Disability and internal market regulation - A new EU human rights agenda

In the past articles, we have seen that a new conceptual basis for disability is gradually emerging, which favours a rights-based approach. Analysis of some case-law of the European Court of Justice has shown that the rights of people with special needs are intricately linked to the concept of equality and non-discrimination. Today the new EU human rights agenda dealing exclusively with rights of people with special needs will be considered.

Time has shown that the new human rights purview and jurisdictional reach of the EU is having an impact on economic factors. This emerging phenomenon is also rendering EU law relevant in the context of disability. Philip Alston, Mara Bustelo and James Heenan (1999, The EU and Human Rights) state that there is a synergy and complementarity between arguments promoting human rights protection and the economic rationality of the market itself.

They recommended that the notion of a "One Europe" (as expressed in Athens when Malta signed the Treaty of Accession) for all based on inclusion and on a celebration of human difference should be strongly reiterated, and that perspectives promoting further human rights protection should be specifically endorsed.

Finally they recommended that the synergy between markets and rights be recognised while placing primacy on the rights and dignity of the individual. This reflects a philosophical shift of the EU from passive to active policy options, ensuring the accentuation of the extent to which rights are tools with which to build active participatory lives and not merely protective devices. Active participation should thus be facilitated and equal opportunities specifically endorsed.

In the recent past, knowledge gaps about the nature and extent of the barriers of equal opportunity have proved to be a hurdle to reform. Since information is sparse within countries and generally not comparable between member states, a comparative database was needed to assist the production, taking of measures and policy-making process exemplified by the Social Action Programme 1998-2000.

It has now been accepted, at least at a political level, that indirect discrimination can occur through the process of setting internal market standards. It is also noted that many employment guidelines refer explicitly to the situation of people with disabilities.

However, most of these are mere declarations of principles and are not judicially enforceable in that they do not provide for mandatory legal requirements that are judicially redressable. For example, the Declaration to Article 95 states that "the Conference agrees that in drawing up measures under Article 100 a, now Article 95, of the Treaty Establishing the European Community, the Institutions of the Community shall take account of the needs of persons with a disability."

Such a declaration is not legally binding and internal market directives that ignore the needs of people with disabilities cannot be challenged in the Court of Justice.

However, the Declaration is equally significant since it promotes the living idea that market rationality is best served by factoring in the needs of people at the outset in drafting measures to harmonise the internal market. The EU is thus now viewing disability not simply as a soft social policy but as an internal market concern that is at the core of EU interest itself.

The adoption of the social chapter is also a step in the right direction, particularly because many of the provisions affect the rights of workers in general which, in turn, leads to the hindrance of indirect discrimination against persons with disabilities.

However, the deliberate deletion of any reference to people with disabilities in provisions dealing with social exclusion at a late stage in the Amsterdam summit was a major shortcoming of a new EU rights-oriented policy facilitating the outright prohibition of discrimination and the express promotion of equality.

Europe's Social Charter of 1961 and the Community Charter of 1989 refer to the rights of persons with disabilities. The Dublin General Outline considered that the text developed at the conference contained an explicit mention of disability (as well as the elderly).

Without expressly making reference to disability, it states that the Council may adopt measures designed to encourage co-operation between the member states through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences to combat social exclusion.

The idea of linking disability to social exclusion has received strong support from various sectors of the business community as well. According to Dutch sociologist Engberson, social exclusion could reflect poverty, which he defines as "the structured exclusion of citizens from social participation, coupled with permanent dependence on the state". Although disability is expressly excluded, it is of sufficiently wide an ambit to encompass people with disabilities as a constituent group of the socially excluded.

In 1997, a new specific chapter on the employment situation of persons with disabilities was included in the European Commission's annual report on employment in the EU.

It showed that the average employment rate for people with disabilities runs at 44 per cent, which is about 17 per cent lower than for the rest of the population. It also held that the proportion of people with disabilities who are economically inactive is much greater than the rest of the population.

Until the advent of the Amsterdam Treaty, employment per se was still considered as an exclusive prerogative of the member state. Today employment is a prime Community concern. Since the employment chapter does not give rise to a competence to adopt legislation, the Amsterdam summit decided to implement the employment provisions immediately and even before ratification of the Treaty. The summit asked the Luxembourg Presidency to prepare a special European Council on the topic.

The Draft Guidelines, presented by the Commission to the Luxembourg Council held in November 1997, did not contain very strong reference to disability. A much stronger reference to disability was inserted into the Guidelines by the Luxembourg Council. These guidelines promoted the improvement of employability, the development of entrepreneurship and the strengthening of policies for equal opportunities. The heading on equal opportunities is explicitly stated to apply to disability.

Heading IV is entitled "promoting the integration of people with disabilities into working life". This heading means that member states will give special attention to the problems people with disabilities may encounter in participating in working life.

Various reports have also noted that the absence of comparable or even national data made it difficult to identify the various obstacles people with disabilities face in getting a job which, in turn, made the choice of rational policies as well as monitoring of those policies difficult.

The Commission repeatedly held that member states are firmly committed to getting more people with disabilities into jobs, and policy actions show interest in mainstreaming the issue into other policies, in particular on employability.

This led to the establishment of a new empolyment committee which is entrusted with the task of evaluating the employment situation as well as formulating opinions and making recommendations.

Mention is also made of so-called incentive measures that are designed to encourage co-operation between member states and to support their actions in the field of employment through initiatives aimed at developing exchanges of information and best practices, providing comparative analysis and advice, as well as promoting innovative approaches and evaluating experiences, in particular by recourse to pilot projects.

Furthermore, it is pertinent to note that employment policy is being linked to structural funds so as to combat long-term unemployment and facilitate the integration into working life of people excluded from the labour market. An example of this is the Social Fund entitled Employment - Horizon, whose budget is €950 million (Lm405.3 million).