Social Structures
Author Bio: Neža Šubic, Postdoctoral Researcher, DANCING Project, ALL Institute, Department of Law, Maynooth University
The Charter of Fundamental Rights of the European Union (the Charter) celebrates its 20th anniversary this month. It was proclaimed solemnly by the European Parliament, the Council of the European Union and the European Commission on 7 December 2000. Though not formally binding when it was signed, it became legally binding with the Treaty of Lisbon in 2009.
The Charter is the European Union’s bill of rights. It contains a comprehensive set of fundamental rights, ranging from civil and political rights to social and economic rights.
During its 20 years of existence, the Charter has undoubtedly strengthened the protection of fundamental rights in the EU (see for example the Commission’s latest report on the application of the Charter). However, its full potential has not yet been realised. Recently, the Commission argued that it is necessary to enhance people’s awareness of their rights in order to bolster the application of the Charter. With this blog, I wish to contribute to raising awareness about the Charter by presenting some reflections on the way in which the Charter protects and promotes the rights of persons with disabilities. All the rights provided for in the Charter should be enjoyed by people with disabilities on an equal basis with others. The Charter, alongside mentioning disability as one of grounds upon which discrimination is prohibited (Article 21), also includes a specific provision on the “integration of persons with disabilities” (Article 26; it should be noted here that framing the discussion in the language of “integration” is somewhat outdated, and it is now more appropriate to refer to “inclusion”). Article 26 of the Charter states that “[t]he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.” Given the occasion of the Charter’s anniversary, I want to focus on the origin of this provision 20 years ago (looking at preparatory documents from the drafting process), before briefly suggesting some lessons to be learnt from the drafting process for the application of Article 26 today.
Since the very start, the Charter intended to include a provision on the rights of persons with disabilities. However, the title of the Article, as well as its text, were revised several times. Different versions of the title included “integration of disabled persons”, “the right of disabled persons to social and professional integration”, and simply “the disabled”, before settling on “integration of persons with disabilities”. This final version of the title was agreed after a representative of the Swedish Government, Daniel Tarschys, suggested that the term “persons with disabilities” would be more consistent with international documents.
As for the text of the provision, one of the earliest proposals was for it to stipulate that “[p]rovision shall be made for social and vocational integration measures for the disabled”. The members of the body responsible for drafting the Charter (named “the Convention”) submitted a number of amendments to this suggestion. These ranged from deleting the Article as a whole, specifying the areas relevant to integration (for example cultural life, accessibility and mobility), to adopting more rights-based language. The most influential was again Tarschys’ proposal, based on Article 15 of the revised European Social Charter and on the UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities. It convinced the drafting committee (a body composed of five members of the Convention, referred to also as “the Praesidium”) to propose to the Convention the following text: “Provision shall be made for the independence, social and vocational integration and participation in the life of the community of persons with disabilities”.
This text essentially covered all the substantive areas included in the final version of Article 26 of the Charter, but two notable amendments were made before the adoption of the Charter. First, although the provision was consistently discussed as a socio-economic right, it ended up in the Chapter on Equality, and not in the Chapter on Solidarity (in which most socio-economic rights found their place). Second, concerns about the nature of the provision, and its concomitant effects, resulted in further tweaks to its wording. While one draft framed the provision as a right, guaranteeing that “[p]ersons with disabilities have the right to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”, the final version resorted to weaker wording, with Article 26 stipulating that “[t]he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, […] integration and participation […].
We can learn a lot from the drafting history of Article 26 of the Charter, which I have briefly summarised. Here I will only emphasise a few points. Firstly, international human rights documents strongly influenced both the terminology (for example, the change from the term disabled persons to persons with disabilities) and the content of the Article itself. The Charter’s ambition to follow the developments in international human rights law is clear from the drafting process. That ambition should be fulfilled today too by interpreting the Charter in line with the UN Convention on the Rights of Persons with Disabilities, which was ratified by the EU.
Secondly, an ambiguity as regards the legal effects of Article 26 of the Charter can be observed from the drafting material. This matter was (at least to some extent) resolved in Glatzel. In this case, the Court of Justice decided that Article 26 of the Charter can neither “by itself confer on individuals a subjective right which they may invoke as such”, nor “require the EU legislature to adopt any specific measure”. This however does not leave the Article without any legal effects. Notably, it can be relied upon as an interpretative tool. Additionally, the drafting history of Article 26 demonstrates the awareness among the drafters that integration of persons with disabilities requires taking positive measures. Thus, while not the sole driver, Article 26 of the Charter has been mentioned in preambles to a number of EU legislative measures, for example the European Accessibility Act and the measures implementing the Marrakesh Treaty in the EU. The European Disability Strategy 2010-2020, the EU’s main policy document on the rights of persons with disabilities, also draws its mandate from Article 26 of the Charter.
With a new Strategy for 2021-2030 on its way, it will be interesting to observe how Article 26 of the Charter features.
Happy Birthday, dear Charter!
This blog has been written within the remit of the project ‘Protecting the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity through European Union Law: Exploring New Paths – DANCING’. This project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement No 864182).
