More Back-Slapping Than Soul-Searching: The European Commission’S Reflections On The Un Convention On The Rights Of Persons Amongst Disabilities

Dr. Charlotte O’Brien, Lecturer inwards Law, York Law School, University of York

More than vii years on from signing the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), together with 3 together with a one-half years on from conclusion of the Convention, how is the European Union doing on protecting the disability rights contained therein? Extremely well, according to the European Commission. So well, inwards fact, it seems the UNCRPD was barely necessary at all, since the European Union was doing the correct things anyway. But this self-analysis – inwards the Commission’s first report on implementation of the UNCRPD – is unsurprisingly partial, inwards both senses of the word, beingness both predisposed to the Commission’s viewpoint, together with incomplete.

The study is a serial of responses to each article of the Convention, capturing unopen to chemical constituent of European Union activity. There is no department addressing the overall picture, or what is missing, or what needs to last done. The focus is on the patchy assemblage of areas inwards which disability has been (however peremptorily or indirectly) considered past times European Union police – together with non on the meaning gaps. It is tricky to differentiate betwixt those activities that the Commission consider to follow from the UNCRPD, together with those that were happening anyway, specially every bit in that location is a heavy reliance on the EU Disability Strategy. The Strategy document does refer to the UNCRPD several times – but makes only 1 refer of it inwards the ‘areas for action’ of accessibility, participation, equality, employment, didactics together with training, social protection together with health.

The message does appear to last that noun Convention duties were largely beingness discharged, together with the Convention has inspired unopen to procedural refinement.  For example, on assessing the Commission’s internal rules together with practices, the Commission ‘concluded that they were inwards line with the missive of the alphabet together with the spirit of the CRPD. However, the review highlighted the demand to offering additional guidance to services on the application of reasonable accommodations.’

Some of the most meaning issues which emerge from, but are non engaged with in, the study are: (i) the difficulty European Union institutions take away maintain had breaking away from a medical model of disability; (ii) the continued exclusion of disabled migrants from gratis displace rights; (iii) the limits of discrimination law; (iv) the detrimental impact of the EU-wide austerity agenda on disabled citizens; together with (v) the operate of non-justiciable measures together with initiatives, combined with a dearth of impact evidence. 

(i)  The EU’s persistently medical model of disability

The study states that inwards the HK Danmark cases the CJEU adopted the UNCRPD Definition of disability, combining medical harm with ‘physical, mental or psychological impairments which inwards interaction with diverse barriers’ create limitations that ‘hinder the amount together with effective participation of the individual concerned inwards professional person life on an equal basis with other workers’.

But this was non simple adoption of a to a greater extent than social model – the Court together with therefore conflated impairment with the limitation (i.e. the disability) that ensues next interaction with social together with environmental barriers – a confusion repeated inwards this report. Despite the references to social together with environmental barriers, the Advocate General together with the Court focused on harm together with barriers were non considered.

The same approach of name-checking the UNCRPD Definition without engaging with its inwardness was taken inwards the surrogacy case (C-363/12 Z), inwards which a adult woman whose medical status prevented her from carrying children was to take away maintain a babe through a surrogate woman raise together with wished to take away maintain motherhood leave. The exclusion of such women from motherhood exit rights presented an ideal chance to engage with the thought of socially created disability – every bit hither was a status that inwards itself mightiness non last disabling, but on interaction with work rules became a rootage of disadvantage, or limitation, inwards the workplace. But the Court insisted that an harm must last a disability in itself  - finding that ‘it is non apparent from the venture for reference that Ms Z.’s condition past times itself made it impossible for her to behave out her piece of work or constituted a hindrance to the exercise of her professional person activity.’

It is non exactly the Court that struggles. The study refers to the ‘social concept of disability’, but relies throughout upon a real medico-economic standpoint – necessarily reflecting the impairment-centric approach of the legislation cited. The General Block Exemption Regulation (a substitution mensurate inwards European Union solid set down assistance law) defines disability every bit someone recognized nether national police every bit disabled, or someone who has ‘a recognised limitation which results from physical, mental or psychological impairment’. 

(ii) Cross edge mobility

The study is a niggling evasive together with misleading every bit to the gratis displace rights of disabled European Union citizens. After noting the exclusion of European Union migrants cast social assistance for the starting fourth dimension 3 months inwards a host state, it goes on to add together that ‘if they lawfully reside in that location for menses longer than 3 months, European Union citizens are entitled to social assistance benefits on an equal basis with nationals of the Member State concerned.’ But inwards the UK, European Union migrants take away maintain to gibe inwards to 1 of the categories of Article 7 of Directive 2004/38 of the citizens’ Directive (ie, the grounds for an European Union citizen to reside for to a greater extent than than 3 months inwards unopen to other Member State) inwards venture to last considered lawfully resident. So someone considered economically inactive (and disabled persons are disproportionately to a greater extent than probable to last therefore considered) volition non last entitled to social assistance. The Report does add together the caveat that ‘in specific cases where government take away maintain a reasonable uncertainty that the European Union citizens concerned may instruct an unreasonable burden on their social assistance system, they may assess the private province of affairs taking into business concern human relationship all relevant circumstances together with the regulation of proportionality, together with could, on this basis, terminate the correct of residence of the persons concerned.’ But, for certain inwards the UK, refusal of benefits to economically inactive European Union migrants is routine, together with mandated past times police – it is non exactly inwards ‘specific cases’. Nor is in that location recourse to a discretionary assessment of ‘all the relevant circumstances’ or operate of ‘proportionality’.

Disabled persons are likewise disproportionately to a greater extent than probable to last inwards receipt of special non-contributory benefits (SNCBs), but next the CJEU’s judgment inwards Case C-140/12 Brey, they cannot rely on this entitlement to debate that they are self sufficient together with non reliant on social assistance, together with therefore tin likewise last excluded from equal access to SNCBs. Equal access to benefits inwards the host solid set down is non the only obstacle. The social safety coordination regime likewise excludes social assistance together with SNCBs from exportation rules, therefore that recipients are helped past times neither abode nor host state.

(iii) The limits of discrimination law

Disability equality rights are express to Directive 2000/78, the work equality Directive, which ensures equality on grounds of disability, age, sexual orientation together with organized faith every bit regards work together with occupation. The study notes that inwards 2008 the Commission seat forwards a proposal to extend non-discrimination beyond employment, together with exactly concludes that ‘the proposal is nether negotiation inwards the Council, where the unanimous vote of the Member States is required for its adoption’. It does non instruct inwards into the protracted, tortuous road it has taken, or its menses of dormancy, or its recent revival, the continued Council controversy, or the plainly vanishing likelihood of unanimous approving e'er beingness reached. As of this month, the disability provisions every bit a whole were silent 1 of the ‘outstanding issues’.

(iv) Austerity together with poverty

In pushing an austerity agenda, the European Union draws upon the logic of flexicurity together with activation, to pressure level Member States into reducing their welfare expenditure together with focus on pushing the disabled into the workplace. The Report notes that the seat of the Disability Strategy is that ‘quality jobs [are] the best protection against poverty for disabled people’. However, welfare retrenchment strategies tend non to promote ‘quality’ jobs, but any jobs, together with penalize those whose circumstances arrive harder for them to discovery work.  The study notes that severe textile deprivation increased with disabled people betwixt 2010 together with 2011, from 10.9 to 12%; an increment 2.75 times greater than that experienced past times non-disabled people.  But the study does non propose a reply to this disability-inflated poverty take away chances increment or connect it to social protection policies. Moreover, many welfare reforms volition take away maintain only started to seize with teeth since 2011.

On pinnacle of this, in that location are of import questions most the disproportionate impact of poverty upon persons with disabilities, who without fiscal agency may last to a greater extent than probable to last disempowered through family-based back upwardly or institutionalization. On beingness asked inwards the European Parliament most the prospects of increased institutionalization, Commission Vice-President Viviane Reding has suggested that the remedy lies inwards the Commission’s work policies, which inwards the context of persons requiring substantial care, together with inwards an work environs silent real poorly adapted to disability, seems to last an illustration of ardent ideological faith rather than realistic projection.

(v) Measures without impact bear witness

The study is replete with references to not-easily-actionable sources, together with softer measures, such every bit those which ‘encourage Member States’, without explanation every bit to the grade – or the success – of ‘encouragement’. It relies fairly heavily on the Charter of Fundamental Rights, but does non engage with the query of if together with how disabled people tin truly access the rights declared within, given the limitations built into the Charter together with the wariness of courts to discovery it tin create whatsoever correct that does non be elsewhere. The Charter could good silent attempt a valuable interpretative prism – but it would last helpful had the study engaged inwards the practical utility question. Where to a greater extent than clearly justiciable instruments are referred to, the relevant text every bit it affects disabled people is oft plucked from recitals, suggesting that they do non reside inwards the to a greater extent than easily invoked Article based provisions, together with raising questions over the grade to which individuals tin rely only on recitals.

Some of the activities cited are conspicuously outcome-light – such every bit the preparation of the now-stymied Directive extending non-discrimination law, or the mandates to draft accessibility standards for the built environs issued inwards 2007 and 2010. The study notes that they take away maintain non yet led to the standards beingness drafted, together with does non offering whatsoever insight into whether attempts are beingness made to do so. While pointing to (excellent) reports by the Fundamental Rights Agency on issues such every bit rights to independent living together with political participation, the study does non highlight the conclusions or recommendations of those reports, or propose what follow upwardly activeness is to last taken. The frequent references to the European Disability Strategy, together with associated awareness campaigns (33 mentions of raising awareness), Pb us to inquire what effects these are truly having, together with how the Commission is mensuration the impact of its activities.  The study does listing the Commission’s generic information gathering activities, but in that location is no refer of indicators of the success of its ain policies together with ‘soft’ measures.

As anyone who has been through the recent Research Excellence Framework procedure inwards a U.K. academy volition know, impact is non simply most maxim y'all volition brand things available, or tell people stuff. We take away maintain to demonstrate that doing therefore makes a difference; it does non appear unreasonable to await the same of the Commission. Such a task mightiness avoid the pitfall of constructing a complacent defense forcefulness of the status quo, together with mightiness instead encourage an active identification of things that demand changing.

Some of the ideas presented hither are developed inwards to a greater extent than particular inwards ‘Article 26: Integration of persons with disabilities’ inwards Peers, Hervey, Kenner together with Ward (eds), Commentary on the European Union Charter of Fundamental Rights (Hart: Oxford, 2014), together with ‘Union citizenship together with disability: restricted access to equality rights together with the attitudinal model of disability’ inwards D. Kochenov (ed) Citizenship together with Federalism inwards Europe, CUP, forthcoming.

Barnard & Peers: chapter 9, chapter 20 

Share this post