European mirror An examination of disability law in the EU

1. European mirrorAn examination of disability law in the EU James Malone // LSJ 434 // 02.28.2007

2. Major topics of this presentation • We will cover disability law in the European Union • Soft law in the EU • Hard law in the EU • Compare and contrast disability law in the EU • To United Nations treaties • To the ADA in the United States • Examine non-law instruments • Questions and answers

3. (very short) European Union primer Facts Policy structure Institutions

4. European Union // 2007 Supranational organization of European states Comprised of 27 (member) nations Dedicated to European Integration Approximately 48 million individuals in the EU have a disability 1/6 EU citizens claims disability

5. Structure of EU policies • EU Policies are split into three main ‘pillars’ • European Communities (EC) • Economic-oriented policies • Common Foreign and Security Policy (CFSP) • Police and Judicial Co-Operation in Criminal Matters (PJCC) • Policies on drug crime, organized crime and terrorism • Disability-related law can be found in the EC and CFSP pillars

6. Important EU institutions • The European Council of Ministers • Comprised of heads of state and ministers • Main policy creation body for the EU • European Commission • Drafts policy for the Council • European Parliament • Democratically elected MPs • Approves (with little power) Council actions • European Court of Justice • Adjudicates disputes to EU law and member disputes

7. Soft EU disability law European Convention on Human Rights European Convention on the Prevention of Torture European Social Charter

8. Origin of soft law in the EU • EU members have the option, at times, of signing and ratifying EU treaties • Process is similar to United Nations treaty ratification • Many EU treaties have no legally binding force • A lack of legal force means they are inherently soft • Unlike UN treaties, there are not usually Optional Protocolwhich give the treaty force

9. European Convention on Human Rights (ECHR) • Comprised of five protocols • Created in stages between 1950 and 1966 • To become an EU member, the ECHR must be nationally ratified • Is similar to two UN treaties • International Covenant on Civil and Political Rights (ICCPR) • International Covenant on Economic, Social and Cultural Rights (ICESCR)

10. ECHR vs. UN • The ECHR contains similarities to the ICCPR and ICESCR • All documents do not explicitly mention disability • All documents contain articles guaranteeing basic freedoms and negative rights • The ECHR has a specific legal body, the European Court of Human Rights, to investigate violations • Findings of this court are non-binding advisory opinions • Most importantly, rights in all documents can be read into cases dealing with disability

11. ECHR and disability law • Article 2 • Guarantees the right to life • Found in Article 6 of ICCPR • Article 3 • Safeguards due process and liberty • Found in Articles 9 and 10 of ICCPR • Article 6 • Prohibits torture and inhumane or degrading treatment • Found in Article 10 of ICCPR

12. ECHR and disability law (cont.) • Article 8 • Secures the right to privacy • Found in Articles 18, 19 and 22 in ICCPR • Article 14 • Prohibits discrimination • Found in Article 2 of ICESCR

13. Real application of ECHR • Price v. the United Kingdom • The UK did not allow a female prisoner with a disability to use her electric wheelchair • Male attendant was provided to assist bathroom trips • ECHR found both violated Article 3 • Botta v. Italy • Italy blocked access to beaches and did not provide accessible bathroom accommodations • Court found Article 8 required Italy to accommodate

14. European Convention for the Prevention of Torture (ECPT) • Ratified by all EU member states in 2002 • Allows members to modify their commitment at any time • Broadly prohibits torture and inhumane treatment • The ECPT is similar to the UN Convention Against Torture • Like the ECHR and CAT, the ECPT does not mention disability

15. ECPT and disability law • ECPT created the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment • The ECPTIDTP has been granted access to various state mental health facilities • As a result, the ECPT has been used to assess the ‘health’ of EU mental care facilities • All opinions from the ECPTIDTP are non-binding and a state may curtail access at any time

16. European Social Charger (ESC) • Has two different (notable) versions • Created in 1961 – did not mention disability • Ratified by all EU members • Amended in 1996 – does mention disability • Only ratified by 12 EU members • The ESC broadly guarantees social and economic human rights • The ESC is monitored by the European Committee of Social Rights (ECSR)

17. ESC compared to UN and US • The ESC provides a unique example where an existing document was amended • US and UN show new documents which were created to specifically deal with disability

18. ESC disability amendment • Article 15 of the ESC was amended to include disability: • 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:

19. ESC Article 15 • States must do the following (to facilitate mandate): • Provide guidance, education and training to individuals with disabilities • Promote access to employment (may require recourse or special placement) • Promote full social integration and participation

20. ESC Article 15 and the US/UN • Article 15 is similar to the following articles in the UN Convention on the Rights of Persons with Disabilities: • 16 (4) - Appropriate measures to promote the physical, cognitive and psychological recovery • 19 - Living independently and being included in the community • Article 15 echoes finding in US ADA US Congress in §12101(a)(8) on the need for integration

21. Use of the ESC in EU courts • Autism Europe v. France (13/2002 ECSR) • France segregated children with autism from the general school population • France did not integrate students when parents requested such action • ECSR held that France violated Article 15 of the ESC by purposely slowing integration • France should integrate children with autism

22. Hard EU disability law Framework Directive on Employment Discrimination Directive on Bus and Coach Design Public Procurement Directive

23. Origin of hard law in the EU • Hard law applies to all EU members equally unless specific exemptions or cases are created • Similar to federal law and US States • Slow movement towards hard law in the context of disability

24. Framework Directive on Employment Discrimination (FDED) • Adopted by the Council in 2000 • Loosely bans employment discrimination based on: • Religion • Belief • Disability • Age • Sexual orientation • FDED is very similar and different to the American ADA

25. Similarities between FDED and ADA • FDED is similar to Title I of the ADA which covers employment discrimination • Generally, the FDED prohibits discrimination in the hiring, employment and termination of individuals, including those with disabilities • Article 8 (2) of the FDED exempts the militaries within the EU

26. More (important) Similarities between FDED and ADA • In the US, Supreme Court cases have narrowed the scope of the ADA. • Article 4 of the FDED creates exemptions where it does not apply • Permissibility of discrimination based on occupational requirements “provided that the objective is legitimate and the requirement is proportionate.” • Formality of Sutton and Chevron-type restrictions

27. More (important) Similarities between FDED and ADA (cont.) • Article 5 of the FDED requires reasonable accommodation for individuals with disabilities • Unlike the ADA, reasonable accommodation is not well defined and left to member interpretation • Unlike ADA, failure to accommodate is not explicitly mentioned as discrimination (ECJ has no input yet) • Article 19 of the FDED requires the states to report on progress, similar to reporting provisions in the ADA (eg: Title II, §12209) • Private clubs and churches, like under ADA Title III, are exempt from the FDED

28. Important differences between the ADA and FDED • Unlike in the ADA, the term disability is not defined • Definition is left to member states under Article 2 (3) • The FDED applies to small businesses and self employment, whereas Title I of the ADA has exemptions • Article 7 in the FDED allows but does not require states to engage in equalization-oriented measures (affirmative action)

29. Important differences between the ADA and FDED (cont.) • Article 10 of the FDED places the burden of proof on the respondent to prove that discrimination did not occur • Articles 13 and 14 encourage information sharing and participation with NGOs • While the US ADA relies on federal agencies to propagate regulations, the FDED relies on member states

30. Tests of the FDED in courts • Archibald v. Fife Council (2004) • Does reasonable accommodation under the FDED and UK laws implementing the FDED allow modifying a test for an individual with a disability so they may be promoted to a new position as a result of their disability? • House of Lords held this was a reasonable modification. • This case expanded the scope of what constitutes a reasonable modification

31. (more) Tests of the FDED in courts • Sonia ChacónNavas v Eurest SA (2006) • If an individual is fired from their employment based on a relatively common sickness, did employment discrimination occur on the basis of disability? • No, this is not a case of discrimination. • Based on the exceptions of the FDED, the court reasoned the individual in question was “not competent, capable and available to perform the essential functions of his post.” • Like the ADA, the FDED has been expanded and curtailed in court cases

32. Directive on Bus and Coach Design • 2002 EU law mandating all buses and coaches produced in the EU pass an accessibility test • This directive is in light of the American experience of trying to make public transportation accessible • The intent of this directive is covered in Title III of the ADA

33. Public Procurement Directive of 2004 • This law guides the purchasing of member governments in the EU • This law creates the possibility for redistribution in favor of individuals with disabilities by authorizing specific mandates and requirements on products and services • This directive states that redistribution is optional

34. Guiding EU policy • The FDED is an excellent example for the need to guide EU member policy • The EU has been trying to harmonize national laws for better cohesion • Policy recommendations are normative suggestions to member governments

35. Leading EU policy on disability • Integration of Persons with Disabilities Unit in the Council of Europe • 2006-2015 action plan to further disability-related law within the EU • Recommendation R (92) on a Coherent Policy for Persons with Disabilities

36. Questions?

37. Additional resources • Ballinger, L. (2006, August 5). Bosses can reject job-seekers just because they smoke. Daily Mail, p. 27. • Bell, M. (2000). European developments. Article 13 EC: the European Commission's anti-discrimination proposals. The Industrial Law Journal, 29(1), 79-84. • Convention on the Rights of Persons with Disabilities. (2006). Retrieved February 10, 2007, from UN ENable Web site: http://www.un.org/esa/socdev/enable/rights/convtexte.htm • Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (2006). Retrieved February 10, 2007, from EUR-LEX Web site: http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod! • CELEXnumdoc&lg=EN&numdoc=32000L0078&model=guichett • Davies, J. (2003). A Cuckoo in the Nest? A 'Range of Reasonable Responses', Justification and the Disability Discrimination Act 1995. The Industrial LawJournal, 32(3), 164-184. • Disability Issues – Key Documents. (2007). Retrieved February 10, 2007, from EUR-LEX Web site: http://ec.europa.eu/employment_social/index/7003_en.html • GERMANY: EQUAL TREATMENT BILL TO PROVIDE BROAD PROTECTION AGAINST DISCRIMINATION. (2006, May 5). US Fed News Service, Including US StateNews, p. n/a. • Goldman, L. & Lewis, J. (2003). Employment's golden age. Occupational Health, 55(12), 12-14. • Quinn, G. R. (2007). “European Disability Law Outline.” Beijing, International Disability Law Seminar [Conference]. 11 Jan. 2007. • Rasnic, C. D. (2005). THE ADA-A MODEL FOR EUROPE WITH "SHARPER TEETH”? Labor Law Journal, 56(1), 59-67. • Wells, K. (2003). The Impact of the Framework Employment Directive on UK Disability Discrimination Law. The Industrial Law Journal, 32(4), 253-273. • Yenisey, K. D. (2005). Harmonisation of Turkish Law with EU'S Regulations in Respect of Equal Treatment. Managerial Law, 47(6), 235-256.