Dr. Charlotte O’Brien, Lecturer in Law, York Law School, University of York
Over seven years after signing the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and over three years after its conclusion, how effectively is the EU safeguarding the disability rights outlined within it? The European Commission claims it is doing very well. In fact, it suggests the UNCRPD was hardly necessary, as the EU was already on the right track. This self-assessment, presented in the Commission’s first report on UNCRPD implementation, is unsurprisingly biased and limited, reflecting the Commission’s perspective and lacking a complete picture.
The report responds to each article of the Convention, highlighting some EU activities. However, it fails to provide a comprehensive overview, identify shortcomings, or outline necessary actions. The focus is on the fragmented areas where EU law considers disability, directly or indirectly, neglecting significant gaps. It’s difficult to discern actions taken specifically due to the UNCRPD versus pre-existing efforts, especially given the reliance on the EU Disability Strategy. While this strategy document mentions the UNCRPD, it only does so once regarding accessibility, participation, equality, employment, education, social protection, and health.
The underlying message seems to be that the EU was already fulfilling most of its obligations, with the Convention prompting minor procedural adjustments. For example, the Commission claims its internal rules and practices align with the Convention’s spirit and letter but acknowledge a need for additional guidance on reasonable accommodations.
Several crucial issues emerge from the report but remain unaddressed: the challenge EU institutions face in moving away from a medical model of disability; the ongoing exclusion of disabled migrants from free movement rights; the limitations of discrimination law; the adverse effects of EU-wide austerity measures on disabled citizens; and the reliance on non-justiciable measures and initiatives without sufficient impact assessment.
(i) The EU’s persistent medical model of disability
The report states that in the HK Danmark cases, the Court of Justice of the European Union (CJEU) adopted the UNCRPD definition of disability, combining medical impairment with ‘physical, mental or psychological impairments which in interaction with various barriers’ create limitations hindering ‘full and effective participation… on an equal basis.’
However, this adoption of a more social model was flawed. The Court conflated impairment with the limitation (i.e., the disability) arising from interacting with social and environmental barriers, a confusion echoed in the report itself. Despite mentioning these barriers, both the Advocate General and the Court primarily focused on impairment.
This approach of acknowledging the UNCRPD definition without meaningfully engaging with its substance was evident in the surrogacy case (C-363/12 Z). This case involved a woman unable to bear children due to a medical condition who opted for surrogacy and wished to take maternity leave. The exclusion of such women from maternity leave presented a prime opportunity to explore the concept of socially constructed disability. Here, a condition, not inherently disabling, becomes disadvantageous within the framework of employment rules. However, the Court maintained that an impairment must be a disability in itself, stating that it wasn’t evident that Ms. Z’s condition inherently prevented her from working.
This struggle isn’t limited to the Court. Despite mentioning the ‘social concept of disability,’ the report consistently relies on a medico-economic perspective, reflecting the impairment-centric approach of the cited legislation. For instance, the General Block Exemption Regulation, a crucial EU state aid law measure, defines disability based on national recognition or having ‘a recognised limitation… from physical, mental or psychological impairment.’
(ii) Cross border mobility
The report is somewhat unclear and potentially misleading about the free movement rights of disabled EU citizens. It acknowledges that EU migrants are excluded from social assistance during their first three months in a host state but asserts they become eligible for these benefits on an equal basis with nationals after residing legally for over three months. However, in the UK, EU migrants must fall under specific categories outlined in Article 7 of Directive 2004/38 to be considered lawfully resident for more than three months. Therefore, someone deemed economically inactive, a category disproportionately affecting disabled individuals, wouldn’t be entitled to social assistance. While the report notes that authorities can assess individual situations and potentially terminate residency rights if there’s reasonable doubt about an individual becoming an unreasonable burden on the social assistance system, in practice, especially in the UK, denying benefits to economically inactive EU migrants is routine and legally mandated, not just limited to specific cases. There’s no recourse to discretionary assessment or proportionality.
Disabled individuals are also more likely to receive special non-contributory benefits (SNCBs). However, following the CJEU’s judgment in Case C-140/12 Brey, they cannot use this to claim self-sufficiency and independence from social assistance, leading to their exclusion from equal access to SNCBs. Equal access to benefits in the host state isn’t the only obstacle. The social security coordination system also excludes both social assistance and SNCBs from exportation rules, meaning recipients are left without support from either their home or host state.
(iii) The limits of discrimination law
Disability equality rights are limited to Directive 2000/78, the employment equality Directive. This directive ensures equality based on disability, age, sexual orientation, and religion in employment and occupation. The report acknowledges the Commission’s 2008 proposal to extend non-discrimination beyond employment but merely states that the proposal is under negotiation in the Council, requiring a unanimous vote for adoption. It avoids discussing the proposal’s prolonged and complicated journey, its periods of inactivity, recent revival, ongoing Council disputes, or the diminishing likelihood of unanimous approval. Recent records indicate that the disability provisions remain a point of contention.
(iv) Austerity and poverty
In promoting austerity, the EU uses the logic of flexicurity and activation, pressuring member states to cut welfare spending and push disabled individuals into employment. The report notes the Disability Strategy’s stance that ‘quality jobs [are] the best protection against poverty for disabled people.’ However, welfare cuts often result in pushing any available jobs, not necessarily quality ones, and penalizing those who find it difficult to secure employment. The report recognizes the increase in severe material deprivation among disabled people between 2010 and 2011, a rise significantly higher than that experienced by non-disabled individuals. Yet, it offers no solutions to address this disproportionate poverty risk or connect it to social protection policies. Furthermore, many welfare reforms would have only begun to take effect after 2011.
Crucially, the disproportionate impact of poverty on disabled individuals raises concerns. Without financial resources, they may face higher risks of disempowerment through family-based support or institutionalization. When questioned in the European Parliament about the potential rise in institutionalization, Commission Vice-President Viviane Reding suggested the solution lies in the Commission’s employment policies. This response, given the need for substantial care for some individuals and the current employment environment’s inadequate adaptation to disability, appears to be driven by ideology rather than a realistic outlook.
(v) Measures without impact evidence
The report frequently cites sources that are not easily actionable and softer measures like ’encouraging Member States,’ without clarifying the extent or effectiveness of this encouragement. It relies heavily on the Charter of Fundamental Rights but fails to address how disabled individuals can access these rights in practice, given the Charter’s limitations and the courts’ reluctance to create new rights. While the Charter could be a valuable interpretative tool, the report should have explored its practical usefulness. When mentioning more readily enforceable instruments, the relevant text often comes from recitals rather than directly invokable articles, suggesting these provisions lack strong legal grounding and raising questions about their enforceability for individuals.
Some cited activities lack clear outcomes. Examples include the stalled Directive extending non-discrimination law and the 2007 and 2010 mandates to develop accessibility standards for the built environment. The report acknowledges that these mandates haven’t resulted in drafted standards and offers no insight into efforts to do so. While referencing valuable reports by the Fundamental Rights Agency on independent living and political participation, the report neither highlights their conclusions and recommendations nor suggests follow-up actions. The repeated mentions of the European Disability Strategy and related awareness campaigns raise questions about their actual impact and how the Commission measures the effectiveness of its activities. While the report lists the Commission’s general data collection efforts, it doesn’t mention indicators assessing its policies’ and ‘soft’ measures’ success.
As evident from experiences like the Research Excellence Framework process in UK universities, demonstrating impact goes beyond simply making information available or raising awareness. It requires showing tangible results. It’s reasonable to expect the same from the Commission. Such an approach might help avoid complacency and instead encourage actively identifying areas needing improvement.
Some ideas discussed here are elaborated in ‘Article 26: Integration of persons with disabilities’ in Peers, Hervey, Kenner and Ward (eds), Commentary on the EU Charter of Fundamental Rights (Hart: Oxford, 2014), and ‘Union citizenship and disability: restricted access to equality rights and the attitudinal model of disability’ in D. Kochenov (ed) Citizenship and Federalism in Europe, CUP, forthcoming.
Barnard & Peers: chapter 9, chapter 20