Review of Research Handbook on EU Disability Law - Edited by Delia Ferri and Andrea Broderick By Jem Golden

Disability is complex, evolving and multi-dimensional; disabilities in a broad sense indicates impairments, limitations on activity and restrictions on participation. People can be born with a disabling condition, others may develop a disability because of an injury, chronic disease, or in older age. Disabilities tend to limit how a child or adult functions, for example causing difficulty maintain balance, walking or climbing stairs; it can impact hearing; seeing; or concentrating; remembering, or making decisions. Many disabilities are hidden or not easy to see.?

An estimated eighty seven million people within the EU experience some form of disability. This figure is projected to rise sharply in the near future due to the rapid aging of the European population and given older people are more vulnerable.

Many people with disabilities will have more than one condition at the same time. For instance, adults with intellectual disabilities have an increased burden of multi-morbidity compared with the general population. Persons with disabilities are more exposed to the risks of social exclusion, poverty, illness and unemployment.

People with disabilities represented among the most affected groups during the COVID-19 pandemic. The EU Agency for Fundamental Rights (FRA) recently reported that the pandemic continues to affect the provision of essential education, healthcare, and transport services. Children with disabilities are facing particular barriers when it comes to accessing education and support according to the FRA.?

One of the major social and economic inequalities is in the labour market. The latest available EU-level data is from 2019 and shows that persons with disabilities in the EU are 24.4 percentage points less likely to be employed than persons without disabilities. Only 50.8 percent of persons with disabilities are employed, compared to 75 percent of persons without disabilities. For example, it remains hugely difficult for a deaf person to find work and retain a job and that applies to the most brilliantly qualified and strongly motivated individuals.

Even for those EU countries where people with disabilities have a relatively high probability to be employed such as in the Netherlands, Austria and Sweden, the employment gap between people with and without disabilities remains distressingly high, and for many, not for all cases, this gap is directly a result of discrimination by employers in hiring practices and/or ensuring they have adapted workplaces which is against European disability law.

In this stark ‘almost post-COVID era’ which we are now entering the precarious and unequal status of people with disabilities has become magnified as has the greater focus on disability rights and empowerment.

The Research Handbook on EU Disability Law provides a very meticulous, well-structured and wide-ranging exploration of the key developments concerning disability rights at EU level. Edited by Delia Ferri, Professor of Law, Maynooth University and Andrea Broderick, Assistant Professor of International and European Law, Maastricht University, the Handbook features 28 contributors including the editors, key authors in the disability field that are also senior academics in law.

The first part of the book gives a compelling, in-depth chronology of the development of EU disability legislation including the role of the EU Charter of Fundamental Rights (CFR) and the Employment Equality Directive (EED) also known as Directive 2000/78.?

Disability rights was a latecomer to the European ‘rights revolution’ and until relatively recently, an EU citizen’s legal standing to challenge disability discrimination was non-existent or very restricted in most jurisdictions.?

The introduction of the EED was a significant breakthrough because not only did it prohibit discrimination in the context of employment; it also requires reasonable accommodation. To comply with Directive 2000/78, EU Member States were obligated to create national laws that set forth procedures whereby victims of, inter alia, disability discrimination can seek redress before national courts or administrative bodies.

The single most important development in European disability policy has been the EU’ ratification of the UN Convention on Rights of People with Disabilities (CRPD) which entered into force in January 2011.

The CRPD is the first international, legally binding human rights convention to which the EU has become a party.?All the EU states have ratified the CRPD with the Republic of Ireland where I live being the last to do so in 2018.?

The CRPD assumes impairment and to disability as socially generated and that ‘disability’ arises in encounters between “people with long-term physical, mental, intellectual or sensory impairments” and the barriers that “hinder their full and effective participation in society on an equal basis with others”. ?

The CPRD incorporates and extends this social model of disability to embrace a human rights model of disability; an intersectional approach, which takes into account how people can be marginalised through multiple forms of discrimination, including along lines of gender, ethnicity, or age.

“The CRPD confronts the social and political forces that shape vulnerability by treating disabled people not as an exclusive group different from the rest of society and requiring particular rights, but by including them in all human rights as a normal part of society.” ?

Alongside dignity as a cornerstone of CPRD is the principle of non-discrimination; this cuts across both civil and political rights; and economic, social and cultural rights.?

The EU member states, signatories to the Convention, must take appropriate measures to ensure that people with disabilities have access to environments, facilities, information and services on an equal basis with others. Accessibility duties are generalised (group based) and anticipatory (not triggered by an individual request).?

This first section of the book which is only 118 pages long is highly recommended to non-legal specialists as well as legal scholars that want a cogent and accessible introduction to disability rights in the European Union.

Part II examines the most significant areas of EU law in which disability concerns have been mainstreamed such as for example, disability in EU labour law, disability and public procurement, freedom of movement for people with disabilities and accessibility of goods and services – thirteen chapters in all. Readers will appreciate in these chapters the highlighting at various juncture of overlaps, inconsistencies and most critically, remaining gaps in the field to comprehensively address disability rights.?

Taking a strong interest in public transport and accessibility I gave a deep scrutiny to the chapter on Disability in EU Transport legislation. Public transport of course plays a pivotal role in enabling citizens to be part of our society ensuring among other priorities, access to work, education, cultural venues; it facilitates essential social interaction.

Accessible public transport is considered particularly important for people with disabilities or reduced mobility not least since this group can have more restricted access to private transport. It also benefits other groups of passengers such as the elderly and mothers with pushchairs. Barriers of any kind may lead to avoiding travelling by public transport which can increase the risk of marginalisation and exclusion of an already vulnerable group(s). ?

The perception and analysis of barriers to travel within this context understandably tend to be focused on motor disabilities; i.e. any condition that impedes movement or coordination such as caused by an essential tremor or degenerative arthritis. However, this is not a complete picture; the concept of ‘travelling securely’ like so many other different facets of life for people with disabilities has to be understood much more broadly and deeply.

Social barriers often also need to be negotiated and overcome caused for example by feeling intimidated by crowded spaces, unsympathetic passengers or by stressed drivers and staff. Narratives in these kinds of situations have described how some bus drivers drive away before the passengers are seated or will not use the accessibility equipment correctly.

The EU’s Public Passenger Transport Regulation centres on the rights of people with disabilities and with reduced mobility to protection from discrimination and assistance when travelling. It covers all the main modes of public transport with separate regulations for each mode – by air, bus & coach, sea or inland waterway and rail. Regulation 1371/2007 for rail passenger services within the EU states that these services should benefit all citizens, and that persons with disabilities and reduced mobility should have opportunities for rail travel comparable to those of other citizens.

A striking aspect of Transport and other EU disability legislation is how very recent it is; much of it being adopted within the last ten years and so inevitably there is a transmutative, ‘unfinished element’ to so much of it with a frequent ‘disconnect’ between the rhetoric of human rights and the actual implementation and the strict enforcement of legislation to date in order to bring about desired outcomes.

The autonomy given to Member States to apply exemptions or deferral to implementation– up to a total of 15 years, in the case for urban, suburban and regional rail passenger services - is another conspicuous and troubling feature of the EU regulatory landscape.

The legal analysis in Part II while dense and complex in places is easy to absorb. I would like to have seen summary tables at the conclusion to this section of the main legislation and case law by main disability area (or theme) so that readers have the option not have to wade through each chapter separately to identify what the relevant legislation looks like across all areas.

Part III includes miscellaneous contributions that examine relevant developments in EU external relations and other developments that have taken place beyond the boundaries of the EU. The chapter on The European Convention on Human Rights and Disability is essential reading to understand the role of the Strasbourg and Luxembourg Courts, the European Court of Human Rights (ECHR) and European Court of Justice (CJEU) respectively for the protection of the rights of persons with disabilities.

For example, in Guberina v Croatia, the (Strasbourg Court) a landmark case in disability rights explicitly recognised the denial of reasonable accommodation as a form of discrimination under Article 14 ECHR, also in relation to discrimination by association.?

The applicant had asked for a tax exemption on the purchase of a new property, available to buyers who moved in order to solve their?housing needs, arguing that the flat which he owned did not meet the basic infrastructure requirements of his family, since it was very difficult to take his child with a disability out of the third floor flat without a lift. The Strasbourg Court, recalled the obligation of the respondent State to take into consideration the relevant principles of the CRPD such as those of reasonable accommodation, accessibility and non-discrimination.

Since its entry into force, the CPRD has rapidly assumed a primary role in the Strasbourg’s Court case law. The ECHR goes even further by recognising that the CRPD represents an ‘European consensus’ on disability matters.

As with the previous section, Part III would have done a great service to its readers with?summary table(s) of key decisions handed out by the two Courts in chronological order and referencing the disability-related areas that were being adjudicated upon including major dissensions and would strongly recommend to the editors please consider incorporating these summary tables in subsequent editions.