Title: European mirror An examination of disability law in the EU
1European mirrorAn examination of disability law
in the EU
- James Malone // LSJ 434 // 02.28.2007
2Major 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
4European 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
5Structure 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
6Important 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
7Soft EU disability law
- European Convention on Human Rights
- European Convention on the Prevention of Torture
- European Social Charter
8Origin 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 Protocol which give the treaty force
9European 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)
10ECHR 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
11ECHR 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
12ECHR 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
13Real 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
14European 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
15ECPT 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
16European 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)
17ESC 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
18ESC 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
19ESC 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
20ESC 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
21Use 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
22Hard EU disability law
- Framework Directive on Employment Discrimination
- Directive on Bus and Coach Design
- Public Procurement Directive
23Origin 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
24Framework 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
25Similarities 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
26More (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
27More (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
28Important 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)
29Important 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
30Tests 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 Chacón Navas 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
32Directive 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
33Public 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
34Guiding 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
35Leading 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
36Questions?
37Additional 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/e
sa/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?sm
artapi!celexapi!prod! - CELEXnumdoclgENnumdoc32000L0078modelguichett
- Davies, J. (2003). A Cuckoo in the Nest? A 'Range
of Reasonable Responses', Justification and the
Disability Discrimination Act 1995. The
Industrial Law Journal, 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 State News, 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.