DREAM ITN. Final Deliverable. Stelios Charitakis. Faculty of Law, University of Maastricht. Supervisor: Professor Lisa Waddington

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1 DREAM ITN Final Deliverable Stelios Charitakis Faculty of Law, University of Maastricht Supervisor: Professor Lisa Waddington DREAM work package: Implementation: The Challenges and Consequences of Implementation of the UN CRPD for the EU, with focus on Accessibility April,

2 1. Introduction to Topic & Research and Questions. The title of my research project is The challenges and the consequences of the implementation of the United Nations Convention on the Rights of Persons with Disabilities for the European Union, with a focus on Accessibility. In other words this research project focuses on the interpretation and analysis of the principle of accessibility and the obligations it entails under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD or Convention) and the competence of the European Union (EU) to implement these obligations through legislation or other policy options. It becomes clear from the above that my research project is divided in two parts. The first part is related to human rights law and the second part to EU law. The first part examines the content of accessibility within the context of the Convention and it attempts to define accessibility both as a stand-alone principle and in comparison with other similar concepts of the UNCRPD, specifically, reasonable accommodation and universal design. It also provides an analysis of the nature of accessibility as a crosscutting principle of the Convention and the way it applies to the substantive articles of the UNCRPD. Furthermore, the first part of my research project focuses on the examination of the nature of the obligations generated by Article 9 UNCRPD. In particular, it enumerates the main obligations generated by the UNCRPD with regard to accessibility. It explores the scope of application of these obligations and their nature. Lastly, it reviews the connection between accessibility and equality in the context of Article 9 UNCRPD. The overall aim of this part of my research is to deliver a clear understanding of the function of accessibility as a principle of the Convention and the obligation it entails for the State Parties of the UNCRPD with a view to provide a reference framework for the implementation of these obligations by the EU. The second part of this research project addresses several issues with regard to the implementation of the obligations of the Convention with regard to accessibility by the EU. In particular, it examines the effects the nature of the UNCRPD as a mixed agreement has on EU law and policies and it identifies, in general terms, the 2

3 competence of the EU to implement the obligations of the UNCRPD with regard to accessibility. In addition, it examines the factors that contribute to the discussion of whether the Member States or the EU should take action to implement the obligations of Article 9 UNCRPD with regard to accessibility, in the areas where they share the power to act. It also attempts to propose the most appropriate mechanism at the EU level to make this determination and coordinate the implementation of the UNCRPD by the EU and the Member States. Moving to the specific areas of potential action of the EU to implement the requirements of the UNCRPD with regard to accessibility, this part examines both the areas that the EU has taken actions to address accessibility concerns and whether these actions fulfil the requirements of the UNCRPD with regard to the accessibility of goods and services, the built environment and transport, and the areas where the EU has the competence to take measures to implement those requirements. Lastly, the second part of my research project examines other non-legal measures that the EU can potentially adopt to implement the requirements of the UNCRPD with regard to accessibility such as the Open Method of Coordination (OMC) and the Europe 2020 Strategy. In general terms, the second part of my research project aims to provide a legal framework on the overall approach that the EU should adopt to implement the requirements of the UNCRPD with regard to accessibility. Accessibility as a principle of the Convention is essential to the removal of barriers that hinder the inclusion of people with disabilities in all aspects of life and their ability to live independently. The EU by ratifying the UNCRPD is bound by its obligations to implement the principle of accessibility. Despite the importance of the ratification of the Convention by the EU, which demonstrates the willingness of the EU to improve the situation of people with disabilities in the Union, in reality, the EU has exclusive power to take actions to implement the requirements of the UNCRPD and in particular the ones on accessibility, in very small number of areas (customs Union, of the establishment of the competition rules necessary for the functioning of the internal market, of monetary policy for the Member States whose currency is the euro, for the conservation of marine biological resources under the common fisheries 3

4 policy and of the common commercial policy). 1 In most areas that are essential to the implementation of the UNCRPD the EU shares the power to act with its Member States (internal market, social policy, for the aspects defined in this Treaty, economic, social and territorial cohesion, agriculture and fisheries, environment, consumer protection, transport, trans-european networks, energy, freedom, security and justice and common safety concerns in public health matters). 2 Even if the EU decides to act in an area where it shares competence with the Member States with a view to implement the requirements of the Convention, this action is permitted, only in the case where the issue cannot be achieved in a sufficient manner by the Member States and it could be better achieved by an EU action. 3 Furthermore, this action should not exceed what is necessary to achieve the objectives of the EU Treaties. 4 These requirements show that EU action in spite of its importance could be limited in scope. Therefore, the Member States of the EU cannot and should not rely on the EU for the implementation of the requirements of the UNCRPD, but they need to coordinate their actions with the EU so as to achieve a comprehensive implementation of the UNCRPD obligations. 2. My Research Journey. The path to the completion of my research project has been quite straightforward. Since the beginning of my research there have not been any significant alterations to my research goals or methodology. From its starting point my research had a clear structure and specific research methodologies that were not altered throughout my research journey. With regard to my research methodology, it is important to note that it depended on the particular research question that needed to be addressed. Overall, this research project followed the legal methodology with a focus on the relevant law, case-law, legal doctrine and empirical data. 1 Article 3(1) TFEU. 2 Article 4(2) TFEU. 3 Article 5(3) TFEU. 4 Article 5(4) TFEU. 4

5 In particular, the first part of my research project as I have described above, with a view to determine the nature of the obligations of Article 9 UN CRPD on the ground of accessibility, applied the rules of interpretation of the Vienna Convention on the Law of the Treaties (VCLT). The VLCT contains several rules on the interpretation that have been deemed as the appropriate means of interpretation by international law. In particular, I used the literal method of interpretation in order to acquire a general understanding of the ordinary meaning of the terms of Article 9 UNCRPD and of other terms in several articles of the Convention that are relevant to accessibility. I applied the contextual interpretation in order to interpret the terms of Article 9 UNCRPD in the context of the Convention, including the Preamble and Annexes, but also, the case-law of the Committee on the Rights of Persons with Disabilities and other documents published by this Committee. In addition I used other international human rights instruments, such as the International Covenant on Civil and Political Rights and the International Covenant of Economic Social and Cultural Rights and several General Comments, Reports and Concluding Observations that their respective Committees have produced. I also employed the teleological interpretation with a view to identify the meaning of the terms of Article 9 UNCRPD according to the object and purpose of Article 9 UNCRPD and the object and purpose of the Convention as a whole. Moreover, I used the principle of effectiveness with a view to guarantee that my interpretation provided a meaning to the terms of Article 9 UNCRPD that was effective, real, and practical in ensuring the place of individuals as rights-holders within international law. Lastly, I used the travaux preparatoires of the UNCRPD in order to confirm the meaning the terms of Article 9 UNCRPD resulting from the other interpretation methods that I have used. The second part of my research project uses mainly EU instruments, legal doctrine on the relevant subjects and reports on both the implementation of the EU instruments by the Member States and on the level of disability accessibility in the EU. It places specific attention to, the EU Treaties, particularly to the legal bases of the Treaty on the Functioning of the European Union (TFEU) such as Article 19 TFEU (non- 5

6 discrimination), 100 TFEU (transportation) and Article 114 TFEU (internal market) and the articles that are relevant to the issue of EU competencies, including, articles 2, 3, 4, 5 and 6 TFEU. It also focuses on existing legislative (Regulations, Directives, Decisions) or non-legislative (Standardization Mandates, the Open Method of Coordination, Strategies, and others) instruments with regard to accessibility. This research project aims to fill the knowledge gaps which exist in relation to the definition of accessibility in the context of the UNCRPD and the analysis of the nature of the obligations of Article 9 UNCRPD. In that regard, it also aims to fill the knowledge gaps with regard to the interpretation of the text of Article 9 UNCRPD. Despite some sporadic references on the issue of the definition of accessibility and the nature of the obligations of Article 9 UNCRPD in scholarly texts, there has been no comprehensive and precise analysis of these issues in legal theory. Furthermore, the interpretation of Article 9 UNCRPD based on the VCLT rules of interpretation and more generally, the interpretation of Article 9 UNCRPD has not been performed in a systematic and comprehensive manner before. My research project attempts to provide a precise and in depth analysis of those issues in accordance to the VCLT rules of interpretation of international law. Furthermore, my research project seeks to fill the knowledge gaps in relation to the consequences of the ratification of the UNCRPD by the EU, the competence of the EU to implement the requirements of Article 9 UNCRPD and the use of nonlegislative measures to implement the obligations generated by Article 9 UNCRPD. Since the ratification of the Convention by the EU there have been some, but very few, legal analyses on the consequences of the ratification of the UNCRPD by the EU and none of those had focused on accessibility or provided a comprehensive analysis of the nature of the UNCRPD as a mixed agreement of the EU. The issue of nonlegislative measures of the EU, such as the OMC and the Europe 2020 strategy, implementing disability considerations has been addressed by very few scholars, but it has not considered how these mechanisms can be used to both implement the requirements of Article 9 UNCRPD as well as to coordinate the implementation of the Convention by the EU and the Member States. My research project examines these issues from both the perspective of the implementation of the obligations of Article 9 UNCRPD and the perspective of the coordination of the implementation of the Convention by the EU and its Member States. 6

7 Lastly, the issue of EU competence to implement disability considerations has been eloquently addressed by Waddington 5 in an article that was the inspiration for the designing of my research project. My research aims to explore the same issue in a more extensive manner and with a focus on the requirements of Article 9 UNCRPD. Throughout my research project it was evident that the majority of the people that are responsible for the implementation of the requirements of the Convention are aware of the systematic exclusion from all aspects of life that people with disabilities have been facing. Nevertheless, they have been hesitant to take action to implement the obligations that the UNCRPD entails with regard to accessibility, because of the financial costs they require. This attitude is aggravated by the fact that the Convention came into force in a time where the global economy was (and still is) in a dire financial crisis. In that regard, any increase of the expenditure by the state or any financial burden on the private sector is seen as an action endangering the economy of that state. Furthermore, in the current economic climate there is a focus on the immediate costs of the implementation of accessibility requirements and not the financial and societal benefits that its implementation will provide in the future. Therefore, it is essential to take actions as researchers to change these attitudes and to persuade people in power that the actions to implement the requirements of the UNCRPD with regard to accessibility apart from guaranteeing the fundamental rights and freedoms of people with disabilities, they will result to financial and societal benefits for all people and that the narrow view of considering only the costs associated with accessibility unjustifiably disregards the great potential benefits that these actions entail. At the EU level, apart from the financial barriers, which are associated with the implementation of the requirements of the UNCRPD with regard to accessibility, there are some additional obstacles to this process of change. As I have explained above, in most of the essential areas for the implementation of the requirements of the UNCRPD with regard to accessibility the EU shares competence to take legislative action with its Member States. This means that both the EU and the Member States can potentially take measures to implement these requirements. This fact can possibly create obstacles to the implementation of the UNCRPD, as there will be some 5 L. Waddington, A Disabled Market: Free Movement of Goods and Services in the EU and Disability Accessibility, European Law Journal, Volume 15, Issue 5,

8 confusion on the actor (the EU or the Member States) that should take the initiative to implement those requirements. In spite of some attempts to clarify this issue in the Council Decision concerning the conclusion of the UNCRPD 6 and the Council Code of Conduct setting out internal arrangements for the implementation by and representation of the European Union relating to the UNCRPD 7, the issue remains unclear and as a result the effective implementation of the requirements of the Convention by the EU and its Member States is at risk. In addition, the examination of the current legislative measures of the EU, which take into account accessibility, shows that there is a lack of cooperation between the commissioners on this subject. There are areas of EU that have addressed accessibility through legislation in a systematic manner, such as transport and the internal market, and other areas that have failed to consider the particularly needs of people with disabilities, inter alia, the area of consumer protection. This implies that there is lack of effective communication within the commission with a view to implement accessibility requirements in all the areas of EU law and policy. This ineffective cooperation could potentially impede the implementation process of the requirements of the Convention with regard to accessibility, because it could deprive EU actions from adopting a comprehensive approach to the implementation of those requirements. 3. My Formation as a Policy Entrepreneur. When it comes to accessibility, the process of change will certainly be long, gradual and burdensome. This comes as a result of the systematic design of all aspects of life in a way that it makes them inaccessible to people with disabilities. Thus, the retrofitting of the built environment, transport or goods and services will certainly be time and cost barriers. It is essential though, that at least an attitudinal change at the 6 Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, 24 November Council 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/C 340/08), [2010] OJ C 340/11 8

9 policy level will be made so as to prevent the emergence of new barriers to accessibility in all aspects of life. Despite the challenges that the implementation of Article 9 UNCRPD might entail, there has been an welcoming response to those challenges by the EU, as it has accelerate the implementation of the requirements of the Convention in its laws and policies. This is evident from the adoption of a strategy 8 to implement the requirements of the Convention, including Article 9 UNCRPD, the proposal and adoption of legislative measures that include strict obligations to the Member States to guarantee accessibility in the fields of public procurement 9 and structural funds 10 and the internal market 11. A more ambitious step towards the implementation of Article 9 UNCRPD is the announcement of the intention of the Commission to propose the European Accessibility Act that aims to increase the availability of accessible goods and services and improve the free movement of accessible goods and services as well. 12 Moreover, the Court of Justice of the EU has shown signs of change in its jurisprudence by incorporating the definition of disability that is entailed in the Convention. 13 Overall, it is evident that in spite of the challenges that the implementation of the requirements of Article 9 UNCRPD, the EU has shown surprising eagerness to take steps to implement those requirements. With regard to legal researchers, there is the notion that they are cut off from the reality of life and that their work does not penetrate the realms of life so as to provide solutions to the challenges that the society faces. Nevertheless, legal researchers can 8 Communication COM (2010)636 from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, European Disability Strategy : A Renewed Commitment to a Barrier- Free Europe, Brussels, 15 November European Parliament and Council Directive 2014/24/EU of 26 February 2014 on public procurement and repealing Directive 2004/18/EC. 10 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, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1083/2006, Brussels, COM(2011) 615 final 2011/0276 (COD). 11 Proposal for a European Parliament and Council Directive on the accessibility of public sector bodies' websites, Brussels, , COM (2012) 721 final, 2012/0340 (COD). 12 Roadmap, European Accessibility Act: legislative initiative to improve accessibility of goods and services in the Internal Market. 13 Joined Cases C 335/11 and C 337/11, Jette Ring v. Dansk almennyttigt Boligselskab and Lone Skouboe Werge v. Dansk Arbejdsgiverforening, judgment of 11 April 2013; For the previous approach to disability that the CJEU had adopted, which is close to the medical model response to disability see, Case C- 13/05, Chacón Navas v Eurest Colectividades SA, judgment of 11 July

10 certainly contribute to the process of change. The legal research can contribute to the identification of problems and it can provide solutions to those problems. In the case of accessibility, disability researchers can provide a framework on the way the UNCRPD should be interpreted. This will clarify what were the intentions of the drafters of the Convention and, thus, it will identify the requirements that the State Parties of the Convention should take to fulfil these requirements. The same applies to EU law and the UNCRPD. Legal researchers can examine and explain the challenges and the consequences of the implementation of the Convention by the EU so that the Member States of the EU and the EU itself will be able to fully comprehend what are the appropriate actions that should be taken with a view to fulfil the requirements of the Convention and how the implementation of the Convention will be coordinated between the EU and its Member States. This framework, though, should somehow reach the ears of the stakeholders on accessibility. Otherwise it will not have any impact on the real world. In that regard, it is important to involve stakeholders on accessibility in the dissemination of this framework via their participation in conferences, seminars and other academic activities. Thus, raising awareness on this issue is essential. It is also important to use the outcomes of research to train the stakeholders on accessibility so that they will be fully aware of the actions that they can take or lobby for. Apart from the stakeholders, people that are responsible for guaranteeing remedies with regard to accessibility, such as judges or administrative committees should be trained as well. Lastly, legal researchers can contribute to the process of change from an advisory role either for the state or for representative organisations and other stakeholders on accessibility. From such post, researchers can use their work to influence policy-making or the arguments of the disability movement and its representatives. The DREAM (Disability Rights Expanding Accessible Markets) network provided us, researchers with the opportunity to receive training on different academic disciplines and in subjects that are relevant to disability. These training activities provide us with different perspectives on disability that could be useful to our own research. In addition, it promoted the dialogue between the DREAM researchers and the more experienced scholars and between the DREAM researchers themselves on how to better contribute to the process of change. It also encouraged the researchers to take their own initiatives to promote their work, the network and to raise awareness on 10

11 disability issues. An example of such initiative was the DREAM panel that G. Anthony Giannoumis, Ieva Eskyte and I organised that was part of the 20th International Conference of Europeanists. Our panel was entitled Disability Policy in Crisis Legal, Public Policy and Practical Approaches. It aimed to discuss the challenges that the implementation of the Convention faces due to the current economic climate and to raise awareness on disability rights by mainstreaming the disability agenda in a broader multidisciplinary conference. Lastly, the DREAM project brought us in contact with people outside of the academic world. It involved people from both the policy field and from the disability movement. This involvement gave us the opportunity to learn about the obstacles to the process of change and the most appropriate way to overcome those obstacles. Apart from exchanging views with people from the disability movement and representative organisations, the DREAM network gave us the opportunity to undertake secondments at disability organisations. I had the privilege to work for the European Disability Forum (EDF). During this secondment I worked on two subjects. The first was identifying the legal criteria that should be used to determine which products should be included in the European Accessibility Act. The second was analysing the factors (legal or political) that can contribute to the discussion of whether the EU or the Member-States should take action to implement the requirements of Article 9 UNCRPD, in the field of shared competences. Apart from these subjects, I provided advice on other subjects of EU law as well. Lastly, I made a presentation on the results of my research at EDF by the end of my secondment in the context of a training event on the European Accessibility Act. My experience at EDF was very enriching. I had the opportunity to experience the challenges that the disability advocates face in attempting to make change. I also came in contact with several people with disabilities and heard their very interesting personal stories. As a result, I gained a greater understanding of the challenges and the barriers that they encounter in their lives, the importance that their place in the principles of the Convention and their belief that the Convention can contribute immensely to the process of change that is needed in the disability policy. Lastly, my time at EDF gave me the opportunity to experience from close distance the EU legislative process and to contribute to the process of change. I was fortunate enough to be at the organisation at the time where the impact assessment for the Accessibility 11

12 Act was underway. Thus, I was able to examine the challenges that this process entails, the attitudinal barriers that the supporters to disability rights encounter, and the compromises that have to be made so that the process of change continues to move forward. I also had the opportunity to make my own contribution to this process of change in a more direct way than I was able to before as an academic researcher. 4. Tentative Outcomes & Recommendations. As the final outcomes of my research are not fully formed, in this section I provide some thoughts about the interpretation of Article 9 UNCRPD and the implementation of the obligations of this article by the EU. As far as the first part of my research is concerned, there are several points that should be made. The fact that accessibility in the context of Article 9 UNCRPD is a progressively realised obligation, does not justify the inaction of governments with regard to the implementation of this obligation. The progressive realisation of accessibility entails several obligations that should be implemented immediately, such as, the obligation to take deliberate, concrete and targeted steps to implement Article 9 UNCRPD, the obligation to use the maximum of the available resources for its implementation, the obligation to improve conditions in relation to disability accessibility, the obligation to abstain from adopting deliberately retrogressive measures with regard to the level of accessibility, the obligation to monitor the implementation of Article 9 UNCRPD, the obligation to device strategies and programmes for its implementation, and the obligation to ensure the minimum core level of Article 9 UNCRPD. Lastly, the obligations of Article 9 UNCRPD do not only apply to the public domain but also the private sphere. The notion behind this statement is that it does not matter who owns the facility or the service or the good that is required by Article 9 UNCRPD to become accessible to people with disabilities, but the persons that use them. Thus, privately owned facilities and services are required to become accessible as well, as long as, they are open or provided to the public. 12

13 All these issues could be potentially addressed and clarified by the General Comment on Accessibility that it is currently under consideration by the Committee on the Rights of People with Disabilities. With regard to the second part of my research project it is important to note the following: The nature of the UNCRPD as a mixed agreement of the EU implies that the Member States and the EU are required to implement the obligations of the Convention in the areas where they have exclusive competence to take legislative measures, while at the same time, they are required to closely cooperate with a view to implement the obligations of the Convention in the fields where they share the competence to take legislative actions. This close cooperation can be realised through a mechanism that will both monitor the implementation of the requirements of the UNCRPD and determine which actions should be taken by whom (either the EU or the Member States) so as to avoid any overlap in their actions and to guarantee the speedy implementation of those requirements. With the exception of one legislative measure 14, all the EU measures that consider accessibility are mainstreaming measures. These measures are quite often insufficient to guarantee the rights of people with disabilities for several reasons. First, the mainstreaming of accessibility considerations might not be comprehensive enough to guarantee the accessibility of the good or service that is regulated. Second, the references of accessibility in the mainstreaming instruments might not be strong enough to oblige the Member States to ensure accessibility, but only to encourage such actions. The last reason for the failure of the mainstreaming measures to ensure accessibility is the lack of monitoring of these measures. The legal instruments that mainstream disability considerations might address such a great amount of issues that accessibility quite often is not addressed and examined in the reports that study the implementation of such measures. This fact shows that accessibility is not among the priorities that should be addressed in such instruments. Nevertheless, when the measures are comprehensive, provide concrete obligations with regard to accessibility and are appropriately 14 Regulation (EC) of the European Parliament and of the Council No 1107/2006 of 5 July 2006 concerning the rights of disabled persons or persons with reduced mobility when travelling by air. 13

14 monitored, like in the case of the passenger rights Regulations 15, the outcomes are successful with regards to the implementation of the accessibility considerations. Lastly, with regard to the Court of Justice of the EU, it is important to note that despite the progress that it has made with regard to the definition of disability, as I have mentioned above, it has failed to examine in a comprehensive manner the issue of the direct application of the provisions of the Convention. 16 Instead it preferred to just read the text of the Convention at face value without further interpretation and reject such possibility, despite the fact that through appropriate interpretation some obligations might be clear and unconditional enough to be directly applicable. For example, as I have mentioned above, several obligations to the State Parties with regard to accessibility should be immediately implemented and, thus, they might be clear and unconditional enough to be directly invoked against the EU or the Member States by individuals. The DREAM network provided all its early-stage researchers with a great opportunity to conduct research under the best possible environment. The researchers received high-level multidisciplinary training. They had the opportunity to engage in conversation with academics of the highest calibre and with important stakeholders on disability matters. The researchers had also the opportunity to experience the process of change from a close distance during their secondments and support directly the actions of the disability movement. All these experiences and training gave us the opportunity to see our work not merely as an academic exercise but more importantly as an opportunity for substantive reform and change. The DREAM network equipped us with the tools to disseminate our research outcomes and spread the message of change and reform of the disability policies according to the UNCRPD to the world. Now, it is our responsibility to bring this message to the world with the hope that it will have the maximum possible impact to the lives of people with disabilities. 15 Regulation (EU) of the European Parliament and of the Council No 181/2011 of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) of the European Parliament and of the Council No 2006/2004; Regulation (EU) No 1371/2007 of 23 October 2007 on rail passengers rights and obligations; Regulation (EU) of the European Parliament and of the Council No 1177/2010 of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/ Case C- 363/12, Z. v. The Board of management of a community school, judgment of 18 March