​-disabilities/​eu​-crpd​-framework/​resources accessed 5 February 2020.

The EU framework for monitoring the CRPD  87 regular meetings with the EU focal point and the national frameworks; and (iii) discussing issues related to the functioning of the EU framework.

5.

CONCLUDING REMARKS

The EU monitoring framework is undoubtedly one of the more curious CRPD institutional set-ups. Initially, it was conceived of as a hybrid mixture of governing and legislative institutions, an agency that was partially dependent upon those institutions, as well as a watchdog for those institutions (but one that was limited to their administrative functioning) and an NGO. The complexity of both the framework and the legal and institutional order of the EU is certainly a test with regard to the more conventional thinking about monitoring mechanisms. Admittedly, no other UN Committee has ever had to monitor a regional integration organization, so the CRPD Committee has had to undertake this challenging task. Limiting itself to recommending that the elephant (namely the European Commission) remove itself from the room, the Committee has however closed the door on any further debate about the nature and role of the other constituent bodies, their fulfilment of the Article 33(2) mandate and the relationship of the EU monitoring framework with the focal point and representative organizations. Save a reversal in the opinion of the Committee, any stimulus to adapt the EU monitoring framework will have to come from within the EU. The framework would be considered fully compliant with the Paris Principles if it was not for the Committee’s recommendation to adequately fund the framework,70 but the question of resources is a classic one that will be put on the table in any case. While institutionally complete, further scrutiny will be required when it comes to the proper functioning of the EU monitoring framework. While Article 33(2) CRPD allows for monitoring frameworks to consist of multiple constituent bodies, even of a different nature and with varying competences, the Committee pleads for one of the mechanisms to take on a leading role.71 That mechanism should be the pillar guiding the other constituent bodies and should comply with the Paris Principles. Cooperation should take place between the different mechanisms. The CRPD Committee’s Guidelines are silent as to what kind of cooperation could or should be envisaged, but from the review process conducted by the Committee with regard to the EU’s initial report, it can be concluded that regularly updating each other about ongoing individual activities is the bare minimum standard to which the EU should adhere. Efforts to move from a largely unilateral and introspective collaboration to creating synergies and added value for the framework are welcome attempts to lift the standards of functioning of the monitoring framework at EU level. However, it would seem that the heavyweight mechanisms are not always pulling their weight in the EU monitoring framework. The upcoming combined second and third review process by the CRPD Committee will certainly provide ample ground for the framework to continue to develop its workings; however, the real opportunities and challenges lie in the new policy agenda of the European Commission, in particular the follow-up to the EDS 2010–2020. It is with a view to contributing to the actual implementation of, and respect for, CRPD rights that Article 33(2) has 70 CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 24) para 77. 71 CRPD Committee, Rules of Procedure (n 8) 36.

88  Research handbook on EU disability law been conceived, and this will become the ultimate litmus test of the effectiveness of the EU monitoring framework.

6. Political participation of people with disabilities in the EU Lisa Waddington and Andrea Broderick

1. INTRODUCTION The right to participate in political and public life at local, national and European Union (EU) levels is a pivotal element of active citizenship.1 The concept of ‘political participation’ is one that has evolved and expanded greatly in recent decades.2 In the context of people with disabilities, it includes both individual forms of participation, whereby people with disabilities participate in the EU political system directly, and collective forms of participation, whereby representative organizations of people with disabilities attempt to influence the EU policy system.3 The right to vote can be deemed one of the most characteristic elements of citizenship. However, political participation in electoral processes involves more than just voting; it also denotes the ability to take part in public affairs – the opportunity to stand as a candidate, to campaign, to be elected and to hold office. In addition to electoral participation, many non-electoral activities provide disabled citizens with opportunities to participate in the political and public spheres in the EU.4 Furthermore, people with disabilities have the possibility to participate collectively in public life at EU level, and to attempt to influence policy, through Disabled People’s Organizations (DPOs), among other fora. There is a general lack of systematic data collection concerning the political participation of people with disabilities at EU and Member State level,5 and while levels of electoral (and other forms of political) participation by persons with disabilities vary between the Member States, it is acknowledged that those with severe impairments report lower levels of participation on the whole.6 The first Citizenship Report of the European Union acknowledges that ‘EU citi-

1 See Marie Sépulchre, ‘Research about Citizenship and Disability: A Scoping Review’ (2017) 39(10) Disability and Rehabilitation 949. 2 See Russell J Dalton, ‘Citizenship Norms and the Expansion of Political Participation’ (2008) 56(1) Political Studies 76. 3 See Mark Priestley, Martha Stickings, Ema Loja, Stefanos Grammenos, Anna Lawson, Lisa Waddington and Bjarney Fridriksdottir, ‘The Political Participation of Disabled People in Europe: Rights, Accessibility and Representation’ (2016) 42 Electoral Studies 1. 4 See Mitja Hafner-Fink, ‘Types of Political Participation: A Multidimensional Analysis’ (2012) 20(1) European Journal of Political Research 93. 5 See European Union Agency for Fundamental Rights (FRA), The Right to Political Participation for Persons with Disabilities: Human Rights Indicators (Publications Office of the European Union 2014) 11 and 31. See also Committee on the Rights of Persons with Disabilities (CRPD Committee), Concluding Observations to Cyprus, UN Doc. CRPD/C/CYP/CO/1 (2017) para 58. 6 Priestley et al highlight that data emerging from the European Quality of Living Survey (EQLS) indicates that severe impairment ‘decreased voting probability by 8 percentage points in comparison to people without impairments but that the negative association with moderate impairment was weak and

89

90  Research handbook on EU disability law zens with disabilities face additional obstacles’ to participation in society generally when compared with citizens without disabilities.7 With regard to participation in political and public life, citizens with disabilities face barriers that include discriminatory legal and administrative obstacles restricting the exercise of the right to vote; discriminatory requirements in naturalization processes, which can ultimately lead to a denial of the right to vote; deficient legal remedies in respect of such a denial; and a lack of voting mechanisms for individuals living in institutions.8 Additionally, people with disabilities encounter inaccessible electoral venues and information systems.9 These barriers affect the participation rates not only of people with physical impairments, but also of individuals with visual and sensory impairments, as well as those with cognitive and mental impairments. Women with disabilities face specific challenges in participating in political life.10 Moreover, despite numerous reforms in recent years,11 the law in several EU Member States is still based on discriminatory assessments of legal capacity, which result in legal disenfranchisement for many individuals with intellectual and psychosocial disabilities.12 The right to participate in political and public life is enshrined in Article 29 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention), to which the EU is a Party. As highlighted in the Introduction to this Research Handbook, the EU and its Member States must take into account the UN Convention’s wide-ranging obligations in all measures adopted related to political participation.13 The aim of this chapter is therefore

not statistically robust’. Similarly, the authors note that the EQLS and the European Union Statistics on Income and Living Conditions (EU-SILC) data indicate that people with impairments are ‘less likely to report participation in voluntary work, educational, social and political organizations, political parties and trade unions. Attendance at political meetings, [trade unions] and party membership were also lower’. See Priestley et al, ‘The Political Participation of Disabled People in Europe’ (n 3) 22. 7 Commission, ‘EU Citizenship Report 2010: Dismantling the Obstacles to EU Citizens’ Rights’ COM (2010) 603 final, p. 11. 8 See the reports of the Academic Network of European Disability Experts www​.disability​-europe​ .net/​theme/​political​-participation accessed 2 February 2020. For further analysis of the relevant barriers, see European Economic and Social Committee, Real Rights of Persons with Disabilities to Vote in EP Elections (Rapporteur: Krzysztof Pater), SOC/554 www​.eesc​.europa​.eu/​en/​our​-work/​opinions​ -information​-reports/​information​-reports/​real​-right​-persons​-disabilities​-vote​-ep​-elections accessed 2 February 2020. 9 See Anna Lawson, Access to and Accessibility of Citizenship and Political Participation of People with Disabilities in Europe: Introduction to Two Related 2013 ANED Reports Synthesis Report (Academic Network of European Disability Experts 2013). 10 Organisation for Security and Co-Operation in Europe (OSCE), Handbook on Observing and Promoting the Electoral Participation of Persons with Disabilities (Office for Democratic Institutions and Human Rights 2017) 30. See also CRPD Committee, General Comment 3 on women and girls with disabilities, UN Doc. CRPD C/GC/3 (2016) paras 10 and 27. 11 FRA, Who will (Not) Get to Vote in the 2019 European Parliament Elections? Developments in the Right to Vote of People Deprived of Legal Capacity in EU Member States (Publications Office of the European Union 2019) 3. 12 Office of the United Nations High Commissioner for Human Rights (OHCHR), Thematic Study on Participation in Political and Public Life by Persons with Disabilities, UN Doc. A/HRC/19/36, 21 December 2011, para 70. See generally FRA, The Right to Political Participation of Persons with Mental Health Problems and Persons with Intellectual Disabilities (Publications Office of the European Union 2010). 13 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. See also Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab

Political participation of people with disabilities in the EU  91 to analyse the extent to which people with disabilities are enabled to participate in the EU political and policy systems, and the extent to which their right to political participation is protected under EU law, bearing in mind the obligations contained in the CRPD. This chapter complements the other chapters in the first part of this Research Handbook, and lays the foundations for the analysis of citizenship rights in Chapter 7.14 Further to these introductory remarks, section 2 of this chapter examines the international legal framework – the CRPD – which provides the ‘global frame of reference’15 against which to assess all measures adopted at EU level related to political participation. Section 3 outlines the current EU legal framework pertaining to political participation, while section 4 analyses the various soft law initiatives that have been adopted by the EU institutions since the entry into force of the CRPD with a view to ensuring that people with disabilities can participate in political and public life on an equal basis with others. Section 5 examines the various forms of collective participation that are open to individuals with disabilities and their representative organizations in the policy sphere of the EU, while section 6 contains concluding remarks and a reflection on future perspectives in the field.

2.

THE INTERNATIONAL LEGAL FRAMEWORK: THE CRPD AS THE GLOBAL NORMATIVE STANDARD

The right to participate in political and public life is, according to the CRPD Committee, a civil and political right, and ‘an obligation of immediate application’.16 Several CRPD articles underpin that right. In the first instance, the cross-cutting general principle contained in Article 4(3) CRPD requires Parties to the CRPD, including the EU, to ensure effective participation by, and active consultation with, people with disabilities, through their representative organizations, in all decision-making processes that affect them.17 In addition, according to Article 33(2) CRPD, Parties are required to maintain, strengthen, designate or establish a framework, including one or more independent mechanisms, to promote, protect and monitor implementation of the Convention. Moreover, Article 33(3) mandates that DPOs and civil society as a whole should have an active role in all activities pertaining to monitoring the Convention.18 In realizing the right to political and public life, Parties to the CRPD must also respect the cross-cutting obligations contained in the Convention. In line with the social-contextual model of disability,19 which recognizes that legal, attitudinal and environmental barriers (among

and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222 paras 32 and 37–39 (among other cases). 14 See infra Charles Edward O’Sullivan, ‘EU Citizenship and Disability’, in this volume. 15 Priestley et al, ‘The Political Participation of Disabled People in Europe’ (n 3) 3. 16 CRPD Committee, General Comment No. 7 on participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, UN Doc. CRPD/C/GC/7 (2018) para 28. 17 Ibid paras 15–33. 18 See supra Alexander Hoefmans, ‘The EU Framework for Monitoring the CRPD’, in this volume. 19 The CRPD’s relational model of disability was first described as the social-contextual model in Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities:

92  Research handbook on EU disability law others) interact with a person’s impairment and result in their exclusion from society, Article 9 CRPD is a provision of transversal application that imposes generalized accessibility obligations on Parties, including in the sphere of political and public life. Parties to the CRPD are also required, under Articles 2 and 5 CRPD, to ensure the provision of individualized adjustments or reasonable accommodations in electoral and non-electoral contexts. In addition, positive action should be adopted, where necessary, to accelerate or achieve de facto equality of persons with disabilities in political and public life.20 Furthermore, Article 12 CRPD sets out the right to equal recognition before the law (legal capacity) for all individuals with disabilities, including with regard to participation in the political and public spheres, and envisages the provision of support in that regard.21 Of paramount importance is Article 29 CRPD, which seeks to ensure full and equal participation of people with disabilities in political and public life.22 A thematic study of the Office of the United Nations High Commissioner for Human Rights (OHCHR) highlights that the ‘exclusion or restriction of [the] political rights of persons with disabilities on the basis of disability may constitute “discrimination on the basis of disability” within the meaning of Article 2 of the Convention’.23 It also notes that Article 29 ‘does not foresee any reasonable restriction, nor does it allow any exception’.24 With a view to ensuring participation of people with disabilities in the political and public sphere on an equal basis with others, Article 29(a)(i) seeks to guarantee that electoral processes, voting facilities and materials are adequate, accessible, and easy to understand and use. Moreover, Article 29(a)(ii) requires Parties to the UN Convention to protect the right to vote by secret ballot, to stand for elections, to hold office effectively and to perform all public functions at all levels of government. It seeks to facilitate the use of assistive and new technologies, where appropriate. In addition, Article 29(a)(iii) requires Parties to the CRPD to guarantee the free expression of the will of individuals with disabilities, including through allowing assistance in voting by a person of their own choice. Article 29(b) addresses the participation of people with disabilities in public administration and in the conduct of ‘public affairs’, a concept which is deemed to be wider than electoral participation, and which includes participation in public debates and dialogues as well as in peaceful demonstrations and meetings.25 Article 29 CRPD also covers membership in DPOs, including at EU level. According to the UN Special Rapporteur on disability, Parties to the CRPD ‘should adopt a policy framework that facilitates [the] establishment and sustained functioning’ of DPOs, and the Committee on the Rights of Persons with Disabilities (CRPD The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 77. See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 20 Article 5(4) CRPD. 21 See CRPD Committee, General Comment No. 1 on legal capacity, UN Doc. CRPD/C/GC/1 (2014). 22 See Rachele Cera, ‘Article 29 [Participation in Political and Public Life]’ in Valentina della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities (Springer 2017) 525–39. 23 Office of the United Nations High Commissioner for Human Rights (OHCHR), Thematic Study on Participation in Political and Public Life by Persons with Disabilities, UN Doc. A/HRC/19/36, 21 December 2011, para 69. 24 Ibid para 68. 25 Human Rights Committee, General Comment No. 25 on participation in public affairs and the right to vote, UN Doc. CCPR/C/21/Rev 1/Add 7 (1996) paras 5, 8 and 25.

Political participation of people with disabilities in the EU  93 Committee) also affirms that Parties to the UN Convention ‘should strengthen the participation of organizations of persons with disabilities in regional mechanisms’.26 Having considered the international legal framework above, Section 3 of this chapter examines the general EU legal framework pertaining to political participation,27 and specifically addresses provisions of EU law that are relevant to the political participation of people with disabilities.

3.

THE EU LEGAL FRAMEWORK ON POLITICAL PARTICIPATION

This section examines the overarching EU legal framework regulating the right to political participation in the context of people with disabilities. In that connection, it discusses provisions of EU primary law, including the EU Treaties and the Charter of Fundamental Rights of the EU (CFR or Charter), and EU secondary legislation. Under EU law, rights connected to political participation, including the right to vote in elections and stand for political office, are inherently connected to citizenship and free movement rights.28 With regard to local and European elections, EU law guarantees mobile EU citizens the right to vote and stand for office in their host Member State on the same terms as nationals.29 However, EU law does not confer rights with regard to elections to the national or federal government of the host State or rights regarding elections in the State of origin. In light of this, Kochenov argues that actual or potential obstacles to the exercise of free movement rights, which include restrictions related to political participation, can have dissuasive effects regarding the mobility of EU citizens.30 3.1

The EU Treaties

Amendments to the EC Treaty brought about as a result of the Treaty of Maastricht in 1993 first introduced political participation rights for citizens of the Union into the primary legislative framework of the EU. Article 20(2)(b) of the Treaty on the Functioning of the European

26 See United Nations General Assembly, Report of the Special Rapporteur on the Rights of Persons with Disabilities on the Right to Participate in Decision-Making, UN Doc. A/HRC/31/62, 12 January 2016, para 39. See further CRPD Committee, General Comment No. 7 (n 16) para 32. 27 For further discussion of political participation, EU law and citizenship rights, see Joana Mendes, Participation in EU Rule-Making: A Rights Based Approach (Oxford University Press 2011). See also Jo Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (Cambridge University Press 2007). 28 See infra Charles Edward O’Sullivan, ‘EU Citizenship and Disability’, in this volume. 29 Mobile citizens are EU citizens who have exercised the right of free movement and taken up residence in a Member State other than the one of which they hold the nationality. 30 See Dimitry Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?’ (2009) 16 Maastricht Journal of European and Comparative Law 197. See also Lisa Waddington, ‘The Potential for, and Barriers to, the Exercise of Active EU Citizenship by People with Disabilities: The Right to Free Movement’ in Rune Halvorsen, Bjorn Hvinden, Jerome Bickenbach, Delia Ferri and Ana Marta Guillén Rodriguez (eds), The Changing Disability Policy System: Active Citizenship and Disability in Europe (Routledge 2017) vol 1, 196–214.

94  Research handbook on EU disability law Union (TFEU)31 specifies that citizens of the Union shall enjoy ‘the right to vote and stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State’. This right is therefore guaranteed for EU citizens who are resident in a Member State other than that of their nationality. However, the right of mobile EU citizens to participate in elections is not absolute. EU citizens who are resident in a Member State other than the one of which they hold nationality can be subject to restrictions on the right to vote and stand for election on the same terms as nationals. In that regard, the Court of Justice of the EU (CJEU) has affirmed that ‘the definition of persons entitled to vote and to stand for election falls within the competence of each Member State in compliance with Community law’.32 Consequently, restrictions related to age, a criminal conviction or the serving of a prison sentence are not, per se, incompatible with Article 20 TFEU, where the restrictions are imposed on nationals and other EU citizens in the same way. The issue of whether Member States can restrict the right to vote in elections to the European Parliament due to the imposition of a guardianship measure linked to disability was the subject of a request for a preliminary ruling issued by the Tribunal d’Instance de Sens, although the preliminary reference in question was not linked to free movement rights.33 The request has now been withdrawn. 3.2

The Charter of Fundamental Rights of the European Union

The CFR also addresses the right to vote and stand as a candidate in elections to the European Parliament (Article 39 CFR) and in municipal elections (Article 40 CFR), and adopts the same approach as that found in Article 20 TFEU. Article 39(2) of the Charter further specifies that ‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot’. Articles 39 and 40, together with Article 20(2)(b) TFEU, in conjunction with Article 29 CRPD, have been described by the European Union Agency for Fundamental Rights (FRA) as providing ‘a solid legal backbone informing public authorities at EU as well [as] at national level how the right to political participation of persons with disabilities should be guaranteed in municipal and European Parliament elections’.34 The Charter also explicitly addresses the situation of persons with disabilities, although no reference is made to political participation in the relevant articles. Article 21 CFR prohibits discrimination on a number of grounds, including disability, ‘within the scope of the application’ of the Treaties, while Article 26 provides that ‘the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’. Article 21 of the Charter therefore underscores the general right to equal treatment in EU law in all areas, including with regard to political and public life, to the extent that this falls within the competence of the EU. Article 26 CFR, on the other hand, has been classified by the CJEU as a principle rather than a right, in accordance with Articles 51 and 52(5) of the Charter.35 This

This is reinforced by Article 22 TFEU. Case C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag EU:​ C:​2006:​545, para 45. 33 The preliminary reference will be discussed further below in section 3.2. 34 FRA, The Right to Political Participation for Persons with Disabilities (n 5) 14. 35 Case C-356/12 Wolfgang Glatzel v Freistaat Bayern EU:​C:​2014:​350, para 75. 31 32

Political participation of people with disabilities in the EU  95 means that it is merely intended to guide the EU institutions when they enact legislation, rather than oblige them to act. Furthermore, it is not directly enforceable, as the CJEU highlighted in the Glatzel judgment.36 In August 2018, in light of the then pending 2019 elections to the European Parliament, a request for a preliminary ruling was made to the CJEU by the Tribunal d’Instance de Sens, asking whether Article 21 of the Charter, interpreted in light of the CRPD, and Article 39(2) of the Charter allowed for ‘the right to vote in European Parliamentary elections to be withdrawn because a guardianship measure has been adopted for a person due to his or her mental disability’; and, if so, whether EU law required any specific conditions to be complied with when withdrawing the right.37 In making a ruling, the CJEU would have needed to consider whether determining eligibility to vote in elections to the European Parliament, as such, falls within the competence of the EU and, if so, whether the Charter or CRPD allow for restrictions on this right in the circumstances described above. In this respect, a 2019 report from the European Economic and Social Committee stated that [t]he right to vote in European Parliament elections must be recognised not only in light of the CRPD and other United Nations legal acts, the fundamental acts of the European Union, and other key documents adopted by international entities, but first and foremost as an important element of human dignity,38

without linking this remark to the above-mentioned request for a preliminary ruling. However, as stated above, the request was withdrawn by the Tribunal d’Instance de Sens in May 2019.39 3.3

EU Secondary Legislation

The rights set out in Articles 20 and 22 TFEU, and in the Charter, are further elaborated on in EU secondary legislation, which provides for more detailed arrangements. Specifically, Council Directive 93/109/EC lays down arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals,40 while Council Directive 94/80/EC lays down such arrangements with regard to voting and standing as a candidate in municipal elec-

36 Ibid para 78. In the Glatzel case, the CJEU also held that ‘provisions of that convention do not constitute […] unconditional and sufficiently precise conditions which allow a review of the validity of the measure of EU law in the light of the provisions of that convention’, meaning that the CRPD could not be relied on directly to challenge EU secondary legislation, such as that at issue in this case (Glatzel para 69). See also Case C-363/12, Z. v A Government Department, The Board of management of a community school EU:​C:​2014:​159 para 90. See further Angela Ward, ‘The Impact of the EU Charter of Fundamental Rights on Anti-discrimination Law: More a Whimper than a Bang?’ (2018) 20 Cambridge Yearbook of European Legal Studies 32, p. 41. 37 Case C-562/18 – Request for a preliminary ruling from the Tribunal d’Instance de Sens (France) lodged on 30 August 2018 – X [2018] OJ C 408/42. 38 European Economic and Social Committee, Real Rights of Persons with Disabilities to Vote in EP Elections (n 8) para 5.3.1. 39 Case C-562/18 Order of Cancellation issued on 13 June 2019 EU:​C:​2019:​506. 40 Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals [1993] OJ L329/34.

96  Research handbook on EU disability law tions.41 Notably, the Preambles of both Directives provide that the Treaty ‘does not presuppose harmonisation of Member States’ electoral systems’. No EU legal act ‘touches upon real rights to vote, especially those of persons with disabilities’,42 and EU legislation does not address issues related to the accessibility of the voting procedure. Directive 93/109/EC, concerning elections to the European Parliament, specifies that EU citizens resident in another Member State have the rights to vote and stand as a candidate in elections unless deprived of those rights in accordance with the Directive.43 Under Article 6 of the Directive, EU citizens are not entitled to stand as a candidate in an election to the European Parliament in their State of residence in circumstances where they have been deprived of the right to stand as a candidate, by means of an individual criminal or civil law decision, in either the State of nationality or the State of residence. In connection with the right to vote, the Member State of residence may require an EU citizen to declare that they have not been deprived of the right to vote in their Member State of nationality (Article 9(3)(a)), and seek clarification from the Member State of nationality in that regard (Article 7(1)). This implies that a civil law decision, such as a withdrawal of legal capacity that brings with it an automatic deprivation of the right to stand for election in either the Member State of nationality or the Member State of residence, will always lead to an individual being denied the right to stand for election to the European Parliament in the Member State of residence. In addition, the withdrawal of the right to vote in the Member State of nationality may also result in an individual being denied the right to vote in European Parliament elections in the Member State of residence. It appears that Directive 93/109/EC allows, but does not require, Member States to impose such restrictions on voting rights. Directive 94/80/EC, concerning municipal elections, adopts a somewhat similar approach. Under that Directive, EU citizens can be precluded from standing as a candidate in municipal elections in their State of residence if they have been deprived of the right to stand as a candidate by means of a decision under civil or criminal law in their Member State of nationality (Article 5(1)). It would appear that Member States may choose to apply this rule but, unlike the situation described above pertaining to the European Parliament, it is not a requirement. On the other hand, disqualification from the right to vote in municipal elections is subject only to the rules applicable within the Member State of residence, and any prior disqualification in the Member State of nationality does not appear to be relevant.44 In instances where individuals can be deprived of the right to stand as a candidate in elections, or the right to vote, based either on the rules in force in their Member State of nationality or the rules in force in their Member State of residence, they risk being exposed to a double disadvantage. In particular, in light of the fact that the rules that relate to legal capacity

41 Council Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals [1994] OJ L368/38. 42 European Economic and Social Committee, Real Rights of Persons with Disabilities to Vote in EP Elections (n 8) para 4.4.2. 43 The text in this sub-section draws on Lisa Waddington, Access to and Accessibility of Citizenship and Political Participation of People with Disabilities in Europe: Introduction to Two Related 2013 ANED Reports, Synthesis Report for the Academic Network of European Disability Experts (Academic Network of European Disability Experts 2013) www​.disability​-europe​.net/​theme/​political​-participation​ ?page​=3​ accessed 3 February 2020. 44 Preamble Directive 94/80/EC.

Political participation of people with disabilities in the EU  97 and entitlement to vote for people with psychosocial or intellectual disabilities differ in the Member States,45 it is possible that an individual could be denied the right to participate in elections in their Member State of residence, with this denial being based on rules that apply in another Member State. The rules on which the original denial was based do not need to be applicable in, or even compatible with, the rules in the Member State in which the election is taking place. Nonetheless, under EU law, this situation would lead to an individual being prevented from standing as a candidate for elections to the European Parliament and from standing as a candidate in municipal elections, or being denied the right to vote in elections to the European Parliament, on the basis of restrictive rules that fail to recognize (partial) ability and capacity to participate in the political process. A decision to deny the right to vote or to stand as a candidate in the circumstances described above would arguably amount to a breach of Article 29 CRPD in itself; but the provisions of Directives 93/109/EC and 94/80/EC risk extending the effect of such a decision beyond the borders of the State which applied the rules, to include other EU Member States, which may apply different rules that are compatible with the CRPD to their own nationals. In this way, the risk of discrimination between EU citizens, to the disadvantage of people with disabilities, is actually created by EU law. The European Commission regularly reports on the implementation of Council Directives 93/109/EC and 94/80/EC. FRA posits that future reports on the implementation of both Directives ‘should include an assessment of whether they are being interpreted in a manner consistent with the right to political participation enshrined in Article 29 CRPD’.46 This would be in line with the EU’s obligations under the CRPD, including the general obligations found in Article 4 of the UN Convention. Having considered the primary and secondary EU legislative provisions pertaining to political participation, and having addressed those provisions from a disability perspective, section 4 examines various soft law initiatives that have been adopted at EU level, and considers whether those initiatives can serve as a tool for promoting full and equal participation for people with disabilities in political and public life.

4.

SOFT LAW MEASURES AT EU LEVEL: A SPRINGBOARD FOR ENSURING FULL AND EQUAL PARTICIPATION?

In recent times, and particularly in the period following the adoption of the CRPD, numerous soft law measures have been adopted and various initiatives have been undertaken with a view to promoting the participation of people with disabilities in political and public life.47 One example of a soft law measure that includes a clear commitment to facilitating the exercise of the electoral rights of people with disabilities is the European Disability Strategy

45 See FRA, Who Will (Not) Get to Vote in the 2019 European Parliament Elections? (n 11); and European Economic and Social Committee, Real Rights of Persons with Disabilities to Vote in EP Elections (n 8), paras 5.1.2–5.1.5. 46 FRA, The Right to Political Participation for Persons with Disabilities (n 5) 8. 47 Some of the information in this section draws on Andrea Broderick, a pilot project produced for the European Commission under the EU-CITZEN project of the Academic Network on European Citizenship Rights (as yet unpublished report).

98  Research handbook on EU disability law 2010–2020 (EDS),48 which was partly prompted and influenced by the entry into force of the CRPD at the international level. By addressing the right to political and public life in the section entitled ‘Participation’, the EDS connects disability rights directly to active citizenship.49 The Strategy calls on the European Commission to work towards overcoming the obstacles that people with disabilities face in exercising their rights as ‘political actors’.50 Alongside the EDS, it is noteworthy that under the Gender Equality Strategy 2016–2019,51 responsibility is allocated to the Commission’s Directorate-General for Justice and Consumers (DG JUST) to support the activities of national authorities in promoting a gender balance in all positions related to political and public decision-making.52 The Gender Equality Strategy affirms that ‘particular attention will be paid’ in the EU action to the ‘specific needs of groups facing multiple disadvantages’, among others, women with disabilities.53 These two soft law initiatives constitute examples of positive steps that the EU has taken with a view to increasing participation of people with disabilities in the political process. Notwithstanding the existence of such strategies, however, in 2015 the CRPD Committee noted ‘with deep concern’ that persons with disabilities across the Member States, especially those deprived of their legal capacity or residing in institutions, still cannot exercise their right to vote in elections.54 The CRPD Committee also expressed its concern that participation in elections is not fully accessible in the EU,55 and that the ‘EU [had] neither mainstreamed a disability perspective in all its gender policies, programmes and strategies, nor adopted a gender perspective in its disability strategies’.56 In its Resolution on the implementation of the EDS, the European Parliament echoed these concerns, noting that ‘in spite of the numerous international conventions, EU and national legislation and strategies, persons with disabilities are still not fully participating in society and enjoying their rights’.57 In view of this, the Parliament called on the Commission to ensure that the forthcoming Post-2020 EDS: aims at fully implementing the [CRPD] in all areas of EU policy and at mainstreaming accessibility, participation, non-discrimination and equality, encompassing all articles of the [CRPD] and that it include an adequate budget, a timeframe for implementation and a monitoring mechanism.58

Notably, on 7 July 2016, the European Parliament adopted a Resolution to follow up on the recommendations made to the EU during the constructive dialogue that took place between the

48 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 49 Ibid. Section 2 on participation. 50 Commission, ‘European Disability Strategy 2010–2020’ (n 48) 5. 51 Commission, ‘Strategic Engagement for Gender Equality 2019–2020’ (Publications Office of the European Union 2016). 52 Ibid 14. 53 Ibid 9. 54 See CRPD Committee, Concluding Observations on the Initial Report of the European Union, UN Doc. CRPD/C/EU/CO/1 (2015) para 68. 55 Ibid. 56 Ibid para 20. 57 European Parliament, Resolution of 30 November 2017 on the implementation of the European Disability Strategy, 2017/2127(INI), preamble para q. 58 Ibid para 119.

Political participation of people with disabilities in the EU  99 EU and the CRPD Committee in Geneva in 2015.59 In that Resolution, the Parliament noted ‘that the Committee on Petitions receives a considerable number of petitions from persons with disabilities every year related, inter alia, to their participation in political and public life’.60 It acknowledged that the CRPD has proven to be ‘a positive and key instrument for promoting law reform’ in the EU.61 Furthermore, the European Parliament affirmed that it considers ‘full and complete access to the political system for all persons with disabilities to be a priority’, and recognized that access must be more than mere physical access to cast a vote. In that regard, the Parliament noted that access to political participation should be fostered through ‘a wide range of initiatives to open up the democratic process to all citizens’.62 These initiatives should include: signed, Braille and easy-to-read election material, complete provision of the necessary assistance to persons with disabilities during voting procedures, the promotion of postal and proxy voting when possible, and the removal of barriers to those citizens with disabilities wishing to stand for election, as well as action to address existing rules regarding legal capacity and their impact on the ability of individuals to participate fully in the democratic process.63

From the foregoing, it is clear that the EU institutions remain committed to increasing the participation of people with disabilities in the EU political sphere. However, to date, there remain significant gaps between what has been detailed in soft and hard law measures, and the barriers to political participation that exist in practice. Thus, much work remains to be done in terms of aligning the existing situation within the EU with the obligations contained in the CRPD. It is not only individual participation in political processes that needs to be fostered, however, but also the collective participation of people with disabilities, to enable them to influence policy-making at EU level. In that light, section 5 addresses the various forms of collective participation that can potentially facilitate involvement by people with disabilities in EU policy processes.

5.

COLLECTIVE PARTICIPATION OF PEOPLE WITH DISABILITIES IN THE EU POLICY SPHERE

A number of frameworks and possibilities exist through which representative organizations of persons with disabilities can influence policy-making at the European level. EU institutions play a role in supporting those representative organizations, often through providing financial support, and the institutions thereby contribute to collective participation of people with disabilities in the EU policy sphere.

59 European Parliament, Resolution of 7 July 2016 on the Implementation of the UN Convention on the Rights of Persons with Disabilities, with special regard to the Concluding Observations of the UN CRPD Committee 2015/2258(INI). 60 Ibid para 160. 61 Ibid para 61. 62 Ibid. 63 Ibid.

100  Research handbook on EU disability law 5.1

Representative Organizations of Persons with Disabilities

A large number of DPOs are active at the European level. The European Disability Forum (EDF) is the overall umbrella organization that seeks to defend the interests of more than 100 million Europeans with disabilities.64 Since its establishment more than 20 years ago, EDF has become ‘the central collective actor in European disability politics’.65 Its membership consists, inter alia, of both National Councils of Persons with Disabilities and European organizations representing persons with disabilities. One National Council (a national umbrella organization) from each Member State is a full member of EDF,66 and European-level organizations which have full membership status include, for example, the European Blind Union, Autism Europe and Inclusion Europe.67 EDF is active in representing the interests of persons with disabilities at the European level, and the organization thereby endeavours (among many other goals) to increase visibility of people with disabilities in the EU policy sphere. EDF works closely with the European institutions and campaigns on a number of issues, including a 2019 campaign to promote inclusive elections to the European Parliament. EDF also published a manifesto on the European Elections, which had been adopted by delegates to the 4th European Parliament of Persons with Disabilities,68 who represented the European disability movement.69 The manifesto called for a number of actions, including fully accessible and inclusive European elections, a comprehensive Post-2020 EDS and EU funding to secure equal opportunities and non-discrimination. EDF also ran a ‘European Elections for All’ petition, which collected more than 30,000 signatures.70 Notably, FRA data indicates that ‘commitments by the political groups in the European Parliament to provide information in formats accessible for persons with disabilities have been closely linked to DPO campaigns’.71 In 2018, EDF had an annual budget of 1.8 million euro, 70 per cent of which was provided by the EU.72 In addition to EDF, numerous disability- or impairment-specific DPOs operate and campaign at the European level, and some of these – such as Inclusion Europe,73 as well as the European Blind Union74 – also receive financial support from the EU, demonstrating 64 See European Disability Forum (EDF) www​.edf​-feph​.org accessed 3 February 2020. Emphasis in original. 65 Andreas Sturm, Anne Waldschmidt, Anemari Karačić and Timo Dins, ‘Exercising Influence at the European Level, Political Opportunity Structures for Disability Rights Advocacy and the Impact of the UN CRPD’ in Rune Halvorsen, Bjorn Hvinden, Jerome Bickenbach, Delia Ferri and Ana Marta Guillén Rodriguez (eds), The Changing Disability Policy System: Active Citizenship and Disability in Europe (Routledge 2017) vol 1, 159–76, p. 168. 66 See EDF, ‘Full Members’ www​.edf​-feph​.org/​about​-us/​members/​full​-member accessed 3 February 2020. 67 Ibid. 68 See further Andrea Broderick and Delia Ferri, International and European Disability Law and Policy, Text, Cases and Materials (Cambridge University Press 2019) 315. 69 See EDF, ‘EDF Manifesto on the European Elections 2019’ www​.edf​-feph​.org/​edf​-manifesto​ -european​-elections​-2019 accessed 3 February 2020. 70 See https://​you​.wemove​.eu/​campaigns/​european​-elections​-for​-all accessed 3 February 2020. 71 FRA, The Right to Political Participation for Persons with Disabilities (n 5) 58. 72 See EDF, ‘Financial Information & Transparency’ www​.edf​-feph​.org/​financial​-information​-and​ -transparency accessed 4 February 2020. 73 See Inclusion Europe www​.inclusion​-europe​.eu/​accessed 4 February 2020. 74 See European Blind Union (EBU) http://​www​.euroblind​.org accessed 4 February 2020.

Political participation of people with disabilities in the EU  101 the important role played by the institutions in fostering collective participation of people with disabilities in EU policy processes. 5.2

The European Social Platform

A large number of civil society organizations with an interest in social issues operate at the European level, and many of these work together through the Social Platform. The Platform advocates ‘for policies that bring social progress to everyone living in the EU, applying a human-rights approach to fight for a socially just and cohesive Europe that promotes equality, diversity, solidarity, democracy and human dignity’.75 Its membership includes a number of DPOs, including EDF, Autism Europe, Inclusion Europe and Mental Health Europe.76 The Platform does not campaign on disability-specific topics, as this lies within the remit of EDF and other European-level DPOs; however, it does work on issues which are of interest to all individuals, or to a large number of its members – such as equality, equal access to services and benefits and adequate income support – and it includes a disability perspective where appropriate.77 The Platform also receives financial support from the EU.78 5.3

The Disability Intergroup

The Disability Intergroup of the European Parliament is an informal grouping of Members of the European Parliament (MEPs) of all nationalities and most political groups who are interested in promoting disability policy in their work at the European Parliament, as well as at the national level. More generally, it is worth noting that the European Parliament is ‘often portrayed as a door-opener’ for civil society organizations, including in the disability context.79 The Disability Intergroup is one of the oldest Intergroups of the European Parliament and was established in 1980.80 It is also one of the largest, with more than 110 MEPs in the 2014–2019 Parliament. As with all Intergroups, it must be reconstituted with each new Parliament. Disability Intergroup members organize debates with their colleagues and with other EU institutions, submit amendments, draft Parliamentary questions and other Parliamentary initiatives and participate as keynote speakers at European events on disability issues. EDF cooperates closely with the Disability Intergroup and acts as its Secretariat.81 As a result, there is a good connection between EDF, other European DPOs, and National Disability Councils and MEPs who are members of the Intergroup. DPOs have the opportunity both to raise issues with engaged MEPs and supply those MEPs with background information which can be useful in the Parliamentarians’ work, including when submitting amendments to draft legislation and asking Parliamentary questions of the European Commission. 75 See Social Platform, ‘Our Members: Join Us’ www​.socialplatform​.org/​our​-members/​join​-us/​ accessed 5 February 2020. 76 See Social Platform, ‘Our Members’ www​.socialplatform​.org/​our​-members/​accessed 5 February 2020. 77 See the relevant information on www​.socialplatform​.org/​accessed 5 February 2020. 78 Ibid. 79 Sturm et al, ‘Exercising Influence at the European Level’ (n 65) 161. 80 Ibid. 81 Information taken from EDF’s homepage: www​.edf​-feph​.org/​disability​-intergroup​-european​ -parliament accessed 7 February 2020.

102  Research handbook on EU disability law 5.4

The Independent Mechanism Related to the Implementation of the CRPD

As highlighted elsewhere in this Research Handbook82 and as noted in the introduction to this chapter, the CRPD requires all Parties to establish an independent framework, ‘including one or more independent mechanism, as appropriate, to promote, protect and monitor implementation of the […] Convention’ (Article 33(2)). The UN Convention also requires that persons with disabilities and their representative organizations are to be involved and participate fully in the monitoring process (Article 33(3)). The EU has established such a framework, which includes EDF as a full member.83 The framework has been described as one of the first impacts that the CRPD has had at EU level.84 However, it is not open to organizations representing people with disabilities other than EDF.85 5.5

The European Day of Persons with Disabilities

Every year, the European Commission, together with EDF, organizes the European Day of Persons with Disabilities,86 in Brussels. This two-day event is held on (or around) 3 December, which is the International Day of Persons with Disabilities.87 Each European Day has a specific theme or focus, and past themes have included the EDS,88 citizenship,89 and the CRPD.90 The event is attended by invited representatives of the European and national disability movements, and DPO representatives are also among the speakers. Other participants and speakers include national and European civil servants, politicians and other experts. Initiatives such as the foregoing demonstrate that collective means of participation can serve as a powerful tool for increasing visibility of disability issues within the EU policy sphere. Collective forms of participation provide people with disabilities with an important avenue when attempting to influence policy-making as such, with a view to ensuring their full and equal participation in political and public life within the EU, in line with the CRPD.

6.

CONCLUDING REMARKS

This chapter has examined the legal and policy framework which impacts on the political participation of persons with disabilities within the EU, and seeks to guarantee that individuals See supra Alexander Hoefmans, ‘The EU Framework for Monitoring the CRPD’, in this volume. See CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 54) para 14. 84 Sturm et al, ‘Exercising Influence at the European Level’ (n 65) 163. 85 Ibid. 86 See European Forum of Technical and Vocational Education and Training, ‘European Day of Persons with Disabilities 04/12/2017–05/12/2017’ www​.efvet​.org/​event/​european​-day​-of​-persons​-with​ -disabilities accessed 7 February 2020. 87 See United Nations, ‘International Day of Persons with Disabilities 3 December’ www​.un​.org/​ en/​events/​disabilitiesday accessed 7 February 2020. See also Sturm et al, ‘Exercising Influence at the European Level’ (n 65) 162. 88 See Commission, ‘European Day of Persons with Disabilities 2018’ https://​ec​.europa​.eu/​social/​ main​.jsp​?langId​=​en​&​catId​=​88​&​eventsId​=​1352​&​furtherEvents​=​yes accessed 7 February 2020. 89 Ibid. 90 Ibid. 82 83

Political participation of people with disabilities in the EU  103 with disabilities can participate in political and public life on an equal basis with others. It has also explored the various avenues that enable people with disabilities to participate in the EU policy-making system through collective means. As demonstrated throughout this chapter, the right to participate in political and public life laid down in Article 29 CRPD, and reflected in various hard and soft law provisions of EU law, is inextricably linked with the concept of ‘active citizenship’. FRA highlights that elections to the European Parliament are one of the ‘main avenues for citizens’ participation in the Union’, while being able to vote in municipal elections in the EU Member State in which a person lives ‘is a key demonstration of the principle of free movement of people’.91 In addition to the right to vote, this chapter has noted that other forms of participation, such as non-electoral participation, are pivotal to unlocking citizenship rights for people with disabilities. While the EU has not adopted legislation directly addressing the right to vote of persons with disabilities, certain secondary legislation impacts on the participation of people with disabilities in political and public life. Directives 93/109/EC and 94/80/EC, concerning elections to the European Parliament and municipal elections, potentially allow for people who have been denied legal capacity to be excluded from participation in these elections in both their host State and their State of residence. As highlighted above, it is important for the implementation of the CRPD that, in reporting on the implementation of the above-mentioned Directives, the European Commission include an assessment of whether these Directives are being interpreted in a manner that is in line with Article 29 CRPD.92 Part of this assessment should include identifying national practices and the extent to which disenfranchisements for reasons related to disability which have occurred in one Member State are being recognized and enforced in another Member State, in the case of individuals who have exercised their right of free movement. Case law of the CJEU might serve as another important avenue through which the right to participate in political and public life can be protected and fostered. As highlighted above, a request for a preliminary reference had been made to the CJEU concerning the application of the CFR and the CRPD to the withdrawal of the right to vote in European Parliamentary elections in the context of guardianship measures adopted in respect of a person with a psychosocial disability. While that particular preliminary reference was later withdrawn, it would have been interesting to see whether the CJEU determined that the matter at hand fell within the competence of the EU, and decided that the Charter or CRPD allowed for restrictions on this right, or not. The Court’s response to that preliminary reference could have provided insights into the interface between the CRPD and Charter rights in that context. It has also been highlighted in this chapter how the EU framework allows for various opportunities for DPOs to influence policy-making, and that formalized structures for cooperation and influence, as well as informal structures, exist in that regard. In addition, it is important to note that the EU provides some funding for representative DPOs operating at the EU level. This constitutes an important current and future means by which the participation of people with disabilities can be facilitated in the EU policy sphere. Priestley et al delineate two dimensions to the challenge of guaranteeing that the individual and collective voices of people with disabilities are heard within the EU, namely ‘assuring equal political rights in principle and providing accessible participation processes in prac FRA, The Right to Political Participation for Persons with Disabilities (n 5) 13. Ibid.

91 92

104  Research handbook on EU disability law tice’.93 In accordance with the CRPD, it is vital that barriers to political participation are eradicated in order to make democratic processes more inclusive, enabling people with disabilities to participate in political and public life on an equal basis with others. The CRPD Committee has recommended that the EU take the necessary measures, in cooperation with its Member States and representative organizations of persons with disabilities, to enable persons with all types of disabilities, including those under guardianship, to enjoy their right to vote and stand for election, including by providing accessible communication and facilities.94 It is vital that the EU institutions continue to engage in the constructive dialogue process with the CRPD Committee and follow up on the Committee’s concluding observations in this field. In highlighting the fundamental importance of the right to participation in political and public life, the OHCHR asserts that ‘guarantees of participatory rights, while important in and of themselves, are also crucial to redressing the exclusion, marginalization and disadvantages that persons with disabilities continue to face in all areas of social, economic, cultural and political life’.95 The guarantees contained in Article 29 CRPD, and the guidance provided by the CRPD Committee, can serve as a compass for the EU to ensure that its actions in this field are in compliance with its obligations under the UN Convention, thereby contributing to increasing the inclusion of people with disabilities on an equal basis with others within the EU political and public sphere.

See generally Priestley et al, ‘The Political Participation of Disabled People in Europe’ (n 3). CRPD Committee, Concluding Observations on the Initial Report of the European Union (n 54) para 39. 95 Office of the United Nations High Commissioner for Human Rights, Factors that Impede Equal Political Participation and Steps to Overcome those Challenges, UN Doc. A/HRC/27/29, 21 December 2011. 93 94

7. EU citizenship and disability Charles Edward O’Sullivan

1. INTRODUCTION Beginning in the latter part of the previous century, the world witnessed an increased move towards globalization.1 This has seen the erosion of what had been considered the ‘post-war consensus’, according to which States reshaped the basis of their relationship with their citizenry,2 through an ongoing process of neo-liberalization.3 This process, along with the methodical dismantling of the concept of ‘national borders’, also facilitated the free movement of the factors of production, giving rise to more limited restrictions on movement between States. This, in turn, has led to the increased prevalence of what some scholars have defined as ‘postnational citizenship’,4 meaning that ‘belonging’ to a particular State is becoming increasingly less tied to holding citizenship of that same State, and individual rights are increasingly becoming decoupled from historical conceptions of belonging and ‘otherness’. Citizenship of the European Union (EU) is an example of this move towards a form of citizenship that is tied to a different concept of ‘territory’ and a more nuanced conceptualization of ‘belonging’. Originally incorporated within the Treaty of Maastricht,5 ‘Union citizenship’ was not a free-standing concept, and was viewed as existing in tandem with (rather than replacing) citizenship of a given Member State.6 Currently, it (and the ensuing right to free 1 See generally Mica Panic, Globalization and National Economic Welfare (Palgrave Macmillan 2003); Pranab Bardhan, Samuel Bowles and Michael Wallerstein (eds), Globalization and Egalitarian Redistribution (Princeton University Press 2006); and Joseph Stiglitz, Globalization and Its Discontents (W.W. Norton and Company 2002). 2 Walter Benn Michaels, The Trouble with Diversity: How We Learned to Love Identity and Ignore Inequality (Holt and Company 2006); Ruth Rosen, The World Split Open: How the Modern Women’s Movement Changed America (Penguin 2006); Corey Robin, The Reactionary Mind: Conservatism From Edmund Burke to Sarah Palin (Oxford University Press 2013); and Johanna Bockman, Markets in the Name of Socialism: The Left-Wing Origins of Neoliberalism (Stanford University Press 2011). 3 See Donald MacKenzie, Material Markets: How Economic Agents are Constructed (Oxford University Press 2009). See further Michael Callon (ed), The Law of Markets (Blackwell 1998); Andrew Barry, Political Machines: Governing a Technological Society (Athlone Press 2001); and David Harvey, A Brief History of Neoliberalism (Oxford University Press 2005). 4 See Yasemin Soysal, ‘Changing Parameters of Citizenship and Claims-Making: Organised Islam in European Public Spheres’ (1997) 26 Theory and Society 509; see further Dora Kostakopoulou, ‘Thick, Thin and Thinner Patriotism: Is This All There Is?’ (2006) 26 Oxford Journal of Legal Studies 73, p. 83. This is to be contrasted with the concept of ‘transnational citizenship’, as discussed in Rainer Baubock, Transnational Citizenship (Edward Elgar Publishing 1994). 5 Article 8 EC Treaty. 6 Dimitri Kochenov, ‘Ius Tractum of Many Faces: European Citizenship and the Difficult Relationship between Status and Rights’ (2009) 15 Columbia Journal of European Law 169. See also Case C-135/08 Janko Rottman v Freistaat Bayern EU:​C:​2010:​104; and Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) EU:​C:​2011:​124 for examples of this, as well as cases cited elsewhere in this chapter.

105

106  Research handbook on EU disability law movement, irrespective of a citizen’s economic activity and engagement with the labour market) is governed primarily by Articles 18–24 of the Treaty on the Functioning of the EU (TFEU). Over time, however, the concept of ‘Union citizenship’, and the rights underpinning it, has gained a growing status within the EU legal order, and the Court of Justice of the EU (CJEU) has sought to bridge this divide between citizenship and what had previously been a highly economic vision of its relationship with the EU social polity.7 By the latter half of the first decade of the 2000s, this shift had become so pronounced that the CJEU could declare it to be a well-established truth (based in large part on its own jurisprudence), affirming that ‘citizenship of the Union is intended to be the fundamental status of nationals of the Member States’.8 This is not to say that these developments within the realm of Union citizenship have gone unchallenged; rather, it signifies that the EU institutions have continually sought to move forward and expand what constitutes Union citizenship, where possible, in particular in relation to the prohibition of discrimination. Article 21 of the Charter of Fundamental Rights of the EU (CFR) includes disability as a protected ground of discrimination, from a constitutional standpoint.9 Moreover, by virtue of the Union’s accession to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in December of 2010, EU citizens with disabilities are now entitled to certain rights that complement, and fit within, the concept of ‘Union citizenship’. Although the status of the CRPD within the EU legal order is sub-constitutional in nature10 – a point discussed by Chamon elsewhere in this Research Handbook11 – all Union legislation must be interpreted in light of the obligations which stem from it. Since its entry into force, the CRPD has come to represent the ‘gold standard’ in measuring the rights of persons with disabilities. This is perhaps most commonly exemplified in the way in which the Convention has re-envisaged the human rights of persons with disabilities as requiring the adoption of positive measures by Parties to the Convention, in order to remove any barriers that would hinder their full participation within social, civil and political life, when compared with persons without impairments. With this background in mind, this chapter will focus on the differences between the notion of ‘social’ citizenship that developed in the post-Second World War landscape and in the heyday of the welfare state in industrialized nations, and European Union citizenship. Social citizenship, for the purposes of this analysis, is a notion that gives rise to social rights 7 Case C-85/96 María Martínez Sala v Freistaat Bayern EU:​C:​1998:​217; Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d'Ottignies-Louvain-la-Neuve EU:​C:​2001:​458; Case C-224/98 D’Hoop EU:​C:​2001:​458; Case C-413/99 Baumbast and R v Secretary of State for the Home Department EU:​C:​2002:​493; Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) EU:​ C:​2004:​488. 8 Case C-434/09 McCarthy v Secretary of State for the Home Department EU:​C:​2010:​718, para 47: ‘Indeed, the Court has stated several times that citizenship of the Union is intended to be the fundamental status of nationals of the Member States.’ McCarthy is also a somewhat interesting precedent that could be drawn on to reaffirm this notion, as it also helped to establish some of the limitations of this fundamental status. 9 Charter of Fundamental Rights of the European Union [2000] OJ C364/1. The Charter has full constitutional status equal to that of the other two primary Treaties, by virtue of Article 6(1) TEU. 10 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:​C:​2008:​461. 11 See infra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume.

EU citizenship and disability  107 for citizens, which ‘often involve transfers and forms of provision that are more expensive and more redistributive than other rights’.12 Social rights include, for example, the right to a minimum standard of living, education and healthcare, and in this way require State intervention and the creation of State-level structures capable of giving effect to these same rights. Such intervention is also arguably necessitated by the CRPD, through the requirements to ensure accessibility at the societal level and the provision of reasonable accommodations at the personal level. Consequently, critiquing the nature of Union citizenship and the extent to which it can be considered ‘social’ in character – particularly from a disability standpoint – will also necessitate an examination of whether, or to what extent, the obligations set out in the CRPD (to which the EU and its institutions are bound) can align with the Union's current conceptualization of EU citizenship. This chapter will be structured as follows. Following these introductory remarks, section 2 will briefly examine what is meant by citizenship in a classical, nationalistic sense, and how this developed into social citizenship. Section 3 will then outline the development of Union citizenship and establish its relationship with national citizenship, demonstrating how it both challenges and reinforces citizenship of the Member States. Section 4 will then explore the extent to which citizenship of the Union can be considered to have a social character, while section 5 examines what this means specifically in a disability context. The chapter will then offer some brief concluding observations in section 6, underlining the complicated relationship between disability and European Union citizenship.

2.

CONTEXTUALIZING NATIONAL CITIZENSHIP

The classic conception of citizenship cannot be discussed without considering how reliant it is upon borders of different kinds. Most importantly, borders act as part of a broader system designed to ensure that those who are considered to be part of a particular political, social and geographic community enjoy certain privileges and opportunities – particularly with regard to accessing resources and State systems, such as the welfare state – that non-citizens do not enjoy to the same degree.13 This requires that the territory is known and quantifiable, and in turn governable.14 Not only must a given State be able to identify its geographical territory and its resources, it must also be able to establish the identities of its constituents and their resources.15 For Walzer, ‘the very idea of distributive justice presupposes a bounded world

12 David Garland, ‘On the Concept of “Social Rights”’ (2015) 24(4) Social and Legal Studies 622, p. 627. 13 Richard Bellamy, Citizenship: A Very Short Introduction (Oxford University Press 2008); Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires 1400–1900 (Cambridge University Press 2010). See also Michel Foucault, ‘Governmentality’ in Paul Rainbow and Nikolas Rose (eds), The Essential Foucault: Selections from Essential Works of Foucault, 1954–1984 (New Press 2003) 229–45. 14 Michel Foucault, ‘The Subject and Power’ (1982) 8 Critical Inquiry 777. 15 James C Scott, Seeing Like a State: How Certain Schemes to Improve Conditions Have Failed (Yale University Press 1998).

108  Research handbook on EU disability law within which distributions take place: a group of people committed to dividing, exchanging, and sharing social goods, first among themselves’.16 Citizenship, consequently, acts as both ‘an object and instrument of closure’,17 through which the State deems individuals to be included in or excluded from it, and is able to limit their access to the welfare state on that basis.18 Although it can be taken to mean different things in separate contexts,19 the welfare state governs ‘all publicly provided and subsidised services, statutory, occupational and fiscal’,20 and can broadly be considered as ‘a [S]tate which through its [S]tate structure, social policy, and institutions allows its inhabitants a level of decommodification; they can opt out of work for a period of time and there still exists a safety net in the form of public social support’.21 As Esping-Andersen opines, the welfare state reduces the importance of the labour market ‘as the chief determinant of peoples’ life chances’.22 Consequently, an individual’s class and personal financial resources are not their primary means of survival when certain insurable risks or life events occur,23 and decommodification revolves around the idea of making engagement with the labour market and being employed less important at the individual and societal level. This, in turn, may give rise to specific social rights, such as access to healthcare, education or a minimum standard of living. From a disability perspective, this would also ensure that an individual’s impairment(s) would not be a primary determinant of their place within society. Thus, the notion of ‘belonging’ accords rights to individuals, and imposes obligations on them, based on their relationship to the State authority which creates and maintains these,24

16 Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Basic Books 1983) 31. Walzer also argues that ‘admission and exclusion are at the core of communal independence […] without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life’ (Ibid 62). See also David Miller, National Responsibility and Global Justice (Oxford University Press 2007). 17 Rogers Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press 1998) 34. 18 Sheldon Wolin, ‘Fugitive Democracy’ in Seyla Benhabib (ed), Democracy and Difference (Princeton University Press 1996) 31–45; Malcom Anderson and Eberhard Bort (eds), The Frontiers of Europe (Pinter 1998); Hastings Donnan and Thomas M Wilson, Borders: Frontiers of Identity, Nation and State (Berg 1999); Mathias Albert, Yosef Lapid and David Jacobson (eds), Identities, Borders, Orders: Rethinking International Relations Theory (University of Minneapolis Press 2001); Allen Buchanan and Margaret Moore (eds), States, Nations and Borders (Cambridge University Press 2003). 19 David Garland, The Welfare State: A Very Short Introduction (Oxford University Press 2006). 20 Peter Alcock, Howard Glennerster, Ann Oakley and Adrian Sinfield (eds), Welfare and Wellbeing: Richard Titmuss’ Contribution to Social Policy (Polity Press 2001) 118. 21 Alexandra Ingvarsson, ‘Migrants and the Welfare State: An Examination of Variation in Migrants’ Access to Social Benefits’ www​.ibei​.org/​ibei​_studentpaper16​_71937​.pdf accessed 1 February 2020. 22 Gøsta Esping-Andersen, Politics against Markets: The Social Democratic Road to Power (Princeton University Press 1985) 245. 23 See generally Thomas H Marshall, ‘Citizenship and Social Class’ in Thomas H Marshall and Thomas Bottomore (eds) Citizenship and Social Class (Pluto Press 1992) 3–51. 24 See generally Christian Joppke, Citizenship and Immigration (Polity Press 2010) 96–110; Yasemin Soysal, Limits of Citizenship (University of Chicago Press 1994); Yuli Tamir, Liberal Nationalism (Princeton University Press 1993); John Isbister, ‘A Liberal Argument for Border Controls: Reply to Carens’ (2000) 34(2) International Migration Review 629; Samuel Scheffler, Boundaries and Allegiances (Oxford University Press 2001); and Stephen Macedo, ‘What Self-Governing Peoples Owe to One Another: Universalism, Diversity and the Law of Peoples’ (2004) 72(5) Fordham Law Review 1721.

EU citizenship and disability  109 with citizenship acting as the clearest and most normative example of this. Social citizenship, through the welfare state, is primarily a national creation, and was viewed as an achievement of each particular State to serve the particular needs of that society.25 Due to the fact that it is largely a national creation (although a process undertaken on a global scale by many industrialized States), inward migration from other countries is often viewed as constituting an existential threat to the welfare state and society at large.26 The creation of social rights (through the establishment of a welfare state) is seen as the final step in the overall process of defining citizenship of a national community,27 with migrants seeking similar or equal access to these same rights posing an inherent challenge. In order to ensure that this link between the citizen and the State is maintained, as well as to ensure that the resources of the welfare state are ‘protected’, migrant access must be limited.28 Further, this conception of social citizenship, despite its retrenchment over time, is much more easily aligned with the CRPD than a model which is almost purely civil and political in tenor. This is because the State has the ability to create the kind of durable redistributive structures necessary to intervene, and to remove social barriers. As the Introduction to this Research Handbook and other contributions make clear,29 the CRPD necessitates, to varying degrees, that States promote generalized accessibility for persons with disabilities, as well as providing individualized reasonable accommodations, in order to remove specific barriers within society that hinder that same person’s ability to fully participate in society on an equal basis. State intervention will, of course, be dependent upon the political will to ensure that social citizenship and the social rights that underpin it are given full effect, as well as an enduring sense of social solidarity among the public to hold the State to account when it fails in its obligations to do so.

3.

DIFFERENTIATING UNION AND NATIONAL CITIZENSHIP

Union citizenship, by comparison, exists in a somewhat paradoxical space, as it is not only built upon, and cements, national conceptions of citizenship, but also appears to directly challenge them and the ability of Member States to maintain different borders – geographical, political and social – along which they create and maintain their version of community. The concept of ‘EU citizenship’ was first introduced in the Treaty of Maastricht. Article 8 of the Treaty Establishing the European Community (EC) stated that: 25 Colm O’Cinneide, ‘Austerity and the Faded Dream of a “Social Europe”’ in Aoife Nolan (ed), Economic and Social Rights after the Global Financial Crisis (Cambridge University Press 2014) 169–201. See further Tony Judt, Postwar: A History of Europe Since 1945 (Penguin 2005) 777 et seq. 26 Michael Bommes and Andrew Geddes, ‘Introduction: Immigration and the Welfare State’ in Michael Bommes and Andrew Geddes (eds), Immigration and Welfare: Challenging the Borders of the Welfare State (Routledge 2000) 1–12. 27 See generally Marshall, ‘Citizenship and Social Class’ (n 23). 28 See Stuart Soroka, Keith Banting and Richard Johnston, ‘Immigration and Redistribution in a Global Era’ in Pranab Bardhan, Samuel Bowles and Michael Wallerstein (eds), Globalisation and Egalitarian Redistribution (Princeton University Press 2006) 261–88. See also Michael Dougan and Eleanor Spaventa, ‘Wish You Weren’t Here: New Models of Social Solidarity in the European Union’ in Eleanor Spaventa and Michael Dougan (eds), Social Welfare and EU Law (Hart Publishing 2005) 181–218. 29 See Part II of this volume, in particular.

110  Research handbook on EU disability law 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

This provision quickly gave rise to the interpretation that Union citizenship is a ius tractum, or derivative status,30 meaning that ‘one can be a European citizen only if one is previously a French, a Belgian, or a German citizen’.31 It does not distinguish between the different methods of obtaining citizenship nationally, such as ius sanguinis (blood right)32 or ius soli (birth right)33 – so long as an individual is a citizen of one of the Member States, they are also a citizen of the EU and they will gain any rights that accrue by virtue of this additional status. Consequently, Union citizenship was never designed to formally replace national citizenship,34 and remains a set of rights that can be ‘activated’ upon a citizen’s movement within the internal market or upon certain factual circumstances being met, and which can then be enforced against one’s host or home Member State.35 This is what makes it capable of being considered a new model,36 based on transnational or inter-State citizenship.37

30 Dimitri Kochenov, ‘The Impact of European Citizenship on the Association of the Overseas Countries and Territories with the European Community’ (2009) 36 Legal Issues of Economic Integration 181. 31 Marco Martiniello, ‘The Development of European Union Citizenship’ in Maurice Roche and Rik Van Berkel (eds), European Citizenship and Social Exclusion (Ashgate 1998) 35–47. 32 The French Civil Code of 1804 granted that parents (at that time taken to mean fathers) could pass on citizenship to their children even where those children were not born in France. See Patrick Weil, ‘Access to Citizenship: A Comparison of Twenty-Five Nationality Laws’ in T Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Brookings Institution Press 2001) 17–35 at 17 and 19. 33 Robert W Houston, ‘Birthright Citizenship in the United Kingdom and the United States: A Comparative Analysis of the Common Law Basis for Granting Citizenship to Children Born of Illegal Immigrants’ (2000) 33 Vanderbilt Journal of Transnational Law 693, pp. 698–701. 34 Article 20 TFEU provides that ‘every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’. See Rosemarie Rogers, Guests Come to Stay: The Effect of European Labour Migration on Sending and Receiving Countries (Westview Press 1985); Saskia Sassen, Guests and Aliens (New Press 1999); see further Christian Joppke, Immigration and the Nation State: The United States, Germany and Great Britain (Oxford University Press 1999). 35 See, for example, Case C-85/96 María Martínez Sala v Freistaat Bayern EU:​C:​1998:​217; Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d'Ottignies-Louvain-la-Neuve ECLI:​EU:​C:​ 2001:​458; Case C-224/98 D’Hoop EU:​C:​2001:​458; Case C-413/99 Baumbast and R v Secretary of State for the Home Department EU:​C:​2002:​493; Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) EU:​C:​2004:​488; Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department EU:​C:​2004:​639. 36 Diamond Ashiagbor, ‘Promoting Precariousness? The Response of EU Employment Policies to Precarious Work’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (Hart Publishing 2005) 77–97. 37 Christoph Schönberger, ‘European Citizenship as Federal Citizenship: Some Citizenship Lessons of Comparative Federalism’ (2009) 19 European Review of Public Law 61; Yasemin Soysal, ‘Changing Parameters of Citizenship and Claims-Making: Organised Islam in European Public Spheres’ (1997) 26 Theory and Society 509; Dora Kostakopoulou, ‘Thick, Thin and Thinner Patriotism: Is This All There Is?’ (2006) 26 Oxford Journal of Legal Studies 73 at 83; and Baubock, Transnational Citizenship (n 4).

EU citizenship and disability  111 It has been argued that the process of European integration – and the creation of Union citizenship as part of that same process – has not diminished the importance of national borders.38 Rather, the removal of internal borders and the adoption of a more pan-European identity has simply helped to move internal frontiers between Member States outward towards the Union’s natural border with third countries. This, in turn, prompted the Member States to increasingly focus on the control of third-country migrants, as they gradually lost the ability to restrict these movements of mobile Union citizens.39 In Wijsenbeek, the CJEU went as far as to suggest that the free movement of citizens ‘presupposes harmonisation of the laws of the Member States governing the crossing of borders of the Community, immigration, the grant of visas, asylum and the exchange of information on those questions’.40 Language such as this is reliant upon the idea of borders that characterizes standard conceptions of citizenship. The rights that are accorded to a Union citizen are now consolidated within Articles 18–24 TFEU, which provide that: citizens cannot be discriminated against on the basis of nationality;41 that discrimination cannot occur based on identity, such as race, religion, disability or sexual identity; and that, as a supporting competence, the EU can adopt legislation to ensure that this does not occur.42 Articles 18–24 also contain the right to move and reside freely;43 the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence under the same conditions as nationals of that State;44 the right to enjoy diplomatic and consular representation from another EU Member State where their own Member State does not have such services in that area;45 and the ability to petition the European Parliament and the other institutions of the EU in their native language.46 Thus, Articles 18–24 TFEU largely mirror what was contained in Article 8 EC, while also developing upon it. It is this set of rights that provides perhaps the strongest normative challenge to national citizenship. Not only do Articles 18–24 TFEU provide for the right to move between States, they also set out the right to have rights outside of a national legal framework having binding effect, and require these to be expanded upon in further legislation. The foregoing rights can therefore be deemed to be civil and political in nature. While the freedom of movement within a single State has often been viewed as a form of ‘nation building’, migration from one State to another has not.47 Internal migration helps to construct a sense of ethnic or national identity, as well as the ability for States to have labour shortages in one region filled by citizens 38 Etienne Balibar, ‘Europe as Borderland’ (2009) 27 Environment and Planning D: Society and Space 190; Ulrich Beck and Edgar Grande, Cosmopolitan Europe (Polity Press 2007). 39 Wendy Brown, Walled States, Waning Sovereignty (Zone Books 2010); Saskia Sassen, ‘Bordering Capabilities versus Borders: Implications for National Borders’ (2009) 30(3) Michigan Journal of International Law 567; Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (The 1995 Storr Lectures) (Columbia University Press 1996) 29–30. 40 Case C-378/97 Criminal proceedings against Florus Ariël Wijsenbeek EU:​C:​1999:​439 para 40. 41 Article 18 TFEU. 42 Article 19 TFEU. 43 Article 20(2)(a) and 21 TFEU. 44 Article 20(2)(b) TFEU. This is also expanded upon in Article 22 TFEU. 45 Article 20(2)(c) TFEU, and expanded upon in Article 23 TFEU. 46 Article 20(2)(d) TFEU, and expanded upon in Article 24 TFEU. 47 Willem Maas, Creating European Citizens (Rowman and Littlefield 2007); Michael Blake, ‘Universal and Qualified Rights to Immigration’ (2006) 4(1) Ethics and Economics 1 http://​ethique​ -economique​.net/​accessed 7 February 2020; and David Miller, ‘Is There a Human Right to Immigrate?’

112  Research handbook on EU disability law from another area of the State, with relative ease. Internal migration is not only economically beneficial – as it means that labour shortages or shortages in the supply of goods or services can be filled quickly – but is also a constitutive force within society, as citizens from different parts of the same State share the common bond of citizenship.48 It is for this very reason that the Union institutions and the Member States believed in the need for a more European form of citizenship, allowing for more complex forms of belonging to develop. As Baubock has posited, individuals can now move to, and reside in, States other than their country of origin more easily than ever before, and these persons develop more complex personal identities that reflect an attachment to more than one State.49 For example, a French citizen living in Dublin can view themselves as both French and Irish, as well as something entirely separate from both – an identity that reflects both of these lived experiences. Even prior to the incorporation of Union citizenship in the Maastricht Treaty, there was an attempt by scholars,50 as well as by the CJEU, to recast the economic freedoms, such as the free movement of workers and the right of establishment in Articles 45 and 49 TFEU, as fundamental rights of a more general character, and this gave rise to a discourse involving EU citizenship prior to its formal constitutionalization. This has meant that the power to invoke EU law was re-centred, with the citizen being viewed as a bearer of rights (rather than the Member States), and as the primary addressee and focal point of EU law.51 In doing so, an effort was made by the CJEU to ensure that the interpretation of the rights of workers and the self-employed moved away from focusing on their existence as economic beings; instead, an emphasis was placed on their status as social constituents of the EU. Despite the period immediately following the incorporation of Article 8 EC being characterized as one of ‘judicial minimalism’,52 the CJEU slowly began to expand the scope of the concept of ‘citizenship’ in the broadest sense – particularly in relation to what might otherwise be considered wholly internal situations, with no cross-border element.53 With the handing down of rulings in cases such as Garcia Avello,54 Schempp,55 Martínez Sala,56 and Bickel and

in Sarah Fine and Lea Ypi (eds), Migration in Political Theory: The Ethics of Movement and Membership (Oxford University Press 2013) 11–31. 48 This is not to say that the adoption of this right was uniformly supported. See Stig Jagerskiold, ‘The Freedom of Movement’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press 1981) 166–84; see further Jane McAdam, ‘An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty’ (2011) 12(1) Melbourne Journal of International Law 27; and Satvinder S Juss, ‘Free Movement and the World Order’ (2004) 16 International Journal of Refugee Law 289, p. 291. 49 Baubock, Transnational Citizenship (n 4); and Rainer Baubock, ‘Political Boundaries in a Multi-Level Democracy’ in Seyla Benhabib and Ian Shapiro (eds), Identities, Affiliations and Allegiances (Cambridge University Press 2007) 85–109. 50 Maas, Creating European Citizens (n 47). 51 Julio Baquero Cruz, Between Competition and Free Movement: The Economic Constitutional Law of the European Community (Hart 2002) 44–46. 52 Dora Kostakopoulou, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68 Modern Law Review 233. 53 Joined Cases 64 and 65/96 Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Land Nordrhein-Westfalen EU:​C:​1997:​285 para 23. 54 Case C-148/02 Carlos Garcia Avello v Belgian State EU:​C:​2003:​539. 55 Case C-403/03 Egon Schempp v Finanzamt München EU:​C:​2005:​446. 56 Case C-85/96 María Martínez Sala v Freistaat Bayern EU:​C:​1998:​217.

EU citizenship and disability  113 Franz,57 the CJEU increasingly invoked the right to non-discrimination outside of the realm of the economic freedoms.58 This, in turn, has meant that by drawing upon the right to free movement as set out in the citizenship provisions of the TFEU, as opposed to the rights of the citizen worker and the self-employed citizen, the national exclusionary zone that was once sealed off from the application of EU law was narrowed once again.59 Cases such as Garcia Avello, Rottmann,60 and most importantly Zambrano,61 would also demonstrate the circumstances within which the rule prohibiting the grant of EU rights in wholly internal situations could be superseded by the fundamental status of EU law and Union citizenship, allowing for a self-executing right to Union citizenship where the loss or deprivation of this status is likely to occur. The circumstances in which this self-executing right could be invoked were later narrowed,62 as the CJEU essentially required that a Union citizen must be forced, by virtue of the removal of their parents from the territory of the Union as a whole, to be deprived of their status as a Union citizen;63 nonetheless, these developments in the Court’s case law signalled overall that the rule prohibiting the invocation of EU law in wholly internal situations was becoming more pliable. This was clarified more recently by the CJEU in Chavez-Vilchez and others.64 In that case, the Court held that, even where one parent is a third-country national (TCN) but they act as the primary carer of the EU citizen child, the State concerned must give the appropriate weight to this in considering whether or not a ‘Zambrano-type exception’ should be granted to that individual parent. Hence, a ruling that once required the removal of the family in its totality from the territory of the EU in order to justify the grant of citizenship rights has now been extended to mean that the severing of the family, and removal of the primary (TCN) carer, can be sufficient to grant such rights, even if the EU citizen parent could take over in the role as carer for the Union citizen child. 65 Therefore, Union citizenship both mirrors and seeks to supplement classic forms of citizenship, insofar as it clearly establishes a de minimis standard of political and civil representation for Union citizens, and to the extent that the jurisprudence of the CJEU has placed such a significant emphasis on citizenship as a ‘fundamental status’ of a unique kind. It does, however, also challenge the ability of the Member States to maintain a strong form of social citizenship based upon national solidarities.

Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz EU:​C:​1998:​563. Alina Tryfonidou, ‘The Notions of “Restriction” and “Discrimination” in the Context of the Free Movement of Persons Provisions: From a Relationship of Interdependence to One of (Almost Complete) Independence’ (2014) 33 Yearbook of European Law 385. 59 Case C-148/02 Carlos Garcia Avello v Belgian State EU:​C:​2003:​539. 60 Case C-135/08 Janko Rottman v Freistaat Bayern EU:​C:​2010:​104. 61 Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) EU:​C:​2011:​124. 62 Case C-434/09 McCarthy v Secretary of State for the Home Department EU:​C:​2011:​277. 63 Ibid para 62. 64 Case C-133/15 H.C. Chavez-Vilchez, EU:​C:​2017:​354. See also Case C-82/16 KA and Others v Belgische Staat EU:​C:​2017:​821, where a refusal to allow third-country national family members entry to the territory of the Union was held to constitute a violation of the status of Union citizenship if it effectively means that this will compel the Union citizenship to leave the territory of the EU as a whole. 65 Ibid para 71: the fact that the other parent, the EU citizen parent, ‘is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national’. 57 58

114  Research handbook on EU disability law

4.

CAN UNION CITIZENSHIP BE SOCIAL?

As highlighted above, while ‘EU citizenship’ has developed significantly over time as a civil and political concept, it has never developed in the same manner from a social perspective. From a conceptual standpoint, this may be attributed to the manner in which the status of EU citizenship itself progressively realizes the rights which underpin it. For example, the Lounes judgment of the CJEU made clear that Article 21(1) TFEU provides for gradual integration of EU citizens into the society of their host State.66 Contrastingly, a structural analysis views this development as being most easily attributed to the way in which constitutional competences of a social character have been divided between the Union and its Member States, with the emphasis being placed on the latter retaining control over the organization of their redistributive systems and national social policies. Therefore, while it is ‘State-like’ in many respects,67 the ability of the Union to engage in positive intervention like the kind envisaged by the CRPD is more difficult to rationalize, because the EU cannot develop a welfare state in which it organizes redistributive programmes and policies centrally at the Union level. It can generally only seek to boost access to these programmes at the national level for EU citizens resident there. Social solidarity within the EU context has been defined by the CJEU as involving the ‘inherently uncommercial act of involuntary subsidisation of one social group by another’,68 underlining that in some ways welfare state systems at the national level are a ‘buttress’ against the internal market,69 and that this remains a space within which the Union does not have the freedom to develop its own solidarity-based social systems. Facilitating this free movement of persons has, in turn, opened up access to national welfare systems for mobile EU citizens – those who have migrated from one Member State to another. In 1971, for example, Regulation 1408/71 facilitating the free movement of workers was enacted,70 based on Article 51 of the Treaty Establishing the Economic Community.71 Somewhat paradoxically, the Union has often been accused of narrowing the space in which its Member States can engage in positive social policies – highlighting the negative consequences of social integration at the Union level.72 This is a result of the perceived necessity to develop the internal market and remove barriers at the national level which may hinder its

Case C-165/16 Toufik Lounes v Secretary of State for the Home Department EU:​C:​2017:​862. See, in this regard, Gregorio Peces Barbra Martinez, Teoria de los derechos fundamentales (Centro de Estudios Constitucionales 1991); and outlined in greater detail in Pasquale Policastro, ‘A New Garment for an Old Question: A Clash between Man’s Rights and Citizens’ Rights in the Enlarged Europe?’ in Joakim Nergelius (ed), Nordic and Other European Constitutional Traditions (Martinus Nijhoff 2006) 61–92, pp. 61 and 63. 68 Case C-70/95 Sodemare v Regione Lombardia EU:​C:​1997:​301 para 29. 69 Tamara Harvey, ‘Social Solidarity: A Buttress against Internal Market Law?’ in Jo Shaw (ed) Social Law and Policy in an Evolving European Union (Hart Publishing 2000) 31–47. 70 Regulation (EEC) 1408/71 on the application of social security schemes to employed persons and their families moving within the Community OJ L149. 71 Now Article 48 TFEU. 72 Dagmar Schiek, ‘Re-Embedding Economic and Social Constitutionalism: Normative Perspectives for the EU’ in Dagmar Schiek, Hildegard Schneider and Ulrike Liebert (eds), European Economic and Social Constitutionalism after the Treaty of Lisbon (Cambridge University Press 2011) 17–46; Diamond Ashiagbor, ‘Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration’ (2013) 19(3) European Law Journal 303. 66 67

EU citizenship and disability  115 development.73 Even where the CJEU has attempted to extend social rights to Union citizens, it has done so by mimicking principles recognized in case law related to the free movement of workers and the self-employed, and by placing an emphasis on the importance of economic activity in order to be granted access to the social system of a host Member State. This can generally be seen in how the Luxembourg Court has attempted to extend citizenship rights into social domains. The first significant application of Articles 18 and 20 TFEU in relation to social rights can be seen in Martínez Sala,74 where a German law requiring EU citizens living in Germany to produce a residence permit before accessing a childcare benefit (when the same was not required of its own nationals) was found to violate the principle of non-discrimination on the basis of nationality. This evolution was further cemented in Grzelczyk,75 where it was made clear that national laws could not bar students resident in a secondary Member State from accessing social benefits, as ‘[u]nion citizenship is destined to be a fundamental status of nationals of all the [M]ember [S]tates, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’.76 Both of these cases would, on the surface, suggest that the CJEU was expanding the concept of ‘non-discrimination’ beyond that which is contained in Articles 45, 48 and 49 TFEU by providing it with a more general character, rather than dividing the principle of non-discrimination into economic and non-economic contexts. These cases also suggest that the concept of ‘Union citizenship’ could act as the focal point for all actions challenging nationality-based discrimination. However, in emphasizing procedural hurdles rather than directly addressing the substance of this division between the economic and non-economic citizen, this early case law proved to be somewhat muted in terms of its impact from a redistributive vantage point. The CJEU, in Grzelczyk, even clarified the scope of EU law, by pointing out that access would still be determined based on an EU citizen meeting all of the necessary legal requirements laid down in secondary EU law and national law, as well as the individual not becoming an ‘undue burden’ on the welfare system of their host State.77 This interpretation was supported by that in Bidar,78 where the Court ruled that students who have ‘demonstrated a degree of integration into the society of the host State’79 can access social benefits such as maintenance grants tied to their education – so long as they do not become an unreasonable burden on the welfare system. This was later qualified in Forster,80 where a German student resident in the Netherlands was initially refused a maintenance grant and the degree of integration demonstrated in that Joined Cases C-158 and 159/04 Vassilopoulos EU:​C:​2006:​212 para 40. Case C-85/96 María Martínez Sala v Freistaat Bayern EU:​C:​1998:​217. 75 Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve EU:​ C:​2001:​458. 76 Ibid para 31. 77 Ibid para 46. 78 Case C-209/03 The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills EU:​C:​2005:​169. 79 Integration, in this respect, would appear to be fulfilled by having maintained a reasonable period of lawful residence, and an adequate level of interaction with the host State’s administrative apparatus, although this is, in itself, quite vague. See Case C-209/03 The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills EU:​C:​2005:​169 and Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) EU:​C:​2004:​488 para 43. 80 Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep EU:​C:​2008:​ 630. 73 74

116  Research handbook on EU disability law instance was deemed to be insufficient, highlighting that a certain threshold must first be met before obtaining access to social benefits of this nature. It therefore becomes clear from this examination of Union citizenship law that its social character has been historically quite limited and confined to very specific circumstances, as the CJEU, in interpreting the social character of Union citizenship, has focused largely on the principle of non-discrimination. Similarly, the EU has not created the kind of durable structures necessary to give effect to social citizenship, and has instead narrowed the space within which Member States can refuse access to national welfare systems for certain classes of EU citizens based upon the free movement of persons.

5.

EU CITIZENSHIP AND DISABILITY

As the preceding sections underline, the Union lacks the necessary apparatus of a State to ensure that redistribution at EU level is possible. In addition, the Union’s legal order is seen as the necessary boundary for the solidarity-based welfare systems of its Member States. Although it has the ability to intervene in certain regards, the nature of its interventions is limited. Thus, the social limits of Union citizenship raise questions regarding what this means in a disability context. Over time, the social character of Union citizenship has emerged in a small number of cases related to disability, by primarily invoking the provisions related to free movement of persons and the rules allowing for the coordination of national welfare systems that facilitate this free movement. Trojani is perhaps one of the earliest judgments highlighting how citizenship and disability may interact.81 In that case, it was held that the right to non-discrimination contained in Article 18 TFEU could apply to persons in ancillary work seeking to access social assistance payments, despite this right already being included within the scope of Article 45 and 48 TFEU. In line with the other case law on Union citizenship, the CJEU sought to bring the more developed free movement rights for economically active citizens within the scope of Articles 18 and 20 TFEU, in particular. What is unique, however, is how the Court justifies its decision. The Grand Chamber makes clear that programmes which have as their sole objective rehabilitation or reintegration cannot be considered economic and cannot draw the protection of Article 45 TFEU on the free movement of workers or Article 18 TFEU on citizenship.82 In evaluating the character of the particular rehabilitation scheme under consideration in Trojani, however, the CJEU found that Article 45 TFEU applies. Although the judgment of the Grand Chamber does not directly cite disability, the opinion of the Advocate General (AG), with which the Court almost entirely agrees, adds more nuance to the final determination made by the Luxembourg Court. AG Geelhoed underlined that social schemes designed to reintegrate persons with disabilities into the labour market can be covered so long as the work is also economic in nature.83 Persons with disabilities are therefore treated in an identical manner to non-disabled Union citizens, insofar as both are viewed through this narrow lens. In other

81 Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) EU:​C:​2004:​ 488. 82 Ibid paras 18 and 32, citing Bettray. 83 Opinion of the Advocate General Geelhoed, Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles EU:​C:​2004:​112, paras 28–30 in particular.

EU citizenship and disability  117 words, schemes such as these can be social, but only where there is enough of an economic component to keep them within the well-established competences of the Union. Over time, the CJEU engaged in stronger rhetoric. Its emphasis on facilitating the free movement of persons through enabling access to national welfare systems, rather than on the unique challenges stemming from disability, continued, however. In Steward,84 the plaintiff was the parent of a woman with Down Syndrome, and applied for a United Kingdom (UK) incapacity benefit on the daughter’s behalf. Even though the family had lived in Spain for approximately five years at that point in time, the family had resided in the UK for 11 years prior to their move to Spain, and Ms Steward had been granted access to the UK disability living allowance since 1992. This payment continued even after the family began to reside outside the territory of the UK, but at a certain point the incapacity benefit was refused on the basis that they lived outside of the UK. This was challenged as a violation of EU law and discrimination on the ground of nationality or, in this instance, residency. In finding in favour of the plaintiff, the CJEU held that ‘national legislation, which disadvantages some nationals of a Member State simply because they have exercised their freedom to move and to reside in another Member State, amounts to a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union’.85 Although significant in its reaffirmation of the fundamental value of ‘Union citizenship’ as a concept in itself, it was with this and not the disability dimension of the case that the CJEU engaged. This approach of the Court was also recently reaffirmed in Vester,86 where the plaintiff sought to access an incapacity payment but fell between the regulations of two separate Member States – Belgium and the Netherlands – due to her migrant worker status. The Luxembourg Court held that the competent Member State must resolve this situation to the benefit of the plaintiff. The only significant shift away from this line of reasoning with regard to citizenship and disability arises in the A case.87 In this instance, the applicant was a Finnish national who would begin a full-time law course in Estonia. This would require spending three to four days per week outside of Finland. As a person certified as having a severe disability, the applicant needed a personal assistant to help them perform day-to-day tasks, and had been granted relevant aid under Finnish law. However, the time spent outside of Finland would, from the perspective of the Finnish authorities, alter the applicant’s residency status. This would invalidate the claim to personal assistance during the time spent studying in Estonia. The applicant challenged the refusal on the basis of Articles 20 and 21 TFEU, and claimed a violation of their rights as a Union citizen and their right to free movement, in particular. In finding in favour of A, the CJEU emphasized the disability dimension in the case, and the impact that this would have on the applicant’s ability to conduct their studies elsewhere. In this way, both disability and free movement were strongly interlinked in a way that had heretofore been rendered largely latent.

Case C-503/09 Lucy Stewart v Secretary of State for Work and Pensions EU:​C:​2011:​500. Ibid para 86. 86 Case C-134/18 Maria Vester v Rijksinstituut voor ziekte- en invaliditeitsverzekering EU:​C:​2019:​ 212. 87 Case C‑679/16 A (Intervener) v Espoon kaupungin sosiaali- ja terveyslautakunnan yksilöasioiden jaosto EU:​C:​2018:​601. 84 85

118  Research handbook on EU disability law Interestingly, in A, the CJEU did not engage with the question of whether or not the CRPD had been infringed, arguing that the conclusions would have been the same as those reached by virtue of Articles 20 and 21 TFEU having been violated.88 This is somewhat disappointing, as the facts of the case granted the Court the opportunity to engage with the UN Convention and its more social character. Somewhat unsurprisingly, given the Union’s lack of redistributional structures necessary to create a welfare state of its own or to implement robust structural programmes that might fall within the domain of a welfare state, the CRPD has primarily been invoked by the CJEU in cases relating to employment and the concept of ‘reasonable accommodation’ – a point which is raised in other contributions to this Research Handbook.89 While the CJEU did show a willingness to engage more substantively with disability issues in A, if it had chosen to highlight the social character of the CRPD it could have solidified this within the jurisprudence of the Court far into the future.

6.

CONCLUDING OBSERVATIONS

One recurring theme that is evident in any examination of the social character of Union citizenship is the degree to which the economic dimension transcends other considerations. Where a redistributive element exists (almost exclusively using the welfare systems of the Member States as a proxy due to the lack of a supranational safety net), it is engaged where the free movement of economically active persons is concerned, in order to make sure their rights are effective.90 This was already governed by Articles 45, 48 and 49 TFEU, in particular, prior to the constitutionalization of ‘Union citizenship’ as an independent concept. Thym has subsequently argued that Union citizenship creates different rules for different categories of citizens, based largely upon their economic activity91 – a point which Nic Shuibhne has also reiterated.92 Recent judgments of the CJEU, which have begun to refer less often to the concept of ‘citizenship’ in respect of welfare programmes where the economic status of the individual in question is uncertain, have only served to complicate this picture further.93 For some, this division of EU citizens into different ‘classes’ or ‘categories’ has meant that their rights more

Ibid para 78. See the Introduction and Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 90 Elizabeth Meehan, Citizenship and European Community (Sage Publications 1993); Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (University of Chicago Press 1994); Theodora Kostakopoulou, Citizenship, Identity and Immigration in the European Union (Manchester University Press 2001); Sergio Carrera, ‘What Does Free Movement Mean in Theory and Practice in an Enlarged EU?’ (2005) 11(6) European Law Journal 699, p. 703. 91 Daniel Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52(1) Common Market Law Review 17, p. 18. 92 Niamh Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) 52(4) Common Market Law Review 880, p. 890. 93 See for example, Case C-333/13 Dano v Jobcenter Leipzig EU:​C:​2014:​2358; Case C-299/14 Garcia Nieto and others EU:​C:​2016:​114; Case C-67/14 Jobcenter Berlin Neukölln v Alimanovic ECLI:​ EU:​ C:​ 2015:​ 597; Joined Cases C‑424/10 and C‑425/10 Tomasz Ziolkowski, Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja v Land Berlin EU:​C:​2011:​866; and Case C-308/14 Commission v United Kingdom EU:​C:​2016:​436. 88 89

EU citizenship and disability  119 closely resemble those of third-country nationals than they do each other,94 and this has arguably become more true as time goes on. For citizens with disabilities, this is deeply problematic, and not only because the Union’s accession to the CRPD obligates it to interpret all legislation in light of it. As an instrument which mainstreams the necessity for positive intervention to remove social barriers which hinder the ability of persons with disabilities to actively take part in society, this – as well as the Union’s lack of redistributive systems – calls into question the ability of the Union, and more specifically the CJEU, to create a model of social citizenship capable of living up to that which the CRPD arguably requires. It is certainly possible that the Union can attempt to ensure that the definition of disability contained in the UN Convention is adopted in a wide variety of fields, and its judgments thus far have highlighted its, sometimes uneven, commitment to this approach; nonetheless, it is likely that the Luxembourg Court may also begin to interpret the constitutional prohibition against discrimination on the ground of nationality in light of the CRPD. However, so long as the Union lacks the actual structures necessary to enact a more robust form of social citizenship, it is difficult to suggest that it can make the kinds of interventions necessary to fully implement the spirit of, and objectives embedded within, the Convention. To bridge this divide, the Union must make the kind of changes enacted at the State level after the Second World War, in order to create a conceptualization of social citizenship more closely resembling that of its Member States following this period. Thus, it is clear that ‘the significance of Union citizenship does not lie in what it is at present, but in what it might and should be’.95 Despite some positive developments such as the A case, the most chronic issues are structural. These issues therefore require a larger debate surrounding the Union’s relationship to its citizens, and on whether the Union must undergo its own period of reconstruction similar to that of its Member States in the post-Second World War era if it intends to create a model of social citizenship capable of realizing the objectives contained within the CRPD.

94 Daniel Attas, ‘The Case of Guest Workers: Exploitation, Citizenship and Economic Rights’ (2000) 6(1) Res Publica 73. 95 Theodora Kostakopoulou, Citizenship, Identity and Immigration in the European Union (Manchester University Press 2001) 66.

PART II DISABILITY RIGHTS IN EU LAW

8. Disability in EU non-discrimination law Andrea Broderick and Philippa Watson

1. INTRODUCTION In the past two decades, disability law has emerged as a dynamic area of European Union (EU) equality and non-discrimination law.1 This is due in large part to the ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention) by the EU in 2010, which marked a milestone in the history of the EU as a regional integration organization. The CRPD is a far-reaching human rights treaty, the substantive provisions of which are underpinned by a broad prohibition of disability discrimination, a ‘social-contextual’2 understanding of disability and a model of ‘inclusive equality’.3 Inclusive equality not only views disability as arising from the interaction between individuals with impairments and barriers that exist in society, but also seeks to make space for difference, to give recognition to the dignity of persons with disabilities and to target intersectional disadvantage. Inclusive equality is also mirrored in the CRPD’s human rights model of disability, as outlined in the Introduction to this Research Handbook. Disability equality and combating disability discrimination are areas of shared competence between the EU and its Member States. Thus, the EU is not bound to implement in their entirety all provisions of the CRPD that relate to discrimination; rather, as noted elsewhere, the EU and its Member States, all of which have ratified the CRPD, are ‘bound to take such implementation measures’ in combination.4 Furthermore, it is settled law that ‘where the EU does decide to act, it is bound to ensure that any action is fully compliant with the CRPD’.5 Since its entry into force, the CRPD has advanced the understanding of disability equality in the sphere of EU law in some respects and has influenced the interpretation of the concept

See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. In connection with the CRPD, the ‘social-contextual model’ of disability was coined by Andrea Broderick. See Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 77. On the social-contextual model of disability, see supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 3 Committee on the Rights of Persons with Disabilities (CRPD Committee), General Comment No 6 on equality and non-discrimination, UN Doc. CRPD/C/GC/6 (2018) para 11. ‘Inclusive equality’ is a term that had previously been put forward by authors such as Sally Witcher. See Sally Witcher, Inclusive Equality: A Vision for Social Justice (Bristol University Press 2014). 4 Lisa Waddington and Andrea Broderick, Disability Law and the Duty to Reasonably Accommodate beyond Employment: A Legal Analysis of the Situation in EU Member States (European Commission 2016) 44. 5 Ibid. 1 2

121

122  Research handbook on EU disability law of ‘disability’ set out in EU law.6 Moreover, as Favalli and Ferri point out, ‘the [CRPD] has become the benchmark against which EU disability initiatives must be measured’.7 Against this background, this chapter analyses, in the first instance, the web of disability discrimination provisions in EU law, taking into account the relevant provisions of the CRPD, with a view to assessing the extent to which EU equality and non-discrimination law protects the rights of people with disabilities. In the second instance, this chapter examines the CRPD’s influence to date and its potential future influence on EU equality and non-discrimination law. Following these introductory remarks, this chapter contains five further sections. In section 2, primary EU legislation on equality and non-discrimination is analysed; while in section 3, EU secondary legislation is examined, with a focus on the prohibition of discrimination and the duty of reasonable accommodation. In section 4, the definition or concept of ‘disability’ under EU law is examined. Section 5 puts forward future perspectives in the sphere of EU law related to the Proposal for a horizontal non-discrimination Directive. That section also discusses legislative gaps in relation to multiple and intersectional discrimination, and genetic discrimination. Finally, section 6 sets forth concluding remarks.

2.

THE PROHIBITION OF DISCRIMINATION IN EU PRIMARY LAW

Disability is referred to in a number of provisions in the Treaty on the Functioning of the European Union (TFEU), as well as in relevant implementing legislation and in the Charter of Fundamental Rights of the European Union (CFR or Charter). Disability is the subject of two specific provisions in the TFEU: Articles 10 and 19. The horizontal provision contained in Article 10 TFEU obliges the Union, in defining and implementing its policies and activities, to combat discrimination on a number of grounds, including disability. The entry into force of the Treaty of Amsterdam empowered the Council to take ‘appropriate action’ under Article 19 TFEU (former Article 13 of the Treaty Establishing the European Community) to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Such action must be without prejudice to the other provisions of the Treaties and within the limits of the Council’s competence. Notably, Article 19 TFEU does not have direct effect. This stands in contrast to other provisions in the TFEU providing for equality of treatment.8 Article 19 TFEU provides a legal basis for the adoption of measures, but it does not impose any specific obligations on the Member States; nor does it impose any obligations on the Council. Whether discrimination on the specified

6 See generally Lisa Waddington, ‘The Influence of the UN Convention on the Rights of Persons with Disabilities on EU Anti-discrimination Law’ in Uladzislau Belavusau and Kristin Henrard (eds), EU Anti-discrimination Law Beyond Gender (Hart 2018) 339–61. 7 Silvia Favalli and Delia Ferri, ‘Defining Disability in the European Union Non-discrimination Legislation: Judicial Activism and Legislative Restraints’ (2016) 22(3) European Public Law 541, p. 553. 8 Article 19 TFEU stands in contrast to its sister provisions on discrimination, Articles 18 and 157 TFEU. The wording of Article 19 is less compelling than that of Article 18, which prohibits discrimination on the ground of nationality and which has direct effect, as indeed does Article 157 – which provides for equality in pay and employment between men and women. Both Articles 18 and 157 can be relied upon as a source of rights for individuals.

Disability in EU non-discrimination law  123 grounds is eliminated or not depends on whether, and to what extent, the Council is prepared to act – it has complete discretion in the matter.9 The Court of Justice of the European Union (CJEU) has held that the prohibition of discrimination on the basis of age,10 and of religion or belief,11 is a general principle of EU law.12 The importance of this lies in the fact that individuals who are victims of discrimination on either of those grounds can rely on the general principle of non-discrimination to assert their rights to equal treatment. To date, the CJEU has not ruled on whether non-discrimination on the ground of disability is a general principle of law within the EU legal order,13 but it is strongly arguable that it is. If that is so, then individuals could rely upon that principle as a source of rights. That would go a long way towards overcoming the shortcomings of Article 19 TFEU. In 2000, the EU adopted the CFR and in 2009 this acquired the same legal status as the Treaties, by virtue of Article 6 of the Treaty on European Union (TEU). The CFR contains a number of provisions relating to disability in Chapter III of the Charter, entitled ‘Equality’.14 Article 21 CFR is a general prohibition prohibiting discrimination on a number of grounds,15 including disability, and whose sphere of operation extends beyond the rights conferred by the Charter itself, to all EU action. Article 26 CFR provides that the Union ‘recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’. Article 26 CFR has, however, been classified as a principle rather than a right, in accordance with Articles 51(1) and 52(5) of the Charter.16 This means that it is ‘intended to guide the EU institutions when they legislate but that it does not oblige them to act and is not directly enforceable’,17 as highlighted by the CJEU in Glatzel.18 Ward observes that: Case C-236/09 Test Achats EU:​C:​2011:​100. Case C-555/07 Kucukdeveci EU:​C:​2010:​21, paras 21 and 50. 11 Case C-414/16 Egenberger EU:​C:​2018:​257, para 76. 12 For a complete overview of EU non-discrimination law, see Evelyn Ellis and Philippa Watson, EU Anti-discrimination Law (Oxford University Press 2012). 13 Case C-354/13 FOA acting on behalf of Karsten Kaltoft v Municipality of Billund EU:​C:​2014:​ 2463, para 40, where the Court held that there was no general principle of non-discrimination on the ground of obesity in EU law in the field of employment and vocational training. 14 See supra Delia Ferri, ‘Disability in the EU Charter of Fundamental Rights’, in this volume. 15 These grounds are broader than those set out in Article 19 TFEU and (in addition to the grounds set out in Article 19), include discrimination based on colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property or birth. 16 Article 51(1) of the Charter of Fundamental Rights of the European Union (CFR or Charter) provides: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties’. Article 52(5) CFR stipulates: ‘The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. 17 Andrea Broderick and Delia Ferri, International and European Disability Law and Policy: Text, Cases and Materials (Cambridge University Press 2019) 310. 18 Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350.

9

10

124  Research handbook on EU disability law The ruling of the CJEU in Glatzel on the impact of Article 26 of the Charter on disputes concerned with disability discrimination and equal treatment minimizes the provision’s role by placing fuller emphasis on the absence of further legislative measures that might be taken with respect to Article 26 but which had not yet occurred. This arguably diminished the impact in law Article 26 of the Charter might otherwise have had.19

Notably, Article 52 of the Charter engages the European Convention on Human Rights (ECHR). It provides that articles whose provisions correspond to rights guaranteed by the ECHR must have the ‘same meaning and scope as those rights’. Article 53 CFR further provides that the Charter cannot restrict or adversely affect the human rights and fundamental freedoms recognized by Union law, international law and international agreements to which the Union or its Member States are Party.

3.

THE EMPLOYMENT EQUALITY DIRECTIVE AND THE CONCEPT OF REASONABLE ACCOMMODATION

Since the provisions of EU secondary law are subject to international agreements concluded by the EU,20 the provisions of that body of law are to be interpreted and applied in accordance with such agreements, in line with the principle of consistent interpretation.21 In that regard, it is well established that the UN Convention forms an ‘integral part’ of EU law,22 and that the CRPD enjoys a ‘quasi-constitutional status’ in the EU legal system, placing it beneath the EU Treaties but above secondary legislation.23 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive)24 marked the first legislative enactment designed to address discrimination on the ground of disability, and remains the most important secondary law addressing disability-based discrimination.

19 Angela Ward, ‘The Impact of the EU Charter of Fundamental Rights on Anti-discrimination Law: More a Whimper than a Bang?’ (2018) 20 Cambridge Yearbook of European Legal Studies 32, p. 41. 20 Article 216(2) TFEU. 21 On the relationship between the principle of consistent interpretation and primary EU law, see Case T-201/04 Microsoft Corp. v Commission of the European Communities EU:​T:​2007:​289, para 798: ‘The Court holds that the principle of consistent interpretation thus invoked by the Court of Justice applies only where the international agreement at issue prevails over the provision of Community law concerned. Since an international agreement, such as the TRIPS Agreement, does not prevail over primary Community law, that principle does not apply where, as here, the provision which falls to be interpreted is Article 82 EC’. 22 See Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222, para 30; see also Case C-363/12 Z. v A Government department, The Board of management of a community school EU:​C:​2014:​159, para 73; see further Case C‑395/15 Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal (Daouidi) EU:​C:​2016:​917, para 40. 23 See Broderick and Ferri, International and European Disability Law and Policy (n 17) 327. 24 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

Disability in EU non-discrimination law  125 The Directive lays down minimum requirements; therefore, Member States may adopt or maintain more favourable provisions than those envisaged by the Directive.25 In doing so, they must respect the principle of equal treatment: national provisions must treat comparable groups of employees in the same manner. Thus, a measure applicable in the private sector to persons with disabilities, but not applicable to those employed in the public sector, may be unlawful unless comparable measures exist for public sector employees.26 The Directive applies to all persons who exercise an economic activity either in an employed or self-employed capacity, in the public or private sector,27 with respect to conditions of access to employment or self-employment, employment and working conditions, or access to vocational training and membership. It also applies to involvement in an organization of workers or employers, or a professional organization, and to the benefits provided by such bodies.28 The Directive provides for exceptions to the principle of equal treatment.29 Additionally, Member States are permitted to make, at their discretion, a number of derogations from some of its provisions. Exceptions and derogations are subject to the principle of proportionality – that is, their objectives must be legitimate and the means employed to achieve those objectives must be necessary. Disability is the subject of four specific provisions in the Employment Equality Directive. In the first instance, Article 3 establishes that Member States may provide that the prohibition of discrimination on the ground of disability may not apply to the armed forces. However, in line with the case law of the CJEU on gender discrimination30 and on religious discrimination,31 Article 3 should be interpreted in a restrictive manner. Furthermore, Article 5 imposes a duty on employers to provide reasonable accommodation for persons with disabilities. Article 5 is inherently connected to Article 2(2)(b)(ii) of Directive 2000/78. Pursuant to the latter Article, no indirect discrimination will be found to have occurred if the employer is obliged, under national legislation, to take appropriate measures (that is, to provide a reasonable accommodation) in order to eliminate the disadvantages caused by the provision, criterion or practice that would otherwise be deemed discriminatory. In that regard, in its most recent decision on disability (at the time of writing), DW v Nobel Plastiques Ibérica SA,32 the CJEU held that Article 2(2)(b)(ii) of Directive 2000/78 must be interpreted as meaning that the dismissal for ‘objective reasons’ of a disabled worker on the ground that he or she meets the selection criteria taken into account by the employer in determining the persons to be dismissed constitutes indirect discrimination on the ground of disability within the meaning of that provision, unless the employer has provided that worker with reasonable accommodation, which it is for the national court to determine.

Article 8(1) Directive 2000/78/EC. Case C-406/15 Milkova v Izpalnitelen director na Agentsiata za privatizatsia I sledprivatizatsionen control (Milkova) EU:​C:​2017:​198, para 38. 27 Article 3(1) Directive 2000/78/EC. 28 Article 3(1) (a), (b), (c) and (d) Directive 2000/78/EC. 29 See, for instance, Article 2(5) and Article 3(2)–(4) Directive 2000/78. See generally Lisa Waddington, ‘Fine-Tuning Non-discrimination Law: Exceptions and Justifications Allowing for Differential Treatment on the Ground of Disability’ (2015) 15(1–2) International Journal of Discrimination and the Law 11. 30 Case C-273/97 Sirdar EU:​C:​1999:​523; and Case C-285/98 Kreil EU:​C:​2000:​2. 31 Case C-414/16 Egenberger EU:​C:​2018:​257. 32 Case C-397/18 DW v Nobel Plastiques Ibérica SA EU:​C:​2019:​703. 25 26

126  Research handbook on EU disability law The fourth provision of Directive 2000/78 that deals specifically with disability is Article 7, which addresses positive action. Article 7 permits Member States to maintain or adopt specific measures to prevent or compensate for disadvantages experienced by disabled persons, and to maintain or adopt measures relating to health and safety at work, or measures ‘aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment’. In the sub-sections which follow, the prohibition of discrimination and the concept of ‘reasonable accommodation’ in Directive 2000/78 are discussed. 3.1

The Prohibition of Discrimination in the Employment Equality Directive

The EU law prohibition of discrimination is substantially narrower than that contained in Articles 2 and 5 CRPD. Trömel notes that legislation (such as the CRPD) prohibiting discrimination on the basis of disability ‘has to put the focus not on whether the person who has been discriminated [against] has or not a (legally certified) disability, but on whether the situation faced by the person is a discriminatory situation based on disability’.33 Article 2 of the UN Convention sets out the definition of discrimination, affirming that the CRPD prohibits all forms of discrimination on the basis of disability, including a denial of reasonable accommodation. The CRPD Committee affirms that the prohibition of discrimination contained in the CRPD covers direct discrimination, indirect discrimination, an unjustified denial of reasonable accommodation and harassment.34 In addition, the Committee acknowledges that the definition of discrimination on the basis of disability in Article 2 CRPD can be interpreted as covering not only those who have an impairment themselves, but also those who encounter discrimination as a result of a perceived impairment or are discriminated against on account of their association with a person with a disability.35 The Committee also confirms that ‘persons who have a disability at present, who have had a disability in the past or who have a disposition to a disability that lies in the future’36 are covered by the prohibition of discrimination in the CRPD. Notably, the CRPD Committee has further emphasized in its General Comment No. 6 that possible grounds of discrimination under the CRPD include, but are not limited to, disability, health status and genetic status.37 By contrast with the CRPD, Article 2 of Directive 2000/78 explicitly prescribes four forms of discrimination, namely direct discrimination, indirect discrimination, harassment and an instruction to discriminate.38 In Coleman,39 the CJEU held that direct discrimination and harassment by association are also covered under the scope of the prohibition of discrimination in the Employment Equality Directive. Coleman was heard by the CJEU shortly before the CRPD came into force for the EU, and concerned a mother who argued that she had been the victim of employment-based discrimination by association due to her relationship with her son who has a disability. The CJEU in Coleman essentially held that in determining whether 33 Stefan Trömel, ‘A Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilities’ (2009) European Yearbook of Disability Law 115, p. 124. 34 CRPD Committee, General Comment No. 6 (n 3) para 18. 35 Ibid para 20. 36 Ibid para 20. 37 Ibid para 21. 38 Notably, an instruction to discriminate has not been mentioned explicitly by the CRPD Committee in CRPD Committee, General Comment No. 6 (n 3). 39 Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415.

Disability in EU non-discrimination law  127 discrimination had occurred, the focus should be on the cause of the discrimination: if that is on one of the grounds specified in Article 19 TFEU or Directive 2000/78, then the discriminatory conduct can be deemed to fall within the scope of the Directive.40 This reasoning seems to hint at a robust conceptualization of equality and gives rise to the possibility that other types of discrimination (such as discrimination that is based on the perception that an individual has a disability) may be covered under EU law. However, that point is currently not clear from the CJEU’s case law. The line of reasoning adopted in Coleman reflects the Opinion of Advocate General (AG) Poiares Maduro in the case, an Opinion which refers to the CRPD and seems to have been taken into account by the CJEU in handing down its judgment.41 The AG affirmed that the Directive operates at the level of grounds of discrimination, drawing in that regard on scholarship by McCrudden.42 AG Poiares Maduro encouraged the Court to take a contextual approach to the interpretation of the Employment Equality Directive, and to place the requirements of equal treatment and non-discrimination in the Directive ‘within a broader human rights context’.43 In that connection, the AG cited the prohibition of disability-based discrimination in Article 5(2) CRPD, as well as Recital 4 of the Directive (which contains the ‘universal right’ to equality before the law and protection against discrimination), and the CFR. AG Poiares Maduro also urged the Court to take a teleological approach – in other words, to take into account not only the actual wording of Directive 2000/78 but also the values underlying the principle of equality, in order to determine ‘what equality requires’ in a given case.44 According to the AG, the values of human dignity and personal autonomy (general principles in Article 3 CRPD) underpin the EU law prohibition of discrimination. AG Poiares Maduro reasoned that behaviour that targets individuals who are closely associated with a person who belongs to ‘a certain group’ (such as those with a disability) undermines the dignity and autonomy of that person.45 According to the AG, those ‘subtler forms of discrimination’ should also be targeted by a ‘robust conception of equality’, seemingly implying that EU law endorses robust conception of the equality norm.46 3.2

The Duty of Reasonable Accommodation

As outlined above, the CRPD includes a duty of reasonable accommodation in Article 5(3) that cuts across all rights in the UN Convention. Reasonable accommodation is defined in 40 The CJEU adopted a similar approach in Case C-150/85 Drake EU:​C:​1986:​257, a case concerning Directive 79/7 on equal treatment between men and women in social security, holding that in assessing the scope of that Directive, the focal point was the risk addressed by a particular benefit, not to whom it was paid. 41 Opinion of Advocate General Poiares Maduro, Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. See Jarlath Clifford, ‘The UN Convention and Its Impact on European Equality Law’ (2011) 6 Equal Rights Review 11, fn 48. See also the analysis in Waddington and Broderick, Disability Law and the Duty to Reasonably Accommodate beyond Employment (n 4) 74–75. 42 In that regard, the Advocate General cited Christopher McCrudden. See Opinion of Advocate General Poiares Maduro (n 41), citing Christopher McCrudden, ‘Thinking about the Discrimination Directives’ (2005) 1 European Journal of Anti-discrimination Law 17. 43 See Opinion of Advocate General Poiares Maduro (n 41), fn 4. 44 Ibid para 8. 45 Ibid para 12. 46 Ibid.

128  Research handbook on EU disability law Article 2 CRPD as ‘necessary and appropriate modification and adjustments […] where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. The reasonable accommodation duty in the CRPD is subject to a defence, namely that the duty-bearer is not required to provide an accommodation where to do so would impose a disproportionate or undue burden on that duty-bearer. In 2000, before the adoption of the CRPD at the international level, the EU legislator had already included a reasonable accommodation duty in EU law. Lawson has noted that enshrining the duty of reasonable accommodation at EU level represented ‘a significant deepening and enriching of the principle of equal treatment which underlies [EU] equality law’.47 While the Employment Equality Directive requires, in Article 5 thereof, that all EU Member States introduce an obligation to provide reasonable accommodation to individuals with disabilities in the context of employment and vocational training, the failure to meet the reasonable accommodation duty has not been explicitly defined as a form of discrimination in Directive 2000/78. This contrasts with Article 2 CRPD, which specifically classifies the unjustified failure to provide reasonable accommodation as a form of discrimination. The Directive gives little guidance on what the individualized duty of reasonable accommodation may be taken to mean, but requires that employers should take appropriate measures to enable persons with disabilities to have access to, participate or advance in employment; or to undergo training, unless such measures would impose a disproportionate burden on the employer.48 Recital 20 of the Preamble to the Directive gives some guidance as to what might be considered to be ‘appropriate measures’, describing them as ‘effective and practical measures to adapt the workplace to the disability’ – for example, by adapting premises and equipment, patterns of working time or the distribution of tasks.49 Examples of such measures could include refrigeration facilities for the storage of medicine, time off for necessary medical care or a room where the employee in question can do necessary physical exercises in private. The influence of the CRPD in deepening the understanding of the concept of ‘reasonable accommodation’ at EU level is evident from HK Danmark,50 in which the CRPD’s duty of reasonable accommodation provided some clarification with respect to the material scope of Article 5 of Directive 2000/78. In HK Danmark, the issue of reasonable accommodation arose in the context of individuals who had been absent from work on sick leave and who were subsequently dismissed from their employment. The CJEU held that a provision of Danish law which gave an employer the right 47 Anna Lawson, ‘The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion’ in Oddný Mjöll Árnadóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 81–109, p. 93. 48 Under Article 5 of Directive 2000/78, this burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned. Note that Article 2 CRPD requires that reasonable accommodation should not impose a ‘disproportionate or undue burden’. 49 The list in Recital 20 of Directive 2000/78 is a non-exhaustive list – see, in that regard, Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 49. 50 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222.

Disability in EU non-discrimination law  129 to dismiss, with one month’s notice, an employee who received their salary during periods of absence from work due to illness for a total of 120 days during the previous twelve months was precluded if the absences from work were attributable to a failure on the part of an employer to provide the employee with a reasonable accommodation. By affirming that a reduction in working hours may be deemed a reasonable accommodation in a situation where the reduction makes it possible for the worker to continue in professional life,51 the Court confirmed that the duty was directed towards eliminating the various barriers that hinder full and effective participation of people with disabilities in employment. That objective also forms the basis of the CRPD’s accommodation duty,52 although the CRPD’s ratione materiae is much wider than that of the Employment Equality Directive. By contrast with EU law, the reasonable accommodation duty in the UN Convention covers all of the civil and political, as well as the economic, social and cultural, rights contained in the CRPD. Following the reasoning adopted in HK Danmark, it is evident that the EU law concept of ‘reasonable accommodation’ is not confined to the physical adaptation of the workplace but that it is a much broader concept – in essence, any measure that can assist a person with a disability to take up employment and pursue it on equal terms with workers without disabilities is required, subject to the limitations set out in Directive 2000/78. Drawing on Article 2 CRPD, the Court in HK Danmark held that ‘not only material but also organisational measures’ are covered under the EU law concept of ‘reasonable accommodation’.53 The Court ruled, however, that it was for the national court to assess whether a reduction in working hours represents a disproportionate burden on employers.54 While the CRPD’s reasonable accommodation duty has, to some extent, helped to clarify the understanding of the equivalent duty in EU law, there remain certain tensions between the EU law and international law duties of reasonable accommodation, particularly with regard to the meaning of the ‘reasonableness’ of accommodation measures. In its General Comment on equality, the CRPD Committee interprets the concept of the ‘reasonableness’ of an accommodation in terms of the ‘relevance, appropriateness and effectiveness’ of the particular measure for the individual concerned, as opposed to assessing reasonableness in terms of the costs of an accommodation or the availability of resources on the part of the duty bearer.55 However, as pointed out elsewhere, the CJEU refers to the reasonableness of accommodation measures in HK Danmark ‘in exactly the terms which the CRPD Committee seeks to avoid’,56 namely in Ibid paras 55–57. Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities (n 2) 158–61. 53 Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 55. It is notable that in the context of relevant international law applicable to the HK Danmark case, the Court referred to the concept of ‘disability’ in Preamble recital (e) of the CRPD. It also referred to the purpose of the UN Convention (being to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promoting respect for their inherent dignity), as well as the definition of reasonable accommodation in the CRPD. See Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, paras 3–5. 54 Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 59. 55 CRPD Committee, General Comment No 6 (n 3) para 25(a). See also Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities (n 2) 158–61. 56 Lisa Waddington and Andrea Broderick, Combating Disability Discrimination and Realising Equality: A Comparison of the UNCRPD and EU Equality and Non-discrimination Law (European Commission 2018) 72. 51 52

130  Research handbook on EU disability law financial terms, likening the concept of ‘reasonableness’ to that of ‘disproportionate burden’.57 While it is acknowledged that general comments of international human rights treaty bodies are not binding on Parties to the UN Convention, not least on the CJEU itself, the Luxembourg Court can (potentially) learn lessons about the notion of ‘reasonableness’ under international human rights law, in order to ensure that there is some level of consistency at EU level with regard to the understanding of this concept, thereby avoiding confusion at the domestic level.58 Notably, the requirement in Directive 2000/78 for an employer to reasonably accommodate an employee is unique to disability discrimination, and it is worth noting that the CJEU in Coleman affirmed that Article 5 of the Employment Equality Directive refers to reasonable accommodation as being only for persons with disabilities.59 There is no equivalent duty in, for example, the fields of religious or age discrimination, where accommodation might well be needed. However, one can detect some indication of such an implicit obligation in the case of Bougnaoui v Micropole SA,60 in which AG Sharpston appeared to espouse a concept of ‘mutual accommodation’. This would entail a discussion between an employee, or a future employee, and an employer as to what accommodation that employee’s religious beliefs required, and just how far the employer could go to satisfy those requirements whilst running their business. This might result in an employee being offered a particular position within an undertaking or being moved to another job where their religious requirements could be appropriately met. Although the nature of religious discrimination is different from disability discrimination (or discrimination encountered on other prohibited grounds), and it is difficult to simply transpose the reasoning underpinning the accommodation duty from one ground of discrimination to another, this does not mean that non-disabled individuals who require a measure of accommodation should not be able to benefit from one. Nonetheless, as Waddington points out, ‘the establishment of a (separate and slightly different) reasonable accommodation duty for all grounds or groups is not necessarily the best way to achieve this’; rather, she argues that the obligation not to indirectly discriminate can ‘if interpreted dynamically’ provide for ‘a de facto accommodation duty in many cases’, since the objective justification test allows for a balancing of interests.61 It remains to be seen whether the reasoning of AG Sharpston will spur further claims to ‘mutual accommodation’ related to protected grounds outside the disability field. Having discussed above the UN and EU law prohibitions of discrimination and the concept of ‘reasonable accommodation’, the next section of this chapter analyses an important area of EU equality and non-discrimination law that has evolved under the influence of the CRPD, namely the definition or concept of ‘disability’.

Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 58. See further similar arguments made in Andrea Broderick, ‘The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality?’ in Thomas Giegrich (ed), The European Union as Protector and Promotor of Equality (Springer 2020) 363–90. 59 Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415, para 39. 60 Case C-188/15 Bougnaoui v Micropole SA EU:​C:​20117:​204. On the concept of ‘mutual accommodation’, see paras 119 and 133 of the Opinion of Advocate General Sharpston, Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. 61 See generally Lisa Waddington, ‘Reasonable Accommodation: Time to Extend the Duty to Accommodate beyond Disability?’ (2011) 36(2) NTM/NJCM-Bulletin 186, p. 197. 57 58

Disability in EU non-discrimination law  131

4.

THE EVOLVING DEFINITION OF DISABILITY UNDER EU LAW AND THE INFLUENCE OF THE CRPD

The definition or the concept of ‘disability’ is not set out in any existing EU legal instrument.62 It has been left to the CJEU to interpret the definition of disability under EU law. In the absence of any definition of disability or any express reference in any instrument to national law, the term must be given an ‘autonomous and uniform interpretation’63 throughout the Union. Nonetheless, it is impossible to ignore national law completely, as national judges may well be influenced by how disability is viewed in their countries when considering cases based on Directive 2000/78. In the sub-sections which follow, the EU law definition or concept of ‘disability’ will be analysed, both pre- and post-CRPD. 4.1

The EU Law Definition of Disability Pre-CRPD

The first case to reach the CJEU concerning the definition of disability was that of Chacón Navas.64 That case was decided in 2006, before the entry into force of the CRPD. The applicant, Ms Chacón Navas, had not been able to work for her employer for a considerable length of time as a result of illness and was dismissed from her employment after a period of absence. The applicant challenged the decision to dismiss her, inter alia, on the basis that it was incompatible with the Employment Equality Directive. Staying the proceedings at the national level, the domestic court referred two questions to the CJEU, asking whether the Employment Equality Directive includes within its protective scope a worker who has been dismissed by her employer solely because she is sick; or whether, in the alternative, sickness could be covered as a separate prohibited ground of discrimination, in addition to those already covered under Directive 2000/78. The CJEU held that, for the purposes of the Directive, ‘disability’ is different from ‘sickness’, and that there was nothing in the Directive ‘to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness’.65 The CJEU concluded that the Directive was intended to cover situations in which it was probable that participation in working life would be hindered over a ‘long period of time’.66 In that context, the CJEU defined disability as ‘a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life’.67 As acknowledged by scholars such as Schiek and Waddington,68 the CJEU adopted a narrow interpretation of disability in Chacón Navas, which was based on the individual model of disability rather than the social model. 62 Although it is defined in Article 41 of the latest version of the proposed non-discrimination directive: see Version of 26 June 2019, document no. 10740/19. 63 Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456, para 42. 64 Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456. 65 Ibid para 46. 66 Ibid paras 45–46. 67 Ibid para 43. For a similar approach, see Opinion of Advocate General Geelhoed, Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456, para 66. 68 See generally Lisa Waddington, ‘Equal to the Task? Re-Examining EU Equality Law in Light of the United Nations Convention on the Rights of Persons with Disabilities’ in Lisa Waddington,

132  Research handbook on EU disability law In some of its more recent case law, decided since the coming into force of the CRPD, the CJEU has distanced itself from a medicalized interpretation of the concept of ‘disability’. In fact, the Court has adopted a clear shift in approach towards a social understanding of disability. As Favalli and Ferri argue, ‘the Court based its decision to deviate from Chacón Navas on the principle of consistent interpretation governing the relationship between international treaty law and EU law’.69 The following sub-section examines, inter alia, the extent to which the CJEU has actually endorsed and applied the CRPD’s social-contextual and human rights models of disability in decisions which have come before the Court post-CRPD. 4.2

The EU Law Definition of Disability Post-CRPD

Most of the disability case law of the CJEU post-CRPD has been concerned with the concept of ‘disability’.70 Save in the sphere of disability pension entitlement and the impact of such entitlement on related benefits,71 there have been no cases in which a finding of direct discrimination on the ground of disability has been made by the CJEU.72 In fact, the Court has indicated in a number of cases that there may be indirect discrimination on the ground of disability, but whether or not this is actually so has usually been remitted to national courts.73 Following the EU’s accession to the CRPD, the CJEU seemed to endorse the understanding of disability set out in that Convention. While the UN Convention does not contain a definition of disability per se, it provides an open-ended conceptualization of disability in the non-binding Preamble and in Article 1 thereof. In particular, recital (e) of the Preamble to the CRPD affirms that ‘[d]isability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.

Gerard Quinn and Eilionóir Flynn (eds), European Yearbook of Disability Law (Intersentia 2013) vol. 4, 169–200; see also Dagmar Schiek, ‘Intersectionality and the Notion of Disability in EU Discrimination Law’ (2016) 53(1) Common Market Law Review 35. 69 Silvia Favalli and Delia Ferri, ‘Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?’ (2016) 23 European Journal of Health Law 5, p. 27. 70 The definition or concept of ‘disability’ has been addressed by the CJEU in the following post-CRPD cases: Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) EU:​C:​ 2013:​222; Case C-363/12 Z. v A Government department, The Board of management of a community school EU:​C:​2014:​159; Case C-354/13 Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft, v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (Kaltoft) EU:​C:​2014:​ 2463; Case C‑395/15 Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal EU:​C:​2016:​917; Case C-270/16 Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal EU:​C:​2018:​17 (Ruiz Conejero); Case C-406/15 Milkova v Izpalnitelen director na Agentsiata za privatizatsia I sledprivatizatsionen control EU:​C:​2017:​198; and Case C-397/18 DW v Nobel Plastiques Ibérica SA EU:​C:​2019:​703. On the concept of ‘disability’, see generally Lisa Waddington, ‘Saying all the Right Things and Still Getting it Wrong: The Court of Justice’s Definition of Disability and Non-discrimination Law’ (2015) 22 Maastricht Journal of European and Comparative Law 576. 71 See Case C-152/11 Odar EU:​C:​2012:​772; and Case C-312/17 Bedi EU:​C:​2018:​734. 72 Save Coleman, in which direct discrimination by association was at issue. See Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. 73 For example, Case C-270/16 Ruiz Conejero EU:​C:​2018:​17.

Disability in EU non-discrimination law  133 The CJEU’s stance on the concept of ‘disability’ changed significantly in the case of HK Danmark, in which the Court noted that the provisions of the CRPD are ‘an integral part of the [EU] legal order’,74 and that secondary legislation, including the Employment Equality Directive, must be interpreted in a manner that is consistent with the CRPD insofar as possible.75 The facts of the HK Danmark case, outlined above,76 gave rise to a preliminary reference to the CJEU, in order to seek clarity on Member States’ obligations under the Directive. The issue that is relevant for the present analysis is whether an individual who, because of physical, mental or psychological injuries, cannot carry out their work, or can only do so to a limited extent, falls within the concept of ‘disability’ in the Employment Equality Directive.77 In answering that question, the CJEU defined disability for the purposes of the Directive as ‘a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’.78 Notably, the Court confirmed that the concept of ‘disability’ within the meaning of the Directive does not necessarily imply complete exclusion from work or professional life (‘impossibility’ to exercise a professional activity), acknowledging instead that an ability only to work part-time is capable of being covered under the concept of ‘disability’ in the Employment Equality Directive.79 While the CJEU appeared to be moving towards a social understanding of disability in HK Danmark, Waddington and Broderick point out that by requiring that an individual experiences a limitation directly related to their impairment, the Court in HK Danmark ‘seems to exclude from the definition of disability individuals who are disabled by socially-created barriers, such as false assumptions and prejudices about an individual’s ability, and possibly even barriers in the physical environment’.80 While the CJEU itself has not confirmed the foregoing, this implication seems to emerge from the Court’s ruling in Kaltoft,81 as will be explained below.82 In this sense, the Court’s definition of disability is arguably out of line with the human rights model of disability embraced by the CRPD, which ‘seems to recognise as disabled those people with an impairment who are disadvantaged purely by environmental factors (“various barriers”)’.83 Furthermore, the CJEU’s application in practice of its definition of disability has given rise to other difficulties.84 Those difficulties can be illustrated by the finding of the Court in Z. v Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 30. Ibid para 32. 76 See section 3.2 above. 77 See generally Janneke Gerards, ‘CJEU 11 April 2013, HK Danmark, EHRC 2013/133’ (2013) 7 European Human Rights Cases 1426. 78 Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 38. Emphasis added. 79 Ibid para 44. 80 See Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 58. 81 Case C-354/13 Kaltoft EU:​C:​2014:​2463. 82 For a detailed analysis of this point, see the arguments of Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 58; see also Waddington, ‘Saying all the Right Things and Still Getting it Wrong’ (n 70) 585–89. 83 Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 58. 84 Waddington, ‘Saying all the Right Things and Still Getting it Wrong’ (n 70) 583–85. 74 75

134  Research handbook on EU disability law A Government Department.85 In that case, a denial of employment-related benefits (a period of paid leave) to a woman who was born without a uterus and could not therefore have a child by conventional means – having a child via surrogacy instead – was held to fall outside the scope of the Employment Equality Directive, because it was not apparent that the applicant’s condition ‘made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity’.86 In Z., the CJEU applied the definition of disability that emerged in HK Danmark,87 acknowledging the fact that the woman in question had a long-term impairment that caused her suffering on account of her inability to conceive naturally. In spite of this, the Court held that ‘the inability to have a child by conventional means does not in itself, in principle, prevent the commissioning mother from having access to, participating in or advancing in employment’.88 The CJEU’s definition of disability focuses on a hindrance to participation in professional life. This, in itself, may seem natural given that Directive 2000/78 only addresses discrimination in the employment sphere. What is problematic is that the application of the Court’s definition of disability resulted, in the Z. case, in the denial of benefits that fall within the scope ratione materiae of Directive 2000/78.89 In other words, the CJEU ruled that it was not apparent that the applicant’s condition prevented her from participating in employment, despite the Court implying, as Waddington points out, that the applicant ‘may have been recognized as disabled under the CRPD, to which the EU is bound’.90 The approach adopted by the CJEU in the Z. judgment is incompatible with the CRPD’s broad understanding of disability discrimination, which covers hindrances to participation in all spheres of society. Favalli and Ferri assert that the Court, in this case, ‘relied on the limited scope of the directive ratione materiae, as the directive only targets disabilities that make a worker’s involvement in professional life more burdensome. In doing so, it also explicitly narrowed down the definition of disability’.91 In addition, Waddington argues that if one looks at the case facts ‘from a limited medical or individual perspective, it is undoubtedly true that Ms Z’s impairment had no impact on her ability to work’; however, Ms Z did experience a limitation (indirectly) resulting from an impairment in interaction with various barriers (‘the absence of a statutory regime providing for a period of paid leave following the birth of a child through surrogacy’), and was ‘conse-

85 Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159. On the Z. judgment, see Geert de Baere, ‘Shall I Be Mother? The Prohibition on Sex Discrimination, the UN Disability Convention and the Right to Surrogacy Leave under EU Law’ (2015) 74(1) Cambridge Law Journal 44. 86 Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159, para 81. 87 See the analysis of Advocate General Wahl’s interpretation of the CRPD’s conceptualization of ‘disability’ in Lisa Waddington, ‘The European Union’ in Lisa Waddington and Anna Lawson, The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (Oxford University Press 2018) 131–52 at 151–52. 88 Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159, para 81. 89 See Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 59–60. 90 Waddington, ‘Saying all the Right Things and Still Getting it Wrong’ (n 70) 584–85. 91 Favalli and Ferri, ‘Defining Disability in the European Union Non-discrimination Legislation’ (n 7) 559.

Disability in EU non-discrimination law  135 quently disabled within the meaning of the Court’s definition’.92 Thus, Waddington claims that ‘whilst the Court certainly paid lip service to the CRPD and the social-contextual approach to disability in this judgment, [it] failed to follow through on the implications of its own definition, and failed to apply it correctly’.93 The definition of ‘disability’ adopted by the CJEU in the cases outlined above was repeated in Kaltoft.94 In that case, which ‘created quite a stir in the press’,95 the Court was called on to decide whether obesity discrimination can amount to disability discrimination. The applicant, Mr Kaltoft, had been dismissed as a child-minder in the Municipality of Billund, Denmark, in November 2010, apparently because there was no longer a need for his services in the employment in question. The applicant was of the view, however, that the (false) assumption that he was too obese to carry out his employment obligations was a factor in his employer’s decision-making, leading to his dismissal. In light of this, Mr Kaltoft claimed that he was a victim of disability discrimination, arguing that obesity came within the definition of disability. The Danish court before which Mr Kaltoft brought his claim referred four questions for a preliminary ruling to the CJEU. The fourth question was whether obesity is a disability covered by the protection provided for in the Employment Equality Directive, and, if so, which criteria would be decisive in determining whether a person’s obesity provides protection for that person under the prohibition of discrimination on the ground of disability under the Directive. The CJEU held that obesity itself could not be deemed to be a protected ground of discrimination, since no provision of the EU Treaties covers discrimination on the ground of obesity.96 The Court also ruled that the Directive does not refer to obesity,97 and that the CFR was not applicable in this context.98 Furthermore, the CJEU ruled that while obesity does not, per se, constitute a disability within the meaning of Directive 2000/78, it might be so if the obesity of a worker concerned satisfies the definition of disability that the Court had set out in its previous decisions. Thus, if an individual’s obesity entailed a limitation which results in particular from long-term physical, mental or psychological impairments that, in interaction with various barriers, may hinder the full and effective participation of that person in professional life on an equal basis with other workers, then the obesity could amount to a disability.99 Treading carefully, the CJEU left it to the national court to decide whether in the present case obesity constituted a disability.

Waddington, ‘Saying all the Right Things and Still Getting it Wrong’ (n 70) 585. Ibid. 94 Case C-354/13 Kaltoft EU:​C:​2014:​2463; see also Lisa Waddington, ‘Case note on Case C-354/13 CJEU 18 December 2014 (Kaltoft), Dec 18, 2014’ (2015) European Human Rights Cases No. 222537; see further Sara Bendi Lahuerta, ‘Case C-354/13, Kaltoft v Municipality of Billund – Can Obesity be a Disability under EU Equality Law?’ (European Law Blog, 9 April 2015) http://​europeanlawblog​.eu/​ tag/​crpd/​accessed 3 March 2020; see also Tamara Harvey and Philip Rostant, ‘“All About That Bass”? Is Non-ideal-weight Discrimination Unlawful in the UK?’ (2016) 79(2) Modern Law Review 248. 95 Mark Butler, ‘Obesity as a Disability: The Implications or Non-implications of Kaltoft’ (2014) 20(3) European Journal of Current Legal Issues http://​webjcli​.org/​article/​view/​358/​466 accessed 3 March 2020. 96 Case C-354/13 Kaltoft EU:​C:​2014:​2463, paras 33–34. 97 Ibid paras 33–34. 98 Ibid para 39. 99 Ibid para 59. 92 93

136  Research handbook on EU disability law Butler argues that the relevance of the Kaltoft case ‘lies in the recognition, for the first time in EU law, that differential treatment on the basis of obesity can, depending on its effects on a person’s ability to work, fall within the scope of disability discrimination’.100 The Court ruled that this would be the case, for example, if an obese worker was affected by reduced mobility or medical conditions related to his obesity which prevented him from carrying out his work or caused him discomfort when working.101 However, as Butler points out, the Court’s conclusion in Kaltoft ‘simply results from the application of prior CJEU case law to the present case’.102 As such, he argues that ‘the Kaltoft ruling does not really change or extend the prior concept of disability discrimination’.103 Waddington and Broderick claim, however, that the Court’s focus on physical limitations ‘seems to make it difficult to interpret the Court’s definition of disability as embracing individuals who have an impairment but experience no related limitations, and who are only hampered by the discriminatory attitudes of others, discriminatory rules or provisions’.104 As mentioned above, while the CJEU itself has not confirmed this point explicitly, this implication seems to emerge from the Court’s focus, in Kaltoft, solely on physical limitations.105 Daouidi v Bootes Plus SL is another recent decision in which the CJEU has been confronted directly with the concept of ‘disability’. As Waddington notes,106 the Court had the possibility to focus on ‘another dimension’ of its own definition of ‘disability’, namely the meaning of a ‘long-term’ limitation. In Daouidi, the Court observed that the CRPD does not elaborate on the concept of ‘long-term’, and that there is no definition of that term in EU law either.107 The Court stressed that the assessment of whether the limitation of one’s capacity is ‘long-term’ is objective and ‘factual in nature’, and that it should be based on current medical and scientific knowledge and data.108 The CJEU affirmed that a limitation can be considered long-term if ‘the incapacity of the person concerned does not display a clearly defined prognosis as regards short-term progress’ or is likely to be significantly lengthy.109 How national legislation views the matter is irrelevant – the concept of a ‘long-term’ limitation of a person’s capacity must be given an autonomous and uniform interpretation within EU law, according to the CJEU.110 Thus, as Mr Daouidi was only regarded as temporarily unable to work within the meaning of Spanish law, this had no bearing on whether his condition was long-term within the meaning of the Directive.

Butler, ‘Obesity as a Disability: The Implications or Non-implications of Kaltoft’ (n 95). Case C-354/13 Kaltoft EU:​C:​2014:​2463, para 60. 102 Butler, ‘Obesity as a Disability: The Implications or Non-implications of Kaltoft’ (n 95). 103 Ibid. 104 Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 58. Notably, the role of discrimination and prejudice with regard to people who are obese was raised by Mr Kaltoft. On this point, see para 52 of the Opinion of Advocate General Jääskinen, Case C-354/13 Kaltoft EU:​C:​2014:​2463. 105 See the arguments of Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 58. 106 See generally Lisa Waddington, ‘Non-discriminatie, handicap, definitie van de grond handicap, begrip langdurige beperkingen (Mohamed Daouidi v. Bootes Plus SL e.a.)’ (2017) European Human Rights Cases. 107 Case C‑395/15 Daouidi EU:​C:​2016:​917, paras 48–53. 108 Ibid para 57. 109 Ibid para 56. 110 Ibid paras 48–53. 100 101

Disability in EU non-discrimination law  137 4.3

The Difference between Illness and Disability

Closely connected to the definition of disability and the notion of a ‘long-term impairment’ is the distinction between illness and disability. The CJEU has, in a number of cases, focused on differentiating illness from disability: what is illness and what is disability, and at what point may illness become disability? This issue was briefly touched upon in Chacón Navas, but the point was not developed in that case. The Court merely asserted that the requirement to provide reasonable accommodation indicated that the Union legislature envisaged disability as arising in situations in which access to, and participation in, professional life is restricted over a lengthy period of time. In HK Danmark, the Court held that if a limitation is ‘long-term’, it can be considered as a disability rather than an illness. In the later case of Ruiz Conejero,111 the CJEU, in examining whether the relevant national law was liable to entail a difference of treatment based indirectly on disability, observed that taking account of days of absence because of illness linked to disability in the calculation of days of absence because of illness amounts to assimilating illness linked with disability to the general concept of ‘illness’.112 Thus, the Court drew the same distinction between the terms ‘illness’ and ‘disability’ as it had done in previous case law,113 emphasizing that the duration of the illness – in terms of whether it was ‘long-term’ in nature – was relevant in determining disability. This contrasts with the more subtle distinction that the CRPD Committee draws between the terms ‘disability’ and ‘illness’,114 in that the Committee holds that ‘the difference between illness and disability is a difference of degree and not a difference of kind’, and that a ‘health impairment which initially is conceived of as illness can develop into an impairment in the context of disability as a consequence of its duration or its chronicity’.115 In Ruiz Conejero, the CJEU found that while measures adopted under Spanish law to combat absenteeism at work pursued a legitimate aim, such measures could be indirectly discriminatory in the manner in which they were applicable to persons with disabilities, whose level of absence from work risked being higher than that of persons without disabilities, since a worker with a disability has the additional risk of being absent by reason of an illness connected with their disability. The Ruiz Conejero case therefore provides a ‘timely reminder’116 not only of the fact that illnesses that are related to disability may require reasonable accommodation, but also that employers should carefully

111 Case C-270/16 Ruiz Conejero EU:​C:​2017:​788. For an analysis of that case, see Andrea Broderick, ‘Ruiz Conejero: (Re-)conceptualizing Disability-Based Discrimination and Sickness Absence at Work’ (2019) 5(1) International Labour Law Journal 86. 112 Case C-270/16 Ruiz Conejero EU:​C:​2017:​788, paras 38–39. 113 In Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456, at para 44, the CJEU held that the concepts of ‘disability’ and ‘sickness’ cannot simply be treated as being the same. See also Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 75. 114 See, on this point, Broderick, ‘Ruiz Conejero: (Re-)conceptualizing Disability-Based Discrimination and Sickness Absence at Work’ (n 111) 90. See also the arguments in Delia Ferri, ‘Daouidi v Bootes Plus SL and the Concept of “Disability” in EU Anti-discrimination Law’ (2019) 10(1) European Labour Law Journal 69 at 80. 115 CRPD Committee, S.C. v Brazil, UN Doc. CRPD/C/12/D/10/2013 (2014), para 6.3. Emphasis added. 116 Broderick, ‘Ruiz Conejero: (Re-)conceptualizing Disability-Based Discrimination and Sickness Absence at Work’ (n 111) 91.

138  Research handbook on EU disability law assess periods of absence in order to determine the extent to which those may be related to an employee’s disability.117

5.

FUTURE PERSPECTIVES

The preceding sections of this chapter have examined the influence, to date, of the CRPD on the interpretation of EU law concepts and duties. This section focuses on some of the legislative gaps that exist (at the time of writing) at EU level in relation to the prohibition of non-discrimination as it pertains to disability. In that regard, three areas of particular relevance are analysed in this section, namely: (i) the Commission’s 2008 Proposal for a horizontal non-discrimination Directive; (ii) multiple and intersectional discrimination; and (iii) genetic discrimination. The following sub-sections assess the influence to date and the potential future influence (where relevant) of the CRPD on EU law in those areas. 5.1

The Commission’s 2008 Proposal for a Horizontal Non-Discrimination Directive

A Proposal for a horizontal non-discrimination Directive to tackle discrimination outside the labour market has been under discussion at EU level for more than a decade, since 2008. The proposed Directive, if it is ever adopted, would extend protection on the ground of disability, sexual orientation, religious belief and age to the fields of social protection, including social security, healthcare and social housing; education; and access to, and supply of, goods and services which are available to the public, including housing.118 The 2008 Proposal ‘complements pre-existing EU non-discrimination legislation’,119 and its eventual adoption would serve to bring the content of EU non-discrimination law somewhat closer to the requirements set out in the CRPD. However, as noted by Favalli and Ferri, ‘its approval and entry into force should not be expected too soon’.120 The Proposal remains blocked in the Council, on account of the fact that unanimity has not yet been reached. The 2008 Proposal covers six forms of discrimination, namely direct discrimination, indirect discrimination, harassment, harassment by association, denial of reasonable accommodation for persons with disabilities and an instruction to discriminate.121 The proposed Directive would extend the existing material scope of EU law to several areas that are covered by the CRPD. However, as scholars have pointed out, the material scope of the CRPD remains ‘much broader’ than that of the 2008 Proposal and the Employment Equality Directive, taken

Ibid 90. Commission, Article 3 ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final. 119 Waddington and Broderick, Disability Law and the Duty to Reasonably Accommodate beyond Employment (n 4) 7. 120 Favalli and Ferri, ‘Defining Disability in the European Union Non-discrimination Legislation’ (n 7) 552. 121 Article 2 ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ (n 118). 117 118

Disability in EU non-discrimination law  139 together,122 meaning that ‘EU Member States which have ratified the CRPD will be obliged to prohibit disability discrimination in areas beyond those covered by EU equality law’,123 such as in the field of access to justice (Article 13 CRPD).124 Notably, however, the original 2008 Proposal, which was published prior to the EU becoming a Party to the UN Convention, has been amended in certain respects to align it more closely with the CRPD. As Waddington highlights, the proposed non-discrimination Directive has also been influenced by the wording of the CRPD’s definition of reasonable accommodation.125 In addition, as noted by Bell, a ‘genuine novelty’ of the proposed non-discrimination Directive lies in the fact that it conceptualizes a ‘denial of reasonable accommodation’ as a form of discrimination, in compliance with the CRPD.126 The current status of the 2008 Proposal is highly uncertain, and it is still the subject of ongoing discussions at EU level, both in the Council and in the Parliament.127 In 2014, the proposal to use enhanced cooperation for the adoption of the proposed horizontal Directive was overwhelmingly rejected in the Council.128 In its 2018 report, the European Union Agency for Fundamental Rights recommended that the EU legislator should continue to push for the adoption of the horizontal Directive.129 Furthermore, a 2018 Communication from the Commission to the Parliament and other EU institutions noted that for those areas still governed by unanimity, a change in procedure towards qualified majority voting or the ordinary legislative procedure could ‘render decision-making in the EU more timely, flexible and efficient’.130 The Commission took the view that ‘it would be important to consider the use of the general passerelle clause to facilitate decision-making on non-discrimination’, among other areas, but that this would require the European Council to take a decision to that effect according to the procedure contained in Article 48(7) TEU.131 As it stands, there has been no further move in this direction, and the adoption of the proposed Directive on the basis of Article 19 TFEU and via unanimity still seems far away.

122 Waddington and Broderick, Disability Law and the Duty to Reasonably Accommodate Beyond Employment (n 4) 8. 123 Ibid. 124 Ibid 9, fn 13. 125 See generally Waddington, ‘The Influence of the UN Convention on the Rights of Persons with Disabilities on EU Anti-discrimination Law’ (n 6). 126 Mark Bell, ‘Advancing EU Anti-discrimination Law: The European Commission’s 2008 Proposal for a New Directive’ (2009) 3 The Equal Rights Review 7, p. 10. 127 In June 2017, the European Commissioner for Employment, Social Affairs, Skills and Labour Mobility, Marianne Thyssen, reaffirmed that the proposed directive remains a priority for the Commission: see www​.europarl​.europa​.eu/​legislative​-train/​theme​-area​-of​-justice​-and​-fundamental​ -rights/​file​-anti​-discrimination​-directive/​12​-2017 accessed 5 March 2020. 128 European Commission, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘More Efficient Decision-making in Social Policy: Identification of Areas for an Enhanced Move to Qualified Majority Voting’ COM (2018) 186 final, p. 8. 129 European Union Agency for Fundamental Rights, Fundamental Rights Report 2018 http://​fra​ .europa​.eu/​en/​publication/​2018/​fundamental​-rights​-report​-2018 accessed 5 March 2020. 130 European Commission, ‘More Efficient Decision-making in Social Policy’ (n 128) 15. 131 Ibid 16.

140  Research handbook on EU disability law 5.2

Multiple and Intersectional Discrimination

Another area in which there is a lack of complementarity between EU law and the CRPD is with respect to multiple and intersectional discrimination. Article 6 CRPD complements the general prohibition of discrimination in Article 5 CRPD. Article 6 CRPD is the first provision of international human rights law that specifically prohibits discrimination on the basis of gender and disability, and addresses multiple discrimination explicitly. While Article 6 of the UN Convention refers only to ‘multiple discrimination’, the CRPD Committee has confirmed that it also encompasses a prohibition of intersectional discrimination.132 The Committee has distinguished between the two terms, asserting that ‘multiple discrimination’133 constitutes ‘a situation where a person can experience discrimination on two or several grounds, in the sense that discrimination is compounded or aggravated’,134 while ‘intersectional discrimination’ refers to ‘a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable and thereby expose relevant individuals to unique types of disadvantage and discrimination’.135 Article 7 CRPD (on children with disabilities) and the UN Convention’s Preamble, which acknowledges the ‘difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination’,136 also evidence the CRPD’s intersectional approach to discrimination. By way of contrast, Directive 2000/78 does not explicitly prohibit multiple or intersectional discrimination that involves two or more grounds.137 As noted by several authors, including Xenidis and Fredman, secondary EU law poses inherent challenges in terms of incorporating a prohibition of multiple and intersectional discrimination explicitly within the equality and non-discrimination law framework at EU level.138 These challenges stem partly from the fact that EU law is fragmented when it comes to the various instruments that address discrimination. Each of the relevant EU legal instruments in the field of equality and non-discrimination target different grounds of discrimination and have different ratione materiae. In addition, EU law contains ‘a complex system of justifications that is differentiated in respect of each ground’ of discrimination.139 In certain relatively recent judgments, both outside of the disa-

CRPD Committee, General Comment No. 6 (n 3) para 19. Notably, Fredman makes a distinction between sequential multiple discrimination and additive multiple discrimination: see Sandra Fredman, Intersectional Discrimination in EU Gender Equality and Non-discrimination Law (European Commission 2016) 7. 134 CRPD Committee, General Comment No. 6 (n 3) para 19. 135 Ibid. 136 CRPD, preamble, para 16. 137 It should be noted that the latest publicly available version of the proposal for the new horizontal equality directive pays considerable attention to multiple discrimination – Version of 26 June 2019, document no. 10740/19. 138 See generally Raphaële Xenidis, ‘Shaking the Normative Foundations of EU Equality Law: Evolution and Hierarchy Between Market Integration and Human Rights Rationales’ (2017) European University Institute Working Paper 2017/04. See also Raphaële Xenidis, ‘Multiple Discrimination in EU Anti-discrimination Law: Towards Redressing Complex Inequality?’ in Uladzislau Belavusau and Kristin Henrard (eds), EU Anti-discrimination Law beyond Gender (Hart 2018). See Fredman, Intersectional Discrimination in EU Gender Equality and Non-discrimination Law (n 133) 62–65. 139 Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 67. See also Aart Hendricks, ‘The UN Disability Convention and (Multiple) Discrimination: Should EU 132 133

Disability in EU non-discrimination law  141 bility context (the Parris judgment) and within that context (the Z. case), the Court has not demonstrated a willingness to shift the focus of its analysis beyond single-axis discrimination analysis, as highlighted elsewhere.140 Xenidis asserts that the ‘negative’ reaction by the CJEU in Parris to AG Kokott’s proposition to recognize and condemn intersectional discrimination resulted in the Court ‘closing the door to advancing non-discrimination through doctrinal innovations’.141 In addition, in the Z. judgment – which, as outlined above, concerned a woman who was unable to become pregnant due to a recognized impairment and who was refused a period of paid leave following the birth of her child through a surrogate mother – the Court also seemed to close the door to examining the intersectional disadvantage that had taken place on the grounds of sex and disability. The CJEU chose instead to address the claims of sex-based discrimination and disability-based discrimination completely separately. The Court’s choice to do so may have been on account of the fact that the national equality tribunal had posed the preliminary reference questions in such a manner as to highlight the separate grounds of discrimination, rather than the intersectional disadvantage.142 Whatever the reason, the Court’s approach in the Z. judgment did not provide much hope for future claims exhibiting this type of disadvantage. Schiek is of the view that the CJEU’s definition of disability has tended to ‘move impairments suffered disproportionately by women beyond the reach of disability discrimination law’.143 An embodiment of this can be seen in HK Danmark, in which the CJEU’s ‘reluctant approach’ towards acknowledging long-term conditions as impairment giving rise to disability results in conditions more frequently occurring in women being ‘less prone to bring their bearers within the fold of discrimination law’.144 Schiek also maintains that Kaltoft is symptomatic of this approach, since the issue as to whether a child-minder could be dismissed because of obesity is ‘of more practical relevance to women than to men’, as more women than men carry out such roles.145 On the other hand, according to Fredman, some disability-related cases, such as Coleman and Kaltoft, ‘could be understood as leaving open the opportunity for more visibility of intersectional issues, if they are properly framed’.146 In Fredman’s view, those cases take a so-called ‘capacious view’ of disability, namely one under which all aspects of an individual’s identity are taken into account within one identity ground.147 As Fredman argues, the finding in Coleman that the complainant mother was subjected to disadvantageous treatment Non-discrimination Law Be Modelled Accordingly?’ (2010) 2 European Yearbook of Disability 7, p. 21; see generally Xenidis, ‘Shaking the Normative Foundations of EU Equality Law’ (n 138); and Bell, ‘Advancing EU Anti-discrimination Law (n 126) 9. 140 See the arguments of Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 67–68. 141 Xenidis, ‘Multiple Discrimination in EU Anti-discrimination Law’ (n 138) 10. See recent literature, such as Shreya Atrey, Intersectional Discrimination (Oxford University Press 2019), which discusses why intersectional discrimination should be a unique category in non-discrimination law. 142 Case C-363/12 Z. v A Government department, The Board of management of a community school EU:​C:​2014:​159, para 28. 143 Schiek, ‘Intersectionality and the Notion of Disability in EU Discrimination Law’ (n 68) 62. 144 Ibid 60–61. 145 Ibid 60–61. 146 See Fredman, Intersectional Discrimination in EU Gender Equality and Non-discrimination Law (n 133) 77. 147 Ibid 10.

142  Research handbook on EU disability law in her employment because of the fact that she was the carer for her child with a disability highlights ‘the vertical, diagonal and layered relationships of power which intersect to compound disadvantage’.148 Furthermore, Kaltoft demonstrates that there is potential under EU law ‘for including intersectional insights, if these are fully brought into the frame’,149 not only because of what Schiek has observed – namely that child-minding is predominantly a female profession – but also because obesity has been found to have more negative effects on women in the workplace than on men.150 Schiek argues that a shift away from an individual to a social model of disability ‘is not the solution for defining disability for the purposes of discrimination law’; instead, ‘the Court must find a workable, purposive definition of disability’ – that is, one that ‘can be derived from the purposes of discrimination law’.151 Those purposes are: protecting against the harm of exclusion on the grounds of ascribed otherness; protecting individuation (through combating stereotypes and recognizing the medical element of disability); and respecting difference (through guaranteeing equality in practice).152 It is argued that the foregoing proposal aligns with the human rights model of disability that underpins the CRPD.153 Protecting against the harm of exclusion is reflected in the very purpose of the CRPD, which seeks to eliminate barriers that hinder full and effective participation in society on an equal basis with others. Furthermore, the aim of protecting individuation is mirrored in the gendered aspects of the human rights model (reflected in the Preamble and Article 6 CRPD), in the recognition dimension of inclusive equality (which targets stereotypes) and in the social-contextual understanding of disability (which recognizes the relevance of both individual impairment and external barriers in causing disability). Finally, the aim of respecting difference reflects the underlying premise of the human rights model and the duty to provide individualized measures of reasonable accommodation. On this basis, it is arguable that the CRPD’s theoretical framework holds some potential in encouraging the CJEU to move towards a so-called gendered approach to disability,154 although whether the Court chooses to draw on that potential is another question. 5.3

Genetic Discrimination

EU law also diverges from the prohibition of discrimination under the CRPD in that it does not cover (or has not yet been interpreted to cover) genetic discrimination. However, it is arguable that if a more robust conceptualization of equality firmly took hold in EU law, then there may be potential for expanding the current ratione materiae of the prohibition of discrimination. The CRPD itself does not mention genetic discrimination; notwithstanding this, and as outlined above,155 the CRPD Committee has interpreted the CRPD as covering genetic dis Ibid 77. Ibid 79. 150 Ibid. 151 Schiek, ‘Intersectionality and the Notion of Disability in EU Discrimination Law’ (n 68) 50–51 and 62. 152 Ibid. 153 This paragraph draws on Broderick, ‘The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality?’ (n 58). 154 See also the arguments made by Atrey, Intersectional Discrimination (n 141) 1519. 155 See section 3.1 above. 148 149

Disability in EU non-discrimination law  143 crimination, inter alia by confirming that the prohibition of discrimination in the CRPD covers those who are likely to acquire a disability in the future.156 Article 19 TFEU does not contain any reference to genetic makeup.157 While Article 21(1) CFR does contain a prohibition of discrimination based on ‘genetic features’, Directive 2000/78 does not prohibit discrimination based on genetic features; nor does it prohibit discrimination based on a future disability. To date, the issue of genetic discrimination has not been raised squarely before the CJEU in any case.158 Notwithstanding this, it has been argued that in order to give effect to the robust conceptualization of equality enshrined in the Charter, the Employment Equality Directive should be interpreted as including discrimination on the ground of genetic makeup within the existing ground of disability.159 De Paor and Ferri assert that the ‘scattered and dissimilar legislative response to questions of genetic privacy and genetic discrimination’ in EU Member States, which has resulted in a ‘patchwork’ of national legislative acts ‘with no common ground’,160 may be ‘detrimental to the actual protection of EU citizens and is a threat to the principle of non-discrimination, which is deeply rooted in the EU legal order’.161 In that connection, they argue that the conclusion of the CRPD by the EU provides ‘an added dimension to the debate’ regarding the regulation of genetic information, and that the UN Convention ‘arguably acts as an impetus to action in this area and as an international standard from which to view the issue of disability discrimination’.162 Since the Employment Equality Directive is supposed to be interpreted in line with the CRPD, it is entirely possible, according to certain scholars, that the Directive could be interpreted as including discrimination on the grounds of genetic makeup within the ground of (future) disability.163 This demonstrates the potential for the CRPD to extend (within the sphere of EU

156 CRPD Committee, General Comment No. 6 (n 3) para 20. On genetic discrimination generally, see Aisling de Paor and Charles O’Mahony, ‘The Need to Protect Employees with Genetic Predisposition to Mental Illness? The UN Convention on the Rights of Persons with Disabilities and the Case for Regulation’ (2016) 45 Industrial Law Journal 525. 157 On genetic discrimination in EU law, see Aisling de Paor and Delia Ferri, ‘Regulating Genetic Discrimination in the European Union: Pushing the EU into Unchartered Territory or Ushering in a New Genomic Era?’ (2015) 13(1) European Journal of Law Reform 14. See also Gerard Quinn, Aisling de Paor and Peter Blanck, Genetic Discrimination: Transatlantic Perspectives on the Case for a European Level Legal Response (Routledge 2015). See further Aisling de Paor, Genetics, Disability and the Law: Towards an EU Legal Framework (Cambridge University Press 2017). 158 It is notable that de Paor and Ferri remark that ‘even by exploiting the potential of interpretation of existing legislation by including discrimination on grounds of genetic makeup in the wider ground of (future) disability, the Employment Equality Directive offers a low degree of protection due to its limited scope’. See de Paor and Ferri, ‘Regulating Genetic Discrimination in the European Union’ (n 157) 31. For further discussion on this point, see de Paor, Genetics, Disability and the Law (n 157) 238–41. 159 Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 77–78. See de Paor and Ferri, ‘Regulating Genetic Discrimination in the European Union’ (n 157) 29. See also Janeke H Gerards and Heleen L Janssen, ‘Regulation of Genetic and Other Health Information in a Comparative Perspective’ (2016) 13 European Journal of Health Law 339 at 372–74. 160 De Paor and Ferri, ‘Regulating Genetic Discrimination in the European Union’ (n 157) 15. 161 Ibid. 162 Ibid 29. 163 See, for instance, Waddington and Broderick, Combating Disability Discrimination and Realising Equality (n 56) 78, drawing on de Paor and Ferri, ‘Regulating Genetic Discrimination in the European Union’ (n 157).

144  Research handbook on EU disability law competences) the existing prohibition of disability discrimination to forms of discrimination (genetic discrimination) not explicitly covered under primary or secondary legislation.

6.

CONCLUDING REMARKS

This contribution has analysed how, and to what extent, the rights of persons with disabilities have been taken into account, and protected, by the EU legislator and by the CJEU in the field of equality and non-discrimination law. Having set out the relevant primary and secondary law framework related to disability, this contribution has assessed the influence of the CRPD to date on several aspects of the CJEU’s interpretation of the EU secondary legislative framework in the field of equality and non-discrimination, most notably with regard to the duty of reasonable accommodation and the concept, or definition, of ‘disability’. In addition, this contribution has put forward future perspectives in relation to areas in which legislative gaps are evident, namely with regard to ensuring protection for people with disabilities beyond the field of employment, as well as ensuring protection against multiple and intersectional discrimination, and genetic discrimination. Xenidis claims that the EU non-discrimination ‘regime’ is the ‘most prominent area of human rights activity’ within the Union.164 Arguably, disability non-discrimination law has been a particularly dynamic area of activity in the past decade or more. It is undeniable that the CRPD has been a ‘strategic driver’165 of policy and legal initiatives in the sphere of equality and non-discrimination, such as the Proposal for a horizontal Directive in 2008. The ratification of the CRPD by the EU has also marked a significant turning point in the CJEU’s case law, which has largely been ‘boosted’ by the EU’s accession to the CRPD.166 As Favalli and Ferri note, the CRPD ‘has become a clear point of reference in the reasoning of the European judges’.167 In addition, the CRPD has enhanced the understanding of certain EU non-discrimination law duties, mainly the duty of reasonable accommodation, and there is further potential for the interpretation of the reasonable accommodation duty under the CRPD to guide the CJEU in its interpretation of that duty, thereby seeking to ensure a certain level of consistency throughout EU Member States.168 Notably, the UN Convention has also resulted in broadening the prohibition of discrimination under EU law, which now covers direct discrimination that occurs by association with an individual who has a disability and harassment by association. The CRPD has also influenced the definition of the concept of ‘disability’ under EU law. However, while the CJEU appeared to be moving towards a social understanding of disability in the decisions that it rendered after the entry into force of the CRPD, the Court’s 164 Xenidis, ‘Shaking the Normative Foundations of EU Equality Law’ (n 138) 16. See generally Elise Muir, EU Equality Law: The First Fundamental Rights Policy of the EU (Oxford University Press 2018). 165 See generally Broderick, ‘The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality?’ (n 58). 166 Favalli and Ferri, ‘Tracing the Boundaries between Disability and Sickness in the European Union’ (n 69) 8. 167 Ibid. 168 See generally Broderick, ‘The United Nations Convention on the Rights of Persons with Disabilities and EU Disability Law: Towards a Converging Vision of Equality?’ (n 58).

Disability in EU non-discrimination law  145 interpretation of the concept of ‘disability’ has led to difficulties in its practical application, as highlighted throughout this chapter. On the whole, Waddington argues that in spite of the Court ‘paying lip service to the social-contextual model of disability reflected in the CRPD in its definition of disability, it seems the Court is struggling to recognize and apply the model in practice’.169 In addition to the inconsistencies that remain between the EU law concept of ‘disability’ and that embodied by the CRPD, gaps remain between the wide prohibition of discrimination under the CRPD and the substantially narrower scope ratione materiae of EU law, and with regard to the lack of protection under EU law for multiple and intersectional discrimination, and genetic discrimination. Notwithstanding these inconsistencies, it was highlighted in section 5 of this chapter that the CRPD has some potential to foster a more robust conceptualization of equality in EU non-discrimination law and to expand the categories of discrimination on the ground of disability that are covered by EU law (within the sphere of existing EU competences). It was also demonstrated that the human rights model of disability underpinning the UN Convention has some potential to promote a so-called gendered approach to defining the concept of ‘disability’. Indeed, it is only by applying the social-contextual and human rights models of disability in full that EU law will adequately address the needs of individuals with disabilities throughout the Union.

Waddington, ‘Case note on Case C-354/13 CJEU 18 December 2014 (Kaltoft)’ (n 94) para 11.

169

9. Disability in EU labour law beyond non-discrimination Miet Vanhegen and Frank Hendrickx

1. INTRODUCTION The aim of this chapter is to analyse European Union (EU) labour law and employment policy initiatives that have addressed disability rights and concerns in the labour market, outside the anti-discrimination realm. In this context, it can be observed that mainstreaming a disability perspective in EU employment and social policy has been influenced by the international human rights discourse regarding persons with disabilities and, more specifically, the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention), which aims to promote, protect and ensure the full and equal enjoyment of all human rights, including the right to work, for all individuals with disabilities. As disability issues are at the crossroads of policies on employment, social inclusion, health and safety at work, active ageing and social protection, different approaches and strategies in the EU social and employment policy sphere have been adopted. While disability is referred to in EU health and safety legislation related to the workplace, which falls within the EU’s social, hard law agenda, disability rights are further enhanced through soft law strategies, such as in policy and guidance documents. In recent decades the Union has placed great emphasis on promoting the active inclusion and full participation of people with disabilities in the labour market, and in society, through soft law measures. In order to achieve this objective, the European Employment Strategy (EES),1 adopted on the basis of, inter alia, Article 148 TFEU has been relied upon. The EES is a soft law mechanism designed to coordinate the employment policies of the EU Member States, and it places a strong focus on the enhancement of employment opportunities for vulnerable workers, such as individuals with disabilities. This contribution discusses how disability rights have stemmed from hard and soft law strategies. It contextualizes disability rights in relation to such strategies and demonstrates how the strategies are related to each other. Furthermore, the influence of two major legal documents is examined. In the first instance, the CRPD, which has clearly had an influence on EU law and policy, is discussed. In the second instance, this contribution takes into account and analyses the European Pillar of Social Rights (EPSR or Pillar),2 which can provide an impetus to further integrate a disability perspective in future hard and soft law approaches in the field of EU social and employment policy.

1 Launched at the Extraordinary Council Meeting on Employment, 20 and 21 November 1997, Luxembourg, Presidency Conclusions www​.consilium​.europa​.eu/​uedocs/​cms​_data/​docs/​pressdata/​en/​ ec/​00300​.htm accessed 1 February 2020. 2 Interinstitutional Proclamation 2017/C 428/09 on the European Pillar of Social Rights [2017] OJ C428/10.

146

Disability in EU labour law beyond non-discrimination  147 Following these introductory remarks, this chapter is structured as follows. After the general legal framework that is relevant to EU labour law and employment policy is outlined in section 2, sections 3 and 4 discuss disability in EU social and employment policies, respectively. In section 5, future perspectives on disability rights are discussed, analysing policy spill-overs and the influence of the UN Convention and the EPSR. Finally, concluding remarks are presented in section 6.

2.

THE TREATY FRAMEWORK

An analysis of disability rights in the EU labour law context, outside the anti-discrimination realm, needs to reflect on the ‘double bind’ that lies behind the Union’s social and employment policies. Both policies are driven, or influenced to some degree, by the social and economic dimensions of the European integration strategy. Understanding both perspectives is necessary in defining labour law in a European context, due to the different goals or processes underlying social and employment policy.3 In the EU, social objectives were gradually inserted in the Treaties over the years, and competences to address those objectives were granted to the EU.4 Social policy, including the protection of workers, as an explicit objective of the EU, has been problematic from the very beginning of the European project. It is well known that the Treaties originally focused primarily on the creation of a common European market, with hardly any social dimension.5 Social policy was left almost exclusively to the Member States, and no legislative powers for the EU existed in that field until the 1970s.6 Only after a long series of debates and policy initiatives did the ‘social chapter’ of the EU Treaties come into being.7 Within the area of social policy, Article 151 of the Treaty on the Functioning of the European Union (TFEU) includes among its objectives the promotion of employment, improved living and working conditions, and the development of human resources, with a view to ensuring lasting high employment and combating exclusion. The EU and its Member States have a shared competence in the field of social policy, still strongly respecting the powers of the Member States.8 According to Article 153 TFEU, the Union can act in some key labour law areas, such as with regard to the following: the improvement of the working 3 Frank Hendrickx, ‘Completing Economic and Social Integration: Towards Labour Law for the United States of Europe’ in Nicola Countouris and Mark Freedland (eds), Resocialising Europe in a Time of Crisis (Cambridge University Press 2013) 61–80, p. 68. 4 Stefano Giubboni, Social Rights and Market Freedom in the European Constitution: A Labour Law Perspective (Cambridge University Press 2006) 29; see generally Manfred Weiss, ‘European Labour Law in Transition from 1985 to 2010’ (2010) 26(1) International Journal of Comparative Labour Law and Industrial Relations 16; Catherine Barnard, ‘EU “Social Policy”: From Employment Law to Labour Market Reform’ in Paul Craig and Gráinne de Búrca (eds), Evolution of EU Law (Oxford University Press 2011) 641–86, pp. 643–44. 5 EEC Treaty (Treaty establishing the European Economic Community) [1957]. 6 Barnard, ‘EU “Social Policy”’ (n 4) 644–46. 7 See generally Frank Hendrickx and Stefano Giubboni, ‘European Union Labour Law and the European Social Model: A Critical Appraisal’ in Matthew W Finkin and Guy Mundlak (eds), Comparative Labor Law (Edward Elgar Publishing 2015) 379–402. 8 Antoine Jacobs, ‘Labour Law, Social Security Law and Social Policy after the Entering into Force of the Treaty of Lisbon’ (2011) 2(2) European Labour Law Journal 119, pp. 136–37.

148  Research handbook on EU disability law environment, to protect workers’ health and safety; working conditions; the protection of workers where their employment contract has been terminated; ensuring equality with regard to labour market opportunities and treatment at work; and combating social exclusion. From the 1990s onwards, hard law was the centre of gravity of European social policy. The focus on hard law was, however, not always seen as being flexible enough for the European institutions to respond to the specific sensitivities of the Member States and of the social partners.9 Therefore, Article 156 TFEU lays the foundations for the use of complementary ‘soft law’ policy techniques with regard to employment, labour law and working conditions, and other social matters that essentially fall within the competence of the Member States.10 These soft law powers became very relevant in the sphere of EU employment policy with the introduction, in 1997, of a new chapter in the Treaty (currently Articles 145–150 TFEU).11 In the area of employment policy, the EU has no legislative powers, but has the competence to encourage ‘cooperation’ between its Member States. The relevant mechanism, in which Member States and the EU institutions share information and set common goals, is foreseen with a view to fostering a high level of employment and addressing the varied concerns of European labour markets – issues that clearly go beyond the goals of social policy.12 While employment policy is an area in which the competence of the Member States remains uncontested,13 it formed the basis of the EES, launched at the Luxembourg Jobs Summit in 1997.14 The Strategy is quite unique in that it introduced a soft law governance mechanism into the EU social policy sphere, which was designed to coordinate the employment policies of the Member States, which, in turn, remain fully responsible for formulating and implementing the necessary policies.15 In order to guarantee that the aspiration of full employment, as indicated in Article 3 of the Treaty on European Union (TEU), is adequately pursued, the TFEU provides for a monitoring procedure, also referred to as the open method of coordination (OMC), which is an intergovernmental policy-making process that does not lead to binding EU legislation.16 On the basis of an assessment of the employment situation in the EU and the Member

Catherine Barnard, EC Employment Law (Oxford University Press 2006) 75–84. Julia S O’Connor, ‘Policy Coordination, Social Indicators and the Social-Policy Agenda in the European Union’ (2005) 15(4) Journal of European Social Policy 345 at 348–49; Jonathan Zeitlin and Bart Vanhercke, Socializing the European Semester? Economic Governance and Social Policy Coordination in Europe 2020 (Swedish Institute for European Policy Studies 2014) 7 https://​pure​.uva​.nl/​ ws/​files/​2413385/​158639​_442654​_draft​.pdf accessed 1 February 2020. 11 Treaty of Amsterdam [1997] OJ C340/1. 12 Article 147(1) TFEU. 13 Weiss, ‘European Labour Law in Transition’ (n 4) 112. 14 European Council, Extraordinary Council Meeting on Employment, 20 and 21 November 1997, Luxembourg, Presidency Conclusions www​.consilium​.europa​.eu/​uedocs/​cms​_data/​docs/​pressdata/​en/​ ec/​00300​.htm accessed 1 February 2020. 15 Marina Kesner-Škreb, ‘Employment Policy in the European Union’ (2010) 34(3) Financial Theory and Practice 316; see generally Marco Biagi, ‘The Impact of European Employment Strategy on the Role of Labour Law and Industrial Relations’ (2000) 16(2) International Journal of Comparative Labour Law and Industrial Relations 155. 16 Article 148 TFEU; Erika Szyszczak, ‘Experimental Governance: The Open Method of Coordination’ (2006) 12(4) European Law Journal 486, pp. 488–89; Saskia Klosse, ‘The European Employment Strategy: Which Way Forward?’ (2005) 21(1) International Journal of Comparative Labour Law and Industrial Relations 8.

9

10

Disability in EU labour law beyond non-discrimination  149 States,17 the European Council draws up yearly Employment Guidelines, which put forward some common objectives, priorities and targets to be pursued by the Member States in their employment policies.18 Each Member State must provide the Council and the Commission with an annual report on the principal measures taken to implement employment policy in light of the Guidelines.19 After examination of the implementation of the Member States’ employment policies, the Council, on a recommendation from the Commission, may, if it considers it appropriate in light of that examination, make country-specific recommendations to Member States.20 In turn, the assessment of how the Member States have transposed the current Employment Guidelines steers the Council in revising the Guidelines, thus launching a new round of the cycle described above.21 Although the Employment Guidelines are not legally binding, they put a certain level of pressure on the Member States. In circumstances where a given Member State does not follow the Guidelines, they must justify why the objectives of the Guidelines have not been met. It is important to note that the EES does not entail the imposition of real sanctions on Member States which do not adhere to the Guidelines;22 however, since 2010, the monitoring of the Employment Strategy forms a branch of the European Semester, which introduced a stricter form of economic governance, and limited the leeway for Member States to develop their own social and employment policies.23 Social and employment policies attained a consolidated position in the Treaty of Lisbon. Article 3(3) TEU emphasizes the EU’s social aims of ensuring ‘a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection’. Full recognition of the social rights of workers in the Union is laid down in the Charter of Fundamental Rights of the European Union (CFR), which also includes a provision on the social and occupational integration and participation of disabled people in Article 26.24

3.

DISABILITY IN EU SOCIAL POLICY

3.1

Safety and Workplace Accommodations

The acquis of European labour legislation is both wide and modest at the same time. The social policy branch of EU law is contained in different instruments, having a real impact 17 This assessment is made in the Annual Growth Survey (AGS) and the Joint Employment Report (JER): see Kerstin Jacobsson, ‘Soft Regulation and the Subtle Transformation of States: The Case of EU Employment Policy’ (2004) 14(4) Journal of European Social Policy 358. 18 Article 148(2) TFEU. 19 Article 148(3) TFEU. 20 Article 148(4) TFEU. 21 See generally David M Trubek and Louise G Trubek, ‘Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co‐Ordination’ (2005) 11(3) European Labour Journal 343. 22 Weiss, ‘European Labour Law in Transition’ (n 4) 113; Trubek and Trubek, ‘Hard and Soft Law in the Construction of Social Europe’ (n 21) 352; see generally Sonja Bekker, ‘EU Coordination of Welfare States after the Crisis: Further Interconnecting Soft and Hard Law’ (2014) 19(3) International Review of Public Administration 296. 23 Bekker, ‘EU Coordination of Welfare States after the Crisis: Further Interconnecting Soft and Hard Law’ (n 22) 297. 24 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume.

150  Research handbook on EU disability law on national systems, but the main responsibilities for social policy still lie with the Member States, and some scholars even see a stagnation of EU labour legislation, with few prospects for the future.25 This does not take away from the fact that EU labour law is very extensive, and includes several pieces of legislation in the field of health and safety of workers. Safety and health at work constitutes one of the EU’s most elaborate and most important social policy sectors. Moreover, it is the only area of EU law that makes explicit reference to people with disabilities outside the realm of the Employment Equality Directive.26 This is not entirely unexpected, as the relationship between disability and healthy working conditions is twofold: unsafe working conditions may lead to impairments through accident or disease, while disabled workers may need specific protection from additional health and safety risks.27 The origin of the EU’s current legislative documents in the field of health and safety can be found in the Single European Act of 1986,28 which extended the former European Economic Community’s (EEC) legislative powers in the field of health and safety at work. The (then) new Article 118a of the EEC Treaty (now Article 153 TFEU) made it possible to adopt, by a qualified majority in the Council, directives ‘laying down minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers’.29 When the CFR became legally binding with the entry into force of the Treaty of Lisbon, the importance of health and safety policy was further strengthened in the Union’s legislation. Following the introduction of Article 118a EEC, the European Framework Directive on the Safety and Health of Workers at Work (OSH Framework Directive) was adopted in 1989.30 This represented a huge milestone for the improvement of safety and health at work in the Member States, as the Directive lays down minimum requirements and guidelines. This leaves to the Member States the possibility to establish a higher level of protection at the national level if they wish to do so.31 The OSH Framework Directive requires employers to be more active in developing a prevention policy that takes account of measures to protect the safety and health of workers. An important aspect of the Directive is the introduction of the principle of risk assessment. The OSH Framework Directive’s main elements include: the identification of hazards; worker involvement in health and safety at work; and the introduction of appropriate health and safety measures, with priority given to eliminating risks at source, documentation and periodic reassessment of hazards at the workplace.32 The prevention of occupational risks also presupposes the adaptation of the working environment to the needs of the employee, Weiss, ‘European Labour Law in Transition’ (n 4) 119. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 27 Lisa Waddington, Mainstreaming Disability Rights in the European Pillar of Social Rights: A Compendium (Academic Network of European Disability Experts 2018) 53 http://​disability​-europe​.net accessed 2 February 2020. 28 Single European Act [1987] OJ C169/1. 29 Alan C Neal and Frank B Wright, The European Communities’ Health and Safety Legislation (Routledge 2017) 22. 30 Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work (OSH Framework Directive) [1989] OJ L183/1. 31 Article 1(3) OSH Framework Directive. 32 See generally Ton Wilthagen and Per Langaa Jensen, ‘Regulating Health and Safety Management in the European Union’ in D Walters (ed), Regulating Health and Safety Management in the European Union (Peter Lang S.A. 2002) 15–22. 25 26

Disability in EU labour law beyond non-discrimination  151 including the design of the workplace and the choice of work equipment, methods of work and production methods that are suitable to those needs.33 It therefore clearly encapsulates the idea that employers should adapt to the needs of individual workers, especially those of employees with disabilities.34 This principle is reflected in Directive 89/654/EEC on the minimum safety and health requirements for the workplace.35 In the Annexes to the Directive, there is an obligation to take disabled workers into account in the organization of work. This applies, in particular, to ‘doors, connecting roads, staircases, shower rooms, laundry rooms, toilets and workplaces directly occupied by disabled workers’.36 This principle of ensuring adapted workplaces seems crucial in EU health and safety law, which can be read in conjunction with the Employment Equality Directive, containing a similar obligation of reasonable accommodation in relation to employees with disabilities in Article 5 thereof. As in the case of legislation in the field of health and safety at work, the Employment Equality Directive requires the working environment and equipment to be adapted to the individual circumstances of workers with disabilities. Employers are obliged to provide effective and practical measures aimed at adapting the workplace to the needs of disabled workers, to enable them to have access to, participate in or grow in employment, or to receive training.37 The process of making adaptations for workers with disabilities should, in this light, be carried out through the coordination of all elements of safety management and, in particular, risk analysis, in order for employers to fulfil their obligations under both the relevant health and safety legislation and anti-discrimination legislation.38 The objective of preventing discrimination should, moreover, be taken into account at all stages of the risk management process, so that working environments, work equipment and work organization can be adapted, where necessary, to exclude or at least minimize risks of discrimination. Consultation with, and involvement of, people with disabilities and their representatives in the workplace is crucial in the process of providing reasonable accommodations. Such accommodations may entail adapting work planning and the working environment, adopting emergency procedures, and the purchase and use of special equipment.39 It is argued here that the objective of ensuring an adapted workplace, pursued through health and safety law, can be seen as an emanation of the wider principle of workplace accommodations in labour law. Health and safety law is certainly a pioneer in the legal sense. In that field of law, rules are designed to ensure that people can work in environments and circumstances that are adapted to them. Therefore, health and safety law can be seen as a field which requires adaptation of employment to the individual, instead of (merely) vice versa.40 Article 6 (2)(d) OSH Framework Directive. Mark Bell, ‘Adapting Work to the Worker: The Evolving EU Legal Framework on Accommodating Worker Diversity’ (2018) 18(2–3) International Journal of Discrimination and the Law 124, pp. 128–29. 35 Articles 3 and 4 Council Directive 89/654/EEC concerning the minimum safety and health requirements for the workplace [1989] OJ L393/1. 36 Annex I, point 20 and Annex II, point 15 Council Directive 89/654/EEC. 37 Article 5 Employment Equality Directive. 38 European Agency for Safety and Health at Work (EU-OSHA), ‘Fact Sheet No. 53. Ensuring the Health and Safety of Workers with Disabilities’ (EU OSHA 2004) https://​osha​.europa​.eu/​en/​tools​-and​ -publications accessed 2 February 2020. 39 Article 11 OSH Framework Directive; EU-OSHA, ‘Fact Sheet No. 53. Ensuring the Health and Safety of Workers with Disabilities’ (n 38). 40 Frank Hendrickx, ‘Disability and Reintegration in Work: Interplay Between EU Non-discrimination Law and Labour Law’ in Frank Hendrickx (ed), Reasonable Accommodation in the Modern Workplace: 33 34

152  Research handbook on EU disability law 3.2

Towards Reintegration in the Workplace

Health and safety law has further evolved, following influences from other policy fields. The earlier focus of health and safety law on prevention has shifted towards a reintegration approach. In line with the Lisbon Strategy,41 a Community Strategy on Health and Safety at Work (Community Strategy) was developed by the European Commission, and ran from 2007 to 2012.42 The Community Strategy sought to achieve the same objective set by the Lisbon Strategy – that of increasing employment and productivity, with a view to improving competitiveness, taking account of developments in the labour market and of new psychosocial risks. By promoting health and safety at work, the ambition of the Community Strategy was to reduce the incidence of permanent occupational disability and unemployment caused by accidents at work and occupational diseases, such as mental health issues.43 Within the framework of the Community Strategy, the Member States were also encouraged to incorporate into their national strategies specific measures (such as financial assistance and training tailored to individual needs) to improve the rehabilitation and reintegration of workers excluded from the workplace for a long period of time because of an accident at work, an occupational illness or a disability.44 Subsequently, in the European Disability Strategy 2010–2020 (EDS), the European Commission expressed its commitment to promoting action in the field of health and safety at work, in order to reduce the risks of developing a disability during one’s working life and to improve the reintegration of disabled workers in the workplace, in line with the Community Strategy outlined above.45 Following the review of the Community Strategy in March 2013,46 it was established that more than half of the Member States had not put in place mechanisms to improve the rehabilitation and reintegration of workers who are excluded from the workplace.47 In light of this review, the European Commission was asked to develop a new strategy, which would also be aligned with the EU 2020 targets.48 On 6 June 2014, the European Commission presented a new EU Strategic Framework on Health and Safety at Work 2014–2020 (Strategic Framework), which highlights the need to specifically address the situation of disabled workers (among others) and proposes measures related to the exchange of good practices, implementation of legislation and the use of EU funds to support the recruitment and return to work of people with a chronic or rare disease, disability or mental health disorder, through

Potential and Limits of the Integrative Logics of Labour Law (Kluwer Law International 2016) 61–72, p. 71. 41 Lisbon European Council 23 and 24 March 2000, Presidency Conclusions, www​.europarl​.europa​ .eu/​summits/​lis1​_en​.htm accessed 3 February 2020. 42 Commission, ‘Improving Quality and Productivity at Work: Community Strategy 2007–2012 on Health and Safety at Work’ COM (2007) 62 final. 43 Ibid 2. 44 Ibid 10. 45 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final, p. 9. 46 Directorate-General for Employment, Social Affairs and Inclusion (DG EMPL), Evaluation of the European Strategy on Safety and Health at Work: Final Report (European Commission 2013) https://​ec​ .europa​.eu/​social accessed 3 February 2020. 47 Ibid 80. 48 As discussed below in sub-section 4.2.

Disability in EU labour law beyond non-discrimination  153 integrated pathways and personalized support and advisory services.49 However, the Strategic Framework does not contain any new obligations for Member States and should be seen as a supporting document of the existing EU health and safety acquis, promoting the development of good practices.

4.

DISABILITY IN EU EMPLOYMENT POLICY

4.1

The Development of a Disability Perspective in EU Employment Policy

Concern about high unemployment, as well as inactivity rates and social exclusion in Europe, have led to a more proactive employment policy at EU level. It is clear that, since the adoption of the EES, a disability perspective has not been entirely overlooked in EU employment policies and, perhaps, even strengthened the goals of such policies. Further to the entry into force of the Treaty of Amsterdam, which conferred upon the EU the competence to combat discrimination on the ground, inter alia, of disability,50 socially oriented and rights-based policy frameworks on disability, with a strong focus on the employment of people with disabilities, have been further developed within the EU.51 Moreover, a disability perspective has been firmly embedded in the annual Council Employment Guidelines since the launch of the EES in 1997. While a high rate of employment growth is a prerequisite to ensuring that sufficient work opportunities are available for people with disabilities, leading to social inclusion, the urgent need identified by the EU institutions from the outset was to provide disabled people with adequate skills and environments to enable them to fulfil their potential, and to find and retain suitable jobs. Since the first Employment Guidelines were adopted in 1998, much emphasis was placed on the need for Member States to pay particular attention to the problems that people with disabilities may encounter in participating in working life, such as discrimination, and on the need to develop preventive and active policies that promote their integration into the labour market.52 With the adoption of the Lisbon Agenda in 2000, the aim was to make the EU ‘the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion’.53 The EES therefore occupied a central place in the implementation of the Lisbon Strategy’s employment objec49 Commission, ‘Communication on an EU Strategic Framework on Health and Safety at Work 2014–2020’ COM (2014) 332 final, 10–12. 50 Article 19 TFEU. 51 Council Resolution establishing the initial Community action programme for the vocational rehabilitation of handicapped persons [1974] OJ C80/30; Council Recommendation 86/379/EEC on the employment of disabled people in the Community [1986] OJ L225/43; HELIOS I Community Action Programme for Disabled People (1988–1991) [1988] OJ L104/38; Council Decision 93/136/ EEC on HELIOS II Community Action Programme to Assist Disabled People (1993–1996) [1993] OJ L56/30; Commission, ‘A New European Community Disability Strategy’ COM (1996) 406 final. See generally Mark Priestley, ‘In Search of European Disability Policy: Between National and Global’ (2007) 1(1) Alter 61. 52 Council Resolution on the 1998 Employment Guidelines [1997] OJ C30/1; Council Resolution on the 1999 Employment Guidelines [1999] OJ C69/2; Commission Staff Working Document, ‘Raising Employment Levels of People with Disabilities: The Common Challenge’ SEC (1998) 1550. 53 Lisbon European Council 23 and 24 March 2000, Presidency Conclusions (n 41).

154  Research handbook on EU disability law tives.54 In this regard, the European Council asked the Council and the Commission to develop priority actions to be undertaken by the Member States, to enhance employment opportunities for individuals with disabilities.55 From 2001 until 2004, the Employment Guidelines favoured active and preventive policies, and a balance between flexibility and security, in order to attract and retain more people in employment, to increase labour supply and to enhance social cohesion and inclusion.56 With regard to people with disabilities, Member States were encouraged to develop specific actions for the integration of vulnerable people, including people with disabilities, in the labour market, and for combating discrimination in access to, and participation in, the labour market. This was intended to result in better social inclusion, labour market participation and financial sustainability of social protection systems.57 The evaluation of the first five years of the EES demonstrated that active measures and anti-discrimination policies were stimulated at national level under the EES, but remained inconclusive as to their impact on the labour market situation of disadvantaged people. In order to effectively narrow the employment gap between disabled and non-disabled people, it was considered that there was a continued need for tailored measures and comprehensive approaches involving both the supply and the demand side of the labour market.58 Against the background of establishing 2003 as the European Year of People with Disabilities,59 and the adoption of the EU Disability Action Plan,60 and in view of the fact that people with disabilities still faced a variety of barriers to full participation in society, the Council adopted a Resolution on promoting the employment and social integration of people with disabilities.61 It called on the Member States and the Commission to, inter alia, promote the full integration and participation of people with disabilities in all aspects of society, by enforcing equal treatment measures and improving integration and participation of people with disabilities in the labour market, including in the educational and training system.62

54 Marina Kesner-Škreb, ‘Employment Policy in the European Union’ (2010) 34(3) Financial Theory and Practice 317; see generally Jonathan Zeitlin, ‘Social Europe and Experimental Governance: Towards a New Constitutional Compromise?’ in Gráinne de Búrca (ed), EU Law and the Welfare State: In Search of Solidarity (Oxford University Press 2005) 213–41. 55 Lisbon European Council 23 and 24 March 2000, Presidency Conclusions (n 41) paras 32–33. 56 Council Decision 2001/63/EC on guidelines for Member States’ employment policies for the year 2001 [2001] OJ L22/18. 57 Guideline 7 Council Decision 2001/63/EC; Recital 17 and Guideline 7 Council Decision 2003/578 on guidelines for the employment policies of the Member States [2003] OJ L197/13. 58 Commission, ‘Taking Stock of Five Years of the European Employment Strategy’ COM (2002) 416 final. 59 Council Decision 2001/903/EC on the European Year of People with Disabilities 2003 [2001] OJ L335/15. 60 Commission, ‘Equal Opportunities for People with Disabilities: A European Action Plan’ COM (2003) 650 final. 61 Council Resolution on promoting the employment and social integration of people with disabilities [2003] OJ C175/1. 62 Ibid 2.

Disability in EU labour law beyond non-discrimination  155 The update of the Lisbon Strategy in 2005,63 and the start of a new period of Employment Guidelines (2005–2008) which, from then on, became part of the Integrated Guidelines,64 led to the reaffirmation of the targets of full employment, job quality, labour productivity and social cohesion. Combating discrimination and promoting integration in the labour market, as well as reducing employment gaps for disabled people, was found to be essential in order to meet these objectives.65 On foot of the European Disability Action Plan, a working paper of the Directorate General (DG) for Employment, Social Affairs and Inclusion reviewed the Employment Guidelines (2005–2008) in light of their potential to promote disability mainstreaming, in line with the Employment Equality Directive.66 The working paper found that people with disabilities were an underused source of labour in the EU, and also concluded that increasing their rates of participation in the workforce is vital for economic growth and social inclusion.67 A systematic incorporation of a disability perspective in all employment policies and measures was therefore considered to be a very powerful approach for improving the integration of disabled people in the labour market. Moreover, the objective of creating more quality jobs within the Member States, as well as focusing on favourable pay and working conditions, health and safety at work, the availability of flexible work and the organization of working time, adaptation of the workplace and access to technological assistance, were found to be particularly relevant for people with disabilities.68 The economic crisis in 2008 and 2009 posed substantial challenges to the employment objectives of the Lisbon Strategy. However, the Employment Guidelines from 2008 to 2010 continued to focus on the active inclusion of all people in the labour market by, inter alia, improving the employability of people with disabilities.69 Evidently, labour market activation and inclusion for disabled people are easier to address in periods of increasing labour demand and lower levels of unemployment. The overall lack of support for disabled people in accessing the labour market was therefore exacerbated by the economic recession.70

63 Commission, ‘Working Together for Growth and Jobs: A New Start for the Lisbon Strategy’ COM (2005) 24 final; see generally Wim Kok, Facing the Challenge: The Lisbon Strategy for Growth and Employment (European Communities 2004) https://​op​.europa​.eu/​en/​publication​-detail/​-/​publication/​ 88b6bc81​-e3ad​-4156​-960f​-f549369aa9d4 accessed 5 February 2020. 64 Commission, ‘Integrated Guidelines for Growth and Jobs (2005–2008)’ COM (2005) 141 final; See generally J Timo Weishaupt and Katja Lack, ‘The European Employment Strategy: Assessing the Status Quo’ (2011) 7(1) German Policy Studies 16. 65 Council Decision 2005/600/EC on guidelines for the employment policies of the Member States [2005] OJ L205/21. 66 Commission, ‘Disability Mainstreaming in the European Employment Strategy’ (Working Paper) (2005) EMCO/11/290605. 67 Ibid 5. 68 Ibid 6. 69 Council Decision 2008/618/EC on guidelines for the employment policies of the Member States [2008] OJ C198/47; Commission, ‘Integrated Guidelines for Growth and Jobs (2008–2010)’ COM (2007) 803 final. 70 Mark Priestley, Targeting and Mainstreaming Disability in the Context of EU2020 and the 2012 Annual Growth Survey: Synthesis Report (Academic Network of European Disability Experts 2012) 9 www​.disability​-europe​.net accessed 7 February 2020.

156  Research handbook on EU disability law 4.2

Disability towards 2020

Against the background of the financial and economic crisis of 2008 and 2009, the Europe 2020 Strategy was adopted. The Strategy aims at reinforcing the EU’s social dimension, fostering inclusive growth and high employment that delivers social and territorial cohesion.71 It also sets five headline targets, including a renewed commitment to increasing the rate of labour market participation of people aged 20–64 to 75 per cent by 2020.72 In order to achieve this objective of inclusive and sustainable growth, the European Commission has set up different initiatives, such as the Agenda for New Skills and Jobs,73 which had the goal of achieving an inclusive, open labour market in which opportunities are created for all people of working age, and proposed targeted approaches for ‘vulnerable workers’, including people with disabilities. In its Communication on the Agenda for New Skills and Jobs, the Commission emphasizes that irrespective of age, gender, socio-economic background, ethnicity or disability, all EU citizens should have the opportunity to acquire and develop the mix of knowledge, skills and aptitudes that they need to succeed in the labour market.74 Additionally, the ‘Youth on the Move’ initiative, which is designed to facilitate the transition from education to employment, and to tackle youth unemployment, acknowledges the hurdles experienced by young people with disabilities when entering the labour market. A growing number of young people are being moved onto (permanent) disability benefits.75 While some may not be able to work full time, even with suitably adapted workplaces, others could find a way back into the labour market through well-designed employment activation policies.76 Every effort should therefore be made to ensure that as many young people with disabilities as possible, or those with health problems, are in work, in order to minimize the risks of future inactivity and social exclusion. One option put forward by the Commission is to develop partnerships and agreements between public employment services and employers, to offer specific support for the recruitment of youth at risk.77 In 2013, the EU Member States endorsed the Youth Guarantee,78 whereby young people are assured of a quality offer of employment, further education or training within four months of becoming unemployed or leaving formal education. The Council Recommendation on establishing a Youth Guarantee stresses the need for outreach strategies to ensure that young vulnerable people – including

71 Commission, ‘Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth’ COM (2010) 2020 final. 72 See generally Frank Hendrickx and Pieter Pecinovsky, ‘EU Economic Governance and Labour Rights: Diversity and Coherence in the EU: The Council of Europe and ILO Instruments’ in Axel Marx, Jan Wouters and Glenn Rayp (eds), Global Governance of Labour Rights (Edward Elgar Publishing 2015) 118–49, pp. 120–21. 73 Commission, ‘An Agenda for New Skills and Jobs: A European Contribution towards Full Employment’ COM (2010) 682 final; Hugh Frazer, Eric Marlier, David Natali, Rudi Van Dam and Bart Vanhercke, ‘Europe 2020: Towards a More Social EU?’ in Eric Marlier, David Natali and Rudi Van Dam (eds), Europe 2020: Towards a More Social EU? (Peter Lang 2010) 11–40, p. 18. 74 Commission, ‘An Agenda for New Skills and Jobs: A European Contribution towards Full Employment’ COM (2010) 682 final, p. 10. 75 Commission, ‘Youth on the Move: An Initiative to Unleash the Potential of Young People to Achieve Smart, Sustainable and Inclusive Growth in the European Union’ COM (2010) 477 final, p. 13. 76 Ibid 14. 77 Ibid 13. 78 Council Recommendation on establishing a Youth Guarantee [2013] OJ C120/1.

Disability in EU labour law beyond non-discrimination  157 those with disabilities – who face multiple barriers such as social exclusion, poverty or discrimination are included in the scheme and are registered with the relevant employment services.79 The central focus on employment in the ten-year strategy has ensured that the EES, envisaged under Article 148 TFEU, became part of the Europe 2020 Growth Strategy, which brought the EES more closely together with the economic side of EU policy, and resulted in it being implemented through the European Semester. This annual cycle of economic and fiscal policy coordination occurs between November and January each year, with the presentation of the Commission’s Annual Growth Survey (AGS).80 In the Employment Guidelines of 2010, the objective of promoting the employment and social inclusion of people with disabilities is mentioned in Guidelines 7 and 10, respectively. In this context, Member States were urged to increase participation of people with disabilities and other vulnerable groups in the labour market, by (inter alia) removing barriers. Effective anti-discrimination measures to ensure equal opportunities were also pinpointed as the most important means to ensure inclusion in the labour market.81

5.

DISABILITY RIGHTS BEYOND 2020

5.1

The Influence of the CRPD

EU disability law was strongly reinforced by the entry into force for the EU of the CRPD. Its effects and spill-overs on labour and employment policies in the Union are becoming increasingly apparent. The emphasis on the specific needs of people with disabilities in the Employment Guidelines was strengthened following the ratification of the CRPD.82 The rights enshrined in the UN Convention have become part of EU law to the extent that the EU has competence in the relevant field.83 Article 27 CRPD, encompassing the right to work and employment, stresses, inter alia, the requirement for States Parties to promote ‘employment opportunities and career advancement for people with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment’. Furthermore, as discussed elsewhere in this

Ibid Recital 8. See generally J Timo Weishaupt and Katja Lack, ‘The European Employment Strategy’ (n 64). 81 Guidelines 7 and 10 Council Decision 2010/707/EU on guidelines for the employment policies of the Member States [2010] OJ L308/46. 82 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume; see also supra Charles O’Mahony and Shivaun Quinlivan, ‘The EU Disability Strategy and the Future of EU Disability Policy’, in this volume. 83 Marco Fasciglione, ‘Article 27 of the CRPD and the Right of Inclusive Employment of People with Autism’ in Valentina Della Fina and Rachele Cera (eds), Protecting the Rights of People with Autism in the Fields of Education and Employment: International, European and National Perspectives (Springer 2015) 145–70 at 153. See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 79 80

158  Research handbook on EU disability law Research Handbook,84 the EDS provides for a comprehensive framework, committing the European Commission to empower people with disabilities and to remove barriers in society. The EDS builds on the UN Convention, and its objectives are pursued by means of actions in eight priority areas, including employment. In the EDS, the reduction of unemployment is considered to be an important means of achieving social inclusion and participation. The EDS aims, in particular, to improve the employment situation of women and men with disabilities through recognition of their right to work, including the opportunity to gain a living by work freely chosen or accepted on an open, inclusive and accessible labour market. Several key action points were identified in the EDS, including optimizing the use of the Europe 2020 Strategy for the benefit of people with disabilities. The Commission stressed that the annual Europe 2020 assessment should give due consideration to the situation of people with disabilities, and that the European Social Fund (ESF) should be used to promote labour market integration of people with disabilities and other vulnerable groups.85 In 2015, the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) formulated its Concluding Observations on the initial report of the European Union, in which it expressed its concern that there was still a lack of a targeted strategy for the implementation of the UN Convention in all EU institutions.86 With regard to the right to work and employment, the CRPD Committee was concerned about the high unemployment rates for persons with disabilities, especially women with disabilities and individuals with intellectual and/or psychosocial disabilities, in comparison with other population groups in the EU. The Committee therefore recommended that: the European Union takes effective action to measure the employment of persons with disabilities and to increase their employment rate in the open labour market, including by providing training for member States on reasonable accommodation and accessibility in the context of employment.87

In February 2017, a progress report was published by the European Commission, presenting the achievements up to 2016 with regard to the implementation of the EDS.88 Regarding the field of employment, the Commission concluded that despite efforts to increase the labour market participation of people with disabilities and awareness raising related to their employment status, the employment rate of people with disabilities remained very low. Discrimination and the lack of equal opportunities in the labour market continued to be among the main obstacles to the full inclusion of people with disabilities in society. According to the Commission, the employment situation of women and men with disabilities needed to be improved through quality jobs in open, inclusive and accessible work environments.89

84 See supra Charles O’Mahony and Shivaun Quinlivan, ‘The EU Disability Strategy and the Future of EU Disability Policy’, in this volume. 85 Commission Staff Working Document, ‘Initial Plan to Implement the European Disability Strategy 2010–2020 List of Actions 2010–2015’ SEC (2010) 1324 final. 86 Committee on the Rights of Persons with Disabilities (CRPD Committee), Concluding Observations to the European Union, UN Doc. CRPD/C/EU/CO/1 (2015) para 8. 87 Ibid paras 64 and 65. 88 Commission Staff Working document, ‘Progress Report on the Implementation of the European Disability Strategy (2010–2020)’ SWD (2017) 29 final. 89 Ibid 9.

Disability in EU labour law beyond non-discrimination  159 5.2

The Influence of the European Pillar of Social Rights

The EPSR, established in 2017 at the Gothenburg Social Summit,90 relaunched an ambitious EU ‘Social Agenda’, aiming to improve working and living conditions in the euro-zone area.91 The EPSR contains 20 principles, which are structured around three core themes, all of which are important for people with disabilities: equal opportunities and access to the labour market; fair working conditions; and social protection and inclusion.92 Presented as the highest commitment to social rights in the EU to date, the Pillar has also raised expectations with regard to ensuring consistent disability mainstreaming at both the EU and national levels, as the active inclusion of people with disabilities is identified as one of the essential components for efficient employment and social outcomes in the EU. This is reflected in the fact that several cross references are made to the CRPD in the EPSR.93 In addition, Principle 17 states that ‘people with disabilities have the right to income support that ensures living in dignity, services that enable them to participate in the labour market and in society, and a work environment adapted to their needs’. Disability is also acknowledged to be among the grounds of protection contained in Principle 3 of the EPSR, which specifies that equal treatment and equal opportunities apply across the spheres of ‘employment, social protection, education, and access to goods and services available to the public’.94 A well-adapted workplace, which forms a central principle in the current EU legislative framework concerning health and safety at work, is also substantiated in the EPSR in two concrete principles, one of which specifically addresses the needs of people with disabilities. As seen above, Principle 17 states that ‘people with disabilities have the right to a work environment adapted to their needs’. Additionally, Principle 10 provides for the right of all workers to a high level of protection of their health and safety at work, and a working environment adapted to their professional needs (one which enables them to prolong their participation in the labour market).95 Although the Commission Staff Working Document accompanying the Commission Communication on establishing the EPSR does not explicitly recognize a disability perspective attaching to this right,96 one might argue that, given the universality of the right

Interinstitutional Proclamation on the European Pillar of Social Rights [2017] OJ C428/10. Simon Deakin, ‘What Follows Austerity? From Social Pillar to New Deal’ in Frank Vandenbroecke, Catherine Barnard and Geert De Baere (eds), A European Social Union after the Crisis (Cambridge University Press 2017) 192–210 at 200–01; see also Ania Plomien, ‘EU Social and Gender Policy beyond Brexit: Towards the European Pillar of Social Rights’ (2018) 17(2) Social Policy & Society 281, p. 292. 92 Interinstitutional Proclamation on the European Pillar of Social Rights [2017] OJ C428/10; Commission Staff Working Document, ‘Establishing a European Pillar of Social Rights’ SWD (2017) 201 final, p. 3. 93 Commission, ‘Commission Staff Working Document Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Establishing a European Pillar of Social Rights, Brussels, 26.4.2017’ SWD (2017) 201 final, p. 60. 94 Lisa Waddington, Mainstreaming Disability Rights in the European Pillar of Social Rights (n 27) 9. 95 Principles 10(a) and (b), Commission Recommendation on the European Pillar of Social Rights COM (2017) 2600 final. 96 Commission Staff Working Document, ‘Social Scoreboard’ SWD (2017) 200 final. 90 91

160  Research handbook on EU disability law – which is applicable to all workers – and the principle of non-discrimination as proclaimed in the TFEU, in the Employment Equality Directive and in Article 27 CRPD, Principle 10 might shed some light on the potential adoption of further hard or soft law initiatives regarding health and safety at work for disabled employees.97 The same argument could be made when looking into the other principles that are included in the second chapter of the EPSR, covering fair working conditions. These include the right to secure and adaptable employment (Principle 5), fair wages (Principle 6), information on the conditions of employment and dismissal protection (Principle 7), social dialogue and workers’ involvement (Principle 8), and work–life balance (Principle 9).98 Many persons with disabilities are often relegated to low-paid work settings, such as sheltered workshops, without union rights, minimum salary and the possibility to access the open labour market. Furthermore, the absence of adequate training and the persistence of negative stereotypes leaves people with disabilities with fewer opportunities to develop their careers or to return to work after a period of forced leave or sickness.99 The EU, being a Party to the UN Convention, has the obligation to promote and protect the rights of persons with disabilities when developing new legislative and policy initiatives. This is all the more relevant as Article 27 CRPD imposes on States Parties the obligation to safeguard and promote the realization of the right to work by protecting the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work.100 In that connection, the EPSR might further influence the mainstreaming of a disability perspective in future legislative initiatives that seek to deliver new and more effective social rights for all EU citizens. As pointed out by the European Commission, the measures outlined in Principles 3 and 17 EPSR are key elements in enabling people with disabilities to access the rights set out in the other principles of the EPSR, and in facilitating full equality and inclusion at work and in society.101 5.3

Spill-Over and Mainstreaming

The fact that the EU has paid attention to disability through different policy pathways has the potential to create spill-overs and mainstreaming of policies. With the explicit reference to people with disabilities in the EPSR, the question arises as to whether a disability perspective would be mainstreamed more effectively throughout the documents of the European Semester (2018), which were released only five days after the inter-institutional proclamation of the EPSR. Like in the AGS of 2017,102 a brief reference was Lisa Waddington, Mainstreaming Disability Rights in the European Pillar of Social Rights (n 27)

97

12.

98 Commission, ‘Commission Staff Working Document Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Establishing a European Pillar of Social Rights’ (n 93) 60. 99 European Disability Forum (EDF), ‘EDF’s Initial Response to the European Pillar of Social Rights’ (EDF 2016) www​.edf​-feph​.org/​newsroom/​news/​edfs​-initial​-response​-european​-pillar​-social​ -rights accessed 8 February 2020. 100 Including equal opportunities and equal remuneration for work of equal value and safe and healthy working conditions. 101 Commission, ‘Commission Staff Working Document Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Establishing a European Pillar of Social Rights’ (n 93) 65. 102 Commission, ‘Annual Growth Survey 2017’ COM (2016) 725 final, p. 13.

Disability in EU labour law beyond non-discrimination  161 included in the 2018 AGS, which recommended that barriers to employment, such as discrimination, should be reduced, especially for disadvantaged groups, including people with disabilities.103 Furthermore, the Commission underlined the need for an adapted work environment for people with disabilities, as well as targeted financial support to help them to participate fully in the labour market and in society as a whole.104 In addition, the Joint Employment Report (JER) of 2018 concluded that recent gains in employment have not been evenly distributed among different population groups. As labour markets recover, persons with disabilities risk being left behind, and a big gap persists between the employment (and activity) rates of people with and without disabilities.105 Moreover, the revised Integrated Guidelines for 2018, which are still part of Europe 2020, have been adapted in light of the EPSR.106 The Council underlines that access and opportunities for all should be ensured, and poverty and social exclusion should be reduced, in particular by ensuring the effective functioning of labour markets and of social protection systems and by removing barriers to education, training and labour market participation. With regard to people with disabilities, Council Decision 2018/1215/EU specifies that their potential to contribute to economic growth and social development should be further realized.107 Explicit reference to persons with disabilities is made in Guideline 6 of the 2018 Employment Guidelines (on enhancing labour supply and improving access to employment, skills and competences), which affirms that Member States should support an adapted work environment for people with disabilities, including through targeted financial support and services that enable them to participate in the labour market and in society. Additionally, Guideline 8 (on promoting equal opportunities for all, fostering social inclusion and combating poverty) calls for the promotion of inclusive labour markets, open to all, by putting in place effective measures to fight all forms of discrimination and promote equal opportunities for under-represented groups in the labour market, including persons with disabilities.108 In line with the 2018 Guidelines, almost all Country Reports released in May 2019 take into account the employment situation of people with disabilities in a specific section of the document.109 However, the draft 103 Commission, ‘Annual Growth Survey 2018’ COM (2017) 690 final, p. 10; see Sebastiano Sabato, Dalila Ghailani, Ramon Peña-Casas, Slavina Spasova, Federico Corti and Bart Vanhercke, ‘Implementing the European Pillar of Social Rights: What Is Needed to Guarantee a Positive Social Impact’ (European Economic and Social Committee 2018) 22–23 www​.eesc​.europa​.eu/​en/​our​-work/​publications​-other​ -work/​publications/​implementing​-european​-pillar​-social​-rights​-what​-needed​-guarantee​-positive​-social​ -impact accessed 9 February 2020. 104 Commission, ‘Annual Growth Survey 2018’ (n 103) 10. 105 Commission and Council, ‘Joint Employment Report 2018 as adopted by the EPSCO Council on 15 March 2018’ (European Commission 2018) 39 https://​ec​.europa​.eu accessed 9 February 2020. 106 Commission, ‘Commission Staff Working Document Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Establishing a European Pillar of Social Rights’ (n 93) 4–5. 107 Council Decision (EU) 2018/1215 on guidelines for the employment policies of the Member States [2018] OJ L224/4. 108 Ibid. 109 All 2019 Country Reports can be consulted at https://​ ec​ .europa​ .eu/​ info/​ publications/​ 2019​ -european​-semester​-country​-reports​_en accessed 9 February 2020. Commission, ‘Commission Staff Working Document Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Establishing a European Pillar of Social Rights’ (n 93) 4–5.

162  Research handbook on EU disability law country-specific recommendations of the 2019 cycle, published in June 2019, reflect only sporadically on the issue of the integration of people with disabilities in the labour market.110 One could therefore argue that disability has been mainstreamed to a certain extent in the current employment policy documents of the European Semester, but more efforts should be made to mainstream disability issues across the whole of the European Semester, and especially in the country-specific recommendations, as they are a crucial link to national policy development. Although the employment rate of people with disabilities was included as a social indicator in both the AGS and the JER of 2019,111 which concluded that the remaining employment gap in the EU labour market between people with and without disabilities indicates ‘an untapped potential to use their talents’,112 it remains to be seen how this finding will be reflected in forthcoming documents of the 2019–2020 cycle. Another illustration of the possible role of the EPSR as a disability mainstreaming instrument for social legislative initiatives (outside the anti-discrimination realm) is the adoption by the Council of a Directive on Work-Life Balance for Parents and Carers,113 introduced in 2017 by the Commission as part of the Pillar package.114 The Directive (based on Article 153 TFEU) repeals the Parental Leave Directive,115 and applies to all workers, men and women, who have an employment contract or an employment relationship. By adapting and modernizing the EU legal framework, the Directive allows parents and people with caring responsibilities to reconcile more effectively their work and caring duties. The Directive contains an explicit reference to the CRPD in its Preamble,116 and addresses issues such as informal care, parental and paternity leave and carer’s leave. In particular, with regard to persons with disabilities, the Directive encourages Member States to assess whether conditions for access to, and detailed arrangements for, exercising the right to paternity leave, carers’ leave and flexible working arrangements should be adapted to particular needs, such as those of parents with a disability and parents of children with a disability or a long-term illness.117 Member States must transpose the provisions into national law by 2 August 2022.

110 The country-specific recommendations are available at https://​ ec​ .europa​ .eu/​ info/​ publications accessed 5 February 2020. 111 Commission, ‘Annual Growth Survey 2019: For a Stronger Europe in the Face of Global Uncertainty’ COM (2018) 770 final, p. 4; see also Commission, ‘Draft Joint Employment Report from the Commission and the Council accompanying the Communication from the Commission on the Annual Growth Survey 2019’ COM (2018) 761 final (adopted by the EPSCO Council on 15 March 2019). 112 Ibid 52. 113 Directive (EU) 2019/1158 on work-life balance for parents and carers (Work-Life Balance Directive) [2019] OJ L188/79. 114 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on work-life balance for parents and carers and repealing Council Directive 2010/18/EU’ COM (2017) 253 final. 115 Directive 2010/18/EU implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC [2010] OJ L68/13. 116 Preamble recital 4 Work-Life Balance Directive. 117 Preamble recital 37 and Articles 5(8), 6 and 9 Work-Life Balance Directive.

Disability in EU labour law beyond non-discrimination  163

6.

CONCLUDING REMARKS

As demonstrated throughout this chapter, disability issues are at the crossroads of policies on employment, social inclusion, health and safety at work, active ageing and social protection. In the EU legal framework, there are different chapters on social policy and employment policy, with different mechanisms and objectives attaching to them. As a result, different approaches and strategies to disability issues have unfolded in the EU social and employment policy sphere. When examining the social hard law agenda of the EU, outside the anti-discrimination realm, disability is mainly referred to in EU workplace health and safety legislation. This field of labour law is concerned with employment rights and has, from the perspective of the protection of workers, included a workplace accommodation modus. Disability policies have been further enhanced through soft law strategies. In EU employment policy, disability has occupied a central position since the first Employment Guidelines were adopted in 1998. A systematic incorporation of a disability perspective in all employment policies and measures was found to be a powerful means by which to improve the social inclusion of disabled people in the labour market. The emphasis in the EES was on the functioning of the labour market. However, it also placed responsibility on the Member States to pay particular attention, in their employment policies, to the problems that people with disabilities may encounter in their working life. Significant challenges, such as underemployment and social exclusion of people with disabilities, remain apparent in the EU. In addition, achieving an adapted workplace, although inherent to the labour law discourse, remains a demanding ideal. Further efforts are much needed, in order to highlight the capabilities of persons with disabilities and increase their chances on the labour market. As this contribution has shown, these efforts can be encouraged by means of a two-pronged approach, either through hard law initiatives, or by means of softer strategies, or a combination of both. Both the CRPD and the EPSR have reinforced the focus on disability that the EU had maintained in its early employment policies. Furthermore, these two instruments not only provide a means by which to prioritize policies, but also underline the potential of policy mainstreaming. It is clear that policy spill-overs take place in the areas analysed in this chapter. This demonstrates the potential for further mainstreaming of a disability perspective in EU employment and social policy in the years ahead.

10. Freedom of movement for persons with disabilities and coordination of social security within the EU Anne Pieter van der Mei

1. INTRODUCTION Within the European Union (EU), social security is primarily a matter for the Member States. It is up to them to decide for which social risks they wish to set up benefit systems, who is entitled to benefits and under which conditions, and how these systems are financed. The EU is not supposed to meddle in the internal organization of national social security systems. This does not imply, however, that social security constitutes an ‘island beyond the reach of [EU] law’.1 First, when exercising their powers in the field of social security, Member States must comply with EU law and, in particular, the rules on free movement,2 and on equal treatment.3 Second, the Treaty on the Functioning of the European Union (TFEU) orders, and empowers, the EU institutions to adopt measures in the field of social security that are necessary to ensure free movement of persons.4 In furtherance of this power, the EU legislature has adopted Regulation 883/2004,5 which seeks to ensure that EU citizens who exercise their free movement rights enjoy ‘constant social security protection’.6 The Regulation does not guarantee that cross-border movement is neutral in financial terms. Rather, it aims to link the national systems to each other in such a way that those who move from one Member State to another remain subject to the social security legislation of one Member State. Specifically, Regulation 883/2004 determines which Member State must apply its legislation in cross-border situations,

1 Opinion of Advocate General Tesauro, Joined Cases C-120/95 Nicolas Decker v Caisse de maladie des employés privés and C-158/96 Raymond Kohll tegen Union des caisses de maladie EU:​C:​ 1997:​399, para 17. 2 See, for example, Case C-359/13 B. Martens v Minister van Onderwijs, Cultuur en Wetenschap EU:​C:​2015:​118 para  23. 3 See, for example, Case C-282/11 Salgado González EU:​C:​2013:​86, para 37. 4 Article 48 TFEU. 5 Regulation (EC) 883/2004 on the coordination of social security systems [2004] OJ L166/1. Regulation 883/2004 is the ‘basic regulation’ laying down the main coordination principles and the rights conferred upon beneficiaries. It is supplemented by Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems [2009] OJ L284/1, which contains the rules for implementing the main coordination and the required administrative cooperation. 6 Philippa Watson, Social Security Law of the European Communities (Mansell Publishing 1980) 249.

164

Freedom of movement for persons with disabilities  165 and confers upon beneficiaries rights to equal treatment regardless of nationality,7 to export benefits,8 and to aggregation of periods of insurance, work or residence.9 This coordination system is of particular importance for persons with disabilities. Since disability arises due to the interaction between individuals with impairments and external barriers in society, persons with disabilities may not always be able to fully and effectively participate in society and the labour market. Their earning capacity may be reduced and, more often than in the case of those without disabilities, persons with disabilities may be in need of social benefits. Thus, proper social security coordination is of the utmost importance to ensure that individuals with disabilities can exercise their free movement rights on an equal basis with others. This contribution analyses the EU coordination regime through the lens of persons with disabilities. Like anyone else, persons with disabilities may become unemployed, be in need of health care, bear financial responsibility for children or retire. However, the present analysis does not include the coordination rules for unemployment benefits,10 healthcare,11 family benefits,12 and old-age pensions.13 Rather, the focus will be on those benefit systems which have specifically been put in place for persons with disabilities or which are of special significance for them. In particular, the contribution discusses the coordination rules for sickness and invalidity benefits (section 2), special non-contributory cash benefits (section 3) and long-term care benefits (section 4). Section 5 presents concluding remarks.

2.

SICKNESS AND INVALIDITY BENEFITS

2.1

Coordination Rules

Sickness and invalidity constitute classic social security risks for which Regulation 883/2004, like its predecessors Regulation 3/58 and Regulation 1408/71,14 has reserved separate chapters.15 Regulation 883/2004 does not define the concepts of ‘sickness’ and ‘invalidity’. It is for the Member States to define those concepts. Essentially, however, the relevant chapters of the Regulation apply to income-replacing benefits that are granted to persons whose ability to work and generate an income is reduced by a physical or psychological impairment. The difference between sickness and invalidity essentially lies in the duration or permanence of

9

Article 4 Regulation 883/2004. Article 7 Regulation 883/2004. Article 6 Regulation 883/2004. 10 Articles 61–65a Regulation 883/2004. 11 Articles 17–35 Regulation 883/2004. 12 Articles 67/69 Regulation 883/2004. 13 Articles 50–60 Regulation 883/2004. 14 Council Regulation 3 concerning social security for migrant workers [1958] OJ 30/561; Council Regulation (EEC) 1408/71 on the application of social security schemes to employed persons and their families moving within the Community [1971] OJ L149/2. 15 Title III, Chapter 1, Articles 17–35 (sickness benefits); Title III, Chapter 4, Articles 44–49 (invalidity) Regulation No 1408/71. 7 8

166  Research handbook on EU disability law the impairment and the resulting incapacity to work. Sickness concerns temporary inability to work and gain income; invalidity implies a long-lasting or permanent incapacity.16 In some Member States, the social security systems for sickness and invalidity are separated. When a person becomes unable to work, the competent institutions establish whether the impairment, and the consequent incapacity to work, is either temporary or long-lasting. The person concerned receives either a sickness benefit or an invalidity benefit. In other Member States, by contrast, sickness and invalidity systems apply chronologically. A person who, because of an impairment, is unable to work first receives – for a certain period of time – a sickness benefit and, if the inability to work persists, thereafter an invalidity benefit. With regard to invalidity benefits, another distinction is relevant. Some Member States have chosen a system based on risk; others have opted for an accrual system. Under the former, the amount of invalidity benefits is independent of the duration of insurance. The person concerned must be insured at the moment that the risk of invalidity materializes, but for the amount to be received, it is immaterial for how long s/he has been insured. Under accrual systems, the amount of the benefit depends on the length of insurance: the longer someone has been insured, the higher the benefit will be. The coordination regime for sickness cash benefits is relatively simple.17 Such benefits are governed and awarded by the Member State of insurance, the so-called competent State. For self-employed persons, the main rule is the lex loci laboris: the competent State is the one where they pursue their economic activities.18 For economically inactive people, the lex loci domicilii applies: they are subject to the legislation of the Member State where they reside.19 Beneficiaries are entitled to a sickness benefit in accordance with the legislation of the competent State, even if at the moment they become sick and incapable for work they are staying,20 or residing,21 in another Member State. In other words, sickness benefits are exportable. The chapter on invalidity benefits distinguishes between two situations.22 The first concerns people who have been subject to the legislation of two or more Member States, all of which have chosen a risk-based system for invalidity benefits.23 As in the case of sickness benefits, such persons are entitled to an invalidity benefit in the Member State of employment when they are insured and satisfy the eligibility criteria in that Member State at the moment at which the incapacity to work (followed by invalidity) occurs. Persons who have only been subject to risk systems can only get a benefit in the State concerned, and not in any other Member State.

Case C-503/09 Lucy Stewart v Secretary of State for Work and Pensions EU:​C:​2011:​500, para 38. The chapter on sickness benefits applies to cash benefits and benefits in kind. In brief, the former are meant to compensate for loss of income; the latter concern payment or reimbursement of the costs of medical care. 18 Article 11(1)(a) Regulation 883/2004. 19 Article 11(1)(e) Regulation 883/2004. 20 Article 19 Regulation 883/2004. 21 Article 17 Regulation 883/2004. 22 In practice there may be a third situation which concerns persons who have only been subject to the legislation of one Member State. The chapter on invalidity does not contain a separate provision governing this situation. There is also no need for this. On the basis of the general rules for determining the applicable legislation and the general export provision (Article 7 Regulation 883/2004), such a person is entitled to invalidity benefits in accordance with the legislation of the competent State, also if s/he resides in another Member State. 23 Article 44 Regulation 883/2004. 16 17

Freedom of movement for persons with disabilities  167 The second situation involves individuals who have been subject to the legislation of two or more Member States, at least one of which provides for an accrual benefit system for invalidity benefits.24 The coordination rules applicable to such persons differ. For them, it is not required that they are insured at the moment they become incapable for work. Rather, such individuals may claim an invalidity benefit in each Member State where they have been insured against the risk of invalidity in accordance with the so-called pro rata method.25 Persons who find themselves in this third situation may therefore be entitled to two or more benefits. Generally, the coordination regimes for sickness cash benefits and invalidity benefits each function quite satisfactorily.26 This is illustrated by the facts that the regimes have not undergone major changes in the past decades and that, in comparison with the coordination rules for other types of benefits, they trigger notably little case law. Two issues, however, have proven to be somewhat controversial, and are worth highlighting. 2.2

Gaps in the Coordination Rules for Invalidity Benefits

First, the coordination rules for invalidity benefits do not provide a solution in all situations. The recent case of Vester is illustrative.27 The case concerned a Dutch national, Ms Vester, who lived in Belgium and had worked there for many years. In 2015, she became unemployed and received unemployment benefit in Belgium. After four days, however, Ms Vester notified the competent Belgian insurance institution that she was unfit for work. The competent institution granted her a sickness benefit. One year later, Ms Vester acquired invalidity status in Belgium. Belgian legislation confers a right to invalidity benefit to persons who have first received a sickness benefit and thereafter have still not sufficiently recovered. Ms Vester, however, was denied a Belgian invalidity benefit on the ground that she had only completed four days of insurance in Belgium on the date on which she was declared incapable for work.28 Ms Vester also applied for an invalidity benefit in the Netherlands. Her application was rejected on the ground that she had not been incapable for work for at least two years, as required by the relevant Dutch legislation. In the second year after becoming unfit for work, Ms Vester was not entitled to an invalidity benefit in either one of the two Member States involved. The Court of Justice of the EU (CJEU) faced a tricky coordination problem. Ms Vester could not claim an invalidity benefit because Belgian legislation provided for a waiting period of one year, whereas the Netherlands had opted for a two-year waiting period. In themselves, these are wholly legitimate policy choices, which EU law has to respect. Moreover, the competent authorities in the two Member States applied the EU coordination rules for invalidity benefits correctly. Yet, the simultaneous application of Belgian and Dutch legislation did lead – in Ms Vester’s case – to a situation Article 46 Regulation 883/2004. See Article 46 Regulation 883/2004, which essentially refers to the pro rata system that also applies to old-age pensions. 26 Herwig Verschueren, ‘Regulation 883/2004 and Invalidity and Old-Age Pensions’ (2009) 11(1–2) European Journal of Social Security 143, p. 144. 27 Case C-134/18 Maria Vester v Rijksinstituut voor ziekte- en invaliditeitsverzekering EU:​C:​2019:​ 212. 28 Article 57 of Regulation 883/2004 permits the competent institution to refuse to provide benefits in respect of periods completed under the legislation it applies if those periods are less than one year and if, taking only those periods into account, no right to a benefit is acquired under that legislation. 24 25

168  Research handbook on EU disability law which was hard to compare with the notion of freedom of movement. In essence, then, the case revealed a gap in coordination regimes for invalidity benefits. The Court filled this lacuna by relying on the Treaty provisions on free movement of workers. It observed that the Dutch legislation on these benefits does not, a priori, create a distinction between migrant workers and sedentary workers. However, in practice, during the second year of unfitness for work, it does make such a distinction. Workers who remain living in the Netherlands can claim benefits for two years; Ms Vester, however, could not receive such benefits. Hence, the Court found that the application of Dutch law to a migrant worker in a situation such as Ms Vester’s produces effects that are incompatible with the objective of ensuring free movement of workers. The principle of sincere cooperation requires the competent Dutch authorities to confer upon someone like Ms Vester the same benefits as a worker who becomes unfit to work,29 but has never exercised her EU free movement rights.30 Vester reveals a pro-active attitude on the part of the CJEU. Regulation 883/2004 does not guarantee that cross-border movement is neutral in financial terms, and the Court could have held that Ms Vester was not entitled to a benefit simply because of differences between national laws. The CJEU decided, however, that the gap in social security had to be filled. It imposed on the Dutch authorities the duty to achieve the aim of free movement of workers and to confer upon someone like Ms Vester a benefit. It is not crystal clear what kind of benefit must be given. One could understand the ruling to mean that someone in the situation of Ms Vester must be given a sickness benefit, as sedentary workers receive such a benefit during the second year of unfitness for work.31 However, the ruling does not exclude the possibility for the Dutch authorities to disapply the two-year waiting period rule and to provide an invalidity benefit instead.32 2.3

Medical Examinations

A second issue concerning sickness and invalidity benefits that has caused some controversy concerns medical examinations. Both types of benefits are awarded in accordance with the legislation of the competent Member State and, as a general rule, it is also up to the authorities of this State to establish the existence of sickness, invalidity and incapability for work. This is different, however, in situations in which the insured person stays or resides outside the competent State. The logical starting point is that the incapability for work is, rather, to be established by a doctor or medical officer in the State where the person concerned stays or resides. The institution in the competent State is bound by the certificate issued by the doctor or officer concerned, unless it makes use of the option to have the person examined by a doctor of its own choice.33 Article 4(3) TEU. Case C-134/18 Maria Vester v Rijksinstituut voor ziekte- en invaliditeitsverzekering EU:​C:​2019:​ 212, para 48. 31 Anne-Pieter van der Mei and Pauline Melin, ‘Overview of Recent Cases before the Court of Justice of the European Union (February 2019–June 2019)’ (2019) European Journal of Social Security 272, p. 274. 32 Ger Essers and Frans Pennings, ‘Mobiele werknemers tussen wal en schip: hoe een brug te slaan?’ [2020] Tijdschrift Recht en Arbeid 2, p. 5. 33 Case C-22/86 Giuseppe Rindone v Allgemeine Ortskrankenkasse Bad Urach-Münsingen EU:​C:​ 1987:​130, para 28. For a similar conclusion with regard to benefits paid in respect of accidents at work 29 30

Freedom of movement for persons with disabilities  169 Questions have arisen as to whether the certificates concerned must be accepted also in situations in which the competent institution that has to pay the benefits has serious doubts about the correctness of the medical opinions stated therein. In Paletta II,34 the Court was faced with a German employer who had serious doubts about the finding of an Italian doctor that one of his employees (who was on holiday in Italy) was sick, and hence entitled to sickness benefits. The Court held that the worker or insured person him/herself cannot be required to prove that the information stated in the certificate is actually correct or to produce additional evidence that s/he is actually incapable for work. However, the Court did accept that the institutions in the competent State may submit evidence to support a finding that the person is capable for work. EU law does not cover possible abuses or fraudulent behaviour.35 Another issue concerns the place where the medical examination will take place and whether an insured person staying or residing in another Member State can be required to travel (back) to the competent Member State to be examined. A distinction is to be made here between sickness and invalidity. With regard to the former, the Court held in Rindone that an insured person cannot be required to travel to the competent State to undergo a medical examination there,36 as the journey may affect his/her health and impair recovery.37 However, according to the CJEU, a worker suffering from invalidity cannot be presumed to run that risk. Moreover, examinations for sickness and invalidity differ. In particular, national rules with regard to invalidity vary from Member State to Member State. In order to determine the degree of invalidity and the remaining work capacity, the necessary examinations require not only the participation of doctors, but also of employment and legal experts. If all those experts were required to travel to the Member State where the insured person is staying or residing, substantial expense would be incurred, and effective examinations might not be possible. Thus, for examinations in relation to invalidity benefits, the insured person concerned can be required to travel back to the competent State, provided that they do not have to bear travel and accommodation costs themselves.38

3.

SPECIAL NON-CONTRIBUTORY CASH BENEFITS

Persons with disabilities who are unable to generate sufficient income are not necessarily, or always, entitled to a sickness or invalidity benefit. If they are entitled to such, the amount of benefit may not be sufficient to cover the basic cost of living. Such persons may therefore be dependent on public financial support, which traditionally mainly consisted, and often still does, of social assistance. This section does not address questions concerning the conditions

and occupational diseases, see Case C-28/85 Alexandre Deghillage v Caisse primaire d’assurance maladie de Maubeuge EU:​C:​1986:​113. 34 Case C-206/96 Brennet AG v Vittorio Paletta EU:​C:​1996:​182. 35 Ibid para 28. 36 Case C-22/86 Giuseppe Rindone v Allgemeine Ortskrankenkasse Bad Urach-Münsingen EU:​C:​ 1987:​130. 37 Ibid para 21. 38 Case C-344/89 Manuel Martínez Vidal v Gemeenschappelijke Medische Dienst EU:​C:​1991:​277, paras 14–16. See also Case C-279/97 Bestuur van het Landelijk instituut sociale verzekeringen v C.J.M. Voeten and J. Beckers EU:​C:​1998:​599. The relevant rules on medical examinations are now laid down in Article 87 of Regulation 883/2004 and Article 27 of Regulation 987/2009.

170  Research handbook on EU disability law under which certain persons with disabilities who do not work, like other economically inactive persons, may be entitled to social assistance benefits when they move to another Member State. The focus will rather be on a special type of benefits aimed at offering minimum means of subsistence: special non-contributory cash benefits. In essence, these are minimum subsistence benefits for specific categories of financially vulnerable persons, such as the elderly or individuals with disabilities. Since the 1960s, various Member States have introduced such benefit systems to award beneficiaries minimum means of subsistence under less stringent conditions than classic social assistance, for example, by excluding them from a full means-test requiring beneficiaries to sell property. While the key principles governing the coordination of sickness and invalidity benefits have never been seriously controversial, the opposite holds true for special non-contributory benefits. Regulation 883/2004 does contain specific coordination rules for such benefits,39 but these are the culmination of much legal–political controversy and a decades-long interplay between the CJEU and the EU legislator. One commentator has aptly spoken of the ‘special non-contributory benefits saga’.40 3.1

Towards a Coordination Regime for Special Non-Contributory Benefits

The main controversy with regard to the coordination of such benefits concerns their exportability. The exportability of benefits facilitates free movement, but Member States have always opposed this, for various reasons. The first concerns the financing of benefit systems. Special non-contributory benefits are funded out of taxes predominantly paid by residents. If Member States were obliged to grant non-residents such benefits too, the financial implications could be severe. Second, the amount of special non-contributory benefits is fixed in accordance with the costs of living in the State concerned. Exporting benefits could lead to a situation in which the beneficiary receives either too much or too little. Finally, special non-contributory benefit systems constitute an expression of welfare solidarity among residents. Individuals who move abroad give up their ‘membership’ of the national solidarity circle. In legal terms, the battles fought concerned the question as to whether special non-contributory benefits are covered by the coordination regime for social security. If such benefits were to be regarded as social security, they would be covered by the regime, including the rule on export. If, however, such benefits would have to be regarded as social assistance,41 they would be excluded from the coordination rules and not be exportable. At first glance, one might be tempted to say that special non-contributory benefits resemble social assistance above all else. After all, they serve the same aim of offering minimum means of subsistence and, like social assistance, they are funded out of tax revenues and granted irrespective of prior payment of taxes or contributions. However, special non-contributory benefit Article 70 Regulation 883/2004. Jasmin Hiry, ‘Fitting National Social Security Benefits into European Categories: Are Long-Term Care Benefits Covered by the Scope of Regulation 883/2004?’ (Maastricht Centre for European Law 2017) 8 www​.maastrichtuniversity​.nl/​sites/​default/​files/​mcel​_master​_working​_paper​_20182​_hiry​.pdf accessed 1 February 2020. See also Anne Pieter van der Mei, ‘Regulation 1408/71 and Coordination of Special Non-contributory Benefit Schemes’ (2002) 27(5) European Law Review 551; and Herwig Verschueren, ‘Special Non-contributory Benefits in Regulation 1408/71, Regulation 883/2004 and the Case Law of the ECJ’ (2009) 11 European Journal of Social Security 217. 41 Article 3(5) Regulation 883/2004; Article 4(4) Regulation 1408/71. 39 40

Freedom of movement for persons with disabilities  171 systems are also social security-like, because they are linked to a specific social risk, such as old age or invalidity, and are often administered by social security institutions. Special non-contributory benefits combine features of both social assistance and social security, and it was thus not readily apparent whether or not they fell within the scope of the coordination regime. From the early 1970s, various cases were referred to the CJEU for settlement of the issue. Two rulings are illustrative for the manner in which the Court did so: first Biason,42 and then Piscitello.43 The former case concerned an Italian woman who received a supplementary allowance in France in addition to an invalidity pension. This tax-funded allowance was withdrawn the moment Mrs Biason moved to Italy. She claimed that the withdrawal was inconsistent with the export provision enshrined in Regulation 3/58. Before the CJEU, the European Commission strongly argued against the exportability of ‘mixed’ benefits. The export rule would only apply to insurance-like benefits. Such benefits would have to be regarded as ‘deferred income’ and, indeed, be exportable. Special non-contributory benefits, however, are usually financed out of the public budget and were to be regarded as an expression of the welfare solidarity between the residents of a State. Individuals who had moved to another Member State, like Mrs Biason, would no longer be residents and part of shared welfare solidarity. The Court disagreed and held that in circumstances when a benefit is linked to a social security branch covered by the coordination regime (such as invalidity benefits) and granted on the basis of a legally defined status without assessment of need in the individual case (which is characteristic of classic social assistance), it must be regarded as a social security benefit falling within the scope of the coordination regime.44 According to the Court, this also implied portability. Regulation 3/58 entitled Member States to exclude certain non-contributory benefits from the export provision by including benefits in an annex to the Regulation, for ‘benefits not payable abroad’. The French supplementary allowance, however, was not set out in the annex. Therefore the CJEU concluded that a person such as Mrs Biason could export her supplementary allowance.45 The line of reasoning followed by the CJEU in Biason was rather formal. Basically, the Court reasoned that if France had wished to limit the export of the benefit in question, it should have included it in the relevant annex. As France had not done so, Mrs Biason could ‘simply’ export her benefit. The possibility of excluding certain benefits from the export provision was abolished, however, when Regulation 1408/71 entered into force. Contrary to what one might have expected, though, this did not alter the CJEU’s approach on the portability of mixed benefits, as the ruling in Piscitello demonstrates. Mrs Piscitello was an Italian national who lived and received a social aid pension in Italy. The benefit was granted to all individuals aged 65 years and older whose income fell below the minimum income level fixed by law. The benefit was Mrs Piscitello’s only source of income. When she transferred her residence to Belgium, the Italian authorities withdrew the pension on the ground that she was no longer resident in Italy. The question arose as to whether

Case C-24/74 Caisse régionale d'assurance maladie de Paris v Giuseppina Biason EU:​C:​1974:​99. Case C-139/82 Paola Piscitello v Istituto nazionale della previdenza sociale (INPS) EU:​C:​1983:​ 126. 44 Case C-24/74 Caisse régionale d’assurance maladie de Paris v Giuseppina Biason EU:​C:​1974:​ 99, paras 15–16. 45 Ibid paras 17–22. 42 43

172  Research handbook on EU disability law Mrs Piscitello could rely on Regulation 1408/71 to export the benefit. Before the CJEU, the Italian and British governments had argued that the conclusions drawn in Biason could not be extended to the case of Mrs Piscitello. Biason concerned the exportability of an allowance that was granted as a supplement to another social security benefit. Mrs Piscitello’s benefit, however, constituted her only source of income. It was a benefit financed solely out of public funds that served for Mrs Piscitello as a social assistance benefit. The exportability of benefits, so the two governments argued, would cause disruption to the national systems. The Court was not persuaded. It had no difficulty in concluding that the benefit system fell within the Regulation,46 and that the export provision applied. Since Regulation 1408/71 did not contain specific provisions applying to such a pension, the Court ruled ‘that the waiver of residence clauses … of that regulation applies to the benefit in question’.47 Piscitello implied that all benefits covered by Regulation 1408/71 were, in principle, also exportable. On the one hand, this seemed to have far-reaching consequences. The conclusion that mixed minimum subsistence benefits that are not granted as a supplement to other social security benefits can be exported implied that also persons who have never paid social security premiums or contributions could export benefits. More generally, Piscitello raised the fundamental issue as to whether Member States had been forced to extend their welfare responsibility to certain categories of non-residents. On the other hand, however, the implications of Piscitello did not have to be so problematic. The export provision contained in Regulation 1408/71 included the phrase ‘[s]ave as otherwise provided in this regulation’,48 and the Court had expressly stated that mixed benefits are only exportable because the Regulation did not contain any specific provision for such benefits.49 In covert terms, the CJEU thus called upon the legislator to take legislative action and to establish specific coordination rules for special non-contributory benefit systems. The legislator indeed did so in 1992. The benefits were brought within the scope of Regulation 1408/71 and defined as benefits that are intended either ‘to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security’ included in the Regulation or ‘solely as specific protection for the disabled’.50 The exportability was restricted by a new provision, which stipulated that special non-contributory benefits shall be granted exclusively in the territory of the Member State in which beneficiaries reside,51 provided such benefits had been listed in a newly created Annex. The establishment of this specific coordination regime did not end the controversies that already existed, however. The CJEU had allowed the EU legislator to adopt such a regime and accepted its legality,52 but this did not imply that the Court had given the legislator a free hand.

46 Case C-139/82 Paola Piscitello v Istituto nazionale della previdenza sociale (INPS) EU:​C:​1983:​ 126, paras 8–13. 47 Ibid para 16. 48 Article 10(1) Regulation 1408/71. 49 Case C-139/82 Paola Piscitello v Istituto nazionale della previdenza sociale (INPS) EU:​C:​1983:​ 126, para 16. 50 Article 4(2)(a) Regulation 1408/71, as inserted by Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community [1992] OJ L136/1. 51 Article 10(a) Regulation 1408/71. 52 Case C-20/96 Kelvin Albert Snares v Adjudication Officer EU:​C:​1997:​518.

Freedom of movement for persons with disabilities  173 Specifically, as the ruling in Jauch demonstrates,53 the Court did not accept that all benefits listed in the Annex were necessarily exempted from the export rule. This only holds true for benefits that are actually ‘special’ and ‘non-contributory’.54 In Jauch, the CJEU concluded that Austria had wrongly listed care allowances which were intended to provide care and assistance, in the form of a flat-rate payment, to individuals reliant on care. In the Court’s view, the allowances were to be classified as (exportable) sickness benefits in cash. In addition, because they were financed through an increase in sickness insurance contributions, the Court concluded that they were actually contributory in nature.55 Jauch and Leclere implied an order for the legislature to scrutinize the Annex and to check whether benefits could actually be regarded as special non-contributory benefits.56 The issue became more pertinent when, in the early 2000s, the negotiations for the accession of ten new Member States started. The candidate countries all claimed to have benefit systems that resembled the systems of the ‘old’ Member States and insisted on the inclusion of their benefits in the Annex. The European Commission, however, rejected the majority of the applications, as the benefits did not satisfy the criteria developed in the Court’s case law. What the Commission did do, however, was to propose a new definition of the notion of ‘special non-contributory benefits’ and to ‘clean up’ the Annex. Thus, in 2005, Regulation 1408/71 was amended to tighten the definition of special non-contributory benefits. Special non-contributory cash benefits were now defined as benefits that are either: (i) linked to a specific social security risk, and guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or (ii) offer solely specific protection for persons with disabilities, ‘closely linked to the said person’s social environment in the Member State concerned’. The list in the Annex was replaced by an entirely new, and much shorter, list.57 Again, however, the controversy did not stop there. Prior to the entry into force of the Treaty of Lisbon in 2009, the coordination regime could only be altered by unanimity in the Council. Three Member States – Finland, the United Kingdom and Sweden – had threatened to veto the 2005 amendment if some of their benefit systems were not added to the Annex, even though these benefits did not satisfy the criteria for being classified as special non-contributory benefits. The other Member States and the European Parliament gave in. The Commission, however, decided to go to Court and to ask for the annulment of the provisions in the Annex, mentioning one Finnish, one Swedish and three UK benefits. The benefits concerned were all meant for the protection of persons with disabilities. With regard to benefits for such individuals, the Court observed that they can be deemed to be special only if their sole purpose is to protect disabled individuals, and when they are closely linked to the social environment in the

Case C-215/99 Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter EU:​C:​2001:​139. Ibid paras 20–22. 55 Ibid para 33. 56 Case C-43/99 Ghislain Leclere and Alina Deaconescu v Caisse nationale des prestations familiales EU:​C:​2001:​303, in which the Court found that Luxembourg had incorrectly included maternity allowances in the Annex. The allowances concerned were granted to every pregnant woman and every woman who has given birth and, hence, were not considered to be ‘special’. 57 See further Rob Cornelissen, ‘Commissie t. Raad en Parlement – Strijd tussen de Europese Titanen’ in Ger Essers, Anne Pieter van der Mei and Filip van Overmeiren (eds), Vrij verkeer van personen in 60 arresten – de zegeningen van het Europees burgerschap (Kluwer 2012) 323–32. 53 54

174  Research handbook on EU disability law Member State concerned.58 Basically, the Court affirmed that only benefits that offer disabled persons a minimum income can be regarded as special non-contributory cash benefits, and it is only such benefits that are exempted from the export rule.59 3.2

The Current Coordination Regime for Special Non-Contributory Benefits

While the Court is still occasionally asked to clarify issues on special non-contributory cash benefits,60 the legal picture is now, as such, clear: Regulation 883/2004 applies to such benefits and, provided they are actually intended to provide minimum means of subsistence and are included in the Annex, Member States may reserve them for individuals residing on their territory. In exceptional circumstances, however, the situation may be different. Consider Hendrix.61 The case concerned a Dutch benefit providing young persons with disabilities a minimum income. The benefit was correctly listed in the Annex of Regulation 883/2004 as a special non-contributory benefit and thus, in principle, non-exportable. In Hendrix, the Dutch authorities had ended payment of the benefit concerned to a young disabled person, Mr Hendrix, working in the Netherlands at the moment he moved to Belgium. On the basis of the coordination rules for special non-contributory benefits, this was the correct decision, but the Court found that the application of a residence requirement in a given case must be in conformity with the Treaty rules on free movement of workers. In casu, the Court observed that Dutch legislation did not wholly exclude exportability, as it provided that the condition of residence for entitlement to the benefit concerned may be waived when such condition leads to an ‘unacceptable degree of unfairness’.62 Such a hardship clause must be applied in light of the aim of facilitating free movement of workers. In the end, Mr Hendrix was indeed entitled to the benefit concerned, including during the time he lived in Belgium. Hendrix raises questions,63 but it is submitted that it is best regarded as a unique ruling – probably not having much significance in situations in which national law does not provide for a hardship clause. The case does not alter the main rule, namely that correctly listed special

58 Case C-299/05 Commission of the European Communities v European Parliament and Council of the European Union EU:​C:​2007:​608, para 53. 59 Ibid. With regard to virtually all of the benefits that Finland, the United Kingdom and Sweden had included in the Annex, it was found that they did not aim to offer means for minimum subsistence, because they also intended to help the disabled person to overcome, as far as possible, his or her disability in everyday activities. 60 See, for instance, Case C-154/05 J.J. Kersbergen-Lap and D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen EU:​C:​2006:​449 and Case C-265/05 José Perez Naranjo v Caisse régionale d’assurance maladie (CRAM) Nord-Picardie EU:​C:​2007:​26. 61 Case C-287/05 D.P.W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen EU:​C:​2007:​494. 62 Ibid para 57. 63 See Charlotte O’Brien, ‘Case C–212/05, Gertraud Hartmann v Freistaat Bayern; Case C–213/05, Wendy Geven v. Land Nordrhein–Westfalen; Case C–287/05, D.P.W. Hendrix v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen’ (2008) 45(2) Common Market Law Review 499 at 512; see also Frans Pennings, ‘Hendrix – Hoe een jonggehandicapte onverwacht profiteert vanhet vrij verkeer van werknemers’ in Ger Essers, Anne Pieter van der Mei and Filip van Overmeiren (eds), Vrij verkeer van personen in 60 arresten – de zegeningen van het Europees burgerschap (Kluwer 2012) 315–22.

Freedom of movement for persons with disabilities  175 non-contributory benefits are non-exportable. From the perspective of the Member States and their ability to maintain special non-contributory benefit systems for groups such as the elderly or people with disabilities, this general rule is to be supported. Such benefit systems are very similar to social assistance and are an expression of the Member States’ territorially limited welfare responsibility. From the perspective of free movement, however, the current regime for special non-contributory benefits is more problematic. Individuals with disabilities who wish to move to another Member State may, of course, do so to accept a job; but they may often have to do so as economically inactive Union citizens. This implies, inter alia, that they must have sufficient resources to avoid becoming an unreasonable burden on the social assistance system or, as follows from the ruling in Brey,64 a special non-contributory benefit system of the host Member State. If they could export their special non-contributory benefit, persons with disabilities might be able to satisfy this financial means requirement for establishing residence in another Member State. Yet, they cannot do so, and it is thus plain that the non-export rule for special non-contributory benefits acts as a brake on the free movement rights of persons with disabilities. In this context, it has been argued that EU law, because it does not allow individuals with disabilities to export special non-contributory benefits, might give rise to discrimination contrary to the Employment Equality Directive,65 and/or the United Nations Convention on the Rights of Persons with Disabilities (CRPD).66 While one may sympathize with the argument, it is submitted that it lacks the power of full persuasion. It may very well be true that the non-export rule for special non-contributory benefits may seriously impede freedom of movement for persons with disabilities, but it is hard to see why such persons are affected to a greater extent than other persons in need of a minimum subsistence benefit. The non-export rule does not affect disabled people more than elderly people, as they are subject to the same rule. The non-portability also does not affect persons with disabilities more than other persons in financial need who are dependent on social assistance benefits, as these are also not exportable.

4.

LONG-TERM CARE BENEFITS

A third type of benefit of particular importance for persons with disabilities concerns long-term care benefits. No single definition of these benefits exists, but in essence they are benefits for persons who, because of illness, old age or disability, need assistance from another person to carry out essential daily activities, such as dressing, cooking or washing, over an extended period of time. The manner in which Member States have organized and regulated long-term care differs enormously.67 Some have created a special social security system for such benefits; others have included long-term care benefits in invalidity, old-age or social Case C-140/12 Pensionsversicherungsanstalt v Peter Brey EU:​C:​2013:​565. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 66 Simon Roberts, ‘Free Movement and Special Non-contributory Benefits for Disabled People: Between the Devil and the Deep Blue Sea’ [2016] ERA Forum 221. 67 See Yves Jorens, Bernhard Spiegel, Carlos Garcia de Cortazar, Jean-Claude Fillon, Maximilian Fuchs and Grega Strban, ‘Coordination of Long-term Care Benefits – Current Situation and Future Prospects’ (Training and Reporting on European Social Security, 2011) www​ .tress​ -network​ .org/​ 64 65

176  Research handbook on EU disability law assistance systems. Benefits may be granted as separate benefits or as supplements to, for example, old-age, invalidity or family benefits. Long-term care benefits may be offered in kind in professional institutions or home care, or they may consist of cash benefits that enable beneficiaries to select and pay their own carer. The diversity is enormous, and this has triggered delicate questions about the coordination of long-term care benefits. The main problem was, and still is, that Regulations 1408/71 and 883/2004 do not include long-term care in the list of covered risks and, hence, do not contain a set of coordination rules specifically drafted with the particular features of such benefit in kind. This, however, does not imply that long-term care falls outside the scope of the Regulations. Since the late 1990s, starting with the Molenaar case,68 the CJEU has been asked whether such benefits could perhaps fall within the scope of the coordination rules for benefits that are covered by Regulation 883/2004. 4.1

Molenaar and the Application of Regulation 883/2004 to Long-Term Care Benefits

Molenaar concerned a German–Dutch couple residing in France, to whom – because of employment in Germany – German legislation was applicable. The couple had to pay contributions on the basis of the Care Insurance Law (Pflegeversicherungsgesetz). However, in the event that they were to become dependent on care, the two would not be entitled to any benefits as the law in question excluded entitlement to benefits for non-residents. Could the Molenaar couple rely on Regulation 1408/71 to challenge the duty to pay contributions? The Court recalled that benefits can be said to constitute social security benefits for the purposes of the coordination regime when these are, first, granted without any individual and discretionary assessment of personal needs, and, second, concern one of the risks covered by Regulation 1408/71.69 The first condition was no doubt met, but it was not readily apparent that the same also held true for the second. Could the care benefits possibly be seen as being linked to the risk of sickness, invalidity or perhaps old age?70 The Court answered in the affirmative. It observed that the German care insurance benefits were designed to develop the independence of persons reliant on care, in particular from the financial point of view. The system introduced was aimed at encouraging prevention and rehabilitation in preference to care. It was also aimed at promoting home care in preference to care provided in hospital. The care insurance regime under consideration gave rise to an entitlement to the payment of, for example, the costs of care provided in specialized centres or hospitals, equipment and the carrying out of work in the home, and to the payment of a monthly allowance (Pflegegeld) enabling the insured to remunerate a family member or other persons assisting them. The CJEU concluded that the German care benefits were essentially intended to supplement sickness insurance

EUROPEAN ​ % 20RESOURCES/​ E UROPEANREPORT/​ t rESSIII​ _ ThinkTankReport​ - LTC​ _20111026FINAL​_amendmentsEC​-FINAL​.pdf accessed 8 February 2020. 68 Case C-120/96 Manfred Molenaar and Barbara Fath-Molenaar v Allgemeine Ortskrankenkasse Baden-Württemberg EU:​C:​1998:​84. 69 Ibid para 20. 70 See the Opinion of Advocate General Alber, Case C-215/99 Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter EU:​C:​2000:​698, para 103.

Freedom of movement for persons with disabilities  177 benefits. Even though the benefits in question had ‘their own characteristics’, the Court found that they had to be regarded as ‘sickness benefits’ for the purpose of the coordination regime.71 To establish what this concretely meant for the Molenaar couple, the CJEU had to address the question as to whether the benefits provided under the Pflegeversicherungsgesetz were regarded as benefits in kind or as cash benefits. With regard to benefits in kind, the chapter on sickness benefits rests on the rule that such benefits must be provided in accordance with the legislation of the State of residence. Concretely, this implies that insured persons who reside in a Member State other than the competent one are entitled to those benefits covered by the legislation in the State of residence. As French legislation did not provide for care insurance comparable to the Pflegeversicherungsgesetz, the Molenaars would not have been entitled to any benefits in kind in the event that they were to become dependent on care. If, however, the benefits concerned were classified as cash benefits, the couple would have been entitled to receive them because, as noted above, sickness benefits in cash are to be provided in accordance with the legislation of the competent State, in casu Germany. Most benefits covered by the German law clearly had to be classified as benefits in kind. This was less straightforward as regards the Pflegegeld. Traditionally, cash benefits are essentially designed to compensate for a worker’s loss of earnings through illness.72 The German care allowance, however, was not, as it was intended to help the person reliant on care to cover the costs related to long-term care. The Court recognized this, but held that the care allowance displayed features distinguishing it from sickness insurance benefits in kind. Thus, the Court found that the payment of the allowance was periodical; the amount concerned was fixed and independent of the actual cost incurred; and recipients were, to a large extent, free to use the sums allocated to them.73 The Pflegegeld was thus to be regarded as an exportable cash benefit. 4.2

The Application of Molenaar

Molenaar was controversial. From a free movement and coordination perspective, one certainly understands why the Court brought long-term care benefits within the scope of Regulation 1408/71 and, given the specific features of the German care system at hand, why it chose to apply the chapter on sickness benefits. At the same time, it was clear that the Court stretched the scope of the notions of ‘sickness benefits’ and ‘cash benefits’. Long-term care may resemble medical care, but it is not similar to it. Care allowances may increase recipients’ income, but, unlike classic cash sickness benefits, they cannot be truly regarded as compensation for loss of income. On account of the enormous diversity in long-term care benefits, it was far from certain that the conclusions drawn in Molenaar could be extended to other Member States and to their long-term care systems. A first debated issue concerned the distinction between sickness benefits in kind and cash benefits. Interpretation problems usually do not occur when an insured person receives care or assistance directly from a professional carer who is working for, or contracted by, a social

71 Case C-120/96 Manfred Molenaar and Barbara Fath-Molenaar v Allgemeine Ortskrankenkasse Baden-Württemberg EU:​C:​1998:​84, para 33. 72 Case C-61/65 G. Vaassen-Göbbels (a widow) v Management of the Beambtenfonds voor het Mijnbedrijf EU:​C:​1966:​39 para 278. 73 Case C-120/96 Manfred Molenaar and Barbara Fath-Molenaar v Allgemeine Ortskrankenkasse Baden-Württemberg EU:​C:​1998:​84, paras 34–36.

178  Research handbook on EU disability law security institution. The care at issue constitutes a benefit in kind, which implies that a person residing outside the competent State is only entitled to such care if it is covered by the legislation in the State of residence. Problems do occur where an insured person is entitled to money to be used to purchase care him/herself. Molenaar essentially prescribed a ‘champagne test’: if the legislation of the competent State leaves insured persons largely free to use the money as they deem fit, and to buy, for example, a bottle of champagne, the benefit or allowance is to be seen as an income-related benefit,74 and thus as an exportable cash benefit. If, however, the amount can only be used to actually purchase care, and if bills or invoices from the carer must be submitted, it must be regarded as payment for sickness benefits in kind.75 The borderline, however, may not always be so easy to draw, and the classification of the benefit in question as either a benefit in kind or a cash benefit could vary from Member State to Member State, depending on the precise content of the rules on how the allowance can be spent. Further controversy has persisted on the issue of whether national long-term care systems and benefits can be regarded as sickness benefits at all. For example, in various cases that have been brought before the CJEU, it was argued that the systems concerned had to be regarded as special non-contributory cash benefits. The relevance of the argument may be plain: if a given benefit cannot be regarded as a(n exportable) sickness benefit but is considered a special non-contributory cash benefit, it may be included in the Annex to the Regulation and be excluded from the export rule. Generally, the Court has not been very receptive to this argument. In brief, benefits can only be said to constitute a special non-contributory cash benefit when they are intended to provide a minimum subsistence income or are solely aimed at offering specific protection for persons with disabilities, closely linked to the social environment in the Member State concerned. In virtually all cases in which the question arose,76 the Court found that the benefit systems concerned did not satisfy these criteria and were rather intended to cover the costs of care.77 Furthermore, not all long-term care benefits actually constitute sickness benefits. The CJEU has recognized that sickness benefits are usually granted for a relatively short period of time, whereas benefits for reliance on care are often long-term. The latter, thus, have features that rather (or also) characterize invalidity or old-age pensions. And indeed, in Stewart,78 the Court found that an incapacity benefit for young persons was to be regarded not as a sickness benefit but as an invalidity benefit. The ruling in da Silva Martins further demonstrates that the mere conclusion that long-term care benefits must be labelled as sickness benefits does not 74 In Cases C-502/01 and C-31/02 Silke Gaumain-Cerri v Kaufmännische Krankenkasse – Pflegekasse and Maria Barth v Landesversicherungsanstalt Rheinprovinz EU:​C:​2004:​413, the Court even moved further away from the classic notion that cash benefits are meant as a compensation for loss of income by holding that payment by social security institutions of insurance contributions for the third party offering the care must be regarded as cash benefits. 75 Case C-208/07 Petra von Chamier-Glisczinski v Deutsche Angestellten-Krankenkasse EU:​C:​ 2009:​455, paras 15 and 21. 76 In Case C-537/09 Ralph James Bartlett and Others v Secretary of State for Work and Pensions EU:​C:​2011:​278, paras 20–23, the Court did accept that the so-called mobility component of the UK disability living allowance could be regarded as a special non-contributory cash benefit. 77 See, for example, Case C-215/99 Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter EU:​C:​2001:​139; see also Case C-286/03 Silvia Hosse v Land Salzburg EU:​C:​2006:​125; and Case C-299/05 Commission of the European Communities v European Parliament and Council of the European Union EU:​C:​2007:​608. 78 Case C-503/09 Lucy Stewart v Secretary of State for Work and Pensions EU:​C:​2011:​500.

Freedom of movement for persons with disabilities  179 necessarily imply that they are,79 for coordination purposes, also treated as ordinary sickness benefits. The case concerned a pensioner, Mr da Silva Martins, who lived in Portugal, received old-age pensions from both Portugal and Germany and claimed a care allowance from the German institutions. If the latter allowance was to be regarded as a sickness benefit stricto sensu, Mr da Silva Martins would not be entitled to the allowance. On the basis of the relevant coordination rules for sickness benefits for pensioners,80 he could only claim such benefits in Portugal. However, the Court reasoned that because benefits related to the risk of reliance on care are not identical to sickness benefits stricto sensu, the sickness coordination rules for pensioners had to be interpreted in light of the Treaty goal of freedom of movement. The CJEU concluded that the mere fact that someone like Mr da Silva Martins can only claim sickness benefits stricto sensu in Portugal does not imply that he cannot claim long-term care benefits in Germany.81 Finally, the CJEU’s case law, and the judgment in A in particular,82 demonstrates that some long-term care benefits may fall wholly outside the coordination regime of Regulation 883/2004. The case concerned a Finnish student, Mr A, residing in Finland and having a substantial need for help, including in the performance of his everyday activities. He was therefore provided with a personal carer to enable him to follow secondary school studies in Finland. Mr A applied for personal assistance amounting to about five hours per week to cover the costs of household chores, such as shopping, housework and laundry. His application was rejected because Mr A was in the process of moving to Estonia to attend a three-year, full-time law course there. In assessing the lawfulness of the rejection, the Court stated that benefits concerning reliance on care can only be said to constitute sickness benefit for the purpose of Regulation 883/2004 if they are intended to improve the state of health and the quality of life of persons reliant on care.83 In the Court’s view, the Finnish benefits under consideration did not do so. They would merely enable a disabled person to live with others as an equal member of society, and would prevent and eliminate hindrances and barriers caused by disability. The purpose was to help severely disabled persons to make their own choices regarding the carrying out of the activities listed in that paragraph, namely everyday activities, work and studies, hobbies, participation in society and the maintenance of social interaction. Consequently, the Finnish benefits could not be considered to relate to sickness or any other risk covered by Regulation 883/2004. This conclusion, however, did not imply that these benefits were immune from scrutiny under EU law. The Court concluded that by reserving entitlement to long-term care benefits to residents, the Finnish rule under review had to be regarded as a prohibited restriction on the Treaty right to freedom of movement.84

79 Case C-388/09 Joao Filipe da Silva Martins v Bank Betriebskrankenkasse – Pflegekasse EU:​C:​ 2011:​439, para 48. 80 Article 27 Regulation 883/2004. 81 Case C-388/09 Joao Filipe da Silva Martins v Bank Betriebskrankenkasse – Pflegekasse EU:​C:​ 2011:​439, para 81. 82 Case C-679/16 Proceedings brought by A EU:​C:​2018:​601. 83 Ibid para 43. 84 Ibid para 76.

180  Research handbook on EU disability law 4.3

Towards a New Coordination Regime for Long-Term Care Benefits

By using the term ‘sickness benefits’ stricto sensu and holding that long-term care benefits also resemble invalidity or old-age benefits, the CJEU implicitly recognized that the application of the chapter of Regulation 883/2004 on sickness benefits was far from ideal. In fact, rulings such as Stewart, da Silva Martins and A could be understood as an implicit call upon the EU legislature to develop a separate chapter in Regulation 883/2004 for long-term care benefits that gives due regard to the specific features of such benefits.85 The European Commission responded to the invitation. It first requested a think-tank to explore the various options for long-term care coordination,86 and then in 2016, as part of a broader proposal for amending Regulation 883/2004, it proposed a new regime for the coordination of long-term care benefits, which would be to the advantage of the around 80,000 mobile citizens in need of long-term care benefits.87 The proposal does several things: it (i) formally brings long-term care within the scope of Regulation 883/2004; (ii) provides a definition of long-term care;88 (iii) extends the coordination rules for sickness benefits to long-term care;89 and (iv) orders the Administrative Commission for the Coordination of Social Security Systems to draw up a list of benefits which,90 for the purposes of coordination, are to be regarded as long-term care benefits.91 According to the proposal, long-term care benefits involve ‘any benefit in kind, cash or a combination of both for persons who, over an extended period of time, on account of old-age, disability, illness or impairment, require considerable assistance from another person or persons to carry out essential daily activities, including to support their personal autonomy’.92 This definition would appear to be somewhat broader than the notion of ‘sickness benefits’ as used by the Court, as it would also seem to cover benefits such as the ones that were under consideration in A, which have no health component. The Commission has not chosen the option whereby the Member State of residence would provide all long-term care benefits with reimbursement by the competent Member State.93 Rather, the Commission has opted for 85 Yves Jorens, ‘Molenaar – De grenzen van de coordinatieverordening of de roep om een nieuw hoofdstuk?’ in Ger Essers, Anne Pieter van der Mei and Filip van Overmeiren (eds), Vrij verkeer van personen in 60 arresten – de zegeningen van het Europees burgerschap (Kluwer 2012) 149–56, p. 155. 86 Jorens et al, ‘Coordination of Long-Term Care Benefits – Current Situation and Future Prospects’ (n 67). See also Yves Jorens, Bernhard Spiegel, Jean-Claude Fillon and Grega Strban, ‘Legal Impact Assessment for the Revision of Regulation 883/2004 with regard to the Coordination of Long-Term Care Benefits’ www​.tress​-network​.org/​TRESS/​EUROPEAN​%20RESOURCES/​EUROPEANREPORT/​ trESS​_Analytical​%20Study​%202012​.pdf accessed 8 February 2020. 87 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems and regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004’ COM (2016) 815 final. 88 Ibid. Proposed new Article 1. 89 Ibid. Proposed new Article 35(a)(1). 90 See Article 71 Regulation 883/2004. 91 In addition, the proposal provides for updated and improved rules (now contained in Article 34 of Regulation 883/2004) on the overlapping of long-term care benefits. 92 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems and regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004’ (n 87) 26. 93 Ibid 8.

Freedom of movement for persons with disabilities  181 applying the coordination rules for sickness benefits mutatis mutandis to long-term care benefits. Concretely, and in brief, this implies that long-term care benefits offered in cash are to be granted by the competent Member State regardless of where the individual in question stays or resides. Long-term care benefits in kind are to be provided in accordance with the legislation of the Member State of residence, with the competent State being obliged to reimburse the costs. The list of long-term care benefits to be drawn up by the Administrative Commission is likely to bring more clarity and legal certainty as to which benefits will have to be treated as long-term care benefits and which ones will have to be regarded as benefits in kind and cash benefits, respectively.

5. CONCLUSION This contribution has sketched the coordination rules for three types of social benefits that have specifically been created for persons with disabilities or that are of special significance for them. The focus has mainly been on the key coordination principles, in order to give readers not specialized in EU social security coordination law an insight into the challenges that arise and how the EU institutions have tackled these. In practice, persons with disabilities who (wish to) move to another Member State may face many more concrete obstacles, and numerous ones concerning benefits that have not been discussed in the previous sections. A far more extensive study is needed to obtain a comprehensive overview of all the social security hindrances that mobile persons with disabilities are confronted with, and that will have to be overcome to ensure that they can genuinely enjoy their free movement rights. The challenges ahead are probably numerous and quite formidable. More than others, persons with disabilities are dependent on social security, but disability still is not truly recognized as a separate social security risk. This holds true at national level and, hence, also at EU level. In many Member States, one may observe an increased recognition of the particular needs, including social security needs, of persons with disabilities. Yet, the classic, and perhaps natural, response is to find answers within the framework of existing social security systems and thus to bring individuals with disabilities within the scope of sickness, invalidity, old-age or family benefit systems, rather than to put in place tailor-made social benefit systems for persons with disabilities. It is thus also nothing but logical that disability, as such, is not yet included in the exhaustive list of social security risks covered by Regulation 883/2004. Social security coordination to the benefit of persons with disabilities will therefore probably continue to trigger questions as to whether newly emerging social security rules for such individuals can be classified as one of the recognized social security risks, and, if so, whether the existing coordination rules can be applied to them. On the basis of this contribution, it is safe to assume that the CJEU will have an eye on the free movement and social security interests of persons with disabilities, and be willing to interpret Regulation 883/2004 and the Treaty’s free movement rules to their advantage. Ultimately, however, proper and coherent social security coordination is not, first and foremost, a task of the Court, but is rather the work of the EU legislature.

11. Disability in EU transport legislation Eliza Varney and Abigail Pearson

1. INTRODUCTION The enjoyment of equal access to transport can play a key role in facilitating independent living and full participation in society.1 It can be crucial in realizing the full enjoyment of other human rights,2 including the rights to personal mobility;3 education;4 health;5 employment;6 and participation in political and public life,7 as well as participation in cultural life, recreation, leisure and sport.8 Ensuring accessibility of transport goes beyond the provision of an economic service to consumers, enabling people to be involved in society as citizens.9 Consequently, full and equal access to transport should be available to all, and measures designed to facilitate access should be guided by a framework of principles reflective of citizenship values, including the protection of individual autonomy,10 human dignity and respect for difference.11 Such measures should be developed based on Universal Design (UD) principles, aimed to ensure the usability of services by everyone,12 and rooted in the assumption that these services will be accessed by people with a wide range of abilities.13 Persons with disabilities and their representative organizations should be fully involved in the development of laws and policies designed to identify and eliminate accessibility barriers.14 This chapter analyses the extent to which this vision is reflected in the legal framework of the European Union (EU) related to transport. Following these introductory remarks, the chapter focuses on primary EU legislation and the relevance of the CRPD to access to transport in section 2, on secondary legislation in section 3 and on soft law in section 4. Section 5 explores recent and future developments in the field and makes recommendations for reform,

Article 9(1) CRPD. Abigail Pearson, ‘The Debate about Wheelchair Spaces on Buses Goes “Round and Round”: Access to Public Transport for People with Disabilities as a Human Right’ (2018) 69 Northern Ireland Legal Quarterly 1. 3 Article 20 CRPD. 4 Article 24 CRPD. 5 Article 25 CRPD. 6 Article 27 CRPD. 7 Article 29 CRPD. 8 Article 30 CRPD. 9 Eliza Varney, ‘Social Regulation in the Air Transport Industry: An Examination of Regulation 1107/2006 Concerning the Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air’ (2007) 28 Comparative Socio-Legal Research: Zeitschrift für Rechtssoziologie 191. 10 Article 3(1) CRPD. 11 Article 3(4) CRPD. 12 Article 2 CRPD. 13 Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1 at 10–11. 14 Article 4(3) CRPD. 1 2

182

Disability in EU transport legislation  183 while the concluding remarks contained in section 6 reflect on the centrality of transport to realizing the full enjoyment of human rights for persons with disabilities.

2.

PRIMARY EUROPEAN UNION LEGISLATION AND THE RELEVANCE OF THE CRPD TO ACCESS TO TRANSPORT

The centrality of access to transport within the legislative framework of the EU can be seen in Article 20 of the Treaty on the Functioning of the European Union (TFEU), which states that EU citizens ‘shall have the right to move and reside freely within the territory of the Member States’.15 If transport is not fully accessible to people with disabilities, the right to move and reside freely within the EU could be severely restricted or impossible to enjoy. The importance of this right to the purposes of the Union is highlighted by its repetition in Article 21(1) TFEU. If the Treaties fail to provide the necessary powers on achieving these aims in practice, then the Parliament and the Council have competence to adopt additional directives.16 Moreover, Article 10 prevents discrimination based on, inter alia, disability, mainstreaming the rights of people with disabilities within the legislative conscience of the EU; and Article 19 requires that any measures to combat discrimination result from a unanimous decision of Council members, with the consent of the European Parliament. Despite this, there was little initial development of a unified approach to ensuring access to transport across the EU. In 2005, Lawson and Matthews expressed disappointment at the failure of cases brought to the Court of Justice of the European Union (CJEU) to fully consider the importance of issues such as access to transport in achieving the social rights afforded to EU citizens.17 Comparisons were drawn with cases brought before the European Court of Human Rights (ECtHR), such as Botta,18 which relied on Article 8 of the European Convention on Human Rights (ECHR) concerning the right to private and family life, and which represented a significant step forward in thinking around disability equality, even though the case was ultimately unsuccessful. It raised the question of the extent to which States should act to ensure respect for private and family life by taking positive steps to break down the social, architectural or other barriers faced by people with disabilities. Botta claimed that in being prevented from using beaches, he was denied a ‘normal social life’ and the ability ‘to participate in the life of the community’.19 Lawson and Matthews noted that this reasoning could be applied to an inability to access public transport. They highlighted the ECtHR’s acceptance that States would sometimes need to adopt positive measures to overcome the barriers experienced. However, access to beaches and the social relations inherent to this interaction were deemed too remote to necessitate action in the Botta case. Lawson and Matthews rightly questioned the way in which the concept of ‘a normal life within the community’ and

Article 20 TFEU. Article 21(2) TFEU. 17 See Anna Lawson and Bryan Matthews, ‘Dismantling Barriers to Transport by Law: The European Journey’ in Colin Barnes and Geof Mercer (eds), The Social Model of Disability: Europe and the Majority World (The Disability Press 2005) 80–97, pp. 80–81. 18 Botta v Italy Application No. 21439/93 (ECtHR, 24 February 1998). 19 Ibid para 27. 15 16

184  Research handbook on EU disability law the adversity of barriers could be quantified, and considered whether the inability to access local amenities and navigate cities safely would be a sufficiently direct link for the courts.20 In the EU context, the foremost consideration of the six founding Member States was to ensure economic unity, integration and stability, through signing the European Economic Community Treaty (ECC) in 1957; social policy was considered at a later date.21 Bell identifies two models of EU social policy: market integration and social citizenship.22 The market integration model limits the social policy focus to areas where its formation is needed to ensure the smooth running of the common economic market.23 The social citizenship model views social policy as an independent function of the EU, achieved through the guarantee of social rights. This latter perspective has influenced the development of EU non-discrimination and equality law.24 Despite the fact that the EU appears to adopt a social model rhetoric around disability, in practice it maintains a medical model approach to implementing policies relating to disability, focused on integration in the workforce and the economic impact of decisions, rather than on social integration.25 Accessible transport provision is important for people with disabilities to benefit from educational and work opportunities,26 and this situates access to transport within both the economic and the social functions of the EU. The EU’s decision to ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention)27 provided an opportunity to re-evaluate the importance of access to services such as public transport, to ensure that people with disabilities can exercise their rights. The CRPD adopts a ‘social-contextual model of disability’,28 which recognizes people with disabilities as citizens disabled by the interaction between various impairments and societal barriers. Without effective and equal access to transport, people with disabilities cannot access education,29 health,30 and social, political and cultural activities,31 preventing their full enjoyment of the rights laid down in the CRPD. Subsequently, the objectives of the CRPD cannot be achieved. If people with disabilities are not visible in their communities and societies, then awareness cannot be raised; nor can the needs of women and children with disabilities be considered,32 and the general right to freedom of movement and nationality cannot be enjoyed.33 Lawson and Matthews, ‘Dismantling Barriers to Transport by Law: The European Journey’ (n 17)

20

89.

Mark Bell, Anti-discrimination Law and the European Union (Oxford University Press 2006) 6. Ibid. 23 Ibid 7. 24 Ibid. 25 Charlotte O’Brien, ‘Union Citizenship and Disability: Restricted Access to Equality Rights and the Attitudinal Model of Disability’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2016) 509–39 at 514–15. 26 Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 220, 242 and 253. 27 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. 28 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 29 Article 24 CRPD. 30 Article 25 CRPD. 31 Articles 19, 29 and 30 CRPD. 32 Article 7 CRPD. 33 Article 18 CRPD. 21 22

Disability in EU transport legislation  185 The first indication in case law that the CRPD was having a direct impact within the CJEU was the approach taken to define ‘disability’ in HK Danmark.34 The Court interpreted this concept in line with Article 1 CRPD, which considers a person as having a disability if the impairment, in interaction with various social barriers, hinders their full and effective participation on an equal basis with others.35 This was a significant departure from the previous approach in Chacón Navas.36 The wider approach in HK Danmark had the potential to assist people with disabilities in accessing services, including transport, because it explicitly recognized the relationship between societal barriers and structures and the creation of disability.37 Yet, Quinn counsels against considering the CRPD as a ‘magic bullet’ to automatically change attitudes and create the ability to persuade State actors to consider the needs of people with disabilities more readily;38 rather, States could become overwhelmed by the ensuing paper mountain.39 Perhaps the biggest opportunity presented by the CRPD in relation to transport is the link between transport and dignity. Not only does the CRPD specifically restate the foundational human rights expressed in international and regional law in relation to disability, but it also includes additional articles such as Article 9 CRPD (on accessibility), to ensure that people with disabilities can access their rights in practice. While writers such as Mégret and Dhanda have debated whether or not the inclusion of rights such as access to the built environment constitutes new rights for people with disabilities, the role of such provisions is to make the protection of dignity meaningful to people with disabilities.40 However, ‘dignity’ is not an unproblematic concept in relation to disability, because classical conceptions of dignity put forward by thinkers such as Kant and Aristotle assert that autonomy is a key element in the attribution of dignity, as decisions and actions must be driven by the individual performing them, rather than the influence of others.41 Indeed, autonomy is a key general principle of the

34 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222. See supra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 35 Article 1 CRPD. 36 Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA EU:​C:​2006:​456. 37 Eilionóir Flynn, ‘New Decision on Disability Discrimination from the CJEU’ (European Law Blog, 12 April 2013) https://​europeanlawblog​.eu/​2013/​04/​12/​new​-decision​-on​-disability​-discrimination​ -from​-the​-cjeu/​accessed 1 February 2020. 38 Gerard Quinn, ‘Resisting the “Temptation of Elegance”: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 215–56 at 218. 39 Ibid 219. 40 Frederic Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30(2) Human Rights Quarterly 494 at 506–07; Amita Dhanda, ‘Constructing a New Human Rights Lexicon: Convention on the Right of Persons with Disabilities’ (2008) 5 SUR: International Journal on Human Rights 43. 41 Immanuel Kant, ‘Groundwork for the Metaphysics of Morals’ in Allen W Wood (ed), Groundwork for the Metaphysics of Morals (Yale University Press 2002) 1–82, 53–54; Aristotle, From the Nicomachean Ethics, translated by William David Ross (Oxford University Press 1998) 17–19.

186  Research handbook on EU disability law CRPD in Article 3, and for Quinn, denying people with disabilities social experiences places them at a greater disadvantage in terms of decision-making than any cognitive impairment.42 Articles 9 and 19 CRPD (on the right to live independently in the community) protect the rights of disabled people to live independently and to participate in social, cultural and political life. Article 8 CRPD also supports this, as it requires States to prohibit the promulgation of negative stereotypes of people with disabilities and to raise awareness of their contributions to their communities. Quinn’s argument that autonomy within the Convention means the ability to participate equally within society and to contribute makes the right to transportation an important factor in ensuring the autonomy of people with disabilities. Therefore, if people with disabilities are denied their full autonomy because of States’ failure to make transportation accessible, they are also denied the exercise of their human dignity. Consequently, access to transportation for people with disabilities could be viewed as a fundamental human right, meaning that a higher threshold of effectiveness should always be applied. Indeed, direct reference to transport in the UN Convention demonstrates that the right to access transportation is a key part of ensuring autonomy and dignity, and social and political participation.43

3.

SECONDARY LEGISLATION AND CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION

The adoption of secondary legislation to improve the rights of passengers, including persons with disabilities and persons with reduced mobility (PRM), pursued the dual objectives of creating a ‘level playing-field’ for service providers within these sectors and ensuring a ‘minimum level of protection’ for the public, necessary to facilitate ‘mobility and social integration’ across the EU.44 Following the 2001 White Paper on European transport policy,45 the EU adopted a range of measures designed to improve the rights of passengers travelling by air, rail, road and water. This section focuses on one key measure with particular relevance for accessibility in each of these sectors: Regulation 1107/2006 (air),46 Regulation 1371/2007 (rail),47 Regulation 181/2011 (bus and coach)48 and Regulation 1177/2010 (sea and inland waterways).49 It examines these four pieces of secondary legislation to assess the extent to

42 Gerard Quinn, Rethinking Personhood: New Directions in Legal Capacity Law and Policy: Ideas Paper (University of British Columbia 2011) 17. 43 Quinn, ‘Resisting the “Temptation of Elegance”: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?’ (n 38). 44 Commission, ‘Report from the Commission to the European Parliament and the Council on the Application of Regulation (EU) No 181/2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004’ COM (2016) 619 final, p. 3. 45 Commission, ‘White Paper – European Transport Policy for 2010: Time to Decide’ (European Commission 2001) https://​ec​.europa​.eu/​transport/​sites/​transport/​files/​themes/​strategies/​doc/​2001​_white​ _paper/​lb​_texte​_complet​_en​.pdf accessed 3 February 2020. 46 Regulation (EC) 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air [2006] OJ L204/1. 47 Regulation (EC) 1371/2007 on rail passengers’ rights and obligations [2007] OJ L315/14. 48 Regulation (EC) 181/2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 [2011] OJ L55/1. 49 Regulation (EU) 1177/2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 [2010] OJ L334/1.

Disability in EU transport legislation  187 which persons with disabilities and PRM are protected not only as consumers, but also as citizens. 3.1

Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010: Selected Key Provisions

Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air supplements the rights provided to these citizens under Regulation 261/2004 on compensation and assistance to passengers in the event of being denied boarding and of cancellation or long delay of flights.50 Regulation 261/2004 calls, inter alia, for air carriers to ‘pay particular attention’ to the needs of persons with disabilities and PRM,51 and to prioritize these passengers in the event of flight disruptions.52 As Regulation 1107/2006 focuses specifically on the rights of persons with disabilities and PRM when travelling by air, it is deemed ‘an important social measure’53 that recognizes mobility as a key aspect of social inclusion.54 Recitals 1 and 4 regard participation facilitated by transport as an entitlement of citizenship, stressing that persons with disabilities and PRM should enjoy opportunities for air travel ‘comparable to those of other citizens’55 and assistance ‘to meet their particular needs’, provided without additional charge, in the interest of social inclusion.56 The Regulation aims to establish rules to, inter alia, protect persons with disabilities and PRM from discrimination, and ensure that they receive assistance when travelling by air in commercial passenger air services departing from,57 transiting through or arriving at airports in EU Member States.58 For rail, road and water travel, Regulations 1371/2007, 181/2011 and 1177/2010 do not focus specifically on the rights of persons with disabilities and PRM, but include dedicated chapters centred on these passengers’ rights to protection from discrimination and to assistance when travelling by these means of transport.59 Regulation 1371/2007 on rail passengers’ rights and obligations, which aims to improve rail passenger services within the EU,60 insists that these services should benefit all citizens, and that persons with disabilities 50 Regulation (EC) 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and repealing Regulation (EEC) 295/91 [2004] OJ L46/1. See Eliza Varney and Mike Varney, ‘Grounded? Air Passenger Rights in the European Union’ in Christian Twigg-Flesner, Deborah Perry, Geraint Howells and Annette Nordhausen (eds), Yearbook of Consumer Law 2008 (Ashgate 2007) 171–99. 51 Article 9(3) Regulation 261/2004. 52 Article 11 Regulation 261/2004. 53 Commission, ‘Transport with a Human Face: New Rights for Passengers’ (European Commission, 16 February 2005) http://​europa​.eu/​rapid/​pressReleasesAction​.do​?reference​=​IP/​05/​182​&​format​=​HTML​ &​aged​=​0​&​language​=​EN​&​guiLanguage​=​en accessed 5 February 2020. 54 Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the European Parliament and of the Council concerning the rights of persons with reduced mobility when travelling by air’ [2006] OJ C24/12, para 1(5). 55 Recital 1 of the preamble to Regulation 1107/2006. 56 Recital 4 of the preamble to Regulation 1107/2006. 57 Article 1(1) Regulation 1107/2006. 58 Article 1(2) Regulation 1107/2006. 59 Chapter V (Articles 19–25) Regulation 1371/2007; Chapter III (Articles 9–18) Regulation 181/2011; and Chapter II (Articles 7–15) Regulation 1177/2010. 60 Recital 24 of the preamble to Regulation 1371/2007.

188  Research handbook on EU disability law and PRM should have opportunities for rail travel ‘comparable to those of other citizens’.61 This instrument applies, inter alia, to licensed rail journeys and services throughout the EU,62 although Member States may apply exemptions up to a total of 15 years,63 including for ‘urban, suburban and regional rail passenger services’.64 The protection of persons with disabilities and PRM under this Regulation is supplemented, among others, by Regulation 1300/2014 on technical specifications for interoperability relating to accessibility of the Union’s rail system for persons with disabilities and persons with reduced mobility (TSI-PRM),65 as amended by Regulation 2019/772 on inventory of assets with a view to identifying barriers to accessibility, providing information to users and monitoring and evaluating progress on accessibility.66 Regulation 181/2011 on the rights of passengers in bus and coach transport includes provisions on non-discrimination and mandatory assistance for persons with disabilities and PRM,67 although several of its provisions cover only cross-border services and services spanning a distance of 250 kilometres.68 Furthermore, Member States may apply exemptions up to a total of eight years.69 Regulation 1177/2010 on the rights of passengers when travelling by sea and inland waterway also provides that persons with disabilities and PRM should enjoy ‘comparable’ opportunities for travel to those enjoyed by all other citizens,70 and includes provisions on non-discrimination and assistance for persons with disabilities and PRM.71 It applies, inter alia, to passenger services embarking from or disembarking in an EU Member State,72 although it does not cover, among others, ‘excursion and sightseeing tours other than cruises’73 or ships carrying 12 passengers or fewer.74 Persons with disabilities and PRM are defined in Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010 as ‘any person whose mobility when using transport is reduced’ due to physical or intellectual disabilities or ‘any other cause’ of disability or age, and whose situation requires ‘appropriate attention’ and the adaptation of the service to their ‘particular needs’.75 This reflects a medical approach to defining disability, focused on impairment rather than on the social barriers encountered by people with disabilities and their rights to full and effective participation in society. In contrast, Regulation 1300/2014 (TSI-PRM), as amended Recital 10 of the preamble to Regulation 1371/2007. Article 2(1) Regulation 1371/2007. 63 Ibid. 64 Article 2(5) Regulation 1371/2007. 65 Regulation (EU) 1300/2014 on the technical specifications for interoperability relating to accessibility of the Union’s rail system for persons with disabilities and persons with reduced mobility [2014] OJ L356/110. 66 Commission Implementing Regulation (EU) 2019/772 amending Regulation (EU) No 1300/2014 as regards inventory of assets with a view to identifying barriers to accessibility, providing information to users and monitoring and evaluating progress on accessibility [2019] OJ L139I/1. 67 Article 1(c) Regulation 181/2011. 68 Article 2 Regulation 181/2011. 69 Ibid. 70 Recital 4 of the preamble of Regulation 1177/2010. 71 Article 1(b) Regulation 1177/2010. 72 Article 2(1) Regulation 1177/2010. 73 Article 2(2)(c) Regulation 1177/2010. 74 Article 2(2)(a) Regulation 1177/2010. 75 Article 2(a) Regulation 1107/2006; Article 3(15) Regulation 1371/2007; Article 3(j) Regulation 181/2011; and Article 3(a) Regulation 1177/2010. 61 62

Disability in EU transport legislation  189 by Regulation 2019/772, recognizes the impact of social barriers to participation, as it defines persons with disabilities and PRM as ‘any person’ with a ‘physical, mental, intellectual or sensory impairment’ of a permanent or temporary nature, which, ‘in interaction with various barriers, may hinder their full and effective use of transport’ on an equal basis with others, or ‘whose mobility when using transport is reduced due to age’.76 This latter definition is closer to the predominantly social vision of disability advanced by the CRPD,77 which recognizes disability as resulting from the interaction between ‘persons with impairments’ (including long-term physical, mental, intellectual and sensory impairments) and various barriers (including attitudinal and environmental barriers) that hinder ‘their full and effective participation in society on an equal basis with others’.78 This approach influenced the way in which disability is defined in the CJEU case law related to the Employment Equality Directive,79 departing from the medical focus adopted in Chacón Navas in favour of a social vision in HK Danmark, as described above in section 2. A similar shift of focus should be reflected in the language adopted in interpreting and revising the provisions designed to protect the rights of persons with disabilities and PRM in the transport sector, emphasizing the need to adapt environments to the wide range of abilities that exist in society,80 and to ensure full and equal access to transport as a human right.81 Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010 seek to ensure the fair treatment of persons with disabilities and PRM when travelling by the various means of transport to which the Regulations apply, and the provision of a consistent level of assistance without additional charge. To ensure fair treatment, the provisions of the Regulations prevent services providers from refusing, on grounds of disability or reduced mobility, to accept a reservation, issue a ticket or embark persons with disabilities and PRM,82 unless this is necessary to meet applicable ‘access rules’83 or ‘safety requirements’,84 or if the embarkation or carriage is physically ‘impossible’.85 While Regulation 1107/2006 refers to fair access under the heading of ‘prevention of refusal of carriage’,86 Regulations 1371/2007, 181/2011 and 1177/2010 mark, at first glance, a positive change in language, referring to the ‘right to transport’.87 Unfortunately, this change is not matched by more proactive approaches to promoting equality. The substance Annex, para 2.2 Regulation 1300/2014, as amended by Regulation 2019/772. See generally Sarah Fraser Butlin, ‘The UN Convention on the Rights of Persons with Disabilities: Does the Equality Act 2010 Measure Up to UK International Commitments?’ (2011) 40 Industrial Law Journal 428. 78 Preamble, para (e) and Article 1 CRPD. 79 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 80 Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 145 at 163. 81 Pearson, ‘The Debate about Wheelchair Spaces on Buses Goes “Round and Round”: Access to Public Transport for People with Disabilities as a Human Right’ (n 2). 82 Article 3 Regulation 1107/2006; Article 19(2) Regulation 1371/2007; Article 9(1) Regulation 181/2011; and Article 7(1) Regulation 1177/2010. 83 Article 19 Regulation 1371/2007. 84 Article 4(1)(a) Regulation 1107/2006; Article 10(1)(a) Regulation 181/2011; and Article 8(1)(a) Regulation 1177/2010. 85 Article 4(1)(b) Regulation 1107/2006; Article 10(1)(b) Regulation 181/2011; and Article 8(1)(b) Regulation 1177/2010. 86 Article 3 Regulation 1107/2006. 87 Article 19(2) Regulation 1371/2007; Article 9(1) Regulation 181/2011; and Article 7(1) Regulation 1177/2010. 76 77

190  Research handbook on EU disability law of the provisions of these Regulations remains unchanged, focused on reactive approaches and requiring service providers to refrain from discriminating against persons with disabilities and PRM on grounds of disability or reduced mobility.88 Furthermore, in their preambles, these Regulations call for the provision of opportunities to travel that are ‘comparable’ to those provided to other citizens.89 This does not go as far as the CRPD’s call for ‘equal’ opportunities to travel. Under Article 9(1) CRPD, States Parties must ‘take appropriate measures’ to ensure that persons with disabilities have access to, inter alia, the physical environment, transportation, information and ‘other facilities and services open or provided to the public, both in urban and in rural areas’, provided ‘on an equal basis with others’.90 The CRPD calls for proactive measures to eliminate barriers in accessing transportation,91 buildings, roads and information.92 As referred to in section 2 above, States Parties are expected to adopt minimum accessibility standards, and to ensure that private entities offering services to the public ‘take into account’ accessibility; that stakeholders receive accessibility training; that facilities are equipped with accessible signage; that live assistance is available; and that UD is promoted.93 The CRPD acknowledges the link between accessibility and the enjoyment of all human rights and fundamental freedoms,94 recognizing accessibility as a general principle of the Convention, alongside, inter alia, non-discrimination, participation, respect for difference and equality of opportunity.95 As also mentioned in section 2, the call for equal opportunities to travel is also reflected in Article 19 CRPD, which requires States Parties to recognize the equal right of persons with disabilities to ‘live in the community, with choices equal to others’ and to facilitate participation and inclusion through ‘effective and appropriate measures’, including by ensuring that ‘community services and facilities for the general population’ (such as transport services) are ‘available on an equal basis’ to persons with disabilities and ‘are responsive to their needs’.96 The reference to ‘comparable’ opportunities for travel in the EU transport Regulations should be read to mean ‘equal’ opportunities, and should be supplemented by proactive measures to eliminate accessibility barriers; facilitate the active participation of all citizens in society;97 and recognize the link between equal access to transport and the realization of other human rights, including education and employment.

88 Article 3 Regulation 1107/2006; Article 19(2) Regulation 1371/2007; Article 9(1) Regulation 181/2011; and Article 7(1) Regulation 1177/2010. 89 Recital 1 of the preamble to Regulation 1107/2006; Recital 4 of the preamble to Regulation 1177/2010; Recital 10 of the preamble to Regulation 1371/2007; and Recital 7 of the preamble to Regulation 181/2011. 90 Article 9(1) CRPD. 91 Article 9(1)(a) CRPD. See Committee on the Rights of Persons with Disabilities (CRPD Committee), F v Austria, UN Doc. CRPD/C/14/D/21/2014 (2015). 92 Article 9(1)(b) CRPD. 93 Article 9(2) CRPD. 94 Preamble, para (v) CRPD. 95 Article 3 CRPD. See Sarah Arduin, ‘Article 3: General Principles’ in Ilias Bantekas, Michael Ashley Stein and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 84–105 at 102. 96 Article 19(c) CRPD. 97 Ian Bynoe, Mike Oliver and Colin Barnes, ‘Equal Rights for Disabled People: The Case for a New Law’ (1991) Institute for Public Policy Research, Social Policy Paper No. 7, p. 3.

Disability in EU transport legislation  191 In addition to the provision of assistance in case of cancellations or long delays for all passengers,98 operators are required to ensure a consistent level of assistance for persons with disabilities and PRM travelling by air, rail, road or water. Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010 require the provision of assistance at airports, railway stations, bus and coach terminals and ports, including in embarkation, at disembarkation,99 and on board.100 Such assistance should be provided without additional charge.101 Persons with disabilities and PRM are expected to notify the service provider about their need for assistance at least 48 hours (in the case of travel by air, rail or water)102 or 36 hours (in the case of road travel)103 before assistance is needed, and to present themselves at designated points and times.104 If no notification is provided, service providers are nevertheless expected to make all reasonable efforts to provide assistance.105 3.2

Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010: Selected Challenges

Despite their merits, Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010 could have gone further in providing assistance for persons with disabilities and PRM. These instruments tend to perceive people as consumers rather than citizens, focusing on their access to transport as economic actors, overlooking the wider social implications of accessibility and placing insufficient emphasis on the protection of citizenship values such as human dignity. References to the equality of EU citizens and the importance of accessible transport for social inclusion tend to be confined to the non-binding preambles of these instruments.106 These Regulations should be read in light of Articles 1 and 3(1) CRPD,107 and Article 1 of the EU Charter of Fundamental Rights (CFR),108 all of which call for protection and respect for human dignity. A framework focused on protecting human dignity aims to ensure that no one is disadvantaged

98 Articles 5, 6, 9 and 11 Regulation 261/2004; Article 18 Regulation 1371/2007; Article 21 Regulation 181/2011; and Article 17 Regulation 1177/2010. See Case C-402/07 Sturgeon v Condor EU:​ C:​2009:​716; Case C-432/07 Böck v Air France EU:​C:​2009:​716; Case C‑549/07 Wallentin-Hermann v Alitalia EU:​C:​2008:​771. 99 Article 7(1) and Annex I Regulation 1107/2006; Article 22(1) Regulation 1371/2007; Article 13(1) and Annex I(a) Regulation 181/2011; and Article 10 and Annexes II Regulation 1177/2010. 100 Article 10 and Annex II Regulation 1107/2006; Article 23 and Annex II Part I Regulation 1371/2007; Article 13(2) and Annex I(b) Regulation 181/2011; and Article 10 and Annex II Regulation 1177/2010. 101 Article 8(1) and Article 10 Regulation 1107/2006; Article 22(1) and Article 23 Regulation 1371/2007; Article 13(1) and 2 Regulation 181/2011; and Article 10 Regulation 1177/2010. 102 Article 7(1) and Article 10(1) and (2) Regulation 1107/2006; Article 24(a) Regulation 1371/2007; and Article 11(1)(a) Regulation 1177/2010. 103 Article 14(a)(1) Regulation 181/2011. 104 Article 10(4) Regulation 1107/2006; Article 24(c) Regulation 1371/2007; Article 14(b) Regulation 181/2011; and Article 11(1)(b) Regulation 1177/2010. 105 Article 7(1) Regulation 1107/2006; Article 24(c) Regulation 1371/2007; Article 14(4) Regulation 181/2011; and Article 11(4) Regulation 1177/2010. 106 Recitals 1 and 4 of the preamble to Regulation 1107/2006; Recital 10 of the preamble to Regulation 1371/2007; Recitals 7 and 8 of the preamble to Regulation 181/2011; and Recitals 4 and 6 of the preamble to Regulation 1177/2010. 107 Articles 1 and 3(a) CRPD. See also preamble, para (h) CRPD. 108 Article 1 Charter of Fundamental Rights of the European Union [2000] OJ C364/1.

192  Research handbook on EU disability law due to their subjective characteristics,109 and that everyone is treated with respect.110 Such focus could act as a powerful reminder that persons with disabilities and PRM have an equal stake in society,111 and are entitled to equal access to all social spheres, including transport. A further challenge associated with Regulations 1107/2006, 1371/2007, 181/2011 and 1177/2010 is the prevalence of economic values over social considerations, illustrated by their concern with the economic costs of accessibility, rather than the wider social costs of inaccessible services. Moreover, these Regulations include several limitations with the potential to be interpreted widely by service providers, who may refuse to embark a passenger on grounds of disability or reduced mobility if this is necessary to meet applicable ‘safety requirements’112 or ‘access rules’,113 or if it is ‘physically impossible’.114 The Regulations place insufficient emphasis on the need to develop products and services based on UD principles.115 Additional challenges are posed by the exemptions allowed under the Regulations. For example, as noted above, Member States may request exemptions from parts of Regulation 181/2011 for up to eight years,116 or from parts of Regulation 1371/2007 for up to fifteen years,117 which created inconsistency in the protection of passengers across the EU.118 Difficulties are also posed by the scope of these provisions. Parts of Regulation 181/2011 apply only to services with a scheduled distance of 250 kilometres or more,119 and Member States may exempt domestic, regular services from parts of this instrument.120 Member States have been criticized by passenger organizations for granting too many exemptions, thereby overlooking the fact that passengers using bus and coach transport are often reliant on this means of transport to access education, work and medical facilities, and that inaccessible transport ‘can severely impede their integration into society’.121 Regulation 1371/2007 permits Member States to exempt from parts of this instrument urban, suburban and regional rail passenger services.122 109 Zoe Apostolopoulou, ‘Equal Treatment of People with Disabilities in the EC: What Does “Equal” Mean?’ (Jean Monnet Program 2004) https://​jeanmonnetprogram​.org/​archive/​papers/​04/​040901​.html accessed 7 February 2020. 110 Denise Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 645. 111 Emily Kakoullis and Yoshikazu Ikehara, ‘Article 1: Purpose’ in Ilias Bantekas, Michael Ashley Stein and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 35–62, p. 36. 112 Article 4(1) Regulation 1107/2006; Article 10(a) and (b) Regulation 181/2011; and Article 8(1)(a) and (b) Regulation 1177/2010. 113 Article 19(2) Regulation 1371/2007. 114 Article 4(1) Regulation 1107/2006; Article 10(a) and (b) Regulation 181/2011; and Article 8(1)(a) and (b) Regulation 1177/2010. 115 Articles 2 and 4(1)(f) CRPD. 116 Article 2(4) Regulation 181/2011. 117 Article 2(4) Regulation 1371/2007. 118 See, for example, Commission, Staff Working Document ‘Interpretative Guidelines on the Application of Regulation (EC) 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air’ SWD (2012) 171 final https://​ec​.europa​.eu/​transport/​sites/​transport/​files/​themes/​passengers/​air/​doc/​prm/​ 2012​-06​-11​-swd​-2012​-171​_en​.pdf accessed 7 February 2020. 119 Article 2(1) Regulation 181/2011. 120 Article 2(4) Regulation 181/2011. 121 Commission, ‘Report from the Commission to the European Parliament and the Council on the Application of Regulation (EU) No 181/2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004’ (n 44) p. 9. 122 Article 2(5) Regulation 1371/2007.

Disability in EU transport legislation  193 Regulation 1177/2010 does not apply to, inter alia, ships carrying up to 12 passengers, journeys of less than 500 metres (one way) or excursion and sightseeing tours other than cruises,123 overlooking the need to ensure equal access to, among others, cultural activities, recreation and leisure.124 One further challenge is posed by the conditions for ensuring the provision of assistance, namely the requirement imposed on persons with disabilities and PRM to request support at least 36 hours (in the case of road travel)125 or at least 48 hours (in the case of travel by air, rail or water) before such assistance is required.126 This neglects the fact that persons with disabilities have the same need as everyone else to make spontaneous travel decisions,127 and should be enabled to exercise their right to personal mobility ‘in the manner and at the time of their choice’.128 The exemptions and limitations stated above may be a consequence of the fact that the voice of service providers tends to have a greater impact on regulators and policy-makers compared with the voice of the public,129 including persons with disabilities and PRM. This could be addressed by an effective implementation of the CRPD, which calls for close consultation with and the active involvement of persons with disabilities, through their representative organizations, in the development and implementation of laws, policies and decisions ‘concerning issues relating to persons with disabilities’,130 which include transport accessibility. Any limitations should be read narrowly, in a manner that prioritizes social concerns over commercial considerations, rather than seeking to balance the two.131 Furthermore, measures concerning the transport sector should be based on UD principles, developed with the full involvement of disabled people’s user-led organizations.

4.

SOFT LAW

EU institutions have issued several soft law provisions with relevance to the field of transport, including recommendations and guidelines. Measures such as the Commission’s Guidelines on Regulation 1107/2006 assist with the interpretation of secondary legislation, clarifying, inter alia, issues concerning the application of these measures to assist persons with disabilities and PRM.132 These Guidelines confirmed that service providers are not permitted to

Article 2(2) Regulation 1177/2010. Article 30 CRPD. 125 Article 14(1) Regulation 181/2011. 126 Articles 7(1) and 10 Regulation 1107/2006; Article 24(a) Regulation 1371/2007; and Article 11(1) (a) Regulation 1177/2010. 127 European Disability Forum (EDF) and Age Platform Europe, ‘Webinar: EU Rail Access for Beginners: Explaining TSI-PRM’ (EDF 18 January 2018) www​.edf​-feph​.org/​rail accessed 7 February 2020. 128 Article 20(a) CRPD. 129 Anthony Ogus, Regulation, Legal Form and Economic Theory (Hart 2004). 130 Article 4(3) CRPD. 131 Varney, ‘Social Regulation in the Air Transport Industry: An Examination of Regulation 1107/2006 concerning the Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air’ (n 9). 132 Commission, Staff Working Document ‘Interpretative Guidelines on the Application of Regulation (EC) 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air’ (n 118). 123 124

194  Research handbook on EU disability law request proof from persons with disabilities and PRM concerning their impairment or medical condition, nor does the Regulation impose any obligations on these passengers to justify their request for assistance with evidence regarding such.133 Nevertheless, in an attempt to balance the rights of persons with disabilities and PRM with the interests of service providers, the Guidelines stress that if the impairment or medical condition is such that there is ‘reasonable doubt’ that the individual ‘can complete the flight safely, without requiring assistance’, the service provider ‘may assess’ the individual’s fitness to fly, requesting ‘information to support that assessment’.134 Furthermore, ‘a more specific in-depth enquiry’ may be permitted in cases where there is ‘an obvious situation of abuse’; however, in conducting such enquiry the service provider is expected to act ‘with utmost care’, and to consider the individual’s ‘dignity and right to privacy’.135 Soft law provisions also include Council Recommendations 98/376/EC and 2008/205/EC on a parking card for people with disabilities,136 aimed to enable these citizens ‘to park as near to their destination as possible’, in order to assist them with ‘getting about independently for purposes of occupational and social integration’.137 The Council recommends Member States to, inter alia, ‘introduce a parking card’ for people with disabilities and recognize such parking cards issued by other Member States.138 The potential impact of this provision in facilitating independent travel for persons with disabilities is nevertheless limited by the fact that this measure is not binding.139

5.

RECENT AND FUTURE DEVELOPMENTS

The European Disability Forum (EDF) released a position paper in 2013,140 calling for the adoption of a legally binding European Accessibility Act (EAA).141 This presented an opportunity to implement CRPD principles, as applying the then proposed Act to goods and services in the transport sector would contribute towards ensuring independent travel for all passengers. Goods and services are generally considered ‘accessible’ if physical environments are easy to enter, exit or use safely, independently and with dignity by persons with disabilities or PRM under all circumstances, including emergencies.142 The wide scope of application of the Directive could lead service providers, manufacturers and other operators covered by the Act to feel overwhelmed, which could in turn lead them to rely on the thresholds of ‘dispro Ibid 3–4. Ibid. 135 Ibid. 136 Council Recommendation 98/376/EC on a parking card for people with disabilities [1998] OJ L167/25; Council Recommendation 2008/205/EC adapting Recommendation 98/376/EC on a parking card for people with disabilities [2008] OJ L63/43. 137 Recital 3 Recommendation 98/376/EC. 138 Ibid paras 1–2. 139 EDF, ‘Transport’ www​.edf​-feph​.org/​transport​-1 accessed 9 February 2020. 140 EDF, ‘Position Paper Towards a European Accessibility Act’ (EDF, January 2013) http://​cms​ .horus​.be/​files/​99909/​MediaArchive/​EDF​%20position​%20on​%20the​%20EAA​.doc accessed 9 February 2020. 141 The European Accessibility Act is now otherwise known as Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. 142 Annex 1 Sections I, IV, V, VI and VII Directive (EU) 2019/882. 133 134

Disability in EU transport legislation  195 portionate burden’143 and ‘fundamental alteration’ to a product or service,144 in order to limit their obligations. Therefore, it is crucial that this tendency is limited not only by education and awareness raising, as advanced by organizations such as the European Association for the Co-ordination of Consumer Representation in Standardisation (ANEC),145 but also potentially by instituting business-based incentives to meet obligations.146 A tax rebate for creating accessible websites is available in the United States of America, for instance.147 While the EAA has not suffered the same fate as the 2008 Proposal for a non-discrimination Directive,148 as the Act was approved by the European Parliament on 13 March 2019,149 the impact of the Act within the context of public transport has been criticized by the EDF.150 The fact that the Act does not apply to urban, suburban and regional transport services leaves gaps and inconsistencies concerning access to transport and the built environment between Member States,151 negating the Act’s purpose of bringing EU legislation into line with the CRPD.152 For example, while travel websites and standalone ticketing machines are covered by the EEA, anything integrated into the train building is exempt from the Act, which means that accessibility in those instances can only be achieved by means, inter alia, of ‘reasonable accommodations’.153 The idea of what is ‘reasonable’ permeates both disability and transport law throughout the Union, with little consensus within either the EU or literature. Waddington, for example, highlights the arbitrariness of the term ‘reasonable accommodation’.154 She rightly claims that the decision by the Dutch legislature to change its vocabulary from ‘effective accommodation’ to ‘reasonable accommodation’ is a backward step.155 Waddington identifies three interpretations of the term ‘reasonable accommodation’, referring to accommodations that (i) do not impose ‘excessive difficulties or costs on the employer or other covered party’, or (ii) are ‘effective in

Chapter V and Preamble 64–71 of Directive (EU) 2019/882. Chapter V Directive (EU) 2019/882. 145 European Association for the Co-ordination of Consumer Representation in Standardisation (ANEC), ‘Accessibility’ (ANEC, 2019) https://​anec​.eu/​priorities/​accesibility accessed 9 February 2020. 146 Deborah Kaplan, ‘Public Financing of Information Technology and Human Rights’ in Jonathan Lazar and Michael Ashley Stein (eds), Disability, Human Rights, and Information Technology (University of Pennsylvania Press 2017) 73–93 at 74. 147 United States Access Board, ‘Information and Communication Technology (ICT) Final Standards and Guidelines’ (United States Access Board 23 March 2018) www​.access​-board​.gov/​guidelines​-and​ -standards/​communications​-and​-it/​about​-the​-ict​-refresh/​final​-rule accessed 9 February 2020. 148 Commission, ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final. 149 David Hay, ‘European Accessibility Act: Final Steps on the European Level – First Steps on the National Level’ (European Union of the Deaf 13 March 2019) www​.eud​.eu/​news/​european​-accessibility​ -act​-final​-steps​-european​-level​-first​-steps​-national​-level/​ accessed 11 February 2020. 150 EDF, ‘Our Analysis of the European Accessibility Act’ (EDF 7 June 2019) www​.edf​-feph​.org/​ newsroom/​news/​our​-analysis​-european​-accessibility​-act accessed 11 February 2020. 151 Ibid 3. 152 Ibid 5. See infra Stelios Charitakis, ‘Accessibility of Goods and Services’, in this volume. 153 Article 2 Directive (EU) 2019/882. 154 Lisa Waddington, ‘Reasonable Accommodation – Time to Extend the Duty to Accommodate beyond Disability?’ (2011) 38(2) NJCM Bulletin: Nederlands tijdschrift voor de mensenrechten 186. 155 Ibid. 143 144

196  Research handbook on EU disability law allowing the relevant individual to carry out’ the required tasks, or (iii) are both effective and do ‘not impose significant inconvenience or cost’.156 Similarly divergent terms appear throughout the CRPD in defining the way in which accessibility is to be achieved, both in terms of achieving accessibility through granting a reasonable accommodation and via the accessibility obligations in Article 9 CRPD. The requirement in Article 9(2) CRPD to adopt appropriate measures entails a lower and more subjective standard than the need to eliminate access barriers in Article 9(1) of the Convention. These different thresholds directly contradict the aim of the Convention to ensure the ‘full and effective participation’ of people with disabilities. ‘Appropriate’ can be defined as ‘suitable’ or ‘proper’, while ‘effective’ in Articles 1 and 5 and Preamble (e) refers to ‘producing a desired result’,157 suggesting that there must be a quantifiable programme of implementation. Moreover, the Article 2 definition of reasonable accommodation adds an extra layer of complexity, because it requires that accommodations be ‘necessary and appropriate’, with the term ‘necessary’ imposing a standard that appears to be more stringent than the lower threshold of ‘appropriate’. Whereas Article 5(3) CRPD explicitly states that Parties shall ‘take all appropriate steps to ensure that reasonable accommodation is provided’, the term ‘ensure’ elevates the meaning of ‘appropriate’ here, because it confers certainty in terms of fulfilment. Therefore, States Parties may argue that they have implemented appropriate measures to make transportation accessible if they have addressed the needs of people with a particular kind of disability. If people with disabilities require reasonable accommodation relating to communication or access to information, such as the provision of Braille or Sign Language interpretation, the standard appears to be lower than for physical access, which indicates a more absolutist approach to removing physical barriers, even though other barriers can be equally disabling if they remain. Fears relating to such a hierarchy were evident in the submissions made to the CRPD Committee by a number of representative organizations of persons with disabilities, including the World Federation of the Deaf.158 Pearson proposes that a potential response to this is the re-imagining of ‘reasonable accommodation’, and the attendant limits of undue burden, as providing ‘assurance of rightful access’.159 She has considered its direct application to transport.160 This brings the concept of ‘reasonable accommodation’ in line with the human rights focus of the CRPD, as it emphasizes the enjoyment and implementation of rights for people with disabilities on a substantively equal basis with others.161 The commonality of what is ‘rightful’, as demonstrated by international and supranational law, has the potential to remove some of the plasticity of

Ibid. Oxford Dictionary of English (3rd edn 2010). 158 See World Federation of the Deaf http://​wfdeaf​.org/​resources/​convention​-rights​-persons​ -disabilities/​accessed 12 January 2020. See generally Sherman E Wilcox, Verena Krausneker and David F Armstrong, ‘Language Policies and the Deaf Community’ in Bernard Spolsky (ed), Cambridge Handbook of Language Policy (Cambridge University Press 2012) 374–96. 159 Abigail Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’, Keele University, September 2014. 160 Pearson, ‘The Debate about Wheelchair Spaces on Buses goes “Round and Round”: Access to Public Transport for People with Disabilities as a Human Right’ (n 2). 161 Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’ (n 159). 156 157

Disability in EU transport legislation  197 ‘reasonableness’ in terms of both understanding and implementation.162 While some may argue that the removal of ‘reasonable’ and ‘undue’ burden standards might lead to unsustainable demands in terms of resource allocation,163 Pearson argues that the notion of qualified rights, which require citizens to consider the needs and rights of others, is well established both within society and the law,164 and that it seems odd that only people with disabilities are required to formally acknowledge this each time they make a rights-based claim and for it to be justified in terms of economic rather than social resources.165 Pearson notes that these decisions are rarely made by people with disabilities, and that failure to understand the full impact of making such decisions can have long-term adverse effects on the ability to access the wider rights granted by the CRPD.166 The potential impact of ‘re-imagining’ the concept of ‘reasonable accommodation’ in relation to ensuring access to transport was explored in her analysis of the cases brought in the UK by Doug Paulley,167 a wheelchair user who was prevented from accessing the wheelchair space on a bus when a mother with a pushchair refused to vacate the wheelchair space, despite the fact that the UK Public Service Vehicle Regulations would not permit him to travel outside of his wheelchair.168 While these cases were important, because they clarified the priority to be given to people with disabilities seeking to use a space designated for wheelchairs, Pearson argues that by continuing to predicate this on the concept of ‘reasonable adjustment’ (the UK equivalent of the term ‘reasonable accommodation’) and the willingness of people without disabilities to observe and understand the duty, the court lost an opportunity to anchor the need for differential treatment, or substantive equality,169 in the language of rights170 – by virtue of humanity, rather than granting access as the gift of a ‘benevolent’ society which behaves ‘reasonably’ towards people with disabilities, who have a duty not to be ‘unduly burdensome’ towards others.171 Moreover, in her judgment, Lady Hale was quick to highlight that ‘reasonable adjustments’ did not exist to assist mothers with prams in accessing public transport.172 The fact that Lady Hale felt the need to make such a statement indicates a need for clarity around the concept, not just for lawyers and law-makers, but also for the public and service providers generally. Further cases may be seen in the future due to the confusion around the duty of reasonable accommodation in the EU context.173

Ibid. John Rawls, Justice as Fairness (Universal Law 2001) 48. 164 See www​.coe​.int/​en/​web/​echr​-toolkit/​definitions accessed 11 February 2020. 165 Abigail Pearson, ‘Through Merryman’s Window: The Potential of Undergraduate Liberal Legal Education in England to Create Proactive Critical Citizens and Advance Human Rights’ (Thesis PhD Keele University 2019) 267–85. 166 Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’ (n 159) 1. 167 Paulley v First Group [2013] 9 WLUK 346; First Group v Paulley [2014] EWCA Civ 1573; First Group v Paulley [2017] UKSC 4. 168 Section 12(4) Public Service Vehicle Accessibility Regulations 2000. 169 Aristotle, From the Nicomachean Ethics (n 41) 112–17. 170 Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’ (n 159) 8. 171 Ibid 9. 172 Ibid 12. 173 Waddington, ‘Reasonable Accommodation – Time to Extend the Duty to Accommodate beyond Disability?’ (n 154) 187. 162 163

198  Research handbook on EU disability law There are several examples of EU legislation concerning access to transport for people with disabilities that is incompatible with the CRPD. Several directives have focused on more economically prudent provisions to fulfil their obligations, regardless of how this may affect persons with disabilities in practice. The decision in HK Danmark considers societal and physical barriers to the participation of people with disabilities in employment, and this has the potential to be extended to service industries in the future.174 Clauses relating to the cost implications of adopting accessibility measures or providing reasonable accommodation limit the expectations on transport companies to implement either appropriate,175 or effective,176 measures for passengers with disabilities, as required by the CRPD, in order to ensure personal mobility.177 The language used in the relevant directives to describe people with disabilities indicates that they are the ‘other’. For instance, in its 2007 Opinion, the European Economic and Social Committee (EESC) states that it ‘is not opposed to reduced fares for such passengers, but it does feel that transport companies should not be saddled with the resulting costs’.178 The use of the word ‘saddled’ reflects a perception of access by people with disabilities to transport services as a ‘burden’ on train companies, rather than as an entitlement, without excess cost.179 True enjoyment of human and citizenship rights can never fully be granted to, or enjoyed by, people with disabilities as long as the notions of the ‘reasonableness’ of an accommodation and of ‘undue burden’ remain unchallenged. They will continue to impose limits on the innovations necessary to dismantle the societal and physical barriers facing people with disabilities.180 Legislative instruments should direct transport companies to do what is right, rather than what is convenient.181 Instead of requiring people with disabilities to conform to existing norms, the aim is to develop a concept of ‘equality’ which requires adaptation and change.182 This supports a move away from the current conformity of reasonable accommodation to a rights-based claim, towards the ‘assurance of rightful access’.183 Narrowing the definition of ‘persons with reduced mobility’ to only include people with disabilities may be a positive step forward in preventing cases such as Paulley in the future.184 Clarifying the legislative meanings and differences between ‘people with disabilities’ and ‘persons with reduced mobility’ could also assist in ensuring meaningful access for all, while at the same time acknowledging the specific needs of each group, to best allow service

174 Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’ (n 159) 45. 175 Article 9 CRPD. 176 Article 20 CRPD. 177 Ibid. 178 Opinion 2007/C 168/17 of the European Economic and Social Committee on Transport in urban and metropolitan areas [2007] OJ C168 77-85, para 2.4. 179 Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’ (n 159) 39. 180 Ibid 42. 181 Ibid. 182 Fredman, ‘Equality: A New Generation?’ (n 80) 163. 183 Pearson, ‘A Comparative Study of “Reasonable Adjustment” and “Undue Burden” Provisions for People with Disabilities Accessing Public Transport Services under European Union Law’ (n 159) 42. 184 European Railway Agency, ‘Guide for the Application of the PRM TSI’ (18 May 2015) para 2.2.1 www​.era​.europa​.eu/​sites/​default/​files/​activities/​docs/​iu​_tsi​_guide​_annex01​_prm​_tsi​_en​.pdf accessed 12 February 2020.

Disability in EU transport legislation  199 providers to cater for them. For example, if access for people with disabilities is fully implemented, then it will be of use to others with restricted mobility. However, it is important that measures address the needs of people with disabilities as a primary focus, because if people with disabilities are unable to use adaptations this can lead to psychological impacts such as feelings of failure, as well as physical exclusion, as identified by Reeve.185 This clarification is also important because it acknowledges the specific needs of people with disabilities and their right to have their needs met as members of their societies, rather than simply either because they are granted a ‘gift’ by a charitable government or public or because implementation of the relevant rights is useful or convenient for the already privileged group, which is often cited as a justification for instituting access measures.186 While this may be an incidental factor, it must not be the driving factor in implementation or assessment of reasonableness. Moreover, the publicized experiences of Tanya Lee Davis and Sara Harvey when using mobility scooters on trains in England are instructive. Tanya Lee Davis, a comedian living with dwarfism who uses a mobility scooter to assist her with access generally, was travelling on a train service from Plymouth to London when she was asked to move from the unreserved, unoccupied wheelchair space by a guard from Great Western Railways, to enable a mother with a pram to use the space. She was required to move to the vestibule and when she refused to do so, citing her protection under the relevant law, the guard publicly announced that ‘the woman with the mobility scooter’ was ‘causing problems’ and that the train would be delayed indefinitely.187 The guard also threatened to call the police if Ms Davis did not leave the space. Sara Harvey,188 who has autism and Ehlers-Danlos syndrome, was not permitted to travel with her mobility scooter despite being sold a ticket and provided booking assistance to do so.189 When she changed connection she was not allowed to travel, with the guard telling her that he would not allow the train to depart while she was on board.190 While these instances did not result in legal action, they are indicative of the danger of relying on legislation and regulation alone to lead to changes in practice, and highlight the importance of taking a holistic approach to barriers facing people with disabilities when using public transport rather than merely focusing on individual impairments or mobility aids used.

6.

CONCLUDING REMARKS

While the EU has made significant strides in its legislative approach to access to transport for people with disabilities over time, there are still schisms in its ideological approach and the

185 Donna Reeve, ‘Part of the Problem or Part of the Solution? How Far Do “Reasonable Adjustments” Guarantee Inclusive Access for Disabled Customers?’ in Karen Soldatic, Hannah Morgan and Alan Roulstone (eds), Disability, Spaces and Places of Policy Exclusion (Routledge 2014) 99–114 at 103. 186 Eilionóir Flynn, Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities (Ashgate 2015) 55–58. 187 Telegraph Reporters, ‘Disabled Comedian Tanyalee Davis “Humiliated” by Train Staff Rejects Apology’ (The Telegraph, 18 July 2018) www​.telegraph​.co​.uk/​news/​2018/​07/​17/​comedian​-reject​ -apology​-train​-humiliation​-disability​-scooter/​ accessed 14 February 2020. 188 BBC News, ‘Northern Rail “Sorry” over Mobility Scooter Mishap’ (BBC News, 3 August 2018) www​.bbc​.co​.uk/​news/​uk​-england​-45056781  accessed 14 February 2020. 189 Ibid. 190 Ibid.

200  Research handbook on EU disability law implementation of legislation to bring about desired outcomes. O’Brien has recognized similar difficulties in relation to labour policy and the mobility of benefits for people with disabilities between EU Member States.191 While the EU publicly and ideologically claims to take a social model approach to legislation and other means of prohibiting discrimination on the ground of disability, the social and political rights of citizens with disabilities cannot be fully realized until the approach to provision of transport is unified and brought fully into line with the objectives and focus of the CRPD. Ensuring access to transport is fundamental to people with disabilities being able to access the other rights protected in the CRPD – including those of access to education and work – and to ensuring social participation and inclusion.192 The provision of accessible transportation is central to the EU’s mission, regardless of whether this is looked at through the original economic lens or the later social, cultural and political lens.193 However, this earlier lens of economic prudence is couched in the rhetoric of ‘reasonableness’ and ‘undue burden’, which is a direct affront to the dignity of people with disabilities, and, as recognized by Pearson, without change these shortcomings will remain.194 Evidence of the negative effect of the economic lens in restricting access to transport, even where legislative provisions are in place and in force within economically solvent countries under EU stewardship, is evident in cases such as Paulley,195 and in the publicized experiences of others.196 This highlights, along with the close analysis of provisions within this chapter, that the EU must do more to solidify its commitment to both the social model of disability and the CRPD in relation to its transport policies.

191 O’Brien, ‘Union Citizenship and Disability: Restricted Access to Equality Rights and the Attitudinal Model of Disability’ (n 25) 509–15. 192 See, for instance, Articles 20, 24, 25, 27, 29 and 30 CRPD. See also Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities (n 26) 220, 242 and 253. 193 Bell, Anti-discrimination Law and the European Union (n 21) 6–7. 194 Abigail Pearson, ‘What's Worth Got to Do with It? Language and the Socio-Legal Advancement of Disability Rights and Equality’ (2014) 20(3) Web Journal of Current Legal Issues. 195 First Group v Paulley [2017] UKSC 4. 196 Telegraph Reporters, ‘Disabled Comedian Tanyalee Davis “Humiliated” by Train Staff Rejects Apology’ (n 187); BBC News, ‘Northern Rail “Sorry” over Mobility Scooter Mishap’ (n 188).

12. Disability in EU copyright law Caterina Sganga

1. INTRODUCTION With the advent of digital technologies and the legislative reforms that have ensued, the balance between exclusivity and access which has long been a feature of copyright law has experienced a major earthquake. The increased piracy threats posed by the internet and the change in the business models of creative industries have led legislators to broaden exclusive rights and tighten exceptions to copyright, as well as to employ other balancing tools. This process of legislative reform, triggered in 1996 by the enactment of the two World Intellectual Property Organization (WIPO) Internet Treaties,1 has seen most of the intellectual property (IP)-producing countries or regions, including the European Union (EU), enact digital copyright statutes, with the aim of increasing right-holders’ control over their works. It did not take long, however, for the new provisions to have a negative impact on freedom of expression, the right to receive and impart information, the right to education, the right to take part in cultural life and freedom of research. Scholars began questioning the compatibility of new copyright laws with international human rights obligations,2 while academic scholarship and judicial decisions highlighted the wide array of clashes between copyright enforcement and fundamental rights protection, as dictated by national and regional constitutional charters.3

1 World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), S. Treaty Doc. No. 105–17 (1997); 36 ILM 65 (1997), and WIPO Performers and Producers of Phonograms Treaty (WPPT), S. Treaty Doc. No. 105–17; 36 ILM 76 (1997). 2 See, for example, Lawrence Helfer, ‘Toward a Human Rights Framework for Intellectual Property’ (2007) 40 University of California Davis Law Review 971; Henning Grosse Ruse-Khan, ‘Time for a Paradigm Shift? Exploring Maximum Standards in International Intellectual Property Protection’ (2009) 1 Trade, Law and Development 56; Lea Shaver and Caterina Sganga, ‘The Right to Take Part in Cultural Life: On Copyright and Human Rights’ (2010) 27 Wisconsin International Law Review 637; Daniel Gervais, ‘Intellectual Property and Human Rights: Learning to Live Together’ in Paul Torremans (ed), Intellectual Property and Human Rights (Kluwer Law International 2008) 3–24; and Lawrence Helfer and Graeme Austin, Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University Press 2011). 3 The amount of literature on this point is immense. With regard to the EU, and to mention but a few, see Christophe Geiger, ‘“Constitutionalising” Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the European Union’ (2006) 37(4) International Review of Intellectual Property and Competition Law 371; Tuomas Mylly, ‘The Constitutionalisation of the European Legal Order: Impact of Human Rights on Intellectual Property in the EU’ in Christophe Geiger (ed), Research Handbook on Human Rights and Intellectual Property (Edward Elgar Publishing 2015) 103–31; Jens Schovsbo, ‘Constitutional Foundations and Constitutionalization of IP Law – A Tale of Different Stories’ (2015) 7(4) Zeitschrift fur Geistiges Eigentum 383; Jonathan Griffiths, ‘Taking Power Tools to the Acquis – The Court of Justice, the Charter of Fundamental Rights and European Union Copyright Law’ in Christophe Geiger (ed), Intellectual Property and the Judiciary (Edward Elgar Publishing 2018) 144–74; Jane C Ginsburg and André Lucas, ‘Copyright, Freedom of Expression and Free Access to Information (Comparative Study of American and European Law)’ (2016) 249 Revue internationale du

201

202  Research handbook on EU disability law Despite this, little or no attention has been paid to the challenges posed by copyright to access to knowledge and participation in cultural life by people with disabilities. Copyright represents only one worsening factor on top of the flaws that already afflict the market of accessible works. Recent studies have highlighted how, in the early 2010s, only 5 per cent of books worldwide were available in Braille – this figure is as low as 1 per cent in developing countries. This is mostly due to the high cost of production of accessible copies, the scarce public funding available in support of accessibility projects, and almost non-existent private investment (disincentivized by the limited pool of customers and the high start-up costs).4 In the past two decades the development of digital technologies created the conditions for easier and cheaper access to accessible cultural materials, lowering production costs, facilitating cross-border exchanges, increasing the collections available via mass-digitization projects and offering new solutions, such as text-to-speech software and other devices that allow visually impaired individuals to enjoy cultural heritage sites and works.5 Yet, legislators have long failed to leverage these opportunities and introduce in their digital copyright laws provisions allowing such technologies to remedy market failures and foster access to knowledge for people with disabilities. Rather, some of the regulatory innovation that has occurred – chiefly the enforcement of technological measures of protection (TMPs) – has blocked or made it more difficult for users and cultural intermediaries, such as libraries, museums and other cultural heritage or educational institutions, to use traditional copyright exceptions for improving accessibility to cultural materials.6 Despite the fact that disability exceptions were not unknown to national copyright laws, it was not until the negotiations for the WIPO Marrakesh Treaty to Facilitate Access to Published

droit d’auteur 4; P. Bernt Hugenholtz, ‘Copyright and Freedom of Expression in Europe’ in Rochelle Cooper Dreyfuss, Diane Leenheer Zimmerman and Harry First (eds), Expanding the Boundaries of Intellectual Property (Oxford University Press 2001) 343–63; see also Jonathan Griffiths and Uma Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses (Oxford University Press 2005). 4 See, in particular, WIPO Standing Committee on Copyright and Related Rights (WIPO SCCR), ‘Background Paper by Brazil, Ecuador and Paraguay on a WIPO Treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons’, SCCR/19/13 Corr. (2009), Annex 1.2; World Blind Union (WBU), ‘Press Release for WIPO Book Treaty’ (17 June 2013) www​.worldblindunion​ .org/​English/​news/​Pages/​JUne​-17​-Press​-Release​-for​-WIPO​-Book​-Treaty​.aspx accessed 1 February 2020; Maryanne Diamond, ‘Opening Remarks’ (18 June 2013) www​.worldblindunion​.org/​English/​ news/​Pages/​WIPO​-Opening​-Remarks​-by​-Maryanne​-Diamond​.aspx accessed 1 February 2020; Abigail Rekas, ‘Access to Books: Human Rights, Copyright and Accessibility’ in Constantine Stephanidis and Margherita Antona (eds), Universal Access in Human-Computer Interaction: Applications and Services for Quality of Life (Springer 2013) 382–88; Paul Harpur and Nicolas Suzor, ‘Copyright Protections and Disability Rights: Turning the Page to a New International Paradigm’ (2013) 36(3) University of New South Wales Law Journal 745. 5 See Abbe Brown, Shawn Harmon and Charlotte Waelde, ‘Do you See What I See? Disability, Technology, Law and the Experience of Culture’ (2012) 43(8) International Review of Intellectual Property and Competition Law 925. 6 See, in this respect, the study presented before the WIPO SCCR by Nic Garnett, WIPO SCCR, ‘Automated Rights Management Systems and Copyright Limitations and Exceptions’, SCRR/14/5 (2006), immediately following the study on digital exceptions prepared by Sam Ricketson, WIPO SCCR, ‘Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment’, SCRR/9/7 (2003).

Disability in EU copyright law  203 Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (WMT)7 that international and national policy-makers considered the need for an exception with cross-border effects to tackle the problem. The push for a change came, as is often the case in the realm of IP law,8 from an international human rights convention, the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). That Convention recognizes the right of persons with disabilities to take part on an equal basis with others in cultural life (Article 30), requiring States Parties to take all appropriate measures to ensure that persons with disabilities enjoy access to cultural materials, television programmes, films, theatre and other cultural activities in accessible formats, and to take steps ‘to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials’. It also laid the groundwork for the development of an international regulatory framework – the WMT – which could make it possible for States to join forces in the adoption of more structured interventions. In light of the above, the following sections will offer a diachronic overview of the EU regulatory responses to the ‘book famine’ for visually impaired individuals, assessing the strengths and weaknesses of EU action in the field. Particular attention will be devoted to the optional exception under Article 5(3)(b) of the InfoSoc Directive,9 and its implementation at national level (section 2); the Memorandum of Understanding of 2011 (section 3); and the Directive and Regulation implementing the WMT, enacted in 2017 (sections 4 and 5). Section 6 will assess the current compliance of the Union with the obligations arising from Article 30 CRPD, and will sketch future perspectives on the road ahead, while section 7 will present concluding remarks.

2.

EARLY REFERENCES: THE DISABILITY EXCEPTION UNDER DIRECTIVE 2001/29/EC (INFOSOC DIRECTIVE) AND ITS IMPLEMENTATION AT NATIONAL LEVEL

Adopted to comply with the international obligations arising from the WIPO Internet Treaties,10 which were signed and ratified by the EU as a unitary delegation, the InfoSoc Directive harmonized Member State responses to the digital revolution in the field of copyright. The Directive modernized traditional rights (reproduction and distribution),11 introduced new ones (right of communication to the public and making available right),12 and provided

7 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, VIP/DC/8 REV (2013). 8 The process has been labelled as ‘regime shifting’. See Lawrence Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2004) 29(1) Yale Journal of International Law 1. 9 Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 (InfoSoc Directive). 10 The WIPO Internet Treaties are the WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 2186 UNTS 121; 36 ILM 65 (1997) (hereinafter WCT), and the WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 2186 UNTS 203; 36 ILM 76 (1997) (WPPT). 11 Articles 2 and 4 InfoSoc Directive. 12 Article 3 InfoSoc Directive.

204  Research handbook on EU disability law remedies for the circumvention of TMPs.13 Compared to its resolute intervention to combat digital threats, however, the EU legislator did not pay similar attention to the need to ‘update’ the copyright balance, nor did it sufficiently channel digital opportunities to increase access to, and participation in, cultural life. In line with the scant attention devoted to the matter by the WIPO Treaties,14 Article 5 of the InfoSoc Directive merely offered a list of optional exceptions, leaving Member States free to decide on their implementation, thus declining to harmonize across the Union, in clear opposition to the pervasive harmonization of exclusive rights. Despite the daunting starting point, the InfoSoc Directive also represented the first EU text that demonstrated awareness of the impact that copyright may have on access to culture for people with disabilities.15 Recital 43 required Member States to ‘adopt all the necessary measures to facilitate access to works by persons suffering from a disability which constitutes an obstacle to the use of the works themselves, and to pay particular attention to accessible formats’. In line with this Recital, Article 5(3)(b) introduced an optional exception for the ‘uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability’. In addition, Article 6(4) included it among the limitations which should be preserved against the enforcement of TMPs, requiring Member States to intervene with appropriate measures in case of right-holders’ inertia. As expected, the optional nature of the exception and the broad language used caused a marked fragmentation in the solutions adopted at the national level. All Member States implemented Article 5(3)(b), but the content of the disability exception across the EU became everything but consistent and streamlined.16 With regard to the types of disabilities covered, some national provisions included a general reference (for example, Austria, Belgium, Croatia, the Czech Republic, Germany, Hungary, Ireland, Italy, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia and Sweden); others limited it to blindness (Bulgaria, implicitly; Estonia and Spain), or blindness and Deafness (Greece and Latvia). In other countries the exceptions are limited, ratione personae, to combinations of disabilities which cause the inability to read (Denmark, Finland, France, Lithuania and the United Kingdom). Due to the absence of any reference in the InfoSoc Directive, Member States did not agree on a common definition of accessible formats. Similarly, they provided diverging responses as to the rights covered by the exception. Some of them limited the exception to reproduction rights (Bulgaria, Croatia, Greece, Lithuania and Spain), while others also extended it to distribution rights (Austria, the Czech Republic, Estonia, Germany, Hungary, Ireland, Latvia, the Netherlands, Slovenia and the United Kingdom) or to various combinations of other rights, ranging from communication/making available to the public, to public performance, rental and lending (Belgium, Denmark, Finland, France, Italy, Luxembourg, Article 6 InfoSoc Directive. The Treaties provide only a non-mandatory list of exceptions in Article 10 WCT and Article 16 WPPT. 15 Directive 96/9/EC on the legal protection of databases [1996] OJ L77/20 (Database Directive), for example, does not mention disability; thus, the InfoSoc exception does not apply to the sui generis right (Article 7). 16 For an overview, see Judith Sullivan, ‘Study on Copyright Limitations and Exceptions for the Visually Impaired’, SCRR/15/7, prepared for the 15th Session of the Standing Committee on Copyright and Related Rights (World Intellectual Property Organization 20 February 2007) www​.wipo​.int/​edocs/​ mdocs/​copyright/​en/​sccr​_15/​sccr​_15​_7​.pdf accessed 1 February 2020. 13 14

Disability in EU copyright law  205 Malta, Poland, Portugal, Slovakia and Sweden). Some countries required the payment of fair remuneration to right-holders (Austria, Germany, the Netherlands, Slovenia; Denmark, only for recordings; Sweden, in case of libraries and other organizations or in case of distribution of more than a modest number of copies).17 Then, in full disregard of the indications contained in Article 6(3) of the InfoSoc Directive, a number of Member States omitted any reference to the interplay between TMPs and disability exceptions (Austria, Bulgaria, Finland, Hungary, Italy, Poland, Slovakia and Spain). Some other Member States provide mere declamatory statements on the need to avoid conflicts between TMPs and exceptions (the Czech Republic and Ireland), while other national laws designate governmental agencies or courts to mediate in the event of clashes (Croatia, Denmark, Estonia, France, Germany, Greece, Latvia, Lithuania, the Netherlands, Portugal, Slovenia, Sweden and the United Kingdom). Such a lack of harmonization, coupled with national rules that ban or restrict importation and with the non-applicability of the principle of exhaustion to copies distributed under an exception, have made it hard or impossible to proceed to the exchange of accessible copies within Member States. This has led to duplication of the cost and effort required for their production and distribution, and reduction of the range and variety of accessible works for disabled EU citizens.18 Aware of the effects of the unharmonized framework on the free movement and dissemination of knowledge for research, science and education, which is indispensable to achieving a ‘more inclusive and cohesive society’ and to providing equality of opportunities, the Green Paper on Copyright in the Knowledge Economy launched a consultation on the possibility to broaden and clarify the disability exception.19 In particular, the Green Paper put forward the idea of also including such an exception in the Database Directive,20 of excluding fair compensation and of introducing parallel schemes compelling publishers to share the master copies of protected works in accessible formats, or incentivizing them to conclude licence agreements having the same aim. The follow-up Communication framed the proposal as being necessary to comply with the CRPD,21 noting how, under the InfoSoc Directive disability exception, the percentage of books in accessible formats in the Union had not gone beyond 5 per cent of the works published yearly, 95 per cent of which are produced and distributed by ‘specialist agencies, funded through charities or public subsidies, working under copyright exceptions’. This circumstance made the model unsustainable in the long run and resulted in a request for immediate intervention, involving private actors.22 The Commission identified as root causes of the market immobility the uncertainty, high cost and barriers to cross-border commerce of accessible works created by unharmonized national exceptions. It also claimed that the obstacles to the enjoyment of accessible works were often created by TMPs.23 In that connection, the Commission proposed the constitution of a stakeholder

Ibid. Ibid 47–64. 19 Commission, ‘Green Paper: Copyright in the Knowledge Economy’ COM (2008) 466 final, pp. 13–16. 20 Directive 96/9/EC on the legal protection of databases [1996] OJ L77/20. 21 Particularly to ensure compliance with Articles 4, 9, 21 and 30 CRPD. See Communication from the Commission, ‘Copyright in the Knowledge Economy’ COM (2009) 532 final, p. 8. 22 Ibid. 23 Ibid. 17 18

206  Research handbook on EU disability law forum that would be in charge of discussing and formulating policy reforms to tackle the book famine, using the CRPD obligations as a benchmark.24

3.

GOING PRIVATE TO COMPLY WITH THE CRPD? THE MEMORANDUM OF UNDERSTANDING AND THE ADVENT OF THE EUROPEAN NETWORK OF TRUSTED INTERMEDIARIES

The stakeholder forum mentioned above in section 2 produced a Memorandum of Understanding (MoU), which was signed, under the auspices of the EU Commission, on 14 September 2010 by the European Blind Union (EBU) and a number of associations of right-holders.25 The MoU pursued the goal of increasing the number of works in accessible formats and allowing their cross-border exchange on the basis of a network of Trusted Intermediaries (TIs) and of a standardized licence agreement.26 To reduce the uncertainty created by unharmonized national laws, the MoU proposed the application of the disability exception of the country where the accessible copy was first made.27 With regard to the licence agreement, it provided a detailed list of beneficiaries (that is, blind or visually impaired individuals, or those who are unable to hold or manipulate a work or to focus or move their eyes for reading purposes due to physical disability or dyslexia)28 and right-holders (that is, the author, publisher or organization authorized to represent them).29 It also qualified as accessible content any work ‘originally published in accessible format or later modified in format or adjusted by the user’.30 TIs were identified in non-profit entities having as their institutional mission the provision of works in accessible formats for disabled individuals.31 In compliance with the guidelines provided by the EBU and other stakeholders,32 TIs were requested to build and maintain a register of the relevant beneficiaries and verify their eligibility through standardized procedures; stipulate licence agreements with right-holders for the cross-border distribution of accessible works; guarantee the compliance of beneficiaries

Ibid 9. The Federation of European Publishers, the European Writers Council, the European Dyslexia Association, the International Federation of Reproduction Rights Organisations and the International Association of Scientific, Technical and Medical Publishers. See Commission, ‘EU Stakeholders Dialogue Memorandum of Understanding (MoU) on Access to Works by People with Print Disabilities’ (Commission 2010). 26 Modelled on successful national collective agreements between cultural institutions, non-profit organizations and publishers for the production and distribution of accessible works, such as those stipulated in Denmark and France. See Abbe Brown and Charlotte Waelde, ‘Human Rights, Persons with Disabilities and Copyright’ in Christophe Geiger (ed), Research Handbook on Human Rights and Intellectual Property (Edward Elgar Publishing 2015) 577–601, p. 588. 27 Article 2(1) MoU. 28 Article 2(a)–(e) MoU. 29 Article 3 MoU. 30 Article 4 MoU. 31 Article 5 MoU. 32 Article 6(c) MoU. Signatories are in charge of drafting Guidelines for Trusted Intermediaries (TIs) to regulate their system of accreditation and the body in charge to administer it, their role, and their obligations related to transparency, data collection and content security. 24 25

Disability in EU copyright law  207 with copyright law; and make sure that the latter enter into end-user licence agreements before accessing the works.33 The MoU’s system of mutual recognition of TIs in the EU is aimed at smoothing the cross-border circulation of accessible works through the central accreditation of intermediaries and the appointment of a representative of right-holders in each country, who is in charge of taking care of every clearance-related matter.34 The objective of abating production costs was pursued by incentivizing publishers to release onto the market accessible copies of their works at the time of first publication, and by training them to use the WIPO Enabling Technologies Framework to facilitate the process.35 In the event that works in accessible formats were unavailable, TIs were authorized to generate them, distribute them or acquire them from another TI, within the same country or from abroad.36 To this end, the MoU planned the creation of an EU-wide online catalogue of accessible works, indicating whether they were under copyright or in the public domain, and whether they were distributed under a national exception or under a TI-administered licence.37 To implement the Memorandum, its signatories launched the European Network of Trusted Intermediaries (ETIN), based in Brussels. TIs had to sign the ETIN national licence agreement and apply to the ETIN Board to be accredited as members of the network and benefit from the favourable treatment provided by the MoU. Each national agreement, standardized and available online, involved national right-holders or their representatives, and authorized the production and distribution of accessible copies of their works.38 The Europe 2020 Digital Agenda Action No. 65 (on helping disabled people to access content), part of the fourth pillar devoted to digital literacy and inclusion and having as its aim to increase the number of accessible works in the EU in order to comply with Article 30 CRPD, listed the MoU and ETIN as the most important achievements of the Commission designed to promote the right of people with disabilities to take part in cultural life.39 Along the same line, in the Staff Working Document accompanying the European Disability Strategy 2010–2020, the Commission reiterated its plan to achieve greater accessibility and comply with Article 30 CRPD through the promotion of voluntary agreements, and used the MoU as a successful example of such.40 To achieve more effective participation in cultural life of people with disabilities and to promote their access to cultural materials, the document aimed

Article 5(4) MoU. Article 6(b) MoU. 35 Article 6(a) MoU. On the WIPO Enabling Technologies Framework, developed by a three-year project (2010–2013) funded by the WIPO, endorsed by the Stakeholder Platform of WIPO, and carried out by EDItEUR and the DAISY Consortium, see www​.editeur​.org/​158/​Enabling​-Technologies​ -Framework/​accessed 3 February 2020. 36 Article 6(b) MoU. 37 Article 6(e) MoU. 38 The by-laws, accreditation guidelines and licence agreement of the European Trusted Intermediary Network (ETIN) are still available, inter alia, at https://​fep​-fee​.eu/​ETIN​-Board​-finally​-approved accessed 3 February 2020. 39 See Commission, ‘Overview of Progress on the 132 Digital Agenda Actions Inclusive Digital Agenda Review Package’, p.  12 https://​ec​.europa​.eu/​newsroom/​dae/​document​.cfm​?doc​_id​=​5007 accessed 5 February 2020. 40 Commission, ‘Staff Working Document accompanying the Communication European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe. Initial Plan to Implement the European Disability Strategy 2010–2020. List of Actions 2010–2015’ COM (2010) 636 final, p. 4. 33 34

208  Research handbook on EU disability law to increase the cross-border distribution of accessible copies of works, something that has long been hampered by legal and technical obstacles.41 At the same time, it seemed to exclude the need for additional policy interventions or amendments to the disability exception provided by the InfoSoc Directive, lamenting only its ineffective implementation at national level.42 The Commission’s optimism, however, was not mirrored in the responses to the Public Consultation on the Review of the EU Copyright Rules.43 In that consultation, end-users with disabilities lamented low accessibility levels, obstacles to the enjoyment of exceptions created by TMPs, and uncertainty and chilling effects on the import/export of accessible copies due to the fragmented implementation of Article 5(3)(b) of the InfoSoc Directive. At the same time, they pointed out how licences had not been able to live up to the Commission’s expectations that depicted them as the most efficient regulatory solution to achieve greater access to, and accessibility of, protected works. End-users with disabilities anticipated EU implementation of the WMT and the introduction of a standardized exception to satisfy their cultural needs.44 For publishers, on the other hand – who favoured market-based solutions as the most incentivizing regulatory option – the MoU represented the optimal solution.45 The process of ratification of the WMT took much longer than expected. The EU itself ratified the Treaty only in October 2018, with a delay caused by the disagreement between the EU and its Member States on terms and competences.46 Until that point, the main sources of international obligations related to access to culture for people with disabilities remained the International Covenant on Economic, Social and Cultural Rights (ICESCR) and, much more importantly, the CRPD, compliance with which has been measured on the basis of the Guidelines for periodical reports prepared by the Committee on the Rights of Persons with Disabilities (CRPD Committee).47 The key provisions of the CRPD related to access to culture are Article 24 on education, according to which States Parties are expected to adopt ‘legislative and other measures that ensure that schools and materials are accessible and that individualized reasonable accommodation and support required by persons with disabilities is provided to ensure effective education and full inclusion’, and Article 30 on participation in cultural life, requiring measures to be taken ‘to recognize and promote the right of persons with disabilities to take part on an equal basis with others in cultural life, including opportunities to develop and utilize their creative, artistic and intellectual potential’ and ‘to ensure that

Ibid 8. Ibid. 43 Commission, ‘Report on the Responses to the Public Consultation on the Review of the EU Copyright Rules, July 2014’ (Commission July 2014) https://​ec​.europa​.eu/​digital​-single​-market/​en/​ news/​modernisation​-eu​-copyright​-rules​-useful​-documents accessed 5 February 2020. 44 Ibid 61–62. 45 Ibid 62. 46 The Treaty was signed on behalf of the Union on 30 April 2014 (Council Decision 2014/221/ EU on the signing, on behalf of the European Union, of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled [2014] OJ L115/1). For an analysis of the key points of the debate, see Ana Ramalho, ‘Signed, Sealed, but not Delivered: The EU and the Ratification of the Marrakesh Treaty’ (2015) 6(4) European Journal of Risk Regulation 629. 47 See Committee on the Rights of Persons with Disabilities (CRPD Committee), ‘Guidelines on Periodic Reporting to the Committee on the Rights of Persons with Disabilities, Including Under the Simplified Reporting Procedures’, UN Doc. CRPD/C/3 (2016), illustrating the information to be provided on the implementation of Articles 1 to 33 of the UN Convention. 41 42

Disability in EU copyright law  209 intellectual property laws do not become a barrier for persons with disabilities in accessing cultural materials, including participation in relevant international efforts’. A closer look at Member States’ reports to the CRPD Committee helps to verify the degree of compliance with the CRPD before the entry into force and implementation of the WMT.48 It also indirectly enables an understanding of the sensitivity that national legislators have felt with regard to the interplay between access to culture for people with disabilities and copyright, and their perception of the link between CRPD obligations and the shaping of national copyright laws. Interestingly, the number of EU countries referring to their copyright exception(s) is limited (Austria, Bulgaria, Hungary, Italy, Lithuania, Poland, Slovakia, Sweden and the United Kingdom). Only Sweden perceives the need to discuss the effectiveness of the exception on the availability of accessible works, which entails the possibility to create copies in Braille also with digital technologies and requires a separate decision from the government in case of production of sound recordings such as talking books, reporting that ‘since 1 July 2005, when the new provisions entered into force, the Government has granted approximately 200 such permissions annually to various libraries and organisations’.49 Poland notes that despite the copyright exception, only 5 per cent of publications are available in accessible format,50 while the United Kingdom is the only State that mentions the adoption of measures to incentivize the commercial production and distribution of copies in accessible formats, with the government supporting stakeholder dialogues that ‘aim to encourage best practices in the use of digital technologies and to seek solutions across the industry that will make copyright works more accessible for the visually impaired’.51 On the contrary, the large majority of Member States refer only to solutions that are publicly managed and funded, such as cultural initiatives, national digitization of cultural heritage and library programmes aimed at promoting acces-

48 Reports are available for download at https://​tbinternet​.ohchr​.org/​_layouts/​15/​treatybodyexternal/​ TBSearch​.aspx​?Lang​=​en​&​TreatyID​=​4​&​DocTypeID​=​29 accessed 7 February 2020. 49 CRPD Committee, ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Sweden’, UN Doc. CRPD/C/ SWE/1 (2011), para 169. Also Finland, France, Hungary, Italy, the Netherlands and Slovakia cursorily mention their copyright disability exception, but with no additional comments. See CRPD Committee, ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Finland’, UN Doc. CRPD/C/FIN/1 (2019) para 442; ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – France’, UN Doc. CRPD/C/FRA/1 (2017) para 302; ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Italy’, UN Doc. CRPD/C/ITA/1 (2015) para 170; ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Hungary’, UN Doc. CRPD/C/HUN/1 (2011) para 238; ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Slovakia’, UN Doc. CRPD/C/SLK/1 (2014) para 391; ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – the Netherlands’, UN Doc. CRPD/C/NED/1 (2019) para 339. 50 CRPD Committee, ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Poland’, UN Doc. CRPD/C/POL/1 (2015) para 519. 51 CRPD Committee, ‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – the United Kingdom’, UN Doc. CRPD/C/GBR/1 (2011) para 333.

210  Research handbook on EU disability law sible translations and publications.52 The EU’s initial report to the CRPD Committee instead showcases the InfoSoc exception and the MoU as examples of a multi-level regulatory strategy that uses a licence-based solution to circumvent the obstacles created by unharmonized national exceptions. The EU report also suggests that this regulatory strategy supports the creation of an efficient market for accessible works run by commercial publishers, who would never be incentivized to invest in the endeavour if a top-down legislative exception were to be the only regulatory framework in place.53 The reports to the CRPD Committee denote the passive attitude of national legislators, which in fact does not differ much from the style adopted in the periodic reports to the Committee on Economic, Social and Cultural Rights (CESCR) under the ICESCR. Also in that context, the CESCR Reporting Guidelines ask contracting Parties to emphasize the national interplay between copyright and the right to take part in cultural life,54 with an explicit mention of the opportunities offered to disabled individuals; however, only a handful of State Party reports respond with an impact assessment of their copyright exception on access to culture and participation in cultural life,55 and no reference is made to shortages of accessible books. As in the case of CRPD reports, these reports mention only traditional measures directed at fulfilling the right to take part in cultural life through public funding to the benefit of libraries and other organizations for the blind. This approach will change with the ratification of the WMT.

52 See, for example, the latest reports from Austria (‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Austria’, UN Doc. CRPD/C/AUT/1 (2011) para 333 et seq); Croatia (‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Croatia’, UN Doc. CRPD/C/HRV/1 (2013) para 218 et seq); the Czech Republic (‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Czech Republic’, UN Doc. CRPD/C/CZE/1 (2013) para 456); Denmark (‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Denmark’, UN Doc. CRPD/C/DNK/1 (2013) para 337); and Estonia (‘Implementation of the Convention on the Rights of Persons with Disabilities – Initial Report Submitted by States Parties under Article 35 CRPD – Estonia’, UN Doc. CRPD/C/EST/1 (2017) para 229). 53 See CRPD Committee, ‘European Union – Consideration of Reports Submitted by States Parties under Article 35 of the Convention, Initial report of States Parties due in 2012’, UN Doc. CRPD/C/ EU/1 (2014) para 174. Yet, the Marrakesh Treaty is still mentioned as an additional and welcome tool to enhance the cross-border exchange of accessible copies. 54 UN Economic and Social Council, Committee on Economic, Social and Cultural Rights, ‘Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights’, UN Doc. E/C.12/2008/2 (2009). 55 In the EU, only Belgium (CESCR, ‘Implementation of the ICESCR, Fourth Periodic Reports Submitted by State Parties under Articles 16 and 17 of the Covenants – Belgium’, UN Doc. E/C.12/ BEL/4 (2012) para 386 et seq) makes such a reference. Reports are available at https://​tbinternet​.ohchr​ .org/​_layouts/​15/​treatybodyexternal/​TBSearch​.aspx​?Lang​=​en​&​TreatyID​=​9​&​DocTypeID​=​29 accessed 9 February 2020.

Disability in EU copyright law  211

4.

FROM THE DEBATE BEFORE THE WORLD INTELLECTUAL PROPERTY ORGANIZATION TO APPROVAL OF THE MARRAKESH TREATY

The Marrakesh Treaty is the product of a long process of negotiation, which inevitably narrowed down its scope and revolutionary potential. Yet, its text represents the most effective response that international copyright law has provided to the human rights obligations of Article 30 CRPD to date. 4.1

The Four Proposals Tabled

After the entry into force of the UN Convention, the debate on the obstacles imposed by copyright laws to access to, and participation in, cultural life for people with disabilities was revived, and led to the tabling of two treaty proposals in 2009 and 2010 – the first drafted by the World Blind Union (WBU) and advanced by Brazil, Ecuador and Paraguay;56 the second presented by the African Union.57 Both proposals contained broad definitions of beneficiaries, disabilities and works covered, and also provided an exception for commercial entities if pursuing non-profit goals, and import/export of copies without the involvement of trusted intermediaries. In response, the EU and the United States of America proposed two soft law instruments.58 The EU Joint Recommendation limited the list of beneficiaries, inter alia, to individuals with print disabilities and dyslexia, and authorized the creation and distribution of accessible works only to a network of TIs, made by non-profit entities in charge of running a database of beneficiaries and managing procedures to control piracy risks. Right-holders could have opposed the exercise of the exception at any time. The US Consensus Instrument that was proposed to postpone the discussion on the enactment of a mandatory disability exception provided as a temporary solution to the book famine the possibility of importing/ exporting outside the TIs’ network, where copies were lawfully acquired.59 Parallel to this debate, the WIPO launched the Trusted Intermediary Global Accessible Resources Project (TIGAR).60 Similar to the ETIN in its approach and goals, the TIGAR was composed of a network of TIs and provided collective licensing schemes to facilitate the cross-border circulation of master files and intermediate copies of accessible works, with the aim of building accessible global libraries and reducing duplications in production efforts and costs. The rationale behind the project was that a market-based solution, allowing right-holders to maintain control over their works, would have stimulated private investments, thus creating a flourishing market of accessible copies that would otherwise be frustrated by rigid legislative

56 WIPO SCCR, ‘Proposal by Brazil, Ecuador and Paraguay, Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU)’, SCCR/18/5 (2009). 57 WIPO SCCR, ‘Draft WIPO Treaty on Exceptions and Limitations for the Disabled, Educational and Research Institutions, Libraries and Archive Centers’, SCCR/20/11 (2010). 58 WIPO SCCR, ‘Draft Joint Recommendation Concerning the Improved Access to Works Protected by Copyright for Persons with a Print Disability’, SCCR/20/12 (2010). 59 WIPO SCCR, ‘Draft Consensus Instrument’, SCCR/20/10 (2010). 60 WIPO SCCR, ‘Stakeholders’ Platform Launches Project to Facilitate Access by VIPs to Published Works’, UN Doc. PR/2010/668 (2010).

212  Research handbook on EU disability law exceptions that relied instead on public funding and efforts.61 Despite the initial enthusiasm, however, several important participants – chiefly the WBU – progressively quit the project because of its complexity and malfunctioning, causing a substantial slowdown.62 In parallel, three out of the four proposals were merged in a compromise text, which expanded the mandatory exception to cover the rights of reproduction, distribution and making available to the public, but always in compliance with the three-step test, and with beneficiaries limited to private disabled individuals and authorized entities. Authorized entities are those which are authorized by the government to provide education, training, adaptive reading or information access to beneficiaries on a non-profit basis.63 Sanctions for the circumvention of TMPs were excluded if the circumvention was necessary to exercise the exception, and the import/export of accessible copies obtained legally was also allowed without the intervention of TIs.64 4.2

A Compromise Text

After a heated debate, the treaty text was further modified and limited. The proposal to leave to contracting Parties the discretion to introduce a specific exception or an open-ended fair use clause was immediately rejected due to the resolute opposition of right-holders, but the exception was still declared mandatory – a historical innovation in international copyright law.65 The strong clash between diverging views shed light on the incompatibility of the CRPD’s social-contextual model of disability with the narrow approach to exceptions that is typical of the international standardization of copyright.66 In its final version the WMT covers only literary and artistic works in the form of text, notations and illustrations,67 and contracting States are free to provide that the exception is subject to the payment of fair compensation and is excluded if the work is already available on the market in accessible formats (defined in a technologically neutral manner) under reasonable term.68 Beneficiaries covered by the WMT are only: (i) individuals having print disabilities, who are allowed to make private accessible 61 Patrick Hely, ‘A Model Copyright Exemption to Serve the Visually Impaired: An Alternative to the Treaty Proposals before WIPO’ (2010) 43 Vanderbilt Journal of Transnational Law 1369, pp. 1396–97. See also Shira Perlmutter, ‘From Paralysis to Progress: The (Useful) Art of Copyright Pragmatism’ (2014) 61 Journal of Copyright Society of the USA 561, pp. 571–72. 62 World Blind Union (WBU), ‘WBU Suspension of Activity on WIPO and Stakeholder Platforms’ (WBU, 26 February 2011) www​.worldblindunion​.org/​English/​our​-work/​our​-priorities/​Pages/​WBU​ -Suspension​-of​-Activity​-on​-WIPO​-and​-Stakeholder​-Platforms​.aspx accessed 17 February 2020. 63 Article 2(c) WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (WMT). 64 WIPO SCCR, ‘Proposal on an International Instrument on Limitations and Exceptions for Persons with Print Disabilities’, SCCR/22/15 Rev. 1 (2011). 65 Save for the quotation exception in Article 1 Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as revised at Stockholm on 14 July 1967, 828 UNTS 221. 66 Harpur and Suzor, ‘Copyright Protections and Disability Rights: Turning the Page to a New International Paradigm’ (n 4) 761; Brown and Waelde, ‘Human Rights, Persons with Disabilities and Copyright’ (n 26) 596–97; see, more generally, P Bernt Hugenholtz and Ruth Okediji, ‘Contours of an International Instrument on Limitation and Exceptions’ in Neil W Netanel (ed), The Development Agenda: Global Intellectual Property and Developing Countries (Oxford University Press 2009) 473–97, p. 475. 67 Article 2(a) WMT. 68 Article 4(5) WMT.

Disability in EU copyright law  213 copies from works to which they have lawful access; and (ii) authorized entities, recognized by national governments and having as their mission the provision of access, education or training to disabled persons on a non-profit basis, and which can make, obtain and supply accessible copies of protected works, modifying them only to the extent necessary to realize accessibility.69 Authorized entities are also entrusted with eligibility checks of beneficiaries, the maintenance of records of distributed copies and control of piracy risks.70 They operate in an international network, with the aim of reducing production costs and increasing the number and variety of accessible copies available through their legitimate cross-border circulation. To tackle the obstacles created by TMPs, which hinder the production of accessible copies, the WTM requests contracting Parties to ensure that the exercise of the mandatory exception is not frustrated by their imposition on digital copies of protected works and by national legal remedies provided to prevent their circumvention.71 Barriers to cross-border trade of accessible works are addressed by imposing on States the obligation to allow beneficiaries to import accessible works, and by enabling authorized entities to distribute and make available accessible works to other contracting countries, to the extent that they are not aware – nor can they reasonably be aware – of the risk that the copy is used by persons other than a beneficiary.72 The WIPO International Bureau should facilitate the cooperation among contracting states and the exchange of information between authorized entities.73 The WMT addresses most of the definitory and market problems engendered by the lack of supranational standardization of the disability exception, making its adoption mandatory and harmonizing key notions such as those of ‘disability’, ‘accessible works’ and ‘exclusive rights’.74 Yet, compared to the broader goals of the CRPD, it represents only a partial victory, for it includes only print disabilities and proposes a relatively traditional response to the book famine (albeit arguably a more effective one). It also interprets disability as a ‘deviation’, which has to be tolerated and managed through an exception, rather than considered through the lens of the social-contextual model for which the CRPD advocates. This approach is not far from the solution proposed by the InfoSoc Directive, whose optional format and highly vague and general wording has triggered fragmentation. In that sense, the WMT might risk (as the InfoSoc Directive did) reinforcing the effects of copyright territoriality, thus creating further obstacles to the circulation of accessible works in the internal market – a circumstance that has long frustrated the EU-wide battle against the book famine, punctuating it with additional legal challenges. The regulatory option proposed by the WMT is flexible, and has been conceived to leave room for market-based solutions and to incentivize private initiatives. Yet, despite the careful balancing of opposed interests, its final version has still been subject to strong critique from those who argue that a broad mandatory exception is prone to have severe chilling effects on private investments in the production and distribution of accessible copies.75 There remains a perduring divide between those who advocate an intervention in the form of exceptions only Article 4(2)(a)–(b) WMT. Article 2(c) WMT. 71 Article 7 WMT. 72 Article 5(2) WMT. 73 Articles 9(1) and (3) WMT. 74 Article 2 WMT (disability and work) and Article 4(1) WMT (exclusive rights covered). 75 The debate is illustrated in great detail by Harpur and Suzor, ‘Copyright Protections and Disability Rights: Turning the Page to a New International Paradigm’ (n 4) 761–68. 69 70

214  Research handbook on EU disability law in the event of market failure, and those who read Article 30(3) CRPD as embodying a paradigm shift that sets a clear ceiling with regard to copyright protection in case of conflict with the cultural rights of people with disabilities.

5.

THE EU AND MEMBER STATES’ IMPLEMENTATION OF THE MARRAKESH TREATY

To adapt its system to the requirements of the WMT, the EU legislator has ultimately enacted a Directive (2017/1564/EU, Marrakesh Directive)76 amending the InfoSoc Directive in line with the CJEU’s Opinion 3/15,77 and a Regulation (2017/1563/EU, Marrakesh Regulation).78 This has enabled the distribution or communication to third countries that are Parties to the WMT of accessible copies made in any Member State in accordance with the national provision adopted pursuant to the Marrakesh Directive,79 and the importation of, and access to, accessible works made in third countries in accordance with the implementation of the WMT.80 The Directive provides a set of definitions that are in line with the Marrakesh Treaty. Beneficiaries are individuals who are blind, or have an irreversible visual impairment, or a perceptual or reading disability that makes them unable to read, or other physical disability that makes them unable to hold or manipulate a book or to focus or move their eyes in order to read.81 The protected works covered by the exception are books, journals, newspapers, magazines, other writings, sheet music and illustrations, whatever the media and form.82 The notion of ‘accessible format’ is kept technologically neutral.83 In line with the WMT, the Directive defines authorized entities as those which are authorized by a Member State to provide education, training, adaptive reading or information access to beneficiaries on a non-profit basis. At last, the disability exception now applies to all of the exclusive rights harmonized by EU directives in the field of copyright. Article 3 of the Marrakesh Directive covers the following: the general rights of reproduction; communication/making available to the public and distribution;84 the copyright and sui generis right over a database;85 the right to reproduce, translate, adapt, arrange, distribute and rent software;86 the general right of rental and lending; the right of communication to the public and rebroadcasting; and the right of distribution of

76 Directive (EU) 2017/1564 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2017] OJ L242/6 (Marrakesh Directive). 77 Opinion of the Court 3/15 pursuant to Article 218(11) TFEU EU:​C:​2017:​114, para 112. 78 Regulation (EU) 2017/1563 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled [2017] OJ L242/1. 79 Recital 6 and Article 3 Regulation (EU) 2017/1563. 80 Ibid. Recital 7 and Article 4 Regulation (EU) 2017/1563. 81 Article 2(2)(a)–(d) Marrakesh Directive. 82 Article 2(1) Marrakesh Directive. 83 Article 2(3) Marrakesh Directive. 84 As in Articles 2–4 of the InfoSoc Directive. 85 Articles 5 and 7 Database Directive. 86 Article 4 Directive 2008/24/EC on the legal protection of computer programs [2009] OJ L111/16.

Disability in EU copyright law  215 performers, producers of phonograms and broadcasters (Rental Directive).87 Beneficiaries are allowed to make an accessible copy of a work to which they have lawful access for their exclusive use, and authorized entities can make accessible copies and communicate, make available, distribute or lend them to beneficiaries for their exclusive use and not for profit.88 The exception is mandatory and subject to the three-step test,89 while Member States are free to request authorized entities to provide fair compensation to right-holders.90 As in the WMT, Member States are also required to make sure that accessible copies respect the integrity of the work, but moral rights cannot be enforced vis-à-vis changes that are necessary to make the work accessible in the alternative format.91 Article 6(4) of the InfoSoc Directive (on the need for TMPs not to obstruct the enjoyment of specific exceptions) applies, mutatis mutandis, also in the context of the Marrakesh Directive.92 To confirm the aim of eliminating all obstacles to cross-border exchanges, the Directive introduces the principle of free circulation of accessible format copies in the internal market.93 Moreover, in a virtual connection of MoU and WMT,94 it sets out specific obligations for authorized entities, which are requested to offer accessible copies only to beneficiaries and other authorized entities, to manage piracy risks,95 to exercise due care and maintain records of their handling of works and accessible copies, and to provide information on their list of works in accessible formats, as well as to provide the name and contact details of the authorized entities with which they engage in exchanges.96 Notably, the Marrakesh Regulation uses the same definitions and imposes the same obligations on authorized entities.97 To date, the Directive has been implemented by all but two countries (Greece and Luxembourg), against which the Commission has already launched infringement proceedings, the implementation deadline having passed in October 2018. Member States have generally followed the EU text of the Directive very closely.98 Only a few countries have introduced compensation schemes for right-holders (Austria and Germany,99 as well as Finland and

87 Article 1(1), Article 8(2) and (3) and Article 9 Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property [2006] OJ L376/28. 88 Article 3(1) Marrakesh Directive. 89 Articles 3(3) and (4) Marrakesh Directive. 90 Article 3(6) Marrakesh Directive. 91 Article 3(2) Marrakesh Directive. 92 Article 3(4) Marrakesh Directive, with reference to the first, third and fifth sub-paragraphs of Article 6(4) InfoSoc Directive. 93 Article 4 InfoSoc Directive. 94 This connection is also noted by Reto M Hilty et al, ‘Position Paper of the MPI for Innovation and Competition Concerning the Implementation of the WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled’ (2015) 46(6) International Review of Intellectual Property and Competition Law 707, para 49. 95 Literally, to take ‘appropriate steps to discourage the unauthorised reproduction, distribution, communication to the public or making available to the public of accessible format copies’ (Article 5(1) (b) Marrakesh Directive). 96 Article 5 Marrakesh Directive. Article 7 requires compliance with EU privacy protection rules in the processing of personal data. 97 Articles 2 and 5 Marrakesh Regulation. 98 The measures of national implementation notified to the EU Commission are available at https://​ eur​-lex​.europa​.eu/​legal​-content/​EN/​NIM/​?uri​=​CELEX:​32017L1564 accessed 7 February 2020. 99 Austria: Article 9 Urheberrechtsgesetz-Novelle 2018, BGBI. I Nr. 63/2018, introducing para 7 to para 90c UrhG; Germany: Article 1 Gesetz zur Umsetzung der Marrakesch-Richtlinie über einen ver-

216  Research handbook on EU disability law Denmark,100 but only related to ebooks made available by authorized entities), or the obligation for authorized entities to be on approved lists and to comply with additional requirements beyond those set by the Directive (France,101 Germany,102 Spain,103 Italy104). Similarly, only a handful of Member States have taken the opportunity to go beyond the WMT and extend the exception to also cover non-print-related disabilities (Austria,105 the Czech Republic,106 the United Kingdom107).

6.

WHERE DO WE STAND AND WHERE SHALL WE GO?

Before the entry into force of the InfoSoc Directive, disability exceptions were, in fact, the exception and not the rule across the Union. Article 5(3)(b) of that Directive triggered their adoption in all Member States, but national legislators provided a plethora of diversified solutions, which created high fragmentation and posed serious obstacles to the cross-border exchange of accessible works. National laws allowed for the local creation and distribution of works in accessible formats by non-profit entities, following the traditional reliance on public funding and volunteering to tackle the book famine, leaving no incentive for private publishers to take part in the endeavour. Studies conducted before the signing of the WMT confirmed the weak impact of the InfoSoc Directive on the amount of accessible cultural material available, and no real increase in the availability of such materials from 2001 onward.108

besserten Zugang zu urheberrechtlich geschützten Werken zugunsten von Menschen mit einer Seh-oder Lesebehinderung, Bundesgesetzblatt Teil 1, no. 40, 4.12.2018, introducing para 45c UrhG. 100 Finland: Tekijänoikeuslaki/Upphovsrättslag (404/1961) 08/07/1961, viimeksi muutettuna/ändrad senast genom (849/2018) Suomen säädöskokoelma (SK), no. 404/1961 (9 November 2018) para 2; Denmark: Lov om ændring af lov om ophavsret, Lovtidende A, no. 719 (08 June 2018), para 17(d). 101 Article 5 Décret n° 2018-1200 du 20 décembre 2018 relatif à l’exception au droit d’auteur, aux droits voisins et au droit des producteurs de bases de données en faveur de personnes atteintes d’un handicap, JORF n° 0296 du 22 décembre 2018, modifying Article R. 122-16 of the regulatory part of the French CPI (Code de la Propriété Intellectuelle). 102 Article 1 Gesetz zur Umsetzung der Marrakesch-Richtlinie, introducing para 45a UrhG. 103 Article 1 Real Decreto-ley 2/2018, de 13 de abril, por el que se modifica el texto refundido de la Ley de Propiedad Intelectual, aprobado por el Real Decreto Legislativo 1/1996, de 12 de abril, y por el que se incorporan al ordenamiento jurídico español la Directiva 2014/26/UE del Parlamento Europeo y del Consejo, de 26 de febrero de 2014, y la Directiva (UE) 2017/1564 del Parlamento Europeo y del Consejo, de 13 de septiembre de 2017, Boletín Oficial del Estado, no. 91/2018, 14.4.2018, 38590-38644, introducing Article 31ter to the Spanish Ley de Propiedad Intelectual. 104 Article 15 Legge 3 maggio 2019, n 37, Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea – Legge Europea 2018, Gazzetta Ufficiale no. 109, 11.5.2019, introducing paras 2bis-2terdecies to Article 71bis of the Italian LDA (legge sul diritto d’autore). 105 Article 1 UrhG-Nov 2018, introducing para 42d UrhG. 106 Article 5 Zákon č. 50/2019 Sb., kterým se mění zákon č. 121/2000 Sb., o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů (autorský zákon), ve znění pozdějších předpisů, Sbirka Zakonu CR (15 December 2019), introducing paras 39a–b to the Czech autorský zákon, and opening to other perception and reading disorders. 107 Section 34(a) Copyright, Designs and Patents Act 1988. 108 See De Wolf and Partners, ‘Study on the Application of Directive 2001/29/EC on Copyright and Related Rights in the Information Society’ (European Commission 2013) p. 417 et seq https://​op​.europa​

Disability in EU copyright law  217 With the ratification of the CRPD and its explicit indication of intellectual property as a potential discriminatory barrier to access to cultural materials by people with disabilities (Article 30(3)), the debate on obstacles created by copyright laws to the creation and distribution of accessible works – long latent despite the initiatives launched under the auspices of the WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) since 1981109 – was revived. This renewed debate ultimately led to the adoption of the WMT in 2013. Meanwhile, both the WIPO and the EU have pursued alternative regulatory options, mostly through the creation of stakeholders’ platforms, with the aim to facilitate bottom-up proposals of policy solutions that are better tailored to the needs of the parties involved and to build licence-based arrangements which could stimulate the creation of a real market for accessible works. Through a network of trusted intermediaries and collective licensing schemes, ETIN (the EU) and TIGAR (the WIPO) tried to leverage market mechanisms to circumvent the obstacles and redundancies created by unharmonized, ineffective copyright provisions, learning from the success of a number of similar national experiments which used contractual schemes and stakeholder cooperation to build accessible digital collections in public libraries and cultural institutions. While the ETIN experience slowly lost ground, the TIGAR became the Accessible Books Consortium (ABC) Global Book Service, which now supports the WMT goals by providing an online catalogue of accessible works, designed to facilitate their exchange among authorized entities.110 The rationale underlying the ETIN and the TIGAR was that standardized, balanced licensing schemes could be friendlier to private investment than exceptions depriving publishers of control over their works, and that mere reliance on public funding and initiatives, on which the exception system was based, would never have been enough to solve the book famine. Despite the theoretical soundness of such premises, however, neither the ETIN nor the TIGAR managed to substantially increase the percentage of accessible works available on the market or to substantially abate production costs. Against this background, the adoption of a mandatory exception standardized internationally seemed to be an inevitable solution to the standstill. The dichotomy between regulatory options is grounded on opposite views on the features of copyright and the necessary degree of regulatory intervention. Those who argue that copyright

.eu/​en/​publication​-detail/​-/​publication/​9ebb5084​-ea89​-4b3e​-bda2​-33816f11425b accessed 9 February 2020. 109 Among the most important initiatives, it is worth mentioning the UNESCO/WIPO Model Provisions Concerning the Access by Handicapped Persons to the Works Protected by Copyright, IGC(1971)/V/13 (1983), prepared by the Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Protected by Copyright; the report prepared by Wanda Noel, ‘Copyright Problems Raised by the Access by Handicapped Persons to Protected Works’, Annex II of IGC(1971)/VI/11 (1985), prepared for the 24th Session of the Executive Committee of the Berne Union and the Sixth Ordinary Universal Copyright Convention, UN Doc. UNESCO/WIPO/WGH/I/2 (1983), emphasizing the negative impact of the lack of a harmonized disability exception, and the constitution of the DAISY (Digital Accessible Information System) Consortium in 1996. 110 The Accessible Books Consortium (ABC) provides approximately 451,000 titles in 76 languages, more than 5000 music partitions in Braille, a centralized procedure to obtain right-holders’ authorization for those countries that have not implemented the WMT, and a secure online transfer system for the cross-border delivery of accessible works. Hosted by WIPO, ABC can be accessed at www​ .accessiblebooksconsortium​.org/​globalbooks/​en/​accessed 9 February 2020. On these developments, see Lida Ayoubi, ‘Copyright Pluralism and Human Rights of the Visually Impaired Persons’ in Susy Frankel (ed), Is Intellectual Property Pluralism Functional? (Edward Elgar Publishing 2019) 310–40.

218  Research handbook on EU disability law is able to facilitate access to, and participation in, cultural life believe that an exception should be provided only when the market fails to offer incentives for authors and avenues to fulfil users’ cultural rights. Those who perceive copyright as a necessary but dangerous monopoly are keener to admit its shortcomings, and see exceptions as a basic tool to ensure respect for conflicting fundamental rights and the pursuance of a range of public policy goals. In the case of access to knowledge for persons with disabilities, and due to the particular features of the market for accessible works, however, such a dichotomic approach lacks effectivity, and it is prone to fail. A carefully tailored exception, which benefits only non-profit activities and is subordinated to the non-availability of accessible works on the market, represents a direct response to the market failure engendered by the nature of public goods of accessible copies, where the private return on investments is inevitably lower than the benefit to the general welfare that is generated – a feature that disincentivizes the private initiative of publishers and others.111 An exception alone, however, is far from being able to create the conditions for a market of accessible copies to prosper and reduce the book hunger of disabled individuals. Mass accessibility projects managed by authorized entities require the stable and constant effort of States, other public entities and specialized non-profit organizations, and a substantial commitment of public funds, which not every national government may be easily able to provide.112 By introducing a mandatory, standardized exception and facilitating the import/export of accessible copies, the WMT offers the possibility for States to join forces and share the burden. However, it is hard to believe that it will play any role in increasing the level of accessibility of local cultural materials, unless indirectly – that is, by freeing resources that would have otherwise been devoted to transforming international works in accessible formats. The Marrakesh Treaty (and its implementation by the EU and the Member States) is a massive step forward in the battle against accessible book hunger. However, the particular characteristics of the market and the reliance on additional measures to fulfil their goals still make disability exceptions less effective than their more traditional counterparts, whose objectives are immediately fulfilled by the (unauthorized) uses of protected works that they allow. Collective agreements and the use of supranational networks of TIs represented a response to the concern of ineffectiveness of disability exceptions. However, their limitation to non-profit entities and to very specific conditions has frustrated their potential. They have failed to offer incentives to right-holders/licensors to enter the market and compete with their licensees, and have ended up with the same addressees and scope of exceptions, instead of complementing their effects through the use of other leverages and forces. With the supranational harmonization advanced by the WMT and the elimination of most of the barriers to the cross-border exchange of accessible copies, their role in this respect has become much less essential and relevant. This does not mean that the intuition that identifies the combination of regulatory responses as the most effective solution to the problem is wrong. On the contrary, implementing the WMT may still not be enough to ensure full compliance with the obligations arising from

111 On the features of the market of accessible works and its tendency to present failures, see Shae Fitzpatrick, ‘Setting Its Sights on the Marrakesh Treaty: The U.S. Role in Alleviating the Book Famine for Persons with Print Disabilities’ (2014) 37(1) Boston College International & Comparative Law Review 139, p. 142 et seq. 112 Ibid 143.

Disability in EU copyright law  219 Article 30 CRPD. The exception provided by the WMT seems to respond well to the request of Article 30(3) CRPD, avoiding IP laws acting as an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials; however, its potential impact may fall short of addressing the obligations introduced by Article 30(1) and (3). Those provisions require States Parties to take all appropriate measures to ensure access to cultural materials, television programmes, films, theatre and other cultural activities in accessible formats; to guarantee physical access to cultural performances or services; and to ensure the opportunity for people with disabilities to participate in cultural life. State reports show that Article 30 CRPD has been interpreted, as in the case of Article 15(1)(a) ICESCR, as requiring public funding of cultural institutions and the removal of physical barriers, but this minimalist and traditional approach may fail to cover positive measures designed to address the challenges faced by disabled individuals. Several studies have emphasized how respect and fulfilment of the rights protected under Article 30(1) CRPD and the book famine cannot be effectively tackled without the creation of publicly accessible repositories, particularly due to the scarce participation of private market actors.113 Proposals to reach this goal range from the introduction of a statutory licence, followed by the commercial exploitation of the repository,114 to the provision of regulatory measures allowing bottom-up initiatives of crowd-digitization.115 In any event, interplay between legislative and market-based solutions seems to be the only available option to guarantee the sustainability of the endeavour.

7. CONCLUSIONS This contribution offered an overview of the international and EU responses to the obstacles created by copyright to the access and accessibility of cultural materials by persons with disabilities. By assessing strengths and pitfalls of the two main regulatory solutions – collective licensing schemes versus mandatory exceptions – it showed that the respect and fulfilment of the rights protected under Article 30(1) CRPD may require much more articulated, multi-faceted legislative strategies. A blend of legislative and market-based solutions, grounded on specific regulatory incentives, appears to be the most suitable but yet to be explored route to tackle the challenge. To this end, additional limitations could be introduced in the field of copyright, in order to address right-holders’ prolonged inertia with regard to the creation and distribution of accessible copies of works. Following the model adopted by the EU legislator in the recent Directive on Copyright in the Digital Single Market with regard to out-of-commerce works,116 the failure to publish and commercialize accessible copies of protected works after a reasonable time from the first publication could result in the inclusion of the works in extended collective licensing 113 Dilan Thampapillai, ‘Digital Copyright and Disability Discrimination: From Braille Books to Bookshare’ (2008) 13 Media and Arts Law Review 1, p. 7. 114 Pamela Samuelson, ‘Google Book Search and the Future of Books in Cyberspace’ (2010) 94 Minnesota Law Review 1308. 115 As in the case of Bookshare, an example used by Hely, ‘A Model Copyright Exemption to Serve the Visually Impaired’ (n 61) 1389. 116 Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market [2019] OJ L130/92.

220  Research handbook on EU disability law schemes, which would reduce transaction costs and facilitate the commercial exploitation of accessible copies by private publishers, triggering positive competition. This would leave the possibility for right-holders to opt out and proceed to the production and distribution of works in accessible formats, and would virtuously couple legislative and market forces, complementing the WMT exception. Publishers could also be obliged by law to deposit in a repository accessible master copies, together with the first publication of the work. Failure to do so could result in the payment of penalties – a measure which would not constitute a formality forbidden under Article 2 of the Berne Convention. If carefully worded, none of these provisions would need to comply with the three-step test outlined above, as they would not be classified as exceptions.117 They would contribute to the advancement of the goals of Article 30 CRPD and, by leaving behind the restrictive exception-based, barrier-removal approach in favour of a more effective mix of regulatory incentives and counter-incentives, would finally align EU copyright law with the social-contextual model of disability inspiring the Convention. Most such measures are not unknown to the EU legislator. The question is, however, how likely it is that a political consensus could ever be reached in this regard, without a strong international push like that given by the WMT.

117 Harpur and Suzor, ‘Copyright Protections and Disability Rights: Turning the Page to a New International Paradigm’ (n 4) 753–54, theorize that, even if conceptualized as exceptions, most of these solutions would be specific enough in scope and would not create an unreasonable prejudice to right-holders’ interests, thus being in compliance with the three-step test.

13. Accessibility of goods and services Stelios Charitakis

1. INTRODUCTION The European Union (EU) concluded the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention) in December 2010. The Convention came into force for the EU in January 2011. The principle of accessibility, which is addressed in Article 9 CRPD, is the precondition for persons with disabilities to exercise and benefit from the rights that are protected under the Convention.1 The purpose of Article 9 is to contribute to the removal of barriers, with a view to allowing persons with disabilities to live independently and fully participate in all aspects of life.2 As analysed by Chamon in Chapter 4, the UN Convention constitutes a mixed agreement of the EU.3 Therefore, both the EU and its Member States should work together in order to fulfil the obligations laid down in the UN Convention in instances of mixed competence.4 The conclusion of the CRPD by the EU attracted much attention from scholars, especially regarding the way in which the EU and the Member States will cooperate to implement the requirements of the Convention.5 The purpose of this chapter is to provide a basic understanding of accessibility as a norm under the CRPD, and to examine how it has been implemented by the EU in the context of goods and services. The analysis of the EU’s accessibility actions on goods and services is focused primarily on the shortfalls in relation to those measures. In addition, this chapter provides an analysis of the latest and most comprehensive EU accessibility measure – the European Accessibility Act (EAA)6 – comparing it to the measures that preceded it and critically discussing the next steps that the EU should take to implement Article 9 CRPD. After this introduction, the chapter is divided into four substantive sections, followed by some concluding remarks. Section 2 examines the dimensions of accessibility under the CRPD, while section 3 provides an overview of the most important measures that the EU has adopted in the field of accessibility of goods and services. Section 4 evaluates the disability measures adopted by the EU before the EAA, from a policy-making perspective. Section 5 then explores the most pertinent elements of the EAA and outlines how it improves upon the 1 European Disability Forum (EDF), Contribution to the Day of General Discussion on Accessibility, Committee on the Rights of Persons with Disabilities (CRPD Committee), Geneva, 7 October 2010. 2 Article 9(1) CRPD. 3 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35, para 7. 4 Ibid. 5 See, among others, Lisa Waddington, ‘The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A Story of Exclusive and Shared Competences’ (2011) 4 Maastricht Journal of European and Comparative Law 18. 6 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70.

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222  Research handbook on EU disability law previous policy-making efforts of the EU. Section 6 sets out some concluding remarks and future perspectives.

2.

DIMENSIONS OF ACCESSIBILITY UNDER THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

As stated in Article 9 CRPD, the accessibility norm aims to identify and eliminate barriers that prevent inclusion. In that regard, it embodies the social-contextual model of disability, which has shifted the focus of disability policy from the impairment itself to the restructuring of society.7 Before analysing the actions adopted by the EU to implement the CRPD’s accessibility requirements, it is important to elaborate on the various dimensions of accessibility under the UN Convention. Neither the CRPD nor General Comment No. 2 of the Committee on the Rights of Persons with Disabilities (CRPD Committee)8 provide a definition of accessibility. Therefore, for the purposes of understanding accessibility as a legal construct, in lieu of focusing on a definition of accessibility, this contribution draws on an interpretive approach based on the work of Schulze,9 in combination with General Comment No. 14 of the Committee on Economic, Social and Cultural Rights.10 According to that approach, accessibility comprises the following aspects: (i) attitudinal accessibility, (ii) economic accessibility or affordability, (iii) physical accessibility, (iv) information accessibility and (v) communication accessibility.11 First, accessibility has a social or attitudinal aspect. This dimension of accessibility refers to the removal of stigma and other negative forms of behaviour that people with disabilities, their families and their carers experience throughout their lives.12 Second, accessibility entails an affordability aspect, which means that facilities, goods and services must be affordable to persons with disabilities. This has relevance both for the costs of using such goods and services, and with regard to the capacity of persons with disabilities to generate economic resources to pay for such goods and services.13

See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. CRPD Committee, General Comment No. 2 on accessibility, UN Doc. CRPD/C/GC/2 (2014) para

7 8

30.

9 Marianne Schulze, ‘Understanding the UN Convention on the Rights of Persons with Disabilities: A Handbook on the Human Rights of Persons with Disabilities, Handicap International’ (Handicap International 2010) 14 www​.hiproweb​.org/​uploads/​tx​_hidrtdocs/​HICRPDManual2010​.pdf accessed 1 February 2020. 10 Committee on Economic, Social and Cultural Rights, General Comment No. 14 on the right to the highest attainable standard of health (Article 12), UN Doc. E/C.12/2000/4 (2000). See further Stelios Charitakis, Access Denied: The Role of the European Union in Ensuring Accessibility under the United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2018) 25. See also Stelios Charitakis, ‘An Introduction to the Disability Strategy 2010–2020, with a Focus on Accessibility’ (January 2013) Ars Aequi 28 www​.nuigalway​.ie/​dream/​downloads/​an​_introduction​_to​_the​_disability​ _strategy​_20102020​_with​_a​_focus​_on​_accessibility​.pdf accessed 1 February 2020. 11 Charitakis, Access Denied (n 10) 25. 12 Ibid 25. 13 Ibid 26–28.

Accessibility of goods and services  223 Third, accessibility has a physical aspect, meaning that people with disabilities should be able to access goods and services, with or without assistance. Physical accessibility relates to the availability of accessible goods and services, as well as to their usability, safety and user-friendliness.14 Fourth, accessibility has an information aspect. This dimension of accessibility means that people with disabilities are entitled, on an equal basis with others, to seek, receive and impart information and ideas. Information accessibility entails not only general information available to all individuals about facilities, goods and services, but also information about the accessibility of those facilities, goods and services.15 The last aspect of accessibility is the communication dimension, which refers to the supply of information in alternative modes and means of communication for all persons with disabilities, such as Braille for those with visual impairments.16 The difference between this type of accessibility and information accessibility is that the former refers to the format in which information is provided to persons with disabilities, whereas the latter concerns the content of the information that persons with disabilities should receive.17

3.

EUROPEAN UNION MEASURES IMPLEMENTING ACCESSIBILITY

Following the identification of the dimensions of accessibility under the CRPD in section 2 above, this section provides a brief overview of the most significant measures that the EU has taken in the field of accessibility of goods and services. The measures outlined below are categorized on the basis of the dimensions of accessibility that they address. The instruments examined in this section are connected to the fields of the customs union, taxation, transport,18 the internal market and consumer protection. 3.1

European Union Measures Ensuring the Social Accessibility of Goods and Services

This sub-section sets out the measures that the EU has taken to the remove the stigma that people with disabilities experience. In the field of the internal market, the EU has adopted the Audio-visual Media Services Directive,19 which stipulates that the Member States should ensure that audio-visual commercial communications that are provided by media service providers do not entail or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disa-

Ibid 28. Ibid 30. 16 Ibid. 17 Ibid 31. 18 The field of transport is discussed at length in this volume. See supra Eliza Varney and Abigail Pearson, ‘Disability in EU Transport Legislation’, in this volume. 19 Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) [2010] OJ L95/1. 14 15

224  Research handbook on EU disability law bility, age or sexual orientation.20 It is also important to note that the EU has recently adopted a revised Audio-visual Media Services Directive that maintains the same formulation in the provision on non-discrimination as was in the previous version.21 In the field of transport, the EU has adopted a set of regulations to ensure passenger rights in the context of travel by air, bus and coach, sea and inland waterways, and rail (collectively known as the ‘Passenger Rights Regulations’).22 All of these regulations seek to ensure that a person with a disability is not prevented from making a reservation for a flight and that there is no refusal to embark a person at an airport on the grounds of disability or reduced mobility. In addition, these regulations stipulate that people with disabilities can require assistance, when this is justified in the light of health and safety prerogatives.23 Furthermore, with the exception of the Regulation on Rail Passengers’ Rights and Obligations, the Passenger Rights Regulations state that transport carriers and managing bodies of transport facilities should ensure that all of their personnel who provide direct assistance or deal directly with disabled persons receive appropriate disability-related training.24 3.2

European Union Measures Ensuring the Affordability of Goods and Services

In this sub-section, the measures that the EU has adopted to ensure that facilities, goods and services are affordable to persons with disabilities are outlined. To begin with the field of the customs union, the Regulation on Customs Duty Reliefs exempts from duties those goods that can be used exclusively by blind and other persons with disabilities, such as goods for their educational, scientific or cultural advancement and goods designed to be used for the education, employment or social advancement of physically or intellectually disabled persons.25 In the field of taxation, according to the Value Added Tax (VAT) Directive,26 Member States may apply reduced VAT rates (less than 15 per cent) to certain goods and services, including medical equipment, aids and other appliances that are created to alleviate or treat disability.27 Reduced VAT rates also apply to the repair of such goods and to domestic care

Article 9(1) Directive 2010/13/EU. Article 9 Directive (EU) 2018/1808 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) in view of changing market realities [2018] OJ L303/69. 22 Regulation (EU) 181/2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) 2006/2004, [2011] OJ L55/1; Regulation 1177/2010/EU concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) 2006/2004 [2010] OJ L334/1; Regulation (EC) 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air [2006] OJ L204/1; Regulation 1371/2007/EC on rail passengers’ rights and obligations [2007] OJ L315/14. 23 Article 4 Regulation 1107/2006. 24 Article 11 Regulation 1107/2006. 25 Article 67 Council Regulation (EC) 1186/2009 setting up a Community system of reliefs from customs duty [2009] OJ L324/23. 26 Council Directive 2009/47/EC amending Directive 2006/112/EC as regards reduced rates of value added tax [2009] OJ L116/18. 27 Article 97(1) Council Directive 2009/47/EC. 20 21

Accessibility of goods and services  225 services, inter alia, home help and care for the young, elderly, sick or disabled people.28 The reduced rates are calculated as a percentage of the taxable amount, which cannot be less than 5 per cent.29 In the field of the internal market, the Universal Service Directive requires that the Member States take specific measures to guarantee that the affordability of publicly available telephone services and directory enquiry services for disabled end-users is equivalent to the level that is enjoyed by non-disabled end-users.30 It is important to note that the newly adopted European Electronic Communications Code retains and expands upon the existing provisions of the Universal Service Directive and Framework Directives with regard to people with disabilities.31 In the field of transport, the Passenger Rights Regulations state that the managing bodies of transport facilities and transport carriers should ensure the provision of assistance to disabled persons, without additional charge.32 3.3

European Union Measures Ensuring the Information Accessibility of Goods and Services

This sub-section briefly analyses the measures adopted by the EU to guarantee that people with disabilities are empowered, on an equal basis with others, to seek, receive and impart information and ideas. In the field of the internal market, the Universal Service Directive provides that Member States should guarantee that national regulatory authorities are able to force undertakings that provide public electronic communications networks and/or publicly available electronic communications services to regularly inform their disabled subscribers about the details of disability-specific products and services. In addition, it affirms that Member States should ensure that national regulatory authorities are able to oblige such undertakings to publish comparable, adequate and up-to-date information on both the quality of their services and the actions that they have taken to ensure equivalence of access for disabled end-users.33

See the Annex to Council Directive 2009/47/EC. Article 99 Council Directive 2009/47/EC. 30 Article 7(1) Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, as amended by Directive 2009/136/EC of 25 November 2009 (Universal Service Directive) [2002] OJ L108/51. 31 Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast) [2018] OJ L321/36 retains and expands upon the provisions of the Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) [2002] OJ L108/7; Directive 2002/20/EC on the authorisation of electronic communications networks and services (Authorisation Directive) [2002] OJ L108/21; Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L108/33; Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [2002] OJ L201/37. See, for example, Article 24 Directive (EU) 2018/1972, on consultation of interested parties (including disabled end-users), and Article 85 Directive (EU) 2018/1972, on provision of affordable universal service (including for consumers with disabilities). 32 Article 10 Regulation 181/2011. 33 Articles 22(1) and 21(3) Directive 2002/22/EC. 28 29

226  Research handbook on EU disability law Another instrument that is relevant to information accessibility in the field of the internal market is the Patients’ Rights Directive.34 It provides that the Member States should guarantee that people with disabilities receive information on, among others, the accessibility of hospitals in the Member State of treatment.35 In addition, the Directive states that information should be provided about the mechanisms for making complaints and settling disputes in cross-border situations.36 In the area of consumer protection,37 the Unfair Commercial Practices Directive requires the assessment of the fairness of commercial practices to take into account the vulnerability of particular groups,38 including persons with disabilities.39 With regard to the field of transport, the Passenger Rights Regulations ensure that transport carriers or their agents, tour operators and the managing bodies of transport facilities should provide several types of information to persons with disabilities, such as information on the safety rules applicable to the carriage of disabled persons, information on the reasons for denying disabled people access to transport facilities, and basic information about transport facilities and essential information concerning travel.40 3.4

European Union Measures Ensuring the Communication Accessibility of Goods and Services

This sub-section provides an overview of the EU measures aimed at ensuring that information is provided to persons with disabilities in accessible formats. As far as the internal market is concerned, the Directive on Medical Products for Human Use provides that the name of the medical product should be displayed in Braille,41 on the packaging of such product.42 Moreover, the Patients’ Rights Directive states that the information required to be provided to patients by the Directive should be accessible to all persons with disabilities.43 With regard to the field of transport, the Passenger Rights Regulations – with the exception of the Regulation on Rail Passengers’ Rights and Obligations – guarantee that all of the information that disabled persons are entitled to receive according to these regulations should be provided via accessible modes of communication.44

34 Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare [2011] OJ L88/45. 35 Article 4(2) Directive 2011/24/EU. 36 Article 6(3) Directive 2011/24/EU. 37 The field of consumer protection is discussed at length in this volume. See infra Federica Casarosa, ‘The Rights of People with Disabilities in EU Consumer Law’, in this volume. 38 Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/ EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) [2005] OJ L149/22. 39 Article 5(3) Directive 2005/29/EC. 40 Article 4 and 5 Regulation 1107/2006. 41 Directive 2001/83/EC on the Community code relating to medicinal products for human use as amended by Directive 2002/98/EC [2001] OJ L311/67. 42 Article 56(a) Directive 2001/83/EC. 43 Articles 6 and 4(2) Directive 2011/24/EU. 44 Articles 4(3), 5(2) and Annex I and II Regulation 1107/2006.

Accessibility of goods and services  227 3.5

European Union Measures Ensuring the Physical Accessibility of Goods and Services

This sub-section provides a summary of the measures adopted by the EU so as to ensure the availability, usability, safety and user-friendliness of goods and services. In the field of the internal market, several Directives seek to ensure the physical accessibility of goods and services. First, the Audio-visual Media Services Directive provides that Member States should encourage media service providers to ensure that their services are gradually made accessible to people with visual or hearing impairments.45 Second, the Universal Service Directive sets out requirements for the Member States to ensure that public pay telephones or other public voice telephony access points are accessible to disabled end-users. It also obliges the Member States to ensure access, to the greatest extent possible, for end-users with disabilities to emergency services on an equal basis with others and to services provided via the ‘112’ number.46 Third, the Regulation Concerning Type-Approval Requirements for the General Safety of Motor Vehicles states,47 in Article 7(3) thereof, that vehicles that are constructed with areas for standing passengers and have a capacity capable of exceeding 22 passengers should be accessible to persons with reduced mobility. Fourth, the Directive on Safety Rules and Standards for Passenger Ships requires that the Member States ensure that disabled persons have safe access to such ships as far as it is reasonable and practicable to do so in light of cost considerations.48 Fifth, the Directive on the Accessibility of the Websites and Mobile Applications of Public Sector Bodies provides that EU Member States are obliged to ensure that the websites and mobile applications of public sector bodies meet the accessibility requirements set out in the Directive.49 The Directive requires the publication of an accessibility statement for each website and mobile application, detailing the compliance of websites and mobile applications with the Directive. The statement should include details on the level of accessibility provided and point out content that is not accessible.50 The accessibility statement should also include a link to a feedback mechanism, enabling any person to, inter alia, notify the public sector body concerned of any failure of its website or mobile application to comply with the accessibility requirements set out in the Directive.51 The feedback mechanism is an important element in achieving web accessibility, as users can report on barriers that are difficult to detect with automatic or expert web accessibility tests.52 The effectiveness of the Article 7 Directive 2010/13/EU. Articles 6, 26(4) and 27(a)(2) Directive 2002/22/EC. 47 Regulation (EC) 661/2009 concerning type-approval requirements for the general safety of motor vehicles, their trailers and systems, components and separate technical units intended therefor [2009] OJ L200/1. 48 Article 8 Directive 2009/45/EC on safety rules and standards for passenger ships (Recast) as amended by Directive (EU) 2017/2108 of the European Parliament and of the Council of 15 November 2017 [2017] OJ L163/1. 49 Directive (EU) 2016/2102 on the accessibility of the websites and mobile applications of public sector bodies [2016] OJ L327/1. 50 Article 7(1)(a) Directive (EU) 2016/2102. 51 Article 7(1)(b) Directive (EU) 2016/2102. 52 Diane Alarcon, Kim Andreasson, Justyna Mucha, Annika Nietzio, Agata Sawicka and Mikael Snaprud, ‘A Public Barrier Tracker to Support the Web Accessibility Directive’ in Klaus Miesenberger and Georgios Kouroupetroglou (eds), Computers Helping People with Special Needs (Springer 2018) 22–26, p. 23. 45 46

228  Research handbook on EU disability law feedback mechanism relies upon its ease of use, and upon the provision of a ‘buy-in’ from website owners in order for the users to see that their comments are acted upon and result in real improvements.53 With regard to the field of transport, the Passenger Rights Regulations require the managing body of transport facilities to designate points of arrival and departure within the facilities or at a point under the managing bodies’ control, at which disabled persons can declare their arrival and request assistance.54 In addition, transport carriers should provide assistance to disabled persons departing from, arriving at or transiting through transport facilities.55 Lastly, in the field of trans-European networks, the Commission’s Regulation on the technical specifications for interoperability relating to accessibility of the Union’s rail system for persons with disabilities (TSI PRM Regulation) delineates technical requirements on how to ensure accessibility of the ‘trans-European conventional and high-speed rail system network’ and all other parts of the network in the context of rail travel.56 In addition, the Regulation on Union guidelines for the development of the trans-European transport network (TEN-T Regulation) states that the development of the TEN-T infrastructure should guarantee accessibility for, among others, disabled passengers.57

4.

A CRITICAL DISCUSSION OF EUROPEAN UNION MEASURES ON ACCESSIBILITY

Following the overview of the most pertinent EU legislation relating to the five dimensions of accessibility under the CRPD provided above in section 3, this section critically discusses the measures adopted by the EU on accessibility. It focuses, in particular, on their legislative form, their legal effects, their lack of a holistic approach, the attention paid to the five dimensions of accessibility outlined above, the mechanisms related to their monitoring and their fragmented nature. 4.1

The Legislative Form of Accessibility Measures at European Union Level

The EU has adopted several measures that implement accessibility in several areas of EU competence. The predominant policy that the EU has adopted, in that regard, is mainstreaming. However, the EU has also adopted some disability-specific measures.58 The EU has mainstreamed disability considerations in the fields of the EU customs union, taxation, the internal market and transport. In addition, the EU has adopted disability-relevant measures in the field of consumer protection. In that area, the EU has adopted the term ‘vulnerable consumers’ to address the needs of several groups, including people with disabilities. Ibid. Article 5(1) Regulation (EC) 1107/2006. 55 See, for instance, Article 10 Regulation (EC) 1107/2006. 56 Article 2(5) Commission Regulation (EU) 1300/2014 on the technical specifications for interoperability relating to accessibility of the Union’s rail system for persons with disabilities and persons with reduced mobility [2014] OJ L356/110. 57 Article 4(2)(d)(v) Regulation (EU) 1315/2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU [2013] OJ L348/1. 58 Charitakis, Access Denied (n 10) 373. 53 54

Accessibility of goods and services  229 Waddington has pointed out that it is highly questionable how much additional protection these provisions actually provide to persons with disabilities.59 On the whole, a uniform approach to protecting vulnerable consumers is extremely difficult to achieve, because the needs of the different groups of vulnerable consumers are diverse and possibly conflicting.60 Article 19 of the Treaty on the Functioning of the European Union (TFEU) is the only provision in that Treaty which makes an explicit reference to disability. This might be the reason why the EU has opted to mainstream disability considerations in EU laws. In fact, the EU has adopted very few disability-specific legislative instruments. Those adopted include the Regulation on the rights of disabled persons when travelling by air,61 the Directive on the Accessibility of the Websites and Mobile Applications of Public Sector Bodies, the TSI PRM Regulation and the EAA. The Regulation on the Rights of Disabled Persons when Travelling by Air is based on the former Article 80(2) of the Treaty establishing the European Community (EC) (now Article 100(2) TFEU). That Article does not explicitly mention that the EU has competence to regulate disability accessibility in the context of transport. In general, there is no mention of disability in the TFEU chapter on transport policy. The proposal and adoption of this Regulation indicates that the TFEU can be interpreted so as to confer a power on the EU to adopt disability-specific legislation.62 The same can be said for Article 114 TFEU, which was the legal basis of the Directive on the Accessibility of Websites and Mobile Applications of Public Sector Bodies and the EAA, and for Article 172 TFEU, which was the legal basis of the TSI PRM Regulation. All of these examples show that the EU can regulate accessibility through disability-specific instruments adopted under the TFEU. While the EU had mainly relied on mainstreaming to ensure accessibility in several areas of EU law before the CRPD, since the conclusion of the UN Convention, the EU has opted for more disability-specific measures. The sub-sections that follow discuss the main challenges to the implementation of accessibility by EU legislative instruments. 4.2

The Legal Effects of European Union Accessibility Obligations

On many occasions, EU measures on accessibility do not set out a strong obligation for domestic authorities to ensure the implementation of accessibility in the policy field at hand.63 For example, as outlined above, the Universal Service Directive requires that the Member States guarantee that national regulatory authorities are in a position to force undertakings that provide public electronic communications networks and/or publicly available electronic communications services to publish comparable, adequate and up-to-date information on both the quality of their services and the measures that they have adopted to guarantee equivalence of access for disabled end-users.64 In this regard, national regulatory authorities have discretion as 59 Lisa Waddington, ‘Vulnerable and Confused: The Protection of “Vulnerable” Consumers under EU Law’ (2013) 38 European Law Review 6, p. 758. 60 Committee on the Internal Market and Consumer Protection, ‘Report on a Strategy for Strengthening the Rights of Vulnerable Consumers’ (2011/2272(INI) A7–0155/2012) (2012), p. 7; Charitakis, Access Denied (n 10), 218. 61 Regulation (EC) 1107/2006. 62 Charitakis, Access Denied (n 10) 375. 63 Ibid. 64 Article 22(1) Directive 2002/22/EC.

230  Research handbook on EU disability law to whether to mandate undertakings to publish data on the measures adopted in order to ensure access to their services by people with disabilities. Therefore, this provision cannot guarantee that information related to the measures adopted by undertakings concerning the extent of access by persons with disabilities to their services will be published, as national regulatory authorities are not obliged to demand such action from the undertakings.65 Similarly, Article 7 of the Audio-visual Media Services Directive states that Member States should encourage media service providers to guarantee that their services are gradually made accessible to people with visual or hearing impairments.66 Thus, the media service providers are offered discretion as to whether to implement the accessibility requirements of the Directive.67 4.3

The Lack of a Holistic Approach to Accessibility in European Union Measures

EU measures relevant to accessibility do not usually take a holistic approach to guaranteeing accessibility.68 In that regard, the CRPD Committee recognized, in its General Comment No. 2 on accessibility, that the interoperability of goods and services is an essential element of the implementation of Article 9 CRPD.69 The holistic approach means that accessibility works as a chain, which requires the proper functioning of each of the links, and of all the links together, for it to become effective.70 If there is a missing link, the chain will fall apart. For example, to guarantee accessibility in the field of audio-visual media services, the devices, software and networks related to the audio-visual media services should be accessible.71 Most EU measures focus on only one specific link in the chain, and they do not regulate the other links in the chain.72 For example, the TSI PRM Regulation does not require the retrofitting of all rail infrastructure and vehicles.73 Another example is the Universal Service Directive, which does not address the software or hardware of mobile phones.74 However, it is important to recall that the holistic approach to accessibility is limited by the scope of application of the EU measure at hand.75 4.4

Lack of Consideration of All Dimensions of Accessibility in European Union Measures

Many of the accessibility measures adopted at EU level do not regulate all of the dimensions of accessibility outlined in section 2 above. Indeed, most of the EU legislative instruments that mainstream accessibility do not regulate more than one dimension of accessibility, and they

Charitakis, Access Denied (n 10) 376. Article 7 Directive 2010/13/EU. 67 Charitakis, Access Denied (n 10) 376. 68 Ibid. 69 CRPD Committee, General Comment No. 2 (n 8) para 30. 70 European Disability Forum, ‘EDF Response to the Public Consultation with a View to a European Accessibility Act’ (2012) 12 www​.edf​-feph​.org/​european​-accessibility​-act accessed 4 February 2020. 71 Ibid. 72 Charitakis, Access Denied (n 10) 376 and the relevant scholarship cited there. 73 Ibid. 74 Ibid 172. 75 All EU measures are limited by the principles of subsidiarity and proportionality: see, in that regard, Article 5 TEU. 65 66

Accessibility of goods and services  231 are not particularly detailed either. The EU legislator, when regulating accessibility, usually focuses on an obligation to ensure physical accessibility, and it connects such an obligation to a particular standard or technical specification. An example of this approach is found in the Regulation Concerning Type-Approval Requirements for the General Safety of Motor Vehicles. Furthermore, the EU sometimes regulates accessibility issues through health and safety measures.76 An example of such an approach is found in the Directive on Safety Rules and Standards for Passenger Ships.77 In that regard, it is important to point out that while safety is an important part of physical accessibility, it is not the only important dimension of accessibility. As outlined above in section 2, physical accessibility under the CRPD also requires the EU to take into account the availability, usability and user-friendliness of accessible goods and services. Thus, an approach that regulates physical accessibility through the implementation of safety criteria is a rather limited one. 4.5

Monitoring European Union Accessibility Obligations

In many instances, the implementation of the EU’s accessibility instruments at Member State level has not been appropriately monitored, and the accessibility requirements themselves have not been effectively enforced.78 Due to the lack of detail that these EU legislative instruments provide relevant to the accessibility provisions that are contained therein, the reporting on the application of these legislative measures does not include information on accessibility measures.79 For example, the provision related to accessibility in the VAT Directive was not examined in the report on the implementation of that Directive.80 In other instances, an accessibility-mainstreaming measure might contain strong obligations related to accessibility, but the application of the provisions at issue is not appropriate.81 For example, the Universal Service Directive requires the Member States to ensure the accessibility of emergency services.82 However, a Commission report on e-accessibility indicated that only 47 per cent of the Member States provided direct access to emergency services via text telephony, and only 38 per cent offered direct access to emergency services through a video phone device.83 The EU measures that are the most effective in overcoming these types of problems are, arguably, the Passenger Rights Regulations. These Regulations set out clear, precise and strong obligations and, in addition, they adopt a holistic approach by regulating all types of transport. Moreover, they entail all of the necessary elements to achieve their purpose, that is, to protect and assist disabled persons when travelling, including provisions prescribing

Charitakis, Access Denied (n 10) 137–75. Annex III Directive 2009/45/EC. 78 Charitakis, Access Denied (n 10) 377. 79 Ibid. 80 Commission, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the future of VAT, ‘Towards a Simpler, More Robust and Efficient VAT System Tailored to the Single Market’ COM (2011) 851 final. 81 Charitakis, Access Denied (n 10) 377. 82 Articles 27a(2) and Article 22(1) Directive 2002/22/EC. 83 Commission, ‘Study on Assessing and Promoting E-Accessibility’ (Commission, 4 November 2013), p.  80 https://​ec​.europa​.eu/​digital​-single​-market/​en/​news/​study​-assessing​-and​-promoting​-e​ -accessibility accessed 3 February 2020. 76 77

232  Research handbook on EU disability law non-discrimination, accessible information, the training of stakeholders and the provision of assistance, as well as those seeking to ensure the affordability of transport services.84 Lastly, it is evident from the reports on implementation of these Regulations that their implementation has been successful,85 and that they have been carefully and effectively monitored. Therefore, these Regulations could be used as a roadmap for the EU with regard to regulating accessibility.86 4.6

The Fragmented Nature of European Union Accessibility Obligations

The EU’s over-reliance on accessibility mainstreaming measures has discouraged the EU from adopting disability-specific instruments. Such instruments could more comprehensively address issues related to accessibility. On the contrary, the strong emphasis that the EU has placed on the adoption of accessibility mainstreaming instruments has created a fragmented framework of EU disability measures that arguably does not amount to a coherent policy framework.87 The fact that the EU disability framework consists of several provisions which are scattered over a large number of policy fields creates major challenges with regard to the codification of the relevant legislation and the monitoring of accessibility provisions by the EU.88 In addition, the fragmented nature of EU disability actions in the field of accessibility restricts the awareness of EU citizens with disabilities of the rights that have been conferred on them by EU measures. As a result, there are areas of EU policy – related to the internal market, for instance – in which the measures adopted by the EU on accessibility have not been codified and monitored appropriately.89 The analysis in the next section of this chapter takes into account, and elaborates on, the challenges outlined in this section with regard to the EU measures on accessibility adopted prior to the entry into force of the EAA.

Charitakis, Access Denied (n 10) 377. Commission, ‘Evaluation of Regulation 11072006’ (European Commission June 2010) https://​ec​ .europa​.eu/​transport/​sites/​transport/​files/​themes/​passengers/​studies/​doc/​2010​_06​_evaluation​_regulation​ _1107​-2006​.pdf accessed 3 February 2020; Commission, ‘Evaluation of Regulation 1371/2007, on the Application and Enforcement in the Member States of the Regulation on Rail Passengers’ Rights and Obligations’ (European Commission, July 2012) https://​ec​.europa​.eu/​transport/​sites/​transport/​files/​ themes/​passengers/​studies/​doc/​2012​-07​-evaluation​-regulation​-1371​-2007​.pdf accessed 3 February 2020; Commission, ‘Comprehensive Study on Passenger Transport by Coach in Europe’ (European Commission April 2016) https://​ec​.europa​.eu/​transport/​sites/​transport/​files/​modes/​road/​studies/​doc/​ 2016​-04​-passenger​-transport​-by​-coach​-in​-europe​.pdf accessed 3 February 2020; Commission, ‘Report from the Commission to the European Parliament and the Council on the Application of Regulation (EU) No 1177/2010 Concerning the Rights of Passengers when Travelling by Sea and Inland Waterway and Amending Regulation (EC) No 2006/2004’ COM (2016) 274 final. 86 Charitakis, Access Denied (n 10) 378. 87 Ibid 379. 88 Ibid. 89 See Commission, ‘Staff Working Document, Ex-post REFIT Evaluation of the Audiovisual Media Services Directive 2010/13/EU accompanying the document Proposal for a Directive of the European Parliament and of the Council Amending Directive 2010/13/EU on the Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services in View of Changing Market Realities (COM (2016) 287 final)’ SWD (2016) 171 final. 84 85

Accessibility of goods and services  233

5.

THE EUROPEAN ACCESSIBILITY ACT

This section provides an analysis of the most recent and prominent action taken by the EU to implement accessibility requirements related to goods and services, namely the EAA. 5.1

The Adoption of the European Accessibility Act

After several delays, on 2 December 2015, the Commission published a legislative Proposal for the EAA.90 The proposed EAA took the legal form of a Directive. The decision to propose a minimum harmonization directive for the EAA was a policy option that could potentially guarantee a good level of accessibility, while at the same time respecting the competences of the Member States. This was also the choice made by the Commission in the case of the Web Accessibility Directive.91 The legal basis of the proposed EAA is Article 114 TFEU on the internal market. Thus, for the proposed EAA to comply with the EU Treaty rules, it had to meet the requirements set out in the settled case law of the Court of Justice of the EU (CJEU) on the internal market.92 First, there must have been national laws that regulated accessibility requirements for each good or service that was intended to be regulated by the Act.93 Second, such national laws must have caused barriers to the free movement of goods and services in the internal market, or significant distortions of competition.94 If both of these conditions were met, the good or service under examination could be included in the Act. Alternatively, EU actions related to the internal market are also justifiable in cases where they are deemed to have a preventive effect. In that respect, the EU would have been able to include any good or service within the scope of the proposed EAA insofar as it could be proven that it was likely that barriers to the free movement of that good or service would have emerged because of the development of divergent national legislation, and that the EAA was designed to prevent that.95 The EAA was adopted on 17 April 2019 in the form of the Directive on the Accessibility Requirements for Products and Services.96 The purpose of the Directive is to improve the functioning of the internal market through the approximation of laws, regulations and administrative provisions of the Member States and through the elimination of barriers to the free movement of certain accessible products and services.97 The Directive is also intended to increase the availability of accessible goods and services on the internal market and facilitate the implementation of Article 9 CRPD by establishing common EU rules.98

90 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services’ COM (2015) 615 final. 91 Article 2 Directive (EU) 2016/2102. 92 Case C-376/98 Germany v Parliament and Council EU:​C:​2000:​544. 93 Ibid para 83. 94 Ibid para 84. 95 Ibid para 86. 96 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. 97 Preamble, paras 1 and 16 and Article 1 Directive (EU) 2019/882. 98 Preamble, para 16 Directive (EU) 2019/882.

234  Research handbook on EU disability law 5.2

The European Accessibility Act in the Context of Other EU Measures

The EAA requires the Member States to guarantee that the goods and services falling within the ambit of the Directive comply with a set of accessibility requirements that are set out in Annex I.99 In other words, the Directive imposes a number of requirements to ensure that goods and services in circulation in the internal market are disability accessible.100 The proposal for this Directive was initially criticized for not taking into consideration the needs of people with intellectual disabilities or psychosocial disabilities.101 This criticism was also put forward in relation to the Web Accessibility Directive.102 However, while the EU legislator took into consideration such criticisms in the final, adopted version of the EAA,103 it failed to do so in the case of the Web Accessibility Directive.104 In circumstances where there are no harmonized standards for a good or service published in the Official Journal of the EU, the Commission has the power to adopt implementing acts to establish common technical specifications for the accessibility requirements set out in the EAA.105 Similarly to the EAA, the Web Accessibility Directive makes reference to standards which make websites and mobile applications more accessible.106 The existing European Standard EN 301 549 V1.1.2 was adopted on the basis of Mandate 376.107 It provides harmonized standards and a common methodology to assess the conformity of web content, electronic documents and non-web based software, such as mobile applications, with the requirements of the Web Accessibility Directive.108 The European Commission issued an implementing decision on the harmonized standard for websites and mobile applications, which sets out that this standard should be used for the presumption of conformity with the Directive.109

Article 4 Directive (EU) 2019/882. See preamble, para 4 of Directive (EU) 2019/882, which mentions ‘other persons who experience functional limitations, such as elderly persons, pregnant women or persons travelling with luggage, would also benefit from this Directive’. 101 EDF, ‘EDF Initial Position on the Proposal for a European Accessibility Act’ (2016), p. 12 www​ .edf​-feph​.org/​sites/​default/​files/​edf​_initial​_response​_european​_accessibility​_act​_feb​_2016​_​-​_final​_0​ .pdf accessed 4 February 2020. 102 Delia Ferri and Silvia Favalli, ‘Web Accessibility for People with Disabilities in the European Union: Paving the Road to Social Inclusion’ (2018) 8(2) Societies 1, p. 11. 103 For example, see Annex II Directive (EU) 2019/882. 104 Ferri and Favalli, ‘Web Accessibility for People with Disabilities in the European Union’ (n 102) 11. 105 Article 4(9) Directive (EU) 2019/882. 106 Article 6(1) Directive (EU) 2019/882. 107 ETS Institute, ‘EN 301 549 V1.1.2 (2015-04) – Accessibility Requirements Suitable for Public Procurement’ (ETS Institute, April 2015) www​.etsi​.org/​deliver/​etsi​_en/​301500​_301599/​301549/​01​.01​ .02​ _60/​ en​ _301549v010102p​ .pdf accessed 5 February 2020; CEN, CENELEC and ETS Institute, ‘Mandate 376 – Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe’ http://​mandate376​.standards​.eu/​standard accessed 5 February 2020. 108 Ferri and Favalli, ‘Web Accessibility for People with Disabilities in the European Union’ (n 102) 11. 109 Commission Implementing Decision (EU) 2018/1523 establishing a model accessibility statement in accordance with Directive (EU) 2016/2102 of the European Parliament and of the Council on the accessibility of the websites and mobile applications of public sector bodies [2018] OJ L256/103. 99

100

Accessibility of goods and services  235 Beyond the Member States, the EAA imposes obligations on manufacturers, importers, distributors and service providers that operate within the internal market, who are obliged to guarantee that the products that they design, produce, place and make available on the market conform to the EAA’s requirements.110 In particular, manufacturers should demonstrate the conformity of a product with the applicable accessibility requirements and place the CE marking on the product,111 while the importers and distributors are required to ensure that the conformity assessment procedure has been carried out by the manufacturer and that the product bears the CE marking.112 Service providers are also required to produce documentation on the compliance of the service they provide with the requirements of the Directive, and such documentation should be made available to the public in accessible formats.113 Manufacturers, importers and distributors are also obliged to ensure that the product is accompanied with instructions and safety information in language that is easily understood.114 All economic operators should take corrective measures to bring the product or service in question in conformity with the requirements of the Directive as soon as they have a reason to believe that the good or service is not compliant.115 Authorized representatives of manufacturers are also bound by the scope of the Directive, being required to act within the mandate that is given to them by the manufacturers.116 Overall, it is evident from the EAA obligations outlined above that the Directive imposes strong, enforceable obligations on the relevant actors, connected to ensuring the accessibility of the goods and services that are covered by the scope of the Directive. Therefore, the EAA addresses the problem that has repeatedly limited the effect of EU actions regulating the accessibility of goods and services, that is, that the measures do not entail strong obligations to ensure accessibility.117 However, it should be noted that the EAA does not cover all economic operators (public and private) without exception, so as to guarantee that the whole product chain is included and to guarantee multiple points of control. In the first instance, microenterprises providing services are excluded from the scope of application of the Directive.118 Microenterprises are those businesses that employ fewer than ten employees and have an annual turnover not exceeding EUR 2 million or an annual balance sheet total not exceeding EUR 2 million.119 According to the European Commission’s Annual Report on European Small and Medium Sized Enterprises (SMEs) 2016/2017, microenterprises are by far the most usual type of SME, amounting to 93 per cent of all enterprises and 93.2 per cent of all SMEs in the non-financial business sector.120 Therefore, the exclusion of microenterprises from the Articles 7(1), 9 (1), 10(1) and 13(1) Directive (EU) 2019/882. Article 7(2) Directive (EU) 2019/882. 112 Articles 9(2) and 10(2) Directive (EU) 2019/882. 113 Article 13(2) Directive (EU) 2019/882. 114 Articles 7(7), 9(5) and 10(2) Directive (EU) 2019/882. 115 Articles 7(8), 9(8), 10(3) and 13(4) Directive (EU) 2019/882. 116 Article 8(2) Directive (EU) 2019/882. 117 See section 4.2 above. 118 Article 4(5) Directive (EU) 2019/882; see also preamble, paras 70–72, to Directive (EU) 2019/882. On this point see further EDF, ‘EDF analysis of the European Accessibility Act’ (2019) 9 www​.edf​-feph​ .org/​newsroom/​news/​our​-analysis​-european​-accessibility​-act accessed 4 February 2020. 119 Preamble, para 23 and Article 4 Directive (EU) 2019/882. 120 Commission, ‘Annual Report on European SMEs 2016/2017-Focus on Self-Employment’ (European Commission November 2017) www​.smeacademy​.eu/​uploads/​5/​2/​4/​2/​52422965/​171217​ _annual​_report​_​-​_eu​_smes​_2016​-2017​.pdf accessed 4 February 2020. 110 111

236  Research handbook on EU disability law application of the EAA will significantly limit the potential positive effects of this Directive on the lives of persons with disabilities. It also implies that responsibility for ensuring the accessibility of goods and services provided by microenterprises now lies with the EU Member States under Article 9 CRPD on accessibility, as all EU Member States have now ratified the UN Convention. The EAA regulates the accessibility of the following goods: consumer general purpose computer hardware systems and operating systems for those hardware systems; payment terminals; self-service terminals related to the services covered by the legislation; automated teller machines (ATMs) and ticketing machines; check-in machines and interactive self-service terminals providing information (excluding terminals installed as integrated parts of transport vehicles, aircrafts, ships or rolling stock); consumer terminal equipment with interactive computing capability, used for electronic communication services; consumer terminal equipment with interactive computing capability, used for accessing audio-visual media services; ebooks and ereaders. It also covers the following services: electronic communication services, services providing access to audio-visual media services, consumer banking services, e-commerce, and emergency communication services accessed via the single European emergency number ‘112’. In addition, the EAA covers the following elements of air, bus, rail and waterborne passenger transport services, except for urban, suburban and regional transport services: websites; mobile applications; electronic ticketing services; and real-time travel information services. It also covers interactive self-service terminals (including with regard to urban, suburban and regional transport services), except those installed as integrated parts of vehicles.121 In general terms, the EAA seems to have adopted a holistic approach to ensuring accessibility in the field of goods and services.122 To be more specific, the Directive regulates the accessibility of the goods and services under its scope in its entirety. This does not mean that there are no aspects of the services that are excluded from the scope of application of the EAA. Nevertheless, it is evident from the content of the EAA that the EU legislator has adopted a holistic approach with regard to the regulation of accessibility, with a view to ensuring, as far as possible, the effective implementation of the requirements of the EAA. The EAA addresses several dimensions of accessibility. The EAA is primarily focused on setting out legal obligations to ensure the physical accessibility of goods and services via the implementation of essential requirements. In that regard, the EAA has adopted a comprehensive understanding of physical accessibility, contrary to the limiting, safety-based approach that has sometimes been chosen by the EU legislator to ensure accessibility.123 In addition to physical accessibility, the EAA imposes requirements on the relevant actors that seek to ensure that persons with disabilities will receive information about the products and services they purchase in accessible formats.124 Therefore, the EAA also implements both the information and the communication dimensions of accessibility. Lastly, the EAA provides for an enforcement mechanism. It ensures that both consumers and public and private organizations acting on behalf, or in support, of the complainant can go to courts or before the competent administrative bodies, including the national market

Article 2 Directive (EU) 2019/882. Charitakis, Access Denied (n 10) 272. 123 See section 4.4 above. 124 Annex I Directive (EU) 2019/882. 121 122

Accessibility of goods and services  237 surveillance authorities,125 to enforce the requirements of the EAA.126 The EAA also allows for the imposition of penalties, which should be effective, proportionate and dissuasive.127 Beyond the imposition of penalties, economic operators are not exempted from the obligation to fix the problem that led to the penalty in the first place.128 Additionally, the EAA provides for the establishment of a Working Group, consisting of representatives of market surveillance authorities, authorities responsible for ensuring the compliance of services with the provisions of the Directive, relevant stakeholders and representatives of persons with disabilities.129 The purpose of the Working Group is to exchange information, foster cooperation between national authorities and relevant stakeholders on matters relating to implementation of the Directive, and provide advice, in particular, to the Commission on the implementation of certain provisions of the Directive.130 Overall, this enforcement mechanism could potentially ensure the effective monitoring and implementation of the requirements of the EAA. In that regard, the EAA seems to have avoided one of the major problems of previously enacted EU laws on accessibility, which is the ineffective monitoring and enforcement of their requirements. 5.3

Limits to the Scope of Application of the European Accessibility Act

While the set of obligations contained in the EAA (and outlined above) seems, in principle, to guarantee the effective implementation of accessibility of goods and services covered by the ambit of the Directive, there are still several issues that could create challenges to its implementation. These challenges are highlighted below in the sub-sections that follow. 5.3.1 The limited coverage of private websites under the European Accessibility Act The first limitation on the scope of application of the EAA is that the Directive does not cover the accessibility of all websites. The EAA covers those websites which are connected to e-commerce, transport and audio-visual media services, but it leaves the remaining public and private websites uncovered. This choice is problematic for two main reasons. First, the choice not to regulate the accessibility of all websites may create problems for the functioning of the internal market, because it is likely that the Member States will adopt divergent rules on the accessibility of the remaining websites.131 Indeed, the impact assessment report on the EAA and a report of the Academic Network of European Disability Experts (ANED) on national accessibility requirements and standards for products and services in the European internal market show that there is legislation in the Member States that regulates the accessibility of

Articles 19–22 Directive (EU) 2019/882. Article 29(2) Directive (EU) 2019/882. 127 Article 30 Directive (EU) 2019/882. 128 Article 30(2) Directive (EU) 2019/882. 129 Article 28 Directive (EU) 2019/882. 130 Article 28 Directive (EU) 2019/882. Notably Articles 4 and 14 Directive (EU) 2019/882. 131 Charitakis, Access Denied (n 10) 272. 125 126

238  Research handbook on EU disability law both public and private websites.132 Therefore, as noted above,133 the EU has the competence to take action to tackle the legislative divergence that exists in the Member States by harmonizing national legislation. Moreover, as noted in section 3 above, the EU has adopted another Directive on the Accessibility of the Websites and Mobile Applications of Public Sector Bodies. Therefore it is likely that there will be regulatory fatigue at the Member State level that will demotivate national legislators from taking action to regulate accessibility of the remaining websites, as the Member States very rarely take action to fully cover the areas that the EU has left to their discretion.134 Equivalent concerns were raised with respect to the scope of the Web Accessibility Directive.135 The material scope of the Web Accessibility Directive applies to websites and mobile applications operated by public sector bodies, except for ‘websites and mobile applications of NGOs that do not provide services that are essential to the public, or services that specifically address the needs of, or are meant for, persons with disabilities’.136 This exemption is open to interpretation, because there is no clear definition of the term ‘services that are essential to the public’.137 It could also lead to divergent implementation at the national level by the Member States.138 The Directive also states: Member States should also be encouraged to extend the application of this Directive to private entities that offer facilities and services which are open or provided to the public, including in the healthcare, childcare, social inclusion and social security areas, as well as in the transport sector and the electricity, gas, heat, water, electronic communication and postal services.139

Second, it is important to point out that the coverage of all websites by the Act is essential for the functioning of the internal market. It is critical for consumers to be informed about the goods and services available in the internal market, and while the requirement to ensure the accessibility of e-commerce is a positive step towards guaranteeing access to information for people with disabilities it is not sufficient to ensure that disabled consumers will be able to make informed decisions, which is an essential aspect of the functioning of the internal market. 5.3.2

The regulation of the built environment related to the services covered by the Directive The second limitation on the scope of application of the EAA is that it provides the Member States with discretion as to whether to take action to implement the accessibility requirements

132 Mark Priestley, ‘National Accessibility Requirements and Standards for Products and Services in The European Single Market: Overview and Examples’ (Academic Network of European Disability Experts 2013) 50; Commission, Staff Working Document, ‘Impact Assessment accompanying the document, Proposal for a Directive of the European Parliament and of the Council on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States as regards Accessibility Requirements for Products and Services’ SWD (2015) 264 final, p. 75. 133 See section 5.1 above. 134 Commission, ‘Study on Assessing and Promoting E-accessibility’ (n 83) 10–11. 135 Ferri and Favalli, ‘Web Accessibility for People with Disabilities in the European Union’ (n 102) 11. 136 Article 1(1)(b) Directive (EU) 2016/2102. 137 Ferri and Favalli, ‘Web Accessibility for People with Disabilities in the European Union’ (n 102) 11. 138 Ibid. 139 Preamble, recital 34 Directive (EU) 2016/2102.

Accessibility of goods and services  239 of the Directive in the field of the built environment. In that regard, it is important to note that the potential inclusion of the built environment in the context of passenger transport services, hospitality services and banking services was explored in the EAA impact assessment.140 As far as passenger transport services are concerned, it is arguable that the EAA could have included a strong obligation that would have required the Member States to implement accessibility standards with regard to the built environment in that field. The inclusion of such an obligation in the EAA could have materialized through the addition of a second legal basis with respect to the EAA, namely Article 172 TFEU on trans-European networks, in accordance with the criteria set out by the CJEU on double legal bases.141 In spite of not having done so in the EAA, it is possible for the EU to take action to ensure the accessibility of trans-European networks in the future in the context of a different measure, similar to the TSI PRM Regulation. As far as banking services, other customer services and shops falling under the scope of the Directive are concerned, it can be argued that the EU has the competence to oblige the Member States to guarantee that the built environment relevant to those services is accessible to disabled persons. The Commission’s impact assessment of the EAA found that there was not enough evidence of existing internal market barriers in the field of the built environment, particularly with regard to immovable goods.142 This meant that the accessibility of the built environment could not fall within the scope of the EAA.143 Under the EAA, banking services, including websites, mobile device-based banking services and self-service terminals should be made accessible for persons with disabilities. However, if an ATM is located inside the premises of a bank, it might not be accessible for people with disabilities, as the EAA does not cover the accessibility of the physical environment related to banking (or other) services. As a result, while the ATMs might be accessible in themselves, persons with disabilities might not be able to use them, as the premises in which they are located may not be accessible.144 Therefore, the objectives of the EAA to increase the availability of accessible goods and services (as a primary objective) and to ensure the implementation of Article 9 CRPD (as a secondary objective) cannot be met without ensuring that the built environment related to the facilities of the services is accessible. The CJEU has recognized that secondary objectives can have an influence on consumer behaviour and choices and, thus, on the functioning of the internal market; and the EU has the power – through Article 114 TFEU – to regulate such objectives indirectly.145 This means that the EU could have taken action to ensure that the built environment relevant to services is disability accessible. As the Directive has now been adopted by 140 Commission, Staff Working Document, ‘Impact Assessment accompanying the document, Proposal for a Directive of the European Parliament and of the Council on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States as regards Accessibility Requirements for Products and Services’ (n 132) 16. 141 Case C-281/01 Commission v Council EU:​C:​2002:​761, para 35; see, on this point, Charitakis, Access Denied (n 10) 274–75. 142 Commission, Staff Working Document, ‘Impact Assessment accompanying the document, Proposal for a Directive of the European Parliament and of the Council on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States as regards Accessibility Requirements for Products and Services’ (n 132) 47. 143 Charitakis, Access Denied (n 10) 276. 144 Ibid. 145 Case T‑526/10 Inuit Tapiriit Kanatami and Others v European Commission EU:​T:​2013:​215, paras 38–45; see also Case C‑43/12 European Commission v European Parliament and Council of the European Union EU:​T:​2013:​215.

240  Research handbook on EU disability law the EU, it is the responsibility of the Member States to ensure its effective implementation by requiring that the premises where services are provided should be disability accessible.146 5.3.3

Exceptions to the application of the requirements of the European Accessibility Act The third limitation on the scope of application of the EAA is the exceptions to the accessibility requirements contained in the Directive. The accessibility obligations of the EAA are not applicable in circumstances where they require a significant adjustment to an aspect or feature of a product or service that would result in the alteration of the basic nature of that good or service, or where they impose a disproportionate burden on the economic operators concerned.147 With regard to the latter exemption in particular, it should be noted that the same exemption is provided for in the Web Accessibility Directive.148 However, the criteria that this Directive sets out for meeting the disproportionate burden test are not the same, and are not as extensively set out, as those in the EAA. The EAA provides for three criteria that determine whether compliance with the accessibility requirements contained in the Directive constitutes a disproportionate burden, namely: (i) the ‘ratio of the net costs of compliance with accessibility requirements to the overall costs (operating and capital expenditures) of manufacturing, distributing or importing the product or providing the service for the economic operators’;149 (ii) ‘the estimated costs and benefits for the economic operators, including production processes and investments, in relation to the estimated benefit for persons with disabilities, taking into account the amount and frequency of use of the specific product or service’;150 and (iii) the ‘ratio of the net costs of compliance with accessibility requirements to the net turnover of the economic operator’.151 It is critical that these exceptions are interpreted in such a way that does not enable them to be used as an excuse to avoid compliance with the Directive’s requirements.152 In particular, the use of the ‘disproportionate burden’ exception is troubling. ‘Disproportionate burden’ is a term that is used in EU law,153 and in the CRPD, as a limitation on the duty to provide reasonable accommodation. Article 9 CRPD, which lays out the accessibility obligations of the UN Convention, does not contain a reference to ‘disproportionate burden’. The CRPD Committee has stated in its General Comment No. 2 that the obligation to implement accessibility is unconditional.154 States Parties are required, under Article 9 CRPD, to use the maximum of their available resources to implement that Article. Thus, even when the private sector cannot carry the burden of the costs of implementing the Directive’s accessibility requirements, the State, which is responsible for implementing the CRPD, should take action to ensure the gradual implementation of these requirements.155 In that regard, a State could

Annex II Council Decision 2010/48/EC. Article 14(1) Directive (EU) 2019/882. 148 Article 5 Directive (EU) 2016/2102. 149 Annex VI Directive Directive (EU) 2019/882. 150 Ibid. 151 Ibid. 152 Charitakis, Access Denied (n 10) 278. 153 See Article 5 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 154 CPRD Committee, General Comment No. 2 (n 8) para 30. 155 Charitakis, Access Denied (n 10) 278. 146 147

Accessibility of goods and services  241 develop funds to provide financial assistance to those economic operators who are overwhelmed by the costs related to the implementation of the EAA’s accessibility requirements.156 These national funds can ensure the gradual implementation of the EAA’s obligations, while limiting the instances where economic operators place inaccessible goods or services on the market on the basis of the exceptions contained in the EAA.157

6.

CONCLUDING REMARKS: A PATH FORWARD

The purpose of this chapter was to examine the measures that the EU has adopted to implement accessibility, and to assess the extent to which the EAA can be considered to be an improvement upon the pre-existing EU measures related to accessibility. In that regard, this chapter first endorsed the proposition that accessibility has several dimensions (social, economic, physical, information and communication accessibility). Second, an overview was provided of the most important EU measures relevant to accessibility in the field of the customs union, taxation, the internal market, transport and consumer protection. Third, the four main deficiencies in the EU measures related to accessibility pre-Directive 2019/882 were analysed. These deficiencies are related to the arguable failure of the EU legislator to take a holistic approach to the regulation of accessibility and to take into account all of the relevant aspects of accessibility, providing for strong and clear-cut obligations related to accessibility. In addition, it has been argued in this chapter that the EU did not provide for effective monitoring and enforcement mechanisms for the implementation of accessibility measures pre-Directive 2019/882. Fourth, this chapter provided an analysis of the EAA. In that regard, it was argued that the Directive on the Accessibility Requirements for Products and Services has addressed, to a great extent, the deficiencies found in other EU legislation, but also that it entails some problematic aspects, especially with regard to its scope of application and exceptions. Beyond examining what the EU has already done to ensure accessibility, it is important to provide some potential options for the future development of EU measures on accessibility. As far as the mainstreaming of accessibility considerations is concerned, accessibility should be considered at all stages of the policy and legislative process, and it should be applied at an early stage of this process. In addition, the participation of representatives of people with disabilities in the formulation of policies is essential from the initial stages, as it can ensure that the needs of persons with disabilities are addressed.158 Furthermore, the EU should invest all possible human and financial resources so as to ensure the effective implementation of mainstreaming measures.159 Moreover, all of the actors involved in the application of a measure that mainstreams accessibility should receive disability-related training.160 Finally, regular monitoring and data collection is important for the successful implementation of such measures.161

Ibid. Ibid. 158 Commission, ‘Non-discrimination Mainstreaming: Instruments, Case Studies and Way Forwards’ (European Commission April 2007) 4 http://​ec​.europa​.eu/​social/​BlobServlet​?docId​=​1426​&​langId​=​en accessed 4 February 2020. 159 Ibid. 160 Ibid. 161 Ibid. 156 157

242  Research handbook on EU disability law In terms of future EU legislative actions, the two most prominent areas in which the EU could adopt legislation are the fields of consumer protection and trans-European networks. In the field of consumer protection, it is advisable that the EU adopt a disability-specific legislative instrument which would ensure that people with disabilities enjoy the rights found in the existing EU legal framework on consumer protection on an equal basis with others. Such a measure should also address the specific needs of those with various types of impairments. In that regard, any measure adopted should focus primarily on the information and communication dimensions of accessibility. In other words, it should guarantee that people with disabilities can, on an equal basis with others, seek, receive and impart information, including information on the accessibility of goods and services in the field of consumer protection, and that this information is offered in accessible formats. In the field of trans-European networks, it is important that the EU take action to expand the standards of the TSI PRM Regulation in the areas of air, bus and coach, sea and inland waterway travel. Such action would ensure the implementation of physical accessibility in those areas, which is arguably the most important gap in the otherwise successful implementation of accessibility in the field of transport. Overall, the EU actions taken to date in the area of disability accessibility are quite fragmented, as most such actions were adopted through mainstreaming instruments. However, the conclusion of the CRPD has increased the interest of the EU in taking action to implement the UN Convention, and it has further enhanced its disability policy. The EU has adopted measures that improve pre-existing legislative frameworks with a view to raising the level of disability accessibility within the Union,162 as well as new measures to expand the application of accessibility standards in new policy areas.163 The influence of the CRPD on these actions is evident from the references to the UN Convention in relevant EU measures. Thus, the significance and the influence of the CRPD on EU law and policies should not be underestimated.

See Directive (EU) 2018/1808. See Directive (EU) 2016/2102.

162 163

14. Disability and standardization David Hosking

1. INTRODUCTION The wide-ranging disability policy of the European Union (EU) is designed to make a transformative contribution towards equality for disabled people. The European Disability Strategy 2010–2020 (EDS) identified increased accessibility of products and services and of the physical environment as being critical if people with disabilities are to participate as equals in their communities.1 The European Commission looks to EU standardization policy as a key policy instrument in pursuit of this objective.2 Standards developed by private organizations alone or in conjunction with public authorities and/or civil society, establishing parameters for the production of goods or the delivery of services, and voluntarily adopted by industry and service providers have become a primary policy instrument to respond to the complexities of modern industrial societies.3 To date, standards are most commonly related to technology design elements, manufacturing and industrial processes. The potential for service delivery standards to respond to barriers experienced by people with disabilities is only just beginning to be explored. An ongoing key concern is how to make the developers of standards conscious of the needs of people with disabilities, so that the standardization system can effectively respond to barriers to equal access. The EU, by promoting equality for people with disabilities through both disability-specific policies and mainstreaming accessibility issues in its standardization policy, makes an important contribution to improving the opportunities for people with disabilities to fully participate in their communities. Over time, as accessibility issues are increasingly routinely incorporated in the revision of existing standards and the development of new standards, barriers to equal participation will be lowered or disappear altogether. In light of the foregoing, this chapter examines disability standardization within the EU. Following this introduction, section 2 of the chapter begins with an overview of the intersection of EU standardization and disability policies, and outlines the Treaty basis for the standardization policy and the status of standards in EU law. The history of EU standardization policy, up to the current Standardization Regulation,4 is then reviewed in section 3. The 1 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final, p. 5. 2 Ibid; Commission, ‘A Strategic Vision for European Standards: Moving Forward to Enhance and Accelerate the Sustainable Growth of the European Economy by 2020’ COM (2011) 311 final, p. 10. 3 Fabrizio Cafaggi and Agnieszka Janczuk, ‘Private Regulation and Legal Integration: The European Example’ (2010) 12 Business and Politics 1; Alejandro M. Peña, ‘Governing Differentiation: On Standardisation as Political Steering’ (2015) 21 European Journal of International Relations 52. 4 Regulation (EU) 1025/2012 on European standardisation, amending Council Directives 89/686/ EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC (the Standardization Regulation) [2012] OJ L316/12.

243

244  Research handbook on EU disability law Commission’s mandates for the development of disability-specific European standards are reviewed in section 4. In section 5, the potential for developing standards dealing with services is explored, the limited participation of people with disabilities in the European standardization system is discussed and an argument is presented with regard to the need for accessibility to be mainstreamed in tertiary education. Section 6 contains brief concluding remarks.

2.

THE INTERSECTION OF EU STANDARDIZATION AND DISABILITY POLICIES

2.1

EU Standardization Policy

A standard may be defined as a ‘document, established by consensus and approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of the optimum degree of order in a given context’.5 Standards may deal with products, services, production processes, material, testing methods and/or definitions of common terminology. They are ‘developed and defined through a process of sharing knowledge and building consensus among technical experts nominated by interested parties and other stakeholders – including businesses, consumers and environmental groups, among others’.6 Over the past few decades, the European Standardization System (ESS) has evolved as a public–private partnership that includes the European Commission; the three European Standards Organizations (ESOs), which are the European Committee for Standardization (CEN),7 the European Committee for Electrotechnical Standardization (CENELEC)8 and the European Telecommunications Standards Institute (ETSI);9 and representatives of societal stakeholders. The ESS is a co-regulation system, in which public and private institutions focus on their individual competences and legitimacy to achieve a common objective.10 In 2011, the European Commission presented its strategic vision for the use of standards as a primary policy instrument to support EU legislation and policy.11 Standards, described as

5 CEN/CENELEC, ‘What is a European Standard (EN)?’ www​.cencenelec​.eu/​standards/​DefEN/​ Pages/​default​.aspx accessed 1 February 2020. 6 Ibid. 7 Established in 1961, CEN (Comité Européen de Normalisation) is an international non-profit organization registered in Belgium, whose membership is composed of the national standards bodies of 34 countries, including all Member States of the EU. 8 CENELEC (Comité Européen de Normalisation Électrotechnique) is an international non-profit organization first registered in Belgium in 1973, whose membership is composed of the national electro-technical standards bodies of 34 countries, including all Member States of the EU. 9 Established in 1988, ETSI (European Telecommunications Standards Institute) is an international non-profit organization based in France. Its membership is much broader than CEN/CENELEC and includes among its more than 800 members standards bodies from all EU Member States, as well as countries inside and outside Europe and manufacturers, network operators, service providers and research organizations. 10 Mariolina Eliantonio and Megi Medzmariashvili, ‘Hybridity under Scrutiny: How European Standardization Shakes the Foundations of EU Constitutional and Internal Market Law’ (2017) 44 Legal Issues of Economic Integration 323, p. 324. 11 Commission, ‘A Strategic Vision for European Standards’ (n 2).

Disability and standardization  245 voluntary documents setting out technical or quality requirements with which products and services may comply,12 are ‘trade-enhancing’ because, especially in cross-border transactions, they reduce costs,13 and also promote overall economic growth. The Commission noted the increasing use of European standards and their contribution to the growth of the internal market.14 After extensive consultation, the Commission published a proposal for a regulation to update and improve the ESS. The objectives of the proposed regulation were to keep pace with increasingly ‘very short product lives and development cycles’, to correct the traditional underrepresentation of small and medium enterprises (SMEs) and societal stakeholders in the standardization system, and, because the ESOs do not set standards in the field of information and communication technology (ICT), to enable public authorities to refer to ‘Fora and Consortia Standards’ in their public procurement tenders for ICT products.15 The Commission reiterated its long-standing policy regarding the benefits of standards, saying that: [i]n the future, European standardisation will play a crucial role in a wide variety of areas, wider than today, ranging from supporting European competitiveness, protecting the consumer, improving accessibility for disabled and elderly people to tackling climate change. To respond rapidly to evolving needs in all areas, a comprehensive, inclusive, efficient and technically up-to-date European standardisation system will be required.16

2.2

EU Standardization Policy Supporting Disability Policy

The current EDS, which builds on a lengthy history of disability policy initiatives, was adopted in 2010, under the title ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier Free Europe’.17 The EDS responded to the commitments that the EU has undertaken as a signatory to the United Nations Convention on the Rights of People with Disabilities (CRPD). This chapter deals with an aspect of the first of its eight themes, ‘accessibility’, which is defined in the EDS as meaning that ‘people with disabilities have access, on an equal basis with others, to the physical environment, transportation, information and communications technologies and systems (ICT), and other facilities and services’.18 The overarching EU-level objective is to ensure accessibility to goods and services, including public services and assistive devices for people with disabilities.19 To progressively move towards a fully accessible environment, which is a ‘precondition for participation in society and in the economy’, the Commission intends to utilize legislation, various soft law measures and standardization policy.20 This use of standards is supported by Article 9 CPRD, which calls on States Parties to ‘develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public’. Ibid 2. Ibid. 14 Ibid 1–2. 15 Commission, ‘Proposal for a Regulation on European standardisation’ COM (2011) 315 final, p. 2. 16 Ibid 1. 17 Commission, European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 18 Ibid 5. 19 Ibid. 20 Ibid. 12 13

246  Research handbook on EU disability law In addition to their contribution to protecting the environment, promoting sustainable development and the security of people and infrastructure, the European Commission looks to standards as a key policy instrument for promoting accessibility: Standards are an important instrument for making society and economy more inclusive. In Europe, society is aging. As a consquence, there is a growing market for goods and services that satisfy the requirements of disabled and/or elderly people. Standardisation has the potential to respond to this challenge and to pave the way for the introduction of innovative state of the art technologies that ensure accessibility for all.21

Furthermore, in a 2011 Communication, the Commission affirmed that [s]tandards, which take into account accessibility considerations, following the ‘design for all’ principle, have great potential to remove barriers and empower disabled people to participate in all aspects of society […] Standards developed in accordance with this principle can also support innovation and the creation of a true European single market in accessible products and services for disabled and elderly people. European standardisation processes applied to social services could well be a way to disseminate social innovation throughout a large number of entities and would give providers a visible incentive to making progress in the right direction.22

3.

STANDARDS AND THE EU LEGAL ORDER

3.1

Treaty Provisions Related to Standardization Policy

The Treaty on the Functioning of the EU (TFEU) has a number of provisions relevant to standardization. Article 34 TFEU prohibits quantitative restrictions and national ‘measures having equivalent effect’ thereto, while Article 56 TFEU similarly prohibits restrictions on the freedom to provide services. In its Cassis de Dijon judgment, the Court of Justice of the European Union (CJEU) dealt with a German legislative rule regarding the alcohol content of various liquor products. A French product did not meet the standard imposed and could not be sold in Germany. The CJEU found that the legislation had the effect of a quantitative restriction on imports, which was prohibited by the Treaty.23 The judgment resulted in prohibiting barriers to the free movement of goods, unless they could be justified in order to satisfy mandatory requirements relating to ‘fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer’,24 or to protect other public interests under Article 36 TFEU.25 Subject to those potential limitations, the decision

21 Commission, ‘The Role of European Standardisation in the Framework of European Policies and Legislation’ COM (2004) 674 final, p. 7. 22 Commission, ‘A Strategic Vision for European Standards’ (n 2) 10. 23 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) EU:​ C:​1979:​42. 24 Ibid para 8. 25 Article 36 TFEU allows prohibitions or restrictions on imports and exports ‘on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property’.

Disability and standardization  247 confirmed that a product legally produced in one Member State could be freely marketed in all other Member States (the principle of mutual recognition). In the Fra.bo SpA case,26 the issue for consideration by the CJEU was a decision by a German certification body, the Deutsche Vereinigung des Gas‑ und Wasserfaches eV (DVGW) — Technisch‑Wissenschaftlicher Verein (DVGW), to ‘withdraw or refuse to extend’ its certificate of approval for the copper fittings produced and distributed by Fra.bo, an Italian company. Fra.bo brought an action against the DVGW, arguing that its decision was against EU law because ‘the DVGW is bound by the provisions governing the free movement of goods […] and the cancellation and the refusal to extend the certificate both restrict considerably its access to the German market’.27 The CJEU observed that ‘the DVGW is a non-profit, private‑law body whose activities are not financed by’ Germany, and that the state ‘has no decisive influence over the DVGW’s standardisation and certification activities’.28 Although there was another method to prove a product’s compliance with the regulations, the Court found that, due to the absence of rules governing this alternative and the extra costs involved, ‘that other procedure [was] of little or no practical use’.29 The Court determined that Article 34 TFEU (former 28 EC, as it then was): must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body.30

The CJEU decided that standards issued by both State and private organizations contravened the principle of free movement; however, standardization might be allowed when it facilitates the functioning of the internal market. This can be inferred from Article 101(3) TFEU, which permits agreements among actual or potential competitors that contribute to the efficiency of the internal market. Under this provision, the Commission has allowed companies to participate in a standard-making process if all competitors are able to take part, the process is transparent, the resulting standard is voluntary and access to the final standard will be given on a fair, reasonable and non-discriminatory basis (FRAND terms).31 Moreover, Article 114(1) TFEU allows for the adoption of ‘measures for the approximation’ of laws aimed at ‘the establishment and functioning of the internal market’. Furthermore, Article 115 TFEU allows the Council, acting unanimously in accordance with a special legislative procedure, to ‘issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market’. The European Commission’s role in implementing legislation using standards is governed by Articles 290 and 291 TFEU. Article 290(1) allows for the delegation to the Commission of powers to adopt ‘non-legislative acts of general application to supplement or amend certain

26 Case C-171/11 Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) – Technisch-Wissenschaftlicher Verein EU:​C:​2012:​453. 27 Ibid para 13. 28 Ibid para 24. 29 Ibid para 29. 30 Ibid para 32. 31 Commission, ‘Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Co-operation Agreements’ [2011] OJ C11/01, chapter 7.

248  Research handbook on EU disability law non-essential elements of the legislative act’. Article 291(2) allows for the conferral on the Commission of implementing powers ‘where uniform conditions for implementing legally binding Union acts are needed’. Moreover, Article 291(3) requires that ‘the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers’ be set out by regulation.32 3.2

The History of Standardization Policy

EU standardization policy may be said to have begun with the Low Voltage Directive.33 This Directive introduced the idea of harmonized standards, meaning that products meeting those standards were presumed to meet the requirements of the Directive and that such products could be freely traded throughout the internal market.34 The 1983 Mutual Information Directive set out a process for the national standardization bodies to inform each other, the European Commission and CEN/CENELEC of their standardization workplans for the following year and for the exchange of draft standards. Article 5 established a committee of Member States, chaired by the Commission – the Committee on Standards – which was to review the application of the information exchange process, and could make proposals to the Commission regarding requests for European standards and actions, to avoid ‘the risk of barriers to trade’.35 It also contained ‘standstill’ provisions which precluded national standards bodies from issuing a standard while a European standard was being developed on the same subject matter. This Directive was repealed and replaced in 1998 by what is called the Transparency Directive, which continued the obligation of the Member States to notify the Commission and each other of draft standards and their annual standardization programmes.36 This Directive defined a ‘European standardization body’ as CEN, CENELEC and ETSI, and provided for the continuation of the Committee on Standards, with the additional authority to offer an ‘opinion’ on the areas where harmonization appears necessary, as well as continuing the ‘standstill’ provisions. In the period between the adoption of the two directives mentioned above, the ‘New Approach to technical harmonization and standards’ was devised in 1985. It required that legislative harmonization be limited to essential requirements that products have to meet in

32 Regulation (EU) No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (the Comitology Regulation) [2011] OJ L55/13. 33 Council Directive 73/23/EEC on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits [1973] OJ L77/29. 34 Commission, ‘Vademecum on European Standardisation, Part I General Framework, Chapter 1.1 Standardisation and the Directive 98/34/EC Historical background’ (2003), pp. 2–3 https://​law​.resource​ .org/​pub/​eu/​vademecum/​complete​.vademecum​.pdf accessed 1 February 2020. 35 Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations [1983] OJ L109/8. 36 Council Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L204/37. This process was codified for a second time by Council Directive (EU) 2015/1535 of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification) [2015] OJ L241/1, which also repealed Directive 98/34/EC.

Disability and standardization  249 order to freely circulate within the (then) Community.37 A ‘New Approach’ directive sets out the essential requirements which have to be met for free movement of a product within the single market, such as safety, durability and interoperability, and the conformity assessment procedure to ensure a particular manufacturer’s product meets those essential requirements. The technical specifications, in the form of voluntary standards, required to produce and market products conforming to those essential requirements are ‘entrusted to organizations competent in the standardization area’. Products made in conformity with such a standard have a ‘presumption of conformity’ with the legislated requirements; however, if they are not produced in accordance with the harmonized standard, the manufacturer has to prove that the product conforms to the essential requirements of the particular directive in question.38 3.3

The Standardization Regulation

EU standardization policy is currently governed by the 2012 Standardization Regulation. The Regulation, based on Article 114 TFEU, deals with the relationship between the ESOs and the EU and the development of European standards and standardization deliverables for products and services which support EU legislation and policies, as well as the financing of ESOs and stakeholder participation.39 The objective of standardization is said to be the ‘definition of voluntary technical or quality specifications with which current or future products, production processes or services may comply […] where compatibility and interoperability with other products or systems are essential’.40 The ESOs are to follow the World Trade Organization’s ‘founding principles’ for standardization – those of ‘coherence, transparency, openness, consensus, voluntary application, independence from special interests and efficiency’.41 Recital 3 of the Standardization Regulation reiterates the usual standardization policy rationales – to boost competitiveness by facilitating free movement of goods and services; reinforce Europe’s global competitiveness; promote the internal market; and benefit consumers through their impact on production costs, improved quality and increasing safety. Recital 24 calls on the ESS to: fully take into account the United Nations Convention on the Rights of Persons with Disabilities. It is therefore important that organisations representing the interests of consumers sufficiently represent and include the interests of people with disabilities. In addition, the participation of people with disabilities in the standardisation process should be facilitated by all available means.

37 Council Resolution on a new approach to technical harmonization and standards [1985] OJ C 136/01. Affirmed and revised by the New Legislative Framework, Decision 768/2008/EC on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC [2008] OJ L218/82. 38 Annex II Council Resolution on a new approach to technical harmonization and standards [1985] OJ C 136/01. 39 Article 1 Regulation (EU) 1025/2012. It has been argued that the CJEU has unreasonably expanded the scope of Article 114 TFEU far beyond its intended function: See generally Linda Senden, ‘The Constitutional Fit of European Standardization Put to the Test’ (2017) 44 Legal Issues of Economic Integration 337. 40 Recital 1 Regulation (EU) 1025/2012. 41 Recital 2 Regulation (EU) 1025/2012.

250  Research handbook on EU disability law For the purposes of the Regulation, a ‘standard’ means a ‘technical specification, adopted by a recognised standardisation body, for repeated or continuous application, with which compliance is not compulsory’.42 It may be an ‘international standard’ which has been adopted by an international standardization body;43 a ‘European standard’ which has been adopted by an ESO; a ‘harmonized standard’ which has been adopted on the basis of a request made by the European Commission for the application of Union harmonization legislation; or a ‘national standard’ which has been adopted by one of the Member States’ standardization bodies. A ‘European standardization deliverable’ is a technical specification other than a European standard which is adopted by an ESO. A ‘technical specification’ is one which prescribes technical requirements to be fulfilled by a product, process or service, setting out various parameters including quality, performance, interoperability, environmental protection, health, safety and labelling. The Regulation confirms CEN, CENELEC and ETSI as the European standardization organizations.44 In order to promote transparency of standards development and stakeholder participation, Article 3 of the Standardization Regulation requires the ESOs and the national standardization bodies to develop and make publicly available annual work programmes which set out the standards which they expect to prepare or amend. These annual workplans are circulated to all of the other standardization bodies and to the Commission, which sends them on to the Member States through the Committee on Standards established by Article 22. National standardization bodies must not undertake actions which may impinge on work that an ESO plans to do,45 and once a European or harmonized standard is adopted, the national standards on the same subject matter must be withdrawn. Article 4 requires the ESOs and national standardization bodies to provide draft standards which they are developing to the other standardization bodies and to the Commission upon request. Requirements regarding stakeholder participation are set out in Article 5, which provides that the ESOs shall encourage and facilitate an appropriate representation and effective participation of all relevant stakeholders, including SMEs, consumer organisations and environmental and social stakeholders […] [and] shall in particular encourage and facilitate such representation and participation through the European stakeholder organisations receiving Union financing in accordance with this Regulation.

Often referred to as the Annex III organizations, because they have been selected based on the criteria set out in Annex III of the 2012 Standardization Regulation, these organizations are meant to represent the interests of SMEs, consumer and environmental groups and labour organizations.46 The EU provides funding to the Annex III organizations to support them in Article 2(1) Regulation (EU) 1025/2012. Article 2(9) of Regulation (EU) 1025/2012 states: ‘“international standardization body” means the International Organisation for Standardisation (ISO), the International Electrotechnical Commission (IEC) and the International Telecommunication Union (ITU)’. 44 Article 2 Regulation (EU) 1025/2012. 45 Article 3(6) Regulation (EU) 1025/2012. 46 Currently the Annex III organizations are Small Business Standards (SBS) www​.sbs​-sme​.eu; the European Association for the Co-ordination of Consumer Representation in Standardisation (ANEC – The European Consumer Voice in Standardisation; see https://​anec​.eu); the European Environmental Citizens’ Organisation for Standardisation (ECOS), see www​.ecostandard​.org; and the European Trade Union Confederation (ETUC), see www​.etuc​.org accessed 2 February 2020. 42 43

Disability and standardization  251 their activities related to standardization, including providing information to their members, participating in the technical work of developing standards and promoting European standards, as well as promoting European standardization deliverables and their uses.47 Pursuant to Article 8 of the Standardization Regulation, the European Commission must adopt an annual Union work programme for standardization which identifies strategic priorities and the standards it intends to request from the ESOs. In developing the annual programme, the Commission must conduct ‘a broad consultation of relevant stakeholders’, including the ESOs, the Annex III organizations and the Member States. Article 10 permits the Commission, after consultation with the ESOs, Annex III organizations and other sectoral experts and following approval by the Committee on Standards, to request, by means of an ‘implementation act’, one or more of the ESOs to draft a European standard or a European standardization deliverable. The Commission and the ESOs jointly assess whether the documents drafted by the ESOs meet the Commission’s request. Once it is agreed that a harmonized standard satisfies the requirements of the Union harmonization legislation, the Commission publishes a reference to that harmonized standard in the EU’s Official Journal (OJ). Since the ESOs traditionally have had less engagement with ICT standards, the Regulation has special provisions that enable the Commission to ‘decide to identify ICT technical specifications that are not national, European or international standards, but meet the requirements set out in Annex II’, and which may be used in public procurement.48 This allows the EU to adopt standards produced by various consortia for dealing with the ICT sector. 3.4

The Status of Harmonized Standards in EU Law

Despite the reliance on the New Legislative Framework (and New Approach Directives) over the past years, there is still doubt about where the standardization system fits within the EU constitutional framework.49 Although the CJEU has provided some basic guidance on how harmonized standards fit within the EU legal order, there remain unanswered questions about where a European standardization deliverable would fit, and also about the democratic accountability of private organizations issuing standards containing normative provisions, as well as the authority of the European Commission to adopt those private standards into EU law.50 In a reference for a preliminary ruling in a dispute between Latchways plc and Kedge Safety Systems, the issue was whether anchor devices (for protection against falls) manufactured by both companies were reliable and whether the CE marking (which indicates that a product complies with relevant harmonized standards) could be affixed to the devices.51 Reference to

Article 16 Regulation (EU) 1025/2012. Articles 13 and 14 Regulation (EU) 1025/2012. 49 Senden, ‘The Constitutional Fit of European Standardization Put to the Test’ (n 39). 50 See generally Matteo Gnes, ‘Do Administrative Law Principles Apply to European Standardization: Agencification or Privatization?’ (2017) 44 Legal Issues of Economic Integration 367; see further Carlo Tovo, ‘Judicial Review of Harmonized Standards: Changing the Paradigms of Legality and Legitimacy of Private Rulemaking under EU Law’ (2018) 55 Common Market Law Review 1187. 51 Case C-185/08 Latchways plc and Eurosafe Solutions BV v Kedge Safety Systems BV and Consolidated Nederland BV EU:​C:​2010:​619. 47 48

252  Research handbook on EU disability law harmonized standard EN795 related to Directive 89/686 was published in the OJ,52 but with the proviso that it did not include that part of the standard related to the safety products at issue in this case. The CJEU held that the excluded part was, in effect, a standard issued by a private standards organization, unconnected to the Directive and not subject to review by the Court.53 The Court ruled that a harmonized standard adopted by CEN, a private organization, only enters into EU law when the Commission publishes a reference thereto in the OJ. How a harmonized standard relates to EU law and its effect on individual contracts was the subject of the James Elliott case, which brought into play a harmonized standard and a contract clause required by Irish sale of goods law.54 Irish Asphalt sold James Elliott Construction some rock aggregate, a product subject to a harmonized standard pursuant to an EU directive on construction products. The Irish High Court had found that the aggregate did not meet the requirements of the harmonized standard, which had been transposed as an Irish standard, due to its sulphur content.55 The CJEU affirmed that it ‘has jurisdiction to interpret acts which, while indeed adopted by bodies which cannot be described as “institutions, bodies, offices or agencies of the Union”, are by their nature measures implementing or applying an act of EU law’.56 The Court further stated that harmonized standards form part of EU law, as they are ‘a necessary implementation measure which is strictly governed by the essential requirements defined by that directive, initiated, managed and monitored by the Commission, and its legal effects are subject to prior publication by the Commission of its references’.57 A harmonized European standard, reference to which has been published in the OJ, ‘forms part of EU law, since it is by reference to the provisions of such a standard’ that the product benefits from the presumption of conformity allowing it to be freely marketed and sold throughout the single market.58 The directive governing European standardization seeks to remove barriers to trade by establishing rules for market access, not determining a product’s fitness for or precise use on a particular contract. The presumption of compliance does not prevent parties to a contract from adding terms relevant to the particular contract, even when those terms are required by national legislation. The extent to which the CJEU has jurisdiction to examine the content of a harmonized standard was at issue in a case dealing with Regulation (EU) No 305/2011 on the marketing of construction products and a harmonized standard.59 The Safety and Chemicals Office of Finland had issued a ruling prohibiting use of the CE mark under that standard for four categories of products manufactured by the company Anstar Oy. The Office considered that a different directive, harmonized standard and mandate applied to the products in question. Anstar Oy claimed that the standard did apply to the products but that there were different interpretations within the EU giving rise to a limitation on the free movement of its products. In its preliminary ruling, the CJEU said that, in interpreting a harmonized standard, the Court European standard ‘EN’, from the German ‘Europäische Norm’. The excluded part was still part of EN 795, a European Standard, and so became part of the national standards of each CEN member country according to CEN’s internal rules. 54 Case C-613/14 James Elliott Construction Limited v Irish Asphalt Limited EU:​C:​2016:​821. 55 Ibid paras 25 and 26. 56 Ibid para 34. 57 Ibid para 43. 58 Ibid para 40. 59 Case C‑630/16 Anstar Oy v Turvallisuus- ja kemikaalivirasto (Tukes) (the Safety and Chemicals Office: Finland) EU:​C:​2017:​971. 52 53

Disability and standardization  253 will examine the content of the standard and the mandate it is based on, and determine if the most recent standard has repealed earlier versions. Explanatory guidelines published by national or international standardization bodies are not binding in EU law and have no bearing on its interpretation.60 The Court decided that the standard in question ‘must be interpreted as meaning that products, such as those at issue in the main proceedings, intended to be fixed into concrete before it sets fall within its scope if they have a structural function, in the sense that their removal from a structure would immediately reduce its resistance’.61 According to the General Court in Global Garden Products Italy SpA v Commission, Commission decisions relating to the publication of harmonized standards ‘are legal acts against which an action for annulment may be brought’.62 In that case, a lawn mower manufacturer was successful in its action for annulment of a Commission Implementing Decision to the effect that its mower did not meet the requirements of a (revised) harmonized standard. The General Court found that the Commission had failed to publish an end date for the 2006 version of the harmonized standard in question, when the rules required it to do so in order to notify stakeholders when that version was no longer in effect, and that a 2010 revised version had officially replaced it.

4.

DISABILITY STANDARDS’ MANDATES

The European Commission has issued four mandates, or requests, to the ESOs for disability-specific standards, and one disability-related Mandate which called for a guidance document that would set out how to incorporate accessibility issues into every new or revised standard. The Commission now includes references to disability/accessibility issues in every Mandate it issues for new or revised standards. If the implementation of this guidance document is effective, ‘Design for All’ elements should appear in European standards and in various European standardization deliverables (not just harmonized standards requested by the Commission). However, the Commission’s 2018 Annual Union Work Programme (AUWP) noted that ‘effort[s] to mainstream accessibility following a Design for all approach should be step[ped] up to mainstream disability issues in relevant standardisation processes’.63 4.1

Standards for Disabled and Elderly People’s Access to ICT Products: Mandate 273

In 1998, the European Commission issued a Mandate to CEN/CENELEC/ETSI, dealing with standards for disabled and elderly people’s access to ICT. The Mandate emphasized the distinction between a ‘Design for All’ approach and an ‘assistive technology’ approach to enabling access. ‘Design for All’ anticipates, to the extent that it is possible, the needs of disabled and elderly consumers at all stages of product development. ‘Assistive technology’ refers to new products designed for and specifically targeted at elderly and disabled people, to permit

Ibid paras 34–44. Ibid para 49. 62 Case T-474/15 Global Garden Products Italy SpA v Commission EU:​T:​2017:​36, para 60. 63 Commission, ‘Annual Union Work Programme for European Standardisation for 2018’ COM (2017) 453 final, p. 5. 60 61

254  Research handbook on EU disability law their access to, and use of, otherwise inaccessible technology. Phase I of the Mandate called for a review of international and regional standards and initiatives dealing with accessible ICT, coordination with international and regional organizations and proposals developed in close co-operation with organizations representing elderly and disabled people and relevant consumers’ organizations, for European standards to ‘ensure accessibility for disabled and elderly people within the information society’.64 Based on that work, Phase II called for the development of European standards.65 4.2

Standards Promoting Barrier-Free Design: Mandate 283

The following year, the Commission issued Mandate 283 to CEN/CENELEC/ETSI, calling for a ‘guidance document in the field of safety and usability of products by people with special needs (e.g. elderly and disabled)’. It was issued within the framework standardization mandate in the field of consumer safety.66 The Mandate explained that the ESOs were addressing the needs of disabled and elderly people in various committees but that there was no system-wide process to ensure that all consumers, regardless of age or disability, were considered in the development of all standards.67 Given the disproportionate rate of injury of elderly people from the use of ordinary products, it was important that products be designed ab initio for all consumers (to the extent practicable).68 While recognizing that health issues clearly affect the rate of falls among the elderly population, standards could make a difference by optimizing flooring, stairs, entrances and so on.69 As well as Design for All and assistive technologies, ‘adaptable design’ was listed as a means to achieve accessibility.70 This entails readily doable adjustments to standard products, preferably by means of built-in standard adjustment options. The purpose of the guidance document was to ensure that all relevant ESO technical committees were aware of the range of issues, so as to provide strategies to resolve them. The guidance document was to set out the general principles to be applied and was to be developed in close co-operation with organizations of elderly and disabled people, consumer organizations in general and designers specialized in Design for All.71 A second part of the Mandate was to establish a mechanism to ensure that the guidance document was actually used and continuously improved, to promote ways to make the information easily accessible and to evaluate its actual use.72

64 Commission, ‘M/273 Standards for Disabled and Elderly Peoples’ Access to Information and Communications Technologies (ICT) Products and Services Including “Design for All”’, p. 3 http://​ec​.europa​.eu/​growth/​tools​-databases/​mandates/​index​.cfm​?fuseaction​=​refSearch​.search accessed 2 February 2020. 65 Ibid 4. 66 Commission, ‘M/283 to the European Standards Bodies for a Guidance Document in the Field of Safety and Usability of Products by People with Special Needs (e.g. Elderly and Disabled)’ http://​ ec​.europa​.eu/​growth/​tools​-databases/​mandates/​index​.cfm​?fuseaction​=​search​.detail​&​id​=​173​# accessed 2 February 2020. 67 Ibid 2. 68 Ibid 3–4. 69 Ibid 3. 70 Ibid 4. 71 Ibid 6. 72 Ibid 7.

Disability and standardization  255 In 2002, CEN/CENELEC Guide 6: ‘Guidelines for standards developers to address the needs of older persons and persons with disabilities’ (ISO/IEC Guide 71:2001) was published.73 The aim of the Guide was to provide standards developers with a systematic process for taking the needs of older persons and persons with disabilities into consideration in the development of standards. The Guide set out (in table format) numerous aspects of a product (such as packaging, information, materials), cross-referenced with various human abilities (such as vision, dexterity, cognition), with a commentary on how these may be affected by aging and disability. Using these tables, standards developers could identify issues relevant to the needs of older persons and persons with disabilities. The process included the need to engage with persons with disabilities and the elderly, and their representative organizations. 4.3

Accessibility Requirements for Public Procurement of Information and Communication Technology: Mandate 376

In 2005, the European Commission requested the ESOs to develop standards on accessibility requirements for ICT products and services to harmonize and facilitate the public procurement of accessible ICT products and services and to develop an electronic toolkit for use by public authorities.74 Phase I called for an inventory of European and international accessibility requirements and an assessment of suitable testing and conformity schemes; a list of gaps where no accessibility requirements exist and suggestions for improvement; a proposal for a standardization work programme, indicating the types of standardization deliverables best suited to respond to the identified needs; and a report dealing with various testing and conformity schemes. A second Phase called for a list of European functional accessibility requirements for public procurement of ICT products and services, a European standard specifying accessibility requirements for public procurement of ICT products and services and an online, accessible toolkit for public procurers, setting out minimum accessibility requirements, how to select suitable products and how to draft technical specifications or award criteria in public tenders or in support of conformity processes. The ESOs were to coordinate their work with regional and international concerned parties, with particular mention made of people with disabilities and older people and their repre-

73 CEN/CENELEC Guide 6:2002, ‘Guidelines for standards developers to address the needs of older persons and persons with disabilities’ (ISO/IEC Guide 71:2001) www​.cencenelec​.eu/​standards/​Guides/​ Pages/​default​.aspx accessed 4 February 2020. This has since been replaced by CEN-CENELEC Guide 6, ‘Guide for addressing accessibility in standards’, Edition 2, 2014-12 www​.cencenelec​.eu/​standards/​ Guides/​Pages/​default​.aspx accessed 4 February 2020. The second edition involved a complete redrafting of the Guide, which changed the focus from age and ability issues to how to incorporate principles of accessibility when developing standards. The Guide offers two complementary approaches to addressing accessibility. The ‘accessibility goals approach’ can be used to identify user accessibility needs, which have to be reflected in the standard. The ‘human abilities and characteristics approach’ may be used to identify design considerations affecting accessibility. The Guide provides a number of strategies to achieve the identified accessibility requirements. 74 Commission, ‘M 376 Standardisation Mandate to CEN, CENELEC and ETSI in support of European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain’ http://​ec​.europa​.eu/​growth/​tools​-databases/​mandates/​index​.cfm​?fuseaction​=​refSearch​.search accessed 5 February 2020.

256  Research handbook on EU disability law sentative organizations, the European Disability Forum (EDF) having been mentioned as an example. Both the European standard and the toolkit were issued in 2014.75 The Commission requested the ESOs to draft a harmonized standard in support of the newly adopted Directive on accessibility for public websites in 2017,76 and it came into effect when referenced in the OJ in 2018.77 4.4

Accessibility Requirements for Public Procurement in the Built Environment: Mandate 420

Following numerous Commission communications and Council resolutions supporting actions to promote accessibility of the built environment and to implement duties arising from the EU’s ratification of the CRPD, in 2007 the Commission issued a mandate to the ESOs dealing with accessibility requirements for public procurement in the built environment.78 The objective of M/420 was, first, to facilitate the public procurement of accessible built environment following the Design for All principles by developing a set of standards/Technical specifications that will contain […] a set of functional European accessibility requirements of the built environment and […] a range of minimum technical data to comply with those functional requirements.79

The second objective of the Mandate was to develop an online toolkit so that public procurers could easily make use of the harmonized requirements. During Phase I, an inventory of existing accessibility standards and a gaps analysis was completed. Phase II began in January 2016, the end product of which will be a European standard ‘at the level of common functional accessibility requirements of the built environment to be used as either technical specifications or as criteria for awarding public contracts’, a Technical Report describing the technical performance criteria and a Technical Report on conformity assessment. The work is to be completed by the end of 2019.80

75 Standard – EN 301 549 – Mandate 376 ‘Accessibility Requirements Suitable for Public Procurement of ICT Products and Services in Europe’ http://​ mandate376​ .standards​ .eu/​ standard; ‘Accessible ICT Procurement Toolkit’ http://​mandate376​.standards​.eu/​background accessed 5 February 2020. 76 Commission Implementing Decision C (2017) 2585 on a standardisation request to the European standardisation organisations in support of Directive (EU) 2016/2102 of the European Parliament and of the Council on the accessibility of the websites and mobile applications of public sector bodies http://​ ec​.europa​.eu/​growth/​tools​-databases/​mandates/​index​.cfm​?fuseaction​=​search​.detail​&​id​=​577​# accessed 5 February 2020. 77 Commission Implementing Decision (EU) 2018/2048 on the harmonised standard for websites and mobile applications drafted in support of Directive (EU) 2016/2102 [2018] OJ L327/84: Standard – EN 301 549 V2.1.2 (2018-08) – Accessibility requirements for ICT products and services. 78 Commission, ‘M/420 EN Standardisation Mandate to CEN CENELEC and ETSI in support of European Accessibility Requirements for Public Procurement in the Built Environment’ http://​ec​.europa​ .eu/​growth/​tools​-databases/​mandates/​index​.cfm​?fuseaction​=​search​.detail​&​id​=​392​# accessed 5 February 2020. 79 Ibid 4. 80 CEN/CENELEC, ‘Accessibility – Built Environment’ www​ .cencenelec​ .eu/​ standards/​ Topics/​ Accessibility/​Pages/​Builtenvironment​.aspx accessed 5 February 2020.

Disability and standardization  257 4.5

Including ‘Design for All’ in Relevant Standardization Initiatives: Mandate 473

A mandate with the objective of including ‘a Design for All perspective in mainstream standards’, rather than in any specific accessibility standard, was issued in 2010.81 The mandate dealt with accessibility for persons with disabilities and elderly people, as well as ‘all people facing special [access] challenges’, such as families with small children or those with temporary health conditions. It highlighted that: Design for All aims to enable all people to have equal opportunities to participate in every aspect of society. To achieve this, the built environment, everyday objects, services, culture and information – in short, everything that is designed and made by people to be used by people – shall be safe, accessible, independently usable and convenient for everyone in society to use.82

The mandate, addressed to CEN, CENELEC and ETSI, called for: (i) a report describing how to identify the relevance of standardization products to people with disabilities and older persons; (ii) a report setting out the main areas of standardization to be reviewed in order to address accessibility issues; (iii) development of a standardization work plan for the review and amendment, as required, of relevant standards; (iv) provision of a work plan to address accessibility starting with two items in the first year and increasing that number in the following years; (v) a new standard, or other document as appropriate, that describes how industry and the service sector can consider accessibility following a Design for All approach. The ESOs were to include relevant regional and international parties, including ‘experts in the field of accessibility, industry associations in the areas concerned, users with disabilities and elderly persons and other relevant organisations/consortia’.83 A methodology (Protocol) was developed for CEN/CENELEC Technical Bodies and standardizers, to decide if and how accessibility following a Design for All approach should be addressed in the development of a standard. It is available to the public on the CEN website, along with some training material.84 In 2019, European standard EN 17161:2019, ‘Design for All – Accessibility following a Design for All approach in products, goods and services – Extending the range of users’, was published.85

81 Commission, ‘M/473 EN Standardisation Mandate to CEN, CENELEC and ETSI to include “Design for All” in Relevant Standardisation Initiatives’ 5–6 http://​ec​.europa​.eu/​growth/​tools​-databases/​ mandates/​index​.cfm​?fuseaction​=​refSearch​.search accessed 5 February 2020. 82 Ibid 1–2. 83 Ibid 9. 84 CEN/CENELEC, ‘Protocol’ (2018) and Webinar: ‘How to Address Accessibility, Following the “Design for All” Approach, in the Standardization Process’ (2018) www​.cencenelec​.eu/​standards/​ Topics/​Accessibility/​Pages/​DesignforAll​.aspx accessed 7 February 2020. 85 CEN, EN 17161:2019 ‘Design for All – Accessibility Following a Design for All Approach in Products, Goods and Services – Extending the Range of Users’ https://​standards​.cen​.eu/​dyn/​www/​f​?p​=​204:​110:​0:​ :​:​:​FSP​_PROJECT​,FSP​_ORG​_ID:​62323​,2301962​​&​cs​=​1D28CFDC66E7CEF3CE441294CAA9FEABE accessed 7 February 2020.

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5.

FUTURE CHALLENGES

5.1

Service Standards

Increased development of standards for the services sector will be a focus of EU standards policy in the coming years. European service providers face numerous barriers to cross-border delivery of services, such as national or local authorities requiring compliance with a national standard or possession of a national certificate, even if the company has similar qualifications in its home country; the existence of a national standard which sets a market norm that customers expect to be met; and linking possession of a national certificate to a product/service package. European service standards are expected to open markets for service providers, provide increased business opportunities and, through increased competition, improve quality and choice for consumers.86 It is estimated that only 2 per cent of EU standards deal with services, even though services account for almost 70 per cent of EU gross national product.87 A service standard is a standard which sets out performance requirements and expectations in relation to the provision of a particular service. It may include quantitative and/or qualitative measures of performance, cover all or only part of a service, and/or define common terms, best practices, timeliness, the scope of the service and relevant complaints mechanisms. A service standard may have varying levels that enable companies to distinguish themselves and consumers to choose appropriate levels of service.88 The scope for standards relevant to disability issues is wide-ranging. In the tourist/travel sector, standards relating to accessibility of accommodation, public transport and entertainment venues would respond to market needs. Services standards could relate to specialist care for children and adults with disabilities, provision of personal attendant care, alternative public transportation, healthcare or education. The role of standards in these areas would be to set out a description of the service so that the service provider, the client and the client’s family, as well as the paying authority, all understand the scope of the service, key performance indicators, the qualifications of the providers’ staff, management competence, the quality and quantity of the service, dispute resolution mechanisms, and so on. European standards would also be a mechanism to promote improvements in general service accessibility and services for persons with disabilities in those countries and regions of Europe which are not yet providing state-of-the-art services. Developing standards for services providing for the particular needs of persons with disabilities or standards for accessibility in general, especially a European standard applying to all the Member States, will be difficult because of the range of services offered; differences in national delivery models; public and private resources devoted to disability, cultural and language diversity; and expectations from consumers, oversight bodies and national consumer organizations. These factors make reaching consensus on standards and balancing the competing interests difficult.89 Lastly, the development of a standard or a standards package must

86 Commission, ‘Tapping the Potential of European Service Standards to Help Europe’s Consumers and Businesses’ SWD (2016) 186 final, p. 7. 87 Ibid 2. 88 Ibid 3. 89 In 2011, CEN was developing a European standard on ‘Sheltered Housing – Requirements for Services for Older People Provided in a Sheltered Housing Scheme’. Due to the diversity of service

Disability and standardization  259 fit the demands of the market, including public and private providers.90 CEN has published a Guide which sets out a methodology for the development of generic or sector-specific service standards, and mentions the need to include accessibility requirements in all standards.91 5.2

Ensuring Participation of People with Disabilities

The limited participation of SMEs and societal stakeholders in the ESS has been, and remains, a concern, because their involvement is seen as a factor in the legitimacy and, thus, acceptance of standards.92 A study completed for the European Commission in 2009 concluded that, of the various stakeholders involved in the standardization process, consumer and environmental organizations and trade unions had the lowest relative commitment to standardization, knowledge to participate meaningfully in the process and recognition of the benefits of standards to their own interests.93 The study identified the most important barriers to participation in the ESS as the time required, travel costs to the meetings and the fees for membership and participation in technical committees. Additional barriers were the complicated process involved, the absence of perceived benefits to the organization, a lack of technical knowledge or access to experts and a general lack of awareness of standardization.94 The Standardization Regulation outlined a defined role for, and allowed for specific EU funding to, the Annex III organizations representing SMEs, consumer and environmental groups and trade unions. A 2015 review of the ESS defined ‘inclusiveness’ as the involvement of a wide range of stakeholders in the process and development of close cooperation among the ESS partners, and affirmed that ‘this gives legitimacy to the standards developed at European level, as it is assumed that the standards developed are of public interest, and rely on the expression of the views of all interested parties’.95 With regard to the societal stakeholders, the formal identification and support of the Annex III organizations was noted as a major advance towards inclusiveness. Factors contributing to the continuing weaknesses in their degree of participation were identified as follows: a lack of resources (both financial and techdelivery models, it was decided to publish a Technical Specification rather than a European standard, since consensus could not be reached on a draft standard: ANEC, ‘Position Paper. How Standardisation Can Support the Silver Economy: Wiser Standards for an Ageing World’ www​ .anec​ .eu/​ images/​ documents/​position​-papers/​2014/​ANEC​-DFA​-2014​-G​-021​.pdf accessed 7 February 2020. 90 CEN/CENELEC, Strategic Plan on Services Standardization to Implement the Ambitions 2020, p.  4 www​.cencenelec​.eu/​News/​Publications/​Publications/​services​_strategy​-Final​-2017​-08​-30​.pdf accessed 7 February 2020. A Commission-initiated consultation on safety of tourism accommodation found insufficient stakeholder support for new legislative initiatives in the field, and the initiative was abandoned: ANEC, Annual Review 2015 11 www​.anec​.eu/​images/​Publications/​annual​-reviews/​RA​ -ANEC​-2015​-16​-pages​-WEB​.pdf accessed 7 February 2020. 91 CEN, Guide 15 – Guidance Document for the Development of Service Standards – Version dated 2012-02-01 https://​boss​.cen​.eu/​ref/​CEN​_15​.pdf accessed 9 February 2020. 92 For a discussion of alternative means to achieve democratic legitimacy and, thus, acceptance of a standard, see Raymund Werle and Eric J Iversen, ‘Promoting Legitimacy in Technical Standardization’ (2006) 2 Science, Technology & Innovation Studies 19. 93 Commission, ‘Access to Standardisation: Final Report’, EIM Business & Policy (European Commission, 10 March 2009) 8 https://​www​.anec​.eu/​images/​Publications/​Access​-Study​-​-​-final​-report​ .pdf accessed 9 February 2020. 94 Ibid 42. 95 Commission, ‘Independent Review of the European Standardisation System Final Report’ (2015) 71.

260  Research handbook on EU disability law nical) supporting effective participation; a failure within the ESS to recognize the contribution of SMEs and the societal stakeholders; and, moreover, that the system is ‘mainly owned by large companies that have the financial capability to use standardisation as a business tool’.96 In addition, the ESS was viewed as being very bureaucratic and requiring ‘a special effort’ for effective participation in the standards development process. An unintended consequence of the pressure to increase the speed of standards development was that it hampered participation by the Annex III organizations who have additional horizontal duties and limited resources.97 People with disabilities are represented through the European Association for the Co-ordination of Consumer Representation in Standardisation (ANEC), which has been attentive to issues of Design for All and accessibility from its inception. ANEC has worked closely with EDF, and other European and national disability associations, on the numerous contributions and interventions it has made on disability-relevant standardization projects. EDF is listed with CEN as a Liaison Organization, which is a class of European organization representing interest groups that are committed to provide input to the work of one or more CEN Technical Bodies. It is also a member of ETSI. In response to criticism that the ESS is overly complex and industry-dominated, and that civil society groups lack the knowledge to participate effectively, CEN/CENELEC have undertaken significant work in the past few years to put explanatory and training materials related to standards on their joint website.98 Both the Commission’s 2018 and 2019 AUWPs make special mention of the need to improve participation of the societal partners and SMEs. The 2018 AUWP states: ‘as acknowledged in past AUWPs, many challenges remain in ensuring adequate participation by Annex III organisations. When standards relate to legislation protecting public interests, [such as] accessibility, participation of societal stakeholders affected like in this case those representing persons with disabilities is essential.’99 In a similar vein, the Commission’s 2019 AUWP affirms that ‘[i]t is […] important to involve not only the providers but also the beneficiaries, including vulnerable and minority groups in society like persons with disabilities, in elaborating ICT standards’.100 In its 2018 Communication related to harmonized standards, the Commission emphasized its responsibility for initiating and managing the development process that was referred to in the James Elliot case. This involves not just the technical aspects of a standard but also whether the process has been sufficiently inclusive:

Ibid 78. Ibid 76–81. These themes were repeated in the Commission’s ‘Report on the Implementation of the Regulation (EU) No 1025/2012 from 2013 to 2015’ COM (2016) 212 final, p. 4; see also ECOS, ‘The Future of European Standardisation’ 5–6 http://​ecostandard​.org/​wp​-content/​uploads/​The​-future​ -of​-European​-standardisation​-ECOS​-Position​-July​-2015​.pdf accessed 9 February 2020; see generally Morten Kallestrup, ‘Stakeholder Participation in European Standardization: A Mapping and an Assessment of Three Categories of Regulation’ (2017) 44 Legal Issues of Economic Integration 381, p. 392. 98 CEN/CENELEC www​.cencenelec​.eu/​standards/​Education/​Pages/​default​.aspx; CEN/CENELEC www​.cencenelec​.eu/​aboutus/​ourservices/​Training/​Pages/​default​.aspx; Joint project of the societal partners, ‘Societal Stakeholders and Standards’ www​.standards4all​.eu/​index2​.php​#/​accessed 19 May 2019. 99 Commission, ‘Annual Union Work Programme for European Standardisation for 2018’ (n 63) 9. 100 Commission, ‘Annual Union Work Programme for European Standardisation for 2019’ COM (2018) 686 final, p. 4. 96 97

Disability and standardization  261 It is the Commission’s intention to fulfil these obligations in a manner which is as swift and efficient as possible […] Moreover, the Commission has also given clear directions to the European Standardisation Organisations in the Annual Union Work Programmes, to strengthen the involvement of small and medium-sized enterprises and societal stakeholders in the European standardisation process.101

5.3

Education on Accessibility

Throughout the EU, the low level of tertiary education about standards, their development and their potential to promote growth has, for many years, been identified as a problem for the future health of the ESS. Remedial actions, which it is hoped will be implemented in the next several years, include training programmes on standardization for national and European public administrations, and the promotion of standardization as an element of formal education.102 In addition to promoting more education about the ESS and practical implementation of accessibility aspects of standards, the concept of ‘accessibility’ must become an essential element of all academic and vocational training programmes, as must the principles of Design for All (universal design), which should be mainstreamed in all disciplines (engineering, architecture, interior design, home and office construction, computer science and so on). In that regard, organizations representing people with disabilities must take the lead in pressing their national tertiary educational institutions to make theoretical and practical knowledge of applying Design for All part of every curriculum. As long as accessibility remains an ‘add-on’ – a separate element of design or something to respond to a minority group need – it will remain ‘foreign’ to the core skill-set of a profession or trade. If accessibility, in theoretical and practical terms, is part of the core learning objectives, it is much more likely that it will form part of every enterprise from its first inception, through development and on to completion. In this way, also, the accessibility provisions of European standards will become understandable; and both the reason they are there and how to put them into practice will become second nature. However, to make space for these issues in tertiary curricula requires political pressure which will only come from the people most immediately affected by the lack of access to products, the built environment, transportation and services.

6.

CONCLUDING REMARKS

Standardization policy is a key feature of the internal market for goods, and it is expected to take on greater prominence in the single market for services. The European standardization system, as a co-regulatory system with the Member States holding both ex ante and ex post policy-making authority and the ESOs, as private standardization bodies, being given responsibility for the technical specifications required to meet the essential requirements of harmonizing legislation, is well established. The Standardization Regulation requirements for the involvement of SMEs and societal stakeholders in the development of standards attempt 101 Commission, ‘Harmonised Standards: Enhancing Transparency and Legal Certainty for a Fully Functioning Single Market’ COM (2018) 764 final, p. 3. 102 Commission, ‘Independent Review of the European Standardisation System’ (n 95) 8; Commission, ‘European Standards for the 21st Century’ COM (2016) 358 final, p. 7.

262  Research handbook on EU disability law to respond to the need for inclusiveness, to promote the legitimacy and broad acceptance of European standards. Standardization deliverables and European standards, as opposed to harmonized standards, may be the direction that service standards for personal care, health, sheltered accommodation and so on take, since there is such wide variation among the Member States in service delivery models that it will be difficult to reach consensus on what a standard should require. These instruments are not part of EU law, and so some Member States may choose to take the initiative in these areas. Any successful standard would be a model for non-participating Member States and a rallying cry for domestic political action. The Commission has been attentive to the interests of people with disabilities in standardization processes, with its disability-specific mandates, and frequent mentions are made of the need to ensure that standards meet Design for All criteria in both communications on standards, and in implementing acts requesting new and revised standards. With the introduction of the Standardization Regulation, people with disabilities’ interests in the accessibility of goods, services and the built environment have been primarily subsumed into the consumer societal stakeholder ANEC. ANEC has been very active in the field through its accessibility working group and collaboration with EDF and other organizations representing people with disabilities; however, one could argue that recognition of EDF as the voice of people with disabilities in standardization (adding it as an Annex III organization) would give a more direct and influential role, in keeping with the EU’s international responsibilities.

15. Disability and EU public procurement Christopher Bovis

1. INTRODUCTION The principle of non-discrimination is a fundamental principle of European Union (EU) law and covers, inter alia, the requirement of public and private actors to avoid discriminating on the ground of disability. Persons with disabilities include those having long-term physical, mental, intellectual or sensory impairments which may, in conjunction with other barriers, hinder their full and effective participation in society on an equal basis with others.1 The Charter of Fundamental Rights of the European Union (CFR or Charter) includes a number of provisions which are relevant to persons with disabilities, in particular the right to human dignity (Article 1 of the Charter), the right to integrity of the person (Article 3), the right to education (Article 14), the right to choose an occupation and the right to engage in work (Article 15), the rights of the elderly (Article 25), the right to integration of persons with disabilities (Article 26) and the freedom of movement and residence (Article 45). The principle of non-discrimination on the ground of disability is effected (among others) by meeting the requirement of ensuring accessibility to the physical environment, transportation, information and communications systems and public facilities and services. The most important way of making the physical environment accessible is to develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public. The principle of equality underpins the conclusion by the EU and the ratification by its Member States of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). The CRPD commits Parties to enacting appropriate measures to ensure access for persons with disabilities, on an equal basis with others. Of paramount importance for achieving compliance with the principle of non-discrimination on disability grounds is Article 9 CRPD on accessibility, whose objectives consist of the following features: independent living, full participation in all aspects of life and equal treatment. The CRPD seeks to ensure access for persons with disabilities, on an equal basis with others, to, inter alia, information and communication technologies (ICT) and systems; requires Parties to develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public and to promote access for persons with disabilities to new ICT and systems, including the internet; requires Parties to refrain from engaging in any act or practice that is inconsistent with the Convention; and requires Parties to ensure that public authorities and institutions act in conformity with it. The CRPD also stipulates that the design of products, environments, programmes and services should enable their use by all people, to the greatest extent possible, without the need for

1 Andrea Broderick and Delia Ferri, International and European Disability Law and Policy: Text, Cases and Materials (Cambridge University Press 2019) 65.

263

264  Research handbook on EU disability law adaptation or specialized design. Universal Design (UD) should not exclude assistive devices for particular groups of persons with disabilities, where this is needed.2 The CRPD is in full alignment with EU law, and the interplay of the principle of non-discrimination with the principle of equality has supported the adoption of the European Disability Strategy 2010–2020 (EDS) in the form of a Commission Communication which aims to eliminate barriers that prevent persons with disabilities from participating in society on an equal basis.3 Its main objective is to ensure accessibility to goods and services, including public services and assistive devices for people with disabilities, and it prioritizes a number of strategic areas, including accessibility of ICT and systems in order to develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public, and to promote access for persons with disabilities to new ICT and systems. The EDS refers to accessibility as meaning that people with disabilities have access, on an equal basis with others, to the physical environment, transportation, ICT and systems (ICT),4 and to other facilities and services open or provided to the public. Accessibility is then defined as the prevention or removal of barriers to the use of mainstream goods and services. It makes the design and functioning of mainstream goods and services more usable by most people, including persons with disabilities, and regardless of their ability or age. It is mostly preventive and proactive. The preferred approach to implement accessibility is the introduction of a Design for All or UD that aims at designing products, services and environments that are readily usable by most users without any modification. However, that approach has reflected on minimum harmonization for standards and specifications, thus creating a vacuum in the regulatory environment for the optimal delivery of accessibility and its components. These priority areas for the EDS take into account the wealth of experience from the previous Disability Action Plan (2004–2010)5 and include the following areas of action: accessibility, by making goods and services accessible to people with disabilities and promoting the market of assistive devices; participation, by ensuring that people with disabilities enjoy all benefits of EU citizenship; equality, by combating discrimination based on disability and promoting equal opportunities; employment, by raising significantly the share of persons with disabilities working in the open labour market; education and training, by promoting inclusive education and lifelong learning for students and pupils with disabilities; social protection, by enhancing decent living conditions and combating poverty and social exclusion; health, by promoting equal access to health services and related facilities; and external action, by

Article 2 CRPD. Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. See supra Charles O’Mahony and Shivaun Quinlivan, ‘The EU Disability Strategy and the Future of EU Disability Policy’, in this volume. 4 Especially computers and operating systems; digital TV services and equipment; telephony services and related terminal equipment; ebooks; self-service terminals; e-commerce; banking services (concerning automated teller machines – ATMs, websites and the built environment); passenger transport services – air, rail, bus and maritime (concerning ticketing and check-in machines, websites and the built environment); hospitality services (concerning websites and the built environment). 5 See Commission, ‘Equal Opportunities for People with Disabilities: A European Action Plan (2004–2010)’ https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​?uri​=​LEGISSUM​%3Ac11414 accessed 1 February 2020. 2 3

Disability and EU public procurement  265 facilitating the rights of people with disabilities in the EU enlargement and international development programmes. The digital society provides users with new ways of accessing information data and public services. Providers of information and services, such as public sector bodies, rely increasingly on the internet in order to produce, collect and provide a wide range of information and services online which are essential to the public. Accessibility within the digital society should be understood as a set of principles and techniques to be observed when designing, constructing, maintaining, and updating websites and mobile applications in order to make them more accessible to users, in particular persons with disabilities. On the whole, the EDS aims to eliminate barriers that prevent persons with disabilities from participating in society on an equal basis. The general nature of accessibility obligations under the EDS has revealed diverging national implementation and regulatory differences in the EU market. The principle of equality and the principle of non-discrimination are also embedded in the EU public procurement regime, which is in principle fully compatible with the EDS. The EU public procurement regime is the necessary conduit to achieve the objectives of the EDS, alongside direct legislative interventions by Member States.6 Through public procurement, the delivery of public services via public contracts for works, supplies and services can take into account accessibility criteria for persons with disabilities, and public services can be designed for all users on an equal basis. Thus, the EU public procurement regime introduces the principle of universality in public service delivery by requiring that specifications for all procurements which are intended for use by natural persons take into account (by default) accessibility criteria for persons with disabilities, except in duly justified cases. Through universality, accessibility can be viewed as a public service under EU law, which could introduce the requirement of public service obligations in its attainment by the EU Member States. This chapter analyses the extent to which EU public procurement law encompasses disability concerns and promotes the rights of persons with disabilities. After this introduction, section 2 discusses the notion of public services and their importance in relation to accessibility. Section 3 examines the function of EU public procurement as the driver of public service delivery, while section 4 examines discretion as a key issue in achieving accessibility. Section 5 presents concluding remarks.

2.

THE NOTION OF PUBLIC SERVICES AS A PLATFORM FOR ACCESSIBILITY

The term ‘public service’ often refers to a service which is offered to the general public; or highlights that a service has been assigned a specific role in the public interest; or refers to the ownership or status of the entity providing the service. In the latter situation, the notion of a public service fuses with the concept of ‘public sector’, which covers the State and its 6 Directive 2014/24/EU on public procurement and repealing Directive 2004/18/EC (the Classical Directive) [2014] OJ L94/65; Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (the Utilities Directive) [2014] OJ L94/243; and Directive 2014/23/EU on the award of concession contracts [2014] OJ L94/1.

266  Research handbook on EU disability law organs, bodies governed by public law and undertakings controlled by public authorities. Two models for the treatment of public services have been developed, based on different theoretical and conceptual values. On the one hand, public services which capture general needs of the public are delivered through market-based mechanisms where the public sector interfaces or competes with private sector undertakings; this model is based on Article 106 Treaty on the Functioning of the European Union (TFEU), sectoral primary and secondary legislation and State aid rules. On the other hand, public services which are described as essential facilities (for example, defence and policing) should be sheltered from competition in order to ensure the integrity of their delivery. The provision of these types of public services is the prerogative of the State and not affected by the thrust of EU law.7 Although the term ‘public services’ does not feature in the acquis communautaire relevant to Article 106 TFEU, surrogate concepts have significantly contributed in constructing a notion whereby the State is expected or even obliged to enter the marketplace in order to deliver directly, or organize, the delivery of public services. These surrogate concepts are reflected in the terms of ‘public service obligations’ and ‘universal service obligations’, which have supported the liberalization process of sectoral policies of the EU.8 The term ‘public service obligations’ refers to specific quality and price requirements that are imposed by public authorities on the provider of the service in order to ensure that certain public interest objectives applicable at EU, national or regional level are met.9 The term ‘universal service obligation’ denotes contractual or regulatory requirements imposed by public authorities upon undertakings with a view to maintaining regularity, as well as affordability,10 in the provision of the relevant services.11 Alongside public service obligations and universal service obligations, Article 106(2) TFEU has introduced the term ‘services of general economic interest’ (SGEI), a term whose significance has been augmented by virtue of Article 16 TFEU.12 The

7 Andre Moriceau, ‘Services d’intérêt économique general et valeurs communes’ (2008) 519 Revue du Marché Commun et de l’Union Europénne 358. 8 Christopher Bovis, ‘The Application of Competition Rules to the European Union Transport Sectors’ (2005) 11(5) Columbia Journal of European Law 1. 9 In the context of air transport, the term ‘public service obligation’ was defined in Council Regulation (EEC) 2408/92 as ‘any obligation imposed upon an air carrier to take, in respect of any route which it is licensed to operate by a Member State, all necessary measures to ensure the provision of a service satisfying fixed standards of continuity, regularity, capacity and pricing, which standards the air carrier would not assume if it were solely considering its economic interest’ (Council Regulation (EEC) 2408/92 on access for Community air carriers to intra-Community air routes [1992] OJ L240/8 – no longer in force and repealed by Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community [2008] OJ L293/3). 10 Wolf Sauter, ‘Services of General Economic Interest and Universal Service in EU Law’ (2008) 33(2) European Law Review 172. See infra Juan Jorge Piernas López, ‘Public Services and Disability’, in this volume. 11 In the context of the Universal Services Directive (Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services [2002] OJ L108/51), universal service obligations are services made available to the public at the quality specified to all end-users in their territory, independently of geographical location, and, in the light of specific national conditions, at an affordable price. 12 Article 16 TFEU reads: ‘[w]ithout prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application

Disability and EU public procurement  267 term is not defined further in the Treaty or in secondary legislation. It refers to services of an economic nature which the Member States or the Union subject to specific public service obligations or universal service obligations by virtue of a general interest criterion. Thus, SGEI cover services provided by utilities or network industries, such as transport, water, postal services, energy and communications, but also extend to any other economic activities which may be subject to public service obligations. It is within the discretion of public authorities to decide whether to provide a service themselves or to instead entrust it to a third party by means of contractual externalization. The public procurement rules only apply if the public authority decides to externalize the service provision by entrusting it to a third party against remuneration. One of the fundamental characteristics of public services is their economic nature. The funding of public services, which may emerge through different formats such as payment or remuneration under a contract, payment of annual subsidies, preferential fiscal treatment or lower social security contributions to an entrusted undertaking, reveals such a characteristic. This means that public services have a cost and a value attached to them. Cost reflects upon capital considerations, whereas value reflects upon revenue considerations. Even the provision of social services of general interest (SSGI)13 (which include health services, long term care, social security, employment services, and social housing) is compatible with their economic character assessment.14 However, public services lack industrial or commercial character. The non-commercial or industrial character of a service is a necessary criterion intended to clarify needs in the general interest.15 However, there might be needs of general interest which have an industrial and commercial character, and it is also possible that private undertakings can meet needs of general interest, which do not have an industrial and commercial character. Nevertheless, the test for needs in the general interest which do not possess industrial or commercial character is that the State or other public authorities choose themselves to meet these needs or to have a decisive influence over their provision. In parallel, it is assumed that if an activity which meets general needs is pursued in a competitive environment, there is a strong indication that it possesses commercial characteristics.16 The absence of commerciality with regard to a public service or the absence of competitive forces represents a strong indication of the sui generis marketplace in which public services are delivered or organized. The first implication of such nature is the non-applicability of general competition law. In addition to the provisions of Article 106 TFEU, sector-specific regulation has detached the treatment of financing public services from the remit of the general

of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions’. See infra Juan Jorge Piernas López, ‘Public Services and Disability’, in this volume. 13 Commission, ‘Green Paper on Services of General Interest’ COM (2003) 0270 final. 14 See Commission, ‘A Single Market for 21st Century Europe – Services of General Interest, Including Social Services of General Interest: A New European Commitment’ COM (2007) 725. See also Christian Joerges and Florian Rödl, ‘“Social Market Economy” as Europe’s Social Model?’ EUI Working Paper LAW No. 2004/8, European University Institute, 2004. 15 Case C-360/96 Gemeente Arnhem Gemeente Rheden v BFI Holding BV EU:​C:​1998:​525. 16 Case C-223/99 Agora Srl v Ente Autonomo Fiera Internazionale di Milano and C-260/99 Excelsior Snc di Pedrotti Runa & C v Ente Autonomo Fiera Internazionale di Milano EU:​C:​2001:​259.

268  Research handbook on EU disability law provisions of competition law and positioned it within the State aid regime.17 Furthermore, the sui generis nature of public service markets provides the conceptual bridge to engage the public procurement regime, as a guardian of the principles of accountability and transparency in the delivery of services of general interest having non-industrial or commercial character.18 Accessibility can be viewed as a public service obligation in Member States. Within the remit of public markets, the funding of services of general interest by the State may emerge through different formats, such as the payment of remuneration for services under a public contract, the payment of annual subsidies, preferential fiscal treatment or lower social contributions. However, the most common format is the existence of a contractual relation between the State and undertakings charged to deliver public services. Under normal circumstances, this contractual relation should emerge through the public procurement framework, not only indicating market competitiveness but also demonstrating the nature of the deliverable services to be of general interest having non-industrial or commercial character. The latter description appears as a necessary condition for the applicability of the public procurement regime. If accessibly is viewed as a public service obligation, four conditions must be satisfied: first, the recipient undertaking is actually required to discharge public service obligations, and those obligations have been clearly defined; second, the parameters on the basis of which the compensation is calculated have been established beforehand in an objective and transparent manner; third, the compensation for delivering the public service obligations does not exceed what is necessary to cover all or part of the costs incurred in discharging them, taking into account the relevant receipts and a reasonable profit for discharging those obligations; fourth, where the undertaking which is to discharge public service obligations is not chosen in a public procurement procedure, the level of compensation needed has been determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with appropriate means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.

3.

THE FUNCTION OF EU PUBLIC PROCUREMENT AS THE DRIVER OF PUBLIC SERVICE DELIVERY

The strategic importance of public procurement for the European integration process has been recognized by the 2011 Single Market Act,19 which has prompted a series of reforms to the EU public procurement acquis.20 These reforms aim at linking directly public procurement with

17 See Christopher Bovis, ‘Financing Services of General Interest, Public Procurement and State Aid: The Delineation between Market Forces and Protection’ (2005) 11(1) European Law Journal 79. 18 The term ‘industrial and commercial character’ features in the public procurement acquis and corresponds to the presence of market competitiveness supported through the factors of profitability and demand substitutability: see Christopher Bovis, ‘Redefining Contracting Authorities under the EC Public Procurement Directives: An Analysis of the Case C-44/96, Mannesmann Anlangenbau Austria AG et al. v. Strohal Rotationsdurck GesmbH’ (1999) 39 Common Market Law Review 41. 19 Commission, ‘Europe 2020, A Strategy for Smart, Sustainable and Inclusive Growth’ COM (2010) 2020 final. 20 Commission, ‘Green Paper on the Modernization of EU Public Procurement Policy: Towards a More Efficient European Procurement Market’ COM (2011) 15 final.

Disability and EU public procurement  269 the European 2020 Strategy, which focuses on growth and competitiveness. The importance of a liberalized and integrated public procurement regime as an essential component of the internal market has been clearly established.21 The conceptual origins of public procurement regulation in the EU can be traced in policy instruments which identified purchasing practices of Member States as considerable non-tariff barriers and as hindering factors for the functioning of a genuinely competitive internal market. Economic justifications for regulating public procurement have pointed towards introducing competitiveness into the relevant markets in order to increase cross-border trade of products and services destined for the public sector and to achieve price transparency and price convergence across the EU, thus achieving significant savings. The need for competitiveness and transparency in public procurement markets is also considered as a safeguard to fundamental Treaty principles, such as the free movement of goods and services, the right of establishment and the prohibition of discrimination on the ground of nationality. Public procurement and its regulation has an introvert focus on the internal market of the EU. It envisages bringing the respective behaviour of the public sector in parallel to the operation of private markets. Public procurement regulation reveals distinctive sui generis markets which function within the EU internal market and have as their main feature the pursuit of the public interest.22 They are referred to as ‘public markets’, where the pursuit of the public interest is the main behavioural driver. Further variances distinguish public markets from private markets, apart from the substitution of profit maximization.23 These variances focus on structural elements, competitiveness, demand and supply conditions, pricing and risk. Public procurement regulation relies on harmonization. Harmonization has been carried out through directives, as legal instruments, which have been utilized to provide the framework of the acquis communautaire, but at the same time afford the necessary discretion to the Member States as to the forms and methods of their implementation. By allowing for discretion to Member States, an element of public policy is inserted in public procurement regulation, which reveals ordo-liberal policy inferences and decentralized features. State aid regulation, on the other hand – as part of the EU competition policy – is enacted through the principle of uniformity, utilizing directly applicable regulations. To that extent, the Single Market Act identified public procurement as an essential component of competitiveness and growth and as an indispensable instrument in delivering public services in the EU.24 The public procurement acquis has prescribed a different regulatory treat-

Commission, ‘Towards a Single Market Act’ COM (2010) 608 final. Christopher Bovis, ‘La notion et les attributions d’organisme de droit public comme pouvoirs adjudicateurs dans le régime des marchés publics’ (2003) Contrats Publics 26. See also Patrice Valadou, ‘La notion de pouvoir adjudicateur en matière de marchés de travaux’ (1991) 3 Semaine Juridique 35. 23 On the issue of public interest and its relation with profit, see Cases C-223/99 Agora Srl v Ente Autonomo Fiera Internazionale di Milano and C-260/99 Excelsior Snc di Pedrotti Runa & C v Ente Autonomo Fiera Internazionale di Milano EU:​C:​2001:​259. 24 Commission, ‘Towards a Single Market Act’ (n 21); Commission, ‘Europe 2020. A Strategy for Smart, Sustainable and Inclusive Growth’ (n 19); Commission, ‘Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in particular to Social Services of General Interest’ SEC (2010) 1545 final. See Commission, ‘Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement’ SEC (2010) 1258 final. 21 22

270  Research handbook on EU disability law ment to public sector procurement and utilities procurement,25 for two reasons. First, a more relaxed regime for utilities procurement, irrespective of their public or privatized ownership, has been justified and accepted as a result of the positive effects of liberalization of network industries, which has stimulated sectoral competitiveness.26 Second, a codified set of rules, covering supplies, works and services procurement in a single legal instrument for the public sector,27 aims at producing legal efficiency, simplification and compliance in order to achieve the opening up of the relatively closed and segmented public sector procurement markets. The axiomatic assumption for public procurement is that its function serves as a negation agent to State aid and competition regulation. The presence of public procurement is a safeguard of the internal market inasmuch as the transfer of public financial resources to private or public undertakings in a contractual format or in any other format is not deemed as State aid when and where public procurement rules are followed. Public procurement is deemed as a market calibration exercise in the relations between public and private sectors, for two reasons: the competitive process in the engagement of the private sector, and the justification of such engagement through contract award criteria. 3.1

The State through the Prism of Public Procurement Regulation

In public procurement, the terms ‘contracting authorities’ or ‘entities’ embrace the State, regional or local authorities and bodies governed by public law.28 A ‘body governed by public law’ is an effective concept of EU law which must receive an autonomous and uniform interpretation throughout the EU,29 and refers to the ability of contracting authorities to pursue market-oriented activities without losing their classification as contracting authorities for the purposes of public procurement law. In the Utilities Procurement Directive, the term ‘contracting entities’ also includes public undertakings, over which the contracting authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of them, their

25 See the former Public Sector Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134/114 and the Utilities Directive. 26 Christopher Bovis, ‘Developing Public Procurement Regulation: Jurisprudence and its Influence on Law Making’ (2006) 43 Common Market Law Review 461. 27 Directive 2014/24/EU on public procurement and repealing Directive 2004/18/EC (the Classical Directive) [2014] OJ L94/65. 28 See Article 1(9) Public Sector Directive and Article 2(1)(a) Utilities Directive. A body governed by public law means any organization which satisfies the following conditions in a cumulative manner. First, the organization must be established for the specific purpose of meeting needs in the general interest which do not have an industrial or commercial character; second, it must have legal personality; and third, it must be financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law. Alternatively and as part of the third criterion, a body governed by public law must be subject to management supervision by the State, regional or local authorities, or other bodies governed by public law or it must have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law. 29 Case C-44/96 Mannesmann Anlagenbau Austria and Others EU:​C:​1998:​4, paras 20 and 21; Case C-470/99 Universale-Bau and Others EU:​C:​2002:​746, paras 51–53; Case C-214/00 Commission v Spain EU:​C:​2003:​276, paras 52–53; and Case C-283/00 Commission v Spain EU:​C:​2003:​544, para 69.

Disability and EU public procurement  271 financial participation therein or the rules which govern them.30 The Utilities Procurement Directive also includes as contracting entities undertakings which, although they are not contracting authorities or public undertakings themselves, operate on the basis of special or exclusive rights granted by a competent authority of a Member State by virtue of legislative, regulatory or administrative provisions.31 The conferral of such special or exclusive rights substantially affects the ability of other entities to carry out such activities in the marketplace.32 The term ‘contracting authority’ is interpreted, in an effective and functional way,33 as encompassing private law entities,34 private entities for industrial and commercial development,35 entities meeting needs of general interest retrospectively,36 semi-public undertakings,37 State commercial companies,38 and statutory sickness funds.39 Contracting authorities are free to set up legally independent entities if they wish to offer services to third parties under normal

30 See Article 2(1)(b) Utilities Directive. Contracting authorities exercise dominant influence upon public undertakings when directly or indirectly, in relation to an undertaking, they hold the majority of the undertaking’s subscribed capital, or control the majority of the votes attaching to shares issued by the undertaking, or can appoint more than half of the undertaking’s administrative, management or supervisory body. 31 See Article 2(3) Utilities Directive. 32 See generally Christopher Bovis, ‘Public Procurement and Public Services in the EU’ in Ioannis Lianos and Okeoghene Odudu (eds), Regulating Trade in Services in the EU and the WTO: Trust, Distrust and Economic Integration (Cambridge University Press 2012) 147–70. 33 Case C-44/96 Mannesmann Anlagenbau Austria and Others. 34 An entity which is governed by private law but nevertheless meets all the requirements of bodies governed by public law is considered to be a contracting authority. The entity’s private law status does not constitute a criterion for precluding it from being classified as a contracting authority, and in particular as being incompatible with the requirement of non-industrial or commercial character of the general interest needs which the body concerned satisfies, since these factors must be assessed individually and separately from the legal status of an entity. A private law-governed entity as a contracting authority is also compatible with the concept of ‘public undertakings’, in accordance with the Utilities Directive. See Case C-214/00 Commission v Spain EU:​C:​2003:​276, paras 54, 55 and 60; and Case C-283/00 Commission v Spain EU:​C:​2003:​544, para 75. 35 A limited company established, owned and managed by a regional authority meets a need in the general interest which does not have a commercial or an industrial character, where it acquires services for the development of business and commercial activities on the territory of that regional authority. See Case C-18/01 Arkkitehtuuritoimisto Riitta Korhonen Oy EU:​C:​2003:​300, paras 48 and 59; also Case C-373/00 Adolf Truly EU:​C:​2003:​110, para 66. 36 Entities which have not been established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, but which have subsequently taken responsibility for such needs are considered as bodies governed by public law, on condition that the assumption of responsibility for meeting those needs can be established objectively. See Case C-470/99 Universale-Bau and Others, paras 51–53. 37 A company governed by private law and legally distinct from a contracting authority, in which the contracting authority has a majority capital holding and exercises a certain control is considered as a contracting authority. See Case C-26/03 Stadt Halle EU:​C:​2005:​5. 38 State controlled companies are regarded as contracting authorities, as it is deemed unlikely that they bear the financial risks related to their activities, where the State would take all necessary measure to protect the financial viability of such entities. See Case C-283/00 Commission v Spain EU:​C:​2003:​276. 39 A sickness fund which was indirectly financed without any consideration in return by the state but received mandatory contributions set by law from employers and private individual members and had no discretion in setting the levels or conditions of contributions was considered as a body governed by public law. See Case C-300/07 Hans & Christophorus Oymann EU:​C:​2009:​358.

272  Research handbook on EU disability law market conditions.40 If such entities aim to make a profit, bear the losses related to the exercise of their activities and perform no public tasks, they are not to be classified as contracting authorities.41 This indicates that profitability and commercially motivated decision-making on the part of an undertaking render the public procurement directives inapplicable. The similarity of control of an undertaking to that exercised by contracting authorities over their own departments, and the operational connection of the undertaking’s activities to the objectives of the contracting authority, reveals an in-house entity, which is not a contracting authority for the purposes of public procurement regulation.42 Public service contracts awarded on the basis of an exclusive right awarded by a contracting authority to another contracting authority, or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which is compatible with the Treaty43 do not fall within the remit of the Public Sector Directive.44 Furthermore, the Utilities Directive does not apply to contracts awarded by a contracting entity to an affiliated undertaking,45 nor does it apply to contracts awarded by a joint venture formed exclusively by a number of contracting entities to an undertaking which is affiliated with one of those contracting entities.46 A public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities which are not part of its own departments.47 That possibility for public authorities to use their own resources to perform the public interest tasks conferred

40 See generally Christopher Bovis, ‘The Conceptual Links between State Aid and Public Procurement in the Financing of Services of General Economic Interest’ in Markus Krajewski, Ulla Neergaard and Johan van de Gronden (eds), The Changing Legal Framework for Services of General Interest in Europe, Between Competition and Solidarity (Asser Press 2010) 149–71. 41 Case C-18/01 Arkkitehtuuritoimisto Riitta Korhonen Oy EU:​C:​2003:​300, para 51. 42 Case C‑107/98 Teckal EU:​C:​1999:​562. 43 See Article 18 Public Sector Directive. 44 However, Article 3 of the Public Sector Directive includes a non-discrimination clause for the cases of granting special or exclusive rights. Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted must provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality. 45 See Article 23(2)(a) of the Utilities Directive. For the preceding three years, at least 80 per cent of the average turnover of the affiliated undertaking must derive from the provision of works, supplies and services to undertakings with which it is affiliated. An affiliated undertaking is an undertaking the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Seventh Council Directive on consolidated accounts, or, in the case of entities not subject to that Directive, any undertaking over which the contracting entity may exercise, directly or indirectly, a dominant influence or which may exercise a dominant influence over the contracting entity or which, in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it. According to Article 2(1)(b) of the Utilities Directive, contracting authorities exercise dominant influence upon public undertakings when directly or indirectly, in relation to an undertaking, they hold the majority of the undertaking’s subscribed capital, or control the majority of the votes attaching to shares issued by the undertaking, or can appoint more than half of the undertaking’s administrative, management or supervisory body. 46 See Article 23(2)(b) of the Utilities Directive. 47 Case C-26/03 Stadt Halle EU:​C:​2005:​5, para 48.

Disability and EU public procurement  273 on them may be exercised in co-operation with other public authorities.48 Public cooperation between independent contracting authorities in the form of establishing an entity upon which no similar control is exercised to that exercised over their own departments,49 resulting in the entrustment of a contract on behalf of the participant contracting authorities, can be deemed to meet the criteria for an in-house exception, provided that the remit of such public co-operation exists in relation to a public task or service specified under EU law, that there is no intention to circumvent public procurement rules and that the contractual relation is not based on any pecuniary interest consideration nor any payments between the entity and the participant contracting authorities. Contractual relations between inter-municipal co-operative societies whose members are contracting authorities and a jointly controlled entity can be deemed as an in-house contractual relation.50 3.2

The Notion of Public Contracts through Public Procurement Regulation

A precondition to the application of the public procurement directives is the existence of a public contract.51 Public contracts are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities, and having as their object the execution of works,52 the supply of products,53 or the provision of services.54 Public procurement law has exclusive authority to determine the meaning of a public contract. The determining factor of its nature is not what is described as a public contract in national laws; nor is the legal regime (public or private) that governs its terms and conditions determinative, and nor are the intentions of the parties.55 The crucial characteristics of a public contract, apart from the obvious written format requirement, are: (i) a pecuniary interest con-

48 Case C-295/05 Asociación Nacional de Empresas Forestales (Asemfo) v Transformación Agraria SA (Tragsa) and Administración del Estado EU:​C:​2007:​227, para 65. 49 Case C-480/06 Commission v Germany EU:​C:​2009:​357. 50 Case C‑324/07 Coditel Brabant SA v Commune d’Uccle, Région de Bruxelles-Capitale EU:​C:​ 2008:​621. 51 Article 1(2)(a) Public Sector Directive. 52 Article 1(2)(b) of the Public Sector Directive specifies as public works contracts, contracts which have as their object either the execution or both the design and execution, of works, or the completion, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A work means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function. 53 Article 1(2)(c) of the Public Sector Directive specifies as public supply contracts, contracts having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products. A public contract having as its object the supply of products and which also covers, as an incidental matter, placement and installation operations must be considered as a public supply contract. 54 Article 1(2)(d) of the Public Sector Directive specifies as public service contracts, contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II of the Directive. A public contract having as its object both products and services within the meaning of Annex II must be considered as a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract. 55 Case C-536/07 Commission v Germany EU:​C:​2009:​664. The case considered the conclusion of a contract between the City of Cologne and Grundstücksgesellschaft Köln Messe for the construction and use for 30 years of four exhibition halls, including ancillary buildings and relevant infrastructure through complex lease-back arrangements without a prior call for tender.

274  Research handbook on EU disability law sideration given by a contracting authority, (ii) in return for a work, product or service which is of direct economic benefit to the contracting authority.56 The pecuniary interest consideration of the concept of ‘public contracts’ could include a variety of payment mechanisms, such as direct or deferred payment by the contracting authority to the economic operator, commitment to lease-back an asset after its construction, asset swaps between the contracting authority and the economic operator or conferral to the economic operator of an exclusive right to collect third-party payments. A functional application of the term ‘public contracts’ also brings leasing and sub-leasing arrangements into the category of pecuniary interest. The pecuniary interest is also indissolubly linked with the ability of the contracting authority to specify the object of the public contract. Requirements specified by contracting authorities include measures which define the type of works or action on the part of contracting authorities which has decisive influence over the design of a project or the executions of works. The means of execution are irrelevant, in the sense that prime contracting or sub-contracting could be utilized for the fulfilment of the contract’s object with no effect on contractual obligations or liability issues arising from the public contract. Sales of assets or land do not represent public contracts,57 unless a public contract directly related to that asset or land is imminent by the contracting authority or another contracting authority, in which case the land or asset sale and the consecutive public works should be viewed in their entirety as a public contract. Sale of land or assets which is based on a ‘sufficiently well-publicized, open and unconditional bidding procedure’ excludes the presence of State aid.58 Sales of assets by contracting authorities to economic operators or other contracting authorities are not deemed public contracts, as a public contract is based on a ‘purchasing’ capacity of contracting authorities and on the imperative of a contracting authority in being able to determine standards and specifications suitable to meet the conditions of immediate economic benefit. The concept of ‘public works contracts’ does not require that the works which are the subject of the contract be materially or physically carried out for the contracting authority, provided that they are carried out for that authority’s immediate economic benefit.

4.

DISCRETION IN PUBLIC PROCUREMENT REGULATION AS THE CONDUIT OF ACCESSIBILITY

Discretion of Member States in applying public procurement law emanates from the fact that the law’s incorporation into the respective domestic legal orders is based on the integration vehicle of harmonization. Harmonization does not stop at the discretion of national systems to implement the prescribed acquis, but also expands upon a whole new concept of ‘decentralization’, where compliance and enforcement of public procurement law is entrusted to the Member States. Discretion of Member States in applying public procurement law emerges,

Case C-451/08 Helmut Müller v Bundesanstalt für Immobilienaufgaben EU:​C:​2010:​168. Ibid. The case was concerned with whether the rules on public contracts and, more specifically, the rules on public works concessions apply when a public authority sold assets and land to the prospective buyer who, in the opinion of the local authority responsible for town planning, presented the best and most interesting plans for the use of the land and the construction of buildings. 58 Commission, ‘Communication on State Aid Elements in Sales of Land and Buildings by Public Authorities’ [1997] OJ C209/3, para 1. 56 57

Disability and EU public procurement  275 in substantive terms, in applying rules in the fields of selection and qualification of economic operators, exclusion of candidates and the choice and features of contract award criteria, mainly the most economically advantageous tender. Discretion in public procurement surfaces through two judicially developed doctrines: the doctrine of flexibility in the application of substantive public procurement rules, and the doctrine of procedural autonomy in the application of remedies in the award of public contracts. Discretion has been inherent in public procurement acquis. First, through harmonization, discretion appears as the most influential factor in the evolution of public procurement regulation and its decentralized application. Directives carry the principles and concepts of the regime. Second, discretion is evident in the procurement concepts – such as ‘contracting authorities’ and ‘public contracts’ – and the process itself, such as the selection and qualification phase, the award procedures and the award criteria phases. Third, discretion in the application of public procurement regulation is verified by the CJEU’s jurisprudence, where judicial doctrines attempt to align it with the underlying EU legal principles. 4.1

The Notion of Accessibility as a Reserved Public Contract

The Public Sector Procurement Directive, in Article 20, stipulates that contracts which have as their object the protection of disabled people through their integration in the labour market are deemed as reserved from competition. Employment and occupation contribute to integration in society and are key elements in guaranteeing equal opportunities for all. The Directive puts such arrangements in the framework of sheltered workshops, which can play a significant role in the integration of disabled people in the labour market. Equally, social businesses whose main aim is to support the social and professional integration or reintegration of disabled and disadvantaged persons, such as the unemployed, members of disadvantaged minorities or otherwise socially marginalized groups, are deemed as eligible for protection from competition. Such workshops or businesses might not be able to obtain public contracts under normal conditions of competition. Consequently, the Directive regards it as appropriate to allow for Member States to reserve the right to participate in award procedures for public contracts or for certain lots thereof to such workshops or businesses, or to reserve performance of contracts to the context of sheltered employment programmes. Member States may reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons, or may provide for such contracts to be performed in the context of sheltered employment programmes, provided that at least 30 per cent of the employees of those workshops, economic operators or programmes are disabled (or disadvantaged) workers. 4.2

The Notion of Accessibility as a Priority Light-Regime Contract

The Public Sector Directive has established a specific regime with simplified rules for social, health, cultural and other services, including government services and services to the community. Contracts which have as their object social or labour integration of people with disabilities are subject to a higher threshold of EUR 750,000, with ex ante and ex post publicity and qualitative award criteria the only requirements to be met.

276  Research handbook on EU disability law 4.3

The Notion of Contract Compliance as a Safeguard of Accessibility

Accessibility requirements envisaged by public procurement law provide contracting authorities, through adherence to quality assurance standards,59 the opportunity to request the production of certificates which are drawn up by independent bodies attesting that the economic operator complies with certain quality assurance standards, including on accessibility for disabled persons, referring to quality assurance systems based on the relevant European standards series certified by accredited bodies. They shall recognize equivalent certificates from bodies established in other Member States. They shall also accept other evidence of equivalent quality assurance measures where the economic operator concerned had no possibility of obtaining such certificates within the relevant time limits for reasons that are not attributable to that economic operator, provided that the economic operator proves that the proposed quality assurance measures comply with the required quality assurance standards. Contracting authorities have been given the possibility to exclude economic operators which have proven unreliable, for instance because of violations of environmental or social obligations, including rules on accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights. It should be clarified that grave professional misconduct can render an economic operator’s integrity questionable and thus render the economic operator unsuitable to receive the award of a public contract irrespective of whether the economic operator would otherwise have the technical and economical capacity to perform the contract. 4.3.1 Quality assurance standards and technical standards and specifications There is a divergence of national accessibility requirements related to goods and services placed and provided in the EU market, and related to public procurement specifications, which leads to a fragmentation of the internal market. This divergence is increasing, due, notably, to the obligations contained in the CRPD. The legal divergence in the area of public procurement in relation to accessibility obligations for goods, works and services for the built environment, transport and ICT results in sector-specific rules and consequently increases the risk of further fragmentation at national level. Enforcement of the actual use of such accessibility requirements in public procurement is mostly ineffective. The general nature of accessibility obligations leads both to diverging national implementation and to further legal divergence in the EU market, especially for computers and operating systems; digital TV services and equipment; telephony services and related terminal equipment; ebooks; self-service terminals; e-commerce; banking services (concerning automated teller machines, or ATMs, websites and the built environment); passenger transport services – air, rail, bus and maritime (concerning ticketing and check-in machines, websites and the built environment); and hospitality services (concerning websites and the built environment). In order to reduce the existing fragmentation and to foster interoperability, the European Commission has issued two standardization mandates for European accessibility requirements suitable for public procurement of products and services in the ICT domain (Mandate 376)60 and in the built environment (Mandate 420), which have been discussed by Hosking in this Article 62 Public Sector Directive. Commission, Standardization Mandate to CEN, CENELEC and ETSI in support of European Accessibility Requirements for Public Procurement in the ICT Domain, M/376 EN.  59 60

Disability and EU public procurement  277 Research Handbook.61 The main objectives of these mandates have been to harmonize and facilitate the public procurement of accessible goods and services by identifying a set of functional European accessibility requirements for public procurement and to provide a mechanism through which the public procurers have access to an electronic toolkit, enabling them to make use of these harmonized requirements in procurement processes. The EU public procurement directives foresee a ‘comply or explain’ regime for generalized public procurement of accessible goods and services, whereby the exceptional procurement of non-accessible goods and services needs to be duly justified. Consistency and interoperability in the internal market would be facilitated via European standards. It is possible – yet not mandatory – to integrate social considerations, and specifically the use of Design for All and accessibility requirements, in the technical specifications and award criteria of public bids. The directives on public procurement strengthen the legislative framework by obliging contracting authorities to draw up technical specifications that shall take into account accessibility criteria for people with disabilities or Design for All users, except in duly justified cases. The Utilities Directive on procurement by entities operating in the water, energy, transport and postal services sectors states that ‘[w]here mandatory accessibility standards are adopted by a legislative act of the Union, technical specifications shall, as far as accessibility criteria are concerned, be defined by reference thereto’.62  National technical standards, industrial product and service specifications and their harmonization were considered priority areas for the internal market programme. The rules on technical standards and specifications have been brought in line with the new policy, which is based on the mutual recognition of national requirements where the objectives of national legislation are essentially equivalent, and with the process of legislative harmonization of technical standards through non-governmental standardization organizations (CEPT, CEN and CENELEC).63 However, the persistence of contracting authorities in specifying their procurement requirements by reference to national standards poses obstacles to public sector integration.64 Notable examples of circumvention of the policy on standards and specifications include the exclusive familiarity of national suppliers with technical data existing in a particular Member State, over-specification by contracting authorities in order to exclude potential bidders, and finally favouritism and discrimination by contracting authorities as a result of making technical standards and specifications available to certain suppliers only.65 Standardization and specification can act as a non-tariff barrier in public procurement contracts in two ways. First, contracting authorities may use apparently different systems of standards and specifications as an excuse for disqualification of tenderers. It should be maintained here that the description of the intended supplies, works or services to be procured is made by reference to the Common Product Classification, the NACE (General Industrial Classification of Economic Activities within the Eu­ropean Communities) and the Common Procurement 61 Commission, Standardization Mandate to CEN, CENELEC and ETSI in support of European Accessibility Requirements for Public Procurement in the Built Environment, M/420 EN. See supra David Hosking, ‘Disability and Standardization’, in this volume. 62 Article 60(1) Utilities Directive. 63 See supra David Hosking, ‘Disability and Standardization’, in this volume. 64 See the Documents of the Advisory Committee for the Opening up of Public Procurement, ‘Policy Guidelines on the Obligation to Refer to European Standards’ CCO/91/67 final. 65 See the report of the Advisory Committee for the Opening up of Public Procurement, Standards for Procurement CCO/92/02.

278  Research handbook on EU disability law Vocabulary (CPV); however, this type of description is of a generic nature and does not cover industrial specifications and standardization requirements. Second, standardization and specification requirements can be restrictively defined in order to exclude products or services of a particular origin, or to narrow the field of competition among tenderers. National standards are not only the subject of domestic legislation, which, of course, needs to be harmonized and mutually recognized across the internal market. One of the most significant aspects of standardization and specification appears to be the operation of voluntary standards, which are mainly specified at industry level. The above category is rather difficult to harmonize, as any approximation and mutual recognition relies on the willingness of the industry in question. Voluntary standards and specifications are used quite often in the utilities sector, where the relevant procurement requirements are complex and cannot be specified solely by reference to ‘statutory’ standards, thus leaving a considerable margin of discretion in the hands of the contracting authorities, which may abuse it during the selection and qualification stages of the procurement process. For the purposes of the public procurement directives,66 ‘technical specification’ means one of the following: in the case of public works contracts, the totality of the technical prescriptions contained in particular in the procurement documents, defining the characteristics required of a material, product or supply, so that it fulfils the use for which it is intended by the contracting authority; those characteristics include levels of environmental and climate performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions and production processes and methods at any stage of the life cycle of the works; those characteristics also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve […] in the case of public supply or service contracts, a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods at any stage of the life cycle of the supply or service and conformity assessment procedures.

Moreover, ‘standard’ means a technical specification, adopted by a recognized standardization body, for repeated or continuous application, with which compliance is not compulsory, and which is one of the following: (a) an ‘international standard’, i.e. a standard adopted by an international standardization organization and made available to the general public; (b) a ‘European standard’, i.e. a standard adopted by a European standardization organization and made available to the general public; (c) a ‘national standard’, i.e. a standard adopted by a national standardization organization and made available to the general public.67 Annex II Directive 2014/24/EU. Ibid.

66 67

Disability and EU public procurement  279 Moreover, it is established that the term ‘European technical assessment’ means the documented assessment of the performance of a construction product, in relation to its essential characteristics, in accordance with the respective European Assessment Document, as defined in point 12 of Article 2 of Regulation (EU) No 305/2011, while ‘common technical specification’ means a technical specification in the field of ICT laid down in accordance with the Standardization Regulation, discussed elsewhere in this Research Handbook.68 Finally, ‘technical reference’ means any deliverable produced by European standardization bodies, other than European standards, according to procedures adapted to the development of market needs. 4.3.2 Standards and the accessibility of information and communication technologies For ICT products and services, four principles of accessibility are utilized: perceivability, meaning that information and user interface components must be presentable to users in ways they can perceive; operability, meaning that user interface components and navigation must be operable; understandability, meaning that information and the operation of the user interface must be understandable; and robustness, meaning that content must be robust enough to be interpreted reliably by a wide variety of user agents, including assistive technologies. Those principles of accessibility are translated into testable success criteria, such as those forming the basis of the European standard EN 301 549 V1.1.2, via harmonized standards and a common methodology to test the conformity of content on websites and mobile applications with those principles. That European standard was adopted on the basis of mandate M/376 issued by the Commission to the European standardization organizations and is considered as the minimum means of putting those principles into practice. If the accessibility requirements are not applicable, then in accordance with Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive),69 the duty of ‘reasonable accommodation’ will still apply and should be provided for where needed, in particular in the workplace and vocational training. Nevertheless, public sector bodies should apply the accessibility requirements to the extent that they do not impose a disproportionate burden on them. This means that, in justified cases, it might not be reasonably possible for a public sector body to make specific content fully accessible; however, that public sector body should still make that content as accessible as possible. Exceptions to compliance with the accessibility requirements due to the disproportionate burden that they impose should not go beyond what is strictly necessary in order to limit that burden with respect to the particular content concerned in each individual case. Measures that would impose a disproportionate burden should be understood as measures that would impose an excessive organizational or financial burden on a public sector body, or would jeopardize the body’s capacity to either fulfil its purpose or to publish information needed for, or relevant to, its tasks and services, while taking into account the likely resulting benefit or detriment for citizens, in particular persons with disabilities. Only legitimate reasons should be taken into account in any assessment of the extent to which the accessibility requirements cannot be met because they would impose a disproportionate burden. Lack of priority, time or knowledge Ibid. See supra David Hosking, ‘Disability and Standardization’, in this volume. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 68 69

280  Research handbook on EU disability law should not be considered as legitimate reasons. Likewise, there should not be any legitimate reasons for not procuring or developing software systems to manage content on websites and mobile applications in an accessible manner, since sufficient and advisory techniques are available to make those systems meet the accessibility requirements. Interoperability relating to accessibility should maximize the compatibility of content with current and future user agents, as well as assistive technologies. More specifically, the content of websites and mobile applications should provide user agents with a common internal coding of natural language, structures, relations and sequences, as well as data of any embedded user-interface components. Interoperability thus benefits the users, allowing them to employ their user agents ubiquitously to access websites and mobile applications; they might also benefit from greater choice and reduced prices across the EU. Interoperability would also benefit the suppliers and buyers of products and services relating to accessibility of websites and mobile applications. Finally, in order to facilitate the conformity of public sector bodies’ websites and mobile applications with accessibility requirements, it is necessary to provide for a presumption of conformity for the websites and mobile applications concerned that meet harmonized standards. Pursuant to the Standardization Regulation, Member States and the European Parliament should be able to object to any harmonized standard which, in their view, does not entirely satisfy the accessibility requirements. The technical specifications and standards developed in relation to the accessibility requirements should, moreover, take into account the conceptual and technical specificities of mobile devices. Mobile applications are available from a variety of sources, including private application stores. Information regarding accessibility of the mobile applications of public sector bodies downloaded from third-party sources should be provided alongside the description of the mobile application which is presented to users before they download the mobile application. This does not require major platform providers to change their application distribution mechanisms, but instead imposes on the public sector body the requirement to make the accessibility statement available using existing or future technologies. 4.4

Award Criteria for Public Contracts and Accessibility

Two criteria laid down in the public procurement directives provide the conditions under which contracting authorities award public contracts: the lowest price or the most economically advantageous offer. The first criterion indicates that, subject to the qualitative criteria and financial and economic standing, contracting authorities do not rely on any other factor than the price quoted to complete the contract. The tenderer who submits the cheapest offer must be awarded the contract. It should be mentioned that the Directives provide for the disqualification of an ‘obviously abnormally low offer’, following the examination by contracting authorities of the de­tails of the tender before deciding the award of the con­tract. The contracting authori­ties are under a duty to seek from the tenderer an ex­planation for the price submitted or to inform him that his tender appears to be abnormally low and to allow a reason­able time within which to submit further details, before making any decision as to the award of the contract. The meaning of the ‘most economically advantageous offer’ includes a series of factors chosen by the contracting authority, including: price; delivery or completion date; running costs; cost-effectiveness; profitability; technical merit; product or work quality; aesthetic and functional characteristics; after-sales service and technical assistance; and commitments with

Disability and EU public procurement  281 regard to spare parts, components and maintenance costs, as well as security of supplies.70 The above list is not exhaustive, and the factors listed therein serve as a guideline for contracting authorities in the weighted evaluation process of the contract award. The flexible and wide interpretation of the relevant award criterion allows contracting authorities to use the most economically advantageous offer as the award criterion,71 by choosing the factors which they want to apply in evaluating tenders,72 provided that these factors are mentioned – in hierarchical order or descending sequence – in the invitation to tender or the contract documents,73 so that tenderers and interested parties can clearly ascertain the relative weight of factors other than price for the evaluation process. However, factors which have no strict relevance in determining the most economically advantageous offer by reference to objective criteria do involve an element of arbitrary choice and therefore should be considered as incompatible with the Directives.74 The public procurement directives stipulate that the economically most advantageous tender criterion includes various features linked to the subject-matter of the public contract in question, for example, environmental characteristics or social considerations.75 The Public Sector Directive stipulates the sole use of the most economically advantageous tender as the award criterion for public contracts, which is to be assessed on the basis of price, or cost, using a cost-effectiveness approach such as life-cycle costing or the best price–quality ratio (BPQR), to be assessed on the basis of award criteria linked to the subject-matter of the contract. Member States can exclude or restrict the use of price or cost only as the sole criterion. Contracting authorities may lay down special conditions relating to the performance of a contract provided that these are compatible with EU law and are indicated in the contract notice or in the specifications. The performance conditions may concern social and environmental considerations. 4.4.1 The life-cycle costing The public procurement directives significantly alter the process of tender awarding, through assigning a relevant importance to life-cycle costing. A new contract award criterion has been introduced in Article 67 which states that ‘[t]he most economically advantageous tender from the point of view of the contracting authority shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing’.76 Life-cycle costing can be used as the basis for introducing accessibility standards in public contracts. The concept of ‘life-cycle’ includes all consecutive and/or interlinked stages, including research and development to be carried out; production; trading and its conditions; transport; use and maintenance throughout the existence of a product or works or the provision

70 See generally Roberto Caranta, ‘Public Procurement and Award Criteria’ in Christopher Bovis (ed), Research Handbook on EU Public Procurement Law (Edward Elgar Publishing 2016) 149–75. 71 Case 31/87 Gebroeders Beentjes v The Netherlands EU:​C:​1988:​422 para 19. 72 Case C-324/93 R. v The Secretary of State for the Home Department, ex parte Evans Medical Ltd and Macfarlan Smith Ltd. EU:​C:​1995:​84. In this case, the national court asked whether factors concerning continuity and reliability, as well as security of supplies, fall under the framework of the most economically advantageous offer, when the latter is being evaluated. 73 Case 31/87 Gebroeders Beentjes v The Netherlands EU:​C:​1988:​422, para 22. 74 Ibid para 37. 75 Article 67 Public Sector Directive. 76 Article 67 Classical Directive.

282  Research handbook on EU disability law of a service – from raw material acquisition or generation of resources, to disposal, clearance and end of service or utilization. Life-cycle costing is a tool used to evaluate the costs of a good or service taking into account not just price (the upfront cost, usually incorporating production costs) but all costs which will accrue with operation and maintenance, and finally disposal. When externalities are included, life-cycle costing becomes ‘an environmentally-relevant or a socially-relevant methodology’.77 Life-cycle costing is portrayed as a key instrument in fostering innovation and achieving the goals of sustainable development laid down in the Europe 2020 Strategy. What was developed as the MEAT (Most Economically Advantageous Tender) criterion for the award of public contracts, with its current metastasis into BPQR, reflects on a dilution of quantitative criteria and an injection of discretion on the part of contracting authorities to assess a tender offer based on promissory assumptions of economic benefit to them, provided these assumptions are contractually relevant to the subject matter of the engagement – and here is a gap which few have noticed thus far: MEAT and BPQR did not require a methodology, let alone a common methodology in assessing offers which assume their economic advantage to the recipient of the offer. In fact, the acquis confers quite a margin of discretion to contracting authorities in creating the list of factors which, in their view, could describe the most economically advantageous benchmark in the respective offers for the delivery of the public contract. Life-cycle costing presupposes a methodology for monetization of the cost components which will synthesize the benchmark for comparing respective offers received from economic operators. Such methodology would require data which are accepted and adhered to by contracting authorities – and this is the challenge for European institutions: to move away from a discretionary framework under MEAT and BPQR, to a confined and methodologically common platform in assessing costs over the life-span of a product or a service.

5. CONCLUSIONS The protection of the rights of persons with disabilities is underpinned by the principles of equality and non-discrimination, and safeguarded by the concept of accessibility to public services, labour markets and the built environment. The notion of ‘accessibility’ intends to eliminate barriers that prevent persons with disabilities from participating in society on an equal basis. As such, accessibility has the hallmarks of a public service obligation under EU law and can be realized through a variety of State interventions. Public procurement is regarded as the conduit to ensure accessibility to facilities and services for the public, and to facilitate access for persons with disabilities to new ICT and systems. Public procurement regulation currently plays, and will continue to play, an important role in realizing the rights of persons with disabilities. Accessibility can successfully be delivered through public procurement regulation on condition of maximum harmonization of standards. Accessibility standards in public procurement are not universal and thus do not provide for optimal implementation of public procurement rules to protect rights of persons with disabilities. Such approach will lead to uniformity in enabling access to public services for all people 77 See generally Christopher Bovis, ‘The Life Cycle Costing as an Award Criterion for Public Contracts’ in Annalisa Castelli, Gustavo Piga and Stéphane Saussier (eds), Challenges of Public Procurement Reforms (Routledge forthcoming 2020).

Disability and EU public procurement  283 in society and reveal the concept of universality of public services which is embedded in EU law.

16. Public services and disability Juan Jorge Piernas López

1. INTRODUCTION The present chapter aims to analyse the extent to which public services related to disability are protected and promoted under European Union (EU) law. In this regard, public services – or services of general economic interest (SGEI) in the EU jargon – form part of the common values of the Union that the latter recognizes and promotes. At the same time, the EU has also committed to defending the rights of persons with disabilities and to facilitating their participation in the life of the community. In this context, Annex II of Council Decision of 26 November 2009,1 concerning the conclusion by the former European Community (EC) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention), states in relation to the competence of the then EC, with regard to matters governed by the CRPD, that the now EU has exclusive competence related to determining the compatibility of State aid with the internal market, including, it is submitted, aid that may be deemed compatible if granted in order to ensure the provision of SGEI, as referred to in Article 106(2) of the Treaty on the Functioning of the European Union (TFEU). In light of the foregoing, the chapter first analyses the provisions related to public services included in the CRPD in section 2. Second, the chapter examines the concept of ‘public services’ under EU law in section 3, and then moves on to study in more detail the services covered by Article 106(2) TFEU under the notion of SGEI in section 4. Subsequently, in section 5, the chapter pays particular attention to social services of general interest (SSGI), as defined under EU law, in relation to disability, with a special focus on those services that have an economic nature, namely, the social services of general economic interest (SSGEI). Finally, section 6 draws the main conclusions of the chapter, with a view to clarifying the extent to which the current regulation of public services under EU law will contribute to the full realization of the rights of persons with disabilities in accordance with the provisions of the CRPD.

2.

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND PUBLIC SERVICES

The CRPD includes some provisions related to services that ought to be taken into account by the EU when adopting decisions and legislation on public services. According to Article 4(1) (h) CRPD, States Parties undertake ‘[t]o provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities’.2 1 Annex II Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. 2 Emphasis added.

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Public services and disability  285 In addition, Article 4(1)(i) CRPD refers to services guaranteed by the rights recognized in the Convention, and Article 9(1) refers to access, ‘on an equal basis with others, [to] services open or provided to the public’.3 Similarly, Article 9(2) CRPD provides that Parties shall take appropriate measures to: (a) develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public; and (b) ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities. Furthermore, Article 16 CRPD, related to freedom from exploitation, violence and abuse, refers to the provision of protection services that are age, gender- and disability-sensitive. Article 19 CRPD, related to living independently and being included in the community, states that Parties shall take effective and appropriate measures to facilitate the full enjoyment by persons with disabilities of this right, including by ensuring that [p]ersons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community [and that] community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

In addition, Article 25 CRPD, related to health, provides that ‘Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation’. Furthermore, and particularly relevant for the purposes of this chapter, Article 26 CRPD provides that ‘Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services’. Article 28 CRPD, related to an adequate standard of living and social protection, obliges Parties to ‘ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs’. Moreover, Article 30 CRPD, related to participation in cultural life, recreation, leisure and sport, obliges Parties to ensure that persons with disabilities [e]njoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance [and] have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities.4

3 On the scope of the CRPD in relation to access to public services, see Arlene S Kanter, The Development of Disability Rights under International Law from Charity to Human Rights (Routledge 2015) 48–49. 4 See also, in relation to these provisions of the CRPD, Gráinne de Búrca, ‘The EU in the Negotiation of the UN Disability Convention’ (2010) 35(2) European Law Review 174, p. 184.

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3.

PUBLIC SERVICES UNDER EU LAW

According to Sauter, ‘there is no such thing as an EU law concept called public service’.5 Indeed, the Treaties only refer to the concept of a ‘public service’ in Article 93 TFEU in relation to State aid for the coordination of transport and the discharge of certain obligations inherent to public services.6 In a famous case concerning transport, the Court of Justice of the EU (CJEU) employed the term ‘public service’ in relation to the grant of State aid intended to compensate for the provision of SGEI in that field.7 Indeed, under EU law, public services are often equated to the notion of ‘services of general economic interest’, which are recognized by EU primary and secondary law.8 It is therefore important to understand the legal boundaries of this notion, in order to assess whether the term ‘SGEI’ can cover the provision of services directed at protecting and promoting the rights of persons with disabilities. 3.1

Public Services under EU Primary Law

The notion of ‘SGEI’ has appeared in Article 106(2) TFEU since 1957, yet no definition is provided therein. Article 106(2) TFEU makes clear that public services, in particular those that have an economic character, are subject to the Treaty rules, including those on competition, unless the performance of public interest tasks is liable to be obstructed. In that case, as an exception, the Treaty rules, including those on competition, will not be applied. This exception is subject to the condition that the development of trade must not be affected to such an extent as would be contrary to the interests of the EU. Other primary law provisions offer further criteria for the interpretation of the notion of ‘SGEI’. They also confirm that public services related to persons with disabilities fall clearly within the scope of Article 106(2) TFEU. In particular, under Article 14 TFEU, SGEI form part of the common values of the Union and promote social and territorial cohesion.9 In addition, Protocol 26 to the Treaty of Lisbon (on services of general interest) underlines the essential role and broad discretion of national authorities in defining SGEIs, their diversity (geographical, social and cultural) and some of their features, namely: a high level of quality, security and economic accessibility; equal treatment; and the promotion of universal access and user rights.10

Wolf Sauter, Public Services in EU Law (Cambridge University Press 2015) 9. In fact, the translation into English of the original provision included in Article 77 of the Rome Treaty referred to ‘public utility’ and not to ‘public service’, although the French version referred to ‘service publique’. See Article 77 of the Treaty establishing the European Economic Community (Rome, 25 March 1957). For the English translation of the Treaty of Rome, see www​.cvce​.eu/​obj/​treaty​ _establishing​_the​_european​_economic​_community​_rome​_25​_march​_1957​-en​-cca6ba28​-0bf3​-4ce6​ -8a76​-6b0b3252696e​.html accessed 1 February 2020. 7 Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg EU:​C:​2003:​415, paras 87–95. 8 See, for example, Commission, ‘Reform of the EU State Aid Rules on Services of General Economic Interest’ COM (2011) 146 final, p. 2: ‘Public Services (generally identified in the Treaties as SGEI) occupy a vital role in the shared values of the Union.’ 9 Article 14 TFEU. 10 See Article 1 of the Protocol to the Treaty of Lisbon. 5 6

Public services and disability  287 Furthermore, Article 36 of the EU Charter of Fundamental Rights (CFR or Charter) states that the Union recognizes and respects access to SGEI with a view to promoting the social and territorial cohesion of the Union, as underlined by Advocate General Alber in TNT Traco SpA.11 Indeed, Article 36 CFR (as well as the above mentioned provisions of the TFEU) should be read in conjunction with Article 26 CFR, which recognizes the right of persons with disabilities ‘to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’.12 Moreover, given that the EU has ratified the CRPD, the provisions of the latter form an integral part of the EU legal order,13 as affirmed by the CJEU. Thus, the UN Convention may be relied on for the purposes of interpreting EU secondary law, which must, as far as possible, be interpreted in a manner that is consistent with that Convention.14 3.2

Public Services under EU Secondary Law and Case Law

Secondary law also provides some guidance on what can be considered as SGEI, and on their relation to disability. In particular, the so-called Services Directive (Directive 2006/123/EC)15 provides that SGEI are services that are performed for economic consideration, and therefore fall within the scope of Article 50 TFEU. In addition, it states that services may be considered to be SGEI only if they are provided in connection with a special task in the public interest entrusted to the provider by the Member State concerned. In this regard, the Directive specifies that SGEI are entrusted with important tasks relating to social and territorial cohesion; the typical examples in this respect include postal services and utilities. Article 7 of the Universal Service Directive, for instance, refers to special measures to be adopted by Member States for disabled users in order to ensure access to, and affordability of, publicly available telephone services.16 The absence of a clear conceptualization of SGEI has been recognized by the European Courts.17 The European judiciary has also underlined that the definition of SGEI is, essentially, a prerogative of the Member States.18 In that regard, the CJEU has traditionally carried out

Opinion of Advocate General Alber, Case C-340/99 TNT Traco SpA EU:​C:​2001:​74, para 94. See supra Delia Ferri, ‘Disability in the EU Charter of Fundamental Rights’, in this volume. 13 See Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222, para 30; Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159 EU:​C:​2014:​159, para 73; and Case C-356/12 Wolfgang Glatzel v Freistaat Bayer EU:​C:​2014:​350, para 68. See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 14 Ibid. 15 Directive 2006/123/EC on services in the internal market [2006] OJ L376/36. 16 Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services [2002] OJ L108/51 as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 [2009] OJ L337/11 (the Universal Service Directive). 17 Case T-289/03 BUPA EU:​T:​2008:​29, para 165. 18 Case C-265/08 Federutility EU:​C:​2010:​205, para 29. 11 12

288  Research handbook on EU disability law a proportionality test between, on the one hand, the distortion of competition (the general interest of the EU), and the Member State’s interests (social interests, for example).19 More recently, the General Court has provided further guidance on the notion of SGEI in the BUPA judgment.20 According to the General Court, there must be an act of a public authority, entrusting the operators concerned with an SGEI mission, and this mission must be universal and mandatory. In this respect, a universal service does not require, in all cases, the service to be provided to the whole population; it can therefore be directed to a particular group or to the whole territory of a Member State. In addition, the mandatory nature of SGEI does not exclude that the provider of the SGEI may have some scope for action. Member States must also state the reasons why the service in question differs from other economic activities and therefore deserves to be considered as a service that falls within the scope of SGEI. Finally, the European Commission considers that Member States should not define SGEI as activities that are already provided ‘or can be provided satisfactorily and under conditions, such as price, objective quality characteristics, continuity and access to the service, consistent with the public interest, as defined by the State, by undertakings operating under normal market conditions’.21 The Commission refers in this regard to the Analir judgment of the CJEU, to conclude, within the scope of the fundamental freedoms, that Member States can only impose public service obligations ex Article 106(2) TFEU if they demonstrate the existence of a real need for public services; in particular, if they prove that market forces are insufficient to meet the demand.22 The Commission’s approach in this regard has been criticized by the European Committee of the Regions.23 Indeed, the existence of a market failure as a condition for the definition of a service as one that falls within the scope of SGEI cannot be found in Article 106(2) TFEU or in the settled case law of the EU Courts interpreting this provision. In this respect, the General Court has recently held in Andersen that ‘while evidence of market failure may be a relevant factor for declaring State aid compatible with the internal market, such evidence is not an essential condition, for, in any case, a State may justify aid by the pursuit of a legitimate objective in the public interest’.24 In light of the foregoing, some elements of the definition of SGEI can be drawn from the analysis of primary and secondary law, and of the case law of the European Courts. Essentially, SGEI are provided for economic consideration, which distinguishes these services from the more general category of SGI or from non-economic activities, such as social secu-

19 See, in this regard, Koen Lenaerts, ‘Defining the Concept of “Services of General Interest” in Light of the “Checks and Balances” Set Out in the EU Treaties’ (2012) 19(4) Jurisprudence 1247, p. 1255. 20 Case T-289/03 BUPA EU:​T:​2008:​29, paras 167–89. 21 Commission, ‘Communication from the Commission on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ [2012] OJ C8/4, para 48. 22 Case C-205/99 Analir EU:​C:​2001:​107, para 71. 23 European Committee of the Regions, ‘Opinion of the European Committee of the Regions: State Aid and Services of General Economic Interest’ [2017] OJ C88/22, para 35. 24 Case T-92/11 RENV, Andersen EU: T:2017:14, para 69 and paras 70–72 (particularly para 72). See also Case T-162/13 Magic Mountain Kletterhallen and Others v Commission EU:​T:​2016:​341, paras 78–79.

Public services and disability  289 rity systems based on solidarity under the case law of the Courts. Furthermore, SGEI must be provided in connection with the execution of a special task of public interest entrusted to the provider by a public authority of a Member State, and they must promote social and territorial cohesion. In addition, the entrusted task must have characteristics that the operator designated to carry it out would not assume (or would not assume to the same extent or under the same conditions) without remuneration, if it were to consider its own commercial interest. Finally, public authorities should promote universal access to SGEI, as well as a high level of quality, security and economic accessibility, and equal treatment in their provision. In this respect, it should be noted that, under Article 10 TFEU, ‘in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.25 The characteristics of SGEI described above are therefore suitable to cover services targeted at persons with disabilities. In this regard, the European Commission has stressed that SGI in areas such as ‘health care, childcare or care for the elderly, assistance to disabled persons or social housing […] provide an essential safety net for citizens and help promote social cohesion’.26 Notably, the Commission has considered disabled persons as a ‘vulnerable group’ in this context,27 a point which will be elaborated on below.28

4.

SOCIAL SERVICES OF GENERAL INTEREST AND DISABILITY

The European Commission has considered that public services – or SGEI – related to disability are better encapsulated under the notion of SSGI. In this regard, the Commission envisaged two broad categories of social services in a Communication in 2006, namely statutory and complementary social security schemes and other essential services provided directly to the person, which include ‘activities to integrate persons with long-term health or disability problems’.29 In 2007, the Commission made clear that social services were included in the broader category of SGEI.30 In the same Communication, the Commission underlined that the concept of ‘social services’ encompasses ‘person-oriented services, designed to respond to vital human needs, in particular the needs of users in vulnerable position [including] people with disabilities’.31

Emphasis added. Commission, ‘A Quality Framework for Services of General Interest in Europe’ COM (2011) 900 final, p. 1. Emphasis added. 27 Ibid 8. 28 See section 4 below. 29 Commission, ‘Implementing the Community Lisbon Programme: Social Services of General Interest in the European Union’ SEC (2006) 516, p. 4. 30 Commission, ‘Communication Accompanying the Communication on a Single Market for 21st Century Europe Services of General Interest, Including Social Services of General Interest: A New European Commitment’ COM (2007) 724 final, p. 3. 31 Ibid 7. See also in this regard Commission, ‘Reform of the EU State Aid Rules on Services of General Economic Interest’ (n 8) 2. 25 26

290  Research handbook on EU disability law However, SSGI are not mentioned in the Treaties; neither are they defined in the case law of the CJEU. SSGI can be economic or non-economic in nature,32 but EU competition law, including State aid and free movement rules, only applies to undertakings (entities engaged in an economic activity).33 The analysis in this chapter will therefore focus on SSGEI and their applicability to the realm of disability. In this context, the Third Biennial Report on SSGI provides an example of a service that, in principle, does not have a ‘general interest’ character, but, due to the fact that the service at stake targets a group traditionally considered vulnerable – such as persons with disabilities – it becomes a service that falls within the scope of SGEI, and particularly within SSGEI.34 4.1

Persons with Disabilities as a Vulnerable Group under EU Secondary Law on Social Services of General Economic Interest

EU secondary law, in particular the Commission Decision of 20 December 2011 on the application of Article 106(2) of the TFEU to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (2012 SGEI Decision), has defined SSGEI as ‘services of general economic interest meeting social needs as regards health and long term care, childcare, access to and reintegration into the labour market, social housing and the care and social inclusion of vulnerable groups’.35 This definition is the result of a compromise between a rigid formulation that would provide full legal certainty, like the definitions included in the Block Exemption Regulations, and one that is flexible enough to cover all types of social services across the Member States.36 It has been noted that the definition of SSGEI, and particularly its last sentence (‘the care and social inclusion of vulnerable groups’), may cover many beneficiaries, including refugees, immigrants or persons with disabilities.37 To this extent, the European Commission has considered that the term ‘care and social inclusion of vulnerable groups’ could encompass, insofar as 32 See, in this regard, the definition of social services of general interest (SSGI) given by the Commission in the Communication, ‘A Quality Framework for Services of General Interest in Europe’ (n 26) 3–4. 33 See, for example, Case C-172/03 Heiser v Finanzamt Innsbruck EU:​C:​2005:​130, para 26; see also Case C-237/04 Enirisorse SpA v Sotacarbo SpA EU:​C:​2006:​197, paras 26–29. See also, more recently, Cases C-262/18P and C-271/18P Commission and Slovak Republic v Dôvera zdravotná poistʼovňa, a.s. EU:​C:​2020:​450. 34 Commission, ‘Staff Working Document: 3rd Biennial Report on Social Services of General Interest, Accompanying the Document Communication from the commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Towards Social Investment for Growth and Cohesion – Including Implementing the European Social Fund 2014–2020’ SWD (2013) 40 final, p. 10. 35 Recital 11 and Article 2(1)(c) Commission Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest [2012] OJ L7/3. 36 Elisabetta Righini, ‘The Reform of the State Aid Rules on Financing of Public Services Paving the Way Towards a Clearer, Simpler and More Diversified Framework’ (2012) 2 European State Aid Quarterly 3, pp. 13–14. 37 Adinda Sinnaeve, ‘What’s New in SGEI in 2012? An Overview of the Commission’s SGEI Package’ (2012) 11(2) European State Aid Quarterly 347, p. 354. See also Lenaerts, ‘Defining the

Public services and disability  291 these can be considered as economic activities, ‘social integration services for people with disabilities’, among others.38 Indeed, according to the Commission, the term ‘social inclusion of vulnerable groups’ gives Member States the necessary flexibility to include, in accordance with the needs of each Member State, different types of services addressed to those groups that need them the most. It is a broad term and could cover, for example: social integration services for people with disabilities, social assistance services for migrants, services for the homeless, parenting support services, services supporting over-indebted persons or social services for the lesbian, gay, bisexual and transgender community.39

The categorization of persons with disabilities as a vulnerable group can also be found in international law, for instance in General Comment No. 5 of the Committee on Economic, Social, and Cultural Rights, related to persons with disabilities,40 or in several judgments of the European Court of Human Rights.41 However, the categorization of public services related to disability as services for persons belonging to a ‘vulnerable group’, a term which has not been used in the CRPD or its Optional Protocol, does not appear consistent with the values of the UN Convention, which portrays persons with disabilities as right holders on an equal basis with other members of society.42 Indeed, from a rights-based perspective, disability does not intrinsically render a person vulnerable; rather, it is the lack of access, information and support which intensifies vulnerability.43 In addition, it has been noted that the openness of the definition provided by the 2012 SGEI Decision will lead to the Commission and the CJEU being called upon to define these services, leading in turn to a European approach to these important features of social welfare States.44 In this regard, the notion of SSGEI has already been criticized for creating legal uncertainty at the

Concept of “Services of General Interest” in Light of the “Checks and Balances” Set Out in the EU Treaties’ (n 19) 1264, with reference to Sinnaeve. 38 Commission, ‘Staff Working Document: 3rd Biennial Report on Social Services of General Interest’ (n 34) 13. 39 Commission, ‘Staff Working Document: Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest’ SWD (2013) 53 final, p. 63. Emphasis added. 40 Committee on Economic, Social and Cultural Rights, General Comment 5 on persons with disabilities, UN Doc. E/1995/22 (1994), para 9. In relation to this General Comment, see Eilionóir Flynn, From Rhetoric to Action Implementing the UN Convention on the Rights of Persons with Disabilities (Cambridge University Press 2011) 25. 41 See, for instance, Alajos Kiss v Hungary, Application No. 38832/06 (ECtHR, 20 May 2010) para 42. 42 Arlene S Kanter, The Development of Disability Rights Under International Law From Charity to Human Rights (n 3) 49. 43 Hasheem Mannan, Malcolm MacLachlan and Joanne McVeigh, ‘Core Concepts of Human Rights and Inclusion of Vulnerable Groups in the United Nations Convention on the Rights of Persons with Disabilities’ (2012) 6 European Journal of Disability Research 159, p. 161. 44 See Caroline Wehlander, Services of General Economic Interest as a Constitutional Concept of EU Law, Legal Issues of Services of General Interest (T.M.C. Asser Press 2016) 263, referring in this regard to Johan W van de Gronden and Catalin Stefan Rusu, ‘The Altmark Update and Social Services’ in Erika Szyszczak and Johan W van de Gronden (eds), Financing Services of General Economic Interest, Reform and Modernization (T.M.C. Asser Press 2013) 186–215.

292  Research handbook on EU disability law national level.45 To this extent, the European Commission has made clear that ‘the list of social services in Article 2(1)(c) [of the 2012 SGEI Decision] is an exhaustive list [and] Member States do not have competence to adopt legislation that could change or clarify the Decision’.46 Finally, as the CJEU has held, in Grand Chamber formation, the beneficiaries of EU measures adopted in favour of persons with disabilities do not need to be disabled themselves,47 making it even less appropriate to categorize these persons as belonging to a particular ‘vulnerable’ group. 4.2

Other Consequences of Defining Public Services Related to Disability as Social Services of General Economic Interest

Since SSGEI are part of SGEI, they are economic in nature. Consequently, services that may be provided in favour of persons with disabilities, such as social security schemes based on solidarity,48 the exercise of public prerogatives,49 or other activities under State control,50 may not be considered as SSGEI and will not be covered by the 2012 Decision. The qualification of a public service related to disability as a service falling within SSGEI has an immediate advantage vis-à-vis other SGEI, namely that there is no economic threshold applicable to the compensation that the providers of these types of services can receive for their provision under the 2012 Decision.51 Consequently, Member States can grant as much compensation as they consider necessary for the provision of these services without notifying the European Commission, provided that they define them properly and meet the rest of the criteria laid out in the 2012 SGEI Decision (entrustment, parameters of compensation and so on), as will be elaborated further below with a recent example.52 Second, the qualification of a service related to disability as falling within the category of SSGEI may (and, it is argued, should) have an impact on the interpretation of Article 106(2) TFEU by the Commission and the EU Courts. Baquero Cruz has noted that, in the so-called Altmark package, the Commission already decided to apply a softer necessity test to try to reconcile social policy aims and competition in relation to SGEI, including social services.53

45 See, in this regard, Jean-Claude Barbier, ‘Legal Uncertainty in Social Services: A Threat to National Social Protection Systems?’ in Jean-Claude Barbier, Fabrice Colomb and Ralf Rogowski (eds), The Sustainability of the European Social Model: EU Governance, Social Protection and Employment Policies in Europe (Edward Elgar Publishing 2015) 255–75. 46 Commission, ‘Staff Working Document: Guide to the Application of the European Union Rules on State Aid (n 39) 62 (question 93). 47 Case C‑303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415, para 56. 48 See Joined Cases C-159/91 and C-160/91 Poucet and Pistre EU:​C:​1993:​63, paras 17–19; Case C-67/96 Albany EU:​C:​1999:​430, paras 77–87; Joined Cases C-115 to 117/97 Brentjens EU:​C:​1999:​434, paras 77–87. 49 See Case C-364/92 SAT Fluggesellschaft/Eurocontrol EU:​C:​1994:​7, paras 24–30. 50 Case C-218/00 Cisal EU:​C:​2002:​36, paras 31–42. See also, more generally, José Luis Buendía Sierra, ‘An Analysis of Article 86(2) EC’ in Michael Sanchez Rydelski (ed), The EU State Aid Regime (Cameron May 2006) 541–74, p. 548. 51 See in particular Article 2(1)(c). 52 Julio Baquero Cruz, ‘Social Services of General Interest and the State Aid Rules’ in Ulla Neergaard, Erika Szyszczak and Johan W van de Gronden (eds), Social Services of General Interest in the EU: Legal Issues of Services of General Interest (T.M.C. Asser Press 2013) 287–313, p. 307. 53 Ibid 304–05 and 312.

Public services and disability  293 In the current constitutional framework, the proportionality test that has to be carried out under this provision ought to take into account, as part of the EU general interest, the fact that the EU Treaties now include social protection objectives, alongside the competition and free movement objectives. In addition, it should take into consideration Article 26 of the Charter, pursuant to which persons with disabilities are entitled to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Article 9 TFEU is also relevant, and provides that ‘[i]n defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’.54 In this regard, Advocate General Cruz Villalón has referred to this provision as ‘a “crosscutting” social protection clause’.55 Furthermore, in the case of SGEI, as mentioned before, Article 36 CFR provides that the Union recognizes and respects access to SGEI, in order to promote social and territorial cohesion. Finally, it should be noted that Article 7 TFEU mandates the Union to ensure consistency between its policies and activities. Consequently, competition policy should be applied in a consistent manner with other policies of the Treaty, such as social policy, and other objectives, values and rights such as the integration of persons with disabilities, and the prevention of social exclusion. Indeed, while the Commission may not exclude the application of the fundamental freedoms and the competition rules to SSGEI,56 the Commission could, it is submitted, interpret those rules in a more flexible manner, particularly in the application of the proportionality test related to Article 106(2) TFEU when SSGEI are involved. This is especially the case in relation to persons with disabilities, in order to combine the protection of fair competition within the internal market with the guarantee of adequate social protection, also enshrined in the Treaty. This view has been suggested by the current President of the CJEU, Koen Lenaerts, with reference to Article 9 TFEU,57 and could be reinforced by reference to Articles 26 and 36 of the Charter, Protocol 26 to the Lisbon Treaty and the CRPD provisions.

5.

EXAMPLES OF SOCIAL SERVICES OF GENERAL ECONOMIC INTEREST RELATED TO DISABILITY

This section analyses the extent to which public services related to persons with disabilities have been categorized as SGEI, and particularly as SSGEI. For that purpose, the section focuses on the reports submitted by the EU Member States under Article 9 of the 2012 SGEI Emphasis added. Opinion of Advocate General Cruz Villalón, Case C-515/08 de Santos Palhota and Others EU:​C:​ 2010:​245, para 51. See also in this regard Koen Lenaerts, ‘Defining the Concept of “Services of General Interest” in Light of the “Checks and Balances” Set Out in the EU Treaties’ (n 19) 1262. 56 Case T-44/14 Costantini and Others v Commission EU:​T:​2016:​223, para 26. 57 Koen Lenaerts, ‘Defining the Concept of “Services of General Interest” in Light of the “Checks and Balances” Set Out in the EU Treaties’ (n 19) 1264. In a similar vein, Baquero Cruz suggests that the Commission has already given a relative precedence to social policy aims over economic and efficiency considerations. See Baquero Cruz, ‘Social Services of General Interest and the State Aid Rules’ (n 52) 311. 54 55

294  Research handbook on EU disability law Decision and paragraph 62 of the SGEI Framework. These provisions mandate Member States to submit to the Commission a report on the implementation of the Decision and the Framework every two years. The reports are intended to provide a detailed overview of the different categories of services referred to in Article 2(1) of the 2012 SGEI Decision, including SGEI related to the care and social inclusion of vulnerable groups, a category in which the Commission includes, as mentioned above, services for persons with disabilities. The information included in the reports analysed below concerns the period 2016–2017, the most recent period for which data is available.58 5.1

Social Services of General Economic Interest Related to Disability Defined by Member States

Among the national reports submitted to the Commission is that, for example, of Belgium, which notifies several SGEI under the category of social services, related to the care and social inclusion of vulnerable groups, including people with disabilities. The SGEI relate to support services for children, teenagers and adults, adapted work undertakings, day centres, residential centres, services supporting communication with and interpretation for Deaf people, services supporting socially beneficial activities and special and innovative projects.59 In addition, in the latest decision adopted by the European Commission in relation to the financial support granted by the Belgian authorities to public hospitals belonging to the Interhospitalière Régionale des Infrastructures de Soins (IRIS) association in Brussels,60 the Commission did not clearly distinguish between SSGEI and other SGEI. In particular, it held that the range of hospital and social tasks performed by the IRIS hospitals qualified either as genuine SGEI or

58 For a more general analysis on SSGI at EU and national level, see Ulla Neergaard, Erika Szyszczak and Johan W van de Gronden (eds), Social Services of General Interest in the EU, Legal Issues of Services of General Interest (n 52). See also Danielle Gallo, ‘Social Services of General Interest’ in Leigh Hancher, Tom Ottervanger and Piet Jan Slot (eds), EU State Aids (Sweet & Maxwell 2016) 295–352. 59 See the report submitted by Belgium: Société Wallonne du Lodgement, ‘Services of General Economic Interest (SGEI) – Reports to be Submitted under Article 9 of the Commission Decision of 20 December 2011 on State Aid in the Form of Public Service Compensation’ (March 2018), p. 146 et seq http://​ec​.europa​.eu/​competition/​state​_aid/​public​_services/​2016​_2017/​belgium​_en​.pdf accessed 1 February 2020. See also at p. 30, under the title, ‘Social Services: Care and Social Inclusion of Vulnerable Groups – Category 2(e)’. 60 Commission Decision (EU) 2016/2327 on State aid SA.19864 – 2014/c implemented by Belgium (ex 2009/NN54) – Public financing of Brussels public IRIS hospitals [2016] C351/68. In relation to this case, the Commission first adopted a decision on 28 October 2009 (NN5409, C74/1) upon a complaint lodged by two associations of private hospitals (the Coordination bruxelloise d’institutions sociales et de santé (CBI) and the Association bruxelloise des institutions de soins privées (ABISP)) and also individually by several hospitals that were members of these associations, raising no objections at the end of the preliminary investigation under Article 108(3) TFEU. This decision was appealed before the General Court (GC) by CBI. The GC annulled the Commission decision by its judgment of 7 November 2012 in Case T‑137/10 Coordination bruxelloise d’institutions sociales et de santé (CBI) EU:​T:​2012:​584. It was concluded that this decision had been adopted in violation of the procedural rights of the complainants. Subsequently, the Commission initiated (on 1 October 2014) the procedure laid down in Article 108(2) TFEU in respect of the public financing measures in favour of the Brussels public IRIS hospitals, which concluded with the decision of 5 July 2016.

Public services and disability  295 as activities purely ancillary thereto.61 Furthermore, the Commission found that the activities of the IRIS hospitals under examination could be covered by Article 2(1)(b) of the 2012 SGEI Decision, related to compensation granted to hospitals providing medical care, and Article 2(1)(c) of the 2012 SGEI Decision, related particularly to SSGEI, without any further differentiation as to which activities belonged to either category. Similarly, the report submitted by the Czech Republic refers, within the category of ‘social services – care and social inclusion of vulnerable groups’, to the following SGEI related to disability: homes for people with disabilities and social-activation services for elderly people and people with disabilities.62 In the case of Germany, the following SGEI related to disability were notified to the Commission under the category of ‘care and social inclusion of vulnerable groups’: socio-therapeutic care services, such as psycho-social care for persons with disabilities, including integration assistance and day-structuring measures; institutions providing care, support and education for various socially disadvantaged groups (individuals with psychosocial disabilities and other people with disabilities, young people and the elderly); and the establishment and operation of accommodation and meeting places for refugees as well as the continuation of four housing tenancies. It is noteworthy that the report underlines the important role of the CRPD and the fact that the Federal Ministry of Labour and Social Affairs (BMAS) acts as the governmental focal point pursuant to Article 33 CRPD. The report also highlights in this regard, under the SGEI category of care and social inclusion of vulnerable groups, that ‘all the projects funded by BMAS in this context are concerned with the provision of SGEI’.63 Similarly, the Spanish report also includes SGEI covering persons with disabilities under the same category.64 Conversely, France provided a list of SGEI related to disability not under the specific category of care and social inclusion of vulnerable groups, but under the more general category of social services in Article 2(1)(c). Among the services included in the French notification are the activities of the Agefiph (Agency promoting employment of the disabled).65 Similarly, Cyprus notified SGEI related to disability to the Commission under the broad category of social care, particularly social care programmes for people with disabilities, day care and round-the-clock care to be provided by three agencies.66 In the case of Lithuania, the following category has been included under the title of ‘Care and Social Inclusion of Vulnerable Groups: Social Care and General Social Services for the Elderly, People with a Disability and Socially At-risk Persons’. Among the services included in the report related to disability are short- and long-term social care to elderly people with dis-

61 Commission Decision (EU) 2016/2327 on State aid SA.19864 – 2014/c implemented by Belgium (ex 2009/NN54) – Public financing of Brussels public IRIS hospitals [2016] C351/68, para 154. 62 See the report submitted by the Czech Republic, p. 25 http://​ec​.europa​.eu/​competition/​state​_aid/​ public​_services/​2016​_2017/​czech​_republic​_en​.pdf accessed 3 February 2020. 63 See the report submitted by Germany, p. 35 and pp. 369–70 http://​ec​.europa​.eu/​competition/​state​ _aid/​public​_services/​2016​_2017/​germany​_en​.pdf accessed 3 February 2020. 64 See the report submitted by Spain, pp. 5, 17, 23 and 64 http://​ec​.europa​.eu/​competition/​state​_aid/​ public​_services/​2016​_2017/​spain​_en​.pdf accessed 3 February 2020. 65 See the report submitted by France, p.  9 http://​ec​.europa​.eu/​competition/​state​_aid/​public​_services/​ 2016​_2017/​france​_en​.pdf accessed 3 February 2020. 66 See the report submitted by Cyprus, p.  1 http://​ec​.europa​.eu/​competition/​state​_aid/​public​_services/​ 2016​_2017/​cyprus​_en​.pdf accessed 3 February 2020.

296  Research handbook on EU disability law abilities who are fully or partially reliant on care, and need comprehensive assistance requiring constant specialist care.67 Luxembourg also includes services for persons with disabilities under the category of care and social inclusion of vulnerable groups. In this regard, the report submitted by Luxembourg clearly distinguishes between the following categories of services for persons with disabilities, and provides detailed information for each of them: (i) home-based support services; (ii) residential services; (iii) training services; (iv) day-centre services; and (v) information, advice and encounter services.68 In a similar fashion, Latvia contended in its report that social services are not of an economic nature and are the State’s responsibility. Latvia concluded the section of its report related to social services by highlighting that a social service cannot always ‘be considered a service of general economic interest’.69 In this regard, while it is true that not all social services are SGEI, some of them certainly are – something that the report seemingly fails to admit. Finally, the Netherlands refers to the following SGEI related to disability under the category of care and social inclusion of vulnerable groups: ‘social and labour integration in the form of providing employment for workers with disabilities and (highly) vulnerable workers’. The revised report also mentions ‘day-care units for the disabled or the elderly, including some care infrastructure, located within a residential care building’70 as a form of social property protected by the revised Housing Act [Woningwet] of 1 July 2015.71 In relation to the foregoing, Finland also provides grants aimed at improving the housing conditions of ‘special needs’ groups, including persons with disabilities.72 In that connection, the Commission has recognized social housing, including rental subsidy schemes and miscellaneous grant schemes for elderly and disabled persons, as SGEI since at least 2001.73

67 See the report submitted by Lithuania, pp. 13 and 26 http://​ec​.europa​.eu/​competition/​state​_aid/​ public​_services/​2016​_2017/​lithuania​_en​.pdf accessed 3 February 2020. 68 See the report submitted by Luxembourg, pp. 14–15 http://​ec​.europa​.eu/​competition/​state​_aid/​ public​_services/​2016​_2017/​luxembourg​_en​.pdf accessed 3 February 2020. 69 See the report submitted by Latvia, pp. 13–15 http://​ec​.europa​.eu/​competition/​state​_aid/​public​ _services/​2016​_2017/​latvia​_en​.pdf accessed 3 February 2020. 70 See the report submitted by The Netherlands, pp. 39 and 115 http://​ec​.europa​.eu/​competition/​state​ _aid/​public​_services/​2016​_2017/​nederland​_en​.pdf accessed 3 February 2020. 71 See, in relation to social housing, State aid and SGEI the summary provided by the Commission in Decision (EC) on State aid No E 2/2005 and N 642/2009 – The Netherlands – Existing and special project aid to housing corporations [2009] C9963 final, para 38. For a detailed overview of the housing market in the Netherlands, the Commission initiatives and the reaction in the Netherlands, see Els Sol and Mara van der Vos, ‘Services of General Interest, State Aid and Social Housing in the Netherlands’ in Jean-Claude Barbier, Fabrice Colomb and Ralf Rogowski (eds), The Sustainability of the European Social Model: EU Governance, Social Protection and Employment Policies in Europe (Edward Elgar Publishing 2015) 276–96. See also for an analysis of this case Johan W van de Gronden, ‘Social Services of General Interest and EU Law’ in Erika Szyszczak, Jim Davies, Mads Andenas and Tarjei Bekkadel (eds), Developments in Services of General Interest (T.M.C. Asser Press 2011) 123–54, at 144–45. 72 See the report submitted by Finland, pp. 6 and 22 http://​ec​.europa​.eu/​competition/​state​_aid/​public​ _services/​2016​_2017/​finland​_en​.pdf accessed 3 February 2020. 73 State aid N 209/2001 – Ireland, Guarantee for borrowings of the Housing Finance Agency; Brussels, 03.07.2001 SG (2001) D/ 289528. See also amendments of the Commission’s ‘Proposal for appropriate measures on State guarantees for the public credit institutions in Germany’ [2002] OJ C150 of 22 June 2002 (see II/4: measures with a purely social character); State Aid N 395/2005 – Ireland Loan Guarantee for social infrastructure schemes funded by the Housing Finance Agency C (2005) 4668 final.

Public services and disability  297 5.2

A Recent Social Service of General Economic Interest Related to Disability Defined by the European Commission

Recently, the European Commission has adopted a decision concerning an interesting case related to SSGEI and disability in Sweden.74 The case is relevant both for the purposes of the definition of SSGEI in relation to disability, and for the constraints that the 2012 SGEI Decision imposes on the provision of those services. The case started in 2014, with a complaint submitted by a private undertaking in the market for cleaning services concerning the grant of alleged State aid to Samhall, a State-owned company whose assignment was to create work furthering the development of people with disabilities. In essence, the Commission concluded that Samhall had received State aid as the cumulative Altmark criteria were not fulfilled, and all of the other cumulative criteria attaching to Article 107(1) TFEU were fulfilled. The Commission also found that the aid received by Samhall was existing aid within the meaning of Article 108(1) TFEU, given that Samhall had been receiving the aid at stake from the Swedish authorities since 1980, prior to the entry into force of the Treaties in Sweden. The Swedish authorities argued that Samhall was entrusted with the provision of SGEI within the meaning of Article 2(1)(c) of the 2012 SGEI Decision, namely the creation of sheltered employment for disabled workers. The Commission acknowledged the qualification of the creation of sheltered employment for disabled workers as a genuine service falling within the scope of Article 2(1)(c) of the 2012 SGEI Decision, and underlined two justifications under that provision, namely ‘access to and reintegration into the labour market […] and care and social inclusion of vulnerable groups’.75 In this regard, the Commission implicitly rejected the contention raised by the complainant that the activities of Samhall could not be defined as SGEI due to the fact that there was no market failure, a condition that, as discussed above, can be found in the Commission’s SGEI communication (but not in the settled case law of the EU Courts). However, the Commission concluded that several of the requirements of the 2012 SGEI Decision, related in particular to the duration of the entrustment, the compensation mechanism and the verification of the absence of over-compensation, were not fulfilled. In addition, the Commission found that the measures under review did not comply with Article 106(2) TFEU, read in the light of the provisions of the SGEI Framework. Consequently, the measure was considered incompatible with the internal market. However, as the aid at stake was existing aid, such aid had to be subject to appropriate measures pursuant to Article 108(1) TFEU to either abolish or amend the measure. In this regard, save for the existing aid character of the measure under review, the Commission would have, in principle, ordered the recovery of the unlawful and incompatible aid. The Commission proposed a number of conditions to render the aid at stake compatible with the 2012 SGEI Decision, which Sweden accepted.76 Those included, inter alia, a compensation mechanism compliant with Article 5 of the 2012 SGEI Decision. This means that the net costs to be taken into account for the assessment should be limited to the additional costs that

State Aid SA.38469 – Sweden sheltered employment in Sweden [2018] OJ C198/201. State Aid SA.38469 (2017/E) – Sweden sheltered employment C (2017) 8084 final, para 44 and fn

74 75

23.

See State Aid SA.38469 – Sweden sheltered employment in Sweden (n 74).

76

298  Research handbook on EU disability law are related to the employment of disabled workers compared to the costs of employing workers who are not disabled.77 The Commission is likely to require that similar conditions apply to other SSGEI related to disability. Moreover, this Commission Decision shows that, while the 2012 SGEI Decision does not create a cap on the compensation that can be granted to SSGEI providers, Member States may only grant such compensation in accordance with all of the requirements set forth in the 2012 Decision, for otherwise the aid at stake shall not be considered compatible with it and, in principle, the Commission shall order the recovery of the incompatible aid from the providers. Finally, while it is positive that the Commission did not require (in this case) the existence of a market failure to qualify the activities of Samhall as a genuine SGEI, and particularly one falling within the category of SSGEI, it is submitted that the Commission Decision lacks sensitivity as to the importance of the services at stake for persons with disabilities and the risks that the interruption of those services could entail for those individuals. In this regard, there is no mention in the Decision of the CFR, or of Protocol 26 of the Lisbon Treaty or the CRPD. In other words, it seems that the SSGEI at stake in this case was treated by the Commission as any other SGEI, irrespective of the characteristics of the group for which the service is delivered. In this context, the General Court has recently distinguished between sectors, with regard to the definition of SGEI,78 as the criteria laid down by the CJEU concerning sectors such as transport which unquestionably have ‘an economic and competitive activity, cannot be applied as strictly to the hospital sector, which does not necessarily have such a competitive and commercial dimension’.79 These judgments show that not all economic sectors of the Member States have to be analysed in the same way under Article 106(2) TFEU, and that more sensitivity ought to be accorded to SGEI related to less competitive and commercial activities, such as the one at stake in this case concerning persons with disabilities. It is not suggested here that the requirements of the 2012 SGEI Decision should be ignored in the case of SSGEI. What is recommended to the EU institutions is to acknowledge the particular nature and importance of these services, particularly when provided to persons with disabilities, and to refer, at the very least, to the relevant provisions of EU primary law, the Charter and the CRPD related to social protection and disability, with which the Commission Decision in this case, as part of EU secondary law, should be consistent.

6. CONCLUSION In light of the foregoing, a number of conclusions can be drawn. First, public services related to disability are protected and promoted under the EU notion of SGEI enshrined in Article State Aid SA.38469 (2017/E) – Sweden sheltered employment C (n 75) para 82. See in this regard, for instance, Case T‑289/03 BUPA and Others v Commission EU:​T:​2008:​29, para 160, where the Court held that, in the light of the particular nature of the SGEI mission in certain sectors, it is appropriate to show flexibility with regard to the application of the Altmark judgment. The GC has also held that in the application of Article 106(2) TFEU, it is also necessary to take into consideration the lack of a commercial dimension to the public service in question, its classification as an SGEI being explained more by its impact on the competitive and commercial sector. See Case T‑442/03 SIC v Commission EU:​T:​2008:​228, para 153. 79 Case T‑137/10 CBI EU:​T:​2012:​584, para 89. Emphasis added. 77 78

Public services and disability  299 106(2) TFEU, and particularly under the notion of SSGEI. These services have been defined by EU secondary law, namely the 2012 SGEI Decision, as SGEI meeting social needs with regard to health and long-term care, childcare, access to and reintegration into the labour market, social housing and the care and social inclusion of vulnerable groups. Second, the categorization of persons with disabilities as a vulnerable group may not be consistent with the CRPD, which considers persons with disabilities as right holders on an equal basis with other members of society. In addition, while Member States have clearly accepted that public services for persons with disabilities fall under Article 2(1)(c) of the 2012 SGEI Decision, and have provided many examples of these services (discussed above), the lack of specific mention of persons with disabilities as one of the vulnerable groups covered by Article 2(1)(c) of the 2012 SGEI Decision may lead to the exclusion of persons with disabilities from the purview of this provision, and to the different treatment of this group in the different Member States. Indeed, in some of the national reports, the concept of ‘vulnerable groups’ does not include disability. For instance, in the report submitted by Greece under Article 9 of the 2012 SGEI Decision, the concept of ‘vulnerable groups’ is defined in a non-exhaustive manner as follows: ‘asylum seekers, single parent families, victims of torture and/or trafficking, unaccompanied minors (asylum seekers – refugees), adult refugees, minors (children and adolescents) at risk, women at risk or victims of abuse, etc’.80 Similarly, the report submitted by Austria includes the following under the category of SSGI: health and social services, early years education, asylum and migration.81 Hence, it seems that the inclusion of persons with disabilities in the wording of Article 2(1)(c) of the 2012 SGEI Decision would enhance their visibility and the protection of their rights.82 This proposal would be consistent with the objectives of the European Disability Strategy 2010–2020,83 in particular with the goal of highlighting the scope that Member States have to define SGEI to the benefit of disabled people. It would also be consistent with the view that ‘services for the care and social inclusion of disabled people enjoy light compatibility criteria under State aid law and are exempted from prior notification to the Commission’.84 Third, given that public services related to disability are considered SGEI under EU law, they must comply with the relevant EU law and case law related to these services (definition,

80 See the report submitted by Greece, p.  2 http://​ec​.europa​.eu/​competition/​state​_aid/​public​_services/​ 2016​_2017/​greece​_en​.pdf accessed 3 February 2020. 81 See the report submitted by Austria, p.  1 http://​ec​.europa​.eu/​competition/​state​_aid/​public​_services/​ 2016​_2017/​austria​_en​.pdf accessed 3 February 2020. 82 See, in this regard, the suggestion of the European Parliament: ‘[The European Parliament] [s]upports the retention of the existing exemption without thresholds for hospitals and social housing; welcomes the Commission’s assertion that it wishes to exempt further categories of SSGI from the requirement that aid to them be the subject of notification; calls on the Commission to ensure that compensation payments for all SGEI meeting essential social needs as defined by Member States, such as care of the elderly and of people with disabilities, the care and social inclusion of vulnerable groups, child and youth welfare, healthcare and access to the labour market are exempted from the requirement of notification’. See also European Parliament Resolution (2011/2146(INI)) on reform of the EU State aid rules on Services of General Economic Interest [2013] C153 E/07, para 28. 83 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 84 Commission, ‘Progress Report on the Implementation of the European Disability Strategy (2010–2020)’ SWD (2017) 29 final, p. 58. The document underlines the importance of regular advocacy ‘on services for the care and social inclusion of disabled people, under the SGEI State aid package’.

300  Research handbook on EU disability law act of entrustment, parameters of compensation, proportionality, and so on). In this regard, this chapter has argued that the categorization of public services related to disability as SSGEI presents two advantages for these types of services, which reinforces the importance of including public services for persons with disabilities in the wording of Article 2(1)(c) SGEI Decision. Contrary to the situation applicable to the rest of SGEI, in the case of SSGEI there is no economic threshold applicable to the compensation that the providers of these types of services can receive for their provision under the 2012 SGEI Decision. Moreover, the qualification of a public service related to disability as one falling within the definition of SSGEI should have an impact on the interpretation of Article 106(2) TFEU by the Commission and the EU Courts, as the proportionality test that has to be carried out should take into account, as part of the EU general interest, the fact that EU law now includes objectives related to the realization of the rights of the persons with disabilities, including Article 26 CFR and the CRPD, alongside the competition and free movement ones. Finally, recent Commission Decisions under Article 106(2) SGEI regarding public services for persons with disabilities arguably lack sensitivity as to the importance of the services at stake for this group, and the risks that the interruption of those services could entail. In this regard, this chapter has criticized the fact that there is no mention in the Decisions at stake to the CFR, to Protocol 26 of the Lisbon Treaty or to the CRPD. In other words, it seems that public services for persons with disabilities have been treated by the Commission as any other SGEI, irrespective of the characteristics of the group for which the service is delivered. It has been argued above that the current EU legal framework, including Article 9 TFEU, read in conjunction with Article 3(3) Treaty on European Union, Article 7 TFEU, Articles 26 and 36 CFR, and the CRPD provisions, allows for a more flexible application of Article 106(2) TFEU in the context of persons with disabilities.

17. State aid law and disability Delia Ferri and Juan Jorge Piernas López

1. INTRODUCTION The European Union (EU) State aid regime revolves around a blanket prohibition of aid measures, which is included in Article 107(1) of the Treaty on the Functioning of the European Union (TFEU). This provision declares that any aid granted by a Member State or through State resources, which distorts, or threatens to distort, competition by favouring certain undertakings or the production of certain goods, is incompatible with the internal market, insofar as it affects trade between the Member States. The Court of Justice of the European Union (CJEU) has repeatedly held that the ‘classification as State aid requires all the conditions laid down in Article 107(1) TFEU to be satisfied’.1 The concept of ‘aid’ envisaged in Article 107(1) TFEU is broad: it does not merely include positive benefits such as subsidies but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect.2

The prohibition on granting incompatible State aid is only applicable where the aid is granted to ‘undertakings’ under Article 107(1) TFEU. In this regard, the CJEU has consistently defined undertakings for the purpose of EU law (and, specifically, EU State aid law) as entities engaged in an economic activity, regardless of their legal status and the way in which they are financed.3 Moreover, the CJEU has held that any activity consisting in offering goods and services on a market is an economic activity.4 Importantly, non-profit entities can also offer goods and services on a market, and therefore be considered as undertakings under Article 107(1) TFEU.5 In that connection, the provision of services in order to fulfil social needs ‘as regards the care and social inclusion of vulnerable groups’, including persons with disabilities,

1 Among many others, Case T-121/15 Fortischem a.s. v European Commission EU:​T:​2019:​684, para 58. On the concept of ‘aid’, see generally Juan Jorge Piernas López, ‘The Evolving Nature of the Notion of Aid under EU Law’ (2016) 3 EStAL – European State Aid Law Quarterly 400. 2 Among many others, Case C‑405/11 P Commission v Buczek Automotive EU:​C:​2013:​186, para 30. 3 See, inter alia, Case C-222/04 Cassa di Risparmio di Firenze SpA and Others EU:​C:​2006:​8, para 107. 4 See, inter alia, Case C-35/96 Commission v Italy EU:​C:​1998:​303, para 36. 5 See, inter alia, Case C-49/07 MOTOE EU:​C:​2008:​376, paras 27 and 28.

301

302  Research handbook on EU disability law may be considered as an economic activity under EU law.6 However, where non-profit entities do not carry out an economic activity, they ‘remain outside the scope of State aid control’.7 Even though State aid is, in principle, prohibited in the EU, the blanket ban included in Article 107(1) TFEU is mitigated by a set of derogations, laid down in Article 107(2) and (3) TFEU. Those paragraphs recognize that an economic intervention from the State may be needed to address well-defined market failures and to promote certain social values. The EU State aid regime is based on a system of ex ante authorization by the Commission. This means that State aid measures are prohibited, unless the Commission has been notified of the aid, has assessed it under the scope of Article 107(2) or (3) TFEU and has finally approved it, in compliance with Article 108 TFEU. Aid falling under the de jure derogations set forth in Article 107(2) TFEU must be considered automatically compatible with the internal market, and the Commission does not enjoy any discretionary power in respect to aid assessed under this provision once it has verified that the conditions laid down in the Treaty are met. Notwithstanding this, the foregoing type of aid must also be notified to the European Commission for the compatibility analysis.8 By contrast, the Commission has significant discretion in carrying out the complex assessment (of economic and social nature) under Article 107(3) TFEU. In particular, the Commission has wide leeway when evaluating whether the aid is appropriate and proportionate to achieving relevant policy goals under Article 107(3) TFEU. Treaty rules are complemented by a composite system of guidelines and soft law documents that clarify the content of Article 107 TFEU and set out criteria for the assessment carried out by the Commission.9 Furthermore, Article 109 TFEU allows for the adoption of secondary legislation. Under this provision, the Council passed Regulation No. 994/98,10 superseded by Regulation No. 1588/2015,11 which has empowered the Commission to adopt further regulations in which it declares certain types of aid to be lawful and relieves Member States from the obligation of prior notification.12 Alongside the De minimis Regulation,13 the

6 Article 2(1)(c) of Commission Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest [2012] OJ L7/3. 7 Commission Notice on the notion of State aid as referred to in Article 107(1) TFEU, C/2016/2946 [2016] OJ C62/1, para 9. 8 See Case T-177/07 Mediaset v Commission EU:​T:​2010:​233, para 76: ‘[The plaintiff’s] argument that a subsidy granted to consumers cannot be categorised as State aid to traders providing consumer goods or services is also inconsistent with Article 87(2)(a) EC, under which aid having a social character, granted to individual consumers, is compatible with the common market provided that it is granted without discrimination related to the origin of the products concerned. As the Commission contends, if Mediaset’s argument were to be accepted, that provision would be superfluous’. 9 See infra section 2 of this chapter. 10 Council Regulation (EC) 994/98 on the application of Articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid [1998] OJ L142/1. 11 Council Regulation (EC) 2015/1588 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid [2015] OJ L248/1. This regulation was modified in 2018 by Council Regulation (EU) 2018/1911 amending Regulation (EU) 2015/1588 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid [2018] OJ L311/8. 12 Case C‑493/14 Dilly’s Wellnesshotel EU:​C:​2016:​577, paras 33, 34 and 35. 13 Commission Regulation (EC) 1407/2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid [2013] OJ L352/1. The application of this

State aid law and disability  303 Commission approved a series of exemption regulations,14 which were then consolidated in the 2008 General Block Exemption Regulation (2008 GBER),15 which was replaced by a new GBER in 2014 (GBER).16 These regulations ‘enable the Member States to assess the need for notification’.17 As will be discussed further in this chapter, the GBER, which will be in force until 31 December 2023, has exempted from prior notification and considered compatible with the internal market several categories of aid.18 In the past decade, EU State aid rules, while remaining primarily targeted at ensuring free and undistorted competition,19 have acquired a more visible ‘social dimension’.20 In particular, in applying those rules, the Commission has developed its own vision of ‘good’ aid, de facto aligning national State aid policies with the EU social goals.21 On foot of the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention), this chapter argues that such a ‘social dimension’ has encompassed a distinct ‘disability dimension’. In that regard, this chapter contends that the Commission has allowed, within the remit of the exceptions laid down in Articles 107(2) and (3) TFEU and through the GBER, the use of State aid to protect and promote the rights of persons with disabilities. It attempts to show not only that State aid has been an important policy option through which to promote the right to work of persons with disabilities, but that it has also displayed significant potential to enhance disability rights generally.

Regulation has been recently extended to 31 December 2023 (Commission Regulation (EU) 2020/972 amending Regulation (EU) No 1407/2013 as regards its prolongation and amending Regulation (EU) No 651/2014 as regards its prolongation and relevant adjustments [2020] OJ L 215/3). 14 Commission Regulations (EC) 68/2001 [2001] OJ L10/20, 70/2001 [2001] OJ L10/33, 2204/2001 [2002] OJ L337/3, and 1628/2006 [2006] OJ L32/29. 15 Commission Regulation (EC) 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty [2008] OJ L214/3 (then amended by Commission Regulation (EU) No 1224/2013 [2013] OJ L320/2). 16 Commission Regulation (EU) 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty [2014] OJ L187/1 (General Block Exemption Regulation – GBER). 17 Joined Cases T‑554/15 and T‑555/15 Hungary v Commission EU:​T:​2018:​220, para 150. 18 See infra section 4 of this chapter. It must be noted that a public consultation was launched on 27 June 2019 to seek the views of the relevant stakeholders (including Member States) on the revision of the GBER. The Commission was aiming to adopt a revised text of the GBER. In particular, the targeted review of the GBER should improve the interplay between EU funding rules and State aid rules, and to streamline State aid control of national funds, including EU shared management funds, combined with EU programmes managed centrally by the Commission. The Commission is looking at three areas: first, financing and investment operations supported by the InvestEU Fund; second, research, development and innovation projects (RD&I) projects and other projects funded under Horizon2020 or Horizon Europe; finally, European Territorial Cooperation projects. See https://​ec​.europa​.eu/​competition/​consultations/​ 2019​_gber/​index​_en​.html accessed 1 February 2020. See infra section 5 of this chapter. In July 2020, however, the Commission decided to extend the application of the GBER until 31 December 2023, and to postpone any revision. See Commission Regulation (EU) 2020/972 amending Regulation (EU) No 1407/2013 as regards its prolongation and amending Regulation (EU) No 651/2014 as regards its prolongation and relevant adjustments [2020] OJ L 215/3. 19 Case C-225/91 Matra v Commission EU:​C:​1993:​239. 20 Delia Ferri and Juan Jorge Piernas López, ‘The Social Dimension of EU State Aid Law and Policy’ (2019) 21 Cambridge Yearbook of European Legal Studies 1. 21 Ibid 26.

304  Research handbook on EU disability law Against this background, and building on previous research,22 this chapter examines whether the Commission, in exercising State aid control, has streamlined national funding towards the implementation of the CRPD. It also discusses the extent to which EU State aid law and policy indirectly contribute to enhancing the rights of persons with disabilities. After these introductory remarks, section 2 looks at aid measures allowed under Article 107(2) TFEU from a disability perspective. Section 3 looks at aid measures authorized under Article 107(3) TFEU, focusing on those measures that can promote the rights of persons with disabilities. Section 4 discusses how disability features in the GBER. That section does not engage in an analysis of the technicalities of the Regulation; rather, it examines the provisions that can contribute to the implementation of the CRPD. Section 5 presents some conclusions.

2.

AID TO PROMOTE THE RIGHTS OF PEOPLE WITH DISABILITIES UNDER ARTICLE 107(2) OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

2.1

Article 107(2) Treaty on the Functioning of the European Union in a Nutshell

As noted in the introduction to this chapter, Article 107(2) TFEU specifies a number of cases in which national support measures are permissible. It provides that the following are compatible with the internal market: ‘aid having a social character, granted to individual consumers, provided that such aid is granted without discrimination related to the origin of the products concerned’ (Article 107(2)(a) TFEU); and ‘aid to make good the damage caused by natural disasters or exceptional occurrences’ (Article 107(2)(b) TFEU).23 The Commission has no discretion as to whether to authorize the aid when the criteria set forth in the provision are met. The derogation provided for in Article 107(2)(a) TFEU allows for State intervention to protect certain disadvantaged segments of the population, including people with disabilities, and certain social rights. While the Commission argues that the term ‘social character’ should be interpreted narrowly and refer to aid ‘addressing the needs of underprivileged population groups’, its most recent decisions have revealed a broader understanding of what constitutes a disadvantaged group, to encompass, for instance, people hit by economic crisis.24 The CJEU 22 Ibid. See also Delia Ferri and Juan Jorge Piernas López, ‘State Aid Law in a Social Market Economy’ in Delia Ferri and Fulvio Cortese (eds), The EU Social Market Economy and the Law: Theoretical Perspectives and Practical Challenges for the EU (Routledge 2018) 147–65. 23 Article 107(2)(c) TFEU also lists: ‘aid granted to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany, in so far as such aid is required in order to compensate for the economic disadvantages caused by that division’. This exemption is of limited practical relevance, and is now ex lege repealed. See, for a commentary, inter alia, Chiara Cellerino and Francesco Munari, ‘Articolo 107’ in Antonio Tizzano (ed), Trattati dell’Unione europea (Giuffrè 2014) 1141–64. 24 See, on this point, Ferri and Piernas López, ‘The Social Dimension of EU State Aid Law and Policy’ (n 20). Moreover, in cases related to transport aid, the Commission also affirmed that the aid must have a social character, that is, it must, in principle, only cover certain categories of passengers travelling on a route such as children, [disabled] people, people with low income, and so on. However, in the case where the route concerned links with an underprivileged region the aid could cover the entire population of this region (see, to that effect, Commission, ‘State aid No 27/2008 – United Kingdom – Aid of a social character Air Services in the Highlands and the Islands of Scotland’ C (2008) 685). Article 107(2)(a) is

State aid law and disability  305 has also repeatedly held that for aid to be compatible with Article 107(2)(a) TFEU, consumers must ‘benefit from the aid irrespective of the economic operator supplying the product or service capable of fulfilling the social objective relied on by the Member State concerned’.25 The second derogation provided for in Article 107(2)(b) TFEU, which is used more extensively by States, requires that the aid compensates damage which was a direct consequence of a natural disaster (or of an exceptional circumstance), and that the aid only makes good that damage caused by the natural disaster, thereby excluding overcompensation.26 For the purpose of this analysis, the derogation provided for in Article 107(2)(a) TFEU is the one which has, thus far, been more relevant with regard to the right of persons with disabilities, and will be examined below. However, it is submitted here that the Commission, when reviewing notifications under Article 107(2)(b) TFEU, should take into account (and act in compliance with) Article 11 CRPD, according to which Parties shall take all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters. 2.2

Aid Having a Social Character

Article 107(2)(a) TFEU has, to date, been interpreted to allow for State aid measures that address different forms of social exclusion and target disadvantaged groups. Among the measures allowed, a few relate to people with disabilities and are premised on the idea that State funding can be used to foster their inclusion in society. Relevant in this respect is the Polish scheme N312/2010 on the ‘compensation of costs incurred for the provision of services which are statutory exempted from postage fees’,27 which prolongates a previous scheme (N462/2008) in force in Poland from 2004. The scheme provides for the exemption from postage fees of postal services, including clearance, transport and delivery of items posted by blind or partially sighted people and addressed to libraries; or posted by blind and partially sighted persons’ associations or organizations performing activities for and on behalf of blind and partially sighted persons. The Polish scheme has ‘a social objective and is designed to improve opportunities for blind and partially sighted persons to equally participate in social and economic activities and be provided the broadest and fair access to cultural goods’.28 The measure was subsequently prolonged and extended in its scope in 2011, by introducing the possibility for persons with disabilities to vote by sending mail exempted from the postage

now the basis for the block exemption laid down in Article 51 of the GBER, which covers aid for air and maritime transport for the benefit of consumers resident in remote regions. 25 See, inter alia, Joined Cases T-116/01 and T-118/01 P & O European Ferries (Vizcaya) SA EU:​T:​ 2003:​217, para 163. 26 See, for example, State aid N 401/2008 – Slovenia – Aid to compensate for the damage caused by the storm and floods of 18.9.2007 (Ministry of Environment and Spatial Planning) [2009] OJ C112/2; State aid N 274b/2010 – Germany – Disaster Aid Scheme ‘Bayerischer Härtefonds Finanzhilfen’ (beneficiaries in manufacturing and other sectors) [2010] OJ C164/5. 27 Commission, ‘State Aid N 312/2010 – Poland – Prolongation of the scheme to compensate costs of services statutorily exempted from the postage fees’ C (2010) 7682 final. 28 Ibid.

306  Research handbook on EU disability law fee.29 The latter measure is relevant in supporting the implementation of Article 29 CRPD on the right to participation in political and public life, including the right to vote – which, however, was not mentioned in the measure itself – as Poland ratified the UN Convention in 2012. A new prolongation of the scheme until 2015 was notified to the Commission in 2013,30 and further continuation until 2021 was announced in 2016.31 A few aid measures approved under Article 107(2)(a) TFEU concern the switch to digital television and provide for public support to purchase digital decoders for certain social groups that are deemed to lack the financial capacity to buy those devices on the market. Those aid measures for the most part target people with disabilities together with other categories of socially disadvantaged people, on the premise that access to digital television is essential to foster their social inclusion. For example, the Slovakian aid measure N 671/2009 on the ‘switch-over to digital TV broadcasting in Slovakia – Terminal equipment for socially vulnerable persons’32 includes among the direct beneficiaries ‘socially vulnerable citizens ([disabled] persons, citizens with low income, disability or old-age pension)’.33 Comparable aid measures were adopted by Bulgaria in 2013,34 and by Hungary in 2015.35 Direct beneficiaries of the Bulgarian aid scheme are ‘households with special needs’, which includes people with disabilities. In a similar vein, the Hungarian aid measure comprises among the direct beneficiaries people receiving disability benefits or other disability-related allowances. Other aid measures approved under Article 107(2)(a) TFEU are explicitly addressed to people with disabilities. For example, the Spanish aid measure SA.31982 is explicitly aimed at individuals who habitually reside in Spain and can certify a ‘recognised visual impairment with a degree of disability of at least 33%’.36 The purpose of the aid is to facilitate people with disabilities in the purchase of a decoder which, in addition to enabling reception of the digital television signal, has accessibility functionalities.37 All those aid measures undoubtedly have the potential to increase market access of people with disabilities to accessible digital goods and services; in doing that, they contribute to the fulfilment of the accessibility obligations included in the CRPD, in particular Article 21 CRPD on the accessibility of information, and comply with the general principle of participation affirmed in the UN Convention.38 29 Commission, ‘State aid SA.33341 (N/2011) – Poland – Extension of the existing scheme (case N312/2010) compensating costs of postage services following the new Act on Elections allowing disabled persons to vote by mail’ C (2011) 6458 final. 30 Commission, ‘State aid SA.36124 (2013/N) – Poland – Prolongation of the scheme ‘Compensation of costs incurred for the provision of services which are statutorily exempted from postage fees’ C (2013) 3396 final. 31 Commission, ‘State Aid SA.42843 Compensation of costs incurred for the provision of services which are statutorily exempted from postage fees (2016–2021)’ C (2015) 8562 final. 32 Commission, ‘State aid N 671/2009 A – Slovakia – Switch-over to digital TV broadcasting in Slovakia - Terminal equipment for socially vulnerable persons’ C (2010) 6156 final. 33 Ibid para 30. 34 Commission, ‘State aid SA.36333 (2013/N) – Bulgaria – Digital television decoders to households with low income’ C (2013) 4505 final. 35 Commission, ‘State Aid SA.34901 – Hungary – Digital television decoders to socially disadvantaged households’ C (2012) 9233 final. 36 Commission, ‘State aid SA.31982(2010/N) – Spain – Digital decoders for persons with visual disabilities in Spain’ C (2011) 1655 final. 37 Ibid para 6. 38 The general principles upon which the UN Convention is based are listed in Article 3 CRPD. These principles guide Parties in the implementation of the CRPD and serve as a benchmark against which the

State aid law and disability  307 Thus far, the derogation provided for in Article 107(2)(a) TFEU has been scarcely used by Member States. However, within the limited number of aid measures notified to the Commission, it is possible to observe a growing attention to people with disabilities as direct beneficiaries of those measures. The aid schemes discussed in this section are indirectly related to accessibility, in that they support the purchase of accessible products by reducing their cost. Significantly, in none of the Commission’s decisions is the CRPD cited or referred to. However, since most of the measures have been adopted after the signature or the ratification of the UN Convention by the Member State in question, it is arguable that these aid measures might contribute to the implementation of the CRPD in that State. It should be noted, nonetheless, that aid measures such as the Hungarian and Spanish ones are informed by definitions of disability that are medically oriented and anchored to ‘percentages of incapacity’, or to the receipt of specific disability-related benefits and allowances. Such definitions are not in line with the social-contextual model of disability embraced by the CRPD,39 and potentially exclude from the benefits several people with disabilities who do not meet the thresholds indicated in national law. On the whole, the Commission has no discretion when it comes to aid notified under Article 107(2)(a) TFEU, once the conditions laid down in the Treaty are met. Nonetheless, the approach adopted with regard to those aid measures confirms that people with disabilities are considered a disadvantaged group for the purpose of State aid law, and that Member States can in fact adopt social measures aimed at combating structural inequalities and fostering inclusion, without falling under the prohibition set out in Article 107(1) TFEU.

3.

AID TO PROMOTE THE RIGHTS OF PEOPLE WITH DISABILITIES UNDER ARTICLE 107(3) OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

3.1

Article 107(3) of the Treaty on the Functioning of the European Union, the Assessment of the Commission and Disability

Article 107(3) TFEU affirms that some forms of aid may be considered compatible with the internal market, after a discretionary assessment of the Commission, where such aid does not adversely affect trading conditions to an extent contrary to the common interest. Among others, it lists aid to promote the economic development of areas where the standard of living is abnormally low or where there is underemployment (lett. a); aid to promote the execution of a project of common European interest or to remedy a serious disturbance in the economy of a Member State (lett. b); aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to conformity of domestic laws with the UN Convention must be assessed. These general principles are: respect for inherent dignity, individual autonomy and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; respect for the evolving capacities of children with disabilities. 39 See above Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. See also Andrea Broderick and Delia Ferri, International and European Disability Law: Text, Cases and Material (Cambridge University Press 2019).

308  Research handbook on EU disability law an extent contrary to the common interest (lett. c); and aid to promote culture and heritage conservation (lett. d). While Article 107(3) TFEU must be interpreted strictly, ‘the Commission enjoys, in the application of [this provision], wide discretion, the exercise of which involves complex economic and social assessments’.40 To enhance the degree of legal certainty of these assessments, the Commission has adopted a series of soft law documents, including both horizontal guidelines that apply across all industries and set out the Commission’s position on particular categories of aid assessed under Article 107(3)(a) and (c) TFEU, and sector specific rules related to discrete economic activities.41 While those documents are not formally binding, the CJEU has consistently held that: In adopting rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its […] discretion and, in principle, cannot depart from those rules without being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations.42

Among such rules, and notable for the purpose of this analysis, are the ‘Criteria for the analysis of the compatibility of State aid for the employment of disadvantaged and disabled workers subject to individual notification’,43 adopted in 2009, which apply to aid that exceeds the thresholds envisaged in the GBER. Those criteria aim to ‘explain the reasoning underlying Commission decisions on the compatibility of training aid measures and thereby increase transparency’.44 They are premised on the idea that State aid, in the form of wage subsidies,45 might encourage employment of disadvantaged workers and workers with disabilities who ‘experience particular difficulty in finding jobs, because employers consider them to be less productive or have prejudices against them’ where the ‘perceived or real lower productivity may be due […] to a permanent disability’.46 According to those criteria, when assessing wage subsidies under Article 107(3)(a) or (c) TFEU, the Commission will check that State aid is the ‘appropriate policy instrument’. Where a Member State has other policy options at its disposal to boost employment of workers with disabilities, it has to demonstrate ‘the advantages of using a selective instrument such as State aid for a specific undertaking’.47 In that regard, the Case C‑431/14 P Greece v Commission EU:​C:​2016:​145, para 68. Those documents are published in the Official Journal and can be retrieved from https://​ec​.europa​ .eu/​competition/​state​_aid/​legislation/​legislation​.html accessed 1 February 2020. 42 Case C‑667/13 Banco Privado Português and Massa Insolvente do Banco Privado Português EU:​ C:​2015:​151, para 69 and the case law cited in it. 43 Commission, ‘Criteria for the Analysis of the Compatibility of State Aid for the Employment of Disadvantaged and Disabled Workers Subject to Individual Notification’ [2009] OJ C188/6. 44 See https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​MEMO​_09​_260 accessed 1 February 2020. 45 According to those criteria: ‘State aid in the form of subsidies to wage costs, where wage cost means the total amount actually payable by the beneficiary of the aid in respect of the employment concerned, comprising: (a) the gross wage, before tax; and (b) the compulsory contributions, such as social security charges; and (c) child care and parent care costs (‘wage subsidies’) can provide additional incentives to undertakings to increase their levels of employment of disadvantaged and disabled workers’ (Commission, ‘Criteria for the Analysis of the Compatibility of State Aid for the Employment of Disadvantaged and Disabled Workers Subject to Individual Notification’ [2009] OJ C188/6, para 1). 46 Ibid para 5. 47 Ibid para 9. 40 41

State aid law and disability  309 Commission will take into account the impact assessment of the proposed aid measure that the Member State may have carried out. The Commission’s evaluation will ascertain the existence of the incentive effect, and the necessity and proportionality of the aid. Notably, ‘the Member State must demonstrate that the aid is paid in respect of a disadvantaged or disabled worker in an undertaking, where the recruitment would have not occurred without the aid’,48 and that the amount of the aid ‘is kept to the minimum in order to achieve the objective of the aid’.49 As a final step, the Commission will then gauge the extent to which the positive effects of the aid outweigh its negative effects (in terms of distortion of the market). On the whole, those criteria, while focusing (as with all other horizontal guidelines) on an economic assessment of the measure and paying particular attention to the balance between the positive outcome of the aid and its pitfalls, show awareness of the structural disadvantages faced by people with disabilities when it comes to employment. As noted elsewhere, while retaining an economic approach, they also signal ‘a renewed commitment by the Commission to the promotion of equality and full employment through EU State aid policy’.50 While not mentioning the CRPD,51 those criteria can be deemed to support the implementation of Article 27 of the UN Convention (on the right to work) by the Member States, as they allow for specific positive measures to increase the number of workers with disabilities in the open labour market. Other guidelines do not include any reference to aid aimed at fostering the rights of persons with disabilities. However, guidelines on aid related to audiovisual production,52 as well as to broadcasting,53 allow for aid measures that stimulate consumer access to audiovisual services and broadcasting services, respectively. In that way, Member States might enact measures that target access to those services by people with disabilities, which would also be in line with the Union’s commitment to recognize and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community under Article 26 of the EU Charter of Fundamental Rights (CFR). 3.2

Aid Assessed under Article 107(3) of the Treaty on the Functioning of the European Union and Disability

In the EU, general State aid expenditure (not related to the last economic crisis) decreased considerably over the period 1992–2011, and evolved from the adoption of mostly sectoral aid measures towards ‘a greater share of horizontal measures’.54 In this context, the amount

Ibid para 11. Ibid para 13. 50 Delia Ferri and Mel Marquis, ‘Inroads to Social Inclusion in Europe’s Social Market Economy: The Case of State Aid Supporting Employment of Workers with Disabilities’ [2011] European Journal of Legal Studies 4. 51 See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 52 Commission, ‘Communication from the Commission on State Aid for Films and Other Audiovisual Works’ [2013] OJ C332/1. 53 Commission, ‘Communication from the Commission on the Application of State Aid Rules to Public Service Broadcasting’ [2009] OJ C257/1. 54 Çiğdem Börke Tunali and Jan Fidrmuc, ‘State Aid Policy in the European Union’ (2015) 53(5) Journal of Common Market Studies 1143 at 1148. 48 49

310  Research handbook on EU disability law of State aid schemes examined by the Commission under Article 107(3) TFEU has also decreased, in particular following the adoption of the 2008 GBER (and that of the subsequent GBER).55 Since the 2008 GBER, aid measures related to fostering the employment of disabled workers are mostly block exempted, as will be examined in section 4, and the relevance of the 2009 Criteria, discussed above,56 has been negligible (if not insignificant). As yet, the Commission only assessed a Polish scheme under those criteria,57 but that scheme merely supports undertakings which employ persons who are held in detention (disadvantaged workers), in order to prepare them for jobs in the open labour market after their release from prison. Several aid measures approved under Article 107(3) TFEU might, indirectly, foster the rights of persons with disabilities (outside the employment context). For example, a number of aid schemes can contribute to supporting accessibility but are not, as such, targeted to achieving that goal. This is the case for aid aimed at supporting technological developments and information and communication technology.58 This is also the case for a wide array of aid measures approved under Article 107(3)(d) TFEU that allow cultural operators to invest in new technologies to make cultural goods and services available to a wider audience, but do not specifically mention accessibility for people with disabilities. For example, among many others, State aid measure N 1/2010 to Basque museums supported,59 inter alia, ‘publications in different forms’ and the ‘digitalization of Basque museums collections’.60 The 2018 Modification of the German Film Fund (Richtlinie der BKM ‘Anreiz zur Stärkung der Filmproduktion in Deutschland’ – Deutscher Filmförderfonds DFFF) is also relevant.61 The DFFF aims at ‘providing support to the production of feature films, documentaries and animation films with German and European cultural content and at promoting cultural heritage’.62 In order for a film to receive funding, it has to meet not only certain cultural criteria, but also additional requirements. Among the latter is the requirement to create ‘an accessible version’ of the film.63 In some cases, national aid schemes take into account the extent to which cultural activities might support inclusion of people with disabilities. For instance, the Croatian Book Publishing Programme 2014–2016,64 which aims to sustain book publishing, periodicals and electronic publications, literary events and literary programmes at bookshops, includes among

55 As a result, since 2015, more than 96 per cent of new State aid measures for which expenditure was reported for the first time did not require notification to the Commission. See https://​ec​.europa​.eu/​ commission/​presscorner/​detail/​en/​ip​_19​_3428 accessed 1 February 2020. 56 See supra section 3.1. 57 Commission, ‘State aid No SA.46134(2016/N) – Poland – State aid scheme for operators employing persons held in detention (amendment to the aid scheme SA.33608 (2011/N))’ C (2017) 541 final. 58 Delia Ferri, ‘Subsidising Accessibility: Using EU State Aid Law and Policy to Foster Development and Production of Accessible Technology’ (2015) EStAL – European State Aid Law Quarterly 14. 59 Commission, ‘State aid N 1/2010 – Spain – State aid to Basque museums’ C (2010) 2540 final. 60 Ibid para 15. 61 Commission, ‘State Aid SA.50829 (2018/N) – Germany – Modification of the German Film Fund (DFFF)’ C (2018) 4581 final. 62 Ibid para 3. 63 Ibid para 9. 64 Commission, ‘State aid SA.37923 (2013/N) – Croatia – Book publishing programme for the period 2014–2016’ C (2014) 1856 final. The scheme has been extended until 2022. See to that effect Commission, ‘State Aid SA.44681 (2016/N) – Croatia – Croatian book publishing programme for the period 2017–2022’ C (2016) 1982 final.

State aid law and disability  311 the criteria relevant to the provision of funding ‘the involvement of disabled persons in the programmes and suitability of the programmes for disabled persons’.65 However, in its own assessment, the Commission has not explicitly taken into consideration, among the positive effects of the aid, the enhancement of social inclusion of people with disabilities. State aid schemes approved under Article 107(3) TFEU seem to have contributed to the promotion of the rights of persons with disabilities to a very limited extent. None of the national measures approved by the Commission are expressly linked to the implementation of the CRPD. The Commission itself, while de facto allowing Member States’ aid schemes that support inclusive and sustainable economic growth,66 has not in its assessment evaluated the positive effects in terms of accessibility or promotion of disability rights. The foregoing is unfortunate, as the Commission enjoys, in the State aid field, significant leverage to channel national funds to Union interests and objectives; the realization of the rights of persons with disabilities should be one of these, in light of the UN Convention and the CFR. However, the succinct analysis conducted in this section also shows that State aid in fact has an uncharted potential to support the creation of an EU market for accessible goods and services, and to contribute to the implementation of the CRPD.

4.

THE GENERAL BLOCK EXEMPTION REGULATION: A TOOL TO PROTECT THE RIGHTS OF PERSONS WITH DISABILITIES?

The Commission Regulation (EU) 651/2014, better known as the GBER,67 amended in 2017,68 sets out the categories of aid and the conditions under which aid measures can benefit from an exemption from notification. It also defines the eligible beneficiaries, indicates the maximum proportion of the eligible costs that can benefit from State aid and eligible expenses.69 The rationale underpinning this Regulation is, on the one hand, to allow the Commission to concentrate its scrutiny on those aid measures which are most likely to distort competition, and, on the other hand, to boost ‘good aid’ which pursues objectives of common interest.70 The sub-sections below discuss the extent to which disability features in the GBER, and then focus on two categories of aid which seem more explicitly geared towards supporting the implementation of the CRPD – aid for workers with disabilities, and aid for culture and heritage conservation – analysing them from a disability perspective.

Ibid para 15. Ferri and López, ‘State Aid Law in a Social Market Economy’ (n 22). 67 Commission Regulation (EU) 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty [2014] OJ L187/1. 68 Commission Regulation (EU) 2017/1084 amending Regulation (EU) 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) No 702/2014 as regards the calculation of eligible costs [2017] OJ L156/1. 69 Phedon Nicolaides, ‘An Economic Assessment of the Usability of the New General Block Exemption Regulation for State Aid (Regulation 651/2014)’ (2014) 10(3) European Competition Journal 403. 70 Commission, ‘EU State Aid Modernisation (SAM)’ COM (2012) 0209 final. 65 66

312  Research handbook on EU disability law 4.1

The General Block Exemption Regulation and Disability

The GBER significantly extends the possibilities for Member States to grant aid. It includes categories of aid that were not contained in the 2008 text,71 such as aid to make good the damage caused by certain natural disasters, social aid for transport for residents of remote regions, aid for broadband infrastructures, aid for innovation, aid for culture and heritage conservation and aid for sport and multifunctional recreational infrastructures. The GBER currently in force also widens the scope of categories of aid that were already block exempted, such as risk finance aid. Like its predecessor, the GBER operates on the basis of notification thresholds, that is, aid can only be awarded under the GBER up to the threshold amount. However, these thresholds, laid down in Article 4, have been raised considerably compared to those provided for in the 2008 GBER. Overall, the GBER allows Member States more leeway in granting aid without prior notification and approval by the Commission, albeit including rigorous monitoring and reporting provisions.72 In that regard, the CJEU has repeatedly clarified that ‘as a qualification of the general rule that notification is required, the provisions of [the GBER] and the conditions laid down by it must be interpreted strictly’.73 The Court has also consistently held that while the Commission is authorised to adopt regulations for block exemptions of aid, with a view to ensuring efficient supervision of the competition rules concerning State aid and simplifying administration, without weakening Commission monitoring in that area, the aim of such regulations is also to increase transparency and legal certainty.74

The Luxembourg judges have emphasized that fulfilment of the conditions laid down by the GBER is essential for those aims to be fully achieved.75 For the purpose of this analysis, it is important to note that the GBER (like its predecessor) exempts from notification aid for the employment of workers with disabilities and aid compensating for the additional costs of employing workers with disabilities, which will be further discussed in the following sub-section.76 The exemption from notification of these measures is explicitly intended ‘to increase the levels of employment of these categories of workers’, and explicitly linked to the implementation of the CRPD. While recital 52 of the preamble states that ‘the promotion of training and the recruitment/employment of disadvantaged workers and of workers with disabilities constitutes a central objective of the economic and social policies of the Union and its Member States’, recital 54 openly refers to the UN Convention,77 and to

71 On the 2008 GBER, see Kristyna Deiberova and Harold Nyssens, ‘The New General Block Exemption Regulation (GBER): What Changed?’ (2009) 8(1) ESTAL – European State Aid Law Quarterly 27. 72 Article 10 et seq GBER. 73 Case C‑349/17 Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus EU:​C:​2019:​172, para 60 and the case law cited in it. 74 Ibid. 75 Ibid. 76 See infra sub-section 4.2. 77 Recital 54 of the preamble to the GBER states as follows: ‘As set out in the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe (18) the core elements of the EU disability strategy, combine anti-discrimina-

State aid law and disability  313 the European Disability Strategy 2010–2020 (EDS).78 In that connection, it is worth noting that the EDS itself mentions the GBER among the tools to promote employment (which is one of the priority areas of the Commission) of persons with disabilities.79 A notable feature of the GBER is the adoption of people-first language,80 through the use of the term ‘worker with disabilities’ as opposed to ‘disabled worker’, which was used in the 2008 GBER. This linguistic improvement is a clear attempt to align the GBER to the CRPD. In that regard, recital 54 of the preamble clarifies that ‘[t]his Regulation should refer to aid for workers with disabilities in the sense of Article 1 of the Convention’. Article 2(3) GBER defines a ‘worker with disabilities’ as any person who either is ‘recognised as worker with disabilities under national law’ or ‘has long-term physical, mental, intellectual or sensory impairment(s) which, in interaction with various barriers, may hinder their full and effective participation in a work environment on an equal basis with other workers’.81 While recital 54 acknowledges the sub-constitutional status of the CRPD and the duty of consistent interpretation,82 Article 2(3) reproduces Article 1(2) CRPD. However, the reference to national law, which acknowledges that the meaning of disability differs from one Member State to another, seems contradictory, as several States still have medical model-oriented definitions of disability.83 In addition, the GBER contains novel provisions on aid, aimed to increase the accessibility of audiovisual works and heritage sites, as well as references to accessibility in other norms. For example, aid ‘for cooperation costs incurred by SMEs participating in European Territorial Cooperation projects’84 covers ‘organisational cooperation’ costs, which include, inter alia, ‘the improvement of accessibility and communication’.85 Even when accessibility is not expressly mentioned, it can be assumed that certain exemptions might in fact improve accessibility in many respects. When it comes to aid for research and development and innovation, the

tion, equal opportunities and active inclusion measures and reflect the United Nations Convention on the Rights of Persons with Disabilities to which the EU and the majority of the Member States are a party. This Regulation should refer to aid for workers with disabilities in the sense of Article 1 of the Convention.’ 78 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 79 In the Commission Staff Working Document accompanying the European Disability Strategy (EDS), which sets forth an ‘Initial plan to Implement the European Disability Strategy 2010–2020 – List of Actions 2010–2015’ (Commission, Initial Plan to Implement the European Disability Strategy 2010–2020 – List of Actions 2010–2015 SEC (2010) 1324 final), the scope for action that Member States enjoy in the area of promoting employment and recruitment of persons with disabilities through the GBER is highlighted. State aid is not mentioned elsewhere in the EDS. The EDS, however, states that EU action will support national efforts in accordance with European competition law, in particular State aid rules. 80 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 81 Article 2(3)(b) GBER. 82 See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. See, inter alia, Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159, para 72. 83 Delia Ferri, ‘The New General Block Exemption Regulation and the Rights of Persons with Disabilities: Smoke without Fire?’ (2015) 14(4) ESTAL – European State Aid Law Quarterly 465. 84 Article 20 GBER. 85 Article 2(63) GBER.

314  Research handbook on EU disability law GBER emphasizes that ‘it can contribute to sustainable economic growth’.86 In a similar vein, aid for broadband infrastructure is linked to the importance that connectivity of this nature has ‘for a smart, sustainable and inclusive growth and innovation’.87 Article 31 on training aid includes among the eligible costs ‘minimum necessary accommodation costs for trainees who are workers with disabilities’.88 The meaning of the word ‘accommodation’ is, however, equivocal. While it echoes the concept of ‘reasonable accommodation’, it seems to refer to lodging expenses (rather than to reasonable accommodation measures, as defined in Article 2 CRPD).89 The intensity of training aid must not exceed 50 per cent of the eligible costs, but it can be increased ‘by 10 percentage points if the training is given to workers with disabilities or disadvantaged workers’.90 Article 31 acknowledges that the promotion of training of people with disabilities is an important tool to foster social inclusion. This provision might also support Member States in the implementation of Article 27(1) (d) CRPD, which obliges States Parties to ensure ‘effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training’. Finally, the GBER also exempts from notification ‘social aid for transport for residents of remote regions’ when it meets the thresholds laid down in GBER. While not necessarily targeted to people with disabilities, these measures, which normally entail the provision of financial support to individual consumers, might in fact facilitate the mobility of people with disabilities. In that, they may contribute (at least to some extent) to the fulfillment of Article 18 CRPD, which recognizes the rights of persons with disabilities to liberty of movement and to freedom to choose their residence. 4.2

Aid for the Employment of Workers with Disabilities

The GBER includes two categories of aid for workers with disabilities: aid for employment of workers with disabilities,91 and aid compensating for the additional costs of employing workers with disabilities.92 The exemption from notification of those aid measures is not a novelty, as it also featured in the 2008 GBER. The GBER stipulates that aid for the employment of workers with disabilities in the form of wage subsidies and aid compensating for the additional costs of employing workers with disabilities are de jure deemed to have an incentive effect.93 The notification thresholds have remained unchanged in the GBER currently in force compared to the 2008 text;94 they amount to EUR 10 million per undertaking, per year for both aid

Recital 45 of the GBER Preamble. Emphasis added. Recital 55 of the GBER Preamble. Emphasis added. 88 Article 31(3)(d) GBER. 89 On reasonable accommodation, see supra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. Among many others, see generally Anna Lawson, ‘Reasonable Accommodation in the Convention on the Rights of Persons with Disabilities and Non-discrimination in Employment: Rising to the Challenges?’ in Charles O’Mahony and Gerard Quinn (eds), Disability Law and Policy: An Analysis of the UN Convention (Clarus Press 2017) 359–74, p. 326. 90 Article 31(4)(a) GBER. 91 Article 33 GBER. 92 Article 34 GBER. 93 Article 6(5) GBER. 94 The notification threshold had already been increased in 2008 (it was doubled compared to previous regulations). 86 87

State aid law and disability  315 for the employment of workers with disabilities in the form of wage subsidies,95 and aid for compensating the additional costs of employing workers with disabilities.96 In addition, Article 8(6) GBER states: aid in favour of workers with disabilities, as provided for in Articles 33 and 34 may be cumulated with other aid exempted under this Regulation in relation to the same eligible costs above the highest applicable threshold under this Regulation, provided that such cumulation does not result in an aid intensity exceeding 100% of the relevant costs over any period for which the workers concerned are employed.

As noted in a previous piece of research,97 the amount of the threshold is a fully political choice that reflects a subjective ranking of the perceived gravity, or importance, of the objective the aid is aimed to achieve. In that regard, the current (relatively high)98 threshold undoubtedly signals that inclusion of people in the labour market is a political priority in the EU.99 With regard to aid for the employment of workers with disabilities in the form of wage subsidies, Article 33 GBER provides for eligible costs being ‘the wage costs over any given period during which the worker with disabilities is employed’. Wage costs encompass ‘the total amount actually payable by the beneficiary of the aid in respect of the employment concerned’, and comprise ‘the gross wage before tax and compulsory contributions such as social security, child care and parent care costs’.100 The aid intensity shall not exceed 75 per cent of the eligible costs. In order to avoid employers hiring people with disabilities in substitution of other, non-subsidized employees, the recruitment should represent a net increase, compared with the average over the previous year, in the number of employees in the undertaking concerned. Where this is not the case, ‘the post or posts shall have fallen vacant following voluntary departure, disabilities, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy’.101 Except in the case of lawful dismissal for misconduct, workers with disabilities are entitled to continuous employment for a minimum period in compliance with national legislation or collective agreements.102 Article 34 GBER lays down the criteria for aid for compensating the additional costs of employing workers with disabilities. The maximum aid intensity is 100 per cent of the eligible costs. The eligible costs encompass the costs of adapting premises and of employing staff solely to assist the worker with disabilities, the costs of adapting or acquiring and/or validating specific equipment and software and of training staff to assist workers with disabilities, costs directly linked to transport of workers with disabilities to the working place and for work-related activities, and wage costs for the hours spent by a worker with disabilities on

Article 4(1)(p) GBER. Article 4(1)(q) GBER. 97 Ferri and Marquis, ‘Inroads to Social Inclusion in Europe’s Social Market Economy: The Case of State Aid Supporting Employment of Workers with Disabilities’ (n 50). 98 The threshold for aid for the recruitment of disadvantaged workers is, for example, EUR 5 million per undertaking per year (Article 4(1)(r) GBER). 99 See for a discussion of active labour market policies, Miet Vanhegen and Frank Hendrickx, ‘Disability in EU Labour Law beyond Non-discrimination’, in this volume. 100 Article 2(31) GBER. 101 Article 33(3) GBER. 102 Article 33(4) GBER. 95 96

316  Research handbook on EU disability law rehabilitation.103 Where the beneficiary provides sheltered employment,104 the eligible costs include the ‘costs of constructing, installing or modernising the production units of the undertaking concerned, and any costs of administration and transport, provided that such costs result directly from the employment of workers with disabilities’.105 These provisions (and the similar articles in the 2008 GBER) have been widely used by Member States, which have put in place various schemes under Article 33 and 34 GBER. Among many others, of note are the ‘English Aid for disadvantaged workers and for workers with disabilities State Aid scheme’106 and the Spanish scheme ‘Adaptación social y laboral de trabajadores con discapacidad con especiales dificultades de inserción laboral en empresas del mercado ordinario de trabajo’.107 The latter aims to favour the inclusion of persons with disabilities in companies operating in the autonomous region of Castilla la Mancha, and supports the development of the professional skills of workers with disabilities.108 When it comes to the targeted categories of workers, some national schemes, such as the one enacted by Region Friuli Venezia Giulia,109 refer generally to the definition of workers with disabilities provided for in the GBER (which, as seen above, recalls national law). However, some schemes are targeted at certain groups of persons with disabilities who reach a specific ‘degree’ of disability as established under national law, and provide, in an evident attempt to ensure legal certainty on the scope of the aid measures, definitions that are still anchored to the medical model of disability.110

Article 34(2) GBER. Article 2(100) refers to sheltered employment as ‘employment in an undertaking where at least 30% of workers are workers with disabilities’. See Ferri, ‘The New General Block Exemption Regulation and the Rights of Persons with Disabilities: Smoke without Fire?’ (n 83). 105 Article 34(2)(f) GBER. 106 Commission, SA.39062 – United Kingdom – ‘The English Aid for disadvantaged workers and for workers with disabilities State Aid scheme’. 107 Commission, SA.54347 – Spain – ‘ASOC – Adaptación social y laboral de trabajadores con discapacidad con especiales dificultades de inserción laboral en empresas del mercado ordinario de trabajo – GBER Aid for compensating the additional costs of employing workers with disabilities (Article 34)’. 108 A similar scheme was approved in Navarra in 2018 (SA.51032 – Spain – ‘ASOC – Ayudas para la promoción de la integración laboral de las personas con discapacidad en el sistema ordinario de trabajo’) and renewed in 2019 (SA.54311 – Spain ‘ASOC – Promoción de la integración laboral de personas con discapacidad en el sistema ordinario de trabajo 2019’). 109 Commission, SA.49352 – Italy – ‘REGIONE FVG – Regolamento concernente i criteri e le modalità per la concessione dei contributi di cui all’articolo 14 della legge regionale 26 ottobre 2006, n. 20 (norme in materia di cooperazione sociale) a favore delle cooperative sociali e loro consorzi, per l’esercizio della funzione di promozione della cooperazione sociale prevista dall’articolo 10, comma 1, lettera b), della legge regionale 20/2006, nonché per la concessione dei finanziamenti di cui all’articolo 10, comma 1, lettera c), della legge regionale 20/2006 volti a incentivare la stipulazione delle convenzioni di cui all’articolo 5, comma 1, della legge 8 novembre 1991, n. 381’. 110 Article 14 of the Orden 53/2019, de 5 de marzo, de la Consejería de Economía, Empresas y Empleo, por la que se establecen las bases reguladoras para la concesión de subvenciones para el Programa de empleo con apoyo de personas con discapacidad en el mercado ordinario de trabajo [2019/3085] https://​docm​.castillalamancha​.es/​portaldocm/​descargarArchivo​.do​?ruta​=​2019/​04/​01/​pdf/​ 2019​_3085​.pdf​&​tipo​=​rutaDocm accessed 1 February 2020. 103 104

State aid law and disability  317 4.3

Aid to Enhance Accessibility of Cultural Heritage and Cultural Products

The GBER includes two provisions related to aid for culture: Article 53 on culture and heritage conservation, and Article 54 on aid for audiovisual works. These provisions have been included in the text for the purpose of protecting and promoting cultural diversity,111 in compliance with Article 167 TFEU. However, both Articles 53 and 54 contain different, explicit references to persons with disabilities and accessibility, which might support the implementation of Article 30 CRPD on participation in cultural life, recreation, leisure and sport. Article 53 exempts from notification aid for cultural activities such as museums, art galleries or libraries, and cultural heritage (that is, archaeological or historical sites), as well as for intangible heritage in any form, including folklorist customs and crafts and arts events. The aid may take the form of investment aid or operating aid. Regarding investment aid for culture and heritage conservation, the threshold is currently EUR 150 million per project.112 When it comes to operating aid for culture and heritage conservation, the threshold is EUR 75 million per undertaking per year. These high thresholds are based on the ‘limited negative effects on competition of aid for culture and heritage conservation’,113 and also signal the importance that culture reflects in the EU legal framework. Notably, for the purpose of this analysis, the investment aid may take the form of ‘aid for the construction or upgrade of culture infrastructure’,114 and eligible costs for investment aid include ‘costs for improving the accessibility of cultural heritage to the public, including costs for digitisation and other new technologies, costs to improve accessibility for persons with special needs (in particular, ramps and lifts for disabled persons, braille indications and hands-on exhibits in museums)’.115 With regard to operating aid, the eligible costs include, inter alia, the ‘costs of the improvement of public access to the cultural institution or heritage sites and activities including costs of digitisation and of use of new technologies as well as costs of improving accessibility for persons with disabilities’.116

111 Recital 72 of the GBER preamble affirms that ‘[b]ecause of the dual nature of culture, being on the one hand an economic good that offers important opportunities for the creation of wealth and employment, and, on the other, a vehicle of identities, values and meanings that mirror and shape our societies, State aid rules should acknowledge the specificities of culture and the economic activities related to it’. Recital 73 goes on by stating that ‘[a]udiovisual works play an important role in shaping European identities and reflect the different traditions of Member States and regions’. 112 Article 4(1)(z) as amended by Commission Regulation (EU) 2017/1084 amending Regulation (EU) 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) 702/2014 as regards the calculation of eligible costs [2017] OJ L156/1. 113 Recital 12 of the preamble to Commission Regulation (EU) 2017/1084 amending Regulation (EU) 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) 702/2014 as regards the calculation of eligible costs [2017] OJ L156/1. 114 Article 53(3)(a) GBER. 115 Article 53(4)(d) GBER. Emphasis added. 116 Article 53(5)(c) GBER.

318  Research handbook on EU disability law As noted elsewhere,117 the language used in the provision is not fully consistent. While Article 53(4)(c) GBER refers to ‘persons with disabilities’, Article 53(4)(d) GBER mentions ‘persons with special needs’ and, in providing examples of accessibility measures, refers to ‘ramps and lifts for disabled persons’, most likely meaning people with physical disabilities. Despite these linguistic discrepancies, and the missed opportunity for the Commission to fully align with the language of the CRPD and to embrace the social-contextual model, Article 53 represents a step forward in the implementation of Article 30 CRPD. Article 54 GBER exempts from notification aid schemes to support the script-writing, development, production, distribution and promotion of audiovisual works. The aid may take the form of aid for the production of audiovisual works, pre-production aid and distribution aid. As provided by Article 4 GBER, the threshold for these aid schemes is EUR 50 million per scheme per year. From a disability perspective, it is notable that Article 54 lists, among the eligible costs for production aid, ‘costs to improve accessibility for persons with disabilities’.118 Articles 53 and 54 GBER do not include any reference to Article 30 CRPD, but it is undoubtable that they can contribute to nudging Member States towards a more effective implementation of persons with disabilities’ right to participate in cultural life. Between 2014 and 2019, more than 400 schemes adopted by Member States under the GBER provided for aid to support audiovisual production. In some cases, accessibility criteria are included in the national schemes, such as in the case of the Spanish Ayudas a la cinematografía.119 The majority of schemes, however, do not refer to persons with disabilities nor to accessibility explicitly, signaling that the potential for Article 54 to support the implementation of Article 30 CRPD is still largely unexploited. Schemes adopted by Member States between 2014 and 2019 under Article 53 GBER are even more numerous,120 and in most cases provide for direct grants on an ad hoc basis for specific cultural exhibitions or festivals.121 A screening of those measures does not reveal great attention to accessibility for persons with disabilities. While it might not be excluded that these aid schemes contributed to fostering cultural participation of people with disabilities, that was not their primary goal.

5.

CONCLUDING REMARKS

This chapter is premised on the assumption that the EU State aid rules are targeted at ensuring free and undistorted competition in the internal market. However, especially after the entry into force of the Treaty of Lisbon, those rules have acquired a more visible ‘social

117 Ferri, ‘The New General Block Exemption Regulation and the Rights of Persons with Disabilities: Smoke Without Fire?’ (n 83). 118 Article 54(5)(a) GBER. 119 SA.51771 CULT – Ayudas a la cinematografía (Modificación SA.44158) Orden CUD/769/2018, de 17 de julio, por la que se establecen las bases reguladoras de las ayudas previstas en el Capítulo III de la Ley 55/2007, de 28 de diciembre, del Cine, y se determina la estructura del Registro Administrativo de Empresas Cinematográficas y Audiovisuales [2019] Boletin Oficial del Estado www​.boe​.es/​boe/​dias/​ 2018/​07/​19/​pdfs/​BOE​-A​-2018​-10176​.pdf accessed 1 February 2020. 120 A search on the State aid cases database of the Commission shows approximately 3,000 measures. 121 See, for example, Commission, ‘State Aid SA.55528 – Italy – Partecipazione della Regione alle attività dell'anno 2019 della Fondazione Musica per Roma’.

State aid law and disability  319 dimension’.122 The discussion conducted has attempted to show that, after the ratification of the CRPD, this ‘social dimension’ has slowly, and to varying degrees, come to encompass a distinct ‘disability dimension’. First, the Commission has allowed, within the remit of the exceptions laid down in Article 107(2)(a) TFEU and Article 107(3) TFEU, aid measures aimed to enhance the rights of persons with disabilities. Most of those measures were geared towards fostering accessibility or, in many cases, the right to access to information and communication. While the ‘disability dimension’ of aid approved under Article 107(2)(a) is more explicit, aid schemes approved under Article 107(3) only indirectly enhance the rights of persons with disabilities. The so-called cultural derogation under Article 107(3)(d) TFEU is probably the one that has so far allowed for national aid measures which can (more explicitly) support the implementation of the CRPD. Second, the ‘disability dimension’ is evident in the adoption of specific criteria for the analysis of the compatibility of State aid for the employment of workers with disabilities with the internal market under Article 107(3) TFEU. The adoption of those criteria signals the importance of inclusion of people with disabilities in the open labour market and the willingness of the EU to facilitate the active labour market policies of the Member States. Interestingly, however, the application of those criteria has been insignificant, as almost all aid schemes adopted after 2008 fell within the scope of application first of the 2008 GBER, and then of the GBER after 2014, and so were exempted from notification. Third, the GBER includes a prominent ‘disability dimension’, even though, arguably, disability rights are not mainstreamed in the Regulation. Two categories of aid can more overtly contribute to the implementation of the CRPD: aid for workers with disabilities and aid for culture and heritage conservation. With regard to the former, the GBER has allowed the adoption of several national aid schemes to compensate the costs of employing people with disabilities or to support companies hiring people with disabilities through wage subsidies. However, until now, there are no studies that confirm the usefulness of those national schemes in increasing the number of workers with disabilities in the open labour market. In fact, data consistently show that employment levels of people with disabilities are still quite low.123 Kopycińska and Kryńska suggest that employment rates of people with disabilities in the EU have not significantly improved and continue to be definitively worse than those of people without disabilities.124 These schemes also seem to facilitate the adoption of reasonable accommodations in the workplace. Nonetheless, the extent to which employers rely on such schemes to hire workers with disabilities and to provide reasonable accommodation is unclear. With regard to the exemption for cultural aid, the reference to accessibility is noteworthy and signals the awareness that State aid can be an effective tool to protect and promote the right of persons with disabilities to participate in culture. The national schemes adopted under these exemptions do not, however, encompass significant accessibility provisions. In November 2018, an amendment to the Enabling Regulation was approved in order to empower the Commission to make targeted modifications to the GBER. Further to the enact-

Ferri and López, ‘The Social Dimension of EU State Aid Law and Policy’ (n 20). Commission, ‘Progress Report on the Implementation of the European Disability Strategy (2010–2020)’ SWD (2017) 29 final. 124 Danuta Kopycińska and Elżbieta Kryńska, ‘Employment of the Disabled in the EU in the Framework of Europe 2020 Strategy’ (2015) 8(3) Journal of International Studies 9. 122 123

320  Research handbook on EU disability law ment of the amended Enabling Regulation, the Commission proposed to streamline the State aid rules applicable to national funding of projects or financial products which fall under the scope of certain EU programmes, improving the interplay between EU funding rules and EU State aid law.125 In that connection, while leaving intact the exemptions currently included in it, the Commission has proposed to extend the application of the GBER, under a set of conditions, to: national funds involved in financing and investment operations supported by the InvestEU Fund;126 Research, Development and Innovation (RD&I) projects funded under Horizon Europe and its successor; and projects funded under the Interreg policy.127 The Commission intends to simplify the legal framework, but it is committed to ensure that the support granted in the context of those EU programmes targets objectives of common interest and socio-economic cohesion, or addresses a well-defined market failure.128 As argued by Nicolaides, the revision of the Enabling Regulation and the consequent amendment of the GBER ‘will not change anything substantive’.129 In fact, for the purpose of this analysis, it seems clear that the proposed revision will not impact on the ‘disability dimension’ of the GBER.130 In sum, it is undeniable that EU State aid law and policy has displayed significant potential to enhance disability rights generally. The derogation provided for in the Treaty and the GBER allows for significant leeway for Member States that wish to use subsidies or tax benefits to promote the implementation of the CRPD. Moreover, the Commission has considered State aid as an important policy option to promote the right to work of persons with disabilities. However, the Commission has not yet fully mainstreamed disability in State aid law and policy, and the extent to which Member States have used aid measures to effectively protect and promote disability rights is still quite limited.

125 The results of the consultation launched in June 2019 were published on 15 January 2020 at https://​ ec​.europa​.eu/​competition/​consultations/​2019​_gber/​index​_en​.html accessed 2 February 2020. 126 The InvestEU Fund aims to provide for an EU guarantee to support financing and investment operations to address specific market failures and mobilize private and public investment in support of certain Union’s internal policies: see https://​ec​.europa​.eu/​commission/​priorities/​jobs​-growth​-and​ -investment/​investment​-plan​-europe​-juncker​-plan/​whats​-next​-investeu​-programme​-2021​-2027​_en accessed 2 February 2020. It is also worth recalling that the Commission proposed the establishment of a new ‘InvestEU Fund’ in 2018. Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing the InvestEU Programme’ COM (2018) 439. 127 On Interreg funding, see https://​ec​.europa​.eu/​regional​_policy/​en/​policy/​cooperation/​european​ -territorial/​accessed 2 February 2020. 128 See the Explanatory Note available at https://​ec​.europa​.eu/​competition/​consultations/​2019​_gber/​ index​_en​.html accessed 2 February 2020. 129 Phedon Nicolaides, ‘Revision of the GBER’ (State Aid Hub, 3 July 2018) http://​stateaidhub​.eu/​ blogs/​stateaiduncovered/​post/​9263 accessed 2 February 2020. 130 Some of the projects funded under those EU programmes are likely to address accessibility, accessible technologies or issues relevant to people with disabilities. However, the amendment proposed will not in any way foster those aspects.

18. EU structural and investment funds and disability Emma McEvoy

1. INTRODUCTION The European Union (EU)’s Regional Policy aims to support job creation, business competitiveness, economic growth and sustainable development, and to improve citizens’ quality of life.1 Within the remit of this policy, the EU Structural and Investment Funds (ESI Funds) are the main investment tool available to financially support the Member States in delivering the Regional Policy’s ambitious objectives. The ESI Funds account for more than half of all EU funding, making them an important vehicle for securing a more inclusive, accessible and equal Union for persons with disabilities.2 More specifically, EU Member States in receipt of ESI Funds are tasked with using the Funds to invest in accessible employment opportunities, and to support a sustainable, innovative and inclusive European economy. Hence, undoubtedly, the Funds are one of the key instruments to implement the rights of persons with disabilities across the EU. Historically, the European Funds have pursued social goals and have aimed to foster a sustainable pan-European growth. The European Social Fund (ESF) was introduced in 1957 to support the delivery of one of the founding aims of the Treaty of Rome, namely that of promoting the harmonious development of economic activities in the entire Community. Early objectives of the ESF focused on facilitating employment by investing in creating employment training opportunities.3 The European Regional Development Fund (ERDF) was established in 1975 to reduce economic disparities and encourage competition between regions.4 The founding rounds of the Funds focused on securing social outcomes, such as improving employment rates and reducing poverty, by improving economic growth and competition in the former Community.5 However, the ability of the Funds to drive effective policy change was harshly criticized.6 One of the main criticisms concerned their inability to generate employment, as the 1 Commission, ‘Communication on Maximising the Contribution of European Structural and Investment Funds’ COM (2015) 639 final. 2 Commission, ‘European Structural and Investment Funds 2014–2020 2018: Summary Report of the Programme Annual Implementation Reports Covering Implementation in 2014–2017’ COM (2018) 816 final. 3 Paul Ainsworth and Simon Marlow, Early Impacts of the European Social Fund 2007–13 (Department for Work and Pensions UK 2011). 4 See generally Jacqueline Brine, ‘The European Social Fund and the Vocational Training of Unemployed Women: Questions of Gendering and Re‐Gendering’ (1992) 4(1–2) Gender and Education 149. 5 Jacqueline Brine, The European Social Fund and the EU: Flexibility, Growth, Stability (Sheffield Academic Press 2002) 10. 6 The criticism voiced centred on the policy-making capacity of the Community in different policy sectors. See inter alia Simon Bulmer, ‘Domestic Politics and European Community Policy-Making’

321

322  Research handbook on EU disability law Funds predominantly focused on investing in vocational training, rather than on the creation of employment opportunities.7 In light of those critical views, the objectives of the Funds were modified several times after their implementation and were extended to supporting basic employment skills and promoting the inclusion of disadvantaged and excluded members of society.8 Over the past 20 years the objectives of the ESI Funds have been broadened significantly, with the Funds now being recognized as a proactive instrument of European policy and equitable distributor of regional finances.9 The social imprinting of the rules has never been so evident as in the current period of the 2014–2020 ESI Funds, which implements the Europe 2020 Strategy – designed to develop a ‘smarter, inclusive and more sustainable’ Union.10 Within the remit of this overarching social goal, the protection of the rights of persons with disabilities has become more prominent, and non-discriminatory and inclusive actions are prerequisites for funding under the ESI. Unsurprisingly, the increasing prominence of the rights of persons with disabilities, and the more widespread use of the funds for improving their living standards and fostering their inclusion in society, is a result of the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) by the EU.11 Further to this introduction, section 2 provides a brief overview of the ESI Funds and the objectives that they pursue. Section 3 offers an overview of the key provisions of the ESI Funds which support the protection and promotion of the rights of persons with disabilities, while the subsequent sections pay particular attention to those relating to non-discrimination and accessibility (section 4), social inclusion (section 5) and the facilitation of transitioning from institutional living to community living (section 6).12 For the most part, this chapter will focus on the ESF and the ERDF, analysing how the Funds are currently used and can be used to protect and promote the rights of persons with disabilities. As the period of the current Funds is coming to an end, the chapter further offers a brief summary of proposed changes to the current regulations governing the ESI Funds (section 7).13 The concluding remarks in section 8 aim to highlight how, in the next period of funding, the ESI regulations should pro-

(2008) 21 Journal of Common Market Studies 349. See also Helen Wallace, William Wallace and Carole Webb, ‘Policy-Making in the European Communities’ (John Wiley & Sons 1977) 315. 7 Brigid Laffan, ‘Policy Implementation in the European Community: The European Social Fund as a Case Study’ (1982) 21(4) Journal of Common Market Studies 389. 8 Terry Moreton, ‘European Support for People with Disabilities’ (1992) 21(6) Personnel Review 74. 9 David Rinaldi and Nuñez Ferrer, ‘The European Fund for Strategic Investments as a New Type of Budgetary Instrument’ (European Parliament 2017). 10 Commission, ‘Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth’ (2010) COM 2020 final. Emphasis added. 11 See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 12 By ratifying the CRPD, the EU and all its Member States have committed to realizing the right of persons with disabilities to live independently in the community, which is laid out in Article 19 CRPD. A key issue under this CRPD provision is that of deinstitutionalization for those persons with disabilities living in institutional settings. On the content of Article 19 CRPD and obligations laid out in this provision, see Giuseppe Palmisano, ‘Article 19’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 353–73. 13 The next period of Funds will operate from 2021 to 2027.

EU structural and investment funds and disability  323 gressively build on the social improvements included in the 2014–2020 rules, in particular to protect persons with disabilities’ right to live independently and be included fully in society.

2.

EUROPEAN UNION STRUCTURAL AND INVESTMENT FUNDS 2014–2020

The ESI Funds comprise several programmes, including the ERDF, the ESF, the Cohesion Fund, the European Agricultural Fund for Rural Development (EAFRD) and the European Maritime and Fisheries Fund (EMFF). Together these funds work to support local and regional projects, to promote employment and contribute to a sustainable and inclusive economy. Each programme period, which lasts seven years, pivots on key priority areas identified to address the challenges and barriers that contribute to causing socio-economic disparities between regions.14 The ESI Funds support investment in the areas of research and innovation, digital technologies, supporting a low-carbon economy, sustainable management of natural resources and small business growth.15 On the whole, the 2014–2020 ESI Funds’ programmes revolve around 11 investment priority objectives, known as ‘thematic objectives’, which are intended to support the smart, sustainable and inclusive growth envisaged in the Europe 2020 Strategy. Those objectives are:16 Strengthening research, technological development and innovation; Enhancing access to, and use and quality of information and communication technologies; Enhancing the competitiveness of small and medium-sized enterprises (SMEs); Supporting the shift towards a low-carbon economy; Promoting climate change adaptation, risk prevention and management; Preserving and protecting the environment and promoting resource efficiency; Promoting sustainable transport and removing bottlenecks in key network infrastructures; Promoting sustainable and quality employment and supporting labour mobility; Promoting social inclusion, combating poverty and any discrimination; Investing in education and training for skills and lifelong learning; and Enhancing the capability of public authorities and efficient public administration.

The individual ESI Funds are directed by those relevant thematic objectives. In particular, the ERDF investment programmes are underpinned by objectives 1–4, while those listed under 8–11 above are the key thematic goals for the ESF. The thematic objectives are complemented by the broader principles of the promotion of equality between men and

14 For example, the underpinning objectives of the previous 2007–2013 Cohesion Policy framework focused on strengthening economic and social cohesion by reducing development disparities between the regions. See Article 3 of Council Regulation (EC) 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund [2006] OJ L210/25. 15 Commission, ‘Communication on Maximising the Contribution of European Structural and Investment Funds’ (n 1). 16 Article 9 Regulation (EU) 1303/2013 laying down common provisions on the ERDF, the ESF, the CF, the EARFD and the EMFF and laying down general provisions on the ERDF, the ESF, the CF and the EMFF [2013] OJ L347/320 (Common Provisions Regulation (CPR)).

324  Research handbook on EU disability law women, non-discrimination and accessibility.17 Furthermore, designated mission objectives are attached to each of the Funds. The ERDF aims to correct economic and social imbalances between Member States by funding programmes which promote innovation and research, the digital agenda and low-carbon economies, and activate small and medium-sized enterprises.18 It is used to invest in education, research and job creation, and to protect the environment and support social inclusion. In the current period, approximately EUR 4.5 billion has been made available in the ERDF for social infrastructure projects which aim to promote the social inclusion of children, older people and persons with disabilities.19 In particular, funding has been made available to support investment in small-scale infrastructure to improve access to social, cultural and recreational services for persons with disabilities and older persons.20 This includes investment in community-based services, home adaptations, social housing for people transitioning from institutional care and childcare infrastructure.21 The Cohesion Fund primarily aims to correct the economic and social disparities between Member States, and to support less developed regions. Member States which demonstrate a Gross National Income (GNI) per inhabitant that is less than 90 per cent of the EU average can apply for financial support under this Fund.22 The Cohesion Fund is normally used to finance infrastructure, transport and efficient energy projects. Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia and Slovenia were all in receipt of Cohesion Funds in the 2014–2020 programme period. The EU Cohesion Policy (and the Cohesion Fund that is tied to it) supports the social inclusion of persons with disabilities in the labour market.23 However, while all EU Member States may qualify for funding from the ERDF and the ESF, the Cohesion Fund is only available to less developed regions. The EAFRD supports the delivery of the objectives set out in the Common Agricultural Policy (CAP). The EAFRD offers support for projects which foster knowledge transfer and promote energy efficiency and competitiveness in agriculture, forestry and rural areas.24 One of the key priorities of the EAFRD is to promote social inclusion and economic development 17 Additional principles include sustainable development, addressing demographic change, climate change mitigation and adaptation (Articles 5, 7 and 8 CPR). 18 Article 3 Regulation (EU) 1301/2013 on the European Regional Development Fund and on specific provisions concerning the investment for growth and jobs goal [2013]OJ L347/289 (European Regional Development Fund – ERDF – Regulation). 19 Christiaan van Lierop, ‘Cohesion Policy and Disability’ (European Parliament 2017) www​ .europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2017/​599305/​EPRS​_BRI(2017)599305​_EN​.pdf accessed 30 March 2020. 20 Commission, ‘Strategic Report 2019 on the Implementation of the European Structural and Investment Funds’ COM (2019) 627 final. 21 Valdani Vicari and Associates, Center for Industrial Studies, and Instituto per la Ricerca Sociale, ‘Analysis of ERDF Support for Inclusive Growth in the 2014–2020 Programming Period’ (European Commission 2017) https://​ec​.europa​.eu/​regional​_policy/​sources/​docgener/​studies/​pdf/​erdf​_support​ _inclusive​_growth​_en​.pdf accessed 30 March 2020. 22 Preamble, Recital 77 CPR. 23 This policy objective also includes supporting the inclusion of younger and older workers, low-skilled workers, migrants and ethnic minorities, people who live in deprived areas and women in the labour market. 24 Regulation (EU) 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) [2013] OJ L347/487.

EU structural and investment funds and disability  325 in rural areas. One way this can be achieved is through the development of inclusive models of business which support the creation of employment opportunities for people who are underrepresented in enterprise. Importantly, for the purpose of this analysis, a more direct action is the facilitation of access to basic services for persons with disabilities living in rural and remote areas, and who are at risk of social exclusion. The EMFF assists the effective delivery of the objectives of the Common Fisheries Policy. This extends to ensuring that aid provided is used in a non-discriminatory manner.25 One way this objective is delivered is through the requirement for accessible on-shore working conditions suitable for the needs of disabled employees. Additional general financial support is available through the European Union Solidarity Fund (EUSF) and the Instrument for Pre-Accession Assistance (IPA). The former offers financial support to assist with recovery from natural disasters, and the latter provides assistance for EU candidate and potential candidate countries. The general principles of non-discrimination and accessibility are cross-cutting objectives which are also embedded in those strands of EU investment policies and frameworks. The ESI Funds, combined, play a pivotal role in attaining the economic and social participation of persons with disabilities in society. The Funds have the potential to be used to fully implement the European Disability Strategy 2010–2020 (EDS) and the CRPD.26 In particular, the Funds can and should be used to empower people with disabilities and allow them to access employment and education opportunities, to avail themselves of high quality health and social services and to transition from institutional living to community-based care. While the social imprinting of the ERDF, Cohesion Fund, EAFRD and EMFF streams, and their potential to contribute to the protection of disability rights, is evident, the main fund for improving social inclusion and achieving accessible and equal employment and education opportunities for persons with disabilities is the ESF, as will be discussed further in the remainder of this chapter. The ESF provides investment funds to protect the most vulnerable people in society. More than EUR 80 billion is allocated to the ESF for the 2014–2020 round of programmes.27 During this period, the ESF has focused on the delivery of four thematic objectives: promoting employment and labour mobility; promoting social inclusion and combating poverty; investing in education, skills and lifelong learning; and improving public administration.28 Brine comments that the historic flexibility of the ESF has allowed for the Fund to greatly change and extend the priority objectives to respond to emerging socio-economic challenges, thus making it an effective instrument for delivering EU policy objectives.29

Regulation (EU) 508/2014 on the European Maritime and Fisheries Fund [2014] OJ L149/1. Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 27 Commission, ‘Communication on Maximising the Contribution of European Structural and Investment Funds’ (n 1). 28 Article 9 CPR. 29 Brine, The European Social Fund and the EU: Flexibility, Growth, Stability (n 5) 106. 25 26

326  Research handbook on EU disability law

3.

THE ESI FUNDS’ REGULATIONS

3.1

Introductory Overview of the Regulations

The legal basis for Structural Funds can be found in Articles 174 and 175 of the Treaty of the Functioning of the European Union (TFEU), which require the Union to reduce disparities between the levels of development in European regions.30 The 2014–2020 ESI Funds are governed by the Common Provisions Regulation (CPR),31 the European Regional Development Fund Regulation (ERDF Regulation)32 and the European Social Fund Regulation (ESF Regulation).33 The CPR sets out the common provisions and general principles for all of the ESI Funds. It establishes the rules concerning programming, monitoring and evaluation, management and control. The CPR outlines the thematic objectives of the Funds, their scope, specific provisions and the types of expenditure eligible for assistance.34 The promotion of the rights of persons with disabilities is threaded gently through each of the ESI Regulations. For example, the ESF Regulation stipulates that at least 20 per cent of the total ESF capital is allocated to supporting the delivery of thematic objective 9: promoting social inclusion, combating poverty and any discrimination.35 This includes funding for the Youth Employment Initiative (YEI)36 and projects which aim to break down barriers to education and employment opportunities for people who are at risk of social exclusion and long-term unemployment. The ERDF Regulation sets out the specific provisions concerning the investment for growth and jobs which can be funded by the ERDF.37 The CPR is supported by the Common Strategic Framework, which provides guidance to Member States on how to implement the ESI Funds in alignment with the Europe 2020 Strategy’s priorities. In that regard, the Framework offers advice on the implementation of the horizontal and cross-cutting policy objectives of non-discrimination, accessibility and sustainable development.38 The inclusion of social considerations alone is not sufficient to achieve the objectives of reducing poverty and social exclusion. Polverari et al and Bachtler et al have raised concerns regarding the ability of previous ESI Funds’ policy to prove effectiveness and demonstrate 30 Articles 174 and 176 TFEU are the basis for the ERDF. Articles 162 and 174 TFEU are the basis for the European Social Fund (ESF). 31 Regulation (EU) 1303/2013 laying down common provisions on the ERDF, the ESF, the CF, the EARFD and the EMFF and laying down general provisions on the ERDF, the ESF, the CF and the EMFF [2013] OJ L347/320 (Common Provisions Regulation (CPR)). 32 Regulation (EU) 1301/2013 on the European Regional Development Fund and on specific provisions concerning the Investment for growth and jobs goal [2013]OJ L347/289 (European Regional Development Fund – ERDF – Regulation). 33 Regulation (EU) 1304/2013 on the European Social Fund and repealing Council Regulation (EC) No 1081/2006 (European Social Fund – ESF – Regulation). 34 Investment for the ‘Youth Employment Initiative’ (YEI) is integrated into the ESF. The Youth Employment Initiative exclusively supports young people who are not in education, employment or training (NEETs), including the long-term unemployed or those not registered as job-seekers. 35 Article 4(2) ESF Regulation. 36 See https://​ec​.europa​.eu/​social/​main​.jsp​?catId​=​1176 accessed 30 March 2020. 37 Article 3 ERDF Regulation. 38 Annex I, Common Strategic Framework, CPR.

EU structural and investment funds and disability  327 value for money.39 Lack of institutional support at the national level for reviewing and monitoring the implementation of the programmes has previously inhibited the effectiveness of the socially driven objectives set out in the ESI Funds’ framework. To address both of these concerns, specific amendments were introduced in the current ESI Funds’ Regulations. First, additional evaluation measures were introduced to streamline national and regional reviews and auditing procedures. Second, the rules included several new ex ante conditionalities to safeguard the implementation of the priority objectives.40 These two issues will be explained in the sub-sections below. 3.2

Evaluation Measures and Auditing Procedures

In relation to the first amendment, further onus has been placed on EU Member States to monitor, review and report on the use and strategic impact of the funds. At the start of each programme period, Member States are required to lay out a ‘Partnership Agreement’, which establishes a strategy for the implementation of the ESI Funds at the national level. The agreement sets out how each Member State plans to implement the Funds in line with the Europe 2020 Strategy and the European Semester’s Country-Specific Recommendations.41 As discussed later in this chapter, some of the Member States’ individual recommendations include the requirement to manage the transitioning for persons with disabilities from institutional care to community living with appropriate living supports. Member States must demonstrate adherence to the Partnership Agreement throughout the entirety of the programme period.42 One of the key reforms introduced to the ESI Funds was the introduction of ex ante conditionalities, which set out sector-specific and cross-cutting horizontal conditions. The conditionalities set out requirements that had to be put in place before the funds were disbursed. The conditionalities incentivized Member States to review investment policies, to implement the broader social goals of the ESI framework.43 The Member States propose the investment programmes – the ‘operational programmes’ – which can be supported by the ESI Funds and are designed to tackle the individual policy areas identified in the partnership agreements. Member States can apply for funding from any of the ESI Funds, provided that the programme meets the necessary qualification criteria. Although Member States propose the operational programmes, the actual projects are carried out by a variety of public and private bodies. Public authorities, companies, non-governmental organizations (NGOs), charities, employee representatives, among others, can apply for

39 Laura Polverari and John Bachtler, Balance of Competences Cohesion Review: Literature Review on EU Cohesion Policy (2014) Final Report to the Department for Business, Innovation and Skills, February 2014; John Bachtler, Iain Begg, David Charles and Laura Polverari, EU Cohesion Policy in Practice: What Does it Achieve? (Rowman and Littlefield International 2016). 40 Laura Polverari, ‘The New Ambitions for 2014–2020 European Structural and Investment Funds Evaluation: Pouring Water in a Leaking Container?’ (2016) 4(2) European Structural and Investment Funds Journal 59. 41 On the European Semester, see https://​ec​.europa​.eu/​info/​business​-economy​-euro/​economic​ -and​-fiscal​-policy​-coordination/​eu​-economic​-governance​-monitoring​-prevention​-correction/​european​ -semester​_en accessed 30 March 2020. 42 Articles 14–16 CPR. 43 Commission, ‘The Value Added of Ex-ante Conditionalities in the European Structural and Investment Funds’ SWD (2017) 127 final.

328  Research handbook on EU disability law funding, either as sole project holder or jointly as part of a project consortium. Public or private bodies in receipt of funding are referred to as ‘beneficiaries’.44 Notably, for the purpose of this analysis, those beneficiaries can include organizations who represent persons with disabilities. Individuals who take part in a funded project, such as people seeking training to gain meaningful employment, public officials receiving training supports or people transitioning from institutional care to community-based living, are referred to as ‘participants’.45 Each Member State coordinates the management, auditing and monitoring of awarded funded projects.46 These responsibilities are normally conferred upon national, regional or local public authorities, known as ‘managing authorities’, which support the implementation of the awarded projects. Detailed auditing and certification measures must be put in place, to ensure the proper use of the funds and to assess progress levels.47 The appointed managing authorities in the Member States must complete Annual Implementation Reports (AIR) to assess project and financial progress, and to report on the achievement of the overriding goals of the ESI Funds’ thematic objectives.48 Furthermore, Article 175 TFEU requires the publication of ‘Cohesion Reports’ every three years by the Commission. Those reports, which appraise the socio-economic situation in EU regions, ought to be submitted not only to the European Parliament, Council of the EU, but also to the Economic and Social Committee and Committee of the Regions. The reports published in the second half of the programme periods assist in the design of thematic objectives for the subsequent round of funding.49 Enhanced reporting, assessment and monitoring in a transparent manner is essential to prove (or, in certain circumstances, disprove) the effectiveness of the programmes at regular intervals over the funding period. The updated Article 5 of the CPR has enhanced the role of programme authorities, public bodies, civil society organizations, including organizations which represent persons with disabilities, in overseeing and reviewing the implementation of funded projects. This Article has, in fact, established the development of strategic partnerships with civil society organizations as a horizontal principle of the rules, providing the possibility for civil society organizations to be included in all phases of the implementation of the Funds. This means that civil society organizations, including these representing people with disabilities, now have the same voting rights in monitoring committees as regional authorities and social partners. The participation of civil society organizations and NGOs in projects promoting social inclusion, gender equality and equal opportunities is also specifically supported by Article 6 of the ESF Regulation. Moreover, open reporting of data further assists analysts and academics assessing if value

Article 13 CPR. Approximately 5,265,600 participants with disabilities benefited from ESF-supported interventions from 2007 to 2013. See Commission, ‘ESF Ex-post Evaluation Synthesis 2007–2013’ (European Commission 2016) 108. 46 Article 124 CPR. 47 The managing authorities are responsible for establishing an auditing body and certification body to conduct financial and management reviews of the operational programmes. 48 This requirement only came into force in 2016. Furthermore, Member States were required to complete two further reports of the implementation of the ESI Funds at the Partnership Agreement Level in 2017 and 2019. 49 See generally Lewis Dijkstra, ‘Seventh Report on Economic, Social and Territorial Cohesion’ (European Commission 2017) https://​ec​.europa​.eu/​regional​_policy/​sources/​docoffic/​official/​reports/​ cohesion7/​7cr​.pdf accessed 30 March 2020. 44 45

EU structural and investment funds and disability  329 for money is being achieved, and verifying if the levels of poverty and prevalence of social exclusion among vulnerable groups is being reduced.50 3.3

Ex Ante Conditionalities

The second important innovation introduced by the 2014–2020 CPR is the inclusion of obligations intended to improve the results orientation of programme design and implementation. Those obligations, named as ‘ex ante conditionalities’, were in fact introduced to ensure compliance with the overall Cohesion Policies. In substance, those ‘ex ante conditionalities’ established a set of pre-conditions to be met before funding could be granted.51 They entail concrete and specifically defined factors which are key to the effective attainment of the specific objective connected to relevant EU investment priorities. Seven general ex ante conditionalities relate to the horizontal objectives,52 while 29 are sector-specific thematic conditionalities.53 The Regulations establish that ‘[t]he failure to complete actions to fulfil an applicable ex-ante conditionality which has not been fulfilled at the date of submission of the Partnership Agreement, shall constitute a ground for suspending interim payments by the Commission’.54 Member States were required to implement relevant sector-specific and horizontal ex ante conditionalities by 2016. Member States that had failed to implement the ex ante conditionalities by this time had to demonstrate to the Commission their plans to fulfil any outstanding conditionalities, to prevent the suspension of the funds.

4.

DISABILITY, NON-DISCRIMINATION AND ACCESSIBILITY

The ESI Fund Regulations for the period 2014–2020 for the first time make a specific reference to the Charter of Fundamental Rights of the EU (CFR or Charter)55 as well as the CRPD, with the view that ESI Funds can contribute to the achievement of the rights provided for in these instruments. More specifically, for the purpose of this chapter, the CPR and the other Funds’ Regulations have increased and deepened the provisions related to disability by including the horizontal principles of non-discrimination and accessibility,56 as well as general ex ante conditionalities on anti-discrimination and disability,57 and by adding the thematic ex ante 50 Member States are requested to comply with the ESI Funds Open Data Strategy to make available certain data for the Commission’s open data platform. 51 Article 19 CPR. 52 Annex XI, part one, CPR. 53 Annex XI, part two, CPR. 54 Articles 15(1) and 19 CPR. While the threat of funds suspension has encouraged Member States to demonstrate their commitment to the specific objectives, Kölling warns that financial penalities may be counterproductive. Reducing financial support can inadvertently hinder the Member States in meeting the conditionalities, and will further limit the supports available to the disadvantaged members of society. Kölling calls for the Commission to review the conditionality requirements in the next 2021–2027 Funds programme. See Mario Kölling, ‘Policy conditionality a new instrument in the EU budget post-2020’ (2017) Swedish Institute for European Policy Studies, European Policy Analysis 1. 55 Charter of Fundamental Rights of the European Union [2000] OJ C364/1. 56 Article 7 CPR. 57 General ex ante conditionality 1 and 3 CPR.

330  Research handbook on EU disability law conditionality 9 on promoting social inclusion, combating poverty and any discrimination.58 The latter conditionality implies that funds must be used in a manner which takes into account the need to ensure accessibility for persons with disabilities. In other words, recipients must guarantee that each phase of expenditure, use, monitoring and evaluation related to the Funds fulfils accessibility requirements for persons with disabilities. Article 7 of the CPR requires the expenditure of all Funds to promote equality on the ground of gender and prohibits the Funds from being used in a discriminatory manner. This provision, combined with the general ex ante conditionality on non-discrimination, requires the Commission, the Member States, Fund recipients and managers to take all appropriate measures to prevent discrimination based on disability. Member States and participating partners applying for Structural Funds must demonstrate compliance with ex ante conditionality 9, in order to be considered eligible for the Funds. This extends to requiring participating bodies to demonstrate how they plan to effectively comply with the non-discrimination provision set out in the EU equal treatment Directives 2000/78/EC and 2000/43/EC.59 Compliance with this conditionality is reviewed by the monitoring committees of the operational programmes. The most recent European Commission assessment report positively noted high compliance levels with the general ex-ante conditionalities on non-discrimination and disability,60 with Member States demonstrating that these general conditionalities were fulfilled at a level of 75 per cent across the Union by 2016.61 However, some Member States, including Estonia, Croatia, Hungary, Italy, Latvia, Poland and Slovakia, struggled to meet the staff training requirement attached to the conditionalities. Lack of adequate training in these Member States resulted in the ineffective application of the conditionalities from the outset.62 The inclusion of the general pre-condition on accessibility did not automatically result in its desired outcomes. A study conducted in 2015 by the European Association of Service Providers for Persons with Disabilities (EASPD)63 identified several concerns regarding the accessibility of programme calls and application forms.64 Several interested organizations noted that the programme calls were not adequately user-friendly, and were unduly administratively burdensome for smaller organizations (with less experience) that wished to access structural Funds.65 Smaller organizations and service providers were further hindered from

See B.3 Disability, and thematic ones, A.2-1 Digital growth, A.7-1 Transport, A.9-3 Health. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16; Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 60 Commission, ‘The Value Added of Ex-ante Conditionalities in the European Structural and Investment Funds’ (n 43). 61 Ibid 9. 62 Commission, ‘The Implementation of the Provisions in Relation to the Ex-ante Conditionalities During the Programming Phase of the European Structural and Investment (ESI) Funds Final report – Annex’ (2016) https://​ec​.europa​.eu/​regional​_policy/​sources/​policy/​how/​studies​_integration/​impl​ _exante​_esif​_annex​_en​.pdf accessed 23 March 2020. 63 The European Association of Service Providers for Persons with Disabilities (EASPD) is an umbrella organization that promotes the social services and those who provide services to persons with disabilities. For further information on the EASPD, see www​.easpd​.eu/​en accessed 3 March 2020. 64 Thomas Bignal, ‘Simplifying European Structural and Investment Funds for Social Service Providers’ (EASPD 2015) www​.easpd​.eu/​sites/​default/​files/​sites/​default/​files/​5​.2​.1​_report​_esif​ _simplification​_for​_service​_providers​.pdf accessed 23 March 2020. 65 Ibid 12. 58 59

EU structural and investment funds and disability  331 applying for relevant programmes due to the restrictions put in place only allowing for local, regional or national authorities to apply for the Funds. When smaller organizations were permitted to apply for available programmes, they were faced with the additional hurdle of trying to compete against larger, more experienced competitors.66 Smaller organizations representing persons with disabilities further expressed difficulties in applying for relevant funding opportunities, as the programme calls were published within a short period of each other. As organizations may only apply for one programme at any time, this limits the number of programmes that organizations can apply for, thus inadvertently reducing their chances of success. If the lower-value programmes aimed at the promotion of the rights of persons with disabilities were spread out more evenly, it would potentially increase the number of organizations successfully bidding for funded programmes. Another issue facing smaller organizations representing persons with disabilities relates to the prolonged payment process, which often results in the organizations relying on their own limited capital to manage the operation of the programmes. The EASPD report further questioned the relevance of the subject matter of the programmes ring-fenced for persons with disabilities.67 A significant proportion of the available programmes focused primarily on employment and improving employability skill-sets. The report raised concerns on the limited allocation of available funding for personal assistance services and non-employment related training courses.68 On the whole, nevertheless, it must be recognized that Member State participants are widely complying with the general requirements laid out in the ex ante conditionalities on accessibility, non-discrimination and disability – although the proportion of fulfilled thematic ex ante conditionalities was significantly less, at 58 per cent.69 Arguably, the thematic ex ante conditionalities include the most progressive provisions for persons with disabilities, namely, the requirement to support the transition from institutional living to community-based care, which will be examined below.

5.

TRANSITIONING FROM INSTITUTIONAL SETTINGS TO COMMUNITY CARE

It has long been accepted that community-based care improves the quality of life of persons with disabilities, compared to institutional care, provided that the community-based care is appropriately supported and based on a person-centred approach.70 It is also widely accepted

66 Miroslav Sipikal, ‘Political and Administrative Barriers of Cohesion Policy Implementation in Slovakia’ (2015) 4(2) International Journal of Social Sciences 39; Andrzej Bukowski, Kaja Gadowska and Paulina Polak, ‘Barriers and Obstacles in the Process of Awarding and Implementation of EU Funds in Poland: Systemic Analysis’ (2008) 164 Polish Sociological Review 437. 67 See generally Bignal, ‘Simplifying European Structural and Investment Funds for Social Service Providers’ (n 64). 68 Ibid. 69 Commission, ‘The Value Added of Ex ante Conditionalities in the European Structural and Investment Funds’ (n 43) 5. 70 Mary C Rizzolo, Carli Friedman, Amie Lulinski-Norris and David Braddock, ‘Home and Community Based Services (HCBS) Waivers: A Nationwide Study of the States’ (2003) 51(1) Intellectual and Developmental Disabilities 1; Meredith Minkler, Joy Hammel, Carol J Gill, Susan Magasi, Victoria

332  Research handbook on EU disability law that the ESI Funds have been previously used to construct and maintain residential institutions for persons with disabilities, and in particular persons with intellectual disabilities, thereby exacerbating social exclusion.71 The right to independent living and to be included in the community is protected by Article 19 CRPD. This Article ensures that all persons with disabilities have a choice in where to live and with whom. Quinn and Doyle contend that the EU’s commitment to successfully supporting the implementation of the CRPD will be evidenced in how they implement and review the inclusion of Article 19 CRPD in the ESI Regulation.72 This right to live independently and be included in the community is also enshrined in other international instruments, such as the UN Convention of the Rights of a Child.73 It is also embedded in the European Convention on Human Rights (ECHR), which, as is well known, has a special significance for the EU, having regard to the interpretation given by the European Court of Human Rights to Article 8 ECHR.74 The EU’s commitment to the transition from institutional care to community care is further evidenced by the EDS 2010–2020,75 the European Pact for Mental Health and Wellbeing: Results and Future Action,76 and the Commission recommendation on child poverty of the Social Investment Package.77 The EDS 2010–2020 outlines a framework for supporting people with disabilities to fully participate in society. The European Pact for Mental Health and Wellbeing: Results and Breckwich Vásquez, Marca Bristo and Diane Coleman, ‘Community-Based Participatory Research in Disability and Long-term Care Policy: A Case Study’ (2008) 19(2) Journal of Disability Policy Studies 114; Michael L Wehmeyer and Nancy Bolding, ‘Enhanced Self‐Determination of Adults with Intellectual Disability as an Outcome of Moving to Community‐Based Work or Living Environments’ (2001) 45(5) Journal of Intellectual Disability Research 371. 71 Camilla Parker, Forgotten Europeans, Forgotten Rights – The Human Rights of Persons Placed in Institutions (Office of the High Commissioner for Human Rights 2011); Camilla Parker and Ines Bulic Cojocariu, European Structural and Investment Funds and People with Disabilities in the European Union (European Parliament 2016) www​.europarl​.europa​.eu/​RegData/​etudes/​STUD/​2016/​571386/​ IPOL​_STU(2016)571386​_EN​.pdf accessed 23 March 2020. 72 Gerard Quinn and Suzanne Doyle, ‘Taking the UN Convention on the Rights of Persons with Disabilities Seriously: The Past and Future of the EU Structural Funds as a Tool to Achieve Community Living’ (2012) 9 The Equal Rights Review 69. See also Gerard Quinn and Suzanne Doyle, ‘Getting a Life – Living Independently and Being Included in the Community: A Legal Study of the Current Use and Future Potential of the European Structural Funds to Contribute to the Achievement of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities’ (Office of the United Nations High Commissioner for Human Rights 2012). 73 Article 17 Convention on the Rights of a Child (adopted 20 November 1989, entered into force 2 September 1990) (CRC). 74 See generally Oliver Lewis, ‘Council of Europe’ in Lisa Waddington and Anna Lawson (eds), The UN Convention on the Rights of Persons with Disabilities in Practice (Oxford University Press 2018) 89–130; Davíð Þór Björgvinsson, ‘The Protection of the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 141–63; see also Victoria Butler-Cole and Rose Grogan, ‘Care at Home: Article 8 and Incapacitated Adults’ (2012) 3(4) Social Care and Neurodisability 179. 75 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 76 Council conclusions on the European Pact for Mental Health and Well-being: Results and Future Action [2011] OJ L202/1. 77 Commission Recommendation 2013/112/EU on Investing in Children: Breaking the Cycle of Disadvantage [2013] OJ L59/5.

EU structural and investment funds and disability  333 Future Action further calls for actions to be implemented to fully secure community-based and socially inclusive care models for mental health services. The Structural Funds can ensure that Article 19 CRPD is protected, and any funds designed to support community living should include appropriate measures to ensure the full inclusion and participation of people with disabilities in communities. This includes safeguarding that people with disabilities are provided with the opportunity to choose their place of residence and have access to adequate community support services. Member States are now prohibited from using the Funds to invest in institutional living and must use the allocated funds to support the effective transition from institutional to community living and care. The legal basis for the transition from institutional to community care is found in a combination of provisions included in the various regulations. Article 9(9) of the CPR and Article 3 of the ESF Regulation require the ESI Fund to support thematic objective 9, that of promoting social inclusion, combating poverty and any discrimination.78 The thematic ex ante conditionality 9 provides for investment in health and social infrastructure, to support the transition from institutional to community-based services. Not only are the ESI Funds tasked with transitioning persons with disabilities living in institutions to community settings; they are additionally tasked with reducing child poverty and children’s well-being, by reducing the numbers of children living in public institutions. This is particularly relevant from a disability perspective, as children with disabilities are disproportionately affected by institutionalization practices. The Commission’s recommendation on child poverty, with regard to the Social Investment Package, calls for the improvement of preventive services and access to quality support, to prevent and reduce the removal of children from their family setting.79 The CRPD further provides that in circumstances where a family is unable to offer care to children with disabilities, all efforts must be made to offer ‘alternative care within the wider family, and failing that, within the community in a family setting’.80 This cross-cutting objective is found throughout the ESI Funds. The thematic objective set out to implement the rights of persons with disabilities, including children with disabilities, to live in the community does not operate in isolation, as the combined thematic objectives aim to ensure that community living is of the highest standard, to protect the dignity of persons with disabilities, as well as their access to healthcare, education and employment and their opportunities to actively participate in society. Quinn and Doyle note that the seven-year programming periods are long enough to enable real change to occur for persons with disabilities and short enough to allow for appropriate adjustment as EU strategic priorities change.81 This is evident in the successful adoption of the ex ante conditionalities before 2016. However, it may still be difficult to secure full transition from institutional living to suitable community care in practice during the programme

78 Support for these objectives is additionally found in Recitals 15 and 16, Article 3 and Article 5 on investment priorities of the ERDF Regulation; Article 5 on the Union priorities for rural development of the EAFRD Regulation; Article 7 and Annex I, section 5.4 CPR. 79 Commission Recommendation 2013/112/EU on Investing in Children: Breaking the Cycle of Disadvantage (n 77). See also Commission, ‘Taking Stock of the 2013 Recommendation on “Investing in Children: Breaking the Cycle of Disadvantage”’ SWD (2017) 258 final. 80 Article 23(5) CRPD. 81 Quinn and Doyle ‘Getting a Life – Living Independently and Being Included in the Community’ (n 72) 13.

334  Research handbook on EU disability law period.82 It has been argued that a lack of comparable data on the use of ESI Funds for deinstitutionalization impedes our understanding of the costs and timeframe required to make the effective transition from institutional to community-based living.83 The ex ante conditionality on transitioning from institutional to community care is supported by the ex ante conditionality for active inclusion. The ESF and ERDF Funds should be used collectively to ease Member States’ costs arising from closing down large institutional care facilities for persons with disabilities and putting in place adequate supports to ensure a high standard of living. Not only do the Funds focus on funding transitional activities, but funds are also available to support the implementation of other measures, such as the promotion of accessibility to high-quality education, social care and healthcare services, and ensuring that investment is available to guarantee the basic conditions for quality independent living in the community. The ESF Funds have been positively used to develop early intervention supports, personal assistance, community-based residential support, independent living schemes and supported employment programmes.84 The ERDF programmes have financed health and social infrastructure, such as accessible housing.85 The ESF or ERDF Regulations explicitly prohibit the use of the Funds to build or renovate long-stay residential institutions. The construction of new infrastructure will only be permissible if it serves the purpose of supporting independent living, if it is in physical proximity to a local community, and if relevant healthcare is accessible in or near the location.86 Funds may be used in exceptional circumstances to improve existing institutional living settings if the improvements required are only made to improve the quality of living of people living in the institutions temporarily until a transitional process to community living is completed. Institutional care may still remain the only option for people who require consistent medical supervision, and care and funds may be used in these circumstances to upgrade or renovate such long-state residential institutions.87 When the current period of Structural Funds was being designed and introduced, there was a significant level of scepticism about the potential of the funds to secure genuine transition from institutional living. In 2014, the then Council of Europe Commissioner for Human Rights, Nils Muižnieks, claimed that some Member States were ‘refurbishing existing institutions or even building new ones – sometimes, shamefully, with EU structural funds’.88 It has

82 Arie Rimmerman, Disability and Community Living Policies (Cambridge University Press 2017) 117. 83 European Union Agency for Fundamental Rights (FRA), ‘From Institutions to Community Living for Persons with Disabilities: Perspectives from the Ground’ (2018) https://​fra​.europa​.eu/​sites/​default/​ files/​fra​_uploads/​fra​-2018​-from​-institutions​-to​-community​-living​-ground​-perspectives​_en​.pdf accessed 24 March 2020. 84 Commission, ‘Strategic Report 2019 on the Implementation of the European Structural and Investment Funds’ (n 20). 85 Commission, ‘European Structural and Investment Funds 2014–2020 2018: Summary Report of the Programme Annual Implementation Reports Covering Implementation in 2014–2017’ (n 2). 86 Ex ante conditionality 9 CPR. 87 Colin Barnes, ‘What a Difference a Decade Makes: Reflections on Doing “Emancipatory” Disability Research’ (2003) 18(1) Disability and Society 3. 88 Deinstitutionalisation in the work of the Council of Europe Commissioner for Human Rights: Address by Nils Muižnieks, Council of Europe Commissioner for Human Rights. PACE Committee on Equality and Non-discrimination: Joint hearing with the Committee of experts on the rights of persons with disabilities ‘One of Us? The Right of Persons with Disabilities to Live in the Community’.

EU structural and investment funds and disability  335 been suspected that Structural Funds were used in the Czech Republic from 2008 to 2012 to renovate childrens’ homes and institutions for children and adults with disabilities.89 It has also been reported that during the last Structural Funds period, 2007–2013, approximately EUR 150 million was invested in the renovation or building of new institutions for persons with disabilities in Bulgaria, Hungary, Latvia, Lithuania, Romania and the Slovak Republic.90 Furthermore, the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) raised concerns over Structural Fund spending on activities relating to institutional living in Bulgaria, Hungary, Latvia, Lithuania, Portugal and the Slovak Republic.91 While the current CPR rules implement Article 19 of the CPR and prohibit the use of the funds to develop or improve institutional living, certain recipients are still using the Funds to maintain institutional living. In September 2019, three organizations representative of people with disabilities initiated proceedings in front of the EU General Court against the European Commission for refusing to interrupt payment deadlines or suspend funds being used by Bulgaria to construct institutions for persons with disabilities.92 The applicants, comprising the European Network on Independent Living, the Validity Foundation and the Center for Independent Living, relied on three pleas in law.93 The three organizations had previously asked the Bulgarian government and the Commission to suspend a programme using ESI Funds to construct a number of institutions designed to house persons with disabilities and older people. As a result of the Commission’s decision not to suspend the programme, the organization commenced the Court proceedings. It remains to be seen whether the case will be deemed admissible given the restrained locus standi of individuals under Article 263(4) TFEU.94 In that connection, the applicants have submitted that the CRPD supports their right as a third party to challenge an illegal act of EU institutions on the ground that it is discriminatory on the basis of disability. The applicants argue that they meet the rules on standing to challenge an illegal act, as they sufficiently represent persons who, in those circumstances, are unable to defend themselves against discrimination arising from the Commission’s decision CommDH/Speech(2014)9, Strasbourg, 2 October 2014. See www​ .coe​ .int/​ en/​ web/​ commissioner/​ speeches/​-/​asset​_publisher/​m6oN46zTK8Vg/​content/​deinstitutionalisation​-in​-the​-work​-of​-the​-council​ -of​-europe​-commissioner​-for​-human​-rights? accessed 30 March 2020. 89 Camilla Parker and Ines Bulic Cojocariu, European Structural and Investment Funds and People with Disabilities in the European Union (n 71) 15–18. 90 Ibid 11–12. 91 Ibid 31–33. 92 Case T-613/19, Action brought on 10 September 2019 – ENIL Brussels Office and Others v Commission [2019] OJ C413/1. The Funds in question relate to the Call for Proposals BG16RFOP001-5 002 ‘Support for the deinstitutionalisation of services for elderly people and people with disabilities’ under Priority Axis 5 ‘Regional social infrastructure’ of Operational Programme ‘Regions in Growth’. 93 The applicants comprise: the European Network on Independent Living Brussels Office (ENIL Brussels Office) (Brussels, Belgium); Validity Foundation (Budapest, Hungary); and the Center for Independent Living – Sofia (Sofia, Bulgaria). 94 Article 263(4) TFEU states that: ‘Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.’ The CJEU has interpreted this provision narrowly and has previously held that environmental public interest groups do not meet the criteria set out in Article 263(4) TFEU. See Case 25/62 Plaumann & Co v Commission EU:​C:​1963:​17. See also Case C-274/12 P Telefónica v Commission EU:​C:​2013:​852, para 35; Case T-380/11, Palirria Souliotis v Commission EU:​ T:​2013:​420, para 42.

336  Research handbook on EU disability law not to suspend fund payments to Bulgaria.95 In order to demonstrate their locus standi, the applicants affirm that ‘the contested act is of direct and individual concern to a closed group of 1020 persons with disabilities located in Bulgaria’, who were ‘unable to represent themselves before a court’.96 Finally, the applicants also allege that the Commission has infringed its obligations under Regulation 1303/2013 (the CPR) and the CRPD, as well as the Charter.97 The case will assess the remit of the Commission’s legal responsibility to intervene when a Member State is using ESI Funds to carry out activities which are discriminatory in nature and in conflict with Article 19 CRPD. The Commission’s initial refusal to suspend payments or the Funds in their entirety sparks concerns over the Commission’s commitment to fully protecting persons with disabilities’ autonomy and personal choice as to living arrangements. The ruling may potentially provide further instruction on the circumstances where Structural Funds can be utilized to improve existing institutions if they serve an immediate or temporary need until existing residents can be successfully transitioned to community living. While this case highlights a serious concern regarding the use of ESI Funds to potentially exclude persons with disabilities from society, overall the ESI Regulations have successfully implemented the spirit and requirements of the CRPD in the general principles and ex ante conditionalities governing the Funds. The successful transitioning from institutional living to community living may not be fully executed in the seven-year programming cycle, and it should be envisioned that Member States will progressively achieve the goals set out in the CRPD. Successful implementation of Article 19 CRPD will require consistent financial support from the ESI Funds and Member States, and implementation of the transitions should be conducted in line with the partnership principle, ensuring that persons with disabilities’ views are represented and respected at all times. It is also important that the effective transition from institutional living to community care must ensure that the institutional culture is not replicated in the new living arrangements.98

Case T-613/19, first plea in law. Ibid para 2. Emphasis added. 97 Case T-613/19, third plea in law. 98 See European Coalition for Community Living (ECCL), ‘Wasted Time, Wasted Money, Wasted Lives – A Wasted Opportunity? A Focus Report on How the Current Use of Structural Funds Perpetuates the Social Exclusion of Disabled People in Central and Eastern Europe by Failing to Support the Transition from Institutional Care to Community-Based Services’ (2010) http://​community​-living​.info/​ wp​-content/​uploads/​2014/​02/​ECCL​-StructuralFundsReport​-final​-WEB​.pdf accessed 30 March 2020; see also Israel Butler, ‘Community, not Confinement: The Role of the European Union in Promoting and Protecting the Right of People with Disabilities to Live in the Community’ (Open Society Foundations 2015) www​.opensocietyfoundations​.org/​reports/​community​-not​-confinement accessed 30 March 2020; European Expert Group on the Transition from Institutional to Community-based Care, ‘Toolkit on the Use of European Union Funds for the Transition from Institutional to Community-based Care’ (European Expert Group on the Transition from Institutional to Community-based Care, Revised edition, 2014) https://​ deinstitutionalisation​ .com/​ eeg​ -publications/​accessed 30 March 2020. Separately, the Commission is currently taking actions to address concerns raised by the European Ombudsman regarding the use of ESI Funds for the construction of institutional care facilities for persons with disabilities in Hungary and Portugal. Although, the Commission stated that it could not engage in further discussions on the legal basis of supporting the shift from institutionalized to independent and community-based living, as it is awaiting the decision of the General Court ‘Case T-613/19’. See European Ombudsman Case 1233/2019/MMO. 95 96

EU structural and investment funds and disability  337

6.

SOCIAL INCLUSION

One of the core aims of the ESI Funds is to promote social inclusion and reduce poverty for all members of society and, in particular, for vulnerable members of society, including people with disabilities. The Europe 2020 Strategy for ‘smart, sustainable and inclusive growth’ set an ambitious objective – to assist, at a minimum, 20 million people to overcome poverty.99 The rules attaching to the ESI Funds were designed to support this ambitious objective and, in particular, the ESF programmes are used to combat negative attitudes towards persons with disabilities and to break down the barriers faced by persons with disabilities when trying to secure access to employment and education opportunities.100 The ESI Regulations collectively promote equality for persons with disabilities, as set out in Article 2 of the Treaty on European Union (TEU), Article 10 of the Treaty on the Functioning of the European Union (TFEU) and Article 21 CFR. Member States, participating authorities and funding recipients must demonstrate that they have taken all relevant and appropriate measures to prevent any discrimination against persons with disabilities during the preparation and implementation of the funded projects.101 This extends to ensuring that all stages of the projects – from advertising, planning, implantation and operation – are designed in an accessible and transparent manner. Combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation is specifically listed as an investment priority in the ESF Regulation.102 Furthermore, Member States were required to identify in their national Operational Programmes opportunities for funding social innovation activities. As with the specific requirement to support the transition from institutional living to community care, social inclusion measures must be continuously supported and achieved in a progressive manner. This requires the funds to be used to develop accessible social services, healthcare services, educational and employment services and services aimed to support persons with disabilities to experience a high quality of life in a living arrangement of their individual choosing.

7.

THE FORTHCOMING STRUCTURAL FUNDS REGULATORY FRAMEWORK 2021–2027

The current ESF Regulations and policy frameworks are coming to an end, and will be replaced by new rules and priority objectives in 2021. The Commission should progressively build on the social inclusion measures contained in the 2014–2020 programmes, to further protect and promote the rights of persons of disabilities. Now that all Member States have

99 Commission, ‘Communication on Maximising the Contribution of European Structural and Investment Funds’ (n 1). 100 Paul Copeland and Mary Daly, ‘Varieties of Poverty Reduction: Inserting the Poverty and Social Exclusion Target into Europe 2020’ (2012) 22(3) Journal of European Social Policy 273. 101 Article 8 ESF Regulation requires participating bodies must also take appropriate steps to prevent any discrimination based on sex, racial or ethnic origin, religion or belief, age or sexual orientation as well as to ensure accessibility during the preparation and implementation of programmes. 102 Article 3(1) ESF Regulation.

338  Research handbook on EU disability law ratified the CRPD, the rules should focus on establishing adequate supports for inclusive and equitable community living structures. The proposed 2021–2027 framework aims to support the development of a smarter, greener, more connected and social Europe.103 The new framework aims to support the development of a ‘smarter’ Europe through investing in innovation, digitization and supporting small and medium-sized enterprises, including social economy enterprises which support the integration of disadvantaged groups.104 Funds will be used to implement the Paris Agreement by investing in the renewables necessary to transition to a carbon-free Europe.105 Funds will be allocated to develop transport and digital networks, in order to develop a more connected Europe. The Funds will, importantly, be used to deliver on the goals of the European Pillar of Social Rights (EPSR or Pillar), focusing on funding equal access to quality employment, education and healthcare and promoting social inclusion amongst all members of society.106 A final objective of the new framework is to move ‘Europe closer to citizens’ by developing locally led strategies and adopting sustainable urban development plans.107 Approximately 65 to 85 per cent of ERDF and Cohesion Fund resources will be dedicated to the delivery of a ‘smarter’ and ‘greener, carbon free’ Europe and, as previously, the resources will be available for all regions and will be allocated depending on Member States’ relative wealth.108 However, it is important to note that while the funds, for the most part, will be awarded on the basis of gross domestic product (GDP) per capita, the programmes – for the first time – will take additional selection criteria into account. The selection criteria will examine a Member State’s GDP per capita, level of youth employment and education, integration of migrants and climate change needs.109 The extension of the criteria used in the allocation method further depicts the social imprinting and maturity of the Structural Funds. 103 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument’ COM (2018) 375 final. See, in particular, Article 1 of this proposal. 104 Ibid. Annex IV, Thematic enabling conditions applicable to the ERDF, ESF+ and the Cohesion Fund, and Article 11(1). 105 Ibid. See in particular recital 2 of the Preamble. The enhanced sustainability objectives are in line with the Union’s commitments to implement the Paris Agreement and the United Nations Sustainable Development Goals. Approximately 25 per cent of the EU budget expenditure is set aside to support climate objectives. 106 Commission, ‘Proposal for a Regulation of the European Parliament of the Council on the European Social Fund Plus (ESF+)’ COM (2018) 382 final. This proposal highlights that the 20 principles of the European Pillar of Social Rights should guide the actions under the European Social Fund Plus (ESF+). 107 Article 1 ‘Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument’. 108 Agnieszka Widuto, ‘European Regional Development Fund and Cohesion Fund 2021–2027’ (European Parliamentary Research Service 2020) www​.europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2018/​ 625141/​EPRS​_BRI(2018)625141​_EN​.pdf accessed 25 March 2020. 109 Article 103(2) ‘Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and

EU structural and investment funds and disability  339 There have been a number of other notable changes made to the organization and management of the Structural Funds’ programmes. First, a single regulation will now cover all of the EU funds and will be implemented in partnerships with the Member States.110 A single rulebook will cover seven EU funds: the ERDF, the Cohesion Fund, the European Social Fund Plus (ESF+), the EMFF, the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument. The single rulebook will apply to funds which enjoy ‘shared management’ between the EU and Member States, such as the Cohesion Policy Funds.111 The shared management of funds has been significantly streamlined and reduced, and aims to ease the administrative burden faced by Member States, programme authorities and business recipients in carrying out and monitoring programme activities.112 Simplified procedures for claiming and auditing payments will make it easier for small business and social economy enterprises to participate in the Fund programmes.113 It has been acknowledged that complex national and European rules on Structural Funds have previously deterred companies from competing to participate in funded projects.114 SMEs are the key drivers of local employment and generators of innovation in the internal market.115 Social economy enterprises are increasingly becoming the key employers for persons with disabilities. Increased participation of smaller and socially driven enterprises will result in increased

for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument’ (n 107). 110 The single framework aligns the implementation of all shared management funds in one Regulation. Commission, ‘Simplification Handbook 80 Simplification Measures in Cohesion Policy 2021–2027’ (2018) https://​ec​.europa​.eu/​regional​_policy/​sources/​docgener/​factsheet/​new​_cp/​ simplification​_handbook​_en​.pdf accessed 25 March 2020. See also Svetlana Kineva, ‘Priorities for the Future of the European Union and the Multiannual Financial Framework 2021–2027: Reshaping Economic, Social and Territorial Cohesion into Cohesion and Values’ (2018) 6(4) European Structural & Investment Funds Journal 272. 111 Explanatory Memorandum, ‘Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument’ (n 107). It is important to note that other funds, such as Horizon Europe, which are managed centrally must adhere to additional rules on the operation and management of European funded projects. 112 This responds to administrative and accessibility concerns raised by Bignal, ‘Simplifying European Structural and Investment Funds for Social Service Providers’ (n 64) 12. 113 The common definition of the term ‘social economy enterprise’ defines social enterprises as businesses established with a profit-making goal and established with a social impact objective. Supporting social enterprise growth is identified as one of the ESF priority objectives. Social enterprises play an important role in supporting the inclusion of disadvantaged workers in the labour market. For a broader discussion on the emerging role of social enterprises, see Justin Blount and Patricia Nunley, ‘Social Enterprise, Corporate Objectives, and the Corporate Governance Narrative’ (2015) 52(2) American Business Law Journal 201; see also Raymond Dart, ‘The Legitimacy of Social Enterprise’ (2004) 14(4) Nonprofit Management and Leadership 411; and Rebecca Harding, ‘Social Enterprise: The New Economic Engine?’ (2004) 15(4) Business Strategy Review 39. 114 See generally Miroslav Sipikal, ‘Political and Administrative Barriers of Cohesion Policy Implementation in Slovakia’ (2015) 4(2) International Journal of Social Sciences 39. 115 David Floyd and John McManus, ‘The Role of SMEs in Improving the Competitive Position of the European Union’ (2005) 17(2) European Business Review 144.

340  Research handbook on EU disability law accessible employment and social inclusion.116 Wider reforms to the Cohesion Policy will further support small business participation and growth.117 The current Funds framework routinely assesses the performance of the programmes. Performance assessments are generally based on reviewing compliance with quantifiable targets. In addition to these assessments, annual performance reviews will now be conducted between programme authorities and the Commission. Not only will Member States have to report more rigorously to the Commission, but they will also be reporting (albeit indirectly) to citizens. All implementation reports made to the Commission must be uploaded to the Cohesion Open Data Platform every two months.118 NGOs representing people with disabilities and academics will easily and transparently be able to trace compliance and performance. Not only will advocacy groups, NGOs and other interested stakeholders be able to remotely monitor the progress of various programmes, those organizations will have greater access to information on programme calls. A single database, managed by the Commission, will openly advertise all communications on available programmes.119 The maturity of the social characteristics of the 2021–2027 framework is evident in the creation of new ‘enabling’ conditions to deliver the overriding objectives of the Funds; to support the development of a smarter, greener, more connected and social Europe.120 The Commission introduced the disability-focused ex ante conditionalities into the current programme of Funds to ensure that the horizontal and sector-specific requirements were met in the earlier phases of the projects. Findings from a Commission-led assessment report acknowledged that the ex ante conditionalities linked to ESI Funds had a wide impact, improving socially inclusive investment linked to public procurement and State aid, and assisted in opening opportunities in the digital economy and energy sectors.121 The new enabling conditions build on the success of the ex ante conditionalities and will focus on delivering the key objectives of the Cohesion Policy, which will further intervene in public procurement and State aid activities. This aims to ensure that various forms of public expenditure will take account of disability, non-discriminatory and accessibility considerations when preparing and managing expenditure activities.122 116 Benjamin Gidron, ‘Market-oriented Social Enterprises Employing People with Disabilities: A Participants’ Perspective’ (2014) 5(1) Journal of Social Entrepreneurship 60. 117 The proposed ESF+ Regulation includes provisions to support social enterprises in accessing finance under the social investment and skills policy window of the InvestEU Fund. These supports are set out in Recital 33 and Articles 23 and 24 of the proposed Regulation. 118 This is not a completely new requirement. The 2014–2020 programmes require beneficiaries and managing authorities to publish data. The new requirements further request the electronic publication of data for re-use and re-distribution on a more regular basis. The open data requirements further implement the Commission Implementing Regulation (EU) 184/2014 laying down the conditions for electronic data exchange [2014] OJ L57/7. 119 Participants, public bodies and recipients will have to publish suitable data to the ESI Funds Open Data Portal https://​cohesiondata​.ec​.europa​.eu/​accessed 30 March 2020. 120 Article 1 ‘Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument’ (n 107). 121 Commission, ‘The Value Added of Ex-ante Conditionalities in the European Structural and Investment Funds’ (n 43). 122 The managing authorities enjoy the flexibility to decide on the most appropriate implementation options for financial instruments in order to address the specific needs of target regions. The horizontal

EU structural and investment funds and disability  341 In order to receive Cohesion funds, Member States, programme authorities and participating bodies must comply with the enabling conditions and must demonstrate fulfilment of these conditions throughout the lifecycle of the programmes, to sustain payments. Importantly, the proposed new rounds of the ESF+ actively support the implementation of the EPSR,123 which, as noted elsewhere in this Research Handbook, contains multiple references to disability.124 Thematic enabling condition 4 specifically focuses on developing a more social Europe by implementing the EPSR. The ESF+ will allocate at least 25 per cent of all funds to finance programmes that focus on social inclusion. The proposed rules aim to maintain all references to the CRPD. The inclusion of the CRPD and the EPSR in the preamble to the Structural Funds’ rules cements the accessibility and fairness of the rules. The European Disability Forum has called for the CRPD to be strictly implemented to ensure that no future EU Funds are invested in barriers and segregation for persons with disabilities, and instead focus on improving social inclusion and accessibility.125 The proposed CPR provides for Member States to establish rules on the eligibility of expenditure, which may include limited exceptions ‘for which it is necessary to lay down specific provisions with regard to the ESF+ strand under shared management’.126 The proposed Article 6 of the ESF+ Regulation reiterates that all programmes implemented under the ESF+ strand must ensure that the preparation, implementation, monitoring and evaluation of the programmes must promote equal opportunities for all and be conducted in a non-discriminatory manner. While the ex ante conditionality on disability has been replaced, the ESF+ will directly implement Article 19 CRPD into the body of the text by requiring Member States and the Commission to support the transition from residential living to family and community-based care.127 However, it should be noted that the reference to the transition from ‘residential institutional’ has been removed, and this may cause legal uncertainty in relation to the use of Funds for small residential institutional settings. Additionally, there is no specific reference to supporting the transition from institutional living to community care in the proposed ERDF Regulation. This is a missed opportunity, as the previous thematic ex ante conditionality 9 on

principles have been included in Directive 2014/24/EU on public procurement and repealing Directive 2004/18/EC [2014] OJ L94/65. 123 Interinstitutional Proclamation 2017/C 428/09 on the European Pillar of Social Rights [2017] OJ C428/10. 124 On disability in the EPSR, see Miet Vanhegen and Frank Hendrickx, ‘Disability in EU Labour Law Beyond Non-discrimination’, in this volume. 125 European Disability Forum, ‘European Regional Development Fund: First Assessment and Recommendations’ (2018) 5 www​.edf​-feph​.org/​positions​-papers​-2018 accessed 30 March 2020. 126 Article 6 ‘Proposal for a Regulation of the European Parliament of the Council on the European Social Fund Plus (ESF+)’ (n 106). 127 The general conditionalities on accessibility and disability are due to be replaced by the horizontal enabling conditions that are applicable to all thematic objectives: ‘Effective application and implementation of the EU Charter of Fundamental Rights’ and ‘Implementation and application of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in accordance with Council Decision 2010/48/EC’. See Annex III ‘Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument’ (n 107). See also Annex III and Article 6 ‘Proposal for a Regulation of the European Parliament of the Council on the European Social Fund Plus (ESF+)’ (n 106).

342  Research handbook on EU disability law social inclusion laid out specific conditions for the ERDF to invest in health and social infrastructure, to support the transition from institutional to community-based services. Overall, the new framework is underpinned by the principles of accessibility and non-discrimination. The rules prohibit use of the funds to finance any activities which contribute to segregation or social exclusion, and support the modernization of accessible social protection systems. It is hoped that those rules will secure greater benefits for persons with disabilities than the current round of rules provide, by simplifying procedures for organizations representing persons with disabilities and by cementing the objectives of the CRPD and the EPSR in their texts.

8. CONCLUSIONS This chapter has traced the development of the social features of the legal rules related to the Structural Funds, and has argued that the current regime is the most accessible and supportive of social inclusion to date. Since the introduction of the ESF in 1957, the rules have gradually included provisions designed to promote accessibility of products and services, and labour opportunities to reduce social exclusion. The current ESI Funds regulatory framework has enhanced disability protection, being underpinned by the general principles of non-discrimination and accessibility. The Funds are proactive instruments for tackling discrimination and ensuring equal opportunities for persons with disabilities through the provision of employment and training opportunities, facilitating the transition from institutional to community care and supporting access to affordable healthcare services. The proposed new set of regulations for the 2021–2027 programmes builds on these developments and offers many opportunities to improve persons with disabilities’ quality of living and engagement in society. As the new proposed rules move away from the ex ante conditionalities and introduce ‘enabling’ conditionalities to further embed the principles of non-discrimination and accessibility, Member States and participating bodies should focus on the successful implementation of these principles, in order to promote a socially inclusive Union. The new rules further protect persons with disabilities’ rights by placing a renewed focus on providing community living supports. The new Funds should pay more attention to financing supports for persons with disabilities who have transitioned into community living to ensure that they are not segregated from society by improving the involvement of service users throughout the full process. The current regime may have focused primarily on providing people with disabilities with the relevant skillsets to join the labour market, but now it is an opportune time for participants to further use the Funds to support the participation of persons with disabilities in the social activities connected to community living.

19. The rights of people with disabilities in EU consumer law Federica Casarosa

1. INTRODUCTION Consumer protection, as an autonomous field, can be defined as a ‘young area’ of EU law, which was used from the outset as a means to integrate the economies of the Member States, and was aimed almost exclusively at enhancing transnational market performance. Consumers are perceived as the final beneficiaries of an integrated and efficient internal market, but at the same time could suffer from the drawbacks of the widened European market.1 From 1975, with the adoption of the Council Resolution on a Preliminary Programme of the European Economic Community for a Consumer Protection and Information Policy,2 consumers were granted a set of rights that was subsequently translated into legislative measures. The Resolution listed the following rights: the right to protection of health and safety; the right to protection of economic interests; the right of redress; the right to information and education; and the right of representation (the right to be heard). As a result, the legislative process that followed moved from a competition-based approach, whereby the market was supposed to overcome potential inefficiencies through competition only,3 to a more holistic perspective whereby the balance between producers and consumers is taken into account, so as to enhance the confidence of consumers in the market. The first wave of EU consumer protection legislation includes those pertaining to the following areas: product liability,4 sales made away from business premises,5 misleading and unfair advertising,6 consumer credit,7 package travel,8 and unfair contract terms.9

Stephen Weatherhill, EU Consumer Law and Policy (Edward Elgar Publishing 2013) 1. Council Resolution on a preliminary programme of the European Economic Community for a consumer protection and information policy [1975] OJ C92/1. 3 Note that market failures are well known in economic analysis and include information asymmetries, negative externalities, the inability to provide public goods and abuse of market power. See generally Joseph E Stiglitz, ‘Markets, Market Failures, and Development’ (1989) 79(2) American Economic Review 197. 4 Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products [1985] OJ L210/29. 5 Council Directive 85/577/EEC to protect the consumer in respect of contracts negotiated away from business premises [1985] OJ L372/31. 6 Council Directive 84/450/EEC concerning misleading and comparative advertising [1984] OJ L250/17. 7 Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit [1987] OJ L42/48. 8 Council Directive 90/314/EEC on package travel, package holidays and package tours [1990] OJ L158/59. 9 Council Directive 93/13/EEC on unfair terms in consumer contracts [1993] OJ L95/29. 1 2

343

344  Research handbook on EU disability law It is important to note that the economic dimension of these legislative acts was perceivable both from their content and from the legal basis used to justify legislative intervention. The relevant directives were based on the former Article 100 of the Treaty establishing the European Economic Community (EEC Treaty) and then on Article 95 of the Treaty establishing the European Community (EC Treaty), empowering the EU to enact legislation with the purpose of enhancing the functioning of the internal market.10 In 1992 the Treaty of Maastricht integrated the protection of consumers into its objectives in Articles 3(s) and 129(a). In 1997 the Treaty of Amsterdam strengthened consumer protection, by stipulating (in what is now Article 169 of the Treaty on the Functioning of the European Union – TFEU) that the Community should promote a number of consumer rights, such as the rights to information and education. More recently, consumer protection has become intertwined with fundamental rights, as a result of the perception that consumers are vulnerable vis-à-vis the consequences of wider market failures emerging, in particular, in areas such as finance, the environment, telecommunication and transport.11 This is evident from the inclusion of a specific provision dedicated to consumer protection within the Charter of Fundamental Rights of the EU (CFR), namely Article 38 CFR. Consumer protection is included in Chapter IV of the Charter (on solidarity), thus recognizing it as a fundamental policy objective. While this norm aims at improving public confidence both in the market and in the institutions of the EU, it also indicates that consumer protection is now regarded as a fundamental social goal in the Union. Within this framework, it is not difficult to understand the overlap between the status of the consumer and the needs (permanent or temporal) of persons with disabilities. People with disabilities also buy products and use services as consumers, and are entitled to profit from the benefits of the internal market under the same conditions as all other consumers, according to the consumer protection legislative framework and the principle of non-discrimination.12 This is also reflected in the provisions of the UN Convention of the Rights of Persons with Disabilities (CRPD or UN Convention), and in particular Articles 12 and 19 CRPD, which, although not mentioning consumer protection, set the basis for participation of people with disabilities in the market. Article 12 CRPD, regarding equal recognition before the law, affirms that States Parties are obliged to recognize that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. It goes on to impose a positive obligation regarding the protection of people with disabilities in cases of abuse, ensuring respect for the 10 Article 95(3) EC Treaty reads as follows: ‘The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.’ As clarified by the CJEU in Case C-376/98 Germany v Parliament and Council (Tobacco Advertising) EU:​C:​2000:​544, the measures adopted should actually contribute to the internal market and not only claim to do so in the Directive’s recitals; otherwise the measure could be deemed to exceed the boundaries of EU competences. See also Katalin J Cseres, ‘Consumer Protection in the European Union’ in Roger J Van den Bergh and Alessio M Pacces (eds), Regulation and Economics (Edward Elgar Publishing 2012) 163–228, p. 203. 11 See Iris Behor, EU Consumer Law and Human Rights (Oxford University Press 2013). 12 See Article 21 and Article 23 CFR. See also the analysis of the principle of non-discrimination in contract law in Norbert Reich, ‘The Impact of the Non-discrimination Principle on Private Autonomy’ in Dorota Leczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart 2013) 253–78, p. 257.

The rights of people with disabilities in EU consumer law  345 ‘rights, will and preferences of the person’.13 Accordingly, people with disabilities should be safeguarded in the exercise of their legal capacity, whether in the case of property rights or in the decision-making skills that they exercise as purchasers. This protection is reinforced by Article 19, which provides that persons with disabilities have the right to live in the community, with choices equal to others. Therefore, Parties to the CRPD have to take ‘effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community’. Article 19(c) CRPD affirms that ‘community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs’. The overlap between the status of the consumer and that of persons with disabilities is not fully developed within the EU legal framework related to consumer protection. This is due to the fact that none of the legislative measures refer specifically to disability. Furthermore, only the adoption of a wide definition of the term ‘vulnerable consumer’ would result in persons with disabilities obtaining protection as a protected class of consumer. Against this background, this contribution sketches the issues that emerge from the interplay between consumer protection law and disability, taking into account the analysis provided by Waddington in the research concluded in 2012.14 The contribution will not address the full framework of EU consumer protection legislation; rather, it will take into account those legal acts that focus on the process of contract formation – from pre-contractual negotiation (including advertising) to conflict resolution. This will exclude from the analysis both the sector-specific legislation applicable to timeshare contracts, credit contracts and mortgage contracts, and the legislation on services of general interest. Following these introductory remarks, section 2 examines how the needs of people with disabilities are addressed in the consumer policy agenda. Section 3 then analyses the references to disability made in secondary legislation, while section 4 addresses the question related to including persons with disabilities within the definition of vulnerable consumers, and the unintended problems that this may raise. Section 5 identifies the potential for adapting the ‘information paradigm’15 to persons with disabilities, and improving its effectiveness on the basis of the most recent technological developments; while section 6 addresses the most recent intervention resulting from the recently adopted New Deal for consumers, namely the Proposal for a Directive on

13 See Article 12(4) CRPD and General Comment No. 1 of the CRPD Committee, which underlines that ‘[The Article] requires States parties to create appropriate and effective safeguards for the exercise of legal capacity. The primary purpose of these safeguards must be to ensure the respect of the person’s rights, will and preferences. In order to accomplish this, the safeguards must provide protection from abuse on an equal basis with others’ – Committee on the Rights of Persons with Disabilities (CRPD Committee), General Comment No. 1 on equal recognition before the law, UN Doc. CRPD/C/GC/1 (2014) para 20. 14 See generally Lisa Waddington, ‘The Protection of Consumers with Disabilities in the European Union: Persons with Disabilities as Active Participants in the Internal Market’ (Academic Network of European Disability Experts 2012) www​.disability​-europe​.net/​theme/​consumer​-protection accessed 1 February 2020. 15 As is described in section 3 below, the information paradigm is based on the assumption that if consumers receive sufficient and adequate information, then they will be able to make reasonable decisions, avoiding the regulatory intervention of State authorities on the market. See Hans W Micklitz, Jules Stuyck and Evelyne Terryn, Cases, Materials and Text on Consumer Law (Hart Publishing 2010 1st edn) 372.

346  Research handbook on EU disability law representative actions,16 which may reveal some potential for ensuring protection for people with disabilities. Concluding remarks follow in section 7.

2.

THE INCLUSION OF THE NEEDS OF PEOPLE WITH DISABILITIES IN EU CONSUMER LAW

In the 2012 European Consumer Agenda, reference is included to the distinctive needs that people with disabilities may have when participating in the internal – and digital – market.17 In particular, the Agenda highlighted that vulnerable consumers, and people with disabilities in particular, may encounter two types of risk: on the one hand, the Agenda outlines that vulnerable consumers may have suffered more from the economic crisis in 2008, leading to the risk of social exclusion; on the other hand, vulnerable consumers may not have the ability to fully master the features and tools available within the digital environment, particularly in relation to ‘accessing and understanding information’ and ‘finding appropriate products and services on the market’.18 The recent review of EU consumer law, the so-called New Deal for Consumers – which involved a rethinking of many consumer directives in order to take into account digital and social developments – does not propose any amendment to the existing legislative framework in order to improve the protection of people with disabilities. As described in more detail below, it may only indirectly affect the enforcement mechanisms available in the proposed directive on representative actions.19 As a matter of fact, the process leading to the adoption of the European Accessibility Act (EAA)20 was expected to have a great impact on issues related to the protection of people with disabilities in this field. Although the EAA required almost ten years of negotiations, it was eventually adopted in April 2019. The Act aims at aligning and harmonizing Member States’ legislation concerning accessibility, adding to the already existing obligation that each Member State has as a result of ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). Although the Act does not refer directly to consumer protection, it affects that field greatly as it imposes, for a set of specific products and services, accessibility requirements that can help to demonstrate compliance with accessibility provisions that are laid down in EU law. Accordingly, producers and service providers will be obliged to implement corrective measures in circumstances where their products or services do not meet the relevant accessibility requirements laid down in the EAA. From a consumer law perspective, compliance with accessibility requirements will enhance the protection of consumers, as their needs will be taken into account in the design of the products and services.

Commission, ‘A New Deal for Consumers’ COM (2018) 183 final. Commission, ‘A European Consumer Agenda – Boosting Confidence and Growth’ COM (2012) 225 final. 18 Ibid 5. 19 Commission, ‘Proposal for a Directive on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC’ COM (2018) 184 final. 20 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. 16 17

The rights of people with disabilities in EU consumer law  347

3.

PEOPLE WITH DISABILITIES WITHIN SECONDARY EU CONSUMER PROTECTION LEGISLATION

In order to understand the level of protection of people with disabilities provided through consumer protection law, it is important to highlight how EU consumer protection law includes people with disabilities. Given the fact that consumer policy is a transversal policy, the legislation in this area includes several directives. This section is limited to outlining the acts that address the general contractual process involving consumers as contractual parties, namely the provision of pre-contractual information within the offline and online negotiation process. It also provides an overview of laws that contain conflict solution mechanisms, taking into account both the remedies provided for in the event of the non-conformity of goods and services and the alternative enforcement mechanisms available to consumers. The following acts are analysed below: Directive 1993/13/EEC on unfair terms in consumer contracts;21 Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees;22 Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market;23 Directive 2011/83/EU on consumer rights;24 Directive 2013/11/EU on consumer alternative dispute resolution (ADR);25 and Regulation 524/2013/EU on online dispute resolution (ODR) for consumer disputes.26 Table 19.1 provides an overview of the existing references to people with disabilities in the selected legislation. As can be observed from this table, only on a few occasions has the EU legislator indirectly taken into account the needs of people with disabilities through references to vulnerability; on other occasions, one can observe mere references to the features of clarity and intelligibility. Apart from the (limited) reference to vulnerable consumers vis-à-vis the average consumer, there is no explicit attention paid to the needs of people with disabilities. The perspective of the average consumer, reasonably well informed and circumspect, is the point of view of all legislative interventions in this field. As already highlighted by Waddington,27 this is an overly simplistic approach towards the different impairments and skills that people with disabilities may have when participating in the internal market. It must be highlighted that in the Regulation on consumer ODR, references to accessibility standards are provided in the form of the design-for-all requirement, which was aimed at implementing the European Disability Council Directive 93/13/EEC on unfair terms in consumer contracts [1993] OJ L95/29. Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/12. 23 Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/ EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) [2005] OJ L149/22. 24 Directive 2011/83/EU on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC and repealing Council Directive 85/577/EEC and Directive 97/7/EC [2011] OJ L304/64. 25 Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on Consumer ADR) [2013] OJ L165/63. 26 Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on Consumer ODR) [2013] OJ L165/1. 27 Waddington, ‘The Protection of Consumers with Disabilities in the European Union’ (n 14) 106. 21 22

Reference to the needs of people with disabilities

No

No

Yes (indirect)

Yes (indirect)

Yes (indirect)

Directive 93/13/EEC

Directive 1999/44/EC

Directive 2005/29/EC

Directive 2005/29/EC

Directive 2011/83/EU

to different levels of consumer protection.

reasonably be expected to foresee. However, taking into account such specific needs should not lead

mental, physical or psychological infirmity, age or credulity in a way which the trader could

account the specific needs of consumers who are particularly vulnerable because of their

contract, or any corresponding offer. In providing that information, the trader should take into

is bound by a distance or off-premises contract, a contract other than a distance or an off-premises

The trader should give the consumer clear and comprehensible information before the consumer

Recital 34 of the preamble:

practice of making exaggerated statements or statements which are not meant to be taken literally.

the average member of that group. This is without prejudice to the common and legitimate advertising

which the trader could reasonably be expected to foresee, shall be assessed from the perspective of

the underlying product because of their mental or physical infirmity, age or credulity in a way

a clearly identifiable group of consumers who are particularly vulnerable to the practice or

3. Commercial practices which are likely to materially distort the economic behaviour only of

Article 5 (on the prohibition of unfair commercial practices):

assessing the practice from the perspective of the average member of that group.

that the trader can reasonably foresee, it is appropriate to ensure that they are adequately protected by

the economic behaviour only of such consumers is likely to be distorted by the practice in a way

consumers particularly susceptible to a commercial practice or to the underlying product and

Recital (19) of the preamble: Where certain characteristics such as age, physical or mental infirmity or credulity make

another durable medium available and accessible to him.

3. On request by the consumer, the guarantee shall be made available in writing or feature in

duration and territorial scope of the guarantee as well as the name and address of the guarantor.

and the essential particulars necessary for making claims under the guarantee, notably the

2. The guarantee shall: […] – set out in plain intelligible language the contents of the guarantee

Article 6 (on guarantees):

a term, the interpretation most favourable to the consumer shall prevail […].

must always be drafted in plain, intelligible language. Where there is doubt about the meaning of

In the case of contracts where all or certain terms offered to the consumer are in writing, these terms

Article 5:

Extracts from most relevant articles and recitals (emphasis added)

References to people with disabilities in consumer legislation

Directive

Table 19.1

348  Research handbook on EU disability law

Reference to the needs of people with disabilities

No

Yes

Directive

Directive 2013/11/EU

Regulation (EU) 524/2013

vulnerable users (‘design for all’), as far as possible […].

(‘privacy by design’) and that the ODR platform is accessible and usable by all, including

of the ODR platform shall ensure that the privacy of its users is respected from the design stage

data security. The ODR platform shall be user-friendly. The development, operation and maintenance

the translation functions necessary for the purpose of this Regulation, its maintenance, funding and

1. The Commission shall develop the ODR platform and be responsible for its operation, including all

Article 5 (on establishment of the ODR platform):

procedures is mandatory under national law.

The provision of such information to traders should not be required where their participation in ADR

information they need in order to take an informed decision before engaging in an ADR procedure.

entities and of ADR procedures it is necessary that the parties receive the clear and accessible

ADR entities should be accessible and transparent. In order to ensure the transparency of ADR

Recital 39 of the preamble:

Extracts from most relevant articles and recitals (emphasis added)

The rights of people with disabilities in EU consumer law  349

350  Research handbook on EU disability law Strategy 2010–2020 (EDS);28 however, the Regulation missed the opportunity to provide a definition of ‘vulnerable users’, leaving it to the interpreter to understand the extent to which this concept overlaps with that of ‘vulnerable consumer’.29

4.

WHEN DISABILITY FALLS WITHIN THE CONCEPT OF ‘VULNERABILITY’

‘Consumer vulnerability’ is a concept that is not clearly defined in legal or sociological research, and there is no consensus on the criteria to be used in order to identify vulnerability. This leads to difficulties in defining its boundaries in practice.30 The most recent approach towards vulnerability tends to demonstrate a multidimensional perspective, which includes not only the personal characteristics of the person (that is, individual capabilities) but also the market conditions and the time variable (that is, the fact that vulnerability can be a transient feature). Accordingly, it is possible to affirm that consumer vulnerability is ‘a temporary state of powerlessness in marketplace transactions that to varying degrees occur to all consumers’.31 In the current legal framework on EU consumer law, the concept of ‘vulnerable consumers’ was introduced in those cases where the EU legislator acknowledged in advance that the usual legal tools used to overcome the position of the consumer as a weaker party (that is, information duties, mandatory standards and judicial remedies) are not effective.32 The approach adopted by the EU legislator is one that is mostly focused on the personal characteristics of consumers that may experience a condition of vulnerability on the market. As mentioned above, the Directive on Unfair Commercial Practices and the Directive on Consumer Rights expressly classify as vulnerable those consumers who are characterized by ‘mental or physical infirmity, age or credulity’, without addressing any other element of the market framework. According to the EU legislator, therefore, there is no need to consider the causes of vulnera28 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. See also European Parliament, Resolution on the European Disability Strategy post‑2020, provisional version (2019/2975(RSP)), which calls on the Commission to ensure that the post-2020 Strategy ‘mainstreams equal access to services for persons with disabilities, including access to health care, education and employment, public transport, housing, culture, sports and leisure, and other areas by eliminating the barriers to social participation, and by applying universal design principles into infrastructural and digital investments across the EU’, (point 5 let. o)). 29 Norbert Reich, ‘Vulnerable Consumers in EU Law’ in Dorota Leczykiewicz and Stephen Weatherill (eds), The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (Hart Publishing 2016) 139–58, p. 151. 30 Stacey Menzel Baker, James W Gentry and Terri L Rittenburg, ‘Building Understanding of the Domain of Consumer Vulnerability’ (2005) 25(2) Journal of Macromarketing 128; Carol Kaufman-Scarborough, ‘Social Exclusion: A Perspective on Consumers with Disabilities’ in Kathy Hamilton, Susan Dunnett and Maria Piacentini (eds), Consumer Vulnerability: Conditions, Contexts and Characteristics (Routledge 2015) 157–69. For a detailed analysis of the literature, see Commission, ‘Consumer Vulnerability across Key Markets in the European Union’ (European Commission 2016) https://​ec​.europa​.eu/​info/​sites/​info/​files/​consumers​-approved​-report​_en​.pdf accessed 3 February 2020. 31 Lisbet Berg, ‘Consumer Vulnerability: Are Older People More Vulnerable as Consumers than Others?’ (2015) 39 International Journal of Consumer Studies 284. 32 Reich, ‘Vulnerable Consumers in EU Law’ (n 29) 153, where the author affirms that the concept of ‘vulnerability’ may be interpreted as a ‘flexibilitation’ of the legal framework between the approach of consumer protection based on private autonomy and the one based on the consumer as a weaker party.

The rights of people with disabilities in EU consumer law  351 bility – that is, whether that vulnerability is endogenous or exogenous; whether it is natural or resulting from a social status;33 or whether it is permanent or temporary. The crucial element taken into account by the legislator is the fact that vulnerability affects the autonomy of the individual regarding his/her consumer choices.34 With regard to vulnerable groups, the trader or the professional is asked to foresee the effects of its advertising practices, in order to reduce the potential misleading effect that such practice may have or to provide information that is adapted to the vulnerable group. Nonetheless, the relevant legislation is very clear in affirming that this consideration should not affect the market freedom of traders in presenting their products or services, nor should it impose a more restrictive application of consumer protection with regard to vulnerable groups.35 As it stands, then, consumers with disabilities may only gain protection as a result of an ex ante, subjective evaluation by the trader regarding the impact of their advertising practices, and on a case-by-case analysis of the effects of the practices when the damage (that is, the conclusion of the contract) has already occurred. Moreover, with regard to the evaluation of unfair practices, it is the consumer who has the burden of proving that the contract was concluded as a result of the impact of the unfair practice, regardless of whether he or she can be qualified as ‘vulnerable’.36 However, where the EU legislator provides for a specific reversed burden of proof in the case of vulnerable groups, this imposes on the trader the obligation to show that, in identifying the target of its advertisements, account was taken of the potential impact of those on vulnerable groups.37 A different, and narrower, approach is taken by the Regulation on ODR, where the reference to vulnerable consumers is essentially included in the context of the design features of 33 Note that associating the personal characteristics of a consumer with vulnerability does not imply that such a consumer is always vulnerable or never vulnerable, as ‘vulnerability’ is intended as a dynamic concept. See Commission, ‘Consumer Vulnerability across Key Markets in the European Union’ (n 30) 49. 34 Marine Fryant-Perrot, ‘Le consommateur vulnérable à la lumière du droit de la consommation de l’Union européenne’ (2013) 3 Revue Trimestral de Droit Européenne 477. 35 This is also reflected in the interpretation by the Court of Justice of the European Union (CJEU) of the ‘average consumer’ in the following cases: Case C-632/16 Dyson ltd and Dyson BV v BSH Home Appliances NV EU:​C:​2018:​599; Case C-611/14 Canal Digital Danmark A/S EU:​C:​2016:​800; Case C-453/10 Pereničová and Perenič v SOS EU:​C:​2012:​144; Case C-122/10 Konsumentombudsmannen v Ving Sverige AB EU:​C:​2011:​299; Case C-54/17 Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA EU:​C:​2018:​710; Case C-388/13 Nemzeti Fogyasztóvédelmi Hatóság v UPC Magyarország Kft EU:​C:​2015:​225. For a more detailed analysis, see Hanna Schebesta and Kai Peter Purnhagen, ‘An Average Consumer Concept of Bits and Pieces: Empirical Evidence on the Court of Justice of the European Union’s Concept of the Average Consumer in the UCPD’ (2019) Wageningen Working Papers in Law and Governance 02/2019 https://​ssrn​.com/​abstract​=3​ 366290 accessed 6 February 2020; and Monika Namyslowska, ‘The Blacklist of Unfair Commercial Practices: The Black Sheep, Red Herring or White Elephant of the Unfair Commercial Practices Directive?’ in Willem van Boom, Amandine Garde and Orkun Akseli (eds), The European Unfair Commercial Practices Directive: Impact, Enforcement Strategies and National Legal Systems (Routledge 2014) 65–86. 36 See Marine Fryant-Perrot, ‘The Vulnerable Consumer in the UCPD and Other Provisions of EU Law’ in Willem van Boom, Amadine Garde and Orkun Akseli (eds), The European Unfair Commercial Practices Directive: Impact, Enforcement Strategies and National Legal Systems (Routledge 2014) 89–107, p. 101. 37 Reich addresses this issue as a form of transactional neglect, whereby the trader may exploit up to a certain point the knowledge of the vulnerability. See Reich, ‘Vulnerable Consumers in EU Law’ (n 29) 143.

352  Research handbook on EU disability law products or services, requiring the adoption of accessibility and usability standards, in order to allow any user the possibility to access the ODR platform.38 As a result of the analysis above, it seems evident that the mere inclusion of people with disabilities in the category of vulnerable consumers in the EU legislation discussed above will not, in itself, increase their level of protection. The market obstacles that they may face are not solved by a mere reference to a specific group of consumers. The next section will verify if, and how, the general assumptions related to consumer protection, namely the information paradigm, may be adapted to the needs of people with disabilities.

5.

THE INFORMATION PARADIGM ADAPTED

As mentioned in section 3 above, the consumer protection framework is based on the so-called information paradigm,39 which is seen as the most effective tool to overcome the potential market failures emerging from the asymmetric position of traders and consumers. In the directives on unfair commercial practices, on the sale of consumer goods, on consumer rights and on alternative dispute resolution, the EU legislator placed emphasis on the obligation of the trader to provide plain and intelligible information to the consumer. Such mandated disclosure aims at achieving consumer self-determination – that is, it ensures that the recipient will have the required elements to rationally evaluate whether or not the good or service fits his/her personal preferences or needs – and, as a result, consumer choice will be maximized. Information provided by the trader should be understood by the consumer, in particular when dealing with legal or technical issues. That is the reason why the EU legislator added a set of adjectives related to the style of communication in the Directive on Unfair Contractual Terms, in the Directive on Consumer Rights and in the Directive on the Sale of Consumer Goods: information should be written in plain language and be clear and comprehensible to the consumer. Can the same rule be applicable in the case of people with disabilities when they act as consumers and require the adaptation of products or services to their particular needs? In other words, should the manufacturer adapt information to the different needs of people with cognitive or visual impairments? The answer is not straightforward, as certain differences emerge with regard to the content of the directives analysed above. First, according to the Directive on Unfair Contractual Terms, there is no reference to people with disabilities in relation to contractual terms. Thus, in this case, one may assume that traders will not be asked, ex ante, to provide contractual terms drafted in a form that may be understood by people with disabilities. Second, as briefly mentioned above, the Directive on Consumer Rights distinguishes between average and vulnerable consumers. In the latter case, the trader is requested to consider the needs of people with disabilities, for instance in case of negotiations with people with psychosocial or physical disabilities, and, consequently, to adapt the provision of information to such

38 Note that the Directive on Consumer ADR, adopted on the same date, does not include any reference to the issue of design-for-all requirements; rather, as will be clarified below, it only mentions the element of accessibility. 39 See generally Stefan Grundmann, Wolfgang Kerber and Stephen Weatherill (eds), Party Autonomy and the Role of Information in the Internal Market (De Gruyter 2001); see further Geraint Howells, André Janssen and Reiner Schulze (eds), Information Rights and Obligations: A Challenge for Party Autonomy and Transactional Fairness (Ashgate 2005).

The rights of people with disabilities in EU consumer law  353 contractual parties. This implies that the trader should be equipped with the skills necessary to recognize the specific needs that the consumer with disabilities may have and adapt his/ her conduct accordingly, without any request from the consumer him/herself.40 Although the recognition of age differences and specific physical impairments may be immediate for the trader (through direct contact with the counterparty), it may be difficult to detect the existence of psychosocial or cognitive impairments without having specific expertise or direct explanation of the fact by the consumer.41 In the event that consumers with disabilities claim a lack of transparency in relation to contractual provisions, the trader may seek to justify his/ her conduct on the basis that the impairment (or, more generally, the vulnerability) was not apparent. In addition, the Directive does not provide specific guidance with regard to ensuring accessibility of information; rather, the choice is left completely to the discretion of the trader. This, again, relies on the expertise of the trader, not only in identifying his/her potential consumers, but also in adapting contractual information to the different needs that they may have. The Directive on the Sale of Consumers Goods and the Directive on ADR mention accessible formats in information provision. The use of the term ‘accessible’ is crucial, as it links directly to the adapted design needed for certain people with disabilities.42 Traders are obliged to take into account different forms of presenting information about guarantees and claims procedures, as well as ADR procedures. Interestingly, in the Directive on the Sale of Consumer Goods, the consumer must make a request for such accessible formats, where relevant, whereas in the Directive on ADR, accessible information should be provided without such a request being made. As is evident from the analysis above, there is very limited scope for the protection of people with disabilities in relation to the mandatory disclosure mechanisms adopted by EU consumer protection law in general. Only in two directives is a clear reference to accessibility made, whereas, in the case of vulnerable consumers, the choice of if (and how) to adapt the information provided to the consumer is left to the trader. The recently adopted EAA does not provide for additional requirements in this context, as it does not take into account the contractual procedure, and focuses instead on the clarity and understandability of information regarding the use of the products covered by the Act.43 According to Waddington, however, the EU legislator could achieve the result of imposing on traders the obligation to provide adapted, yet understandable, information to people with disabilities by extending the application of the principle of non-discrimination to private relationships.44 This may have the effect of justifying the application of a measure already well known in the EU labour law area, namely the 40 Yvette Maker, Jeannie Paterson, Anna Arstein-Kerslake, Bernadette McSherry and Lisa Brophy, ‘From Safety Nets to Support Networks: Beyond “Vulnerability” in Protection for Consumers with Cognitive Disabilities’ (2018) 41(3) University of New South Wales Law Journal 818, p. 828. 41 Note that in case of distance selling or electronic contracts, it may be even more difficult, if not impossible, to detect the existence of an impairment. For a detailed empirical analysis of consumers with impairments in Lithuanian and UK markets see Ieva Eskytė ‘Disabled People’s Vulnerability in the European Single Market: The Case of Consumer Information’ (2019) 42 Journal of Consumer Policy 521, p. 528. 42 See supra Stelios Charitakis, ‘Accessibility of Goods and Services’, in this volume. 43 Article 5 of the Act specifies the obligations of manufacturers: ‘Manufacturers shall ensure that the product is accompanied by instructions and safety information in a language which can be easily understood by consumers and end-users, as determined by the Member State concerned’. See supra Stelios Charitakis, ‘Accessibility of Goods and Services’, in this volume. 44 Waddington, ‘The Protection of Consumers with Disabilities in the European Union’ (n 14) 112.

354  Research handbook on EU disability law reasonable accommodation duty. That duty requires the employer to provide changes to a job or to the work environment in order to enable a person with a disability to apply for a position, to perform the tasks involved and to advance in job functions or undertake training,45 subject to the adaptation not imposing a disproportionate burden on the employer. The adapted set of information to be provided by suppliers and traders could then be qualified as a reasonable accommodation, taking into account the proportionality of such burden.46 Although the principle of non-discrimination already applies in the contract law area in general,47 the adoption of the Proposal for a Council Directive on implementing the principle of equal treatment outside the labour market would extend the principle of equal treatment to private law relations.48 While the proposal still did not make it through the EU legislative process, in May 2019 a progress report on the ongoing debate regarding the proposal was published, showing there are still hopes that the document will result in a binding act.49 5.1

The Added Value of Technology

Research outside the purely legal field, such as that conducted in the fields of behavioural economics and cognitive psychology, has highlighted the lack of effectiveness of the information paradigm as such, in that the information provided by suppliers and traders is mostly disregarded, if not completely ignored, by consumers when making their consumer choices.50 Therefore, some authors have claimed that the information paradigm should be reformulated. In that connection, developments in technology may provide useful tools in order to improve the ability of consumers (those with or without disabilities) to understand contractual information.51 For instance, online tools may be exploited in order to tailor the information according

45 See Article 5 Directive 2000/78. For a recent analysis of the application of such principle, see Lisa Waddington and Andrea Broderick, ‘Disability Law and Reasonable Accommodation beyond Employment: A Legal Analysis of the Situation in EU Member States’ (European Commission 2016) https://​op​.europa​.eu/​en/​publication​-detail/​-/​publication/​154560d2​-d494​-4080​-90b5​-dacfc1b83094 accessed 7 February 2020. See supra Andrea Broderick and Philippa Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 46 Accordingly, where such a burden did exist, the obligation would lapse. However, suppliers and manufacturers would still be expected to take other reasonable steps to inform consumers. 47 See Reich, ‘Vulnerable Consumers in EU Law’ (n 29) 253; see further Gabriele Carapezza Figlia, ‘The Prohibition of Discrimination as a Limit on Contractual Autonomy’ (2018) 91 Italian Law Journal 91; for a more critical view, see Hugh Collins, ‘The Vanishing Freedom to Choose a Contractual Partner’ (2013) 76 Law and Contemporary Problems 71. 48 Commission, ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final. 49 See Council of the European Union, ‘Progress Report – Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ (2019) Interinstitutional File 2008/0140 (CNS) https://​data​.consilium​.europa​.eu/​ doc/​document/​ST​-9567​-2019​-INIT/​en/​pdf accessed 7 February 2020. 50 Christoph Busch, ‘The Future of Pre-Contractual Information Duties: From Behavioural Insights to Big Data’ in Christian Twigg-Flesner (ed), Research Handbook on EU Consumer and Contract Law (Oxford University Press 2016) 221–40, p. 221. 51 Daniel Kahneman, Thinking, Fast and Slow (Macmillan 2011); and Cass Sunstein, Choosing Not to Choose: Understanding the Value of Choice (Oxford University Press 2015), both cited in Christoph Busch, ‘The Future of Pre-Contractual Information Duties (n 50) 227.

The rights of people with disabilities in EU consumer law  355 to the customers’ preferences, highlighting the most relevant or most difficult contractual terms. This may be coupled with different formats of communication (such as pop-up boxes, embedded videos and the like). Moreover, big data analysis could also play a transformative role. As Busch affirms, it would be possible ‘to provide consumers with information that is tailored to their situations, personalities, demographic characteristics and cognitive capabilities. The provision of such behaviourally informed (“personalized”) information instead of standardised (“impersonal”) information could increase the relevance of a disclosure for the individual recipient of the information’.52 This approach may also take into account the different needs of people with disabilities: if a different quantity of information can be provided depending on the interests of consumers, this would allow for the provision of a lower level of information, containing a selection of informative content defined by the business, or a higher level of information, containing detailed information based on the requests of the consumer. It may be possible to add intermediary levels, whereby the information provided can be adapted to the personalized needs of consumers, taking into account their disabilities.53

6.

COLLECTIVE PROTECTION OF THE RIGHTS OF PEOPLE WITH DISABILITIES

One of the problems that characterizes consumer protection law, according to recent studies, is a so-called enforcement deficit.54 This is related to the limited opportunities for consumers to bring claims, and to the existence of economic and legal barriers to bringing those claims. It is also a result of the currently fragmented and ineffective mechanisms available for the protection of collective interests, such as in the case of representative actions or class actions. These issues triggered the recent intervention of the Commission regarding the New Deal for Consumers, already mentioned above. The New Deal for Consumers includes two main components: (i) a Proposal to amend the Directive on Unfair Terms in Consumer Contracts, the Directive on Consumer Protection in the Indication of the Prices of Products Offered to Consumers, the Directive on Unfair Business-To-Consumer Commercial Practices and the Directive on Consumer Rights; and (ii) a Proposal for a Directive on representative actions for the protection of the collective interests of consumers.55

Christoph Busch, ‘The Future of Pre-Contractual Information Duties’ (n 50) 232. Note that in this case, issues related to data protection can emerge. See Christoph Busch, ‘Implementing Personalized Law: Personalized Disclosures in Consumer Law and Data Privacy Law’ (2019) 86(2) The University of Chicago Law Review 309. 54 Commission, Study of National Procedural Laws and Practices in Terms of Their Impact on the Free Circulation of Judgments and on the Equivalence and Effectiveness of the Procedural Protection of Consumers under EU Consumer Law. Strand 2: Procedural Protection of Consumers (European Commission 2018) http://​ec​.europa​.eu/​newsroom/​just/​document​.cfm​?action​=​display​&​doc​_id​=​49503; and Study for the Fitness Check of EU Consumer and Marketing Law: Final Report (European Commission 2017) http://​ec​.europa​.eu/​newsroom/​just/​item​-detail​.cfm​?item​_id​=​59332 accessed 7 February 2020. 55 The proposals are available at https://​ec​.europa​.eu/​info/​law/​law​-topic/​consumers/​review​-eu​ -consumer​-law​-new​-deal​-consumers​_en accessed 7 February 2020. 52 53

356  Research handbook on EU disability law Among the two proposals for directives mentioned above, the Proposal for a Directive on representative actions may have an indirect effect on the protection of the rights of people with disabilities. As a matter of fact, the proposal pointed to the then drafting process of the EAA, affirming the possibility to interact with this legislation through the inclusion of the Act within the scope of the proposed directive. Accordingly, in the event of a violation of the accessibility requirements of the EAA by manufacturers or suppliers, ‘qualified entities’ (designated by the Member States) may bring representative actions seeking different types of measures for people with disabilities, such as interim or definitive measures. For instance, qualified entities such as not-for-profit associations aimed at protecting the interests of people with disabilities may request that courts impose measures eliminating the continuing effects of a violation,56 which could include redress orders such as compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. Although the inclusion of the EAA within the scope of the Proposal for a directive on representative actions may provide for a useful added enforcement mechanism, the proposed directive has a self-standing value in terms of the protection of people with disabilities. As a matter of fact, qualified entities may have the possibility to start a proceeding in the collective interests of a narrower group of consumers, namely consumers with disabilities who may be subject to the effect of a trader’s violation emerging from the breach of the wider scope of application of the proposed directive. Annex I of the proposed directive includes a long list of consumer protection legislation which could trigger collective claims. Through this proposed enforcement mechanism, it would be possible to overcome the purely individual dimension that characterizes the potentially discriminatory conduct of traders and professionals, and to emphasize its collective dimension. The issues related to vulnerable consumers highlighted above may be presented through a collective claim: for instance, the fact that contractual terms may lack a sufficient level of transparency for a class of consumers with disabilities may trigger a collective claim without the need for such conduct to directly affect any individual consumer. In that connection, the association or non-governmental organization (NGO) that takes the collective claim will not be required to provide proof of actual loss or damage on the part of the consumers concerned, or of intention or negligence on the part of the trader when they bring a claim seeking an injunction order. As a result, the claim may eventually lead to an injunction, imposing on traders an obligation to stop such conduct and to improve the level of transparency towards the same class of consumers before any harm occurs.57 Although the Proposal for a directive on representative actions still appears to lag behind the short legislative procedure initially envisaged, once approved it may exert indirect influence on the protection of people with disabilities when acting as consumers.

56 Given that Article 4(1) of the Proposal for a Directive on Representative Actions provides that the qualified entities should have ‘a legitimate interest in ensuring that provisions of Union law covered by this Directive are complied with’, it will be up to the Member States in their implementation of the Directive to identify whether associations or non-governmental organizations (NGOs) aimed at protecting the interests of people with disabilities in general may be classified as qualified entities, or whether there will be a need for an overlapping objective of protection, including also consumer protection. 57 See Article 5 of the Proposal for a Directive on representative actions.

The rights of people with disabilities in EU consumer law  357

7.

CONCLUDING REMARKS

EU consumer protection legislation has as its primary objective that of empowering consumers in order for them to be able to participate in the market, and take conscious and appropriate decisions. The main tool used by the EU legislator is the information paradigm, which requires traders and professionals to give consumers access to all relevant pieces of information that could help them in their purchasing decisions. The results of studies in cognitive psychology and behavioural economics, however, show that rational and logical decisions are far from being the common rule for consumers; rather, consumer decision-making is, in most cases, rationally bounded,58 even when consumers have been provided with the information that would allow them to avoid such conduct. It is necessary for EU law to both recognize and respond to this in some way, and to provide for adequate means of protecting consumers, going beyond mere information requirements. This is even more relevant in the context of people of disabilities who exercise their consumer rights. The current EU legal framework acknowledges the position of people with disabilities in very few cases, where their impairments lead to them being classified as ‘vulnerable consumers’. The concept of vulnerability, however, includes many types of physical and psychosocial impairments, but approaches them as the sole reason for the existence of limited contractual autonomy, and lacks any attention to the potential obstacles emerging from the market context. This is clearly in conflict with the approach adopted by the CRPD, which acknowledges that the barriers which individuals with impairments face as market actors can result in a disability. This reflects the social-contextual model of disability,59 as applied to the specific situation of the consumer market.60 The (limited) shift in EU law towards the evaluation of the diversity that characterizes every consumer is obviously a challenge for the market actors, who may have to modify their standard contract terms and practices according to the needs of consumers, and personalize the information (and eventually the supply of goods and services) to the individual consumer. Unfortunately the current EU framework relies only on the diligence of the trader or professional to reasonably foresee the impact of their advertising and contractual practices on vulnerable consumers, and to adapt their conduct in order to limit the negative effects on such consumers. This results in obvious difficulties related to the provision of information to people with different types of impairments. If, on the one hand, the provision of information in disability accessible formats on request (such as Braille and other disability accessible means) may represent a relatively straightforward solution, on the other hand, empowering people with disabilities in their consumer choices may require additional efforts that traders and professionals may perceive as being not only disproportionate, but also contrary to their fundamental freedom to contract. 58 Bounded rationality, according to the first conceptualization provided by Herbert Simon, is the idea that human rationality is not perfect; rather, it is limited by several elements, namely the tractability of the decision problem, the cognitive limitations of the mind and the time available to make the decision. See Herbert Simon, ‘A Behavioral Model of Rational Choice’ (1955) 69(1) The Quarterly Journal of Economics 99. 59 See Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 77. See also supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 60 Waddington, ‘The Protection of Consumers with Disabilities in the European Union’ (n 14) 104.

358  Research handbook on EU disability law The recent Proposal for a Directive on Representative Actions for consumers may be the instrument that can link the individual dimension of consumer law, needed by people with disabilities acting as consumers, with the collective dimension, needed by the EU legislator in order to identify a collective interest that is subject to legitimate protection. Through this proposed enforcement mechanism, potentially discriminatory conduct of traders and professionals may trigger a collective claim without the need to ensure that such conduct directly affected any individual consumer. As an ex ante procedure, it may become a useful tool for associations or NGOs to signal the potentially distorting effect of the conduct on the selected class of consumers and avoid the occurrence of the harm. According to the analysis presented in this contribution, although EU consumer protection law shows signs of paying increased attention to the needs of people with disabilities, the weaker position of consumers vis-à-vis traders and professionals within the internal market and the specific needs of certain persons with disabilities mean that the attention provided to so-called vulnerable consumers is still limited. Thus, the current legislative framework at EU level still needs to improve its ability to protect the diverse needs of consumers, including consumers with disabilities.

20. Disability in EU asylum law Carmine Conte

1. INTRODUCTION Persons with disabilities are often overlooked in the design and implementation of EU and international laws that concern forced migration, humanitarian actions and emergencies. However, they represent one of the most vulnerable and invisible groups of individuals, encountering several obstacles in the context of forced displacement and in the subsequent process of claiming asylum. A survey conducted by the United Nations Office for Disaster Risk Reduction (UNDRR; formerly UNISDR) found that 70 per cent of persons with disabilities had no personal preparedness plan, and only 17 per cent were aware of any disaster management plan in their community.1 The World Health Organization (WHO) underlines that persons with disabilities make up around 15 per cent of the global population and suggests that several million disabled people have been forcibly displaced.2 The guidance provided by the UN High Commissioner for Refugees (UNHCR) also points out that persons with disabilities are ‘at particular risk because they may be invisible, and because they are less able to participate actively in decisions that concern them and are less likely to have their protection needs met’.3 The Charter on Inclusion of Persons with Disabilities in Humanitarian Action expressly recognizes that the multiple and intersecting forms of discrimination further exacerbate the exclusion of all persons with disabilities in situations of risk and humanitarian emergencies and whether they are living in urban, rural or remote areas, in poverty, in isolation or in institutions, and regardless of their status, including migrants, refugees or other displaced persons, and that crisis often leads to further impairment.4

As a result of their impairments, persons with disabilities face several problems in moving, hearing, seeing and communicating during forced displacement. Moreover, they are at higher risk of violence, including sexual and domestic abuse, discrimination and exclusion from access to humanitarian assistance, education and healthcare.5 Persons with disabilities are also at risk of being persecuted because of their impairments. For instance, individuals with albinism suffer from persecution and discrimination in several countries in Africa, including 1 United Nations High Level Political Forum on Sustainable Development, ‘Position Paper by Persons with Disabilities’ (2016) https://​sustainabledevelopment​.un​.org/​index​.php​?page​=​view​&​type​=​ 30022​&​nr​=​261​&​menu​=​3170 accessed 1 February 2020. See also United Nations Office for Disaster Risk Reduction (UNDRR), ‘UN Global Survey Explains Why So Many People Living with Disabilities Die in Disasters’ (UNDRR, 10 October 2013) www​.unisdr​.org/​archive/​35032 accessed 1 February 2020. 2 United Nations High Commissioner for Refugees (UNHCR), Working with Persons with Disabilities in Forced Displacement (UNHCR 2011). 3 Ibid 3. 4 See the Charter on Inclusion of Persons with Disabilities in Humanitarian Action (2016) http://​ humanitariandisabilitycharter​.org accessed 1 February 2020. 5 Ibid 3.

359

360  Research handbook on EU disability law Kenya, Tanzania, Mozambique and Burundi, where superstitions and myths put them at daily risk of bodily harm.6 Since the emergence of the so-called refugee crisis in 2015, the number of asylum seekers has increased to 1.2 million in Europe, compared to about 500,000 in 2014.7 Globally speaking, the UNHCR’s annual Global Trends study found that 68.5 million people across the world were forcibly displaced at the end of 2017.8 Against this background, the European Union (EU) and the international community gradually re-opened the debate concerning new common policies on the mobility of people, to ensure better cooperation among the Member States for the protection of refugees. In order to examine these developments, this contribution adopts the following structure. Following these brief introductory remarks, section 2 explores how refugees with disabilities are protected under international law, and briefly analyses three legal instruments: the Global Compact on Refugees (GCR);9 the UN Convention Relating to the Status of Refugees (1951 Geneva Convention);10 and the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention).11 Section 3 introduces the EU legal framework on asylum and the Common European Asylum System (CEAS), including the Qualification Directive 2011/95/ EU,12 the Asylum Procedures Directive 2013/32/EU,13 and the Reception Directive 2013/33/ EU.14 The interplay between EU asylum law and the CRPD is also explored in section 3. In section 4, the extent to which the main CEAS legal instruments address the rights of refugees and asylum seekers with disabilities is explored in greater detail. The analysis in that section also focuses on the current reform of the CEAS and the pending proposals of the European Commission. Finally, the contribution provides some concluding remarks in section 5, examining whether the protection of refugees with disabilities under EU law is in line with the CRPD.

6 European Parliament, ‘Motion for a resolution with request for inclusion in the agenda for a debate on cases of breaches of human rights, democracy and the rule of law pursuant to Rule 135 of the Rules of Procedure on the situation of albinos in Africa, notably in Malawi’ (2016/2807(RSP). See Committee on the Rights of Persons with Disabilities (CRPD Committee), X v Tanzania, UN Doc. CRPD/C/18/D/22/2014 (2017). 7 Massimo Bordignon and Simone Moricon, ‘The Case for a Common European Refugee Policy’ (2017) 8 Bruegel Policy Contribution. 8 UNHCR, Global Trends – Forced Displacement in 2017 (United Nations High Commissioner for Refugees 2017). 9 UNHCR, Report of the United Nations High Commissioner for Refugees – Part II Global Compact on Refugees, General Assembly Official Records Seventy-third Session Supplement No. 12, UN Doc. A/73/12 (Part II) (United Nations High Commissioner for Refugees 2018). 10 UN Convention Relating to the Status of Refugees, 28 July 1951, in force 22 April 1954, UN Doc. 189 UNTS 137 (Refugee Convention). 11 Annex I UN Convention on the Rights of Persons with Disabilities, 13 December 2006, in force 03 May 2008, UN Doc. A/RES/61/106. 12 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9. 13 Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) [2013] L180/60. 14 Directive 2013/33/EU laying down standards for the reception of applicants for international protection [2013] OJ L180/96.

Disability in EU asylum law  361

2.

INTERNATIONAL LAW

2.1

The Global Compact on Refugees

The Global Compact on Refugees (GCR), adopted in December 2018 by the UN General Assembly, introduced important provisions concerning refugees with disabilities. The GCR aims to enhance responsibility-sharing among UN Member States and stakeholders for hosting refugees.15 The CGR points out the importance of addressing the specific needs of refugees by providing additional resources and targeted assistance. Persons with disabilities are recognized as ‘persons with specific needs’, along with children, women at risk, adolescents and youth, older persons and other vulnerable groups.16 With regard to immediate reception arrangements, the GCR requires the UNHCR, States, and relevant stakeholders to improve national capacities for the reception of refugees, requiring in particular the establishment of reception and transit areas sensitive to disability and other specific needs.17 To do so, ‘safe spaces’ and ‘alternatives to camps’, away from borders, should be established, in order to provide basic humanitarian assistance and essential services. The specific education needs of refugees should also be addressed through the establishment of ‘safe schools’ and ‘innovative methods’, such as ‘online education’. In particular, barriers to accessing education for persons with disabilities and those with psychosocial trauma should be eliminated through flexible, certified learning programmes.18 The GCR emphasizes that, in order to provide evidence-based responses, States and relevant stakeholders should systematically develop and collect disability-disaggregated data on refugees and returnees.19 On the basis of the above, it may be said that the GCR has the potential to improve the international protection of refugees with disabilities. 2.2

The UN Convention relating to the Status of Refugees

Persons with disabilities are not explicitly protected under the UN Convention relating to the Status of Refugees, which represents the main legal instrument in international law designed to protect asylum seekers. The Introductory Note to that Convention merely sets out that it must be ‘applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination’. The Refugee Convention generally covers those individuals who meet the criteria established under Article 1A (2), according to which the term ‘refugee’ shall apply to any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who,

15 Sergio Carrera and Roberto Cortinovis, ‘The EU’s Role in Implementing the UN Global Compact on Refugees Contained Mobility vs. International Protection’ (2019) Centre for European Policy Research (CEPS) Paper No. 2018-04. 16 UNHCR, Report of the United Nations High Commissioner for Refugees – Part II Global Compact on Refugees (n 9) 59. 17 Ibid 54. 18 Ibid 21. 19 Ibid 46.

362  Research handbook on EU disability law not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.20

The fear of persecution must therefore be linked to one of five characteristics, namely race, religion, nationality, membership of a particular social group or political opinion.21 In light of this definition, persons with disabilities may face several obstacles in obtaining international protection, and in meeting the legal requirements enshrined in the definition of ‘refugee’.22 Disability is indeed not expressly recognized as a ground of persecution that could justify the grant of international protection. However, persons with disabilities could claim persecution on the grounds of ‘membership of a particular social group’ and, consequently, fall under the Convention’s definition of ‘refugee’.23 Despite the lack of a common understanding and interpretation of this ground of persecution, the UNHCR clarifies that there is no closed list of the groups that may constitute a ‘particular social group’; it should, instead, be considered in ‘an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms’.24 As a result, the UNHCR proposes a definition of ‘particular social group’ that includes those persons who ‘share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.’25 The approach suggested by the UNHCR combines two different models: the ‘protected characteristics’ and the ‘social perception’ models.26 The first one explores whether a group shares an immutable characteristic perceived as fundamental for human dignity, which may be innate (such as sex or ethnicity) or unalterable for other reasons (such as the historical fact of a past association, occupation or status).27 A restrictive interpretation according to this approach would risk excluding those refugees who do not have an immutable disability. By contrast, the ‘social perception’ approach focuses on the common characteristic of a particular group, which makes them a cognizable group or sets them apart from society at large.28 This approach tends to extend international protection to refugees with disabilities, but it could be a barrier for those asylum seekers with intellectual disabilities who are not immediately rec-

Ibid. Pieter Boeles, Maarten Den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (Intersentia 2014 2nd edn). 22 Carmine Conte, ‘What about Refugees with Disabilities? The Interplay between EU Asylum Law and the UN Convention on the Rights of Persons with Disabilities’ (2016) 18 European Journal of Migration and Law 327. 23 Mary Crock, Christine Ernst and Ron McCallum, ‘Where Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities’ (2013) 24 International Journal of Refugee Law 735; Catherine Fahy, ‘Disability and Asylum Law’ (2015) 10 The Researcher 12. 24 UNHCR, ‘Guidelines on International Protection No. 2: “Membership of a Particular Social Group” within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees’, UN Doc. HCR/GIP/02/02 (2002) para 11. 25 Ibid. 26 Ibid. 27 Andreas Zimmerman and Claudia Mahler, ‘Article 1 A, para 2, 1951 Convention’ in Andreas Zimmerman (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press 2011) 281–466. 28 Ibid 392. 20 21

Disability in EU asylum law  363 ognized as disabled by society.29 It may be argued that the 1951 Geneva Convention contains some legal gaps that can undermine the effective protection of refugees with disabilities. On the contrary, the CRPD represents a legal instrument that sets out clear obligations to reasonably accommodate the needs of asylum seekers with disabilities, as will be described in the next sub-section below. 2.3

The UN Convention on the Rights of Persons with Disabilities

The UN Convention on the Rights of Persons with Disabilities (CRPD) was formally adopted by the UN General Assembly in December 2006 and entered into force in May 2008. The UN Convention is the first UN human rights treaty to which the EU became a Party. The EU’s ratification of the CRPD establishes a clear obligation in law for its provisions to be taken into account in interpreting EU primary and secondary legislation.30 As discussed in the Introduction to this Research Handbook, the specific purpose of the UN Convention is to promote the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. To this end, the CRPD has adopted a human rights model of disability, which considers that disability stems from the interaction between people with impairments and social barriers, and which takes into account the diversity of individuals with disabilities.31 Even if the legal framework of the CRPD is specifically tailored to the particular needs of persons with disabilities, its scope is very broad, both ratione personae and ratione materiae.32 The CRPD requires States Parties to mainstream the rights of persons with disabilities in all of their policies and programmes, including migration and asylum policies.33 In addition, the CRPD represents the first international human rights treaty that includes a specific provision concerning situations of risk and humanitarian emergencies. Article 11 sets out that: States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.

Conte, ‘What about Refugees with Disabilities?’ (n 22). See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume; see also supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 31 Committee on the Rights of Persons with Disabilities (CRPD Committee), General comment No. 6 on equality and non-discrimination, UN Doc. CRPD/C/GC/6 (2018) para 9. See Theresia Degener, ‘Disability in a Human Rights Context’ (2016) 5 Laws 35; see further Theresia Degener, ‘A Human Rights Model of Disability’ in Peter Blanck and Eilionóir Flynn (eds), Routledge Handbook of Disability Law and Human Rights (Routledge 2017) 31–50; see also Silvia Favalli and Delia Ferri, ‘Defining Disability in the EU Non-discrimination Legislation: Judicial Activism and Legislative Restraints’ (2016) 22 European Public Law 541. 32 Delia Ferri, ‘The Role of the European Union in Protecting the Rights of Asylum Seekers with Disabilities’ in Serena Baldin and Moreno Zago (eds), Europe of Migrations (Edizioni Università di Trieste 2017) 89–106, p. 94. 33 Ibid. 29 30

364  Research handbook on EU disability law It is arguable that this provision expressly addresses the right of persons with disabilities in situations of humanitarian emergencies and, therefore, includes refugees and asylum seekers within the CRPD’s personal scope. In situations of armed conflict, humanitarian emergencies and natural disasters, individuals are often obliged to leave their countries in order to reach a place of safety. Against this background, persons with disabilities should also benefit from the rights enshrined in the CRPD, along with the fundamental provisions of the 1951 Geneva Convention. The CRPD complements the obligation to ensure the protection and safety of persons with disabilities in situations of risk by means of Article 2, which enshrines the definition of the duty to provide reasonable accommodation. It encompasses ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. Reasonable accommodation represents the cornerstone of the CRPD, and is one element of a new model of ‘inclusive equality’ which underpins an accommodating dimension to make space for difference as a matter of human dignity.34 This provision plays a peculiar ‘bridging role’ between civil, political, economic, social and cultural rights, and promotes the absolute indivisibility of all human rights.35 Asylum seekers and refugees must be provided with necessary reasonable accommodations in order to enjoy and exercise their fundamental rights.36 Bearing in mind these obligations, the EU legal framework, and the interplay between the CRPD and the CEAS, will be examined in the next section below. The aim of this analysis is to assess whether the EU is complying with its international obligations relating to the protection of refugees with disabilities.

3.

THE EU LEGAL FRAMEWORK

3.1

Overview of the Common European Asylum System

The EU competence for asylum now stems from Articles 67(2), 78 and 80 of the Treaty on the Functioning of the EU (TFEU), according to which the Union shall develop a common policy on asylum, subsidiary protection and temporary protection, in line with the 1951 Geneva Convention. Policies of the Union concerning border checks, asylum and immigration shall be 34 CRPD Committee, General Comment No. 6 on equality and non-discrimination (n 31) para 11. See also Lisa Waddington and Andrea Broderick, Combatting Disability Discrimination and Realising Equality: A Comparison of the UN Convention on the Rights of Persons with Disabilities and EU Equality and Non-discrimination Law (European Commission 2018). 35 See generally Anna Lawson, ‘The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds), The United Nations Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 81–109; see also Janet E Lord and Rebecca Brown, ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’ in Janet E Lord and Rebecca Brown (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff Brill 2011) 273–307, p. 273. 36 Ferri, ‘The Role of the European Union in Protecting the Rights of Asylum Seekers with Disabilities’ (n 32).

Disability in EU asylum law  365 governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Developments related to asylum started to take shape in Tampere on 15 and 16 October 1999 when the European Council worked on the creation of an area of freedom, security and justice.37 The importance of harmonizing national legislation in the area of asylum law and of promoting the establishment of a CEAS was recognized. The CEAS aims to set common standards in the field of international protection, and develop common concepts and criteria for the interpretation and application of asylum law among EU Member States.38 The main short-term objective of the CEAS was the adoption of a clear legal framework, in order to identify the State responsible for the examination of an asylum application, and to establish common minimum standards for a fair and efficient asylum procedure. The CEAS also aimed to create common minimum conditions of reception of asylum seekers and to approximate rules on the recognition and content of the refugee status. 39 To date, EU asylum law has experienced significant developments, and several pieces of legislation have been adopted to implement the ambitious goals of the CEAS.40 To give some recent examples, at the end of 2011,41 the Qualification Directive on standards for a uniform status for refugees or for persons eligible for subsidiary protection entered into force;42 in addition, the recast Procedures Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status,43 and the recast Reception Directive laying down standards for the reception of applicants for international protection,44 entered into force on 21 July 2015. However, the so-called refugee crisis in 2015 profoundly affected all EU Member States. It highlighted the necessity to reform the existing EU asylum rules and promote fairer sharing of responsibilities among Member States. Eurostat’s data show that around 1.3 million asylum applications were lodged in both 2015 and 2016, approximately double the number registered during the previous peak of 1992 within the EU-15.45 By contrast, in 2018 the number of asylum applicants dropped drastically to 638,000, down by more than half of the requests in 2016. These statistics seem to confirm the political approach of the EU 37 Diana-Urania Galletta, ‘The European Asylum Policy: Towards a Common European Asylum System’ (2008) 5 Rivista Italiana di Diritto Pubblico Comunitario 1339. 38 European Asylum Support Office, An Introduction to the Common European Asylum System for Courts and Tribunals: A Judicial Analysis (European Asylum Support Office 2016). 39 Tampere European Council, Presidency Conclusions, 15 and 16 October 1999, para 13. 40 Sergio Marchisio, ‘Rifugiati, profughi e altre esigenze di protezione nel diritto comunitario’ in Umberto Leanza (eds), Le migrazioni: una sfida per il diritto internazionale, comunitario, interno (Editoriale Scientifica Napoli 2005) 327–44. 41 Caitlin Katsiaficas, ‘The Common European Asylum System as a Protection Tool: Has the European Union Lived Up to Its Promises?’ (2014) 7 EU Migration Policy Working Paper 1. 42 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2001] OJ L337/9. 43 Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60. 44 Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96. 45 Statistics on asylum in the EU are available on the website of Eurostat: https://​ec​.europa​.eu/​ eurostat/​statistics​-explained/​index​.php/​Asylum​_statistics​#Number​_of​_asylum​_applicants:​_drop​_in​ _2018 accessed 1 February 2020.

366  Research handbook on EU disability law to reinforcing its external borders and processing asylum offshore. The EU’s response to the increasing arrivals of refugees in 2015/16 was mostly characterized by the externalization of asylum policies in order to prevent asylum seekers from reaching European territory and accessing asylum procedures.46 In this context the CEAS reform, which includes seven legislative proposals made by the European Commission, is deadlocked and remains highly difficult.47 Major political and legal obstacles are impeding a comprehensive reshuffle of the whole asylum package. In particular, the reform of the Dublin Regulation,48 and the responsibility allocation mechanism, are insurmountable issues in the ongoing negotiations among the Member States. The political impasse that characterizes the CEAS reform has led to the introduction of emergency and temporary measures to manage the increasing flows of migrants to Europe.49 The legal and political uncertainty around the future of EU asylum law may have a negative impact on the fundamental rights of asylum seekers, especially those vulnerable groups such as persons with disabilities who are forced to flee their countries in highly disadvantageous situations. 3.2

The Legal Interplay between EU Asylum Law and the CRPD

As discussed elsewhere in this Research Handbook, the ratification of the CRPD imposes on the EU the legal obligation to enact Union secondary legislation that is in compliance with it.50 The EU therefore has the duty to enhance the protection of refugees with disabilities in the upcoming reform of the CEAS, in order to comply with the CRPD. As noted above, the CRPD also applies to situations of risk and humanitarian emergencies by virtue of its Article 11 and requires Parties to improve the international protection of asylum seekers with disabilities. It is also worth noting that the CRPD’s implementation is monitored by the UN Committee on the Rights of Persons with Disabilities (CRPD Committee). All Parties to the UN Convention have the obligation to submit regular reports to the Committee on how the rights are being implemented at national level. Parties must report initially within two years of the entry into force of the UN Convention for the Party concerned, and thereafter every four years. 46 European Council on Refugees and Exiles (ECRE), ‘Asylum at the European Council 2018: Outsourcing or Reform? ECRE’s Analysis of the Proposals Launched at the June 2018 European Council and Its Updated Assessment the CEAS Legislative Reforms, with Recommendations on the Compromise Texts’ (ECRE 2018) www​.ecre​.org/​wp​-content/​uploads/​2018/​08/​Policy​-Papers​-04​.pdf accessed 1 February 2020. 47 Sergio Carrera, ‘An Appraisal of the European Commission of Crisis: Has the Juncker Commission Delivered a New Start for EU Justice and Home Affairs?’ (Centre for European Policy Studies 2018) https://​ssrn​.com/​abstract​=​3420797 accessed 1 February 2020. 48 The EU Dublin Regulation (Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] L180/31) establishes the criteria and mechanisms for determining which EU Member State is responsible for examining an asylum application. The current system requires the first State of irregular entry to be responsible for assessing asylum claims. The European Parliament instead proposed to adopt a compulsory relocation system and replace the first irregular entry-rule of the Dublin Regulation. See Sergio Carrera, ‘An Appraisal of the European Commission of Crisis’ (n 47) 22. 49 Roberto Cortinovis, ‘Responsibility Sharing in EU Asylum Policy’ (2018) Research Social Platform on Migration and Asylum, Discussion Policy Brief www​.resoma​.eu/​sites/​resoma/​resoma/​files/​ policy​_brief/​pdf/​Policy Briefs_topic2_Responsibility sharing_1.pdf accessed 1 February 2020. 50 Piet Eeckhout, EU External Relations Law (Oxford University Press 2011).

Disability in EU asylum law  367 The Committee examines each report and adopts general recommendations to the Party concerned. In this regard, in 2015, the CRPD Committee released a list of issues in relation to the initial report submitted by the EU.51 It expressly urged the EU to explain ‘how the Directorate General for Humanitarian Aid and Civil Protection (DG ECHO) ensures that humanitarian aid and relief from the EU are inclusive of and accessible to all persons with disabilities’.52 The Committee specifically asked for reliable information about the situation of refugees with disabilities in the EU. The Committee’s conclusions confirm the urgency of addressing the situation of asylum seekers with disabilities and providing for a human-rights based response to the refugee crisis. Moreover, the Committee, in its Concluding Observations on the initial report of the EU, noted with ‘deep concern the precarious situation of persons with disabilities in the current migrant crisis in the European Union’.53 It also outlined that migrants and asylum seekers with disabilities continue to be detained within the EU in conditions which do not provide appropriate support and reasonable accommodation.54 The Committee was concerned that the migration decision-making procedure is not accessible for all persons with disabilities, and that information and communications are not provided in accessible formats. The Committee recommended that the EU mainstream disability in its migration and refugee policies, and that it issue guidelines to its agencies and Member States, clarifying that the restrictive detention of migrants and asylum seekers with disabilities is not in line with the UN Convention.55 In its reply to the list of issues raised by the UN Committee, the European Commission emphasized that its ‘mandate in humanitarian aid includes the provision of needs-based assistance in particular to the most vulnerable, which often includes persons with disabilities; the needs of persons with disabilities are expected to be mainstreamed in operations within all sectors of humanitarian aid’.56 The Commission also provided guidance on quality programming to better address the needs of vulnerable groups in humanitarian emergencies, and worked on humanitarian guidelines on shelter and settlements, in which the needs of persons with disabilities have been considered. In the General Guidelines on Operational Priorities for Humanitarian Aid, adopted in 2018, the Commission highlights that persons with disabilities are often disproportionately affected by natural and man-made disasters, and that they face multiple barriers in accessing humanitarian services, such as water, shelter or food, and may have specific protection needs.57 The Guidelines point out that DG ECHO will develop standards for EU-funded humanitarian projects, to ensure that the specific needs of persons with disabilities are adequately addressed

51 CRPD Committee, List of Issues in Relation to the Initial Report of the European Union, UN Doc. CRPD/C/EU/Q/1 (2015). 52 Ibid 15. 53 CRPD Committee, Concluding Observations on the Initial Report of the European Union, UN Doc. CRPD/C/EU/CO/1 (2015) 34. 54 Ibid. 55 Ibid 35. 56 Commission, ‘Staff Working Document: Reply of the European Union to the List of Issues in Relation to the Initial Report of the European Union on the Implementation of the UN Convention on the Rights of Persons with Disabilities’ SWD (2015) 127 final. 57 Commission, ‘Staff Working Document: General Guidelines on Operational Priorities for Humanitarian Aid in 2018’ SWD (2017) 464 final.

368  Research handbook on EU disability law and that EU humanitarian action is more inclusive.58 Furthermore, EU-funded humanitarian partners should include people with disabilities in their action.59 The Humanitarian Shelter and Settlements Guidelines of DG ECHO confirm that shelter and settlements assistance should take into account the potential exclusion of minorities and/or groups of individuals, such as people with disabilities, from certain programmes. Targeting beneficiaries should include the specific vulnerabilities of the affected population, such as those relating to disabled individuals.60 The extent to which the main CEAS legal instruments address the rights of refugees and asylum seekers with disabilities is explored in greater detail in section 4 below.

4.

DISABILITY IN THE COMMON EUROPEAN ASYLUM SYSTEM

4.1

The Qualification Directive and the Criterion of ‘Membership of a Particular Social Group’

The Qualification Directive 2011/95/EU represents a crucial instrument of the CEAS, which lays down the conditions for the qualification and status of third-country nationals (TCNs) and stateless persons as refugees or as persons who otherwise need international or subsidiary protection. One of the main objectives of the Qualification Directive is to set out common criteria for the identification of beneficiaries of international protection and to ensure the application of a minimum level of benefits for those individuals in all Member States. To do so, the Directive embodies the same definition of ‘refugee’ as the 1951 Geneva Convention does under Article 2(d). In accordance with international law, the specific ground of ‘disability’ is not included under the grounds of persecution that qualify for international protection.61 The Qualification Directive merely refers to persons with disabilities in the general rules concerning the content of international protection. Article 20(3) of the Directive lays down that Member States shall take into account the specific situation of vulnerable persons, including disabled people. Nevertheless, the Directive expressly acknowledges only those acts of a gender-specific or child-specific nature as specific forms of persecution without considering acts based on disability (Article 9(2f) Directive 2011/95/EU). On the other hand, persons with disabilities are mentioned with regard to access to healthcare. In that regard, Article 30 of the Directive 2011/95/EU imposes on Member States the duty to provide, under the same eligibility conditions as apply to nationals, adequate healthcare, including treatment of psychosocial (mental) disorders, when needed, for beneficiaries of international protection who have special needs, such as disabled people.

Ibid 8. Ibid. 60 Commission, Humanitarian Shelter and Settlements Guidelines: DG Echo Thematic Policy Document No. 9 (European Commission 2017). 61 See generally Clara Straimer, ‘Between Protection and Assistance: Is There Refuge for Asylum Seekers with Disabilities in Europe?’ (2016) 26 Disability & Society 537. 58 59

Disability in EU asylum law  369 Against this background, asylum seekers with disabilities can only benefit from the protection afforded on the ground of ‘membership of a particular social group’. However, the jurisprudence of the Court of Justice of the EU (CJEU) raises some concerns with regard to the interpretation of this concept. In the joined cases of Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel, the CJEU was called on to interpret the meaning of ‘acts of persecution’ and to decide whether foreign nationals with a homosexual orientation form a particular social group, as referred to in Article 10(1)(d) of the Qualification Directive.62 The CJEU clarified that the cumulative combination of two different approaches (‘protected characteristics’ and ‘social perception’) is required in order to consider an applicant as a member of a particular social group. The CJEU stated that a group is regarded as a particular social group when, inter alia, two conditions are met. First, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it. Second, that group has a distinct identity in the relevant country, as a result of being perceived as ‘different’ by the surrounding society.63 It is notable that persons with psychosocial and intellectual disabilities risk being excluded from this legal definition, because of the difficulties encountered in promptly detecting and recognizing their disability.64 In addition, asylum seekers who are perceived as being ‘different’ by society, but do not share an immutable or innate characteristic, will not be considered eligible for international protection. It may be argued that the CJEU’s interpretation of the criterion of ‘membership of a particular social group’, a criterion established in the context of fear of persecution based on sexual orientation, is not transferable to the situation of persons with disabilities. The CJEU’s approach falls short of the Guidelines on Sexual Orientation and Gender Identity of the UNHCR, which set out that ‘the two approaches – ‘protected characteristics’ and ‘social perception’ – to identifying ‘particular social groups’ are alternative, not cumulative tests’.65 Moreover, the CRPD contains, under Article 4(1) thereof, a clear obligation to promote the full realization of all human rights for all persons with disabilities without discrimination, and disability emerges as a protected status within the ‘protected characteristics’ approach, defining the concept of ‘membership of a particular social group’.66

62 Joined Cases C‑199/12 and C‑201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel EU:​C:​2013:​720. See Madeline Garlick, ‘International Protection in Court: The Asylum Jurisprudence of the Court of Justice of the EU and UNHCR’ (2015) 34 Refugee Survey Quarterly 107. 63 Joined Cases C‑199/12 and C‑201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel EU:​C:​2013:​720, para 45. 64 See generally Conte, ‘What about Refugees with Disabilities?’ (n 22). 65 UNHCR, ‘Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’, UN Doc. HCR/GIP/12/09 (2012). 66 Michelle Foster, ‘The Ground with the Least Clarity: A Comparative Study of Jurisprudential Developments Relating to “Membership of a Particular Social Group”’, Legal and Protection Policy Research Series, UN Doc. PPLA/2012/02 (2012).

370  Research handbook on EU disability law 4.1.1

The Commission’s Proposal for a regulation on standards for the qualification of third-country nationals as beneficiaries of international protection: another missed opportunity? In the context of the second package of reforms of the CEAS, the proposal for a Qualification Regulation was published on 13 July 2016 by the Commission, to repeal the existing recast Qualification Directive.67 The Commission underlined the importance of providing a more harmonized approach under EU law in light of emerging differences in recognition rates and in the rights provided for in the national asylum systems attached to the protection status.68 The Commission’s proposal does not make any improvements with regard to the protection of asylum seekers with disabilities, and it still fails to include disability in the grounds of persecution. It is argued that new EU qualification norms are urgently required to address today’s protection needs and comply with the CRPD’s obligations. In a similar vein, the UNHCR recommended that Member States provide, in their legislation, further examples of groups which can qualify for refugee status (beyond the example of sexual orientation), such as ‘gender, age, disability, and health status’.69 The UNHCR’s annotations confirm that an extension of the personal scope of the Qualification Directive to disabled people would be a crucial step to further improve the protection of asylum and refugees with disabilities in Europe. However, the Commission’s proposal missed the opportunity to put into practice the UNCHR’s recommendations. Beneficiaries of international protection who have special needs, including disabled people, are expressly mentioned under only two provisions of the Commission’s 2016 proposal. According to Article 22(4), their specific situation shall be taken into account when an individual evaluation of their situation establishes that they have special needs. Furthermore, Article 35 (on access to healthcare) requires that adequate healthcare, including treatment of ‘mental disorders’ when needed, shall be provided to persons with disabilities under the same eligibility conditions as nationals of the Member State that has granted protection. The proposed legal framework does not reinforce the existing guarantees for asylum seekers with disabilities who may face several obstacles in being considered eligible for international protection due to the lack of an explicit reference to persecution on the ground of disability.70

67 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents’ COM (2016) 466 final. 68 Ibid 8. See ECRE, ‘Comments on the Commission Proposal for a Qualification Regulation COM (2016) 466’ (2016) www​.ecre​.org/​wp​-content/​uploads/​2016/​11/​ECRE​-Comments​-QR​.pdf accessed 30 March 2020. 69 UNHCR, ‘Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (OJ L304/12 of 30.9.2004)’ (UNHCR, 28 January 2005) 23 www​.refworld​.org/​ docid/​4200d8354​.html accessed 19 February 2020. 70 Ferri, ‘The Role of the European Union in Protecting the Rights of Asylum Seekers with Disabilities’ (n 32) 97.

Disability in EU asylum law  371 4.2

The Current Asylum Procedure and the Proposal for a Regulation

The Asylum Procedures Directive aims to establish common procedures for granting and withdrawing international protection.71 The Directive regulates fundamental procedural issues such as access to asylum for detainees, as well as the authority responsible for the examination of applications and the rules on the registration of claims.72 However, the goal of harmonizing national legislation related to procedural safeguards for asylum applicants has been widely frustrated by the Member States’ priority to protect practices and legal concepts existing at national level.73 As a result, the Commission proposed to adopt a regulation to achieve a higher level of harmonization in this area across all Member States, and to remove incentives for ‘asylum shopping’ and secondary movements between countries.74 The Commission’s proposal also seeks to ensure ‘a rapid and effective decision-making process that is in the interest of both the applicants, enabling them to get clarity on their legal status, and of the Member States, leading to savings in reception and administrative costs’.75 4.2.1 Persons with disabilities as applicants with special procedural needs The rights of persons with disabilities are not expressly addressed in the Asylum Procedures Directive, which instead enshrines a flexible and open definition of ‘applicant in need of special procedural guarantees’. This category should include every applicant whose ability to benefit from the rights and comply with the obligations provided for in the Directive is limited due to individual circumstances.76 Therefore, asylum seekers with disabilities may enjoy the preferential treatment ensured by the Procedures Directive by falling under the legal definition of ‘applicant in need of special procedural guarantees’. Applicants with special procedural needs are mentioned in the Preamble to the Directive, which affirms that certain applicants may be in need of special procedural guarantees due, inter alia, to their age, gender, sexual orientation, gender identity, disability, serious illness or mental disorders; or as a consequence of torture, rape or other serious forms of psychological, physical or sexual violence.77 According to the Directive, EU Member States have the primary obligation to identify applicants in need of special procedural guarantees before a first instance decision is taken.78 In addition, those applicants ‘should be provided with adequate support, including sufficient time, in order to create the conditions necessary for their effective access to procedures and for presenting the elements needed to substantiate their application for

71 Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60. 72 Cathryn Costello and Emily Hancox, ‘The Recast Asylum Procedures Directive 2013/32/ EU: Caught Between the Stereotypes of the Abusive Asylum Seeker and the Vulnerable Refugee’ in Vincent Chetail, Philippe De Bruycker and Francesco Maiani (eds), Reforming the Common European Asylum System: The New European Refugee Law (Martinus Nijhoff Brill 2016) 377–445. 73 ECRE, ‘Comments on the Commission Proposal for an Asylum Procedures Regulation’ (n 68). 74 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the union and repealing directive 2013/32/EU’ COM (2016) 467 final. 75 Ibid. 76 Article 2 Directive 2013/32/EU. 77 Para 29 of the preamble to Directive 2013/32/EU. 78 Ibid.

372  Research handbook on EU disability law international protection’.79 The Directive further clarifies that where adequate support cannot be provided in terms of accelerated or border procedures, applicants with special procedural needs should be exempted from those procedures. The applicants should also be provided with additional guarantees in circumstances where their appeal does not have automatic suspensive effect, with a view to making the remedy effective in their particular circumstances.80 It is worth noting that the new proposal of the Commission crystallizes these fundamental guarantees for applicants with special procedural needs, and adds a specific provision to foster and accelerate their identification during the asylum procedure. The Commission proposes that ‘the personnel of the authorities responsible for receiving and registering applications should be adequately trained to detect signs of vulnerability […] and they should receive appropriate instructions for that purpose’.81 The proposal recognizes the importance of adopting further measures to promptly detect ‘symptoms and signs of torture or other serious acts of physical or psychological violence, including acts of sexual violence’.82 To this end, asylum procedures should be based on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).83 4.2.2 The identification of disability in the asylum procedure Article 24 of the Procedures Directive includes the substantive content of the legal protection provided for applicants in need of special procedural guarantees. The main obligation concerns the assessment of those individuals in need of special procedural guarantees. The identification must be carried out within a reasonable period of time after an application for international protection is lodged, and the Member States have the duty to provide adequate support in order to allow asylum seekers to benefit from the rights throughout the entire duration of the asylum procedure.84 Moreover, Member States shall ensure that the need for special procedural guarantees is also addressed where such a need becomes apparent at a later stage of the procedure, without necessarily restarting the procedure. The early identification of applicants with special procedural guarantees is a crucial obligation to ensure fair and efficient asylum systems, because it contributes to avoiding excessive delays in the examination of applications, and also accommodates the mental and physical needs of asylum seekers with disabilities who may face several barriers in the asylum procedure.85 Persons with psychosocial or intellectual impairments may have difficulties in collecting the necessary information and evidence to support their claims. They may also have problems in preparing interviews and demonstrating the credibility of their claims.86 Besides, refugees with hearing or physical impairments may need particular assistance to communicate or overcome architectural barriers. In this respect, the Procedures Directive sets out a clear obligation to Ibid. Para 30 of the preamble to Directive 2013/32/EU. 81 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union (n 74) para 16. 82 Ibid. 83 Ibid. 84 Article 24(3) Directive 2013/32/EU. 85 ECRE, ‘Comments on the Commission Proposal for an Asylum Procedures Regulation’ (n 68). See also Straimer, ‘Between Protection and Assistance’ (n 61). 86 See Conte, ‘What about Refugees with Disabilities?’ (n 22). 79 80

Disability in EU asylum law  373 take into account the individual background of the applicant and his/her special requirements when carrying out interviews. The authority responsible for the examination of the asylum application has the duty to properly train the personnel of the determining authority.87 Persons interviewing applicants ‘shall also have acquired general knowledge of problems which could adversely affect the applicants’ ability to be interviewed, such as indications that the applicant may have been tortured in the past’.88 The Directive expressly refers only to asylum seekers who have been subjected to torture, but it does not exclude the possibility for the personnel to consider the specific needs of persons with disabilities during the interview process. The new proposal of the Commission for a regulation on asylum procedures sets out that the determining authority has to systematically assess the need for special procedural guarantees, while the other authorities have to start the identification process as soon as an application is made.89 It provides for general principles for the assessment of special procedural needs under Article 20 that clarify the roles and responsibilities of the various authorities involved in the asylum process. It is specified that the personnel of the authorities responsible for receiving and registering applications shall indicate ‘whether or not an applicant presents first indications of vulnerability which may require special procedural guarantees and may be inferred from physical signs or from the applicant’s statements or behaviour’.90 The information concerning the existence of the first signs of vulnerability shall be included in the applicant’s file, together with the description of the signs of vulnerability presented by the applicants. To this end, Member States shall ensure that personnel of the authorities are properly trained to detect the first signs of vulnerability in applicants that could require special procedural guarantees. The proposed provision requires that: where there are indications that applicants may have been victim of torture, rape or of another serious form of psychological, physical, sexual or gender-based violence and that this could adversely affect their ability to participate effectively in the procedure, the determining authority shall refer the applicants to a doctor or a psychologist for further assessment of their psychological and physical state.91

In light of this examination, the determining authority will decide on the type of special procedural support which may be provided to the applicant in the specific case. While authorities responsible for receiving and registering applications have the initial task of detecting and indicating first indications of vulnerability, the determining authority has the duty to complete the assessment of the need for special guarantees. It has been argued elsewhere that the current Asylum Procedures Directive provides sufficient guarantees for vulnerable groups who seek asylum in the EU, such as persons with disabilities, in compliance with the CRPD.92 The proposal put forward by the Commission seems to further improve the legal protection of asylum seekers with disabilities by introducing more precise guidelines on the assessment of special procedural needs. However, the

Article 4(3) Directive 2013/32/EU. Ibid. 89 Article 19 ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union’ (n 74). Emphasis added. 90 Ibid. Article 20. 91 Ibid. 92 See generally Conte, ‘What about Refugees with Disabilities?’ (n 22). 87 88

374  Research handbook on EU disability law concrete implementation of the Directive still mainly depends on the Member States’ decision to transpose these fundamental provisions into national laws and practices. 4.3

The Reception Conditions Directive and the Reform Proposal

The Reception Conditions Directive 2013/33/EU is another fundamental piece of legislation of the CEAS, which provides for minimum harmonization of standards for the reception of applicants for international protection in the EU.93 Nonetheless, according to the European Commission, Member States continue to apply different reception conditions in terms of the organization of the national reception systems and the standards provided to applicants. Therefore, as part of the EU asylum policy reforms, the Commission proposed a recast of the Reception Conditions Directive in 2016.94 Vulnerable individuals are protected under Article 21 of the current Directive, which imposes on the Member States the duty to take into account the specific situation of disabled people, along with other groups, such as minors; unaccompanied minors; elderly people; pregnant women; single parents with minor children; victims of human trafficking; persons with serious illnesses; persons with ‘mental disorders’; and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.95 The Directive expressly lists ten different categories of vulnerable persons, but it is not exhaustive and may include other vulnerable groups.96 It also specifies that only vulnerable persons, defined in accordance with Article 21, may be considered to have ‘special reception needs’ and benefit from specific support.97 Asylum seekers with disabilities are recognized as vulnerable individuals and, therefore, can enjoy the specific support provided by the Reception Conditions Directive. 4.3.1

Accommodating special reception needs: what are the Member States’ obligations under the current Reception Conditions Directive? Article 22 of the Reception Conditions Directive sets out precise guidelines for assessment of the special reception needs of vulnerable persons. Member States have the obligation to verify whether the applicant has special reception needs and have to indicate the nature of such needs. The assessment procedure shall be initiated within a reasonable period of time after an application for international protection is lodged and may be integrated into existing national procedures. Member States have to address those special reception needs that become apparent at a later stage in the asylum procedure. Furthermore, the support provided to applicants with special reception needs must take into account their special reception needs throughout

93 Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96. 94 Commission, ‘Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast)’ COM (2016) 465 final. 95 Articles 21–25 Directive 2013/33/EU. 96 Steve Peers, Madeline Garlick and Violeta Moreno-Lax, EU Immigration and Asylum Law (Martinus Nijhoff Brill 2015). 97 Vladislava Stoyanova, ‘Victims of Human Trafficking: A Legal Analysis of the Guarantees for “Vulnerable Persons” under the Second Phase of the EU Asylum Legislation’ in Celine Bauloz, Meltem Ineli-Ciger, Sarah Singer and Vladislava Stoyanova (eds), Seeking Asylum in the European Union (Martinus Nijhoff Brill 2015) 58–108.

Disability in EU asylum law  375 the duration of the entire asylum procedure, and provide for appropriate monitoring of their situation. The Directive also considers the detention of vulnerable persons and applicants with special reception needs. Article 11(1) thus requires that ‘health, including mental health, of applicants in detention who are vulnerable persons shall be of primary concern to national authorities’. In light of this framework, it may be argued that the Reception Directive introduces fundamental obligations upon Member States to accommodate the special reception needs of asylum seekers and refugees with disabilities. By contrast, the Directive leaves a wide margin of discretion to Member States and fails to clarify the content of those specific measures for addressing the reception needs of asylum seekers. The duty to provide special reception needs during the asylum procedure resembles the concept of ‘reasonable accommodation’ enshrined in the CRPD, because it requires Member States to afford specific protection to persons with disabilities. As a consequence, the ‘material reception conditions’, including housing, food, clothing and a daily expenses allowance, should be tailored to the necessities of persons with disabilities.98 The accommodation centres used for the collective housing of applicants should also be set up in compliance with international accessibility standards.99 The new proposal of the Commission for a Directive on reception conditions further improves the protection of persons with disabilities, by clarifying that persons with special reception needs are automatically considered as persons in need of special guarantees. They can therefore benefit from the rights contained in the Reception Conditions Directive, regardless of whether these persons are considered vulnerable (Article 2(13)).100 The proposal also points out more detailed rules for assessing applicants’ special reception needs. In this regard, Member States have to systematically assess whether the applicant has special reception needs, and the assessment shall be initiated as early as possible.101 It also sets out the need for personnel of the relevant authorities to be adequately and continuously trained. In particular, the personnel must be trained to detect the first signs that an applicant requires special reception conditions and to address those needs when identified. They must include information concerning the applicant’s special reception needs in the applicant’s file and specific recommendations concerning the type of support that may be needed by the applicant.102 The proposal also includes the obligation to refer applicants who may have been victims of torture, rape or another serious form of psychological, physical or sexual violence to a doctor or psychologists for further assessment.103 The lack of formal procedures to identify migrants and refugees with disabilities in several Member States represents a major obstacle to ensuring the concrete application of the specific

Conte, ‘What about Refugees with Disabilities?’ (n 22). Article 9(1) CRPD provides: ‘To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.’ 100 Commission, ‘Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection’ (n 94). 101 Ibid Article 21. 102 Ibid Article 21(2). 103 Ibid. 98 99

376  Research handbook on EU disability law support afforded by EU law.104 Persons with disabilities are, in practice, identified on an informal or ad hoc basis in reception and detention centres, according to a recent study of the European Union Agency for Fundamental Rights (FRA).105 Moreover, appropriate training of individual staff is often missing, and impedes the identification of persons with disabilities, in particular those with ‘invisible’ intellectual disabilities which are not immediately detectable. To address the above issues, the Commission’s 2016 proposal aims to enhance the protection of persons with disabilities by imposing the need for timely and effective mechanisms for the identification of vulnerable groups in the asylum process, and for personnel of national authorities to be adequately trained.106

5.

CONCLUDING REMARKS

Since 2015, the increasing flows of asylum seekers and refugees towards Europe have highlighted the existence of several flaws in the CEAS, compelling the EU’s institutions and Member States to re-open the debate around the reform of the asylum system. Nevertheless, the CEAS reform is still in political deadlock, and the discussion on asylum policies is more focused on externalizing and ‘offshoring’ asylum protection, rather than promoting solidarity and respect for human rights obligations. In this context, several issues affect refugees with disabilities who are in need of special protection and specific reception and procedural guarantees. In recent years, important legal developments have occurred at the international level. In particular, the EU’s ratification of the CRPD establishes a clear obligation for its provisions to be taken into account in interpreting EU primary and secondary legislation, including asylum laws. The CRPD in fact applies to persons with disabilities in situations of risk, including situations of armed conflict and humanitarian emergencies. Moreover, the GCR recently introduced crucial provisions for the protection of refugees with disabilities, which require the creation of reception systems and transit areas sensitive to disability and other specific needs. At EU level, all of the legislative proposals of the Commission to reform the CEAS are still under discussion, and therefore no legal developments concerning persons with disabilities have been implemented.107 With regard to the standards for the qualification of TCNs or stateless persons as beneficiaries of international protection, the Commission’s 2016 proposal failed to improve the existing legal framework and recognize disability as a ground of persecution. In this regard, EU asylum law is still not in line with the annotations of the UNHCR on the previous Qualification Directive 2004/83/EC, calling for the adoption of further examples of groups which can qualify for refugee status, such as disability. By contrast, the Asylum Procedures Directive provides for a specific procedure for applicants in need of special procedural guarantees because of their disability and on other

104 European Union Agency for Fundamental Rights (FRA), ‘Thematic Focus: Migrants with Disabilities’ (2016) https://​fra​.europa​.eu/​en/​theme/​asylum​-migration​-borders/​overviews/​focus​-disability accessed 14 February 2020. 105 Ibid. 106 ECRE, Comments on the Commission Proposal to recast the Reception Conditions Directive (n 68). 107 Ibid 8.

Disability in EU asylum law  377 grounds. Moreover, the 2016 proposal of the Commission improves the current procedure, and it introduces general principles for the assessment of special procedural needs.108 It also clarifies the roles and responsibilities of the various authorities involved in the asylum process by specifying that authorities responsible for receiving applications have to identify the first signs of vulnerability, while the determining authority has to complete the assessment of the need for special guarantees. To the same extent, the 2016 Commission’s proposal for a Directive on reception conditions points out that persons with special reception needs are automatically considered as persons in need of special guarantees. It also clarifies detailed and specific rules for assessing applicants’ special reception needs, which may strengthen the protection of persons with disabilities. It may be argued that the proposed reforms brought about by the Commission have resulted in significant improvements for persons with disabilities under EU asylum law, aligning the CEAS with the CRPD’s obligations. However, the European Council is called on to unblock the political impasse and accelerate the CEAS reform in order to implement the Commission’s proposals, and enhance the guarantees for asylum seekers and refugees with disabilities.

108 Article 19 ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union’ (n 74).

PART III EXTERNAL DIMENSIONS

21. Disability in EU development cooperation Tina Van den Sanden

1. INTRODUCTION EU development cooperation policy has a central place in EU external action. As one of the oldest EU external competences, the Treaty of Rome established the basis for relations between the EU and developing countries. Moreover, EU development cooperation policy constitutes an essentially external competence,1 as one of the few EU competences that is, in essence, oriented towards cooperation on the international scene.2 Legally, EU development cooperation policy constitutes a particular type of EU competence, both in its delimitation of Member State competence in development cooperation policy and in embedding the broader principles and objectives of EU external action (and its legal delimitation) in other areas of EU external action. Policy-wise, EU development cooperation policy, as a multifaceted area, is also closely entangled with other areas of EU external action. Therefore, EU development cooperation policy finds itself at the crossroads of, or in a ‘nexus’ with, several other areas of EU external action, such as humanitarian aid, security or trade. This chapter analyses the inclusion of disability in EU development cooperation policy, focusing on the nexus between these two fields. It does so in the first instance by introducing the peculiarities of EU development cooperation policy, from a policy and a legal perspective, in section 2. Second, it assesses the nexus between EU development cooperation policy and disability by analysing, in section 3, how both areas are interlinked. Third, it examines how this nexus is catalyzed, by analysing in section 4 the different dimensions of the nexus between EU development cooperation policy and disability, namely (4.1) the use of EU development cooperation and its instruments to attain disability objectives, (4.2) the mainstreaming of disability issues and the rights of persons with disabilities across the field of EU development cooperation and (4.3) the international promotion of disability concerns and rights, in particular the implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD or UN Convention) and its principles. Through this analysis, two characteristics of EU development cooperation become apparent and form the focus of this chapter: first, the link between policy formulation and the legal scope of EU law, as well as the interaction between EU and international rules; second, the role of participation of people with disabilities in catalyzing EU development cooperation, giving rise to the disability nexus. Finally, concluding remarks are presented in section 5 of this chapter.

1 Dashwood describes external competences such as development cooperation policy as ‘dedicated external relations provisions’, as they essentially aim to set up a relationship with third actors. See Alan Dashwood, ‘The Attribution of External Relations Competence’ in Alan Dashwood and Christophe Hillion (eds), The General Law of EC External Relations (Sweet & Maxwell 2000) 115–38, p. 121. 2 Other examples are the common commercial policy. By contrast, internal competences, such as the environment, not only have an external dimension but are also oriented towards cooperation and integration internally within the Union.

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2.

EU DEVELOPMENT COOPERATION POLICY

2.1

The Nature of EU Development Cooperation Policy

The EU’s relations with developing countries find their origins in the relations of the Member States with their former colonies, mainly in Africa.3 As a result, the EU’s development cooperation policy initially developed as a policy that was intended to complement, and not replace, the Member States’ national development cooperation policies.4 The explicit legal basis for development cooperation policy, inserted by the Treaty of Maastricht, determined that Union policy in the area of development cooperation is to be complementary to the policies pursued by the Member States (Article 130u EC Treaty).5 The Treaty of Maastricht incorporated the so-called triple Cs, on which EU development cooperation policy is built (Article 130u, v, x EC Treaty):6 (i) coherence between different Union policies that have an impact on developing countries, (ii) complementarity between Union and Member State action in development cooperation policy, and (iii) coordination of Union and Member State actions.7 These principles can still be found in the current Treaty articles – in Article 208(1) of the Treaty on the Functioning of the European Union (TFEU), Article 209(2) TFEU and Article 210 TFEU, respectively. With the entry into force of the Treaty of Lisbon, however, the language of the Treaty articles changed. The current provisions affirm that EU and Member State development cooperation policy ‘complement and reinforce each other’ and need to be ‘achieved through coordination and consultation and the possibility of joint action’.8 This seems to imply a more balanced relationship. Article 210 TFEU, moreover, gives the Commission a leading coordinating role. The legal nature of EU development cooperation policy proves to be quite peculiar. The Treaty of Lisbon has established a clear classification of the different categories of Union competences,9 which are laid down in Articles 2–6 TFEU. Article 2(6) TFEU clarifies that the scope of, and arrangements for, exercising the Union’s competences are further determined by the provisions of the Treaties relating to each area. The peculiar nature of the EU development cooperation policy competence follows from the categorization of development cooperation policy in Articles 2–6 TFEU and the specific Treaty articles on EU development cooperation policy. Currently, Article 208(1) TFEU states that the Union’s development cooperation policy and those of the Member States complement and reinforce each other, while Article 3 See generally Enzo Grilli, The European Community and the Developing Countries (Cambridge University Press 1993); see also Morten Broberg, ‘From Colonial Power to Human Rights Promoter: On the Legal Regulation of the European Union’s Relations with the Developing Countries’ (2012) 26(4) Cambridge Review of International Affairs 675. 4 Commission, ‘Memorandum on a Community Policy for Development Co-Operation’ SEC (71) 2700 final, pp. 8 and 22. 5 Treaty Establishing the European Community [1992] OJ C224/1. 6 Ibid. 7 See generally Paul Hoebink (ed), The Treaty of Maastricht and Europe’s Development Co-Operation, Studies in European Development Co-Operation Evaluation (Aksant 2004); see further Mirjam van Reisen, ‘The Enlarged European Union and the Developing World: What Future?’ in Andrew Mold (ed), EU Development Policy in a Changing World: Challenges for the 21st Century (Amsterdam University Press 2007) 29–65, p. 47. 8 Article 208(1) TFEU. 9 Article 2 TFEU.

Disability in EU development cooperation  381 209(2) TFEU confirms the EU’s competence to conclude international agreements in the area of development cooperation policy, to be without prejudice to Member State competence to negotiate in international bodies and to conclude agreements. Article 211 TFEU further clarifies that ‘within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations’. It is nevertheless Article 4 TFEU, concerning shared competences, that most clearly underlines EU development cooperation policy’s distinct nature. That Article states in its fourth paragraph that ‘in the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs’. The development cooperation policy competence is therefore singled out in the Treaty of Lisbon’s categorization of competences. Only humanitarian aid and research, technological development and space are granted the same prominence in the Article on shared competences. This formulation of the development cooperation policy competence in the Treaties establishes the distinct nature of EU development cooperation policy in the vertical division of competences between the Union and the Member States. In the pre-Lisbon era, the CJEU affirmed the complementary or shared nature of EU development cooperation policy in the Lomé IV case, also sometimes referred to as the EDF case.10 The Court held that it followed from the fact that the Union’s competence was not exclusive that Member States were accordingly entitled to enter into commitments themselves towards third countries, either collectively or individually, or even jointly with the EU.11 2.2

The Scope of EU Development Cooperation Policy

2.2.1 The legal scope of EU development cooperation policy Development cooperation is governed by Articles 208 et seq of the TFEU. Article 208(1) TFEU identifies the reduction and, in the long term, the eradication of poverty as the primary objective of EU development cooperation. Nevertheless, Article 208(1) TFEU also emphasizes that development cooperation has to be conducted within the framework of the principles and objectives of the Union’s external action, as laid down in Article 21(2) of the Treaty on European Union (TEU).12 The case law of the Court of Justice of the EU (CJEU) has further shaped the scope of the EU’s development cooperation policy competence.13 The broad scope of EU development

Case C-316/91 Parliament v Council EU:​C:​1994:​76. Ibid para 26. 12 The Treaty of Lisbon has created this list of common external action objectives in Article 21(2) TEU. For a further analysis of the effect of the common external action objectives laid down in Article 21(2) TEU, see, for example, Joris Larik, ‘From Speciality to a Constitutional Sense of Purpose: On the Changing Role of the Objectives of the European Union’ (2014) 63(4) International and Comparative Law Quarterly 935. 13 For an in-depth analysis of the scope of EU development cooperation policy and the case law of the Court of Justice of the European Union (CJEU) in that respect, see Tina Van den Sanden, EU Development Cooperation Policy: Between Constitutional Strictures and Policy Objectives (Edward Elgar Publishing forthcoming), who argues that the Court applies a balanced centre of gravity test to the development cooperation policy competence; see further Geert De Baere and Tina Van den Sanden, ‘Interinstitutional Gravity and Pirates of the Parliament on Stranger Tides: The Continued Constitutional 10 11

382  Research handbook on EU disability law cooperation policy correlates with its legal scope. The Court has clarified that the objectives of the Union’s development cooperation policy should not be limited to measures directly related to the campaign against poverty, but should pursue economic and social development objectives.14 In both Portugal v Council and the Philippines PCA case, the Court confirmed the wide nature of the objectives of development cooperation policy by determining that the objectives of EU development cooperation policy are broad enough that the measures to pursue them can cover a variety of specific matters.15 As such, the development cooperation policy competence can cover other competence areas, which are secondary to or indirect to development cooperation policy.16 The legal scope of EU development cooperation, as defined by this case law, was more recently confirmed in the Kazakhstan PCA case.17 The Court confirmed the test regarding the choice of legal basis for development cooperation policy agreements (developed in the Philippines PCA case) and concluded that the Council Decision on the signing and provisional application of the Kazakhstan Partnership and Cooperation Agreement (PCA)18 should not have been based on the additional Common Foreign and Security Policy (CFSP) legal basis of Article 37 TEU, but rather merely on the legal bases pertaining to the common commercial policy and development cooperation policy.19 In reaching its conclusion, it is interesting to note that the Court referred to the wide definition of poverty eradication as formulated by the policy documents on Union development cooperation, as well as secondary EU law.20 The fact that the Court also relied on policy documents in the Philippines Borders Management case,21 and in the Small Arms and Light Weapons case,22 appears to indicate that the Court’s reliance on policy documents in order to support the choice and scope of a legal basis is particularly

Significance of the Choice of Legal Basis in Post-Lisbon External Action’ (2016) 12(1) European Constitutional Law Review 85. 14 Case C-91/05 Commission of the European Communities v Council of the European Union EU:​C:​ 2008:​288 para 67; Case C-377/12 European Commission v Council of the European Union EU:​C:​2014:​ 1903, para 37. 15 Case C-268/94 Portugal v Council EU:​ C:​1996:​461, paras 37–38; Case C-377/12 European Commission v Council of the European Union EU:​C:​2014:​1903, para 38. 16 Case C-268/94 Portugal v Council EU:​C:​1996:​461, para 45; Case C-377/12 European Commission v Council of the European Union EU:​C:​2014:​1903, paras 56 and 57–58. 17 Case C‑244/17 Commission v Council EU:​C:​2018:​662. 18 Council Decision (EU) 2016/123 on the Signing, on behalf of the European Union, and Provisional Application of the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part [2016] OJ L29/1. 19 Case C‑244/17 Commission v Council EU:​C:​2018:​662, paras 35–47. 20 With regard to the so-called Small Arms and Light Weapons case (Case C‑244/17 Commission v Council EU:​C:​2018:​662), see Bart Van Vooren, ‘The Small Arms Judgment in an Age of Constitutional Turmoil’ (2009) 14(2) Foreign Affairs Review 231, p. 235; see further Marise Cremona, ‘A Reticent Court? Policy Objectives and the Court of Justice’ in Marise Cremona and Anne Thies (eds), The European Court of Justice and External Relations Law (Hart Publishing 2014) 15–32, p. 19. 21 The Court referred to the European Consensus to link development cooperation and security. See Case C-403/05 Parliament v Commission EU:​C:​2007:​624, para 57. 22 The Court relied extensively on the European Union strategy to combat illicit accumulation and trafficking of small arms and light weapons adopted by the European Council on 15 and 16 December 2005 (Council Document No 5319/06 PESC 31 of 13 January 2006) as well as on the European Consensus. See Case C-91/05 Commission of the European Communities v Council of the European Union EU:​C:​2008:​288, paras 66, 69 and 90–91.

Disability in EU development cooperation  383 prominent in cases concerning development cooperation.23 This confirms the strong correlation between the policy scope and the legal scope of EU development cooperation policy. 2.2.2 The policy scope of EU development cooperation policy The EU’s development cooperation policy is formulated on the basis of a strong and well-developed policy framework. The main document that defines EU development cooperation policy is the European Consensus on Development.24 The first European Consensus was adopted in 2006,25 and, as such, was targeted towards the attainment of the Millennium Development Goals (MDGs).26 It identified the eradication of poverty in the context of sustainable development, including pursuit of the MDGs, as the primary and overarching objective of EU development cooperation. In general, the concept of ‘sustainable development’ has three dimensions, referring to economic, social and environmental development. However, the European Consensus also includes good governance, human rights and political aspects in the EU’s development cooperation policy notion.27 Poverty eradication is the primary objective of EU development cooperation policy, according to Article 208(2) TFEU. While the Treaty does not further qualify the meaning of poverty eradication, the Consensus determines that it includes ‘all the areas in which people of either gender are deprived and perceived as incapacitated in different societies and local contexts’.28 It relates to human capabilities, such as consumption and food security; health; education; the ability to be heard; human security, especially for the poor; dignity; and decent work. As such, it is linked to the economic, social and environmental aspects of poverty eradication.29 In May 2017, the EU adopted a revised European Consensus – the ‘European Consensus on Development: Our World, Our Dignity, Our Future’.30 The Union’s framework on development cooperation policy is defined under the titles of ‘People’, ‘Planet’, ‘Prosperity’ and ‘Peace’, recalling the Agenda 2030, whose vision is also captured by the pillars ‘People’, ‘Planet’, ‘Prosperity’, ‘Peace’ and ‘Partnership’.31 In line with the Treaty, the 2017 Consensus Piet Eeckhout, EU External Relations Law (Oxford University Press 2011) 138. Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy, ‘The European Consensus’ [2006] OJ C46/1; Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission, ‘The New European Consensus on Development: Our World, Our Dignity, Our Future’ [2017] OJ C210/1. 25 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy, ‘The European Consensus’ (n 24). 26 United Nations General Assembly, ‘United Nations Millennium Declaration’, UN Doc. A/ RES/55/2 (2000). 27 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy, ‘The European Consensus’ (n 24) 2. 28 Ibid 3. 29 Ibid. 30 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission, ‘The New European Consensus on Development: Our World, Our Dignity, Our Future’ (n 24). 31 United Nations General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, UN Doc. A/RES/70/1 (2015). 23 24

384  Research handbook on EU disability law also refers to poverty eradication as the primary objective of development cooperation policy.32 Under the ‘People’ title of the 2017 Consensus, poverty eradication is again identified as a multidimensional notion, involving economic, social, environmental, cultural and political aspects. Longstanding issues addressed under the ‘People’, or human development, title of the 2017 Consensus are those of ending hunger and all forms of malnutrition, the promotion of health, universal access to education and training, and adequate and sustainable social protection and decent work for all. New issues are also addressed or emphasized: demographic growth and shifts are identified as an important global challenge; migration issues and their impact on development are underscored; while addressing inequality is seen as being key for poverty reduction.33 Another concept that receives increased attention in the 2017 Consensus is ‘resilience’. Strengthening resilience, in particular that of vulnerable groups, is seen as vital in protecting people from environmental and economic crises, natural or man-made disasters, conflicts and health threats.34

3.

THE NEXUS BETWEEN EU DEVELOPMENT COOPERATION AND DISABILITY

Development and disability are intrinsically linked. People with disabilities and their families are more likely to be confronted with economic and social disadvantages than those without disability. The environmental, social, economic or environmental barriers to participation that persons with disabilities face may lead to poverty and hunger.35 On the other hand, poverty may increase the risk of disability: not only may poverty lead to health conditions associated with disability (such as low birth weight, malnutrition, lack of clean water or adequate sanitation and unsafe work and living conditions), but it may also increase the chances of a person with an existing health condition becoming disabled.36 As highlighted in the Introduction to this Research Handbook, the CRPD, together with its Optional Protocol (OP-CRPD), is the first legally binding human rights instrument at the global level that lays down minimum standards for the protection of all civil, political, cultural, social and economic rights of persons with disabilities. It is also the first comprehensive human rights treaty to which the EU is a Party.37 In accordance with the regional integration organi32 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission, ‘The New European Consensus on Development: Our World, Our Dignity, Our Future’ (n 24). 33 Ibid 8–18. 34 Ibid 16. The term ‘resilience’ refers to the ability to prepare for, withstand, adapt and quickly recover from these crises. 35 United Nations Department of Economic and Social Affairs, Realization of the Sustainable Development Goals by, for and with Persons with Disabilities: UN Flagship Report on Disability and Development 2018 (United Nations 2018) 55 www​.un​.org/​development/​desa/​disabilities/​wp​-content/​ uploads/​sites/​15/​2018/​12/​UN​-Flagship​-Report​-Disability​.pdf accessed 1 February 2020. 36 World Health Organization and World Bank, World Report on Disability (World Health Organization 2011) 10 www​.who​.int/​disabilities/​world​_report/​2011/​report​.pdf accessed 1 February 2020. For a quantitative study on the correlation between persons with disabilities and poverty, see 57–69. 37 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume; see supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume.

Disability in EU development cooperation  385 zation clause laid down in Article 44 CRPD, the Council Decision concerning the conclusion, by the former European Community, of the CRPD contains in its Annex II a declaration of competences.38 The declaration includes EU development cooperation policy and economic, financial and technical cooperation with third countries within its remit, ‘without prejudice to the respective competences of the Member States’, thereby referring to the peculiar nature of EU development cooperation policy and the division of competences between the Union and the Member States in this respect.39 In accordance with Article 216(2) TFEU, agreements concluded by the Union are binding upon the institutions of the EU and on its Member States. Therefore, the Union needs to ensure respect for, and compliance with, the CRPD in all areas of its competence, including development cooperation policy. The provisions of the CRPD that are most relevant for EU development cooperation policy – apart from the sector-specific provisions that are relevant in light of the multi-dimensional notion of EU development cooperation policy set out above40 – are Article 28(2)(b) (on access to poverty eradication programmes) and Article 32 (on international cooperation). Article 32 provides that: 1. States Parties recognise the importance of international cooperation and its promotion, in support of national efforts for the realisation of the purpose and objectives of the present Convention, and will undertake appropriate and effective measures in this regard, between and among States and, as appropriate, in partnership with relevant international and regional organisations and civil society, in particular organisations of persons with disabilities. Such measures could include, inter alia: (a) ensuring that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities; (b) facilitating and supporting capacity-building, including through the exchange and sharing of information, experiences, training programmes and best practices; (c) facilitating cooperation in research and access to scientific and technical knowledge; (d) providing, as appropriate, technical and economic assistance, including by facilitating access to and sharing of accessible and assistive technologies, and through the transfer of technologies. 2. The provisions of this article are without prejudice to the obligations of each State Party to fulfil its obligations under the present Convention.

Article 32 CRPD refers directly to development cooperation policy when it determines that international cooperation, including international development programmes, should be inclusive of, and accessible to, people with disabilities, and that international cooperation covers the facilitation and support of capacity-building, as well as the provision of technical and 38 See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 39 See supra sub-section 2.1 of this chapter. 40 See Article 12(5) CRPD on equal recognition before the law, which ensures the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, while Article 6 CRPD focuses on women with disabilities; Article 7 on children with disabilities; Article 8 CRPD on awareness-raising; Article 9 CRPD on accessibility; Article 13 CRPD on access to justice; Article 24 CRPD on education; Article 25 CRPD on health; Article 26 CRPD on habilitation and rehabilitation; Article 27 CRPD on work and employment; Article 28 CRPD on an adequate standard of living and social protection; Article 29 CRPD on participation in political and public life; and Article 30 CRPD on participation in cultural life, recreation, leisure and sport.

386  Research handbook on EU disability law economic assistance. Interestingly, Article 32 CRPD clarifies in its second paragraph that international cooperation in support of attainment of the objectives of the CRPD is without prejudice to the obligations of Parties to the UN Convention. The European Disability Strategy 2010–2020 (EDS)41 refers to the relevance of the CRPD for the EU’s disability framework and includes the link between disability and development cooperation policy, as well as pointing out similarities between EU disability policy and EU development cooperation policy. The EDS indicates that the EU and its Member States are to improve the social and economic situation of people with disabilities. The overall aim of the EDS is to empower people with disabilities in order for them to enjoy their rights and benefit fully from participation in society and in the European economy.42 These objectives are therefore reminiscent of the broad objectives of EU development cooperation policy, that is, poverty eradication and economic and social development in all its dimensions. At the same time, the EDS refers to both the EU level of policy and responsibility at Member State level. A parallel can also be drawn here with the nature of EU development cooperation policy.43 With regard to EU external action, the EDS determines that the EU and its Member States are to promote the rights of people with disabilities in their external action, including in their development programmes. The EU should therefore include disability, in particular, as a human rights issue in its external action, and should raise awareness regarding the CRPD and its implementation, as well as the needs and rights of persons with disabilities. These different dimensions of the disability nexus related to development cooperation are also included in the EU’s policy documents setting out the framework for EU development cooperation policy. For instance, the 2011 Agenda for Change determines that,44 apart from the primary objective of eradicating poverty, the EU’s development cooperation policy should focus on supporting human rights, democracy and other elements of good governance, as well as inclusive and sustainable growth for human development. As indicated above, it is the European Consensus of Development that sets out the main policy framework for EU development cooperation policy. In the 2017 European Consensus, the development cooperation–disability nexus is included in its various dimensions. First, disability is part of the rights-based approach to development, which requires that human rights principles are integrated into development cooperation policy.45 This refers back to the crucial position of the CRPD as a central element of the EU’s disability policy. Following the rights-based approach to development, the European Consensus indicates that the EU and its Member States will promote inclusion and participation, non-discrimination, equality and equity, transparency and accountability. In this context, disability is explicitly mentioned with a view to ensuring

41 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 42 Ibid 4. 43 See supra sub-section 2.1. 44 Commission, ‘Increasing the Impact of European Development Policy: An Agenda for Change’ COM (2011) 637 final. 45 Commission, ‘Staff Working Document, Toolbox: A Rights-Based Approach, Encompassing All Human Rights for EU Development Cooperation’ SWD (2014) 152 final; Council of the European Union, Council Conclusions on the Action Plan on Human Rights and Democracy 2015-2019 of 20 July 2015, 10897/15 https://​ec​.europa​.eu/​anti​-trafficking/​eu​-policy/​council​-conclusions​-action​-plan​-human​ -rights​-and​-democracy​-2015​-2019​_en accessed 1 February 2020.

Disability in EU development cooperation  387 that no one is left behind.46 Disability is therefore also strongly linked to the non-discrimination agenda. This is developed further in the Consensus, which indicates that measures will be taken to target, protect and support people in disadvantaged, vulnerable and marginalized situations, including persons with disabilities, so as to offer them the same opportunities and ensure non-discrimination.47 On the development–disability nexus, the Consensus explains that of the one billion people across the globe that have a disability, 80 per cent live in developing countries. It also highlights that people with disabilities are often the poorest in their communities, facing significantly higher levels of stigma and discrimination.48 As a response, the Consensus formulates two objectives of the development–disability nexus. The first of those is that the EU and its Member States will take into account the specific needs of persons with disabilities in their development cooperation efforts. Second, in line with the CRPD, they will promote the rights of persons with disabilities and take stronger measures to ensure their full inclusion in society and equal participation in the labour market.49 The link with the CRPD is therefore explicitly made. By including a nexus between EU development cooperation policy and disability, the European Consensus sets the agenda for catalyzing this nexus further in the EU’s development cooperation policy agenda, as analysed in the next section below.

4.

CATALYZING EU DEVELOPMENT COOPERATION TO ATTAIN DISABILITY OBJECTIVES

4.1

EU Development Cooperation and Disability Objectives

4.1.1 Unilateral measures The first step in triggering the so-called disability nexus is the use of EU development cooperation policy and its financing instruments to attain disability objectives, such as promoting equal opportunities for people with disabilities, fighting discrimination against people with disabilities and promoting their rights. Using the legal basis of Article 209(1) TFEU, the Union adopts unilateral measures in the area of development cooperation policy under the ordinary legislative procedure. This Article provides the legal basis for the adoption of financing instruments that establish geographic or thematic cooperation with developing countries. The EU’s external action financing instruments, under the general budget of the Union, consist of the Instrument for Pre-accession Assistance (IPA II),50 the European Neighbourhood Instrument (ENI),51 the

46 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission, ‘The New European Consensus on Development: Our World, Our Dignity, Our Future’ (n 24) 7. 47 Ibid. 48 Ibid 12. 49 Ibid. 50 Regulation (EU) 231/2014 establishing an Instrument for Pre-Accession Assistance [2014] OJ L77/11. 51 Regulation (EU) 232/2014 establishing a European Neighbourhood Instrument [2014] OJ L77/27.

388  Research handbook on EU disability law Partnership Instrument (PI),52 the Instrument contributing to Stability and Peace (IcSP),53 the European Instrument for Democracy & Human Rights (EIDHR),54 the Instrument for Nuclear Safety Cooperation (INSC),55 the Instrument for Greenland,56 and the Development Cooperation Instrument (DCI).57 These external action instruments fall under the Multi Financial Framework’s heading ‘Global Europe’.58 The cooperation between the EU and the African, Caribbean and Pacific states (the ACPs) is, to an important extent, financed by the European Development Fund (EDF). The EDF is an extra-budgetary fund, financed by contributions from the Member States and established by Internal Agreements, which constitute international agreements concluded between Member States within the Council.59 In order to translate development cooperation objectives into specific actions and projects, the EU’s development cooperation policy follows the process of the project cycle, encompassing several phases: (i) the programming phase, in which development assistance strategies, priorities and funding allocations are defined; (ii) the identification phase; (iii) the formulation or design phase; (iv) the implementation phase; and (v) the evaluation phase. All of this is to be carried out within the framework laid down by the external financing instruments, which further reflect the international and EU development cooperation policy objectives. The project cycle, in particular the programming phase, is carried out in cooperation with the partner countries and regions.60 Cooperation on disability issues and pursuing disability objectives is explicitly included in several external financing instruments. The DCI includes in its Annex I the areas of cooperation under geographic programmes financed by the DCI. Defined under the common areas of cooperation under geographic programmes, the area of human rights, democracy and the rule of law includes supporting the fight against discrimination and discriminatory practices

52 Regulation (EU) 234/2014 establishing a Partnership Instrument for cooperation with third countries [2014] OJ L77/77. 53 Regulation (EU) 230/2014 establishing an instrument contributing to stability and peace [2014] OJ L77/1. 54 Regulation (EU) 235/2014 establishing a financing instrument for democracy and human rights worldwide [2014] OJ L77/85. 55 Council Regulation (EURATOM) 237/2014 establishing an Instrument for Nuclear Safety Cooperation [2014] OJ L77/109. 56 Council Decision 2014/137/EU on relations between the European Union on the one hand, and Greenland and the Kingdom of Denmark on the other [2014] OJ L76/1. 57 Regulation (EU) 233/2014 establishing a financing instrument for development cooperation for the period 2014–2020 [2014] OJ L77/44. 58 Council Regulation (EU, EURATOM) 1311/2013 laying down the multiannual financial framework for the years 2014–2020 [2013] OJ L347/884. 59 Internal agreement between the Representatives of the Governments of the Member States of the European Union, Meeting Within the Council, On the Financing of European Union Aid under the Multiannual Financial Framework for the Period 2014 to 2020, in accordance with the ACP–EU Partnership Agreement, and on the Allocation of Financial Assistance for the Overseas Countries and Territories to which Part Four of the Treaty on the Functioning of the European Union Applies [2013] OJ L210/1. 60 On the different phases of programming and the role of the various EU actors, see European External Action Service (EEAS) and European Commission, ‘Instructions for the Programming of the 11th European Development Fund (EDF) and the Development Cooperation Instrument (DCI) 2014-2020’ https://​ec​.europa​.eu/​international​-partnerships/​system/​files/​swd​-mid​-term​-review​-edf​_en​ .pdf accessed 1 February 2020.

Disability in EU development cooperation  389 on any ground, inter alia, on the basis of disability. The DCI also establishes two thematic programmes:61 the ‘Global Public Good and Challenges’ programme and the ‘Civil Society Organisations and Local Authorities’ programme. In accordance with Annex II of the DCI, covering cooperation under thematic programmes, the Global Public Good and Challenges programme pursues disability objectives under the umbrella heading of ‘cooperation on human development, including decent work, social justice and culture’. Cooperation on education, knowledge and skills includes improving equal access to, and quality of education for, people with disabilities (among other groups). Under the heading of ‘cooperation on non-discrimination’, the discrimination ground of disability is explicitly included. Finally, cooperation on employment, skills, social protection and social inclusion covers cooperation with regard to guaranteeing respect for the rights of specific groups, in order to ensure that these groups can participate in, and benefit from, wealth creation and cultural diversity. In this regard, people with disabilities are explicitly mentioned. Cooperation on disability issues under the DCI therefore relates closely to inclusion, participation and non-discrimination. This is also the case for cooperation under the EIDHR.62 Article 2(1) EIDHR defines the focus areas of cooperation under the instrument. These include: support for, and enhancement of, participatory and representative democracy, inter alia, by promoting the equal participation of people with disabilities in social, economic and political life; and supporting equality of opportunity, non-discrimination and political representation.63 Another focus area of EIDHR cooperation is the promotion and protection of human rights and fundamental freedoms, as reflected in international human rights instruments, including the fight against discrimination based on any ground. Discrimination on the basis of disability is explicitly mentioned in this regard.64 The protection of children from discrimination on the basis of disability is also covered.65 In a separate provision of the EIDHR, the promotion and protection of human rights and fundamental freedoms also covers more generally the rights of persons with disabilities, as set out in the CRPD.66 The EIDHR therefore makes the explicit link with international standards. In its Article 2(2), the EIDHR specifies that the principle of non-discrimination on any ground is to be taken into account (whenever relevant) for all EIDHR measures. This touches upon the mainstreaming approach, which will be discussed in the next section below. Under the EDF, the 11th EDF Implementing Regulation determines that the programming and implementation of the 11th EDF should be guided by the EU’s policy documents on

61 African, Caribbean and Pacific (ACP) countries are also eligible for funding under these thematic programmes. Geographic cooperation with ACP countries is funded by the EDF. See Article 1 Regulation (EU) 233/2014. 62 Regulation (EU) 235/2014 establishing a financing instrument for democracy and human rights worldwide [2014] OJ L77/85. 63 Article 2(1)(a)(viii) Regulation 235/2014. 64 Article 2(1)(b)(iv) Regulation 235/2014. 65 Article 2(1)(b)(x) Regulation 235/2014. 66 Article 2(1)(b)(xi) Regulation 235/2014.

390  Research handbook on EU disability law development cooperation policy, that is, the European Consensus on Development,67 and the Agenda for Change.68 The CRPD is also explicitly mentioned in this regard.69 The inclusion of disability objectives in the policy documents and in the external financing instruments relevant to EU development cooperation policy has led to the setting up of disability-specific actions and projects, providing specific support for the attainment of disability objectives. An example of such an action is the project ‘Community based rehabilitation for the disabled in Tajikistan’.70 In a region where the health and social services offered had been reduced and inadequate disability services were provided, and in which people with disabilities suffered from exclusion, the project aims to establish a local sustainable delivery system of social services and to ensure access to rehabilitation services for people with disabilities. The attainment of these objectives also includes the training of healthcare staff, and transfer of knowledge about disability issues and skills in rehabilitation services.71 4.1.2 International agreements The EU’s development cooperation policy not only covers unilateral measures taken on the basis of the external financing instruments, but also extends to concluding international agreements. Article 209(2) TFEU grants the EU the explicit competence to conclude international agreements in the area of development cooperation policy. The competence to conclude international agreements is essential to attaining the development cooperation policy objective of establishing relationships with developing countries.72 Several international agreements include the objective of cooperating in the area of disability. A screening of the different international agreements concluded with developing countries indicates that cooperation on disability issues and the rights of people with disabilities is often included under the umbrella of cooperation on issues related to the protection of vulnerable or disadvantaged groups, or sections of the population.73 The explicit reference to people with disabilities is rare. The Association Agreement with Central America,74 as well as the Cooperation Agreement with Cuba,75 include a specific article on cooperation targeting vulnerable people, including an explicit reference to people with disabilities. Disability is further included in international

67 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy, ‘The European Consensus’ (n 24). 68 Commission, ‘Increasing the Impact of European Development Policy: An Agenda for Change’ COM (2011) 637 final. 69 Recital 11 of the preamble to Council Regulation (EU) 2015/322 on the implementation of the 11th European development fund [2015] OJ L58/1. 70 Commission, ‘Annual Report on the Implementation of the European Union’s Instruments for Financing External Actions in 2017’ SWD (2019) 12 final, pp. 192–93. 71 Ibid. 72 For an overview and analysis of the legal basis to conclude international development agreements, see Tina Van den Sanden, EU Development Cooperation Policy, idem (n 13). 73 On the basis of the international agreements included in the EU Treaties Database, see http://​ec​ .europa​.eu/​world/​agreements/​default​.home​.do accessed 1 February 2020. 74 Agreement establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other [2012] OJ L346/3. 75 Council Decision (EU) 2016/2232 on the signing, on behalf of the union, and provisional application of the political dialogue and cooperation agreement between the European Union and its Member States, of the one part, and the Republic of Cuba, of the other part [2016] OJ L337I/1.

Disability in EU development cooperation  391 agreements concluded between the EU and developing countries, in the provisions related to cooperation regarding public health,76 anti-discrimination,77 inclusive labour markets and decent work,78 education and training,79 and social development and cooperation.80 4.2

Mainstreaming of Disability Issues in EU Development Cooperation Policy

A second important dimension of catalyzing the EU development cooperation policy– disability nexus is the mainstreaming of disability issues and the protection of the rights of people with disabilities in EU development cooperation policy. Mainstreaming is an essential element of EU development cooperation policy and in the achievement of its objectives. In the first instance, the Treaties require that development cooperation policy is mainstreamed throughout the EU’s external action. As such, Article 208(1) TFEU determines that the Union has to take account of the objectives of development cooperation in policies it implements which are likely to affect developing countries. This refers to both a negative aspect of ‘do no harm’ and to a more positive aspect of creating synergies.81 The primary objective of EU development cooperation policy – poverty eradication – is, moreover, also included in the EU’s common external action objectives laid down in Article 21(2) TEU, which confirms that this development cooperation policy objective should be mainstreamed in all EU external actions. While development cooperation objectives are being mainstreamed in the entire area of EU external action, several other objectives are being mainstreamed in EU development cooperation policy.82 Disability issues and the rights of people with disabilities are mainstreamed in all areas of EU development cooperation policy. Article 3(3) DCI provides, in this regard, that throughout

76 Agreement Establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other [2012] OJ L346/3. 77 Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part [2014] OJ L261/4; Council Decision (EU) 2016/2232. 78 Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part [2014] OJ L260/4. 79 Agreement Establishing an Association Between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part [2002] OJ L352/3. 80 Agreement Establishing an Association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part [2002] OJ L352/3; Council Decision (EU) 2016/2232. 81 Commission, ‘Policy Coherence for Development – Establishing the Policy Framework for a Whole-of-the-Union Approach’ COM (2009) 458 final. 82 In this regard, it is interesting to refer to Article 11 TFEU, another provision in the Treaty which enshrines the explicit need to mainstream. This provision requires environmental protection measures to be integrated or mainstreamed into the definition and implementation of the Union’s policies, in particular with a view to promoting sustainable development. In the Commission Guidelines on Integrating the Environment and Climate Change into EU Development Cooperation, mainstreaming is defined as the process of systematically integrating a selected value/idea/theme into all domains of EU development cooperation, to promote specific as well as general development outcomes. See Commission, ‘Integrating the Environment and Climate Change into EU International Cooperation and Development: Towards Sustainable Development’ (European Commisison) https://​op​.europa​.eu/​en/​publication​-detail/​ -/​publication/​7887e701​-3f4e​-11e6​-af30​-01aa75ed71a1 accessed 1 February 2020.

392  Research handbook on EU disability law all programmes, cross-cutting issues are to be mainstreamed. The rights of persons with disabilities is a theme that is included in those cross-cutting issues. The Common Implementing Regulation, which lays down common rules for the implementation of the external financing instruments financed by the EU budget, requires that in the design and implementation of programmes and projects, criteria regarding accessibility for persons with disabilities have to be taken into account.83 With the inclusion of mainstreaming requirements in the external financing instrument and the implementing regulation, mainstreaming of disability issues in EU development cooperation policy is encapsulated in the legal framework of EU development cooperation policy. Mainstreaming disability in EU development cooperation therefore requires that all development cooperation policy actions and projects include people with disabilities and their specific needs. Examples of mainstreaming disability issues in EU development cooperation policy projects relate, for example, to taking particular account of the needs of disabled children in education projects,84 or integrating considerations related to the electoral participation of people with disabilities in projects that support the organization of elections in partner countries.85 Mainstreaming is, therefore, strongly linked to the objective of ensuring inclusion and participation of people with disabilities. 4.3

EU Development Cooperation Policy to Promote the Implementation of the CRPD

Finally, a third component of catalyzing the EU development cooperation policy–disability nexus is the promotion of the ratification and implementation of the CRPD, and its principles, in third countries. As indicated above, a consequence of the EU’s conclusion of the CRPD is that the UN Convention is binding on the EU and its Member States and that, as such, the EU needs to ensure respect for the CRPD and its principles in all areas, including in its development cooperation policy.86 Therefore, the EU development cooperation policy–disability nexus is, to an important extent, guided by the CRPD’s principles. Another consequence is that the EU also promotes the CRPD’s principles and its implementation in its development cooperation policy vis-à-vis partner countries, and in international fora, in line with Article 32 CRPD. The promotion of the CRPD’s specific commitments translates, for example, into implementing Article 31, which requires Parties to the CRPD to collect appropriate information and statistical and research data on disability issues, in order to enable them to attain the CRPD’s objectives and principles. As a result, EU reports on development cooperation policy may

83 Article 2(7) Regulation (EU) No 236/2014 laying down common rules and procedures for the implementation of the union’s instruments for financing external action [2014] OJ L77/95. 84 For example, the project ‘Supporting Education in Iraq’. See Commission, ‘Staff Working Document Accompanying the Document Report from the Commission to the European Parliament and the Council, Annual report on the Implementation of the European Union’s Instruments for Financing External Actions in 2017’ SWD (2019) 12 final, 211. 85 Commission, ‘Staff Working Document Accompanying the Document Report from the Commission to the European Parliament and the Council, Annual Report on the Implementation of the European Union’s Instruments for Financing External Actions in 2016’ SWD (2018) 64 final, 54. 86 See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume.

Disability in EU development cooperation  393 indicate the specific result to be achieved for people with disabilities.87 This entails that the EU also supports partner countries in implementing Article 31 CRPD, for example, by providing technical assistance.88 Developing partner countries that are signatories to the CRPD have the primary responsibility to respect and implement the CRPD and its principles. In this respect, Article 32 CRPD also indicates, in its second paragraph, that the provisions of this Article are without prejudice to the obligations of each Party to fulfil its obligations under the UN Convention. Through its development cooperation policy and dialogue with partner countries, the EU nevertheless supports ensuring respect for, and implementation of, the CRPD and its principles. As a result of this the African Union-European Union Human Rights Dialogues, for example,89 have led to the introduction of a Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities.90 To ensure the implementation of the CRPD in supporting partner countries, the EU works closely with civil society, and with organizations of people with disabilities in particular, in line with Article 32 CRPD.

5.

CONCLUDING REMARKS

From a policy perspective, EU development cooperation and disability are intrinsically linked: people with disabilities and their families are more likely to be confronted with disadvantages, while poverty may increase the risk of disability. On account of this interconnection, the nexus between development cooperation and disability is reflected in documents related both to EU disability policy and to EU development cooperation policy. The EDS determines that the EU and its Member States should promote the rights of people with disabilities in their external action, including in their development programmes. The 2017 European Consensus on Development further enhances the development cooperation policy–disability nexus by focusing mainly on inclusion, participation and non-discrimination, explicitly including disability issues and the rights of people with disabilities in this regard. With this, the EU translates the overall objective of the UN Agenda 2030 – of ‘leaving no one behind’ – into its development cooperation framework, and into the development cooperation–disability nexus in particular. The Consensus formulates two specific objectives of the development-disability nexus, namely that: (i) the EU and its Member States will take into account the specific needs of persons with disabilities in their development cooperation; and (ii) they will promote the 87 For example, the 2015 Annual Report indicates how many households with disabled persons were assisted by the ‘Livelihoods and Food Security Trust Fund’. See Commission, ‘Staff Working Document Accompanying the Document Report from the Commission to the European Parliament and the Council, Annual Report on the Implementation of the European Union’s Instruments for Financing External Actions in 2014’ SWD (2015) 248 final, 100. 88 Commission, ‘Guidance Note for EU Staff: Disability-Inclusive Development Cooperation’, p.  6 https://​europa​.eu/​capacity4dev/​disability​-and​-development​-network/​documents/​guidance​-note​ -disability​-inclusive​-development​-cooperation​-0 accessed 1 February 2020. 89 Council of the European Union, EU–Africa Ministerial Troika Meeting Vienna 8 May 2006, Final Communique, 9333/06 www​.consilium​.europa​.eu/​uedocs/​cms​_Data/​docs/​pressdata/​en/​er/​89548​ .pdf accessed 1 February 2020. 90 African Union, ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’ https://​au​.int/​en/​treaties/​protocol​-african​-charter​-human​-and​-peoples​ -rights​-rights​-persons​-disabilities​-africa accessed 1 February 2020.

394  Research handbook on EU disability law rights of persons with disabilities and take stronger measures to ensure their full inclusion and equal participation. With the EU’s conclusion of the CRPD, the EU incorporates the development cooperation policy–disability nexus into its legal framework. The Union needs to ensure respect for the CRPD and its principles in all areas of its competence, including development cooperation policy. In the CRPD’s provisions on access to poverty eradication programmes and on international cooperation, the nexus between disability and development cooperation is particularly apparent. In these articles, the CRPD refers to building international cooperation and partnerships; ensuring that international cooperation, including development programmes, is inclusive of, and accessible, to persons with disabilities; and providing capacity-building and technical and economic assistance. Both the European Consensus on Development and the CRPD therefore cover the different dimensions of how the nexus between development cooperation policy and disability is catalyzed within the EU, namely through: (i) the use of EU development cooperation and its instruments to attain disability objectives; (ii) the mainstreaming of disability issues and the rights of persons with disabilities across EU development cooperation; and (iii) the international promotion by the EU of disability issues and rights, in particular the implementation of the CRPD and its principles. The fact that both the European Consensus on Development and the CRPD include these dimensions shows the correlation between policy formulation and the legal scope of EU law, as well as between the relevant rules at the international and EU levels. Regarding the use of EU development cooperation to attain disability objectives, cooperation on disability issues and pursuing disability objectives is explicitly included in several EU development cooperation policy financing instruments. In this context, the focus is mainly on inclusion, participation and non-discrimination. In international agreements with developing countries, cooperation on disability issues and the rights of people with disabilities is often included under the umbrella of cooperation on issues related to the protection of vulnerable or disadvantaged groups, or sections of the population. Explicit references to people with disabilities are also included, from an inclusion and participation angle, but are more rare. Mainstreaming is an essential element of EU development cooperation policy: development cooperation objectives are to be mainstreamed in other areas of EU action, while specific topics are to be mainstreamed across EU development cooperation policy. Disability is one of them, and on the basis of the external financing instrument and the implementing regulation, disability issues and the rights of people with disabilities are to be mainstreamed in all areas of EU development cooperation policy. Examining projects in which disability issues are mainstreamed also highlights that mainstreaming is linked to the objective of ensuring inclusion and participation. Finally, in line with Article 32 CRPD, the EU also promotes the CRPD’s principles and its implementation in the Union’s development cooperation policy vis-à-vis partner countries. The analysis conducted in this chapter confirms the importance of promoting the rights of people with disabilities, and, in particular, ensuring inclusion and participation, in catalyzing the nexus between EU development cooperation and disability, in accordance with the European Consensus on Development and the CRPD. This is also in line with the EU’s vision

Disability in EU development cooperation  395 of a social and non-discrimination approach to disability, which it also supported on the international scene, including in the negotiations of the CRPD.91

91 Gráinne de Búrca, ‘The European Union in the Negotiation of the UN Disability Convention’ (2010) 35 European Law Review 174.

22. Disability in EU trade and investment agreements Sondra Faccio

1. INTRODUCTION Until recently, the relationship between disability, on the one hand, and trade and investment agreements, on the other hand, could be described as a relationship of ‘mutual indifference’. This is principally due to the fact that disability derives from the interaction between individuals with impairments and societal barriers, that may ‘[prevent them] from taking part fully in society and the economy’.1 By contrast, trade and investment agreements focus on companies and aim to stimulate trade and investment flows, with the ultimate goal of enhancing the economic development of States. Trade and investment agreements tend to refer to individuals only once they become ‘investors’, ‘consumers’ or ‘workers.’ Mutual indifference, however, does not necessarily mean no point of contact. Indeed, according to Article 10 of the Treaty on the Functioning of the European Union (TFEU), ‘[i]n defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.2 The policies mentioned in Article 10 TFEU include the trade policy that ‘sets the direction for trade and investment in and out of the EU’, as well as the objectives and content of the EU international trade and investment agreements.3 In her opening statement to the European Parliament on 16 July 2019, the new President of the European Union (EU) Commission expressly stated her commitment to work towards an ‘economy that serves our people’.4 According to her opening statement, the ‘Social Market Economy’ as embedded in Article 3 of the Treaty on European Union (TEU) requires the EU to make efforts to ‘reconcile the market with the social’, and this will be the exact goal of the new EU Commission: namely, to ‘refocus [the] European Semester to make sure [the EU] stay[s] on track with [its] Sustainable Development Goals’.5 Within this framework, trade and investment agreements are not only seen as key instruments in the strategies of the EU and its Member States ‘for boosting the economy’ of the Union; they are also increasingly employed as ‘levers to promote, around the world, [EU] values like sustainable development, human 1 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final, p. 3. 2 Emphasis added. 3 See the Commission’s trade policy website https://​ec​.europa​.eu/​trade/​policy/​accessed 1 April 2020. 4 Commission, ‘Opening Statement in the European Parliament Plenary Session by Ursula von der Leyen, Candidate for President of the European Commission’ (Commission 16 July 2019) https://​ec​ .europa​.eu/​commission/​presscorner/​detail/​it/​speech​_19​_4230 accessed 1 April 2020. 5 Ibid.

396

Disability in EU trade and investment agreements  397 rights, fair and ethical trade and the fight against corruption’.6 Promotion and protection of the human rights of persons with disabilities lies at the heart of these values, and sustainable development can only be achieved with the full participation of everyone, including people with disabilities, in the social and economic life of States.7 Against this background, the present chapter explores whether and to what extent the rights of persons with disabilities have progressively been taken into consideration by the EU’s trade and investment policy, and in trade and investment agreements. It also investigates whether trade and investment agreements have contributed to the enhancement of those rights. The chapter has the following structure. Section 2 discusses EU trade and investment policy, highlighting in what terms disability is considered. Section 3 explores the content of trade and investment agreements in place for the EU and illustrates references to disability in their provisions. Section 3 is divided into three sub-sections: sub-section 3.1 details the preambular wording of EU trade and investment agreements, sub-section 3.2 discusses ‘essential elements clauses’ and sub-section 3.3 focuses on specific references to the rights of persons with disabilities. Section 4 concludes the chapter.

2.

EU TRADE AND INVESTMENT POLICY AND THE RIGHTS OF PERSONS WITH DISABILITIES

The EU is the largest exporter and importer of goods and services, the largest foreign direct investor and the most important destination for foreign direct investments (FDI) worldwide. This puts the EU in a privileged position, and makes the Union one of the major international players in investment and trade agreement negotiations worldwide. Trade agreements are part of the exclusive competence of the EU on common commercial policy and have been negotiated directly by the EU since its early days. The EU trade agreements have traditionally taken the form of association agreements (AA), free trade agreements (FTA), partnership and cooperation agreements (PCA or CA) and customs union agreements (CU) with third countries. AA and FTA have the purpose of removing or reducing customs tariffs in bilateral trade, while partnership and cooperation agreements usually provide a general framework for bilateral economic relations, but do not affect customs tariffs. Moreover, CU aim to eliminate customs duties in bilateral trade and to establish a joint customs tariff for foreign importers.

6 Commission, ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ (Commission, October 2015), Foreword by Cecilia Malmström EU Trade Commissioner October 2015; see further pp.  5, 7 and 22 https://​trade​.ec​.europa​.eu/​doclib/​docs/​2015/​october/​tradoc​_153846​.pdf accessed 1 February 2020; Sondra Faccio, ‘The Social Dimension of the EU Investment Law and Policy’ in Delia Ferri and Fulvio Cortese (eds), The EU Social Market Economy and the Law: Theoretical Perspectives and Practical Challenges for the EU (Routledge 2018) 293–309 at 293. 7 United Nations General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ UN Doc. A/Res/70/1 (United Nations 2015) https://​ sustainabledevelopment​ .un​ .org/​ post2015/​transformingourworld accessed 1 April 2020; United Nations Department of Economic and Social Affairs, ‘Disability and Development Report: Realizing the Sustainable Development Goals by, for and with Persons with Disabilities’ (United Nations 2018) https://​social​.un​.org/​publications/​UN​ -Flagship​-Report​-Disability​-Final​.pdf accessed 1 April 2020.

398  Research handbook on EU disability law With the coming into force of the Treaty of Lisbon in 2009, the EU has also acquired exclusive competence in the field of FDI, and has started to negotiate and conclude international investment agreements (IIA) or to negotiate and include within its trade agreements specific chapters dedicated to the promotion and protection of FDI. The latter agreements are often referred to as treaties with investment provisions (TIP).8 IIA and relevant provisions of TIP aim to protect and promote the investment activities of companies abroad, and they define some standards to which States must conform in their dealings with foreign investors (that is, companies) and their FDI. The EU trade and investment policy sets out the EU’s priorities for trade and investment agreement negotiations. In this regard, the EU Commission’s 2015 document ‘Trade for All’ has established that the EU trade and investment policy shall be based on certain values and be used ‘to further the advancement of human rights in third countries in conjunction with other EU policies’.9 Moreover, it clarifies that trade and investment policy must ‘promote the social and environmental pillars of sustainable development’.10 In this context, although not mentioned directly, the rights of persons with disabilities come into play as part of the broader category of human rights, whose advancement forms the basis of the EU’s external actions,11 and as part of the goal to attain sustainable development.12 2.1

European Union Trade and Investment Policy and Human Rights

Since the EU Commission’s Communication of 1995 on the inclusion of respect of democratic principles and human rights in agreements between the community and third countries, human rights have been enshrined as ‘essential elements’ of the former Community’s relations with third countries, and are referred to within the EU trade and investment treaties’ preambles and

8 See the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA) [2017] OJ L11/23 (30 October 2016, provisionally applied since 21 September 2017); the Investment Protection Agreement between the European Union and the Republic of Singapore [2018] OJ L279/1 (15 October 2018, not in force); the Investment Protection Agreement Between the European Union; and the Socialist Republic of Viet Nam (EU–Vietnam Trade Agreement) [2019] OJ L175/1 (30 June 2019, not in force). 9 Commission, ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ (n 6) 25; Commission, ‘Report on the Implementation of the Trade Policy Strategy Trade for All: Delivering a Progressive Trade Policy to Harness Globalisation’ COM (2017) 491 final. 10 Commission, ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ (n 6) 23. 11 See generally Lorand Alexander Bartels, ‘Social Issues: Labour, Environment and Human Rights’ in Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Commentary, Analysis and Case Studies (Cambridge University Press 2009) 342–66; see also Lorand Alexander Bartels, ‘Trade and Human Rights’ in Daniel L Bethlehem, Donald M McRae, Rodney Neufeld and Isabelle Van Damme (eds), The Oxford Handbook of International Trade Law (Oxford University Press 2009) 571–96, p. 578; see further Lorand Alexander Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford University Press 2005) 89. 12 See Commission, ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ (n 6) 7, which states that ‘[t]he EU will continue its long-standing commitment to sustainable development in its trade policies, contributing to the newly agreed global Sustainable Development Goals (SDGs) under the 2030 Agenda for Sustainable Development’. The Agenda mentions ‘persons with disabilities’ as vulnerable people that shall be empowered through ad hoc State actions (United Nations General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, UN Doc. A/ RES/70/1 (2015)).

Disability in EU trade and investment agreements  399 substantive provisions.13 According to that 1995 Commission Communication, ‘all new draft negotiating directives for Community agreements with third parties’ shall include ‘general references to human rights and democratic values’, including reference to the ‘Vienna human rights conference of June 1993’ and ‘references to universal and regional instruments common to both parties’ in the preamble, as well as articles referring to human rights and democratic principles as ‘essential elements’ of the agreement.14 The EU agreements shall further include articles on non-execution, authorizing each contracting Party to take ‘appropriate measures’ in case the other party fails to fulfil an obligation under the agreement, including violation of the ‘essential elements’ of the agreement.15 Accordingly, the preamble of the EC–Yemen CA, signed in 1997 – two years after the Commission’s Communication – emphasizes the importance the Parties attach to the principles of the United Nations Charter, to the Universal Declaration of Human Rights, to the 1993 Vienna Declaration and the Plan of Action of the World Conference on Human Rights, to the 1995 Copenhagen Declaration on Social Development and the associated plan of action, and to the 1995 Beijing Declaration and the plan of action of the Fourth World Conference on Women, and to a continuing dialogue thereon.16

Article 1 of the EC–Yemen CA further states: Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect of democratic principles and fundamental human rights as set out in the Universal Declaration on Human Rights, which guides their domestic and international policies and constitute an essential element of this Agreement.17

Finally, Article 18, together with Annex I, allows both the EU and Yemen to take ‘appropriate measures’ in case the other party has failed to fulfil any of its obligations under the Agreement, including violation of the ‘essential elements’ of the Agreement.18

13 Commission, ‘Communication on the Inclusion of the Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries’ COM (95) 216 final. See also Commission, ‘Resolution on the Communication from the Commission on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries’ (COM (95)0216-C4-0197/95), where the European Parliament ‘welcome[d] the communication from the Commission […] as a further step towards the adoption of practical measures to implement the EU's human rights policy [and understood] the phrase “respect for democratic principles and human rights” to mean not only the fundamental freedoms of association, expression and movement, but also respect for the rights of minorities; [and] considers, particularly in the context of foreign trade, that it is important to stress the value of human rights at the workplace’. Emphasis added. See further Council of Ministers of the EU (Development), Resolution of the Council and of the Member States meeting in the Council on Human Rights, Democracy and Development, 28 November 1991. Doc. No. 10 107/91 (European Commission 1991). 14 Commission, ‘Communication on the Inclusion of the Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries’ (n 13) 9. 15 Ibid 12–14. 16 Preamble to the Cooperation Agreement between the European Community and the Republic of Yemen [1998] OJ L72/18 (signed 25 November 1997, entered into force 02 July 1998) (EC–Yemen Cooperation Agreement). 17 Ibid Article 1. Emphasis added. 18 Ibid Article 18, Annex I.

400  Research handbook on EU disability law Subsequent agreements negotiated after the 1995 Commission’s Communication contain the same provisions.19 The majority of these agreements do not refer to the rights of people 19 For example: Partnership and Cooperation Agreement establishing a partnership between the European Communities and its Member States and Turkmenistan (signed 25 May 1998, not in force); Agreement on Trade, Development and Cooperation between the European Community and its Member States and the Republic of South Africa [2004] OJ C116/8 (signed 11 October 1999, entered into force 1 May 2004); Interim Agreement on trade and trade-related matters between the European Community, the European Coal and Steel Community and the European Atomic Energy Community and Turkmenistan [2011] OJ L80/21 (signed 11 October 1999, entered into force 1 August 2010); Cooperation Agreement between the European Community and the People’s Republic of Bangladesh on partnership and development [2001] OJ L118/48 (signed 22 May 2000, entered into force 1 March 2001); Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States and the United Mexican States [2000] OJ L276/45 (signed 27 February 2001, entered into force 1 March 2001); Stabilisation and Association Agreement between the European Communities and their Member States and the former Yugoslav Republic of Macedonia [2004] OJ L84/13 (signed 09 April 2001, entered into force 1 April 2004); Euro-Mediterranean Agreement establishing an Association Between the European Communities and their Member States and the Arab Republic of Egypt [2007] OJ L304/39 (signed 25 June 2001, entered into force 1 June 2004); Cooperation Agreement between the European Community and the Islamic Republic of Pakistan on partnership and development fields (EC–Pakistan Cooperation Agreement) [2004] OJ L378/23 (signed 24 November 2001, entered into force 1 September 2004); Council Decision on the signing, on behalf of the European Community, of the Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States and the People’s Democratic Republic of Algeria [2005] OJ L 265/1 (signed 22 April 2002, entered into force 1 September 2005); Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States and the Republic of Lebanon [2006] OJ L143/2 (signed 17 June 2002, entered into force 01 April 2006); Agreement establishing an Association between the European Community and the Republic of Chile (EC–Chile Association Agreement) [2002] OJ L352/3 (signed 18 November 2002, entered into force 1 February 2003); Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Andean Community and its member countries (Bolivia, Colombia, Ecuador, Peru and Venezuela), of the other part (signed 15 December 2003); Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States and the Republic of Tajikistan [2009] OJ L350/3 (signed 11 October 2004, entered into force 1 January 2010); Stabilisation and Association Agreement between the European Communities and their Member States and the Republic of Albania [2009] OJ L107/166 (signed 2 June 2006, entered into force 1 April 2009); Stabilisation and Association Agreement between the European Communities and their Member States and the Republic of Montenegro (EC–Montenegro Association Agreement) [2010] OJ L108/3 (signed 15 October 2007, entered into force 1 May 2010); Stabilisation and Association Agreement between the European Communities and their Member States and the Republic of Serbia (EC–Serbia Association Agreement) [2013] OJ L278/16 (signed 29 April 2008, entered into force 1 September 2013); Stabilisation and Association Agreement between the European Communities and their Member States and Bosnia and Herzegovina (EC–Bosnia Stabilisation Agreement) [2015] OJ L164/2 (signed 16 June 2008, entered into force 1 June 2015); Framework Agreement between the European Union and its Member States and the Republic of Korea [2013] OJ L20/2 (signed 10 May 2010, not in force); Partnership and Cooperation Agreement between the European Union and its Member States and the Republic of Iraq (EU–Iraq CA) [2012] OJ L204/20 (signed 11 May 2012, not in force); Trade Agreement between the European Union and its Member States and Colombia and Peru (EU–Colombia–Ecuador–Peru Trade Agreement) [2012] OJ L354/3 (signed 26 June 2012, entered into force 1 June 2013); Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States and the Socialist Republic of Vietnam [2016] OJ L329/8 (signed 27 June 2012, entered into force 3 December 2016); Agreement establishing an association between Central America and the European Union and its Member States (EU–CACM Association Agreement) [2012] OJ L346/3 (signed 29 June 2012, entered into force 01 October 2013); Association Agreement between the European Union and its Member States

Disability in EU trade and investment agreements  401 with disabilities explicitly, but only indirectly. For example, the above-mentioned EC–Yemen CA includes in the framework of the agreement the rights of disabled persons. Its preamble emphasizes the importance that the Parties attach to the Vienna human rights conference of 1993, which, in turn, ‘reaffirms that all human rights and fundamental freedoms are universal and thus unreservedly include persons with disabilities’.20 With the entry into force of the Treaty of Lisbon, civil society groups and relevant international organizations have also started to contribute more actively to shaping the EU trade and investment strategy, taking into account the interests of the most vulnerable, including the rights of persons with disabilities.21 An interesting example is the statement by a group of UN experts, released in 2015, which voiced ‘concern over [the] adverse impact of free trade and investment agreements on human rights’.22 With this document, signed also by the Special Rapporteur on the Rights of Persons with Disabilities, the relevant UN experts highlighted their ‘legitimate concern that both bilateral and multilateral investment treaties might aggravate the problem of extreme poverty, jeopardize fair and efficient foreign debt renegotiation, and affect the rights of indigenous peoples, minorities, persons with disabilities, older persons, and other persons leaving in vulnerable situations’.23 The document further recommended States to perform ex ante and ex post human rights impact assessments in connection with their trade and investment agreements, and to embed into agreements currently under negotiation some safeguards to ensure full protection and enjoyment of human rights.24 The EU Commission has performed impact assessments on the potential effects created by new trade and investment deals on economic, social, environmental and human rights protec-

and Ukraine [2014] OJ L161/3 (signed 27 June 2014, entered into force 1 January 2016); Association Agreement between the European Union and the European Atomic Energy Community and their Member States and the Republic of Moldova (EU–Moldova Association Agreement) [2014] OJ L260/4 (signed 27 June 2014, entered into force 01 July 2016); Association Agreement between the European Union and the European Atomic Energy Community and their Member States and Georgia (EU–Georgia Association Agreement) [2014] OJ L261/4 (signed 27 June 2014, entered into force 01 July 2016); Enhanced Partnership and Cooperation Agreement between the European Union and its Member States and the Republic of Kazakhstan (EU–Kazakhstan EPCA) [2016] OJ L29/3 (signed 21 December 2015, not in force); Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States and the Republic of Armenia (EU– Armenia CEPA) [2018] OJ L23/4 (signed 24 November 2017, entered into force 01 June 2018). 20 See Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘Vienna Declaration and Programme of Action’, adopted at the World Conference on Human Rights in Vienna on 25 June 1993 (OHCHR 1993) 16 www​.ohchr​.org/​Documents/​ProfessionalInterest/​vienna​.pdf accessed 4 April 2020; United Nations General Assembly, ‘Copenhagen Declaration on Social Development’, UN Doc. A/CONF.166/9 (1995) www​.un​.org/​en/​development/​desa/​population/​migration/​generalassembly/​ docs/​globalcompact/​A​_CONF​.166​_9​_Declaration​.pdf accessed 4 April 2020. 21 See, for example, European Association of Service Providers (EASPD), ‘TTIP: A Threat to the Quality of Social Services in Europe?’ www​.easpd​.eu/​en/​content/​ttip​-threat​-quality​-social​-services​ -europe accessed 30 March 2020. 22 OHCHR, ‘UN Experts Voice Concern over Adverse Impact of Free Trade and Investment Agreements on Human Rights’ (OHCHR 2 June 2015) www​ .ohchr​ .org/​ EN/​ NewsEvents/​ Pages/​ DisplayNews​.aspx​?NewsID​=​16031​&​LangID​=​E​#sthash​.OZ3R5a6v​.​%20dpuf accessed 4 April 2020. 23 Ibid. Emphasis added. 24 Ibid.

402  Research handbook on EU disability law tions since 2011.25 In this context, the potential impact of trade and investment agreements on the rights of people with disabilities have been mentioned in a few cases, within the broader ‘social impact’ assessment. For example, the 2017 Commission staff working impact assessment accompanying the Recommendation for a Council decision authorizing the opening of negotiations for a Free Trade Agreement with Australia explores possible social impacts of the FTA and highlights ‘the existing gender-, race- and disability-based discrimination in Australia and New Zealand, in particular the enduring gender pay gap’,26 on the one hand; on the other hand, the document also highlights the fact that the EU–Australia and EU–New Zealand FTA ‘may positively impact the gender pay gap through direct or indirect trade effects’, without mentioning any positive impacts on disability-based discrimination more specifically.27 2.2

European Union Trade and Investment Policy and Sustainable Development

The EU has been leading the way in integrating sustainable development objectives into its trade and investment policy, and in including specific provisions in its international agreements to promote high social and environmental standards around the world. As mentioned above, a development which is ‘sustainable’ necessarily requires the promotion of ‘the social, economic and political inclusion of all, including persons with disabilities’, and the empowerment of those who are disabled.28 Ad hoc provisions regarding social and environmental aspects and referring directly to persons with disabilities have been featured in a number of EU trade and investment agreements since the 1990s. For example, the EC–Israel Association Agreement of 1995 devotes a specific title to social matters (Title VIII) and establishes that ‘[t]he Parties shall conduct a dialogue covering all aspects of mutual interest. The dialogue shall cover in particular questions relating to social problems of post-industrial societies, such as unemployment, rehabilitation of disabled people, equal treatment for men and women, labour relations, vocational training, work safety and hygiene, etc’.29

25 See the Commission’s website on ‘Impact Assessments’ https://​ec​.europa​.eu/​trade/​policy/​policy​ -making/​analysis/​policy​-evaluation/​impact​-assessments/​ accessed 4 April 2020. 26 Commission, ‘Staff Working Document, Impact Assessment – Recommendation for a Council decision authorising the opening of negotiations for a Free Trade Agreement with Australia’ SWD (2017) 293 final. Emphasis added. 27 Ibid. See, however, Commission, ‘Staff Working Document, Impact Assessment Report on the EU-China Investment Relations – Recommendation for a Council decision authorising the opening of negotiations on an investment agreement between the European Union and the People’s Republic of China’ SWD (2013) 185 final, para 6.3.3. 28 United Nations General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (n 7), Goal 10. 29 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States and the State of Israel [2000] OJ L147/3 (signed 20 November 1995, entered into force 1 June 2000). See also Article 2 Free Trade Agreement between the European Community and OCT [2001] OJ L314/1 (signed 27 November 2001, entered into force 2 December 2001). Emphasis added.

Disability in EU trade and investment agreements  403 Since 2008, sustainable development chapters have also been included in the EU’s TIP,30 but only recently has the protection and promotion of the rights of persons with disabilities been considered an essential step towards the achievement of sustainable development through trade and investment. In this regard, the EU Commission’s 2015 document ‘Trade for all’ has emphasized the ‘importance of the potential contribution of trade policy to sustainable development’ and to the achievement of the 2030 Agenda for Sustainable Development and the sustainable development goals (SDGs).31 These SDGs pay special attention to the rights of persons with disabilities and engage States, among others, to ‘achieve full and productive employment and decent work for all women and men, including […] persons with disabilities’ (Goal 8), and to ‘empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status (Goal 10)’.32 The most recent sustainable development chapters in the EU trade agreements include reference to disability. For example, Article 13(14) of the 2019 EU–Vietnam trade agreement, entitled ‘Working Together on Trade and Sustainable Development’, states: The Parties, recognising the importance of working together on trade-related aspects of sustainable development in order to achieve the objectives of this Chapter [on trade and sustainable development], may work together in, inter alia, the following areas: […] the inter-linkage between trade and full and productive employment for all, including youth, women and people with disabilities […] social protection for all including for vulnerable and disadvantaged groups, such as migrant workers, women, youth and people with disabilities, and social inclusion, social dialogue and gender equality.33

The proposed chapter on ‘Trade and Sustainable Development’ in the Transnational Trade and Investment Partnership (TTIP) with the United States (US) expressly mentioned the UN Convention on the Rights of Persons with Disabilities of 2006 (CRPD or UN Convention). According to Article 8 of the TTIP proposal: [t]he Parties underline their commitment to equality and non-discrimination at the workplace, and recognise the importance of international rules and agreements in this area, such as […] the UN Convention on the Rights of Persons with Disabilities of 2006 […] To this end, the Parties shall: […] e) take adequate measures to ensure that persons with disabilities can enjoy their right to work on equal basis with others.34

30 Lorand Alexander Bartels, ‘The EU’s Approach to Social Standards and the TTIP’ in Sangeeta Khorana (ed), The Transatlantic Trade and Investment Partnership (TTIP) Negotiations between the EU and the USA: Caught between Myth and Reality? (Barcelona Centre for International Affairs 2015) 83–92. 31 United Nations General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (n 7). 32 Ibid. Emphasis added. See also Goals 4, 11 and 17. 33 Article 13(14) EU–Vietnam Trade Agreement. Emphasis added. 34 See the European Union’s initial proposal for the legal text on ‘Trade and Sustainable Development’ in TTIP https://​trade​.ec​.europa​.eu/​doclib/​docs/​2015/​november/​tradoc​_153923​.pdf accessed 4 April 2020. This proposal was tabled for discussion with the United States (US) in the negotiating round of 19–23 October 2015 and made public on 6 November 2015.

404  Research handbook on EU disability law Unfortunately, the TTIP negotiations were interrupted at the end of 2016.35

3.

EUROPEAN UNION TRADE AND INVESTMENT AGREEMENTS

This section explores in detail the content of trade and investment agreements in place for the EU, to examine how the rights of persons with disabilities are taken into consideration in such agreements in practical terms, and to what extent such rights are effectively enhanced by these international instruments. 3.1

The Preambular Wording of European Union Trade and Investment Agreements

As outlined above, EU trade and investment agreements have progressively included express references to human rights – particularly those of persons belonging to minorities – and sustainable development in their preambles, as well as references to specific human rights treaties and declarations. A review of EU trade and investment agreements between 1988 and 2019 shows that the issue of human rights gained importance over the years and has been progressively included within the preambles of EU trade and investment agreements, in increasing detail.36 While EU CA and FTA of the late 1980s and early 1990s feature sparse and general references to the UN Charter and/or democratic values and/or human rights, most recent agreements tend to include a detailed catalogue of human rights treaties and declarations, to which the Parties confirm to have committed or to be Party to. For example, the preamble of the 1988 EC–GCC (Gulf Cooperation Council) CA only affirms the Parties’ ‘attachment to the principles of the United Nations Charter’,37 while the EC–Brazil CA of 1992 and other treaties signed by the EU in the early 1990s add to their preambles references to democratic values and human rights.38 Treaties concluded in this century,

35 Council of the European Union, ‘Trade with the United States: Council Authorises Negotiations on Elimination of Tariffs for Industrial Goods and on Conformity Assessment’ (15 April 2019) www​ .consilium​.europa​.eu/​en/​press/​press​-releases/​2019/​04/​15/​trade​-with​-the​-united​-states​-council​-authorises​ -negotiations​-on​-elimination​-of​-tariffs​-for​-industrial​-goods​-and​-on​-conformity​-assessment/​ accessed 7 April 2020. 36 A few trade agreements were in force for the EU before 1988, among which are the Customs Union Agreements with Bailiwick of Guernsey, Bailiwick of Jersey and Switzerland, which do not contain any reference to human rights or the rights of people with disabilities. 37 Cooperation Agreement between the European Economic Community and the countries parties to the Charter of the Cooperation Council for the Arab States of the Gulf [1989] OJ L54/3 (the State of the United Arab Emirates, the State of Bahrain, the Kingdom of Saudi Arabia, the Sultanate of Oman, the State of Qatar and the State of Kuwait) (signed 15 June 1988, entered into force 01 January 1990). Article 1, para 3 of the UN Charter states that the purpose of the United Nations is ‘[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. 38 Preamble to the Framework Agreement for Cooperation between the European Economic Community and the Federative Republic of Brazil [1995] OJ ‎L262/53 (signed 29 June 1992, entered

Disability in EU trade and investment agreements  405 such as the 2001 EC–Pakistan CA, refer to the 1993 Declaration of Vienna and the Programme of Action of the World Conference on Human Rights, the 1995 Copenhagen Declaration on social development and programme of action, the 1995 Beijing Declaration and platform of action for the 4th World Conference on Women, the 1992 Rio Declaration on Environment and Development and the International Strategy for the Fourth Development Decade.39 Many of these treaties and international documents expressly refer to the rights of persons with disabilities. For example, the 1993 Declaration of Vienna states that ‘[s]pecial attention needs to be paid to ensuring non-discrimination, and the equal enjoyment of all human rights and fundamental freedoms by disabled persons, including their active participation in all aspects of society’.40 Moreover, the 1995 Copenhagen Declaration establishes that States shall [p]ut the creation of employment, the reduction of unemployment and the promotion of appropriately and adequately remunerated employment at the centre of strategies and policies of Governments, with full respect for workers’ rights and with the participation of employers, workers and their respective organizations, giving special attention to the problems of structural, long-term unemployment and underemployment of youth, women, people with disabilities, and all other disadvantaged groups and individuals.41

The fact that a significant number of the preambles of EU trade agreements and TIP include indirect references to the rights of persons with disabilities under the umbrella heading of ‘human rights’ does not mean that States Parties to the treaties are bound to perform or refrain from performing any measure that might enhance or hinder such rights. Rather, preambles tend to be used to help the interpreter to find the appropriate understanding of treaty clauses, not to derive specific obligations to be imposed upon States.42 The International Court of Justice (ICJ) and a number of other international tribunals have taken into account the preambles of relevant instruments that elucidate the meaning of treaty clauses in light of the object and purpose of the treaty, and help to understand the ‘context’ in into force 1 November 1995): ‘[r]eaffirming the importance they attach to the principles of the United Nations Charter, to democratic values and to respecting human rights’. See also, Framework Agreement for Cooperation between the European Economic Community and the Republic of Paraguay [1992] OJ L313/71 (signed on 03 February 1992, entered into force 1 November 1992); Agreement for Trade and Co-Operation between the European Economic Community and Macao [1992] OJ L404/27 (signed on 15 June 1992, entered into force 1 January 1993). 39 Preamble to the EC–Pakistan Cooperation Agreement. 40 Article 6 Vienna Declaration and Programme of Action (n 20). 41 United Nations General Assembly, ‘Copenhagen Declaration on Social Development’ (n 20). Emphasis added. 42 Fitzmaurice has observed that ‘the preamble to a treaty did not normally, and strictly ought not, to contain substantive provisions, it was or could be something more than a mere recital of facts and motives, and could legitimately have interpretational character and effect’. See Gerald Grey Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 British Yearbook of International Law 203, p. 227; see also Max H Hulme, ‘Preambles in Treaty Interpretation’ (2016) 164 University of Pennsylvania Law Review 1281, p. 1305. Article 31 of the Vienna Convention on the Law of Treaties (VCLT) also confirms that the preamble, together with the text and the annexes, forms part of ‘the context’ of a treaty for the purpose of its interpretation. The Commentary to the VCLT further explains that ‘the preamble forms part of a treaty for purposes of interpretation is too well settled to require comment’. See United Nations, ‘Vienna Convention on the Law of Treaties’ (1969) 1155 UNTS 331.

406  Research handbook on EU disability law which the operative clauses should be read and whether such clauses shall be read broadly or strictly.43 With specific reference to trade and investment agreements, preambles of relevant documents have often been drawn on to clarify the meaning of treaty clauses and even to expand their reach.44 For example, many international investment tribunals have referred to the preambles of relevant bilateral investment treaties (BIT) to interpret the so-called fair and equitable standard of treatment.45 The Court of Justice of the European Union (CJEU) has also referred to the preamble of the EC–India CA to interpret and apply the so-called essential element clause included in the CA.46 Scholars have also observed that ‘[w]hile the language [in preambles] does not directly provide a right, incorporating the language [on regulation] in a preamble serves an interpretive purpose stemming from the Vienna Convention on the Law of Treaties (VCLT)’ – with the consequence that ‘[w]here there is language on regulation in the preamble, the tribunals may be more likely to weigh the public interest more carefully’.47 This statement relates to the wide debate on the inclusion of public interest exceptions in international investment treaties for the purpose of limiting the scope of the liability of States vis-à-vis foreign investors and circumscribing the discretionary powers of tribunals in assessing States’ behaviour. It also 43 Case concerning rights of nationals of the United States of America in Morocco (France v United States of America) [1952] ICJ Rep 176, para 197, wherein it is affirmed that ‘the interpretation of the provisions of the Act must take into account its purposes, which are set forth in the Preamble’; see also Asylum case (Colombia v Peru) [1950] ICJ Rep 266, para 282, wherein it is stated: ‘The object of the Havaria Convention, which is the only agreement relevant to the present case, was, as indicated in its preamble, to fix the rules which the signatory States must observe for the granting of asylum in their mutual relations. The intention was, as has been stated above, to put an end to the abuses which had arisen in the practice of asylum and which were likely to impair its credit and usefulness.’ 44 World Trade Organization (WTO), United States—Import Prohibition of Certain Shrimp and Shrimp Products – Report of the Appellate Body (12 October 1998) WT/DS58/AB/R, para 12; CMS Gas Transmission Company v Argentine Republic ICSID Case No. ARB/01/8, Award 12 May 2005, para 274; Enron Creditors Recovery Corp. v Argentine Republic ICSID Case No. ARB/01/2, Award 22 May 2007, paras 259 ff; Occidental Exploration & Production Co. v the Republic of Ecuador LCIA Case No. 3467, Final Award 1 July 2004, paras 183–86; MTD Equity Sdn Bhd. v Republic of Chile ICSID Case No. ARB/01/7, Award 25 May 2004, para 113. See also Max H Hulme, ‘Preambles in Treaty Interpretation’ (n 42) 1307; Bartels, Human Rights Conditionality in the EU’s International Agreements (n 11) 81–84. As to investment treaties interpretation, see Tarcisio Gazzini, Interpretation of International Investment Treaties (Hart Publishing 2016). 45 For example, MTD Equity Sdn Bhd. v Republic of Chile ICSID Case No. ARB/01/7, Award 25 May 2004, para 113: ‘[a]s regards the object and purpose of the [bilateral investment treaties] BIT, the Tribunal refers to its Preamble where the parties state their desire “to create favourable conditions for investments by investors of one Contracting Party in the territory of the other Contracting Party”, and the recognition of “the need to protect investments by investors of both Contracting Parties and to stimulate the flow of investments and individual business initiative with a view to the economic prosperity of both Contracting Parties”. Hence, in terms of the BIT, fair and equitable treatment should be understood to be treatment in an even-handed and just manner, conducive to fostering the promotion of foreign investment. Its terms are framed as a pro-active statement – “to promote”, “to create”, “to stimulate” – rather than prescriptions for a passive behavior of the State or avoidance of prejudicial conduct to the investors.’ 46 See Case C-268/94 Portugal v Council EU:​C:​1996:​461, para 41, wherein the Court of Justice of the EU (CJEU) observed that ‘the preamble to the Agreement emphasize[s] inter alia, first, the development of relations between the contracting parties in the areas of common interests and, second, the need to support Indian efforts for development’. 47 See generally Alison Giest, ‘Interpreting Public Interest Provisions in International Investment Treaties’ (2017) 18 Chicago Journal of International Law 338.

Disability in EU trade and investment agreements  407 supports the inclusion of human rights references in treaty preambles, with the aim of guiding the interpreter towards a more human rights-oriented interpretation of trade and investment agreements.48 On the whole, specific references to human rights and indirect references to the rights of persons with disabilities in the preambles of trade and investment agreements do not appear, per se, particularly effective in enhancing these rights, because preambles do not impose obligations upon States. However, they may play a role in extending or limiting the application of other treaty provisions, with the ultimate aim of applying the treaty in a way that protects the rights of persons with disabilities. 3.2

Essential Elements Clauses and Non-Execution Clauses

As mentioned above, the ‘essential element clause has […] become more or less standard’ in the EU trade agreements and TIP, at least since 1995.49 This type of clause exists in a number of formulations, which vary from the mere reference to human rights and democratic principles – such as Article 1(1) of the EC–India CA, which mentions that ‘[r]espect for human rights and democratic principles is the basis for the cooperation between the Contracting Parties and for the provisions of this Agreement, and it constitutes an essential element of the Agreement’50 – to more elaborate formulations, containing reference to relevant international instruments ratified by the Parties. For instance, Article 2 of the EC–Kazakhstan CA states that: [r]espect for democracy, principles of international law and human rights as defined in particular in the United Nations Charter, the Helsinki Final Act and the Charter of Paris for a New Europe, as well as the principles of market economy, including those enunciated in the documents of the CSCE Bonn Conference, underpin the internal and external policies of the Parties and constitute an essential element of partnership and of this Agreement.51

Compared to treaties’ preambles, essential elements clauses do not contain any indirect (or direct) reference to the rights of persons with disabilities, although the wording leads one to conclude that other international human rights instruments, including those featured in the preamble of the treaty, as well as other treaties ratified by the Parties – for example the CRPD – may be relevant for the purpose of defining the scope of application of the clause.52 In addi48 See generally Andrew Paul Newcombe and Louis Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Wolters Kluwer 2009) 115–16; see also Andrew Paul Newcombe, ‘Sustainable Development and Investment Treaty Law’ (2007) 8 Journal of World Investment & Trade 357, p. 407. 49 Bartels, Human Rights Conditionality in the EU’s International Agreements (n 11) 23. 50 Article 1(1) EC–India Cooperation Agreement [1994] OJ L223/24 (signed on 20 December 1993, entered into force on 01 August 1994). 51 Article 2 EU–Republic of Kazakhstan Partnership and Cooperation Agreement [1999] OJ L248/35 (signed on 23 January 1995, entered into force on 01 July 1999). 52 For example, Article 1(1) of the Framework Agreement between the European Union and its Member States and the Republic of Korea [2013] OJ L20/2 (signed 10 May 2010, not in force) states that ‘[t]he Parties confirm their attachment to democratic principles, human rights and fundamental freedoms, and the rule of law. Respect for democratic principles and human rights and fundamental freedoms as laid down in the Universal Declaration of Human Rights and other relevant international human rights instruments, which reflect the principle of the rule of law, underpins the internal and international policies of both Parties and constitutes an essential element of this Agreement’. According to some

408  Research handbook on EU disability law tion, the 2006 European Parliament resolution on human rights and democracy clauses (that is, essential elements clauses) in EU agreements emphasized that ‘in its relations with third countries and in the context of promoting democratic principles and human rights through the human rights and democracy clause, the EU also undertakes to oppose any discrimination […] concerning the rights of disabled people’.53 Essential elements clauses are often coupled with non-execution clauses that reserve to the States Parties the right to consider the breach of human rights and democracy clauses as a sufficient condition under which to take appropriate measures and even to suspend the execution of the trade agreement.54 A typical non-execution clause states: The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement. They shall see to it that the objectives set out in this Agreement are attained. If either Party considers that the other Party has failed to fulfil an obligation under this Agreement, it may take appropriate measures. Before so doing, except in cases of special urgency, it shall supply the Cooperation Council with all relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties. In the selection of these measures, priority must be given to those which least disturb the functioning of this Agreement. These measures shall be notified immediately to the Cooperation Council if the other Party so requests.55

Often the wording ‘cases of special urgency’ is subject to a specific interpretive declaration by the Parties.56 For example, the EC–Georgia AA states: authors, a plausible reading of the clause would require linking the clause to the instruments binding on the Parties. See Young Lo Ko, ‘A Common Institutional Framework for EU–Korea Relations’ in James Harrison (ed), The European Union and South Korea: The Legal Framework for Strengthening Trade, Economic and Political Relations (Cambridge University Press 2013) 160–73; see also Laura Beke, David D’Hollander, Nicolas Hachez and Beatriz Pérez de las Heras, ‘The Integration of Human Rights in EU Development and Trade Policies’ (FRAME Work Package No. 9 – Deliverable No. 1, 30 September 2014) 67–68 https://​repository​.gchumanrights​.org/​bitstream/​handle/​20​.500​.11825/​72/​07​-Deliverable​-9​ .1​.pdf​?sequence​=​1​&​isAllowed​=​y accessed 7 April 2020. 53 European Parliament Resolution on the human rights and democracy clause in European Union agreements [2006] OJ C290E/107. Emphasis added. 54 Bartels observes that ‘[w]hile it was first attached to an essential elements clause in the 1993 agreements with Romania and Bulgaria, the non-execution clause has a long history in the EU’s treaty practice […] In other words, the non-execution clause is far from being an innovation especially designed for human rights clauses.’ See Bartels, Human Rights Conditionality in the EU’s International Agreements (n 11) 107; see also Ingo Borchert, Paola Conconi, Mattia Di Ubaldo and Cristina Herghelegiu, ‘Trade Conditionality in the EU and WTO Legal Regimes’ (December 2018) http://​respect​.eui​.eu/​wp​-content/​ uploads/​sites/​6/​2019/​02/​EU​_conditionality​_D2​.2​.pdf accessed 7 April 2020. 55 See, for example, Article 98 EU–Georgia Association Agreement [2014] OJ L261/4. Non-execution clauses have historically taken two forms: (i) the ‘Baltic’ clause, which authorized a Party to suspend the application of the agreement with immediate effect in case of a serious breach of essential provisions and which was progressively abandoned in favour of the concurrent ‘Bulgarian’ clause, which became the standard; and (ii) the ‘Bulgarian’ clause, which allows either party to the treaty to take appropriate measures in case of breach by the other party and after consultation and/or referral to a committee established by the treaty. See Nicolas Hachez, ‘“Essential Elements” Clauses in EU Trade Agreements Making Trade Work in a Way that Helps Human Rights?’, Working Paper No. 158 (KU Leuven April 2015) 10 https://​ghum​.kuleuven​.be/​ggs/​publications/​working​_papers/​2015/​158hachez accessed 7 April 2020; see also Hiski Haukkala, The EU–Russia Strategic Partnership: The Limits of Post-Sovereignty in International Relations (Routledge 2010) 84. 56 As to the legal effect of acceptance of an interpretive declaration made in respect of a bilateral treaty by the other Party, see the International Law Commission, ‘Guide to Practice on Reservations to

Disability in EU trade and investment agreements  409 the term ‘cases of special urgency’ […] means cases of material breach of the Agreement by one of the Parties. A material breach of the Agreement consists in (a) repudiation of the Agreement not sanctioned by the general rules of international law or (b) violation of the essential elements of the Agreement set out in Article 2.57

The questions of whether essential elements clauses impose obligations upon the contracting States, and what effects they display, have been widely discussed by scholars.58 As to the first issue, Bartels has argued that an ‘essential elements clause does not set out obligations as such in those [nine] agreements which do not contain a non-execution clause or in those that do, but without a provision defining cases of special urgency’.59 Bartels distinguishes between the following: (i)

pre-1995 CA, whose essential elements clauses do not incorporate any reference to international human rights instruments and do not include non-execution clauses (such as the 1993 EC–India CA mentioned above) – as well as treaties that include both essential elements clauses and non-execution clauses, but do not contain interpretive clauses defining cases of special urgency, on the one hand; and (ii) other EU international treaties that feature essential elements clauses, non-execution clauses and provisions defining ‘cases of special urgency’, on the other hand.60 According to Bartels, only the latter impose international obligations upon States.61 Beke et al have argued that the legal reasoning at the heart of the decision to include essential elements clauses in the treaties was to allow the EU to suspend the execution of the treaty or take other measures in case of human rights violations of a certain scale by the other Party.62 Those authors, however, admit that, in certain circumstances, essential elements clauses and

Treaties’ (2011) 2 Yearbook of the International Law Commission 1, p. 27. It states that ‘[t]he interpretation resulting from an interpretive declaration made in respect of a bilateral treaty by a State or an international organization party to the treaty and accepted by the other party constitutes an authentic interpretation of that treaty’. 57 Article 420 EU–Georgia Association Agreement. 58 See generally Emily M Hafner-Burton, ‘Trading Human Rights: How Preferential Trade Agreements Influence Government Repression’ (2005) 59 International Organization 593; see also Beke, D’Hollander, Hachez and Pérez de las Heras (n 52); see further Henrik Horn, Petros Mavroidis and André Sapir, ‘Beyond the WTO – An Anatomy of EU and US Preferential Trade Agreements’ (Brueghel 2009) www​.bruegel​.org/​download/​parent/​238​-beyond​-the​-wto​-an​-anatomy​-of​-eu​-and​-us​-preferential​ -trade​-agreements/​file/​663​-beyond​-the​-wto​-an​-anatomy​-of​-eu​-and​-us​-preferential​-trade​-agreements​ -english/​accessed 7 April 2020. 59 Bartels, Human Rights Conditionality in the EU’s International Agreements (n 11) 106. 60 Ibid. According to Bartels, Cooperation Agreements (CAs) that do not give rise to human rights obligations as such are those in respect of Argentina, Brazil, Bulgaria, India, Israel, Macau, Mongolia, Paraguay, Romania, Sri Lanka, Tunisia, Uruguay and Vietnam. 61 Ibid. In that regard, Bartels suggests that the former will still have legal effect, in that it will constitute an implied repudiation of the agreement, thus allowing the other party to suspend or terminate the agreement on the basis of Article 60(3)(a) of the VCLT. 62 See generally Beke, D’Hollander, Hachez and Pérez de las Heras, ‘The Integration of Human Rights in EU Development and Trade Policies’ (n 52).

410  Research handbook on EU disability law non-execution clauses could represent ‘genuine tool[s] for proactively promoting human rights and other values in partner countries, meant to be applied on an ongoing basis’.63 Provided that essential elements clauses impose upon States genuine obligations in terms of human rights, the question is then what type of obligations are in fact imposed. Do States only have an obligation to abstain from an interference with human rights or does their obligation involve the adoption of positive measures to ensure effective protection and fulfilment of human rights? The answer to this question is of the utmost importance as, in the case of persons with disabilities, ensuring respect for their human rights often requires States to adopt positive measures. This emerges clearly from Article 4 CRPD, which contains the UN Convention’s general obligations, which requires States Parties, inter alia ‘[t]o take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise’; ‘to adopt all appropriate legislative, administrative and other measures’; ‘to undertake or promote research and development’; and ‘to provide accessible information’, in order to achieve full and effective participation and inclusion of persons with disabilities in society. According to Bartels, ‘[i]f an essential elements clause does contain obligations, it would be hard to deny that […] these obligations [are] positive’.64 The author relies on the wording of non-execution clauses, observing that it ‘bears remarkable similarities to those provisions of the human rights conventions requiring the parties to take measures to ensure respect for human rights’.65 In practical terms, essential elements clauses have hardly been applied to sanction States Parties’ inaction in the implementation of relevant human rights instruments or to sanction them for having failed to undertake positive measures to enhance human rights vis-à-vis a specific situation or category of people;66 rather, they have only been triggered in response to very serious circumstances such as coups d’état, flawed electoral processes and grave violation of human rights.67 As a consequence, criticism has emerged as to the effectiveness of these clauses, whose enforcement often remains simply ‘expressions of disapproval’.68 63 Ibid. See also Hachez, ‘“Essential Elements” in EU Trade Agreements Making Trade Work in a Way that Helps Human Rights?’ (n 55) 11; Hafner-Burton, ‘Trading Human Rights: How Preferential Trade Agreements Influence Government Repression’ (n 58) 607. 64 Bartels, Human Rights Conditionality in the EU’s International Agreements (n 11) 148–49. 65 Ibid 148. See, for example, Article 420 EU–Georgia Association Agreement: ‘[t]he Parties shall take any general or specific measures required to fulfil their obligations under this Agreement’ and ‘shall see to it that the objectives set out in this Agreement are attained.’ 66 Most of the cases in which the EU has adopted such measures have fallen under the Cotonou Agreement and its predecessor, the Lomé IV Convention, while the EU’s conditionality policy has remained dormant in numerous other situations. See Lorand Alexander Bartels, ‘The Application of Human Rights Conditionality in the EU’s Trade Agreements and Other Trade Arrangements with Third Countries’ (European Parliament Think Tank, 25 November 2008) 11 www​.europarl​.europa​.eu/​ thinktank/​en/​document​.html​?reference​=​EXPO​-INTA​_ET​%282008​%29406991 accessed 7 April 2020. 67 Vaughne Miller, ‘The Human Rights Clause in the EU External Agreements’ Research Paper 04/33 (House of Commons Library 14 April 2004) 19 and 55 et seq http://​researchbriefings​.files​ .parliament​.uk/​documents/​RP04​-33/​RP04​-33​.pdf accessed 7 April 2020. 68 European Parliament Committee on Foreign Affairs, Human Rights, Common Security and Defence, ‘Annual Report on Human Rights in the World in 2002 and European Union’s Human Rights Policy’ INI (2002/2011), paras 16–19. See also Hachez, ‘“Essential Elements” in EU Trade Agreements Making Trade Work in a Way that Helps Human Rights?’ (n 55) 19; see further Bartels, ‘The Application of Human Rights Conditionality in the EU’s Trade Agreements and Other Trade Arrangements with Third Countries’ (n 66) 11.

Disability in EU trade and investment agreements  411 In this context, it is hard to imagine that, in relation to a trade partner which fails to adopt appropriate measures to achieve full and effective participation and inclusion in society of persons with disabilities, or to adopt appropriate measures to eliminate discrimination on the basis of disability in accordance with the CRPD, the EU would enact relevant essential elements clauses and adopt effective measures to ‘persuade’ the trading Party to comply with its obligations. 3.3

Specific Reference to the Rights of Persons with Disabilities in EU Trade and Investment Agreements

Some EU trade and investment agreements refer to the rights of persons with disabilities explicitly as one of the areas of cooperation or dialogue between the Parties. Other agreements identify disability rights as a limit to the lowering of the standards of protection of consumers and workers at home and abroad, and/or as a safeguard to States’ regulatory powers under the relevant agreement. Into the first category of agreements fall a series of AA, including the EC–Chile AA of 2002, which establishes that in the context of social cooperation, ‘[t]he Parties will give priority to measures aimed at: (a) promoting human development, the reduction of poverty and the fight against social exclusion, by generating innovative and reproducible projects involving vulnerable and marginalised social sectors. Special attention will be paid to low-income families and disabled persons’.69 The EC–Montenegro AA of 2007, the EC–Serbia AA of 2008 and the EC–Bosnia SA of 2008 also contain provisions establishing that: [t]he Parties shall cooperate to facilitate the reform of the employment policy […] in the context of strengthened economic reform and integration. Cooperation shall also seek to support the adaptation of the […] social security system to the new economic and social requirements, and shall involve the adjustment of the legislation […] concerning working conditions and equal opportunities for women and men, for people with disabilities and for people belonging to minority groups’.70 Some treaties focus on specific areas of cooperation, such as health, labour market and social safety, and engage the parties to devote special attention ‘to ensure an equitable access […] for vulnerable groups such as the disabled’.71 These provisions are programmatic in nature, and they do not impose upon States veritable obligations.

A second category of agreements also exists, the most notable example of which is the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, provisionally applied since 21 September 2017. Article 19(3) CETA, contained in the ‘Public Procurement’ Chapter, establishes that ‘[n]othing in this Chapter shall be construed to prevent a Party from imposing or enforcing measures: […] (d) relating to goods or services of persons with disabilities’.72 Similar provisions are also featured in relevant public procurement or governmental procurement chapters of the EC–CARIFORUM Economic Partnership Agreement Article 44(4) EC–Chile Association Agreement. Emphasis added. Article 99 and 101 EC–Montenegro Association Agreement; Article 101(2) EC–Serbia Association Agreement; EC–Bosnia Stabilisation Agreement. 71 Articles 44 EU–CACM Association Agreement; Article 32 EU–Moldova Association Agreement; Article 349 EU–Georgia Association Agreement; Article 85 EU–Armenia CEPA. 72 Article 19(3) CETA. 69 70

412  Research handbook on EU disability law (EPA), the EU–Iraq CA, the EU–Colombia–Ecuador–Peru Trade Agreement and the EU– Kazakhstan Enhanced Partnership and Cooperation Agreement (EPCA).73 These provisions, which establish an exception to the application of the public procurement norms, reflect a well-established EU policy in the area.74 Article 28(7)(4) CETA serves as a general exception to all of the other provisions of the CETA, seeking to avoid any measure which introduces fiscal incentives to favour disabled people falling within those forbidden by the CETA, thus giving rise to the State’s international responsibility.75 In this regard, it is worth mentioning that the preamble of the CETA clearly recognizes that the CETA ‘preserve[s] the right of the Parties to regulate within their territories and the Parties’ flexibility to achieve legitimate policy objectives’ and that, in relation to FDI promotion and protection, both the Preamble and Article 8(9) CETA recognize the Parties’ right to regulate within their territories in order to achieve legitimate policy objectives.76 These provisions reinforce the idea that, at least theoretically, legitimate regulatory measures taken by the States with the aim of enhancing the fulfilment of the rights of persons with disabilities shall not be censured – at least not under the investment chapter of the treaty, nor in relation to tax measures – and fall within the above-mentioned regulatory exception.77

4.

CONCLUDING REMARKS

The rights of persons with disabilities come into play in the context of EU trade and investment policy as a part of the broader attempt by EU policy-makers to protect EU values, human rights and sustainable development standards globally. As the EU Trade Commissioner has clearly stated, ‘open markets do not require us to compromise on core principles, like human rights and sustainable development around the world or high-quality safety and environmental regulation and public services at home’.78 The connection between EU trade and investment treaties and disability mostly builds on the premise of the new strategy of the EU, namely that trade and investment agreements must 73 Article 167(c)(1) Economic Partnership Agreement between the CARIFORUM States and the European Community and its Member States [2008] OJ L289/3 (signed 15 October 2008, entered into force 1 January 2009); Article 42(7) EU–Iraq CA; Article 174 EU–Colombia–Ecuador–Peru Trade Agreement; Article 121 EU–Kazakhstan EPCA. 74 Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC [2014] OJ L94/65. Recital (3) of the Directive states that ‘[w]hen implementing this Directive, the United Nations Convention on the Rights of Persons with Disabilities should be taken into account, in particular in connection with the choice of means of communications, technical specifications, award criteria and contract performance conditions’. See also Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134/114. 75 Article 28(7)(4) CETA: ‘[n]othing in this Agreement […] shall apply: […] (b) to a taxation measure of a Party that provides an advantage relating to the contributions made to, or income of, an arrangement providing for the deferral of, or exemption from, tax for […] disability or other similar purposes.’ Emphasis added. 76 Preamble, Article 8(9) and Annex 8-A CETA. 77 Ibid Annex 8-A, para 3: ‘except in the rare circumstance […] non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations’. Emphasis added. 78 Commission, ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ (n 6).

Disability in EU trade and investment agreements  413 support and promote EU values and standards worldwide, including respect for the rights of persons with disabilities. In this context, however, a specific and organic evaluation of the concerns of, and opportunities for, people with disabilities vis-à-vis trade and investment agreements has not been carried out, and reference to disability remains mostly sporadic and indirect. Treaties’ preambles refer to persons with disabilities only indirectly and for interpretive purposes. Essential elements clauses have proven to be ineffective vis-à-vis human rights violations that do not amount to grave or massive abuses. Only very sectoral and specific provisions included in public procurement chapters, and/or related to taxation within trade and investment agreements, seem to effectively address some of the concerns that persons with disabilities may face, and thus contribute to the protection and fulfilment of their rights. Provisions included in public procurement chapters, in particular, seem to be expressly aimed at achieving accessibility and full participation of people with disabilities. Policy-makers should make efforts to incentivize the interplay between disability and trade and investment agreements, as this would allow the EU and its Member States to better achieve the ‘mandate to improve the social and economic situation of people with disabilities’ and the goal of an ‘economy that works for people’.79

79 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ (n 1) 3–4; see also Commission, ‘An Economy that Works for People’ https://​ec​.europa​.eu/​info/​ priorities/​economy​-works​-people​_en accessed 30 March 2020.

23. The European Convention on Human Rights and Disability Silvia Favalli

1. INTRODUCTION The adoption of the 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention) represents a milestone in international disability law. As highlighted in the Introduction to this Research Handbook, the CRPD marked a paradigm shift, recognizing persons with disabilities as holders of human rights on an equal basis with others.1 In Europe, it is widely acknowledged that the CRPD has become the main legal benchmark against which the protection and promotion of the rights of persons with disabilities must be assessed.2 After the ratification of the CRPD by the European Union (EU), the UN Convention became an integral part of EU law.3 In the broader European context, the UN Convention has greatly influenced the system of protection of human rights for persons with disabilities provided by the Council of Europe (CoE).4 This is mostly evident in the disability case law of the European Court of Human Rights (ECtHR or Strasbourg Court), where, as noted elsewhere, the European Convention on Human Rights (ECHR) and the CRPD can be considered as interconnected ‘living instruments’.5 Moreover, the CRPD has stimulated cross-fertilization of 1 Among many others, see Rannveig Traustadóttir, ‘Disability Studies, the Social Model and Legal Developments’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 3–16; see generally Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017); see also Charles O’Mahony and Gerard Quinn (eds), Disability Law and Policy: An Analysis of the UN Convention (Clarus Press 2017). 2 Among others, see Lisa Waddington, ‘Breaking New Ground: The Implications of the UN Convention on the Rights of Persons with Disabilities for the European Community’ in Oddný Mjöll Arnardottir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, (Martinus Nijhoff Brill 2009) 111–40; see also Delia Ferri, ‘The Conclusion of the UN Convention on the Rights of Persons with Disabilities by the EC/EU: A Constitutional Perspective’ (2009) 2 European Yearbook of Disability Law 47; Oliver Lewis, ‘Council of Europe’ in Lisa Waddington and Anna Lawson (eds), The UN Convention on the Rights of Persons with Disabilities in Practice (Oxford University Press 2018) 89–130. 3 See supra Merijn Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’, in this volume. 4 See generally Silvia Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: “From Zero to Hero”’ (2018) 18(3) Human Rights Law Review 517; Delia Ferri and Andrea Broderick, ‘The European Court of Human Rights and the Human Rights Model of Disability: Convergence, Fragmentation and Future Perspectives’ (2019) European Yearbook of Human Rights 261. 5 Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: “From Zero to Hero”’ (n 4) 520.

414

The European Convention on Human Rights and Disability  415 the disability case law of the Strasbourg Court and that of the Court of Justice of the EU (CJEU or Luxembourg Court), as emerges from some of the latest developments in the disability case law of the ECtHR related to non-discrimination and reasonable accommodation.6 This is particularly relevant, as it constitutes a counter-trend at a time when, as several scholars contend, the dialogue between the two European courts seems to have halted, as demonstrated by the decreasing amount of cross-references in the case law of the respective courts in recent years.7 Against this background, this chapter analyses the most recent decisions of the ECtHR in relation to discrimination on the ground of disability and reasonable accommodation, with the aim not only to carve out the relevance of EU law for that line of case law but also to highlight the influence that the Strasbourg Court’s jurisprudence might exert on EU case law. Following this introduction, section 2 provides a succinct overview of the relevant legal frameworks. It briefly compares the parallel evolution of the disability policy of the CoE and the EU, focusing on the CoE Strategy on the Rights of Persons with Disabilities 2017–2023,8 and on the relevant provisions of the ECHR. Section 3 examines the Strasbourg Court’s disability equality case law, comparing and contrasting it with the relevant CJEU case law. With the aim to introduce the case law analysis, this section addresses the increasing influence of the CRPD on the interpretation of the ECHR, as well as the changing relationship between the ECtHR and the CJEU. In particular, it discusses the partially divergent interpretations of discrimination on the ground of disability developed by the ECtHR and the CJEU. It also addresses the similarities between the interpretation of the concept of ‘reasonable accommodation’ adopted by the Strasbourg Court and that adopted by the Luxembourg Court. Section 4 contains some concluding reflections and future perspectives.

2.

PLACING THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN THE CONTEXT OF THE COUNCIL OF EUROPE’S DISABILITY POLICY

Both the EU and the CoE have long provided protection for the rights of persons with disabilities through several disability-oriented policy actions. In that regard, the first CoE initiative dates back to 1959, when the Committee of Ministers concluded the Partial Agreement in

6 See generally Oddný Mjöll Arnardóttir, ‘Cross-Fertilisation, Clarity and Consistency at an Overburdened European Court of Human Rights: The Case of the Discrimination Grounds under Article 14 ECHR’ (2015) 33(3) Nordic Journal of Human Rights 220; Delia Ferri, ‘L’Accomodamento Ragionevole per le Persone con Disabilità in Europa: Dal Transatlantic Borrowing alla Cross-Fertilization’ (2017) 19(2) Diritto Pubblico Comparato ed Europeo 381. 7 Among many others, see Gráinne de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20(2) Maastricht Journal of European and Comparative Law 168; Piet Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky’ (2015) 38(4) Fordham International Law Journal 955; Martin Kuijer, ‘The Challenging Relationship Between the European Convention on Human Rights and the EU Legal Order: Consequences of a Delayed Accession’ (2018) The International Journal of Human Rights 1. 8 Council of Europe, ‘Human Rights: A Reality for All: Council of Europe Disability Strategy 2017–2023’ (Council of Europe March 2017) https://​rm​.coe​.int/​CoERMPublicC​ommonSearchServices/​ DisplayDCTMContent​?documentId​=​09000016806c400c accessed 1 February 2020.

416  Research handbook on EU disability law the Social and Public Health Field together with some of the CoE Member States.9 It also established the Committee on the Rehabilitation and Integration of People with Disabilities (CDPRR), which formed ad hoc committees of experts from different countries in order to draft reports and to contribute to the drafting of recommendations to governments.10 In a similar vein, the former European Community (EC) took a series of actions between 1974 and 1996, providing for a Community-wide system for the exchange of information between CoE Member States.11 These policy instruments, which were in line with the conceptualization of disability that prevailed at that time – the so-called medical model of disability – were underpinned by a mere welfare perspective. The gradual affirmation of the social model of disability, which determined a shift in the approach to disability worldwide, deeply influenced the subsequent evolution of the European disability law and policy framework. According to this model, disability is conceived of as a ‘social construction’12 rather than an individual medical problem. This means that disability is viewed as the consequence of environmental and other barriers imposed by society. In this vein, policy interventions underpinned by the social model mainly focus on the elimination of social and economic structures that are responsible for the exclusion of people with disabilities from society,13 rather than on rehabilitation and welfare measures. Although the social model became a real ‘disability rights manifesto’,14 able to challenge the paternalistic conception of persons with disabilities enshrined in the medical model, it has also been criticized for focusing on external factors and ignoring the impact of impairment.15 Thus, several variations on the social model have developed,16 which try to find a balance between the roles played by individual impairments and environmental barriers in causing disability. The CRPD considers disability as stemming from the interaction between individual impairments and external

9 Council of Europe Committee of Ministers, Partial Agreement in the Social and Public Health Field, Resolution Res (59) 23E adopted by the Minister’s Deputies on 16 November 1959. 10 The Committee on the Rehabilitation and Integration of People with Disabilities (CD-P-RR) was set up to ensure cooperation between the Council of Europe Member States that have signed the Partial Agreement. It ended its activities in 2007, when the Partial Agreement expired on 31 March 2007. 11 Council Resolution establishing the initial Community Action Programme for the vocational rehabilitation of handicapped persons [1974] OJ C80/30; First Community Action Programme on the Social Integration of Handicapped People (1983–1988) [1981] OJ C347/1; HELIOS I Community Action Programme for Disabled People (1988-1991) [1988] OJ L104/38; Council Decision 93/136/EEC establishing a third Community action programme to assist disabled people (Helios II 1993 to 1996) [1993] OJ L56/30. 12 Michael Oliver, Understanding Disability: From Theory to Practice (Macmillan 1996) 35. 13 Colin Barnes and Geof Mercer, Exploring Disability (Polity Press 2010 2nd edn). 14 Rosemary Kayess and Philip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8(1) Human Rights Law Review 1 at 12. 15 See, among others, Dimitris Anastasiou and James M Kaufmann, ‘The Social Model of Disability: Dichotomy between Impairment and Disability’ (2013) 38(4) Journal of Medicine and Philosophy 441; Guy Dewsbury, Karen Clarke, Dave Randall, Mark Rouncefield and Ian Sommerville, ‘The Anti‐Social Model of Disability’ (2013) 19(2) Disability & Society 145; Tom Shakespeare, Disability Rights and Wrongs Revisited (Routledge 2013). 16 See, among many, Charles E Drum, ‘Models and Approaches to Disability’ in Charles E Drum, Gloria L Krahn and Hank Jr Bersani (eds), Disability and Public Health (American Public Health Association/American Association on Intellectual and Developmental Disabilities 2009) 27–44; Michael Oliver, ‘Defining Impairment and Disability’ in Elizabeth F Emens (ed), Disability and Equality Law (Routledge 2017) 3–18.

The European Convention on Human Rights and Disability  417 barriers.17 Furthermore, the UN Convention adopts a rights-based approach, referred to as the ‘human rights model’ of disability.18 In line with this new conceptualization of disability, the CoE Committee of Ministers adopted Recommendation R (92) 6 on a coherent policy for people with disabilities in 1992,19 following the First Conference of Ministers responsible for Policies on People with Disabilities.20 This document moved away from a focus on vocational rehabilitation and reintegration, and aimed to promote instead the right of people with disabilities to an independent life and full integration in society. This Recommendation, which was the result of an in-depth reflection on all of the initiatives taken by the CoE up to that time, became the point of reference for the subsequent CoE disability policy measures.21 By the same token, in the former EC, the adoption of the 1996 European Community Disability Strategy represented a turning point in EU disability policy,22 in that it adopts the social model. Shortly after that, with the entry into force of the Amsterdam Treaty in 1999 and the proclamation of the Charter of Fundamental Rights of the EU (CFR or EU Charter) in 2000, the EC disability agenda gained momentum.23 Subsequent to the 1992 CoE Recommendation and almost in parallel with the developments taking place at the EC level, numerous initiatives, such as recommendations, resolutions, and guidelines, were adopted by the CoE institutions.24 Moreover, in 2003, during the Second European Conference of Ministers responsible for Integration Policies for People with Disabilities,25 the Secretary-General launched the so-called Malaga Initiative, which was designed to extend the Partial Agreement in the Social and Public Health Field to all CoE Member States. In this respect, the CDPRR was invited to draw up a CoE Action Plan for people with disabilities, which was finally adopted in 2006. The CoE Disability Action Plan 2006–2015,26 which was addressed to the governments of all Member States, provided a flexi-

17 This has been referred to by Broderick as the ‘social-contextual model’ of disability. See Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 25–30 and 77. 18 Committee on the Rights of Persons with Disabilities (CRPD Committee), General Comment No. 6: Equality and Non-discrimination, UN Doc. CRPD/C/GC/6 (2018). Among many others, see Theresia Degener, ‘A Human Rights Model of Disability’ in Peter Blanck and Eilionóir Flynn (eds), Routledge Handbook of Disability Law and Human Rights (Routledge 2017) 31–50. See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 19 Council of Europe Committee of Ministers, Recommendation on a Coherent Policy for People with Disabilities, Recommendation R (92) 6 (9 April 1992). 20 The Conference was held in Paris on 7–8 November 1991. 21 Thorsten Afflerbach and Angela Garabagiu, ‘Council of Europe Actions to Promote Human Rights and Full Participation of People with Disabilities: Improving the Quality of Life of People with Disabilities in Europe’ (2006) 34 Syracuse Journal of International Law and Commerce 463. 22 Commission, ‘Equality of Opportunity for People with Disabilities: A New European Community Disability Strategy’ COM (96) 406 final. 23 See supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 24 See Council of Europe, Division of the Partial Agreement in the Social and Public Health Field, Directorate General III – Social Cohesion, Compilation of Council of Europe Instruments of Particular Interest on the Debate on the United Nations Draft International Convention on the Rights of Persons with Disabilities, Volume II: Recommendations, Resolutions and Other Instruments (2006). 25 The Conference was held in Malaga, Spain, on 7–8 May 2003. 26 Council of Europe Committee of Ministers, Recommendation of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of

418  Research handbook on EU disability law ble framework for political decision-makers that could be adopted by Member States. It aimed to encourage non-discrimination and human rights measures to enhance equal opportunities and independence of people with disabilities; to guarantee their freedom of choice, full citizenship and active participation in the life of the community; and to improve their quality of life. In December 2006, the CRPD and its Optional Protocol were adopted by the UN and by the large majority of the CoE Member States.27 This determined another major ‘paradigm shift’ towards the above-mentioned human rights model of disability envisaged by the CRPD. 2.1

The Council of Europe Strategy on the Rights of Persons with Disabilities 2017–2023

After the adoption of the UN Convention, a new consciousness of the protection of the rights of persons with disabilities emerged both globally and in the European context. The CRPD deeply influenced the entire content and structure of both the subsequent CoE Strategy and, as discussed earlier in this Research Handbook, EU disability policy. The CoE Strategy on the Rights of Persons with Disabilities 2017–2023 (CoE Strategy),28 adopted on 30 November 2016 and currently in force – similarly to the European Disability Strategy 2010–2020 (EDS)29 – adopts a wider approach than the previous policy measures, which were mainly focused on employment, accessibility and non-discrimination. The CoE Strategy 2017–2023 identifies five cross-cutting issues: participation, co-operation and coordination; universal design and reasonable accommodation; gender equality; multiple discrimination; and education and training. It also indicates five rights-based priority areas (equality and non-discrimination; awareness-raising; accessibility; equal recognition before the law; and freedom from exploitation, violence and abuse), which build on the existing CoE disability policy framework and bring added value to the progress achieved in other regional and international contexts, such as at the level of the EU and the UN. The priority areas identified in the CoE Strategy are anchored in the ECHR and other CoE standards, as well as being connected to the CRPD. As the CoE Strategy expressly contends,30 there is a juxtaposition of the commitments of the Strategy itself and of the CRPD, with the difference being that the Strategy does not create legal obligations, while the CRPD is legally binding. Since the large majority of the CoE Member States have already ratified the CRPD, the CoE Strategy expressly aims at implementing the UN Convention. Hence, the interpretation of the CoE Strategy must be in line with the CRPD, as well as with the ECHR and the evolving case law of the ECtHR, and with the revised European Social Charter (ESC). In addition, the

People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006–2015, Recommendation Rec (2006) 5 (5 April 2006) https://​rm​.coe​.int/​1680595206 accessed 1 February 2020. 27 At the time of writing, the CRPD has been ratified by 46 out of the 47 Council of Europe Member States (to date, only Liechtenstein has not signed or ratified the CRPD), while the Optional Protocol has been ratified by 31 Council of Europe Member States. 28 Council of Europe, ‘Human Rights: A Reality for All: Council of Europe Disability Strategy 2017–2023’ (n 8). 29 See supra Charles O’Mahony and Shivaun Quinlivan, ‘The EU Disability Strategy and the Future of EU Disability Policy’, in this volume. 30 Council of Europe, ‘Human Rights: A Reality for All: Council of Europe Disability Strategy 2017–2023’ (n 8) para 17.

The European Convention on Human Rights and Disability  419 ‘evolving body of decisions, guidelines and General Comments of the [CRPD] Committee’, as well as ‘the conclusions and decisions of the European Committee of Social Rights’, which monitors compliance with the revised ESC, have to be duly taken into account.31 The implementation of the CoE Strategy entails cooperation with national focal points, coordination mechanisms and independent frameworks, as established under Article 33 CRPD.32 It is also based on a ‘twin-track’ approach.33 On the one hand, disability-specific projects, campaigns, training and activities will be organized at the national and local levels. On the other hand, disability-related issues will be mainstreamed in all of the work and activities of the CoE. In order to assess progress in the implementation of the CoE Strategy, the Ad-Hoc Committee of Experts on the Rights of Persons with Disabilities will prepare biennial reports to be brought to the attention of the Committee of Ministers. These reports should take into consideration recommendations by the monitoring mechanisms and various other structures within the CoE, relevant ECtHR case law, disability rights-related events, campaigns and publications, as well as legislative and structural developments at the international, regional, national and local levels. 2.2

The European Convention on Human Rights and Disability

In the absence of a binding legal instrument expressly protecting disability rights in the CoE, all legal standards apply equally to all individuals, including those with disabilities. However, of all relevant policy initiatives and legally binding instruments in the CoE,34 the ECHR and the revised ESC constitute the most relevant legal standards referring to disability rights. The ECHR lays the foundations for the CoE protection of human rights, including disability rights, which are enforced through the ECtHR’s judicial activity. The judicial protection afforded under the ECHR is complemented by the ESC, which provides a parallel protection system, namely the Collective Complaints procedure. While the revised ESC recognizes specific rights for persons with disabilities in Article 15 and Article E,35 the ECHR does not refer to disability rights per se. This gap in the text of the ECHR has been filled somewhat by the evolving case law of the ECtHR, which has responded to the significant changes that have taken place across Europe since its drafting and has rendered several judgments on disability rights. The fact that neither ‘disability’ nor ‘persons with disabilities’ are mentioned expressly in the text of the ECHR or of its Protocols reflects the historical context in which the ECHR was drafted – in the aftermath of the Second World War, when a mere welfare and paternalistic approach, underpinned by a ‘traditional deficit understanding of disability’ (the medical

Ibid paras 23 and 24. Article 33 CRPD relates to the system of national implementation and monitoring of the CRPD. It requires States Parties to designate focal points and, if required, coordination mechanisms (para 1), to designate or establish independent mechanisms (para 2) and to guarantee the participation of civil society (para 3). 33 Council of Europe, ‘Human Rights: A Reality for All: Council of Europe Disability Strategy 2017–2023’ (n 28) para 87. 34 Other relevant Council of Europe legal instruments are the following: Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention), Convention on Action against Trafficking in Human Beings. 35 See infra Giuseppe Palmisano, ‘The European Social Charter and Disability’, in this volume. 31 32

420  Research handbook on EU disability law model), was predominant, and when persons with disabilities were not considered as autonomous rights holders.36 Only Article 5 ECHR contains a sort of indirect reference to ‘mental disability’, while Article 14 ECHR, along with Article 1 of Protocol 12, has been interpreted by the Strasbourg Court as encompassing a prohibition of discrimination on the ground of disability.37 Article 5 ECHR, which guarantees the right to liberty and security of persons, allows the deprivation of liberty of so-called persons of unsound mind (‘aliéné’ in the French official version). This term is deliberately vague, and it ‘does not lend itself to precise definition since psychiatry is an evolving field, both medically and in social attitudes’;38 however, the case law of the ECtHR has extensively clarified its meaning.39 Article 14 ECHR and Article 1 of Protocol 12 prohibit ‘discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. The term ‘other status’ has been interpreted by the Strasbourg Court as covering disabilities and various health conditions.40 In both of these provisions, whose grounds of discrimination are enumerated in identical non-exhaustive lists, the final open clause has been used to widen the scope of protection against discrimination in favour of persons with disabilities. In this regard, the conclusion of the CRPD played a crucial role, as demonstrated by the fact that the first ECtHR decision recognizing a violation of Article 14 on the ground of disability, Glor v Switzerland,41 was rendered shortly after the entry into force of the UN Convention.42

36 Davíð Þór Björgvinsson, ‘The Protection of the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights’ in Oddný Mjöll Arnardottir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Brill 2009) 141–61. 37 Glor v Switzerland, Application No. 13444/04 (ECtHR, 30 April 2009). 38 Rakevich v Russia, Application No. 58973/00 (ECtHR, 28 October 2003), para 26. 39 For an overview of the European Court of Human Rights case law on this issue, see the European Court of Human Rights Research Division, ‘Guide on Article 5 – Right to Liberty and Security’ (Council of Europe 2018) www​.echr​.coe​.int/​Documents/​Guide​_Art​_5​_ENG​.pdf accessed 1 February 2020. 40 Among many others, see Rory O’Connell, ‘Cinderella Comes to the Ball: Article 14 and the Right to Non-discrimination in the ECHR’ (2009) 29(2) Legal Studies: The Journal of the Society of Legal Scholars 211; Sergio Bartole, Pasquale De Sena and Vladimiro Zagrebelsky, Commentario Breve alla Convenzione Europea per la Salvaguardia dei Diritti dell’Uomo e delle Libertà Fondamentali (CEDAM 2012); Janneke Gerards, ‘The Discrimination Grounds of Article 14 of the European Convention on Human Rights’ (2013) 13(1) Human Rights Law Review 99; Oddný Mjöll Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights’ (2014) 14(4) Human Rights Law Review 647; Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities (n 17) 316–20; Sandra Fredman, ‘Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights’ (2016) 16(2) Human Rights Law Review 1; Andrea Broderick, ‘The United Nations Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights: A Tale of Two Halves or a Potentially Unified Vision of Human Rights?’ (2018) 7(2) Cambridge International Law Journal 199. 41 Glor v Switzerland, Application No. 13444/04 (ECtHR, 30 April 2009). 42 Bob Clifford, ‘The UN Disability Convention and Its Impact on European Equality Law’ (2011) 6 The Equal Rights Review 11, p. 20.

The European Convention on Human Rights and Disability  421

3.

THE EUROPEAN COURT OF HUMAN RIGHTS AND THE RIGHTS OF PERSONS WITH DISABILITIES

The Strasbourg Court has developed a comprehensive system for the protection of the rights of persons with disabilities, mainly on a case-by-case basis and through a disability-oriented interpretation of certain ECHR rights. In that regard, the ECtHR has largely been influenced by the CRPD, as well as by the jurisprudence of the CJEU. This is mostly evident in equality and reasonable accommodation case law, in which the first seeds of a fruitful process of cross-fertilization between the Strasbourg and the Luxembourg disability case law have progressively been planted. 3.1

The Influence of the UN Convention on the Rights of Persons with Disabilities on the Case Law of the European Court of Human Rights

As noted elsewhere,43 the CRPD has played a primary role in the system of protection of the rights of persons with disabilities in the CoE and, in particular, in the disability case law of the ECtHR. First, in the landmark case of Glor v Switzerland,44 which will be discussed further below, the Strasbourg Court applied the well-established concept of the ‘European consensus’45 to disability rights. At the time of the judgment, the respondent State had not even signed the CRPD. Nonetheless, the Strasbourg Court referred to the CRPD as a relevant source of international law, and affirmed that ‘there is a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment’.46 Afterwards, in S.H.H. v United Kingdom,47 the Strasbourg Court – even though only implicitly – compared the core principles of the CRPD to ‘general principles of international law’, and used them to interpret Article 3 ECHR (the prohibition of torture and inhuman and degrading treatment). More precisely, it affirmed that ‘the Convention does not apply in a vacuum but must be interpreted in harmony with the general principles of international law’. In that case, the Court stated that ‘the [CRPD] has to be read as informing the scope to be given to Article 3’.48 Furthermore, in its subsequent disability case law,49 the Strasbourg Court often took the opportunity to mention 43 Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: “From Zero to Hero”’ (n 4). 44 Glor v Switzerland, Application No. 13444/04 (ECtHR, 30 April 2009). 45 Ineta Ziemele, ‘Customary International Law in the Case Law of the European Court of Human Rights’ in Liesbeth Lijnzaad and Council of Europe (eds), The Judge and International Custom/Le juge et la coutume international (Martinus Nijhoff Brill 2016) 73. 46 Glor v Switzerland, Application No. 13444/04 (ECtHR, 30 April 2009) para 53. 47 S.H.H. v United Kingdom, Application No. 60367/10 (ECtHR, 29 January 2013). 48 Ibid para 94. 49 Among many others, see M.H. v United Kingdom, Application No. 11577/06 (ECtHR, 22 October 2013); Ruiz Rivera v Switzerland, Application No. 8300/06 (ECtHR, 18 February 2014); Valentin Campeanu v Romania, Application No. 47848/08 (ECtHR, 17 July 2014); M.S. v Croatia, Application No. 36337/10 (ECtHR, 19 February 2015); Butrin v Russia, Application No. 16179/14 (ECtHR, 22 March 2016); Blokhin v Russia, Application No. 47152/06 (ECtHR, 23 March 2016); I.C. v Romania, Application No. 36934/08 (ECtHR, 24 May 2016); Fernandes De Oliveira v Portugal, Application No. 78103/14 (ECtHR, 28 March 2017); N. v Romania, Application No. 59152/08 (ECtHR, 28 November

422  Research handbook on EU disability law the UN Convention to strengthen its assessment of the particular rights involved, affirming that ‘the Convention’s provisions concerning the human rights of persons with disabilities should be interpreted in the light of the CRPD’.50 However, the influence of the UN Convention on the ECtHR case law emerges more clearly in the dissenting or concurring opinions of the Strasbourg judges, who reaffirm that the CRPD sets the European and international standards of protection for the rights of persons with disabilities. For example, in Valentin Campeanu v Romania,51 judge De Albuquerque recalled the fact that there is a ‘European consensus’ on the protection against discrimination on the basis of disability, as affirmed in the Glor judgment, which supports the existence of a principle of equality permeating the whole European human rights protection system.52 In Kocherov and Sergeyeva v Russia,53 judge Keller reiterated that the Strasbourg Court has recognized the UN Convention ‘as setting the standard concerning the need to protect people with disabilities from discriminatory treatment’.54 Similarly, in Kacper Nowakowski v Poland,55 judge Motoc declared that the CRPD ‘sets out the most important principles for the protection of the human rights of disabled persons’.56 In Enver Şahin v Turkey,57 judge Lemmens acknowledged that the ECHR should be interpreted, as far as possible, in light of the provisions of the CRPD, which reflects an international consensus on the rights of persons with disabilities.58 Finally, in S.S. v Slovenia,59 judges Zalar and Motoc – considering that the UN Convention benefits from a broad consensus among the CoE Member States, as indicated by the high number of ratifications – affirmed that the CRPD deeply impacts on the interpretation of the ECHR ‘in the sense that the margin of appreciation, in accordance with the Court’s general case law, becomes narrower’.60 3.2

The Dialogue between the European Court of Human Rights and the Court of Justice of the European Union

The judicial dialogue between the Strasbourg and the Luxembourg Courts started early in the mid-1970s, developing through a process of cross-fertilization. The Luxembourg Court explicitly mentioned the ECHR for the first time in Rutili in 1975,61 and referred to the ECtHR’s case law in P v S and Cornwall County Council in 1996,62 while the Strasbourg Court made the first

2017); Mockutė v Lithuania, Application No. 66490/09 (ECtHR, 27 February 2018); Nikolyan v Armenia, Application No. 74438/14 (ECtHR, 3 October 2019); Rooman v Belgium, Application No. 18052/11 (ECtHR, 31 January 2019); Mockutė v Lithuania, Application No. 66490/09 (ECtHR, 27 February 2018). 50 S.H.H. v United Kingdom, Application No. 60367/10 (ECtHR, 29 January 2013) para 42. 51 Valentin Campeanu v Romania, Application No. 47848/08 (ECtHR, 17 July 2014). 52 Ibid. Concurring Opinion of Judge Pinto De Albuquerque, para 9. 53 Sergeyeva v Russia, Application No. 16899/13 (ECtHR, 29 March 2016).  54 Ibid. Dissenting Opinion of Judge Keller, para 10. 55 Kacper Nowakowski v Poland Application No. 32407/13 (ECtHR, 10 January 2017). 56 Ibid. Dissenting Opinion of Judge Sajò, para 9. 57 Enver Şahin v Turkey, Application No. 3065/12 (ECtHR, 30 January 2018). 58 Ibid. Dissenting Opinion of Judge Lemmens, para 4. 59 S.S. v Slovenia, Application No. 40938/16 (ECtHR, 30 October 2018). 60 Ibid. Concurring Opinion of Ad Hoc Judge Zalar, Joined by Judge Motoc, para 3. 61 Case C-36/75 Roland Rutili v Ministre de l’intérieur EU:​C:​1975:​137 para 32. 62 Case C-13/94 P v S and Cornwall County Council EU:​C:​1996:​170 para 16.

The European Convention on Human Rights and Disability  423 reference to the Luxembourg case law in Marckx v Belgium in 1979.63 After this, ‘references to the ECtHR’s case law became a routine’ for the Luxembourg Court.64 In the absence of a normative protection of fundamental rights within the sources of EC law at the time, this trend allowed the recognition, on a case-by-case basis, of a number of fundamental rights as general principles of EU (former EC) law. Vice versa, the Strasbourg Court was mentioning the CJEU’s case law less frequently, probably because fundamental rights decisions were relatively rare in Luxembourg.65 However, in the past decade, two milestone events deeply impacted on the interactions between the two European courts. The first relates to the entry into force of the Lisbon Treaty in 2009, whereby the CFR became legally binding.66 After the EU Charter acquired such legal status, the Luxembourg Court diminished its references to the ECHR and the ECtHR’s case law, preferring to cite the CFR instead.67 On the contrary, the Strasbourg Court started to refer to the CJEU case law more frequently. Hence, the new legal status of the CFR rendered both EU law and the Luxembourg case law more relevant in the context of the protection of fundamental rights.68 The second milestone event is the delivery of Opinion 2/13, in 2014, by the Luxembourg Court,69 which declared the incompatibility with Article 6(2) Treaty on European Union (TEU) of the draft agreement on the accession of the EU to the ECHR, and apparently placed the two European courts on a collision course.70 Against this trend, it is possible to observe a growing synergy between the Strasbourg and Luxembourg Courts with regard to disability in the context of non-discrimination and reasonable accommodation. As mentioned above, since its entry into force, the CRPD has become a point of reference for, and began to play an important role in, both the case law of the ECtHR and CJEU concerning discrimination on the ground of disability. As a result, the two European Courts developed a protection against discrimination for persons with disabilities on parallel tracks and in a somewhat similar way.

Marckx v Belgium, Application No. 6833/74 (ECtHR, 13 June 1979) para 58. Dean Spielmann, ‘The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights or How to Remain Good Neighbours after the Opinion 2/13’ (FRAME 27 March 2017) www​.fp7​-frame​.eu/​wp​-content/​uploads/​2017/​03/​ECHRCJUEdialog​.BRUSSELS​.final​_​ .pdf accessed 3 February 2020. 65 Timothy Roes and Bilyana Petkova, ‘Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of Mutual Trust’ in Christine Landfried (ed), Judicial Power: How Courts Affect Political Transformations (Cambridge University Press 2018) 202–30. 66 See supra Delia Ferri, ‘Disability in the EU Charter of Fundamental Rights’, in this volume. 67 De Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (n 7). 68 Spielmann, ‘The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights or How to Remain Good Neighbours after the Opinion 2/13’ (n 64). 69 Opinion 2/13 of the Court pursuant to Article 218(11) TFEU EU:​C:​2014:​2454. 70 Among many others, see Kuijer, ‘The Challenging Relationship’ (n 7); for a more ‘optimistic’ vision, see Federico Fabbrini and Joris Larik, ‘The Past, Present and Future of the Relation between the European Court of Justice and the European Court of Human Rights’ (2016) 35(1) Yearbook of European Law 145; Roes and Petkova, ‘Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of Mutual Trust’ (n 65). 63 64

424  Research handbook on EU disability law 3.2.1

Recognizing the prohibition of discrimination on the ground of disability in Strasbourg and Luxembourg While the prohibition of discrimination on the basis of disability has been firmly embedded in the EU legal framework since the entry into force of the Amsterdam Treaty in 1999, under the system of protection of human rights provided by the ECHR, it was only after the entry into force of the CRPD that the Strasbourg Court recognized disability as a ground of discrimination prohibited under Article 14 ECHR, in the Glor case. In light of this, the UN Convention has greatly influenced the Strasbourg case law on disability equality post-CRPD, also serving as ‘the basis for the adoption by the Court of a heightened standard of scrutiny’.71 The Glor case arose from the Swiss regulation on military service exemption tax, payment of which is required for those who decide not to carry out military service. Swiss law provided for a different system of tax exemption on the basis of a disability threshold (40 per cent physical or mental disability), distinguishing between cases of ‘minor’ and ‘major’ disability.72 While persons with major disabilities were guaranteed the military service exemption tax under the relevant law, persons with minor disabilities – even though declared medically unfit for military service – were nevertheless required to pay the tax for not doing it. On the basis of this legislation, the applicant, Mr Glor, who suffered from minor disabilities according to Swiss law, was declared unsuited to military service, but (at the same time) was required to pay the military service exemption tax for not carrying out his military service. The Strasbourg Court considered that the Swiss authorities failed to strike a balance between the protection of the interests of the community and respect for the rights of Mr Glor as a person with disabilities. The objective reasons given to justify the differential treatment did not appear reasonable in relation to the principles which normally prevail in democratic societies. The distinction made by the Swiss authorities between persons who were unfit for service and not liable to the tax in question, and persons who were unsuited to service but still obliged to pay it, was not justified and constituted discrimination.73 In light of the foregoing, and for the first time, the ECtHR recognized that the list of grounds of discrimination in Article 14 is not exhaustive, and that discrimination based on disability is included under the ‘other status’ ground. Moreover, in Kiyutin v Russia,74 and also in I.B. v Greece,75 the protection against discrimination afforded by Article 14 ECHR was applied to individuals affected by HIV, following the classification of seropositivity as a form of disability. In Kiyutin, the Strasbourg Court considered that 71 Andrea Broderick, ‘A Reflection on Substantive Equality Jurisprudence: The Standard of Scrutiny at the ECtHR for Differential Treatment of Roma and Persons with Disabilities’ (2015) 15(1–2) International Journal of Discrimination and the Law 101. 72 Anja Wiesbrock, ‘Disability as a Form of Vulnerability under EU and CoE Law: Embracing the “Social Model”?’ in Francesca Ippolito and Sara Iglesias Sànchez (eds), Protecting Vulnerable Groups: The European Human Rights Framework (Hart 2015) 71–94, p. 76. 73 Glor v Switzerland, Application No. 13444/04 (ECtHR, 30 April 2009) paras 77–80. 74 Kiyutin v Russia, Application No. 2700/10 (ECtHR, 10 March 2011). See generally Sarah Levitan, ‘Kiyutin: Protecting the Human Rights of Persons Living with HIV/AIDS beyond Immigration’ (2012) 35 Boston College International and Comparative Law Review 49; Hilary H Lane, ‘Kiyutin v Russia: The European Court of Human Rights Acknowledges the Needs for Protection of a Class of Individuals with HIV/AIDS’ (2011) 20 Tulane Journal of International & Comparative Law 505; Alexandra Timmer, ‘Kiyutin v Russia: Landmark Case Concerning the Human Rights of People Living with HIV’ (Strasbourg Observer 21 March 2011) https://​strasbourgobservers​.com/​2011/​03/​21/​kiyutin​-v​-russia​ -landmark​-case​-concerning​-the​-human​-rights​-of​-people​-living​-with​-hiv/​ accessed 3 February 2020. 75 I.B. v Greece, Application No. 552/10 (ECtHR, 3 October 2013).

The European Convention on Human Rights and Disability  425 ‘a distinction made on account of an individual’s health status, including such conditions as HIV infection, should be covered – either as a disability or a form thereof – by the term “other status” in the text of Article 14 of the Convention’.76 In the meantime, the Luxembourg Court was also called on to broaden the scope of the protection against discrimination on the ground of disability to situations that were otherwise without protection. However, diverging from the Strasbourg Court’s approach, the CJEU adopted a narrow approach. In Z. v A Government,77 the issue at stake was the applicability of the non-discrimination protection under the Employment Equality Directive to an employee who was refused paid leave from employment equivalent to maternity leave and/or adoption leave,78 after having opted for surrogacy due to a rare health condition causing her infertility. In particular, the applicant complained that she had been subjected to discrimination on the ground, inter alia, of disability, on the basis of her inability to have a child. In this case, the CJEU admitted the possibility to categorize the applicant’s infertility as a disability under the CRPD, but not under the Employment Equality Directive. According to the Luxembourg Court, ‘the inability to have a child by conventional means does not in itself, in principle, prevent the commissioning mother from having access to, participating in or advancing in employment’.79 In other words, the CJEU relied on the limited scope of the Directive to deny the applicant protection, as this legal instrument only targets disabilities that make a worker’s involvement in professional life more burdensome, rather than participation in society more generally. 3.2.2

Recognizing the reasonable accommodation duty: new synergies between Strasbourg and Luxembourg? Both the Luxembourg and the Strasbourg Courts have recognized the existence of a reasonable accommodation duty when adjudicating on disability discrimination cases. Notably, the ECtHR and the CJEU have gradually adopted the broad conceptualization of reasonable accommodation provided by the CRPD, as entailing the removal of the specific disadvantage faced by persons with disabilities in order to ensure equal rights in practice. However, while in EU equality and non-discrimination law the duty to provide reasonable accommodation is clearly set out in the Employment Equality Directive, in the ECHR there is no reference to such a duty. Its recognition as a form of obligation stemming from the principle of non-discrimination laid down in Article 14 ECHR resulted from the innovative equality case law of the Strasbourg Court.80 In EU non-discrimination law, Article 5 of the Employment Equality Directive requires the adoption of reasonable accommodations to ensure the principle of equal treatment in relation to persons with disabilities in employment and occupation.81 However, neither the Employment Kiyutin v Russia, Application No. 2700/10 (ECtHR, 10 March 2011) para 57. Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159. 78 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 79 Ibid para 81. 80 Broderick, ‘A Reflection on Substantive Equality Jurisprudence: The Standard of Scrutiny at the ECtHR for Differential Treatment of Roma and Persons with Disabilities’ (n 71). 81 See supra Miet Vanhegen and Frank Hendrickx, ‘Disability in EU Labour Law beyond Non-discrimination’, in this volume. 76 77

426  Research handbook on EU disability law Equality Directive nor the CJEU’s case law explicitly recognize the reasonable accommodation duty as a form of discrimination. As noted by Waddington and Broderick, this contrasts with the CRPD.82 In that regard, Ferri points out that the prohibition of discrimination on the ground of disability in the CRPD goes ‘hand in hand with the acknowledgement of the right of persons with disabilities to be provided with reasonable accommodation’.83 In the landmark ruling of HK Danmark,84 the CJEU missed the opportunity to clarify the nature of the reasonable accommodation duty in relation to the prohibition of discrimination on the ground of disability, according to Waddington and Broderick.85 In that case, the CJEU was asked, inter alia, whether Article 5 of the Employment Equality Directive must be interpreted as meaning that a reduction in working hours – although not enumerated in the list provided in recital 20 of the Directive – may constitute one of the accommodation measures covered by that Article. After having clarified that EU law must, as far as is practicable, be interpreted in a manner consistent with the UN Convention,86 the CJEU articulated that, in compliance with Article 2 CRPD, Article 5 of the Employment Equality Directive necessarily prescribes a wide-ranging definition of reasonable accommodation – entailing also a reduction in working hours.87 Similarly, after the entry into force of the UN Convention, the Strasbourg Court referred to Article 2 CRPD in order to interpret Article 14 ECHR as entailing a right to reasonable accommodation. In doing so, the ECtHR implicitly recognizes the reasonable accommodation duty as a form of discrimination, in contrast with the Luxembourg Court. This is visible in Glor, where the Court – although not expressly mentioning the State’s duty to provide reasonable accommodation – incidentally observed that the national authorities had not taken sufficient account of the applicant’s individual circumstances, since they had not proposed to him any alternative service compatible with his disability.88 While this case is merely suggestive of a right of persons with disabilities to be provided with reasonable accommodation,89 subsequent ECtHR decisions are more explicit in that regard.

82 Lisa Waddington and Andrea Broderick, Combatting Disability Discrimination and Realising Equality: A Comparison of the UN CRPD and EU Equality and Non-discrimination Law (European Commission 2018) 71 https://​ec​.europa​.eu/​info/​sites/​info/​files/​combatting​_disability​_discrimination​.pdf accessed 3 February 2020. 83 Delia Ferri, ‘Reasonable Accommodation as a Gateway to the Equal Enjoyment of Human Rights: From New York to Strasbourg’ (2018) 6(1) Social Inclusion 40. 84 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) (HK Danmark) EU:​C:​2013:​222. 85 Waddington and Broderick, Combatting Disability Discrimination and Realising Equality (n 82) 76. 86 Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222, para 33. 87 Ibid para 53. 88 It is worth mentioning that the Strasbourg Court acknowledged the duty to provide reasonable accommodation in judgments dating back to the late 1990s and the early 2000s in relation to Article 3 and Article 8 ECHR. See Olivier De Schutter, ‘Reasonable Accommodations and Positive Obligations under the European Convention on Human Rights’ in Anna Lawson and Caroline Gooding (eds), Disability Rights in Europe: From Theory to Practice (Hart 2005) 35–63. 89 Janet E Lord and Rebecca Brown, ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’ in Marcia H Rioux, Lee Ann Basser and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff Brill 2010) 273–307.

The European Convention on Human Rights and Disability  427 In Çam v Turkey,90 the Strasbourg Court expressly held that the prohibition of discrimination on the ground of disability under Article 14 ECHR encompasses the denial of reasonable accommodation, as defined by Article 2 CRPD. The case concerned the refusal to enrol the applicant, a girl with a visual impairment, as a student at the Turkish National Music Academy. The applicant alleged that, despite having demonstrated adequate ability to play the Turkish lute (bağlama), she was refused admission because the music courses were not accessible to blind individuals. She complained of a violation of her right to education under Article 2 of Protocol 1 to the ECHR and Article 14 ECHR, submitting that the respondent State had failed to provide persons with disabilities equal opportunity in accessing education. The Strasbourg Court stated that, by refusing to enrol the applicant without considering the possibility to accommodate her disability, the national authorities had, without any objective justification, prevented her from exercising her right to education. In so doing, the Court interpreted the ECHR in light of the CRPD and held that persons with disabilities are entitled to reasonable accommodation, a measure intended ‘to correct factual inequalities which are unjustified and therefore amount to discrimination’.91 In Guberina v Croatia,92 the Strasbourg Court explicitly recognized the denial of reasonable accommodation as a form of discrimination under Article 14 ECHR, also in relation to discrimination by association.93 The facts of the case originated from the complaint of a father of a severely disabled child who was living in an inaccessible building. The applicant had asked for a tax exemption on the purchase of a new property, available to buyers who moved in order to solve their housing needs, arguing that the flat which he owned did not meet the ‘basic infrastructure requirements’ of his family, since it was very difficult to take his child with a disability out of the third-floor flat without a lift. The government did not grant the exemption, thus interpreting the term ‘basic infrastructure requirements’ as not covering accessibility facilities. In this context, the applicant complained of violations of Articles 8 and 14 ECHR and of Article 1 of Protocol 1, regarding the right to respect for private and family life, the prohibition of discrimination and the right to property, respectively. The Strasbourg Court recalled the obligation of the respondent State to take into consideration the relevant principles of the CRPD, such as those of reasonable accommodation, accessibility and non-discrimination, and found a violation of the prohibition of discrimination because the domestic authorities had ‘failed to recognise the factual specificity of the applicant’s situation with regard to the question of basic infrastructure and technical accommodation requirements to meet the special housing needs of his family’.94 However, for the purposes of this contribution, the most relevant part of the judgment is the reference to EU non-discrimination and equality law. More precisely, among the relevant international law materials, the Court mentioned Articles 21 and 26 CFR, as well as the CJEU’s judgments in Coleman and CHEZ Razpredelenie Bulgaria AD,95 both of Çam v Turkey, Application No. 51500/08 (ECtHR, 23 February 2016). Ibid para 65. 92 Guberina v Croatia, Application No. 23682/13 (ECtHR, 22 March 2016). 93 See generally Constantin Cojocariu, ‘Guberina and Gherghina: The Two Sides of the Court’s Disability Jurisprudence’ (Strabourg Observer 17 May 2016) https://​strasbourgobservers​.com/​2016/​05/​ 17/​guberina​-and​-gherghina​-the​-two​-sides​-of​-the​-courts​-disability​-jurisprudence/​ accessed 3 February 2020. 94 Guberina v Croatia, Application No. 23682/13 (ECtHR, 22 March 2016), para 86. 95 Case C‑303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415; Case C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia EU:​C:​2015:​480. 90 91

428  Research handbook on EU disability law which relate to the concept of ‘discrimination by association’.96 In Coleman, as in Guberina, the facts related to a parent complaining about the discrimination that she had suffered on the basis of her son’s disability. In Coleman, the CJEU substantially broadened the scope ratione personae of the Employment Equality Directive, by deciding that discrimination by association on the ground of disability is covered under the prohibition contained in the Directive.97 In that case, the Court extended to those who associate with a disabled person the protection from direct discrimination and harassment, while the recognition of indirect discrimination by association derives from the later judgment in CHEZ Razpredelenie Bulgaria AD, concerning discrimination on the ground of racial or ethnic origin under the Racial Equality Directive.98 Nonetheless, there is a subtle difference between Guberina and Coleman. Although in both of these rulings the European Courts recognize discrimination by association on the basis of disability, only the Strasbourg Court (in Guberina) seems to (implicitly) recognize a duty to provide reasonable accommodation in the event that discrimination by association takes place – that is, a duty to provide reasonable accommodation to a person who, despite not being disabled her/himself, has been harassed or treated less favourably because of their association with a person with a disability. By contrast, as noted by Waddington and Broderick, the CJEU in Coleman affirmed that Article 5 of the Employment Equality Directive strictly refers to reasonable accommodation as being only for persons with disabilities,99 and there seems to be little space to interpret the Directive broadly, so as to encompass a duty to provide reasonable accommodation by association.100 More recently, in Enver Şahin v Turkey,101 the Strasbourg Court ‘demonstrates positive signs that the Court is moving towards a greater understanding of discrimination in the enjoyment of the right to education by persons with disabilities’.102 In that case, the ECtHR addressed the right to non-discrimination in education, including the provision of reasonable accommodation, in light of the principles of dignity, autonomy and safety under the CRPD. Due to the impossibility of gaining access to university buildings, the applicant, who suffers from paraplegia, complained of a violation of Article 2 of Protocol 1 to the ECHR, as well as of Article 8 and Article 14 ECHR, alleging that he had been obliged to interrupt his studies. 96 The ECtHR refers to the same sources of EU law and case law of the Court of Justice of the European Union in relation to discrimination by association in Molla Sali v Greece, Application No. 20452/14 (ECtHR, 19 December 2018). 97 On the Coleman case, see Lisa Waddington, ‘Case C-303/06, S. Coleman v. Attridge Law and Steve Law, Judgment of the Grand Chamber of the Court of Justice of 17 July 2008’ (2009) 46(2) Common Market Law Review 665; see further Costantina Karagiorgi, ‘The Concept of Discrimination by Association and Its Application in the EU Member States’ (2014) 18 European Anti-discrimination Law Review 25; see also Davide Venturi, ‘Effettività della tutela comunitaria contro la discriminazione diretta fondata sull’handicap ed estensione dell’ambito soggettivo della tutela: il caso Coleman’ (2008) 3 Diritto delle Relazioni Industriali 849. 98 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 99 Waddington and Broderick, Combatting Disability Discrimination and Realising Equality (n 82) 76. 100 However, see the remarks of Evelyn Ellis and Philippa Watson, EU Anti-discrimination Law (Oxford University Press 2012) 147. 101 Enver Şahin v Turkey, Application No. 3065/12 (ECtHR, 30 January 2018). 102 Andrea Broderick, ‘Enver Sahin v Turkey: Verbod op discriminatie op grond van handicap, recht op Onderwijs, VN-Gehandicaptenverdrag, doeltreffende anpassingen’ [2018] European Human Rights Cases 106.

The European Convention on Human Rights and Disability  429 In this case, in contrast with Çam – where no reasonable accommodation was proposed to the blind student – the university had proposed a measure of reasonable accommodation, but this was not considered to be respectful of the dignity and individual autonomy of the applicant. Instead of making the architectural adjustments required, the university offered to appoint an assistant to carry the student. Mr Şahin complained that such a solution was degrading because it disregarded his need to live as independently and autonomously as possible, and that there was also a risk to his safety as he might fall while being carried. This case gave the Court the opportunity to better specify the duty to provide reasonable accommodation, while considering the suitability of the accommodation proposed to the applicant in light of the principles of individual autonomy and safety.103 In essence, the Court held that the respondent State did not react with the required diligence in order to ensure that the applicant could continue to enjoy his right to education on an equal footing with other students. In other words, it failed to identify the applicant’s real needs and find solutions capable of meeting those needs, as well as the potential effects of the assistance on his safety, dignity and autonomy. Lastly, in Stoian v Romania,104 the Strasbourg Court, recalling its precedent judgments in Çam and Enver Şahin, reiterated the duty of national authorities to provide reasonable accommodations to guarantee inclusive education to students with disabilities as being ‘the most appropriate means of guaranteeing inclusion and non-discrimination in the field of education’.105 However, as noted by Cojocariu, this case differs from the precedents mentioned, as it refers to ‘the quality of education provided’ to the applicant and, consequently, tackles ‘the scope of the accommodations required to facilitate his effective enjoyment of the right to education’.106 In this case, the mother of a student with quadriplegia argued, inter alia, that the Romanian authorities had failed to provide suitable access to education for her son; however, the Strasbourg Court held that there was no violation of the ECHR. In particular, the ECtHR held that ‘the authorities did not turn a blind eye to the first applicant’s needs’,107 and found that the respondent State complied with its obligation to provide reasonable accommodation by allocating resources to meet the educational needs of children with disabilities. The reasoning of the ECtHR in Stoian raises some criticism.108 Most notably for the purposes of this chapter, the Court appears not to treat the duty to provide reasonable accommodation as a substantive obligation to achieve de facto equality, but rather as a ‘mere procedural obligation to allocate resources’,109 irrespective of the appropriateness of the measures undertaken and of their effective implementation by 103 Joseph Damamme, ‘Disability and University (Pragmatic) Activism: The Pros and Cons of Enver Şahin v Turkey’ (Strasbourg Observers 9 March 2018) https://​strasbourgobservers​.com/​2018/​03/​09/​ disability​-and​-university​-pragmatic​-activism​-the​-pros​-and​-cons​-of​-enver​-sahin​-v​-turkey/​#more​-4141 accessed 3 February 2020. 104 Stoian v Romania, Application No. 289/14 (ECtHR, 25 June 2019). 105 Ibid para 102. 106 Constantin Cojocariu, ‘Stoian v. Romania: The Court’s Drift on Disability Rights Intensifies’ (Strasbourg Observers 5 September 2019) https://​strasbourgobservers​.com/​2019/​09/​05/​stoian​-v​-romania​ -the​-courts​-drift​-on​-disability​-rights​-intensifies/​ accessed 3 February 2020. 107 Stoian v Romania, Application No. 289/14 (ECtHR, 25 June 2019) para 109. 108 European Disability Forum (EDF), ‘Legal Action: European Court of Human Rights Fails Students with Disabilities’ (EDF 9 July 2019) www​.edf​-feph​.org/​newsroom/​news/​european​-court​ -human​-rights​-fails​-students​-disabilities accessed 3 February 2020. 109 Steven Allen, ‘Romania: Justice Denied for Ştefan Stoian after a Decade of Legal Action’ (Validity 28 June 2019) https://​validity​.ngo/​2019/​06/​28/​romania​-justice​-denied​-for​-stefan​-stoian​-after​-a​ -decade​-of​-legal​-action accessed 3 February 2020.

430  Research handbook on EU disability law national authorities. Such an interpretation diverges considerably from the principles of the CRPD, as well as from the interpretation of reasonable accommodation previously provided by the ECtHR itself in Enver Şahin.

4.

CONCLUDING REMARKS

Since its entry into force, the CRPD has rapidly assumed a primary role in the Strasbourg Court’s case law. This trend is similar to what can be seen in the CJEU’s case law, but the ECtHR goes even further by recognizing that the CRPD represents a ‘European consensus’ on disability matters. The CRPD has facilitated a growing synergy between the ECtHR and the CJEU, and a similar approach is evident with regard to disability in the case law of both European Courts related to non-discrimination and reasonable accommodation. Both the Strasbourg and the Luxembourg Courts have recognized the prohibition of discrimination on the ground of disability and the duty to provide reasonable accommodation, and have interpreted the concept of ‘reasonable accommodation’ in line with the broad interpretation provided under the CRPD. This is evident in the landmark ruling of the CJEU in HK Danmark in 2013,110 as well as in the subsequent ECtHR judgments of Çam,111 Guberina,112 Enver Şahin,113 and (notwithstanding the critical remarks outlined above) Stoian,114 all cases having been delivered between 2016 and 2019. Particularly in the case of Guberina, it emerges that the UN Convention has been acting as a bridge between the two European systems of protection against discrimination on the basis of disability, stimulating the first seeds of a fruitful process of cross-fertilization. It is arguable that, by adhering to the principles of the CRPD, the European Courts are moving in the same direction with regard to the protection of the rights of persons with disabilities in the field of equality. Nonetheless, it might be too early to assume as a fact the continuation of this trend. To date, the Strasbourg Court refers to the CJEU case law in only two cases related to disability (Guberina and Stoian), and, presumably, only ad abundantiam. In addition, the reference to the Luxembourg Court’s case law is made only in the initial part of the judgments referring to the relevant international law and practice, while it is not mentioned in the Court’s assessment of the merits of the relevant cases. However, it is also worth noting that, to date, these are the only two judgments referring to disability equality before the Strasbourg Court involving States – Croatia and Romania, respectively – which are both EU and CoE Member States. In this vein, further developments of the respective case law – possibly involving Member States of both European organizations – will reveal whether this is a consistent trend or a ‘flash in the pan’.

112 113 114 110 111

Joined Cases C-335/11 and C-337/11 HK Danmark EU:​C:​2013:​222. Çam v Turkey, Application No. 51500/08 (ECtHR, 23 February 2016). Guberina v Croatia, Application No. 23682/13 (ECtHR, 22 March 2016). Enver Şahin v Turkey, Application No. 3065/12 (ECtHR, 30 January 2018). Stoian v Romania, Application No. 289/14 (ECtHR, 25 June 2019).

24. The European Social Charter and disability Giuseppe Palmisano

1. INTRODUCTION At the Council of Europe level, the human rights of persons with disabilities are primarily guaranteed by the European Social Charter (ESC). The ESC is a treaty providing an extensive and complete protection of a broad range of social and economic rights, related to employment, health, education, housing, social protection and welfare. It lays specific emphasis on the protection of vulnerable persons, such as children, elderly people, migrants and – of course – persons with disabilities. In particular, Article 15 ESC is devoted to the right of persons with disabilities to independence, social integration and participation in the life of the community. The ESC is not part of European Union (EU) law, nor can one find any provisions referring to the ESC in the Treaty on European Union (TEU) along the same lines as Article 6(2) TEU, providing for a duty of the EU to accede to the European Convention on Human Rights (ECHR), or Article 6(3) TEU, establishing that the rights guaranteed by the ECHR constitute general principles of the Union’s law. Nor is the EU a Party to the ESC, as it is to the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). The ESC is nevertheless fundamental in determining the obligations and governing the duties incumbent on EU Member States and institutions concerning the protection of social rights of persons with disabilities, for many reasons. First, all EU Member States are Parties to the ESC system, and since the implementation of EU normative acts and policies is having an increasing impact on a number of fields of relevance to social rights, such an impact should clearly not be in contrast with the legal obligations to protect social rights as enshrined in the ESC. Second, a number of primary and secondary EU law sources, and other non-binding EU legal acts, expressly refer to the ESC. By way of example, one could mention the Preamble to the TEU, at paragraph 5; Article 151 TFEU; Council Directive 2003/86/EC on the right to family reunification; or – more recently – paragraph 16 of the Preamble to the European Pillar of Social Rights (EPSR or Pillar).1 Third, whereas it is not referred to in the text of the Charter of Fundamental Rights of the EU (CFR), the ESC is expressly mentioned as a source of inspiration for many provisions of the CFR in the official Explanations to the Charter, mainly but not limited to the provisions in Chapter IV, on Solidarity Rights.2

1 As solemnly proclaimed by the European Parliament, the Council and the Commission, on 17 November 2017. In this regard, see supra Delia Ferri and Andrea Broderick, ‘Introduction’, in this volume. 2 On the relationship between EU law and the European Social Charter (ESC) system, and the relevance of the ESC for EU law, see Olivier De Schutter, ‘The European Pillar of Social Rights and the Role of the European Social Charter in the European Union Legal Order’ (Council of Europe 14 November 2018) https://​rm​.coe​.int/​study​-on​-the​-european​-pillar​-of​-social​-rights​-and​-the​-role​-of​-the​-esc​ -/​1680903132 accessed 1 February 2020.

431

432  Research handbook on EU disability law The importance of the ESC goes far beyond its possible relevance to EU disability law. In fact, the treaty system of the ESC is in itself an integrated set of international standards concerning social rights, and a mechanism for monitoring their implementation within the States concerned. It complements, at a pan-European level, the safeguards contained in the ECHR,3 which only refers to civil and political rights (but not to social rights),4 and it is the most widely accepted set of standards related to social rights within Europe, as is attested by the fact that 43 out of the 47 Member States of the Council of Europe are parties to the ESC.5 The ESC system therefore deserves the utmost attention when putting together the pieces of the European law puzzle concerning the rights of persons with disabilities. With this in mind, the present chapter adopts the following structure. Following these introductory remarks, section 2 presents the ESC system, its peculiar features and the role of the monitoring body established by the Charter – the European Committee of Social Rights (ECSR or Committee). Section 3 explores the history, development and content of Article 15 ESC, devoted to the right of persons with disabilities to independence, social integration and participation in the life of the community. It is divided into two sub-sections: the first concerns the original version of Article 15, as provided for by the ‘old’ Charter (1961); the latter examines the object and meaning of the ‘new’ Article 15, enshrined in the Revised Charter (1996), which is in force for the large majority of States Parties to the ESC system. In section 4, the content and the implications of the obligation to adopt positive measures in the three areas indicated in Article 15 are examined (in three separate sub-sections), in light of the conclusions adopted by the ECSR in assessing the situation in States Parties to the Charter. Section 5 elaborates on the case law developed by the ECSR within the framework of the so-called collective complaints procedure. It is divided into two sub-sections: the first focuses on a number of decisions concerning the protection of the right to education of persons with disabilities, under Article 15 of the Charter; the second looks at cases involving the violation of ESC provisions other than Article 15. Finally, section 6 provides some brief concluding remarks.

2.

THE EUROPEAN SOCIAL CHARTER SYSTEM IN A NUTSHELL

With a view to properly framing the meaning and implications of Article 15 of the ESC (on the right of persons with disabilities to independence, social integration and participation in the life of the community), and analysing the contribution made by the ECSR to the protection of the rights of persons with disabilities, it is necessary to briefly recall the peculiar features of the ESC system. As a Council of Europe treaty, the ESC was originally signed in 1961 and was, at that time, the second-born daughter in the family of human rights treaties adopted within the Council of

3 See supra Silvia Favalli, ‘The European Convention on Human Rights and Disability’, in this volume. 4 With the exception of the First Protocol to the ECHR concerning the right to property and the right to education, which to a certain extent can be considered as social rights. 5 Only Liechtenstein, Monaco, San Marino and Switzerland are not yet Parties to the ESC system.

The European Social Charter and disability  433 Europe, after its elder sister, the ECHR.6 Just like the ECHR, the Social Charter arose from the decision of the Council of Europe to adopt a treaty to give binding force to the rights enshrined in the Universal Declaration of Human Rights, adopted by the United Nations in December 1948. The Council of Europe opted to adopt two separate treaties: one on civil and political rights, which was the 1950 ECHR; the other on economic and social rights, which was the ESC (adopted 11 years later). Although it has been in force since the beginning of the 1960s, the Charter remained for years a somewhat obscure and virtually ineffective instrument. It was only in 1990, at the end of the Cold War, that the Council of Europe decided to relaunch the Social Charter. The idea was both to make the Charter effective, by aligning it as closely as possible with the ECHR, and to modernize it, by adding new rights, in order to properly take into consideration the individual and collective social needs which were emerging in a changed world. The institutional reforms took the form of three protocols, adopted in 1988, 1991 and 1995, and the Revised Social Charter, in 1996. In 1988, the first Additional Protocol added new rights. In 1991 the Amending Protocol improving the supervisory mechanism was adopted, and in 1995 another Additional Protocol, providing for a system of collective complaints, was adopted. The culmination of this reform process came in 1996, with the adoption of the Revised European Social Charter (Revised ESC or Revised Charter), which added a number of new rights, while at the same time incorporating the basic content of the 1961 Charter and its Protocols.7 Today, the Revised ESC is probably the most wide-ranging and comprehensive legal instrument for the protection of social rights at the international level. Its substantive articles cover a broad range of individual and collective rights, spanning many social areas. Among such rights, employment rights and social protection represent the main pillars of the Charter; however, the Revised Charter goes far beyond employment rights, labour law and social protection, providing an overarching approach to what are known today as ‘societal’ issues. One can therefore find in the Charter such rights as, for example, the right to protection of health, the right to housing, the protection of the family, the protection and education of children and young persons, the right of elderly persons to social protection and the right to protection against poverty and social exclusion.8

6 On the ESC, see, inter alia, Jean-François Akandji-Kombé and Stéphane Leclerc (eds), La Charte Sociale Européenne (Bruylant 2001); David John Harris and John Darcy, The European Social Charter (Hotei Publishing 2001 2nd edn); Andrzej Marian Šwiątkowski, The Charter of Social Rights of the Council of Europe (Kluwer Law International 2007); Olivier De Schutter (ed), The European Social Charter: A Social Constitution for Europe (Bruylant 2010); Matti Mikkola, Social Human Rights of Europe (Karelactio 2010); Oliver Dörr, ‘European Social Charter’ in Stefanie Schmahl and Marten Breuer (eds), The Council of Europe: Its Laws and Policies (Oxford University Press 2017) 507–41. The official documentation of the ESC, as well as the documents of the European Committee of Social Rights (ESCR) – Conclusions, Decisions of Collective Complaints, and more – are available on the Council of Europe’s website for the Social Charter www​.coe​.int/​en/​web/​european​-social​-charter accessed 1 February 2020. 7 Today, 34 States are Parties to the Revised European Social Charter (Revised ESC), and nine States are still Parties to the 1961 Charter: Croatia, the Czech Republic, Denmark, Germany, Iceland, Luxembourg, Poland, Spain and the United Kingdom. 8 It is worth noting that, considering the wide range of different rights covered by the Charter and in view of facilitating the participation of States to this treaty, the acceptance of the Charter provisions is regulated by an ‘à la carte’ system (Article A of the Revised ESC) that enables States to choose, with

434  Research handbook on EU disability law The Charter is not a mere bill of rights, that is, a simple catalogue of rights that States declare to uphold, or which they try to promote. It also provides for a specific monitoring mechanism aimed at guaranteeing the implementation of the obligations assumed by States Parties. This mechanism, which is embedded in the institutional framework of the Council of Europe, focuses on the role played by the ECSR, a body of 15 independent experts, and envisages two distinct supervision procedures. One of those supervision procedures is a typical reporting procedure, consisting in the evaluation by the ECSR of periodic reports presented by States on the implementation of the Charter in their legislation and practice; the other is the so-called collective complaints procedure, which concerns only those States Parties that have expressly accepted it.9 According to the latter procedure, social partners and non-governmental organizations are enabled to directly apply to the ECSR for rulings on possible violations of the Charter in the country concerned.10

3.

THE RIGHTS OF PERSONS WITH DISABILITIES IN THE EUROPEAN SOCIAL CHARTER

3.1

Article 15 of the 1961 Charter: Merits and Limits of the Provision

As far back as 1961, the above outlined European system for the protection of social rights had expressly addressed the specific needs of persons with disabilities.11 In fact, Article 15 of the ‘old’ (1961) Charter – which is still in force for 9 out of the 43 States Parties to the ESC system – recognizes and regulates ‘the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement’. According to that provision: With a view to ensuring the effective exercise of the right of the physically or mentally disabled to vocational training, rehabilitation and resettlement, the Contracting Parties undertake: 1. to take adequate measures for the provision of training facilities, including, where necessary, specialised institutions, public or private; 2. to take adequate measures for the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.

When the ESC was drafted and adopted for the first time, the focus on rehabilitation and resettlement in the labour market was essentially due to the interest of the Council of Europe Member States in providing support to people who had acquired a disability during wartime or through industrial accidents. Furthermore, the focus reflected the common approach at that

certain limitations and under certain conditions, the provisions that they are willing to accept as binding international legal obligations. 9 The collective complaints procedure was inserted into the ESC system in the Additional Protocol of 9 November 1995. To date, only 15 States (out of the 43 States Parties to the ESC) have accepted it: France, Greece, Portugal, Italy, Belgium, Bulgaria, Ireland, Finland, the Netherlands, Sweden, Croatia, Norway, Slovenia, Cyprus and the Czech Republic. 10 See infra section 5. 11 See Gerard Quinn, ‘The European Social Charter and EU Anti-discrimination Law in the Field of Disability: Two Gravitational Fields with One Common Purpose’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social Rights in Europe (Oxford University Press 2005) 278–304.

The European Social Charter and disability  435 time (the 1950s), which was mainly based on protecting persons with disabilities separately from others, by developing forms of sheltered segregation and by ensuring adequate healthcare. Indeed, limited attention was paid to the social integration of persons with disabilities and their participation in the life of the community. In this respect, it has to be stressed that ‘specialised institutions’ are considered by Article 15 of the 1961 Charter as the primary tool to ensure vocational training of disabled persons, rather than an exceptional solution. Despite the aforementioned limits, Article 15 constitutes a milestone in the process of recognition of the rights of persons with disabilities. This is, first, because the rights of disabled persons are considered in a general legal instrument, devoted to the social rights of all people as human beings. This departs from the trend that was still common in the 1960s, namely to consider persons with disabilities as being unable to enjoy the same rights as persons without disabilities, and therefore not to be considered within the scope of international and European legal instruments protecting the fundamental social rights of all people. Second, it is because it paved the way for an understanding that the universal protection of human rights might involve the adoption by States of focused, specific measures for persons with disabilities. Failure to do so would violate the principle of equal rights and the principle of non-discrimination. This is the meaning and sense of the principle stated in the 1961 Charter – that vocational training is indeed a right for all, including disabled persons; but for persons with disabilities, specific attention and measures are required on the part of the State to ensure the effective exercise of such right. 3.2

The Substantial Improvements in Article 15 of the Revised European Social Charter

The limits of Article 15 of the 1961 Charter were largely overcome by its revised version. Article 15 of the Revised ESC (1996) is much more prominently oriented towards requiring social integration and inclusion of persons with disabilities as the objective for States Parties in legislation and practice. The revised provision reads as follows: With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: 1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private; 2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services; 3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.

As highlighted by the ECSR in the ‘General Introduction’ to the 2003 Conclusions, the revised Article 15 ‘reflects and advances the change in disability policy that has occurred over the

436  Research handbook on EU disability law last decade or more, away from welfare and segregation and towards inclusion and choice’.12 This provision ‘is to be seen both as reflecting and advancing a profound shift of values in all European countries over the past decade away from treating them as objects of pity and towards respecting them as equal citizens’.13 Indeed, several novel elements are present in the revised Article 15 compared to its 1961 version. First, the new title of Article 15 no longer refers to vocational training, rehabilitation and social resettlement, but rather to independence, social integration and participation in the life of the community. Second, the provision has a wider scope: in addition to vocational training and rehabilitation, the provision covers education, access to employment, working conditions, overcoming barriers to communication and mobility, access to transport, housing, cultural activities and leisure. The third novel element is the identification of measures required to ensure education, training and employment of persons with disabilities. Rather than giving priority to separate care and specialized institutions for disabled persons, priority is given to actions ‘in the framework of general schemes wherever possible’, and States are required to ‘encourage employers to hire and keep in employment persons with disabilities in the ordinary work environment’. In contrast, resorting to special public and private bodies, and to specialized placement and support services, is considered an exceptional and residual measure. Article 15 of the Revised Charter embodies a move away from the focus of the 1961 Charter on welfare and ‘sheltered separation’, placing emphasis instead on the equal exercise of rights by persons with disabilities and their participation in the life of the community. Finally, it is important to observe that the provision envisages an inclusion approach, and not just an integration approach. This is apparent both in Article 15(2), according to which States are called on to adjust working conditions to the needs of persons with disabilities, and in Article 15(3), where States are required to devise measures to overcome barriers to communication and mobility, and therefore to modify the structure and organization of the social environment in order to facilitate the full participation of disabled persons in the life of the community. In comparison to the 1961 Charter, the Revised Charter includes another major novelty that is relevant to the protection of rights of persons with disabilities, namely Article E, concerning the principle of non-discrimination. According to that provision: ‘[t]he enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.’ Article E of the Revised Charter does not embody a specific right as such; rather, it intends to state a general transversal principle, to be applied to every right enshrined therein. The principle is expressed in such broad terms as to include the prohibition of discrimination also on the ground of disability. The ECSR indeed confirmed this interpretation, going as far as to explicitly declare that the provision on non-discrimination ‘forms an integral part of Article 15’.14 Finally, not unlike the 1961 Charter, the provisions of the Revised ESC concerning the rights of persons with disabilities, albeit requiring progressive implementation by States Parties (in the same way as many other provisions of the Revised Charter), are not to be con ECSR, Conclusions 2003, ‘Statement of Interpretation on Article 15’. ECSR, Association Internationale Autisme-Europe (AIAE) v France, Complaint No. 13/2002, Decision on the merits of 4 November 2003, para 48. 14 ECSR, Conclusions 2003 (n 12). 12 13

The European Social Charter and disability  437 sidered as being merely programmatic. Indeed, they require States Parties to adopt concrete and verifiable measures, and to eliminate legal and de facto conditions that prevent or hinder the enjoyment of the rights under consideration. In this sense, they are fully legal rules.

4.

THE THREE SETS OF MEASURES REQUIRED BY ARTICLE 15 OF THE REVISED EUROPEAN SOCIAL CHARTER

The content, implications and legal effects of the provisions of the Revised ESC on the rights of persons with disabilities have been specified and developed by the ECSR in carrying out its supervision tasks on the implementation of the Revised Charter’s obligations by States Parties, under the two above-mentioned monitoring mechanisms: the reporting procedure and the collective complaints procedure. Under the reporting procedure, which consists in evaluating reports submitted by States Parties on the implementation of Article 15 ESC in their respective legislation and practice, the Committee has had the opportunity to clarify, in general terms, some basic aspects and implications of each of the three areas covered by Article 15. As noted above, Article 15 of the Revised ESC is, in fact, divided into three main sets of measures (corresponding to its three numbered paragraphs). 4.1

Education and Vocational Training

The first set of measures contained in Article 15 of the Revised ESC relates to education and vocational training, requiring States Parties ‘to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private’. This paragraph clearly makes it an obligation for States Parties to provide education for persons with disabilities by giving priority to education in mainstream schools or other educational mainstream institutions. In this respect, the ECSR has clarified that, in the first place, at the domestic legislative level, the existence of non-discrimination legislation is necessary as a tool for the implementation of the obligation to include children with disabilities in general or mainstream educational schemes. According to the Committee: Such legislation should, as a minimum, require a compelling justification for special or segregated educational systems and confer an effective remedy on those who are found to have been unlawfully excluded or segregated or otherwise denied an effective right to education. Legislation may consist of general antidiscrimination legislation, specific legislation concerning education, or a combination of the two.15

Moreover, States Parties are under an obligation to take appropriate measures in order both to guarantee equal access of children and adults with disabilities to education and vocational training,16 and to actually enable integration and ensure an inclusive education. In other words, ECSR, Conclusions 2007, ‘Statement of Interpretation on Article 15’. To assess the effective equal access of children and adults with disabilities to education and vocational training, the ECSR takes into consideration, with regard to the State concerned, the following key figures: the total number of persons with disabilities, including the number of children; the number 15 16

438  Research handbook on EU disability law they must demonstrate that tangible progress is being made in setting up education and vocational training systems that are not exclusionary.17 As for the setting up of inclusive, adapted education systems, and enabling integration in education and vocational training systems, the ECSR considers as necessary the adoption of a wide range of measures by States Parties. Such measures include accessibility of premises, support of teachers and adapted learning programmes both in mainstream and special schools.18 With regard to the cases where it is not possible to provide persons with disabilities with education or vocational training in mainstream schools and general educational schemes, the ECSR has pointed out that States Parties must ensure and monitor that special schools or specialized institutions actually provide such persons with adapted education and teaching, so as to facilitate their transition to a more advanced educational level or to vocational training.19 4.2

Access to Employment

Under Article 15(2) of the Revised ESC, States Parties undertake to promote access to employment of persons with disabilities through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability.

According to the ECSR, the implementation of this provision by States Parties still requires, in the first place, the adoption of legislation prohibiting discrimination on the basis of disability, in order to create genuine equality of opportunities on the open labour market.20 Legislation must also prohibit dismissal on the basis of disability and confer an effective remedy on those who are found to have been unlawfully discriminated against.21 In addition, there must be legal obligations on the employer to take steps in accordance with the requirement of reasonable accommodation, to ensure effective access to employment and to keep in employment persons with disabilities (in particular persons who have become disabled while in their employment as a result of an industrial accident or occupational disease).22 With regard to measures to promote access to employment of persons with disabilities, the text of Article 15 does not specify which kind of measures are the most appropriate; States Parties therefore enjoy a wide margin of appreciation in this respect. However, the ECSR

of students with disabilities following mainstream and special education and vocational facilities; the percentage of students with disabilities entering the labour market following mainstream or special education or/and training; the number of persons with disabilities (children and adults) living in institutions; as well as any relevant case law and complaints brought to the appropriate bodies with respect to discrimination on the ground of disability in relation to education and training. In this respect, see, for example, ECSR, Conclusions 2012, Russian Federation, and Conclusions 2008, Lithuania. 17 See, on this principle, ECSR, Conclusions 2005, Cyprus; and Conclusions XX-1 (2012), Austria. 18 See, for example, the long list of questions raised by the Committee during the examination of the situation in France, in ECSR, Conclusions 2003, France. 19 By way of example, see ECSR, Conclusions 2008, Italy. 20 ECSR, Conclusions 2003, Slovenia, p. 503; and Conclusions 2012, Russian Federation. 21 See, for example, ECSR, Conclusions XIX-1 (2008), Czech Republic. 22 ECSR, Conclusions 2007, ‘Statement of Interpretation on Article 15(2)’.

The European Social Charter and disability  439 usually insists on the necessity of establishing a quota system for both public sector and private enterprises, and when such a system is applied by a State, the Committee examines its effectiveness when assessing conformity with Article 15(2).23 With regard to sheltered employment facilities, they must be reserved – according to the ECSR – for those persons with disabilities who, due to their impairment, cannot be integrated into the open labour market, and they should essentially aim to assist their intended beneficiaries to enter the open labour market.24 The Committee has also clarified that persons working in sheltered employment facilities where production is the main activity are entitled to the basic provisions of labour law and, in particular, the right to fair remuneration and trade union rights.25 4.3

Access to Transport, Housing, Cultural Activities and Leisure

Moving to the third set of measures contained in Article 15 of the Revised ESC, States Parties are required to promote full social integration and participation in the life of the community of persons with disabilities ‘through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure’. As the ECSR clarified in its 2007 Conclusions on Slovenia: Article 15(3) requires: the existence of comprehensive non-discrimination legislation covering both the public and private sphere in fields such as housing, transport, telecommunications and cultural and leisure activities and effective remedies for those who have been unlawfully treated; [and] the adoption of a coherent policy in the disability context: positive action measures to achieve the goals of social integration and full participation of persons with disabilities. Such measures should have a clear legal basis and be coordinated.26

In a ‘Statement of interpretation’ of 2008, the Committee pointed out that, to give meaningful effect to the positive action measures: Mechanisms must be established to assess the barriers to communication and mobility faced by persons with disabilities and identify the support measures that are required to assist them in overcoming these barriers. […] Technical aids must be available either for free or subject to an appropriate contribution towards their cost and taking into account the beneficiary’s means. Such aids may for example take the form of prostheses, walkers, wheelchairs, guide dogs and appropriate housing support arrangements. […] Support services, such as personal assistance and auxiliary aids, must be available, either for free or subject to an appropriate contribution towards their cost and taking into account the beneficiary’s means.27

In addition, by clearly adopting a social inclusion approach to disability (rather than an integration approach), the ECSR emphasized that ‘Article 15(3) requires that persons with disabilities and their representative organisations should be consulted in the design, and ongoing

ECSR, Conclusions XIV-2 (1998), Belgium. See, for example, ECSR, Conclusions 2008, Italy. 25 ECSR, Conclusions XVII-2 (2005), Czech Republic. 26 ECSR, Conclusions (2007), Slovenia. 27 ECSR, European Social Charter (revised): Conclusions 2008 – Volume 2 (Council of Europe Publishing 2008) 11. 23 24

440  Research handbook on EU disability law review of such positive action measures and that an appropriate forum should exist to enable this to happen’.28

5.

THE PROTECTION OF THE RIGHTS OF PERSONS WITH DISABILITIES THROUGH THE COLLECTIVE COMPLAINTS PROCEDURE

Beyond the clarification of the basic aspects of Article 15 of the Revised Charter and the general assessment of the implementation by States Parties of the three sets of measures provided for by this Article, the ECSR had the opportunity to apply the Revised ESC Charter provisions and actually protect the rights of persons with disabilities in a number of cases within the framework of the collective complaints procedure. According to this adversarial and quasi-judicial procedure, four categories of organizations may lodge complaints directly before the ECSR, alleging that a State Party is in breach of the Charter: first, international organizations of trade unions and employers organizations; second, international non-governmental organizations which have consultative status within the Council of Europe (and have been put on a special list); third, the trade unions and employers’ organizations in the country concerned; and fourth, national non-governmental organizations.29 Complaints are examined by the ECSR, and if the complaint is declared admissible, the Committee proceeds to decide on the merits of the case, assessing whether the situation is in violation of the Charter or not.30 5.1

The Protection of the Right to Education under Article 15(1) of the Revised European Social Charter

There are indeed some important decisions of the ECSR concerning precisely the violation of the rights of persons with disabilities to guidance, education and vocational training, as established by Article 15(1) of the Revised ESC. In chronological order, the first is the decision in the case of Autisme-Europe v France.31 In this collective complaint, Autism-Europe argued that France was failing to satisfactorily meet its obligations under Article 15(1) of the Revised ESC (because children and adults with autism Ibid. The last category is only entitled to submit complaints if the State Party concerned has expressly agreed to it. To date, only Finland has accepted this option. 30 The decision on the merits of a collective complaint is taken by the ECSR on the basis of an exchange in writing of arguments between the Parties. If necessary, the Committee may also decide to hold a public hearing where the Parties present arguments orally. Finally, the ECSR transmits its decision to the Committee of Ministers of the Council of Europe, which adopts a resolution and may invite the State Party concerned to take the necessary measures to bring the situation into conformity with the Charter. On the collective complaints procedure, see Robin R Churchill and Urfan Khaliq, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15(3) European Journal of International Law 417; see also Riccardo Priore, ‘Les systemes de contrôle de l’application de la Charte sociale européenne: la procedure de réclamations collectives’ in Marilisa D’Amico and Giovanni Guiglia (eds), European Social Charter and the Challenges of the XXI Century (Edizioni Scientifiche Italiane 2014) 159–70. 31 ECSR, Association internationale Autisme-Europe (AIAE) v France, Complaint No. 13/2002, Decision on the merits of 4 November 2003. 28 29

The European Social Charter and disability  441 were not likely to effectively exercise their right to education in mainstream schooling or through adequately supported placements in specialized institutions). Autism-Europe claimed that this was also in violation of the non-discrimination principle embodied in Article E of the Charter, since persons with autism did not benefit from the right to education recognized to persons with disabilities by Article 15(1) and elaborated on in Article 17(1) the Revised Charter. It is worth noting that the issue at stake in this complaint was not the conformity of the French legislation with the provisions of the Charter concerning the rights of persons with disabilities; rather, the complainant organization argued that the implementation of the law and the de facto situation in France were in violation of such provisions. More specifically, the complainant argued that, in practice, ‘insufficient provision is made for the education of children and adults with autism due to identifiable shortfalls – both quantitative and qualitative – in the provision of both mainstream education as well as in the so-called special education sector’.32 In this respect, the ECSR found that France actually failed to fulfil its educational obligations to individuals with autism, mainly on the grounds that the proportion of children with autism being educated in either general or specialist schools was much lower than was the case with regard to other children, whether disabled or not, and that there was a chronic shortage of care and support facilities for autistic adults. The Committee recalled, first of all, that ‘the implementation of the Charter requires the State Parties to take not merely legal action but also practical action to give full effect to the rights recognised in the Charter’.33 It also clarified the meaning and implications of the obligation of progressive implementation of certain rights guaranteed by the Revised Charter, such as the right recognized in Article 15(1) concerning education and vocational training of persons with disabilities. According to the Committee: When the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allows it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources.34

Moreover, the Committee stressed that ‘States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for other persons affected including, especially, their families on whom falls the heaviest burden in the event of institutional shortcomings’.35 The part of the decision concerning the non-discrimination principle also deserves to be highlighted. The ECSR had the opportunity to point out, for the first time, that disability has to be considered a prohibited ground of discrimination, even if it is not expressly listed among the prohibited grounds of discrimination in the relevant provision of the Revised ESC (Article E).36 As a consequence, indirect discrimination on the ground of disability is prohibited:

Ibid para 16. Ibid para 53. 34 Ibid. 35 Ibid. 36 Ibid para 51: ‘Although disability is not explicitly listed as a prohibited ground of discrimination under Article E, the Committee considers that it is adequately covered by the reference to “other status”. Such an interpretative approach, which is justified in its own rights, is fully consistent with both the letter and the spirit of the Political Declaration adopted by the 2nd European conference of ministers responsible for integration policies for people with disabilities (Malaga, April, 2003), which reaffirmed 32 33

442  Research handbook on EU disability law ‘[s]uch indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all’.37 Both of the issues highlighted above – effective implementation of the Charter provisions concerning the right to education of persons with disabilities, and prohibition of indirect discrimination – are at the centre of the ECSR decision in Action Européenne des Handicapés (AEH) v France.38 In this decision, the Committee found that France failed to fulfil its educational and training obligations to children and adolescents with autism on the grounds, inter alia: that France did not ensure that such children and adolescents are educated primarily in mainstream schools; that it did not ensure that the work done in specialized institutions caring for children and adolescents with autism was predominantly educational in nature; and that the defective schooling of adolescents with autism had the consequence of not allowing their access to vocational training. In particular, with regard to the State Party’s obligation to adopt effective measures to provide persons with disabilities with education and training, the ECSR pointed out that it was not satisfied by the mere elaboration and adoption of Action Plans; rather, it required that such plans are put into practice and implemented within a reasonable time. Moreover, such an obligation cannot be satisfied by merely subsidizing travel to other States where children and adolescents with disabilities can be accommodated in specialized institutions functioning according to appropriate educational standards; rather, it requires financing and organizational measures to implement these standards within specialized institutions active in the State territory.39 As for the issue of indirect discrimination in the specific field of disability, the Committee clarified that it occurs also when an apparently neutral provision or practice – such as public budgetary restrictions in social policy matters – ends up putting the persons in question at a particular disadvantage, as they are more likely to be dependent on community care, funded through the State budget, in order to live independently and in dignity. Public budgetary restrictions cannot therefore be equally applied to the field of disability, since this would result in a difference in treatment indirectly based on disability.40 In addition, in Action Européenne des Handicapés (AEH) v France, the ECSR had the opportunity to specify some important aspects of the State Party’s obligation to provide persons with disabilities with adequate guidance and education. In particular, the Committee focused on the fact that Article 15(1) enshrines a priority principle, according to which States must provide persons with disabilities with education in the framework of general schemes and mainstream schools and, only where this is not possible, through specialized bodies. Such a conditionality clause indicates to the public authorities that in order to secure the independence, social integration and participation in the life of the community of persons with disabilities through their education, they

the anti-discriminatory and human rights framework as the appropriate one for development of European policy in this field.’ 37 Ibid para 52. 38 ECSR, Action Européenne des Handicapés (AEH) v France, Complaint No. 81/2012, Decision on the merits of 11 September 2013. 39 Ibid paras 95–98 and 99. 40 Ibid paras 143–44.

The European Social Charter and disability  443 must take account of the type of disability concerned, how serious it is and a variety of individual circumstances to be examined on a case-by-case basis.41

The conditionality clause also means that ‘Article 15(1) of the Charter does not leave States Parties a wide margin of appreciation when it comes to choosing the type of school in which they will promote the independence, integration and participation of persons with disabilities, as this must clearly be a mainstream school’.42 Moreover, the Committee – referring especially to children and adolescents with autism – pointed out that, insofar as assistance in mainstream schools is concerned, States Parties have to provide for continuous assistance throughout the school life of the children and adolescents in question, in order to allow them to attend such schools. If such assistance is not adequately arranged, this hampers progression in education of autistic persons, provoking a process of driving away such individuals from mainstream schools, which is contrary to the obligation to provide persons with disabilities with education within the framework of general schemes.43 With respect to the role of specialized bodies, the Committee clarified that the obligation to take the necessary measures to provide persons with autism with guidance and education means that States Parties have the obligation to ensure that specialized institutions caring for autistic children or adolescents give education priority over other (medical, therapeutic or social) functions and activities, without confining education to a subsidiary role.44 The ECSR further clarified the meaning of the State Party’s obligation to provide persons with disabilities with an education which facilitates the exercise of their right to independence, social integration and participation in the life of the community, in principle through mainstream schools and general educational schemes, in Mental Disability Advocacy Center (MDAC) v Belgium.45 In this recent decision, the Committee found a violation of Article 15(1) of the Revised ESC on the ground that, in the Flemish Community of Belgium, the refusal to enrol children with intellectual disabilities in the mainstream school system was not justified by any legitimate aim. In this respect, the ECSR considered that the eligibility requirements for admission of children with intellectual disabilities to mainstream education should be based on the notion of integration rather than inclusion, and explained that ‘there is integration when pupils are required to fit the mainstream system, whereas inclusion is about the child's right to participate in mainstream school and the school’s obligation to accept the child taking account of the best interests of the child as well as their abilities and educational needs as a primary consideration’.46 The Committee has also specified that ‘inclusive education implies the provision of support and reasonable accommodations which persons with disabilities are entitled to expect in order to access schools effectively’,47 and that the State’s failure to make provision for reasonable Ibid para 78. Ibid para 78. 43 Ibid paras 92–94. 44 Ibid paras 110–111 and 121. 45 ECSR, Mental Disability Advocacy Center (MDAC) v Belgium, Complaint No. 109/2014, Decision on admissibility and the merits of 16 October 2017. 46 Ibid para 66. 47 Ibid para 72. With regard to ‘reasonable accommodations’, the ECSR expressly referred to the list of examples given by the UN Committee on the Rights of Persons with disabilities (CRPD Committee) in its General Comment No. 4 on education, UN Doc. CRPD/C/GC/4 (2016). 41 42

444  Research handbook on EU disability law accommodations violates the right of children with intellectual disabilities not to be discriminated against in the enjoyment of their right under Article 15(1) of the Revised Charter, and ‘constitutes therefore discrimination on grounds of intellectual disability’.48 5.2

The Protection of the Rights of Persons with Disabilities beyond Article 15 of the Revised European Social Charter

The ECSR’s case law in the collective complaints procedure reveals that the protection of the rights of persons with disabilities under the ESC goes beyond the application of Article 15 of the Revised ESC, extending to other provisions of the Charter, taken alone and in conjunction with Article E (non-discrimination). The decision in Mental Disability Advocacy Center (MDAC) v Bulgaria is an example of this. In fact, the complainant organization alleged that the situation in Bulgaria was in violation of Article 17(2), alone and in conjunction with Article E of the Revised Charter, because children living in homes for intellectually disabled children in Bulgaria received no education. In its observations on admissibility, the government objected that the case actually related not to Article 17(2) (on the right of children and young people to social, legal and economic protection), as MDAC maintained, but rather to Article 15(1) of the Revised Charter, since it covers the right of persons with disabilities, an article that Bulgaria has not accepted. The ECSR declared the complaint admissible, however, arguing: The Charter was conceived as a whole and all its provisions complement each other and overlap in part. It is impossible to draw watertight divisions between the material scope of each article or paragraph. […] This is the case with education. The Committee considers that the fact that the right of persons with disabilities is guaranteed by Article 15(1) of the Revised Charter does not exclude that relevant issues relating to the right of children and young persons with disabilities may be examined in the framework of Article 17(2).49

In deliberating on the merits of the case, the Committee examined the situation existing in Bulgaria and found that that only 2.8 per cent of the children with intellectual disabilities residing in Homes for Mentally Disabled Children (HMDC) were integrated in mainstream primary schools, and that mainstream schools were not suited to meet the needs of children with intellectual disabilities and to provide for their education. In addition, the Committee noted that only 3.4 per cent of all the other children with intellectual disabilities residing in HMDC attended the special classes set up for them, demonstrating that special education was actually not accessible to such children.50 For these reasons, the ECSR concluded that the situation in Bulgaria indeed constituted a violation of Article 17(2) of the Revised Charter, because children with intellectual disabilities residing in HMDC could not effectively exercise and enjoy the right to an education, and also that there was a violation of this provision read in conjunction with Article E, because of the discrimination against such children due to the low number of them receiving any type of education when compared to other children.51

Ibid para 73. ECSR, Mental Disability Advocacy Center (MDAC) v Bulgaria, Complaint No. 41/2007, Decision on admissibility of 26 June 2007, paras 9–10. 50 Ibid paras 43–45. 51 Ibid paras 48 and 54. 48 49

The European Social Charter and disability  445 Another example of the protection of the rights of persons with disabilities within the framework of the collective complaints procedure, beyond the application of Article 15 of the Revised Charter, is the decision in International Federation of Human Rights (FIDH) v Belgium.52 The complaint concerned the situation of highly dependent disabled adults in need of reception facilities and accommodation, and their relatives. In this case, the ECSR considered Article 15(3) of the Revised Charter to be applicable. Moreover, according to the Committee, Article 15(3) makes it incumbent on States Parties to ensure that the relevant social services take action to implement the home adaptations necessary to permit the integration and dignified existence within the family and social environment of such individuals.53 However, the Committee did not conclude that Belgium was in breach of that provision, due to the fact that FIDH had not submitted information and arguments sufficiently indicating how Belgium had violated its obligations under Article 15(3). The Committee found that the fact that Belgium was not creating sufficient day and night care facilities to prevent the exclusion of many highly dependent persons with disabilities from services appropriate to their specific needs constituted a violation of other provisions of the Revised Charter, namely Article 14(1) (the right to benefit from social welfare services) and Article 16 (the right to appropriate social, legal and economic protection for the family). With respect to the meaning and relevance of the former provision to the specific situation of persons with disabilities, the ECSR first recalled ‘that the situation of dependency in which persons must find themselves in order to claim entitlement to social welfare services is defined by means of the criterion that they belong to groups considered to be vulnerable, including people with disabilities’.54 It also clarified that under Article 14(1) of the Charter, access of persons with disabilities to social welfare services can be regarded as equal and effective if the State Party offers varied and multiple methods of care for these people by the community and if the number and quality of the social welfare services actually provided correspond as closely as possible to the specific, practical, individual needs of the persons concerned so that a free choice can be made by the users concerned and, above all, by their families, provided that they act on behalf of these persons and not instead of them.55

With respect to the right of the family to social, legal and economic protection (Article 16), the Committee held ‘that the shortage of care solutions and of social services adapted to the needs of persons with severe disabilities causes many families to live in precarious circumstances, undermining their cohesion, and amounts, on the part of the defendant State, to a lack of protection of the family as a unit of society’.56 In this respect, the ECSR observed that the provision of appropriate care for highly dependent persons with disabilities by the community is in no way incompatible with their families’ involvement in the lives of the persons concerned, or even with a duty for their families to sustain a constant, good quality relationship with them. It nonetheless takes the view that this good quality relationship is fundamentally altered when families assume care and living support tasks for their relatives with severe disabilities which could have been properly

52 ECSR, International Federation of Human Rights (FIDH) v Belgium, Complaint No. 75/2011, Decision on the merits of 18 March 2013. 53 Ibid para 175. 54 Ibid para 109. The Committee refers to its ‘Statement of Interpretation on Article 14(1)’ in Conclusions 2009 and Conclusions XIX-2. 55 Ibid para 110. 56 Ibid para 187.

446  Research handbook on EU disability law performed, in close co-operation with the family, by social services appropriate to these persons’ needs.57

6.

CONCLUDING REMARKS

The ESC system has proven to be, and is continuing to be, both a fundamental point of reference and a very significant monitoring mechanism in the protection of the rights of persons with disabilities at the European level. This is due to several reasons. One reason lies in the precision and broad objective of the provision of the Revised Charter, which is devoted to the right of persons with disabilities to independence, social integration and participation (Article 15). That provision requires States Parties to take effective measures to provide persons with disabilities with guidance, education and vocational training, to promote their access to employment and to enable access to transport, housing, cultural activities and leisure. Another reason is that, in the Revised ESC, the obligation to ensure to persons with disabilities the exercise of their right to independence and participation in the life of the community is an integral part of a broader system of principles and values protecting the everyday human rights of all individuals, including persons with disabilities – a system that lays special emphasis on the protection of vulnerable persons, and where the principle of non-discrimination, intended in a very broad sense and with a wide scope of application, plays a central role. Therefore, the specific provision on the right to independence and social integration of persons with disabilities does not stand alone, but is interrelated and lives in harmony with many other (social) rights. This means, on the one hand, that the content, meaning and implications of the right to independence and social integration under Article 15 of the Revised Charter are enhanced by the interrelation of such provision with other relevant ESC rights; and, on the other hand, that within the ESC system, the rights and specific needs of persons with disabilities can find legal protection beyond the borders of Article 15, under other provisions of the Revised Charter (including Article E on non-discrimination). However, the main reason probably lies in the fact that the ESC system is equipped with a supervision mechanism which enables the ECSR, through two different monitoring procedures (the reporting and collective complaints procedures), to really make the Social Charter a living and effective legal instrument. Due to the role played by the ECSR, the Charter has become a crucial tool both to implement the obligations assumed by European States to ensure protection of the rights of persons with disabilities, and to detect problems and shortcomings in the implementation of such obligations, thus giving the opportunity to the States concerned to remedy them and improve their efforts in ensuring the effective exercise of such rights.

57 Ibid para 183. In the decision, the Committee also concluded that there was a violation of Article 30 of the Revised Charter, on the right to protection against poverty and social exclusion, due to the fact that ‘the State's failure to collect reliable data and statistics throughout the metropolitan territory of Belgium in respect of highly dependent persons with disabilities prevents an overall and co-ordinated approach to the social protection of these persons and constitutes an obstacle to the development of targeted policies concerning them’ (para 197).

The European Social Charter and disability  447 The increasing number of collective complaints which have been lodged before the ECSR in the last number of years relating to alleged violations of rights of persons with disabilities,58 together with the positive developments that have taken place in a number of States Parties concerning the implementation of Article 15, clearly testify to the usefulness and potential of the ESC system, from the perspective both of ensuring and progressively developing the social human rights of persons with disabilities throughout Europe.59 In the light of the above, the ESC system could and should also play an important role in better shaping and reinforcing the EU commitment – in terms of legislative and policy measures – in the field of disability. In this respect, the EPSR, which in Principle 17 explicitly deals with the issue of inclusion of people with disabilities, provides a good opportunity to improve the synergies between the EU system and the ESC. However, with a view to making full use of such an opportunity and the potentials of the ESC within the EU, it is necessary that in monitoring the implementation of the EPSR, the EU Commission takes the ESC system properly into consideration. This can be achieved by enriching and updating the Commission’s commentary to the EPSR,60 which now contains very few references to the ESC. This commentary, in its future iterations, should explicitly refer to the provisions of the ESC which correspond to the principles listed in the EPSR, as is the case of Principle 17 of the Pillar and Article 15 of the Revised Charter. In addition, the references to the provisions of the ESC should also be accompanied by a recommendation to take into account their interpretation by the ECSR. This could indeed help to strengthen the social rights component of all EU disability policies and legislative measures, and to better ensure that such a component is taken systematically into consideration also in the economic governance of the EU.

58 Further to the collective complaints referred to supra in section 5, see, in particular, International Federation for Human Rights (FIDH) and Inclusion Europe v Belgium, Complaint No. 141/2017 and European Disability Forum and Inclusion Europe v France, Complaint No. 168/2018, which are still pending before the ECSR at the time of writing. 59 This remark is intended as a follow-up to some criticism previously expressed by the ECSR in its annual Conclusions. See some examples in ECSR, Activity Report 2016 (Council of Europe 2016) 38–45 https://​rm​.coe​.int/​activity​-report​-ecsr​-2016​-final​-17​-03​-2017/​1680701072 accessed 3 February 2020. 60 The commentary to the EPSR takes the form of a Commission Staff Working Document, accompanying the March 2018 Communication from the Commission on Monitoring the implementation of the European Pillar of Social Rights. Commission, ‘Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, Monitoring the Implementation of the European Pillar of Social Rights’ SWD (2018) 67 final.

25. Conclusion to the Research Handbook on EU Disability Law Andrea Broderick and Delia Ferri

1.

EU DISABILITY LAW AS A DYNAMIC FIELD OF EU ACTION AND THE CRPD AS THE MAIN DRIVER OF ACTION

We commenced this collective volume by highlighting that, in the past 20 years, the European Union (EU) has adopted a wide range of legislative measures addressing, to different extents, the rights of persons with disabilities across a wide range of areas of EU law. The complex inter-relationship between the various hard and soft law measures that have been adopted by the EU institutions has been highlighted at several junctures throughout this Research Handbook, and the content of those measures has been examined in great depth in the various contributions compiled in this Research Handbook. All of the chapters in this book confirm, as contended in the Introduction, that the surge in EU action in the field of disability law has occurred primarily in the past ten years, following the conclusion by the EU of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). It is therefore no surprise that all of those chapters substantiate that the wide-ranging obligations contained in the CRPD have stimulated the adoption of new legislation specifically aimed at the protection of the rights of persons with disabilities, in particular in relation to accessibility,1 and that the CRPD has prompted the further mainstreaming of disability across the EU action. The influence of the CRPD is evident, among others, in the references to the UN Convention in several recent EU measures.2 In addition, the increasing prominence of the rights of individuals with disabilities in EU Structural and Investment Funds appears to be a direct result of the ratification of the CRPD by the EU, as contended by McEvoy in Chapter 18. The CRPD has also supported the emergence of a reinforced EU disability policy framework, which is discussed thoroughly in Chapter 2 by O’Mahony and Quinlivan. The adoption of the European Disability Strategy 2010–2020 (EDS),3 which signals ‘a turning point in the ongoing process of creating a coherent and comprehensive EU policy framework on disability’,4 has amplified the ‘effects and spill-overs’ of the CRPD ‘on labour and employment

See, for instance, Stelios Charitakis, ‘Accessibility of Goods and Services’, in this volume. See recital 3 of the preamble to Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. See recital 4 of the preamble of Directive (EU) 2019/1158 on work-life balance for parents and carers (Work-Life Balance Directive) [2019] OJ L188/79. 3 Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 4 Andrea Broderick and Delia Ferri, International and European Disability Law and Policy: Text, Cases and Materials (Cambridge University Press 2019) 365. 1 2

448

Conclusion to the research handbook on EU disability law  449 policies’, as noted by Vanhegen and Hendrickx in Chapter 9, as well as on fields such as standardization, as discussed by Hosking in Chapter 14. Moreover, the effects of the CRPD have gone beyond the internal boundaries of the EU, stimulating an evident process of cross-fertilization between the EU and the Council of Europe, as argued by Favalli and Palmisano in Chapters 23 and 24, respectively. In 2020, the year that marks the tenth anniversary of the conclusion of the CRPD by the EU, the time seems ripe for reflection. As aptly noted by Hoefmans in Chapter 5, some may argue that ten years is a relatively short timeframe to grasp the effects of the UN Convention. However, as editors of this Research Handbook, we believe that such a timeframe provides us with an opportune moment to investigate not only the extent to which the protection and promotion of disability rights has been advanced at EU level to date, but also (most importantly) to illustrate the potential that the CRPD displays in terms of having effects on EU policy-making in the future. As noted at the beginning of this Research Handbook, recent developments, such as the publication of the European Accessibility Act (EAA) in the Official Journal of the EU (OJ) in June 2019,5 suggest that EU disability law is a growing and dynamic area of law and policy-making, and a distinct area of EU action. This is confirmed by several other legislative enactments, not least by the adoption of the Public Sector Web Accessibility Directive,6 and, among others, by the wide-ranging public consultations on the future of the EDS.7 Reflecting the dynamism of EU disability law at present, the various contributions in this Research Handbook, while building on pre-existing academic work, do not just provide a systematic reconstruction of the literature related to various strands of EU law; rather, they engage in critical commentaries on future perspectives and reflect, to varying degrees, on potential developments in the field of EU disability law. This Research Handbook is also particularly timely in light of the fact that, in 2021, the next report on the implementation of the CRPD by the EU is due to be submitted to the United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee). Time will reveal whether the critical perspectives laid out in some of the contributions in this Research Handbook will be taken on board by the CRPD Committee and whether the challenges identified will be acknowledged by that international monitoring body. It would be rather difficult to summarize and comment on the thrust and content of each contribution to this Research Handbook. Doing so would also run the risk of losing some of the nuances that reflect different authors’ perspectives. Instead, therefore, we have identified two core issues that characterize EU disability law and that emerge from the varied analyses contained in this Research Handbook. The first major theme that emerges from the contributions in this Research Handbook concerns the blurred boundaries that are evident in the field of disability law as a whole. In other words, the chapters on the whole reveal that the understanding of certain duties and the use of certain concepts in international human rights law are different from those in EU

5 Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L151/70. 6 Directive (EU) 2016/2102 on the accessibility of the websites and mobile applications of public sector bodies [2016] OJ L327/1. 7 See https://​ec​.europa​.eu/​social/​main​.jsp​?catId​=​89​&​furtherNews​=​yes​&​newsId​=​9435​&​langId​=​en accessed 20 March 2020.

450  Research handbook on EU disability law law. In that regard, it is noteworthy that the social-contextual model of disability is not yet fully rooted in EU law. This was demonstrated by Broderick and Watson (in Chapter 8) in their analysis of the case law of the Court of Justice of the European Union (CJEU) related to non-discrimination, and was also discussed by O’Sullivan in Chapter 7. A blurred boundary line is also evident with regard to the concept of ‘vulnerability’, which is a concept used quite frequently in the sphere of EU law, but which is arguably not compatible with the CRPD. It is also evident, to some extent, with regard to the understanding of the duty of reasonable accommodation, as demonstrated in Chapter 8. The inconsistencies which emerge with regard to the understanding of the reasonable accommodation duty, and the use of the concepts of ‘disability’ and ‘vulnerability’, raise questions as to whether, and how, EU law can support the implementation of the CRPD in a manner that is compliant with the human rights model of disability that underpins the UN Convention. The second theme that emerges from the contributions in this Research Handbook relates to the complexities of EU disability law, particularly in terms of the implementation of disability rights. EU law is a complex legal order in itself, and EU disability law could be considered as a complex ‘sub-system’, whose components interact with the main body of EU law in multiple ways. EU disability law is a ‘multi-level’8 system by its very nature, and the mixed nature of the CRPD constitutes a further challenge with respect to the implementation of the UN Convention. Indeed, the complexity of the EU institutional system represents, as noted by Hoefmans in Chapter 5, a ‘test with regard to the more conventional thinking about monitoring mechanisms’. In an attempt to trace future avenues for research, the two ‘red threads’ of this book, highlighted above, are examined in more detail below.

2.

THE BLURRED BOUNDARIES BETWEEN EU AND INTERNATIONAL DISABILITY LAW

As mentioned above, the first theme that emerges from this Research Handbook as a whole concerns the blurred boundaries that exist with regard to various concepts and duties in the field of disability law, and specifically the inconsistencies that exist in that regard between EU and international law. 2.1

The Social-Contextual and Human Rights Models of Disability and the Duty of Reasonable Accommodation

Not surprisingly, as mentioned in the Introduction to this Research Handbook, a social-​ contextual understanding of disability has crept into EU law, not only through the jurisprudence of the CJEU, but also in EU legislation. For example, in certain provisions of the EAA, including its Preamble, paragraph 3, the EU legislator cites Article 1 CRPD – the

8 See Anne Waldschmidt, ‘Disability Policy of the European Union: The Supranational Level’ (2009) 3 ALTER, European Journal of Disability Research 8, p. 11.

Conclusion to the research handbook on EU disability law  451 ‘non-definition’9 of disability – and explicitly defines persons with disabilities in line with the social-contextual model of disability that underpins the UN Convention. However, while the CJEU appeared to be moving towards a social-contextual understanding of disability in the decisions that it rendered immediately after the ratification by the EU of the CRPD, it is clear from the analysis conducted by Broderick and Watson in their chapter in this Research Handbook that neither the social-contextual nor the human rights models of disability are fully embedded in EU disability law to date. In fact, the Court is struggling to acknowledge and (more importantly) apply the various elements of the CRPD’s understanding of disability. As demonstrated in Chapter 8, the Court’s interpretation of the concept of ‘disability’ has the potential to lead to difficulties in its practical application, such as excluding from the scope of Directive 2000/78 (Employment Equality Directive)10 certain benefits which should have been covered within its scope.11 Similar inconsistencies can be observed with regard to the interpretation of the concept of ‘reasonableness’ in the duty of reasonable accommodation, as also demonstrated in Chapter 8 and elaborated on by Varney and Pearson in Chapter 11. This demonstrates the importance of ensuring a degree of alignment between the CJEU’s and the CRPD Committee’s interpretation of key concepts that are also present in EU Member States’ laws. As discussed by Chamon in Chapter 4, the CJEU itself has recognized that the provisions of the CRPD are ‘an integral part of the [EU] legal order’12 and that secondary legislation, including the Employment Equality Directive, must be interpreted in a manner that is consistent with the CRPD insofar as possible.13 Several authors in this Research Handbook have argued that respecting the values that underpin the CRPD, and the social-contextual and human rights models of disability, is paramount to furthering the rights of people with disabilities. In that connection, Broderick and Watson have argued that it is important to ensure that a robust conceptualization of disability equality is embedded in EU law within the sphere of existing EU competences, thereby guaranteeing full and effective participation, combating stereotypes and ensuring respect for difference, including intersectional disadvantages, in line with the CRPD’s ‘new’ model of ‘inclusive equality’.14 2.2

Vulnerability as a Contested Concept and a Double-Edged Sword

The CRPD adopts an empowering approach to disability, focusing on individual abilities and capabilities. This is confirmed by the CRPD Committee, which requires that Parties to the UN 9 Broderick and Ferri, International and European Disability Law and Policy: Text, Cases and Materials (n 4) 65–67. 10 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 11 See the analysis of Case C-363/12 Z. v A Government Department and The Board of management of a community school EU:​C:​2014:​159 in Broderick and Watson, ‘Disability in EU Non-discrimination Law’, in this volume. 12 Joined Cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S (Ring and Skouboe Werge) EU:​C:​2013:​222, para 30. 13 Ibid para 32. 14 Committee on the Rights of Persons with Disabilities (CRPD Committee), General Comment No. 6 on equality and non-discrimination, UN Doc. CRPD/C/GC/6 (2018) para 11.

452  Research handbook on EU disability law Convention pay particular attention to the need to challenge the stereotypical views of people with disabilities as being vulnerable and, therefore, in ‘need of protection’.15 By way of contrast, at EU level, people with disabilities are often explicitly qualified as falling within the category of ‘vulnerable groups’, notably within the current EU asylum acquis. Conte, in Chapter 20, points out that the Qualification Directive,16 as well as the new proposal of the European Commission for a regulation on asylum procedures,17 explicitly categorize people with disabilities as ‘vulnerable’. This seems problematic, since the conceptualization of ‘vulnerability’ under EU law is still debated,18 and is ‘under construction’.19 Moreover, the terms ‘vulnerability’ and ‘vulnerable groups’ are not used consistently in EU secondary legislation. The fragmentation of relevant guarantees in the field of EU asylum law, for instance, has resulted in the emergence of a variety of concepts, describing the asylum seeker as ‘vulnerable’, ‘in need of special procedural guarantees’ or ‘with special reception needs’,20 which further complicates the legal situation. The uncertain status of the concept of ‘vulnerability’ in EU law runs the risk of undermining the protection accorded to certain groups, including people with disabilities. As Freeman argues, albeit in connection with gender, ‘whilst being classed as “vulnerable” can increase protection within EU asylum and refugee systems, the impacts on those who are classified as vulnerable can be felt as forms of symbolic violence which reduce agency and autonomy’.21 In this regard, the qualification of disabled consumers as ‘vulnerable’ consumers in several pieces of EU legislation, including the Directive on Unfair Commercial Practices and the Directive on Consumer Rights,22 is particularly problematic. In Chapter 19, Casarosa argues that the categorization of people with disabilities as vulnerable consumers in EU legislation

15 Simon Cusack, ‘Building Momentum towards Change: How the UN’s Response to Stereotyping Is Evolving’ in Eva Brems and Alexander Timmer (eds), Stereotypes and Human Rights Law (Intersentia 2016) 11–38, p. 19, citing CRPD Committee, Concluding Observations on the Initial Report of Austria, UN Doc. CRPD/C/AUT/CO/1 (2013) para 22. 16 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9. 17 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the union and repealing directive 2013/32/EU’ COM (2016) 467 final. 18 Some authors favour the use of the ‘vulnerability’ concept. See, among others, Francesca Ippolito, ‘Vulnerability as a Normative Argument for Accommodating “Justice” within the AFSJ’ (2019) 25(6) European Law Journal 544. 19 See Phillipe de Bruycker and Laurence de Bauche, Vulnerability in the European Law on Asylum: A Conceptualization under Construction (Bruylant 2012). 20 European Council on Refugees and Exiles (ECRE), ‘The Concept of Vulnerability in European Asylum Procedures’ (ECRE 2017) 14. 21 Jane Freeman, ‘The Uses and Abuses of “Vulnerability” in EU Asylum and Refugee Protection: Protecting Women or Reducing Autonomy? International Journal on Collective Identity Research’ (2019) Papeles del CEIC 1, p. 1. 22 Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/ EC and Regulation (EC) No 2006/2004 [2005] OJ L149/22; Directive 2011/83/EU on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC and repealing Council Directive 85/577/EEC and Directive 97/7/EC [2011] OJ L304/64.

Conclusion to the research handbook on EU disability law  453 will not, in itself, increase their level of protection, nor eliminate the obstacles that they may face as consumers. In some instances, while people with disabilities are not classified explicitly as ‘vulnerable consumers’ in a given piece of EU legislation, they are still intended to be included implicitly under the heading of ‘vulnerable groups’. For instance, as noted by Piernas López in Chapter 16, the term ‘social services of general economic interest’ (SSGEI) is defined as services of general economic interest ‘meeting social needs as regards health and long term care, childcare, access to and reintegration into the labour market, social housing and the care and social inclusion of vulnerable groups’.23 The European Commission has considered that the term ‘care and social inclusion of vulnerable groups’ could encompass, insofar as these can be considered as economic activities, ‘social integration services for people with disabilities’, among others.24 Similarly, as discussed by Ferri and Piernas López in Chapter 17, State aid measures adopted by Member States under Article 107(2)(a) of the Treaty on the Functioning of the European Union often qualify people with disabilities as ‘vulnerable individuals’. The explicit categorization of people with disabilities as ‘vulnerable’ consumers or ‘vulnerable’ asylum seekers, and the categorization of public services related to disability as services for individuals belonging to a ‘vulnerable group’, could be problematic if considered against the values contained in the UN Convention. Notwithstanding the fact that the CRPD itself does not ascribe to categorizations of vulnerability, Conte and Piernas López observe in their chapters in this Research Handbook that the labelling of persons with disabilities as a ‘vulnerable group’ can be found occasionally in other documents of international law,25 and in the jurisprudence of the European Court of Human Rights (ECtHR). The Strasbourg Court has applied group vulnerability analysis in several disability cases, beginning with Alajos Kiss.26 The ECtHR links the so-called vulnerability of people with disabilities to the ‘considerable discrimination’27 which individuals with (certain types of) disabilities – psychosocial (mental) disabilities – have encountered in the past. The Court has even invoked the idea of group vulnerability to read positive obligations into the rights in the European Convention on Human Rights (ECHR),28 as noted elsewhere.29 On the whole, however, several chapters in this Research Handbook confirm that the concept of ‘vulnerability’ itself ‘does not sit particularly well with the disability rights agen-

23 Recital 11 and Article 2(1)(c) of the Commission Decision on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (notified under document [2012] OJ L7/3). 24 Commission, ‘3rd Biennial Report on Social Services of General Interest, accompanying the document Communication from the commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Towards Social Investment for Growth and Cohesion – Including Implementing the European Social Fund 2014–2020’ SWD (2013) 40 final, p. 13. 25 See, for instance, Committee on Economic, Social and Cultural Rights, General Comment No. 5 on persons with disabilities, UN Doc. E/1995/22 (1994) para 9. 26 Alajos Kiss v Hungary, Application No. 38832/06 (ECtHR, 20 May 2010) para 42. 27 Ibid. 28 See ZH v Hungary, Application No. 28973/11 (ECtHR, 8 November 2012) para 31. 29 Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015) 341.

454  Research handbook on EU disability law da’.30 As Piernas López points out in Chapter 16, ‘from a rights-based perspective, disability does not intrinsically render a person vulnerable, but rather it is the lack of access, information and support, which intensifies vulnerability’.31 In light of this, it appears imperative that the EU law boundary lines are clearly demarcated with regard to how people with disabilities are viewed as right-holders, and that the normative content of the concept of ‘vulnerability’ is also clarified.

3.

THE COMPLEXITY OF EU DISABILITY LAW

The second major theme emerging from this edited Research Handbook concerns the complexities that are evident in EU disability law, both at the vertical and the horizontal levels. 3.1

Vertical Complexity

This Research Handbook focuses on EU law as such, and does not discuss national legislation. As noted by Chamon in Chapter 4, the fact that the CRPD was concluded as a mixed agreement rather than an EU-only agreement presents a number of practical and legal issues in terms of the implementation of the UN Convention. Nonetheless, according to Chamon, the CRPD’s ‘mixity’ potentially amplifies the possibilities for effective enforcement of the CRPD by private parties vis-à-vis EU Member States (compared to a situation whereby only the Member States would be Parties to the UN Convention). Moreover, it is argued here that the CRPD’s mixity also enhances the possibilities for effective implementation of the UN Convention, but only if the specificities of the CRPD as a mixed agreement are fully taken into account at EU level, and a clear division of Member State and EU competences is delineated. The implementation of the CRPD through EU disability law presents numerous challenges and perspectives. The extent to which the CRPD is effectively implemented throughout the EU will depend, to a large extent, on the implementation of EU disability law at Member State level. It was revealed throughout this Research Handbook that certain EU legislation has been implemented in a patchy manner throughout the Member States. This remains a significant barrier to the effective implementation and realization of disability rights and, ultimately, to the implementation of the CRPD. This is the case, for example, with the InfoSoc Directive,32 as noted by Sganga in Chapter 12. The optional exception included in that Directive and the broad language used by the EU legislator has caused a marked fragmentation in the regulatory approaches adopted at the domestic level. While all EU Member States have implemented the Directive, the content of the disability exception has developed in ‘an inconsistent and fragmented manner across the EU’, according to Sganga. The contributors to this Research Handbook have also emphasized the importance of monitoring the implementation of EU legislation at both EU and national levels, and this

Ibid 320. Hasheem Mannan, Malcolm MacLachlan and Joanne McVeigh, ‘Core Concepts of Human Rights and Inclusion of Vulnerable Groups in the United Nations Convention on the Rights of Persons with Disabilities’ (2012) 6(3) European Journal of Disability Research 159, p. 161. 32 Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society [2001] OJ L167/10. 30 31

Conclusion to the research handbook on EU disability law  455 issue is tied to the significance of ensuring cooperation between all relevant authorities in the implementation of the legislation concerned. At the domestic level – and taking the example of recent EU legislation in the form of the EAA, which, as discussed by Charitakis in Chapter 13, provides for more concrete enforcement mechanisms than had existed up to that point in the field of accessibility – it is imperative that all relevant authorities liaise with each other in implementation of that Directive. It is also important to ensure robust monitoring mechanisms at EU level. This is evident from the analysis conducted by Hoefmans in Chapter 5 and by Waddington and Broderick in Chapter 6. In the latter chapter, it is demonstrated that certain EU secondary legislation impacts on the participation of people with disabilities in political and public life. Waddington and Broderick argue that it is essential for the implementation of the CRPD that, in reporting on the implementation of relevant secondary legislation in that field, the European Commission includes an assessment identifying national practices which potentially undermine the rights of persons with disabilities and, in particular, the extent to which disenfranchisements for reasons related to disability which have occurred in one Member State are recognized and enforced in another Member State, in instances where individuals have exercised their right of free movement. 3.2

Horizontal Complexities

In addition to the vertical complexities detailed above, the EU legal system demonstrates manifold complexities on the horizontal level that affect, or have the potential to affect, the realization of the rights of persons with disabilities. The first of those complexities arises in relation to the co-existence of various pieces of legislation at EU level, which results in the stratification of EU disability law on the whole. This can be seen, for instance, in the field of accessibility. As Charitakis points out in Chapter 13, the over-reliance of the EU legislator, before the adoption of the EAA, on accessibility mainstreaming measures rather than disability-specific instruments resulted in a fragmented framework of EU disability measures. This meant that protection for people with disabilities in the field of accessibility was scattered over a large number of policy fields. This, according to Charitakis, created major challenges with regard to the codification of the relevant legislation and the monitoring of accessibility provisions by the EU institutions. The adoption of the EAA has partially resolved this issue, but only within the scope of application of that Directive. In addition, stratification arises in terms of the effects of EU disability law, in the sense that although certain legislation is not focused on disability per se, it still impacts on the rights of persons with disabilities. A notable example of this was discussed in Chapter 6, where Waddington and Broderick note that while the EU has not adopted legislation directly addressing the right to vote of persons with disabilities, certain secondary legislation impacts on the participation of people with disabilities in political and public life. Another notable complexity relating to EU disability law concerns the extent to which diversified tools are used as a means of regulation. This is particularly evident in the field of accessibility. In Chapter 15, Bovis notes, for instance, that accessibility can be realized through a variety of State interventions, including through public procurement, which he regards ‘as the conduit of ensuring accessibility to facilities and services to the public, and facilitating access for persons with disabilities to new ICT and systems’. In addition, the European standardization system, as a co-regulatory system with the Member States, discussed by Hosking

456  Research handbook on EU disability law in Chapter 14, has great potential to increase accessibility for people with disabilities. It does, however, raise questions in terms of its capacity to guarantee legitimacy and the effective implementation of EU disability law, given the voluntary nature of EU standards. A related point concerns the extent to which the participation of people with disabilities can be ensured in standardization processes pertaining to the accessibility of goods, services and other facilities, in line with Article 4(3) CRPD. Notably, the EAA provides that the European Commission should, where this is feasible, involve European umbrella organizations of persons with disabilities and all other relevant stakeholders in standardization processes.33 The EAA therefore does not guarantee participation of people with disabilities in those processes, and the EU Regulation on European Standardisation,34 it is noted, ‘mirrors the permissive language of Preamble paragraph 77 of the EAA’.35 As Hosking contends in this Research Handbook, the recognition of the European Disability Forum (EDF) as the voice of people with disabilities in relation to standardization would give them a more direct and influential role, in keeping with the EU’s international responsibilities. A further horizontal complexity in EU disability law that emerged in this Research Handbook concerns the extent to which disability considerations can effectively be mainstreamed through other instruments at EU level. For instance, Vanhegen and Hendrickx note that the mainstreaming of disability through instruments such as the European Pillar of Social Rights (EPSR) could serve as a means by which to foster social legislative initiatives outside the non-discrimination realm. In a similar vein, Van den Sanden elaborates, in Chapter 21, on the vital importance of mainstreaming disability issues across all areas in the field of EU development cooperation policy. 3.3

Inter-Systemic Complexities

The implementation of the CRPD calls into question and amplifies not only the relationship between EU law and general international law, broadly conceived, but also the interrelation between the EU and regional systems of international law. These inter-systemic complexities manifest in several ways, as detailed throughout this Research Handbook. With regard to the first aspect outlined above – the relationship between EU law and general international law – it is notable that the CRPD has stimulated the ratification of other international treaties. The most striking example is that of the Marrakesh Treaty,36 discussed by Sganga in Chapter 12. After the entry into force of the UN Convention, the debate on the obstacles imposed by copyright laws on access to, and participation in, cultural life for people with disabilities was revived. While the EU took a timid approach at first, and was more oriented towards adopting a soft law instrument, in the end it embraced the drafting of the 33 Emphasis added. In that vein, see preamble, para 77, to Directive (EU) 2019/882. See also Article 15 Directive (EU) 2019/882. 34 Regulation (EU) 1025/2012 on European Standardisation, [2012] OJ L/316/12 states in Preamble, para 24 thereof, that the participation of persons with disabilities and of organizations representing their interests should be facilitated by all available means throughout the standardization process. 35 Andrea Broderick, ‘The European Accessibility Act: A Paradigm of Inclusive Digital Equality for Persons with Disabilities?’ in Carola Ricci (ed), Building an Inclusive Digital Society for Persons with Disabilities: New Challenges and Future Potentials (Pavia University Press 2019), p. 33. 36 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, VIP/DC/8 REV (2013).

Conclusion to the research handbook on EU disability law  457 Marrakesh Treaty and concluded that Treaty. Moreover, the EU legislator enacted a Directive (the Marrakesh Directive)37 and a Regulation (the Marrakesh Regulation)38 with a view to implementing its obligations. The powerful potential for change brought about by the CRPD is also demonstrated by the possibility to incorporate the rights of persons with disabilities into EU external relations law, as discussed by Van den Sanden in Chapter 21 and by Faccio in Chapter 22. The latter author suggests that the rights of persons with disabilities come into play, albeit implicitly, in the context of EU trade and investment policy as part of the broader attempt of EU policy-makers to protect EU values, human rights and sustainable development standards globally. Regarding the second aspect of inter-systemic complexities, namely the inter-relationship between EU law and regional systems of international law, Favalli demonstrates in Chapter 23 that the CRPD has facilitated a growing synergy between the case law of the ECtHR and the CJEU related, in particular, to the non-discrimination and reasonable accommodation norms. It is noteworthy, as Favalli points out, that the growing synergies that emerge from the case law of these two European Courts in the field of disability go against a distinct trend whereby the dialogue between those Courts seems to have halted in other areas. With regard to the Strasbourg Court, as Favalli notes, it has often taken the opportunity to mention the CRPD in order to strengthen its assessment of the particular rights at issue, affirming that the provisions of the ECtHR should be interpreted in light of the UN Convention. Notably, Favalli observes that the influence of the UN Convention on the case law of the ECtHR emerges more clearly in the dissenting or concurring opinions of the Strasbourg judges, who reaffirm that the CRPD sets the European and international standards of protection for the rights of persons with disabilities. The influence of the CRPD on EU law sometimes emerges (and later takes hold) by means of the Opinions of Advocate Generals (AG) in particular cases. This can be seen, for instance, in the Opinion of AG Poiares Maduro in Coleman,39 as pointed out by Broderick and Watson in Chapter 8.40 In Chapter 24, Palmisano points to the fact that the European Social Charter (ESC) system has proven to be, and is continuing to be, ‘both a fundamental point of reference and a very significant monitoring mechanism in the protection of the rights of persons with disabilities at the European level’. Palmisano cites the EPSR in this regard, which – through its Principle 17, dealing with the issue of inclusion of people with disabilities – provides a good opportunity to improve the synergies between EU law and the ESC, as long as the European Commission takes properly into consideration the ESC system in monitoring the implementation of the 37 Directive (EU) 2017/1564 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2017] OJ L242/6. 38 Regulation (EU) 2017/1563 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled [2017] OJ L242/1. 39 Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. 40 Opinion of Advocate General Poiares Maduro, Case C-303/06 Coleman v Attridge Law and Steve Law EU:​C:​2008:​415. See Jarlath Clifford, ‘The UN Convention and Its Impact on European Equality Law’ (2011) 6 Equal Rights Review 11, fn 48. See also the analysis in Lisa Waddington and Andrea Broderick, Combating Disability Discrimination and Realising Equality: A Comparison of the UNCRPD and EU Equality and Non-discrimination Law (European Commission 2018) 74–75.

458  Research handbook on EU disability law EPSR. This could indeed help to strengthen the social rights components of all EU disability policies and legislative measures. Overall, it emerges from the accounts of Favalli and Palmisano that the various sub-systems of the Council of Europe can, and should, play an important role in shaping and reinforcing the EU’s commitment – in terms of legislative and policy measures – in the disability field.

4.

CLOSING REMARKS

The majority of the contributions in this Research Handbook have analysed how, and to what extent, the rights of persons with disabilities have been taken into account and protected by the EU legislator and by the CJEU across a wide range of fields of EU law, ranging (among many others) from equality, accessibility and standardization to political participation and citizenship, and from social security law to EU development cooperation. Key questions related to the scope and effects of EU disability law, its alignment with the CRPD and the gaps that still need to be filled have been addressed in the various contributions in this Research Handbook, from a variety of different angles and perspectives. The authors in this Research Handbook, who come from diverse academic and practice backgrounds, have presented rich accounts of the most recent developments in EU disability law. The depth of analysis conducted with regard to the latest advances in a field that displays so much dynamism makes this Research Handbook a truly worthy contribution to the existing literature. It also places this Research Handbook at the cutting edge of research in the field. This Research Handbook adds value to the scholarly debate on EU disability law not only in terms of the depth and richness of analysis conducted by the authors who contributed to the Research Handbook, but also on account of the novel and diverse approaches adopted by the contributors to this emerging field of research. It is notable that while some authors are more sceptical about the capacity of the EU to fully implement the CRPD, others present more optimistic views. This results in a bittersweet account on the whole. In some areas of EU law, both legislation and policies have displayed significant potential to enhance disability rights generally, but this potential often remains untapped. This is the case with State aid law and policy, as well as that of consumer legislation, and EU trade and investment agreements. In connection with the latter, Faccio notes that references to disability remain mostly sporadic and indirect, and could become more rooted in EU legislation. In some instances, the authors who contributed to this Research Handbook call into question the political willingness at EU level to undertake extensive reform in a field characterized by strong market players. This emerges, for example, with regard to EU copyright law in Sganga’s account in Chapter 12. In other chapters, certain authors question the very essence of the EU and its internal market focus, specifically calling into question the ability of the Union, and more specifically the CJEU, to carve out a model of social citizenship that aligns with the CRPD.41 For example, O’Sullivan, at the end of his contribution in Chapter 7, asks (seemingly rhetorically) whether the Union should undergo ‘its own period of reconstruction similar to that of its Member States in the post-Second World War era if it intends to create a model of social citizenship capable of realizing the objectives contained within the CRPD’.

See Charles Edward O’Sullivan, ‘EU Citizenship and Disability’, in this volume.

41

Conclusion to the research handbook on EU disability law  459 Whichever of these accounts holds true will be revealed over time, and the real potential of EU legislation and policies to enhance disability rights will slowly be laid bare over the course of CRPD implementation. In the interim, several avenues for research remain open to exploration. One of those, as identified by Ferri in Chapter 3, is the extent to which the CRPD can further be ‘constitutionalized’ in the EU law framework. Another avenue for future research, as outlined in Chapter 8 of this Research Handbook, concerns the extent to which the CRPD may spur a more robust conceptualization of the equality norm in EU law than exists to date, and whether the values underpinning the ‘new’42 model of inclusive equality in the CRPD can influence the Luxembourg Court to move, inter alia, towards a gender-sensitive interpretation of EU disability law. Moving beyond traditional civil rights such as the rights to equality and non-discrimination, to examine instead the social policy aspects of EU law, another avenue for research is identified by van der Mei, who points out in Chapter 10 that a far more extensive study is needed to obtain a comprehensive overview of all of the social security barriers that mobile EU citizens with disabilities face. Of course, these are but a few examples of the many areas of EU disability law that remain open to future exploration. At present, EU disability law represents, in equal measure, a dynamic field of EU action and a burgeoning area of research. Notwithstanding this, there is some way to go in order to ensure that the obligations contained in the CRPD are respected and protected not only at EU level but also at Member State level. There is also much to be done in order to ensure that the complexities of the EU as a multi-level system and the specificities of the CRPD as a mixed agreement under EU law are taken into account, and that the UN Convention’s potential for change is harnessed. As pointed out in the Introduction chapter and as displayed at various junctures throughout this Research Handbook, the CRPD – underpinned by a clear human rights model of disability – is the global normative standard for analysis with regard to the rights of persons with disabilities. Perhaps in ten years’ time, hopefully in a second edition of this Research Handbook, it will be revealed whether the values and tenets underlying the UN Convention’s human rights model of disability have taken hold in EU law.

CRPD Committee, General Comment No. 6 on equality and non-discrimination (n 14) para 11.

42

Index

Aarhus Convention 65 EU’s Declaration of Competence for 65 Abubacarr Jawo case 46 Academic Network of European Disability Experts (ANED) 237 accessibility Commission report on e-accessibility 231 definition of 222 dimensions of 222 EU measures for implementation of 223–8 monitoring of 231–2 European Accessibility Act (EEA) 233–41 of goods and services access for disabled end-users 225–6 affordability 224–5 communication accessibility 226 information accessibility 225–6 physical accessibility 227–8 social accessibility 223–4 notion of 221, 275 accountability, principles of 268 acquis communautaire 266, 269 Action Européenne des Handicapés (AEH) v France 442 Action Plan for Social Inclusion 18 active citizenship, concept of 89, 98, 103 Advocate General (AG) 20, 116 African Union-European Union Human Rights Dialogues 393 after-sales service 280 Agefiph (Agency promoting employment of the disabled) 295 Agenda for Change (2011) 386, 390 Agenda for Sustainable Development (2030) 403 aid, concept of 301 alternative dispute resolution (ADR) 347, 352 Americans with Disabilities Act (1990) 19 AMP Antarctique case 61 Amsterdam, Treaty of (1997) 1–2, 13, 19, 22, 153, 344 importance of 20 Annex II of Council Decision of 26 November 2009 284 Annual Implementation Reports (AIR) 328 anti-discrimination legislation 151 area of freedom, security and justice (AFSJ) 46, 365 association agreements (AA) 397 assurance of rightful access 196, 198

asylum law, in EU comparison with international law 361–4 Global Compact on Refugees (GCR) 361 UN Convention on the Rights of Persons with Disabilities (CRPD) 363–4 UN Convention relating to the Status of Refugees 361–3 Common European Asylum System 364–6, 368–76 interplay between EU Asylum Law and the CRPD 366–8 on process of claiming asylum 359 responsibility-sharing among UN Member States 361 Asylum Procedures Directive 2013/32/EU 360, 371, 373, 376 asylum seekers application for asylum 47 asylum system of a Member State 47 with disabilities 369 forced migration 48 international protection procedures for 48 mental and physical needs of 372 protection of refugees with disabilities 360 Commission’s proposal on 370 refugee crisis of 2015 360 rights under Charter of Fundamental Rights of the EU (CFR) 45–8 vulnerable 453 Audio-visual Media Services Directive 223–4, 227, 230, 236 Autisme-Europe v France 440 average consumer 347 Bamouhammad v Belgium 45 Barcelona Convention 64 Barrier Free Europe 25, 245 Bayerischer Verwaltungsgerichtshof case 39 Beijing Declaration (1995) 399, 405 Berne Convention for the Protection of Literary and Artistic Works 63, 220 best price–quality ratio (BPQR) 281–2 bilateral investment treaties (BIT) 406 Block Exemption Regulations 290, 311–18 Blokhin v Russia 45 Botta v Italy 183–4 Bougnaoui v Micropole SA 130

460

Index  461 Braille (Sign) Language 196 Bulgarian Code of Criminal Procedure 50 campaign against poverty 382 care allowances 173, 177, 179 Care Insurance Law 176 cash benefits 178, 181 non-contributory 169–75 notion of 165–7, 177 Cassis de Dijon judgment 246 Center for Independent Living 335 Chacón Navas v Eurest Colectividades SA 20, 131–2, 185, 189 Charter of Fundamental Rights of the EU (CFR) 12, 71, 122, 191, 263, 344 Article 4 of 45–8 Article 21 of 34–45, 95, 106 Article 26 of 34–45 Article 36 of 287 Chapter III of 123 disability equality in 34–7 drafting of 29 European Commission strategy for implementation of 22 fundamental rights guaranteed by 33 interplay with CRPD 43–5 Parties to 71 on political participation of persons with disabilities 94–5 protection of rights of people with disabilities under 45–8 accused of crimes 48–51 provision on asylum seekers 45–8 rights included in 31 scope of application of 33–4 social rights of workers 149 structure and the content of 31–3 violation of 69 Charter on Inclusion of Persons with Disabilities in Humanitarian Action 359 choose an occupation, right to 263 Citizenship Report of the European Union 89 civil society groups 260, 401 Civil Society Organisations and Local Authorities programme 389 civil society organizations 74, 101, 328 claims by disabled persons 20 Cohesion Fund 323–4, 338–9 Cohesion Open Data Platform 340 Cohesion Reports 328 collective complaints procedure 419, 432–3, 440, 444–6 protection of the rights of persons with disabilities through 440–46

collective licensing 211, 217, 219 Commission Communication 264, 399 Commission on Equality of Opportunity for People with Disabilities 16, 17 Commission v France 64, 66 Commission v Ireland 63–4 Committee of Ministers 415, 417, 419 Committee of the Regions 288, 328 Committee on Civil Liberties, Justice and Home Affairs 84 Committee on Economic, Social and Cultural Rights (CESCR) 210, 222 Committee on Employment and Social Affairs 84 Committee on the Rehabilitation and Integration of People with Disabilities (CDPRR) 416–17 Common Agricultural Policy (CAP) 324 Common Customs Tariff 56 common economic market 184 Common European Asylum System (CEAS) 46, 360, 364–6, 368–76 accommodating special reception needs 374–6 Asylum Procedures Directive 371–3 criterion of ‘membership of a particular social group’ 368–70 current asylum procedure 371–4 identification of disability in the asylum procedure 372–4 identification of vulnerable groups 376 Proposal for a Regulation 371–4 Qualification Directive 2011/95/EU 368–70 Reception Conditions Directive 374–6 common European market, creation of 147 Common Fisheries Policy 325 Common Foreign and Security Policy (CFSP) 382 Common Procurement Vocabulary (CPV) 277–8 Common Product Classification 277 community-based care 325, 331–6, 341 community-based living 328, 334 community care in practice 333 Community Strategy on Health and Safety at Work 152 competition law, of EU 268 Comprehensive Economic and Trade Agreement (CETA) 411–12 Conference of States Parties 60 consistent interpretation, principle of 44, 124, 132 consumer law, in EU for consumer protection 343 consumer vulnerability and 350–52 enforcement deficit and 355 inclusion of the needs of people with disabilities in 346

462  Research handbook on EU disability law secondary EU consumer protection legislation 347–50 information paradigm 352–5 added value of technology 354–5 legal framework related to 345 Proposal for a Directive on representative actions 345–6 Regulation 524/2013/EU 347 rights of people with disability 355–6 consumer protection 223, 226, 228, 241–2, 343–5, 351–2, 355–8 consumer vulnerability, concept of 350–52 contract formation, process of 345 coordination rules, for social security 165–7 gaps in 167–8 lex loci domicilii 166 lex loci laboris 166 pro rata method 167 Copenhagen Declaration (1995) 399, 405 copyright law 211 features of 217 Council of Europe (CoE) 7, 328, 414, 431–3 Action Plan for people with disabilities 417, 418–19 Ad-Hoc Committee of Experts on the Rights of Persons with Disabilities 419 Committee of Ministers 415, 417 ECHR 415–20 Strategy on the Rights of Persons with Disabilities 2017–2023 (CoE Strategy) 418–19 Council Resolution on a Preliminary Programme (1975) 343 coups d’état 410 Court of Justice of the EU (CJEU) 2, 20, 30, 60, 80, 94, 106, 115, 117, 167, 183, 252, 287, 301, 369, 406, 415 Analir judgment of 288 case law of 233, 381, 450 EU transport legislation 186–93 role of Articles 21 and 26 of the Charter in 37–40 Cassis de Dijon judgment 246 Glatzel judgment 95 Grand Chamber of 21, 116 James Elliott case 252 Jauch judgment 173 jurisdiction in relation to mixed agreements 63–4 Declaration of Competence for 64–6 Piscitello judgment 171–2 on prohibition of discrimination 123 on religious discrimination 125 ruling in Kaltoft 133 stance on the concept of ‘disability’ 133

Tribunal d’Instance de Sens 95 Croatian Book Publishing Programme 2014–2016 310 cross-border trade, of products and services 269 cross-fertilization 414, 421–2, 430, 449 crowd-digitization 219 CRPD Committee 25, 46, 99, 129, 196, 222, 366, 449 Concluding Observations 84, 158 data on persons with disabilities 79 EU monitoring framework under the scrutiny of 78–82 Guidelines on independent monitoring frameworks 73–4, 81, 83, 87 High-Level Group on Disability 77 interpretation of Article 33 CRPD by 73–5 Paris Principles 79–80, 82 recommendations on scope of Article 33 CRPD 78–9, 81–2 Work Forum on the Implementation of the UN Convention 77 cultural heritage and cultural products, aid to enhance accessibility of 317–18 customs union agreements (CU) 397 Daouidi v Bootes Plus SL 136 da Silva Martins case 178–9 decision-making, process of 73, 79 Declaration of Competence 64 Aarhus Convention 65 CRPD 57 de jure derogations 302 Design for All 246, 253–4, 257–8, 260, 262, 277 Development Cooperation Instrument (DCI) 388 development cooperation policy EU external competences and 379, 381 Articles 208 of TFEU 381, 383 Articles 209(1) of TFEU 387 international agreements 390–91 legal scope of 381–3 mainstreaming of disability issues 391–2 nature of 380–81 objectives of 382 policy scope of 383–4 to promote the implementation of the CRPD 392–3 relation with disability 384–7 unilateral measures 387–90 digital technologies, development of 202 Directive on Consumer Rights 350, 352, 355, 452 Directive on Safety Rules and Standards for Passenger Ships 227, 231 Directive on the Sale of Consumer Goods 352–3 Directive on Unfair Commercial Practices 350, 452

Index  463 Directive on Unfair Contractual Terms 352 Directive on Web Accessibility 26 Directorate General (DG) for Employment, Social Affairs and Inclusion 155 Directorate General for Humanitarian Aid and Civil Protection (DG ECHO) 367–8 disability capacious view of 141 concept of 20–21, 42, 43, 130, 144–5 definition of 20, 67 under EU law 131–7 gendered approach 145 difference with illness 46–7, 137–8 in EU employment policy 153–7 EU law definition of post-CRPD 132–7 pre-CRPD 131–2 in EU social policy 149–53 human rights models of 450–51 medical model of 21, 416 social-contextual model of 21, 133, 145, 200, 416, 450–51 Disability Action Plan 2008–2009 19, 264 disability-based discrimination 124, 126–7, 141, 402 disability equality 121 in the Charter 34–7 Disability Intergroup of the European Parliament 101 disability law, of EU comparison with international disability law 450–54 on duty of reasonable accommodation 450–51 on issue of vulnerability 451–4 social-contextual and human rights models 450–51 complexities of 450 horizontal 455–6 inter-systemic 456–8 vertical 454–5 CRPD as the main driver of 448–50 as dynamic field of EU action 448–50 as emerging field of European Union law 1–3 disability policy, of the European Union (EU) 243 Action Plan 18 development of 2, 17, 19 evolution of 16–17 legislative developments in Charter of Fundamental Rights of the European Union 22–3 Employment Equality Directive 19–22 origins of 13–19

rights-based approach to 17 disability-related benefits and allowances 307 disability rights beyond 2020 157–62 in EU labour law 147, 157–62 implementation of 450 influence of European Pillar of Social Rights 159–60 UN Convention on the Rights of Persons with Disabilities (CRPD) 157–8 spill-over and mainstreaming of 160–62 disabled detainees, rights of 45 Disabled Persons’ Organizations (DPOs) 19, 27, 81, 89, 100 disabled worker 125, 150–52, 297–8, 308–10, 313 discrimination on basis of disability 126–7 definition of 126 Employment Equality Directive on 126–7 EU law prohibition of 126 genetic discrimination 142–4 grounds of 126 ratione materiae of 142 see also persons with disabilities discrimination by association, concept of 126, 427–8 distributive justice, idea of 107 division of powers, between the EU and its Member States 32 Dublin III Regulation 46–7, 366 EC–Brazil CA (1992) 404 EC–Chile AA (2002) 411 EC–GCC (Gulf Cooperation Council) CA (1988) 404 EC–Israel Association Agreement (1995) 402 e-commerce 236–8, 276 Economic Partnership Agreement (EPA) 411 economic recession 155 EC Treaty 19, 93, 150, 344, 380 EC–Yemen CA, preamble of 399, 401 education, right to 263 elderly, rights of 263 electronic communication services 236 employability of people with disabilities 129, 155 employment access to 438–9 European Council’ guidelines on 149, 153–5 Joint Employment Report (JER) 161 of people with disabilities 129, 162 policies of the EU Member States 146, 149 of workers with disabilities 314–16

464  Research handbook on EU disability law Employment Equality Directive (2000) 2, 12, 18, 19–22, 20, 24, 38, 41, 66, 133, 143, 150, 155, 160, 175, 189, 279, 425 Article 1 of 21 Article 5 of 69 concept of ‘disability’ in 21 and concept of reasonable accommodation 124–30 framework for equal treatment in employment and occupation 124 interpretations of 24 prohibition of discrimination in 126–7 ratione personae of 428 employment gaps, for disabled people 154, 155, 162 Employment Guidelines (2005–2008) 149, 153–5, 157, 163 employment opportunities, creation of 146, 154, 157, 321, 322, 325–6 employment policy, disability in 153–7 Lisbon Strategy 153–5 towards 2020 156–7 energy efficiency 324 engage in work, right to 263 Enhanced Partnership and Cooperation Agreement (EPCA) 412 equality, concept of 198, 265, 422 equal pay for equal work for women 19 equal rights, principle of 435 equal treatment, principle of 35, 40, 69 exceptions to 125 infringement of 39 national provisions on 125 violation of 39 Erasmus+ Programme 26 ERTA doctrine 54, 61, 65 EU Agency for Fundamental Rights (FRA) 76 Multi-Annual Framework 77 Regulation 168/2007 77 EU citizens 76, 89–90 with disabilities 106 division of 118 equality of 191 free movement rights for 116 mobility of 93 political and civil representation 113 social rights of 106–7, 114–16 without disabilities 90 EU citizenship 9, 25, 34, 105–6 Article 18 TFEU on 116 concept of 109 constitutionalization of 118 and disability 116–18 fundamental status of 113

grant of EU rights to 113 ius sanguinis (blood right) 110 ius soli (birth right) 110 ius tractum (derivative status) 110 versus national citizenship 109–13 postnational citizenship 105 process of neo-liberalization 105 significance of 119 social limits of 116 social rights of 106–7, 114–16 States relationship with their citizenry 105 under Treaty on the Functioning of the EU (TFEU) 106 welfare programmes 118 EU competences 54–5, 76, 379 declaration of 64–6 in respect of CRPD provisions 61 EU external action, principles and objectives of 379 EU framework for monitoring the CRPD architecture laid down in Article 33 CRPD 72–3 Chairperson of 85 division of tasks within 84 evolution of 82–4 functioning of 76 interpretation of Article 33 CRPD 73–5 Multi-Annual Framework 77 Paris Principles 79–80, 82 representation of European Parliament 84 under scrutiny of UN Committee 78–82 Secretariat of 85 setting up of 75–8 tasks of 76 from theory to practice 85–7 EU laws and legislation 8, 9, 22, 30, 34, 66, 95 application of 33, 113 Council Directive 93/109/EC 95 Council Directive 94/80/EC 95 CRPD status in the hierarchy of 24 definition of disability post-CRPD 132–7 pre-CRPD 131–2 on disability see disability law, of EU disability equality in the sphere of 121 hard and soft law provisions of 103 implementation in Member States 34, 43 judicial review of 30, 43 mixed agreements in 52–4 obligations of Member States 61–6 principle of non-discrimination under 41 prohibition of discrimination in 122–4 protection against discrimination under 41 protection of refugees with disabilities under 360

Index  465 ‘public services’ under 284, 286–9 ratione materiae of 145 reasonable accommodation duty in 128 on rights connected to political participation 93 secondary legislation 95–7, 124, 186–93, 299, 382 on social services of general economic interest 290–92 on social security 175, 179 status of harmonized standards in 251–3 EU rights, rule prohibiting the grant of 113 Europe 2020 Growth Strategy 26, 157–8, 269, 282, 322, 323, 327 European Accessibility Act (EAA) 2, 10, 25, 26, 194, 221, 346, 449 adoption of 233 in context of other EU measures 234–7 limits to the scope of application of exceptions to 240–41 limited coverage of private websites 237–8 regulation of the built environment 238–40 European Agricultural Fund for Rural Development (EAFRD) 323–5 European Assessment Document 279 European Association for the Co-ordination of Consumer Representation in Standardisation (ANEC) 195, 260 European Association of Service Providers for Persons with Disabilities (EASPD) 330–31 European Blind Union 100, 206 European Commission 26, 28, 75, 76, 77, 83, 85, 173, 288 Agenda for New Skills and Jobs 156 Annual Growth Survey (AGS) 157 on care and social inclusion of vulnerable groups 290, 295, 453 Community Strategy on Health and Safety at Work 152 competence in promoting equality 19 Directorate-General for Justice and Consumers (DG JUST) 98 discretionary power in respect to aid 302 High Level Group of Member States’ Representatives on Disability 18 infringement proceedings against a Member State 69–70 Inter-Service Group on Disability 77–8 proposal regarding protection of asylum seekers with disabilities 370 recommendation on child poverty 332 Resolution of the Council of Ministers 17

social service of general economic interest related to disability defined by 297–8 strategy for implementation of CFR 22 Work Forum of 85 European Committee for Electrotechnical Standardization (CENELEC) 244, 248, 250, 257, 277 European Committee for Standardization (CEN) 244 European Committee of Social Rights (ECSR) 419, 432 European Community (EC) 284, 416 action programmes 1974–1996 12 Directive 93/109/EC 96 Directive 94/80/EC 96 Directive 2000/78/EC 1 European Community Action Programmes (1974–1996) 13–14 European Community Disability Strategy (1996) 12, 17–19, 417 European Community Policy Initiatives on Disability 15–16 European Consensus on Development 383, 394, 430 concept of 421 on development cooperation–disability nexus 386–7 European Consumer Agenda (2012) 346 European Convention on Human Rights (ECHR) 33, 45, 124, 414–30, 431 Article 3 of 48 Article 5 of 420 Article 8 of 183 Article 14 of 420, 425 in context of the Council of Europe’s disability policy 415–20 disability-oriented interpretation of 421 Guberina v Croatia case 427 influence of the UN Convention on the Rights of Persons with Disabilities on 421–2 prohibition of discrimination on the basis of disability 424–5 reasonable accommodation duty 425–30 and rights of persons with disabilities 421–30 synergies between Strasbourg and Luxembourg 425–30 European Council 16, 20, 85, 365 Decision 2018/1215/EU 161 decision on accession to the CRPD 58 Directive on Work-Life Balance for Parents and Carers 162 Employment Guidelines 149, 153–5 Parental Leave Directive 162 Presidency Conclusions of 29

466  Research handbook on EU disability law recommendation on establishing a Youth Guarantee 156–7 Working Party on Human Rights (COHOM) 77 European Court of Human Rights (ECtHR) 45, 183, 332, 420, 429, 453 case law of influence of UN Convention on the Rights of Persons with Disabilities on 421–2 dialogue with Court of Justice of the European Union 422–30 European Day of Persons with Disabilities 102 European Development Fund (EDF) 388 European Disability Action Plan (2003–2010) 17–19, 18, 154–5 European Disability Forum (EDF) 26, 76, 81, 100, 194, 255, 456 European disability movement 100 European Disability Pact 26 European Disability Strategy 2010–2020 (EDS) 2, 12, 25–7, 86, 97, 152, 207, 243, 264, 313, 325, 386, 418, 448 adoption of 448 Commission Communication 264 Directive on Web Accessibility 26 disability action plans 26 on electoral rights of people with disabilities 97–9 elimination of barriers to empower people with disabilities 25 Erasmus+ Programme 26 proposal for a European Accessibility Act 26 review of 86 European Economic and Social Committee (EESC) 95, 198 European Economic Area (EEA) 63–4 European Economic Community (EEC) 150, 184 European Economic Community (EEC Treaty) 344 European Elections for All petition 100 European Electronic Communications Code 225 European Employment Strategy (EES) 146, 157 European Instrument for Democracy & Human Rights (EIDHR) 388 European Maritime and Fisheries Fund (EMFF) 323 European Neighbourhood Instrument (ENI) 387 European Network on Independent Living 335 European Ombudsman 76, 81 European Pact for Mental Health and Wellbeing 332–3 European Parliament 20, 29, 80, 83, 94, 111, 173, 183, 328, 396 Conference of Presidents 84

democracy clauses 408 Disability Intergroup of 101, 102 Members of the European Parliament (MEPs) 101 Petitions Committee (PETI) 76 resolution on human rights 408 right to vote in 95–6, 103 European Parliament of Persons with Disabilities 100 European Pillar of Social Rights (EPSR) 9, 146, 338, 431, 456 influence on EU disability law 159–60 Principle 17 of 447 European Regional Development Fund (ERDF) 321 economic and social imbalances between Member States 324 investment programmes of 323 European Semester 149, 157, 160, 327, 396 Country-Specific Recommendations 327 employment policy documents of 162 European Social Charter (ESC) system 10, 418, 431–47, 457 on access to employment 438–9 transport, housing, cultural activities and leisure 439–40 Additional Protocol 433 Amending Protocol 433 Article 15 of 434–7 implementation of 447 collective complaints procedure 440–46 on education and vocational training 437–8 improvements in 435–7 merits and limits of 434–5 overview of 432–4 protection of the rights of persons with disabilities 440–46 on protection of the Right to Education 440–44 Revised Social Charter 433 improvements in Article 15 of 435–7 rights of persons with disabilities in 434–7 Statement of interpretation 439 European Social Fund (ESF) 158, 321 objectives of 321 European Social Fund Plus (ESF+) 339, 341 European Social Platform 101 European standardization body 248, 279 European Standardization System (ESS) 244, 261, 455 European Standards Organizations (ESOs) 244–5 European Structural and Investment Funds 25, 78 European Telecommunications Standards Institute (ETSI) 244

Index  467 European Territorial Cooperation projects 313 European Union (EU) Charter of Fundamental Rights (CFR) 2 Citizenship Report of 89 common commercial policy 397 Declaration of Competence in relation to Aarhus Convention 65 CRPD 57 Disability Action Plan 2003–2010 12 disability initiatives 122 disability strategies 12 enforcement mechanisms 57 non-discrimination and equality legislation 3, 21 policy-making agenda 12 ratification of the CRPD 12, 23–5, 26, 106, 121, 184 Regional Policy 321 European Union Agency for Fundamental Rights (FRA) 139, 376 European Union Solidarity Fund (EUSF) 325 European Year of People with Disabilities 18, 154 EU Structural and Investment Funds (ESI Funds) 321, 448 disability, non-discrimination and accessibility 329–31 implementation of 327 investment priority 323 objectives of 323 overview of 322, 323–5 regulations of Article 6 of 328 evaluation measures and auditing procedures 327–9 overview of 326–7 regulatory framework 2021–2027 337–42 social goals of 321 social inclusion 337 transitioning from institutional settings to community care 331–6 EU trade and investment agreements essential elements clauses 407–11 EU–Vietnam trade agreement (2019) 403 human rights and 398–402 impairments and societal barriers 396 non-execution clauses 407–11 preambular wording of 404–7 regarding social and environmental aspects 402 relationship of mutual indifference 396 relationship with disability 396–413 rights of persons with disabilities 397–404, 408, 411–12

and sustainable development 402–4 EU–Vietnam trade agreement (2019) 403 fair sharing of responsibility, principle of 365 food security 383 forced displacement 359–60 forced migration 48, 359 free movement of people Article 45 TFEU on 116 cross-border movement 164 notion of 168 principle of 103, 184 within a single State 111 free movement, right of 94 free trade agreements (FTA) 397 social impacts of 402 Functioning of the European Union (TFEU) Article 19 of 1 fundamental rights policy, development of 77, 80 gender discrimination 125 Gender Equality Strategy 2016–2019 98 gender pay gap 402 General Block Exemption Regulation (GBER) 10, 303, 311–18 General Guidelines on Operational Priorities for Humanitarian Aid 367 General Industrial Classification of Economic Activities within the European Communities (NACE) 277 genetic discrimination 122, 138, 142–4, 145 Geneva Convention (1951) 360, 363–4, 368 Global Compact on Refugees (GCR) 360, 361 Global Public Good and Challenges programme 389 Glor v Switzerland 420–21 goods and services access for disabled end-users 225–6 accessibility of communication 226 information 225–6 physical 227–8 social 223–4 affordability of 224–5 Green Paper on Copyright in the Knowledge Economy 205 gross domestic product (GDP) 338 Gross National Income (GNI) 324 Guberina v Croatia 427 Habitats Directive 66 Haegeman case 61 harmonized standards, idea of 234, 248–53, 260, 262, 279 health and safety law, in EU 146, 151–2, 163

468  Research handbook on EU disability law health-related rehabilitation 285 HK Danmark case 24, 37, 66–7, 128–9, 133, 137, 185, 189, 198, 416, 426 homeless, services for 291 Horizon Europe 320 human dignity right to 263 values of 127 humanitarian aid and relief 367, 381 human rights European Parliament resolution on 408 European Union trade and investment policy and 398–402 model of disability 417 treaties 72 inclusive equality, model of 121, 364 information and communication technologies (ICT) 245, 251, 263 accessibility requirements for public procurement of 255–6 disabled and elderly people’s access to 253–4 standards and the accessibility of 279–80 information, dissemination of 13 information paradigm 345, 352–4, 357 InfoSoc Directive (2001/29/EC) 9, 203–6, 215–16 infringement proceedings, against a Member State 69 Instrument contributing to Stability and Peace (IcSP) 388 Instrument for Greenland 388 Instrument for Nuclear Safety Cooperation (INSC) 388 Instrument for Pre-Accession Assistance (IPA) 325, 387 Integration Policies for People with Disabilities 417 integrity of the person, right to 263 intellectual property (IP) 201 Interhospitalière Régionale des Infrastructures de Soins (IRIS) 294 internal market legislation, use of 2 internal migration 111–12 Internal Security Fund 339 International Court of Justice (ICJ) 405 International Day of Persons with Disabilities 102 international investment agreements (IIA) 398 International Strategy for the Fourth Development Decade 405 inter-State citizenship 110 InvestEU Fund 320 James Elliott case 252 job creation 15, 321, 324

Joint Employment Report (JER) 161 joint ventures 272 judicial minimalism 112 knowledge-based economy 153 knowledge transfer 324 labour law, in EU Article 151 of TEFU 147 disability in 146–63 in EU employment policy 153–7 in EU social policy 149–53 on disability rights beyond 2020 157–62 employment policy initiatives and 146 European Employment Strategy (EES) 146 intergovernmental policy-making process 148 safety and workplace accommodations 149–51 social objectives of 147 social rights of workers 149 towards reintegration in the workplace 152–3 Treaty framework on 147–9 labour market 15, 108, 116, 152, 161, 165, 264, 439, 453 activation and inclusion for disabled people 155 lesbian, gay, bisexual and transgender community, social services for 291 lex loci domicilii 166 lex loci laboris 166 liberty and security of person, right to 31, 420 licensed rail journeys and services 188 life-cycle costing 281–2 Lisbon Agenda (2020) 153 Lisbon Council 22 Lisbon Strategy 153–5 employment objectives of 155 Lisbon, Treaty of (2009) 2–3, 22, 29, 150, 152, 173, 286, 318, 380, 398, 401 categorization of competences under 381 Protocol 26 of 300 Lomé IV case 381 low-carbon economy 323, 324 Low Voltage Directive 248 Luxembourg Court 115–17, 119, 415, 422–3, 425–6, 430, 459 Maastricht Treaty (1993) 13, 93, 105, 109, 202, 211–14, 344, 380 Malaga Initiative (2003) 417 market integration 158, 184 Marrakesh Directive 214–15, 457 Marrakesh Regulation 214–15, 457 Marrakesh Treaty 457

Index  469 EU and Member States’ implementation of 214–16 medical model of disability 4, 16, 21, 132, 316, 416 Members of the European Parliament (MEPs) 29, 94, 101 Member States of EU 1, 28, 81, 293, 431, 454 asylum system of 47 competences of 54, 148 cooperation between 148 creation of quality jobs within 155 declaration of competence 63 delimitation of 379 employment policies of 146 ERTA doctrine 61 harmonisation of electoral systems of 96 implementation of EU law in 34 infringement proceedings in the event of non-compliance by 76 Partnership Agreement 327 policy initiative on disability 15 proceedings under Article 258 TFEU against 62 provisions of the CRPD binding on 66–70 Representatives on Disability 18 responsibility-sharing among 361 right to stand for election in 96 solidarity-based welfare systems of 116 Memorandum of Understanding (MoU) 203, 206–10 Mental Disability Advocacy Center (MDAC) v Belgium 443–4 mental health disorders 46, 152–3 mentally ill persons, right to access medical facility 50 Millennium Development Goals (MDGs) 383 mixed agreements, in EU law 23, 52–5, 60–65, 68, 70, 221, 454, 459 Molenaar case 176–9 Most Economically Advantageous Tender (MEAT) 275, 280–82 Mox Plant case 57, 64–5, 70 Mutual Information Directive 248 national borders, concept of 105 national citizenship concept of 107–9 versus Union citizenship 109–13 national competence 55 national courts, of Member States 30 National Disability Councils 101 national human rights institutions (NHRIs) 30, 72, 81, 389, 409 national welfare systems 114, 116–17 nation building 111

New Deal for consumers 345–6, 355 New Legislative Framework 251 non-discrimination law, in EU Commission’s 2008 proposal for 138–9 CRPD’s influence on 122 disability in 121–45 EU equality and 145 future perspectives of 138–44 inclusive equality, model of 121 multiple and intersectional 140–42 prohibition of discrimination in EU primary law 122–4 purposes of 142 social-contextual 121, 145 non-discrimination, principle of 35, 116, 143, 263 non-financial business sector 235 non-governmental organizations (NGOs) 14, 81, 327, 356, 434, 440 non-tariff barriers 269, 277 normal life within the community, concept of 183 obesity discrimination 135 occupational diseases 152, 438 offence, in a state of ‘mental disorder’ 50 Office of the United Nations High Commissioner for Human Rights (OHCHR) 92 Official Journal (OJ) 3, 234, 251, 449 online dispute resolution (ODR) 347 open method of coordination (OMC) 148 organisational cooperation costs 313 OSH Framework Directive 150 parenting support services 291 Paris Principles 79–80, 82, 87 Partial Agreement in the Social and Public Health Field 417 partnership and cooperation agreements (PCA) 382, 397 Partnership Instrument (PI) 388 Passenger Rights Regulations 224–6, 231 Patients’ Rights Directive 226 payment of annual subsidies 267–8 personal autonomy, values of 127, 180 persons of unsound mind 49, 420 persons with disabilities 16, 77 abilities of 18 difference with persons with reduced mobility 198 EDS strategy to empower 25 electoral rights of 97–9 employment of 129, 155 human rights of 106 integration of 22 social and occupational 36 in labour market 18

470  Research handbook on EU disability law offence committed in a state of ‘mental disorder’ 50 political participation of see political participation, of people with disabilities political rights of 92 poverty reduction of 26 protection of rights of 1–2, 22, 31, 36, 188 under Charter of Fundamental Rights of the EU (CFR) 45–8 within the EU legal order 34 in European arrest warrant proceedings 50 under European Social Charter (ESC) system 444–6 people accused of crimes 48–51 people with intellectual and psychosocial disabilities 50 persons of unsound mind 49 right of access to a lawyer in criminal proceedings 50 right to integration of 263 risk of being persecuted 359 social barriers encountered by 188 social care programmes for 295 social exclusion of 163 social security system for 164, 181 unemployment rates for 158 as vulnerable individuals 453 under EU Secondary Law 290–92 persons with reduced mobility (PRM) 186, 188 definition of 188–9 difference with people with disabilities 198 Pflegeversicherungsgesetz 176, 177 Philippines Borders Management case 382 Philippines PCA case 382 political and public life, right to 91–3 political participation, of people with disabilities collective participation 99–102 Disability Intergroup 101 Disabled Persons’ Organizations (DPOs) 100–101 European Day of Persons with Disabilities 102 European Social Platform 101 mechanism related to the implementation of the CRPD 102 concept of 89 CRPD as the global normative standard for 91–3 electoral rights 97–9 EU legal framework on 93–7 Charter of Fundamental Rights of the European Union (CFR) 94–5 EU secondary legislation 95–7

EU Treaties 93–4 international legal framework of 91–3 right to vote 89–90, 95–7 soft law measures for 91, 97–9 Portugal v Council 382 post-industrial societies, social problems of 402 post-national citizenship 105 poverty eradication 382–6, 391, 394 poverty reduction, of persons with disabilities 26 preferential fiscal treatment 267–8 private and family life, right to 183, 427 profit maximization 269 Programme of Action of the World Conference on Human Rights 405 proportionality, principle of 31, 39–40, 125 psycho-social care for persons with disabilities 295 psychosocial disabilities 45–7, 50–51, 90, 158, 234, 295 public electronic communications networks 225, 229 public markets 268–9 public–private partnership 244 public procurement application of directives 273 competitiveness and transparency in 269 as driver of public service delivery 268–74 European integration process and 268 function of 268–74 information and communication technologies 279–80 of information and communication technology 255–6 notion of accessibility as priority light-regime contract 275 reserved public contract 275 principle of universality in public service delivery 265 public service contracts 272 regulation of discretion in 274–82 economic justifications for 269 in European Union 269 notion of public contracts through 273–4 State through the prism of 270–73 Single Market Act (2011) 268 strategic importance of 268 sui generis markets 269 public sector, concept of 265 Public Sector Directive 272, 281 Public Sector Procurement Directive 275 Public Sector Web Accessibility Directive 449 public security, safeguarding of 34 public service contracts 272 award criteria for 280–81

Index  471 Most Economically Advantageous Tender (MEAT) 282 concept of 274 contract compliance as a safeguard of accessibility 276 life-cycle costing 281–2 notion of accessibility 275 quality assurance standards 276–9 technical standards and specifications 276–9 through public procurement regulation 273–4 public service obligations 266–7 public services, related to disability 284–300 accessibility for persons with disabilities 285 case law and 287–9 CRPD provisions related to 284–5 current regulation of 284 delivery of 265–6 principles of accountability and transparency in 268 under EU law 284 primary law 286–7 secondary law 287–9 financing of 267 obligation in Member States 268 payment of remuneration for 268 person-oriented services 289 as platform for accessibility 265–8 public procurement see public procurement Services Directive (Directive 2006/123/EC) 287 services of general economic interest (SGEI) 284, 286 social services of general economic interest (SSGEI) 284, 289–93, 453 State aid in the form of public service compensation 290 sui generis nature of 268 universal access and user rights 286 public works contracts, concept of 274, 278 Qualification Directive 2011/95/EU 360, 365, 368–70 objectives of 368 quality assurance 276–9 quality of life 16, 321, 331, 418 ratione materiae 129, 134, 140, 142, 145 reasonable accommodation 196 adoption of 425–30 concept of 118, 195–7, 314, 415, 430 CRPD’s definition of 129, 139 Directive 2000/78 on 126 duty of 127–30 Employment Equality Directive (2000) on 124–30

EU versus international disability law on 450–51 health and safety law 151 HK Danmark case 128–9 reasonableness, concept of 130 Reception Directive 2013/33/EU 360 refugee crisis 360, 365 refugee, definition of 368 regional integration organization (RIO) 60, 87, 121, 384 Regulation on Customs Duty Reliefs 224 reintegration in the workplace, policy towards 152–3 religious discrimination 125, 130 remuneration for services, under a public contract 268 Rental Directive 215 rental subsidy schemes 296 Research, Development and Innovation (RD&I) projects 320 resource allocation 197 rights of disabled persons 401, 408, 422, 435 in cases of forced migration 48 to participate in social, cultural and political life 186 Regulation 1107/2006 concerning 187 when travelling by air 229 Right to Education under Revised European Social Charter 440–44 special education sector 441 Rio Declaration on Environment and Development (1992) 405 risk-based system, for invalidity benefits 166 risk management 151 Rome Treaty (1957) 13, 321, 379 Ruiz Conejero case 137 safety and workplace accommodations Directive 89/654/EEC 151 policy on 149–51 safety net for citizens 289 sectoral policies, of the EU 266 self-employment 20, 125 services of general economic interest (SGEI) 266, 284, 286, 288 characteristics of 289 sex-based discrimination 141 shared competence, between the EU and its Member States 121 sheltered employment, for disabled workers 297 sheltered employment programmes 275 sickness and invalidity benefits 165–9 coordination rules 165–7 da Silva Martins case 178–9

472  Research handbook on EU disability law gaps in the coordination rules 167–8 medical examinations 168–9 mutatis mutandis 181 notion of 177 Regulation 883/2004 180 stricto sensu 179–80 Single European Act (SEA, 1986) 13, 150 Single Market Act (2011) 268–9 small and medium enterprises (SMEs) 235, 245 Small Arms and Light Weapons case 382 social assistance 175 social assistance services, for migrants 175, 291 social citizenship 184 notion of 8, 106, 109, 119 social exclusion 3, 305, 332 fight against 293 of people with disabilities 163 risk of 346 social housing schemes 296 ‘social impact’ assessment 402 social inclusion 161, 187, 191, 314, 325, 330, 337 Action Plan for Social Inclusion 18 Europe 2020 Strategy on 26 of vulnerable groups 291, 297 social integration services, for people with disabilities 291, 453 Social Investment Package 332, 333 social justice 3, 389 social market economy 3, 149, 396 social model of disability 16–17, 20–21, 27, 142, 200, 416, 450 social rights creation of 109 justiciability of 32 of workers 149 social security 164 exportability of mixed benefits 171 hardship clause 174 Hendrix case 174 Jauch ruling on 173 legal–political controversy over 170 long-term care benefits 175–81 Molenaar case 176–9 new coordination regime for 180–81 payment of a monthly allowance 176 pension scheme 172 for persons with disabilities 181 Pflegeversicherungsgesetz 177 Piscitello ruling on 171–2 Regulation 883/2004 176–9 Regulation 1408/71 172 sickness and invalidity benefits 165–9 coordination rules 165–7 gaps in the coordination rules 167–8 medical examinations 168–9

sickness benefits 177 special non-contributory cash benefits 169–75 coordination regime for 170–74 current coordination regime for 174–5 tax-funded allowance 171 unemployment benefit 167 social services of general economic interest (SSGEI) 284, 289–93, 453 Block Exemption Regulations 290 defined by 290 European Commission 297–8 Member States 294–6 EU Secondary Law on 290–92 examples of 293–8 person-oriented services 289 public services related to disability as consequences of defining 292–3 qualification of 292 social services of general interest (SSGI) 267, 284 Third Biennial Report on 290 socio-therapeutic care services 295 soft law, use of 1 solidarity-based social systems 114 solidarity, principle of 365 ‘special needs’ groups 296 Special Rapporteur on the Rights of Persons with Disabilities 401 Standardization Policy, of EU 244–5 European Standardization System (ESS) 244 fair, reasonable and non-discriminatory basis (FRAND terms) 247 future challenges 258–61 ensuring participation by people with disabilities 259–61 service standards 258–9 history of 248–9 and legal order 246–53 mandates of accessibility requirements for public procurement in ICT (Mandate 376) 255–6 accessibility requirements for public procurement in the built environment (Mandate 420) 256 Design for All in relevant standardization initiatives (Mandate 473) 257 disabled and elderly people’s access to ICT products (Mandate 273) 253–4 standards promoting barrier-free design (Mandate 283) 254–5 New Approach Directives 249, 251 New Legislative Framework 251

Index  473 objective of 249 presumption of conformity 249 promoting barrier-free design (Mandate 283) 254–5 Standardization Regulation (2012) 249–51 Annex III of 250 Annex II of 251 Article 8 of 251 Recital 3 of 249 Recital 24 of 249 status of harmonized standards in EU Law 251–3 supporting disability policy 245–6 Treaty provisions related to 246–8 World Trade Organization’s ‘founding principles’ for 249 state aid law, of EU 301 contribution to implementation of the CRPD 311 De minimis Regulation 302–3 on disability-related benefits and allowances 307 for employment of workers with disabilities 314–16 Enabling Regulation 320 to enhance accessibility of cultural heritage and cultural products 317–18 General Block Exemption Regulation (2008 GBER) 303, 310 adoption of people-first language 313 Article 53(4)(c) of 318 Article 53(4)(d) of 318 Commission Regulation (EU) 651/2014 (GBER) 311 disability features in 311, 312–14, 319 as tools to promote employment 313 as tool to protect the rights of persons with disabilities 311–18 to promote the rights of people with disabilities 304–7 aid having a social character 305–7 under Article 107(2) TFEU 304–5 under Article 107(3) TFEU 307–11 for transport for residents of remote regions 314 Stoian v Romania 429 Strasbourg Court 45, 49, 414–15, 420–21, 424, 430, 453 Strategy on the Rights of Persons with Disabilities 2017–2023 (CoE Strategy) 418–19 Structural Funds 330, 333–4 subsidiarity, principle of 55 supranational safety net 118

sustainable development 321, 457 Agenda for Sustainable Development (2030) 403 concept of 383 European Union trade and investment policy and 402–4 social and environmental pillars of 398 Sustainable Development Goals 396, 403 technical assistance 280, 393 technological measures of protection (TMPs) 202 territory, concept of 105 third-country national (TCN) 113, 119, 368, 370 Trade-Related Aspects of Intellectual Property Rights (TRIPS) 63 trans-European networks 228, 239, 242 trans-European transport network (TEN-T Regulation) 228 Transnational Trade and Investment Partnership (TTIP) 403 Article 8 of 403 Transparency Directive 248 transport legislation, in EU on accessibility of transport 182 Botta v Italy 183–4 and case law of CJEU 186–93 key provisions in 187–91 on public transport system 183 on rail travel 188 recent and future developments 194–9 relevance of the CRPD to 183–6 on rights of disabled persons 187 passengers in bus and coach transport 188 passengers travelling by air 187 persons with reduced mobility 187 rail passengers 187–8 sea and inland waterway passengers 188 on right to access transportation 186 secondary legislation 186–93 Regulations 181/2011 187–93 Regulations 1107/2006 187–93 Regulations 1177/2010 187–93 Regulations 1371/2007 187–93 selected challenges in 191–3 social rights afforded to EU citizens 183 soft law provisions 193–4 Universal Design (UD) principles 182 on usability of services 182 White Paper on European transport policy (2001) 186 treaties with investment provisions (TIP) 398 Treaty Establishing the Economic Community Article 51 of 114

474  Research handbook on EU disability law Treaty Establishing the European Community (TEC) Article 13 of 122 Article 118a of 15 Treaty on European Union (TEU) 423, 431 Article 2 of 337 Article 3 of 148, 396 Article 6 of 29, 123 Article 21(2) of 381 Article 37 382 Treaty on the Functioning of the European Union (TFEU) 164, 266, 364 Article 10 of 337, 396 Article 19 of 19, 42, 57, 229 Article 20 of 183 Article 20(2)(b) of 93–4 Article 50 of 287 Article 80(2) of 229 Article 106(2) of 284 Article 107(1) of 297, 301 Article 107(2) of 304–5 Article 151 of 147 Article 169 of 344 Article 175 of 328 Article 216(1) of 53 Article 258 of 62 EU citizenship under 106 proceedings against Member States 62 provisions on disability 122 standardization 246–8 on right to move between States 111 on State aid in the form of public service compensation 290 vulnerable individuals 453 UK Public Service Vehicle Regulations 197 UN Committee on the Rights of Persons with Disabilities see CRPD Committee UN Convention of the Rights of a Child 332, 344 UN Convention on the Rights of Persons with Disabilities (CRPD) 4–6, 12, 30, 90, 118, 146, 175, 245, 284, 303, 325, 360, 363–4, 379, 403, 431, 448–50 Article 1 of 24 Article 19 of 190 Article 27 of 157 Article 29 of 306 Article 32 of 394 Article 33 of 71 application of 78 as a driver of the paradigm shifts 72–3 interpretation of 73–5 Article 44 of 60 case of obligatory mixity 55–61

Code of Conduct 24, 58, 77 modus operandi established in 59 types of 59 Council Decision 2010/48/EC 23 Council’s decision on accession to 58 definition of ‘disability’ under 67 dimensions of accessibility under 222–3 effects and spill-overs on labour and employment policies 448–9 enforcement of 71 and EU asylum law 366–8 EU framework for monitoring architecture laid down in Article 33 CRPD 72–3 evolution of 82–4 interpretation of Article 33 CRPD 73–5 under scrutiny of UN Committee 78–82 setting up of 75–8 tasks of 76 European Union’s accession to 106 EU’s Declaration of Competence in relation to 57 human rights model of disability 121 human rights obligations of 211 impact on policy-making 73 implementation of 454 influence on EU disability law 157–8 infringement proceedings based on 69–70 as an integral part of EU Law binding on the Member States 66–70 interplay with Charter of Fundamental Rights of the EU (CFR) 43–5 jurisdiction of CJEU to interpret 52 jurisprudence related to Article 4 CFR 47 mixed agreements in EU Law 52–4 on nationality and registration at birth 55 negotiation, ratification and implementation of 56–9 non-binding recommendations 58 objectives of 55 Optional Protocol (OP-CRPD) 52, 57, 291, 384, 418 preliminary references related to 66–9 quasi-constitutional status in EU legal system 124 ratification of 12, 23–5, 26, 121, 184 ratione materiae 129 reasonable accommodation duty 129 regional integration organization (RIO) clause 59–61 repercussions of for EU law obligations of member states 61–6 on right to participate in political and public life 91–3

Index  475 status in the hierarchy of EU law 24 UN Convention relating to the Status of Refugees 360, 361–3 UN Convention Relating to the Status of Refugees see Geneva Convention (1951) UN Decade of Disabled Persons 1983–1992 17 undue burden, concept of 115, 128, 196–8, 200, 364 unemployment caused by accidents at work 152 occupational disability and 152 of persons with disabilities 158 youth unemployment 156 Unfair Commercial Practices Directive 226 UN General Assembly 361, 363 UN High Commissioner for Refugees (UNHCR) 359 Guidelines on Sexual Orientation and Gender Identity 369 United Nations Convention on the Law of the Seas (UNCLOS) 57, 65, 70 United Nations Educational, Scientific and Cultural Organization (UNESCO) 217 United Nations Office for Disaster Risk Reduction (UNDRR) 359 Universal Declaration of Human Rights 399, 433 Universal Design (UD) 182, 261, 264, 418 Universal Service Directive 225, 227, 229–31, 287 universal service obligations 266–7 UN Special Rapporteur on disability 92 UN Standard Rules on the Equalization of Opportunities for People with Disability (Rules) 17 Utilities Procurement Directive 270–71, 277 Valentin Campeanu v Romania 422 Validity Foundation 335 Value Added Tax (VAT) Directive 224 Vienna Convention on the Law of Treaties (VCLT) 406 Vienna Declaration (1993) 399, 405 vocational training 20, 128, 322 access to 442

of disabled persons 435, 437–8 voting rights 60, 89–90, 94 in European Parliament 95–6, 103 vulnerability of asylum seekers 453 concept of 450 EU versus international disability law on 451–4 of people with disabilities 453 vulnerable consumer 228–9, 345–6, 350, 352–3, 357, 452–3 vulnerable groups 452–3 care and social inclusion of 290, 295, 453 people with disabilities as 290–92, 452 vulnerable persons, protection of 50 wage subsidies 308, 314–15, 319 Web Accessibility Directive 233–4, 238, 240, 449 welfare state, idea of 108–9, 118 White Paper on European transport policy (2001) 186 Winterwerp v Netherlands 49 worker with disabilities 313, 315 Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP) 77 Working Party on Human Rights (COHOM) 77 Working Party on Social Questions 77 work–life balance 160, 162 World Blind Union (WBU) 211 World Conference on Women 399, 405 World Federation of the Deaf 196 World Health Organization (WHO) 359 World Intellectual Property Organization (WIPO) International Bureau 213 Internet Treaties 201 World Trade Organization (WTO) 54 ‘founding principles’ for standardization 249 Youth Guarantee 156 Council Recommendation on establishing 156–7 Youth on the Move initiative 156 youth unemployment 156