The Incompatibility of European Disability Rights with Free
Movement and Fundamental Human Rights
Eline van der Vegt (13049879)
Master track: European Union Law
Supervisor: Prof. Dr. A.A.M. Schrauwen
Date of Submission: 8 January 2021
elinevegt@hotmail.com
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Table of contents
Table of contents 2
Abstract 3
Chapter 1: Introduction 4
Chapter 2: From the first action to the current coordination system 8
2.1. History of disability law in the European Union 8
2.2. The current constitutional framework of disability law 10
2.3. Discrimination on the basis of disability (law in practice) 11
Chapter 3: the Netherlands versus Ireland; a case study 13
3.1. Introduction 13
3.2. The Netherlands 14
3.2.1. A short introduction to the Netherlands and disability law 14
3.2.2. The signing and ratification of the CRPD 15
3.2.3. The Dutch domestic disability law system 16
3.2.4. Conclusion 18
3.3. Ireland 18
3.3.1. A short introduction to Ireland and disability law 18
3.3.2. The signing and ratification of the CRPD 19
3.3.3. The Irish domestic disability law system 20
3.3.4. Conclusion 21
3.4. A comparison between the Dutch and Irish systems 21
Chapter 4: Possible solutions 23
4.1. The legal basis 24
4.2. The scope and format of the proposed measure 25
Chapter 5: Comparing the current system with the proposed new system 27
5.1. The problem with free movement 27
5.2. The problem with human rights (EU & CRPD) 29
Chapter 6: Conclusion 30
Table of cases i
Table of legislation i
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Abstract
The European Union was created to bring economic integration among its Member States, it did so by establishing an internal market. This internal market comprises of an area in which the freedom of goods, services, capital and persons are ensured, without any internal frontiers. The fourth freedom, the free movement of persons, is based on the principle of equal treatment which is a fundamental right. Unfortunately, equal treatment is not always protected this is the case for disability rights, the benefits for disability allowances are non-exportable and different in every Member State. The Member States can decide on what conditions and what type of benefit can be obtained which allows for huge disparities between domestic systems. Moreover, disabled workers have the possibility to not be recognised as a worker when moving to another Member States. Thereby, losing all the protection that they may receive by being classified as a worker. These differences constitute a barrier to the free movement rights of disabled citizens. In this research a case study conducted between the legal systems of the Netherlands and Ireland, both Member States of the EU, will show how big these differences are in regard to disability allowances. The domestic law systems seem to be based on vague conditions that differ greatly from country to country and almost seem arbitrary which is incompatible with fundamental human rights like the right to equal treatment and non-discrimination. It becomes apparent how huge the problems are when investigating the roles that the EU’s disability law scheme and the UN Convention on the Rights of Persons with Disabilities play in the domestic law systems of Member States. A possible solution might be a new measure, that mirrors the Services Directive. This new measure will give clear definitions of disability and a disabled worker, will set up points of single contact, will demand an infringement procedure, and obliges Member States to make clear rules regarding state aid given to employers. The main finding of this research shows that this newly proposed measure has the possibility to solve the incompatibilities of disability allowances with free movement and human rights created by the current system as long as it is met with caution and acknowledges that Member States’ domestic legal systems are rooted in different traditions, political colours, economic conditions and preferences.
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Chapter 1: General introduction
The entry in force of the 1992 Maastricht Treaty introduced the concept of European Citizenship. This concept started from a vague notion but has matured greatly in the past two decades.1 European citizenship has never been a citizenship in the classic sense of the word, yet it offers welfare and social rights protection to nationals on a principle of non-discrimination. The Court of Justice of the European Union (CJEU) confirmed this notion in the 2001 Grzelczyk case stating that:
‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.’2
This fundamental status is nowadays enshrined in Article 20(1) of the Treaty on the Functioning of the European Union (TFEU) and constitutes the fourth freedom that comprises the internal market of the EU namely, the free movement of persons.3 However, European Member States have been slowly undermining this principle by changing the unique free movement of persons right into just a regular type of immigration which can be subject to exclusion and selectivity.4 This is also the case for disability rights. Disability rights have been a discussion point for many years within the EU. Rightfully so, since approximately 40 million EU citizens are diagnosed with having a disability.5 In 2011 the EU became a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This was a big step since even though they had previously acceded to other international treaties, this was the first time that they acceded to a human rights treaty.6 This is what piqued my interest in disability law.
When looking back at the history of disability law and the EU, in the year 1992 the EU for the first time referred to disability benefits in a legislative manner and included disability in the category of the special non-contributory benefit. This benefit was laid down in Regulation 1247/92.7 The special non-contributory category was already established in Regulation
1 Dimitry Kochenov, ‘EU Citizenship without Duties’ (2014) 20 European Law Journal 482, 486. 2 Case C-184/99 Grzelzyck [2001] ECR I-06193, para 31.
3 The other three being the free movement of goods, free movement of services and the free movement of
capital.
4 Roxana Barbulescu and Adrian Favell, ‘Commentary: A Citizenship without Social Rights? EU Freedom of
Movement and Changing Access to Welfare Rights’ (2020) 58 International Migration 151, 151.
5 Andrea Broderick and Delia Ferri, International and European Disability Law and Policy (CUP 2019), 27. 6 Lisa Waddington, ‘The European Union and the United Nations Convention on the Rights of Persons with
Disabilities: A Story of Exclusive and Shared Competences’ (2011) 18 Maastricht Journal of European and Comparative Law 431, 432.
7 Council Regulation (EEC) 1274/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the
application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community [1992] OJ L136/1, Article 1(b) and Article 2.
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1408/71, but took twenty years to also apply to disabled citizens. This was not a new development since certain Member States already included the special non-contributory benefit for disabled citizens in their domestic law, however, there was a clear distinction between Member States that perceived the benefit as social assistance and those that perceived the benefit as social security. Nowadays, this benefit is laid down in Article 70(2)(ii) in combination with Article 3 of Regulation 883/04. The benefit is not exportable, which means that when a disabled European citizen moves to another Member State, they cannot take the benefit with them. The CJEU has confirmed this on several occasions most notable in the UK cases of
Snares8 and Patridge9,as well as the Dutch case of Hendrix that stated that even if a disabled
citizen continues working in the home Member State and merely moves to another Member State they cannot take the benefit with them.10 All three of these cases are based on the old
Regulation 1408/71. The fact that this benefit is not exportable has the effect of denying free movement opportunities for disabled citizens.11 In practice this unexportable benefit withdraws, in most cases, a benefit for people with disabilities who wish to exercise their free movement rights.12 Since, disabled workers will not be recognised as a worker in all Member States and will therefore fall between the system. This would not have been a problem if Member States all have transparent systems in place that help protect disabled citizens rights. Unfortunately, this is not the case. The domestic systems are seemingly untransparent with limited access to an impartial and independent judge.
The disability law scheme falls under a system of coordination. Every Member State can decide upon their own disability law. This has the possibility to result into obstacles when migrating to another Member State or can even constitute a complete disincentive to migrate, especially to countries with a less beneficial system or no system at all. This system of coordination regarding disability law has been established in Regulation 1408/71 and gives Member States the power to legislate at their own discretion the conditions and scope for the application of domestic disability law as long as they take disabled citizens into consideration.13
Furthermore, the obstacle to free movement that disabled citizen currently face also constitutes a breach of human rights. According to the Charter of Fundamental Rights of the
8 Case C-20/96 Snares [1997] ECR I-6057, para 40.
9 Case C- 297/96 Patridge v Adjucation Officer [1998] ECR I-3467, para 26; the UK was still a member of the
European Union when those cases where concluded.
10 Case C-287/05 Hendrix [2007] ECR I-06909, para 58.
11 Simon Roberts, ‘Free movement and special non-contributory benefits for disabled people: between the devil
and the deep blue sea’ (2016) 17 ERA Forum 221, 231.
12 Ibid.
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European Union (the Charter) the EU is based on a principle of equal treatment and any discrimination based on disability, among other things, is prohibited.14 This is also reflected in the CRPD that calls for formal as well as substantive equality.15 Disabled citizens are not being treated equally under the current social security coordination system. The disparities between the way Member States implement the CRPD and the non-exportability of the disability allowance creates barriers for disabled citizen that want to make use of their free movement rights. The system of acquiring disability allowances is currently based on vague conditions that differ greatly from Member State to Member State. Moreover, the process behind the assessment of obtaining such an allowance is non-transparent and can almost seem arbitrary. These issues go against the rule of law requirements of legal certainty, transparency and access to a judge that are all reflected for disabled citizens specifically in the CRPD. This results into the research question of this paper: ‘What action could the EU undertake to resolve the incompatibilities of the current disability allowance system with free movement and human rights?’
To first get an indication to the answer of this question a case study shall be conducted comparing the disability law systems of two Member States of the EU. These are the Netherlands and the Republic of Ireland (Ireland). The Netherlands was chosen because I am Dutch and have a bachelor’s degree in the Dutch law system and am fluent in the language. Ireland was chosen since I am also fluent in the language and because the Irish common law system can give a nice comparison to the Dutch civil law system. With Ireland and the Netherlands as an example, this paper aims to demonstrate the substantial differences that are present between Member States under the current system and show the problems that might occur because of these disparities. This case study will first look at the history of both countries with disability law. Then, it will discuss the way they have ratified the CRPD, since wrongful implementations of the CRPD can result into divergent domestic systems that make free movement impossible for disabled citizens next to it being discriminatory and incompatible with human rights. This will result into an overview of the current domestic law systems regarding disability rights. The conclusions resulting from the comparison will be put into a European perspective: what does this case study, and the comparison of the countries’ domestic law systems, say about the possible ways the EU could act to solve these problems?
14 Art 21 Charter.
15 Eillionoir Flynn and Anna Arstein-Kerslake, ‘State Intervention in the Lives of People with Disabilities: The
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The beforementioned research question will be answered with the help of a number of sub questions. These sub questions are: what are the minimum requirements that are set out by the EUs current system regarding disability law? What does the Dutch disability law system entail? Have the Dutch authorities implemented the CRPD in a rightful manner that gives disabled citizens the full protection provided for in the Convention? What does the Irish disability law system entail? Have the Irish authorities implemented the CRPD in a rightful manner that gives disabled citizens the full protection provided for in the Convention? When comparing the two countries, what problems can be distinguished from the current system?And lastly, what are the possible actions the EU could undertake to solve these problems?
This research will be a combination of a classic legal research, describing the current state of law within the EU and the current state of disability law within the Netherlands and Ireland based on primary and secondary sources: legislation in place, case law and legal doctrine. This classic legal research will mostly be done from an internal perspective looking at the positive meaning of laws. Thisis also a critical legal study since it strives to realise equal freedom and easier access to justice for disabled citizens. Additionally, it is a comparative study since the Netherlands’ and Irelands domestic disability law systems will be compared as well as the current system and the possible solutions will be compared. This will mostly be done from an external perspective with prescriptive statements based on theoretical approaches.
Furthermore, for the purpose of this research I will be using the social model of disability. The social model identifies the barriers of society as the main reason in disabling people with impairments.16 Therefore, I am not using the medical model which is focused on the health status of an individual whilst searching for a possible cure.17 Also, this research will solely be focused on disabled EU workers thereby completely excluding non-economically active disabled EU citizens.
Firstly, this paper will summarize the history of disability allowances in Europe, rights derived by the CRPD and the different directives and initiatives made by the EU. This chapter will show that EU disability law allows for diversity in domestic laws which can hinder free movement. Secondly, a case study shall be conducted between the Dutch disability law system and the Irish disability law system, directly followed by a comparison between the two systems.
16 Broderick and Ferri (n 5) 20. 17 Ibid 19.
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Thirdly, possible solutions to the problems of the current system shall be discussed. Here, a new measure will be proposed that is comparable to the Services Directive 2003/123/EC.18 Fourthly, a comparison shall be made between the current system and the newly proposed measure, answering the question what action the EU could undertake to solve the problems with the current system. Lastly, a conclusion of the research shall be given that will answer the research question and indicate possibilities for further research.
Chapter 2: From the first action to the current coordination system
This chapter will show the development of EU disability law in the past five decades, explain the current disability framework and give an overview of disability law in practice.
2.1: History of disability law in the European Union
The earliest action on disability law by the EU can be traced back to the 1970s when the Commission created the Social Action Programme.19 Disability law was seen as a, what we now call, supportive competence.20 The different types of competences are currently laid down in Article 2 TFEU.21 There are three main types of competence: exclusive, shared and supportive. When the Treaties confer exclusive competence on the EU then only the EU may legislate and adopt legally binding acts for that specific area. When the Treaties confer a shared competence on the EU and the Member States combined then both can devise legislation, but Member States can only exercise their competence to the extent that the EU has not done so.22 When the Treaties confer supportive competence on the EU then the EU is only allowed to support, coordinate or complement the action of a Member State.
After the 1970s, the first real development was the creation of the 1986 Recommendation on the Employment of Disabled People in the European Community.23 It was
focused on the principle of fair opportunities and the elimination of discrimination for disabled citizens, but lacked a concrete action plan.24 In the course of the 1990s the UN made the
18 Council Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on
services in the internal market [2006] OJ L376/36.
19 Commission, ‘Social action programme, submitted by the Commission to the Council on 25 October 1973’
COM (1973) 1600 final.
20 Broderick & Ferri (n 5) 299.
21 Robert Schütze, ‘EU Competences: Existence and Exercise’ in Damian Chalmers & Anthony Arnull (eds),
The Oxford Handbook of European Union Law (OUP 2015), 84.
22 Miriam Buiten, ´Harmonisation and the EU Internal market: a Law and Economics Approach’ (DPhil Erasmus
Universiteit Rotterdam 2017), 15.
23 Council Recommendation 86/379/EEC of 24 July 1986 on the Employment of Disabled People in the
Community [1986] OJ L225/43.
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Standard Rules for the Equalization on Opportunities of Persons with Disabilities that inspired the EU to make a genuine action plan: the New European Community Disability Strategy of 1996 (1996 Strategy).25 The 1996 Strategy consisted of an action plan that referred to disability rights as human rights, something that had not happened before, and showed a significant step for disability rights recognition.26 However, disability law was still a supportive competence of the EU, so the main responsibility to act remained with the Member States.27
Nevertheless, this all changed with the introduction of the Treaty of Amsterdam that entered into force in 1999. Article 13 EC was introduced (now Article 19 TFEU), that encompassed the prohibition of discrimination on multiple grounds, with disability being one of them. This Article changed the competences of the EU in the field of disability law from a supportive competence to a shared competence. This enabled the Council to take legislative action and adopt legally binding acts such as regulations and directives. With this newly acquired competence the EU adopted Directive 2000/78/EC, the Employment Equality Directive. This directive prohibited employment-related discrimination on multiple grounds, and works as a framework directive. This means that Member States interpret within the general framework set by the Directive, the provisions that are not clearly defined.28 The Employment Equality Directive explicitly mentions disability as a prohibited discrimination ground.29
Moreover, the EU Charter was created in the early 2000s that stressed the importance of integration for Union citizens with disability through Article 26. The Charter became legally binding and gained the same status as the Treaties through the entry into force of the Lisbon Treaty in 2009. The creation of the Charter inspired a shift of EU policy that resulted into the adoption of the EU disability plan 2004-2010. This long-term plan focused on specific areas for the EU to take action regarding disability.30 The Action Plan stated accessibility as the most
important area to focus on, which is still reflected in the 2010-2020 plan (EDS).31 Additionally,
in 2017 the EU created the European Pillar of Social Rights that sets out 20 key principles that
25 Commission, ‘Communication of the Commission on Equality of Opportunity for People with Disabilities – A
New European Community Disability Strategy’ COM (1996) 406-2 final, point 3.
26 Ibid point 6. 27 Ibid point 4.
28 Lisa Waddington, ‘Saying All the Right Things and Still Getting It Wrong’ (2015) 22 Maastricht Journal of
European and Comparative Law 576, 577.
29 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation [2000] OJ L303/16, art 1.
30 Commission, ‘Equal opportunities for people with disabilities: a European action plan’ (Communication)
COM (2003) 650 final.
31 Commission, ‘European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe’
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relate to the creation of equal opportunities in regard to the labour market, fair working conditions and social protection and inclusion.32
To sum up, a general shift can be noticed from the EUs policies from the past five decades up to now. The EU started as a purely economic union focused on the protection of the internal market and has now evolved into an organisation that spans across an array of areas including non-economic objectives such as disability law.
2.2: The current constitutional framework of disability law
The current system cannot fully be explained without looking at the constitutional framework that forms the foundation of equal treatment in regards to disability law as well as looking at the position of the CRPD within this framework.
EU primary law consists of the Treaties, the Charter and general principles established by the CJEU.33 The principle of non-discrimination is one of the core values of the EU and has been laid down as such in Article 2 Treaty on European Union (TEU). Article 3 TEU mandates that the EU shall combat discrimination and social exclusion. Article 21 TEU then states that the EU must always be guided by the principle of equal treatment. These provisions do not yet create any legal rights but do paint a picture of the focus of the EU. The first legislative competence is given through Article 19 TFEU that, in combination with Article 10 TFEU, still remains the main provision that secondary law in the field of discrimination is based on. The Charter adds an extra layer by reflecting the rights that are laid down by the European Convention of Human Rights (ECHR) as well as the European Social Charter (ESC) and the case law of the CJEU, thereby expanding the rights for disabled citizens once more.
Inferior to primary law but superior to secondary law is the CRPD of the UN.34 The EU
acceded to the CRPD in 2010, which was a peculiar step for the EU since this was the first human rights treaty that they became a party of. The EU has the ability to accede to international treaties through Article 47 TEU that gives them legal personality. The CJEU has stated that international treaties are situated below primary law and above secondary law.35 Therefore, secondary law needs to be interpreted in a manner that is consistent with international agreements made by the EU such as the CRPD. The CRPD is binding to Member States through
32 Commission, ‘Establishing a European Pillar of Social Rights’ (Communication) COM (2017) 250 final. 33 The Treaties consists of the two founding treaties, the treaties between Member States, and the treaties
between the EU and third parties.
34 Silvia Favalli and Delia Ferri, ‘Tracing the Boundaries between Disability and Sickness in the European
Union: squaring the Circle’ (2016) 23 European Journal of Health Law 5, 28.
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Article 216(2) TFEU. The effect of the CRPD becomes apparent in case law which will be discussed in the next part regarding EU disability law in practice.
To conclude, EU disability law has a strong existence in primary law. It is related to one of the core values of the EU and is also the subject of the first human rights treaty that the EU acceded to.
2.3: Discrimination on the basis of disability (law in practice)
The EU creates measures to combat the discrimination based on the ground of disability in a variety of ways through secondary law. First, EU legislation makes a distinction between two types of discrimination: direct and indirect. The CRPD also implies this distinction through Article 2 where it instead of direct and indirect uses the words purpose and effect. The use of the word effect proscribes the possibility of that same distinction between direct and indirect discrimination.36 EU legislation however, mentions the distinction explicitly in Article 2 of the Employment Equality Directive. This Directive is still seen as the foundation for non-discrimination on the labour market on the basis of disability.37
The Directive obliges employers to take appropriate measures to meet the needs of disabled workers, unless these measures result into a disproportionate burden on the employer.38 The Preamble states that the term ‘appropriate measures’ means effective and practical measures that adjust the place of work to the specific disability.39 The ‘unreasonable burden’ is explained in the next recital and states that the costs, the scale, and the resources of the organisation must be taken into account as well as the possibility of obtaining funding or assistance.40 Through the principle of supremacy Member States have an obligation to conform
domestic law to the Employment Equality Directive.41 The articles of the Directive with direct
effect even require the domestic courts to set aside any provision of national law that may conflict those articles.42 It is the job of the Court to interpret what articles have direct effect and
if the domestic law is compatible with EU law.
Furthermore, it is also the job of the Court to give a definition to the term ‘disability’ since there is no uniform definition of disability across the EU.43 This definition is necessary to 36 Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The
United Nations Convention on the Rights of Persons with Disabilities, vol 74 (Intersentia 2015), 96.
37 Broderick & Ferri (n 5) 302.
38 Employment Equality Directive (n 29) art 5. 39 Ibid Preamble Recital 20.
40 Ibid Preamble Recital 21.
41 Case 6-64 Flaminio Costa v E.N.E.L. (ECJ, 15 July 1964). 42 Case 106/77 Simmenthall II [1978] ECR 1978-00629, para 21. 43 Favalli and Ferri (n 34) 7.
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create consistency with public policies.44 The Court has given multiple definitions, before the ratification of the CRPD, which were not based on the social model of disability but rather on the medical model.45 After the adoption, but not yet ratification, of the CRPD the Court ruled in the Coleman case that people being discriminated by association on the basis of disability could also rely on the protection of the Employment Equality Directive.46 In this case a woman with a heavily disabled son needed extra time of work to take care of him which was refused, even though parents with a non-disabled child were granted flexibility of their schedules. Her employer made a direct distinction between her and her colleagues with non-disabled children. The Court stated that this was not allowed since she fell under the protection of the Employment Equality Directive and was discriminated against by association.47 After the ratification of the
CRPD the Court’s previous view was overruled via consistent interpretation through Article 216(2) TFEU. In the Ring & Werge case the Court based its new definition on the social model stating that: ‘the concept of disability must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’.48 The difference here is that the medical model requires the disabled individual to fit into society rather than requiring society to adapt to the disabled individual. The social model identifies social barriers as the actual disability, stating that disabled citizens only have a disability because society does not adapt to them. This shift from the medical to the social model of disability also created a shift in the legal field from social security law towards equality law.49
Later, the Court slightly changes its definition again in the Z. v A Government
Department case.50 Where it became apparent that even though the CRPD refers to disabled
people in society in a broad sense, the definition given above by the Court only regards participation in professional life.51 The Court repeats this definition in the Glatzel, Kaltoft and
Daoudi cases, adding in the Kaltoft case that it is up to the national courts to decide if obesity
falls under the definition of disability.52 The Court also adds a definition for ‘long-term’ in the
44 Ibid 9.
45 E.g. Case C-13/05, Sonia Chacón Navas [2006] ECR I-06467, para 43. 46 Case C-303/06 Coleman [2008] ECR I-5603.
47 Ibid para 50.
48 Joined Cases C-335/11 and C-337/11 Ring & Werge (ECJ, 11 April 2013), para 38.
49 Lisa Vanhala, ‘The Diffusion of Disability Rights in Europe’ (2015) 37 Human Rights Quarterly 831, 840. 50 Case C-363/12 Z v A Government Department (ECJ, 18 March 2014), para 76.
51 Silvia Favalli and Delia Ferri, ‘Defining Disability in the European Union Non-discrimination Legislation:
Judicial Activism and Legislative Restraints’ (2016) 22 European Public Law 537, 555.
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Daoudi case as a limitation that does not have a clear prognosis with regard to short-term
progress.53 One of the latest decisions of the Court is the Ruiz Conejero case where the Court ruled that national legislation that allows employers to dismiss workers on the basis of justified absences from the workplace that are a result of their disability to be incompatible with the Employment Equality Directive, specifically Article 2(2)(b)(i) of that Directive.54
What becomes clear from the previous section it that the CJEU keeps changing their position in regard to the definition of disability and a disabled worker, this makes it difficult for disabled citizen to know their position and rights. It is currently unclear when citizen fall under the definition of ‘disabled’ and/or fall under the definition of ‘worker’. A clear definition by the EU legislator would prevent this constant uncertainty regarding the scope of the rights of disabled workers.
To conclude, disability law on a domestic level is mostly regulated by European law through the principle of supremacy. Disability law is a shared competence making both the Member States as well as the EU responsible for the equal treatment and non-discrimination of disabled Union citizens. The current system does not require domestic law systems to be transparent neither obliges Member States to facilitate access to a judge when disability allowances are denied which go against the rule of law requirements. The Employment Equality Directive is still the cornerstone of non-discrimination law in this field but falls short for disability rights protection. The adoption and ratification of the CRPD added an extra layer to disability law and helped broaden the protection of rights for disabled people. However, through incorrect implementation of the CRPD and the vague position of the CJEU it remains unclear what areas, along with which citizens, are protected by EU disability law.
Chapter 3: The Netherlands vs Ireland; a case study
To give an example of how European disability law influences the domestic legal systems of the Member States and the possibility of free movement for disabled citizens, a case study shall be conducted that will compare two Member States’ disability law systems.
3.1 Introduction
The Netherlands is a monist country with a civil law system whilst Ireland is a dualist country with a common law system. On paper these countries seem to be on either end of the spectrum, nevertheless they are both members of the EU. The comparison of these countries will focus on
53 Case C-395/15 Daoudi (ECJ, 1 December 2016), para 56. 54 Case C-270/16 Ruiz Conejero (ECJ, 18 January 2018), para 57.
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the way that both countries have implemented primary and secondary European disability law in their respective legal systems and what effect that has on the free movement of disabled citizens and the human rights protection of the disabled community. This case study is meant to broadly give an idea of the problems that disabled citizen face in the current system, created by the wide discretion that Member States enjoy when adhering to EU law. As Beth Simmons has stated, ‘Human rights are highly contingent on the nature of domestic demands, institutions and capacities.’55
First, a short introduction to the Dutch disability law system and its history will be given. Consequently, an overview that shows the implementation of the CRPD by the Dutch authorities and how this changed the position of disabled citizen in the Netherlands will be examined. Ultimately, an in-depth summary of the current domestic disability law system will be discussed as well as the problems that occur with it. Similarly, the Irish system will be examined, concluding with a comparison between the systems of both countries.
3.2: The Netherlands
3.2.1: A short introduction to the Netherlands and disability law
To focus on the first country, the Dutch have praised themselves as being a progressive people with regards to social rights, this seems rightfully so on a first glance. For instance, the Netherlands was the first country to legalise same-sex marriage, it was also one of the frontrunners for the legislation of the right to abortion back in 1981.56 This gives the impression that the Netherlands is a liberal country with regards to social rights. However, this does not seem the case for disability rights, especially when looking at disabled people and their access to the labour market. According to the latest numbers of Eurostat from 2014 Dutch disabled citizen, with the ability to work, have an unemployment rate of 9.6%. This is over double the amount of the unemployment rate for non-disabled citizens.57 This gap constitutes the highest
55 Barbara Oomen, ‘Between Signing and Ratifying: Preratification Politics, the Disability Convention and the
Dutch’ (2018) 40(2) Human Rights Quarterly 420, 424.
56 Wet openstelling huwelijk 2001 (English: the marriage bill); Wet afbreking Zwangerschap 1981 (English: law
on the termination of pregnancy).
57 Roy Peijen and Ton Wilthagen, ‘Labour Market Reintegration of Individuals with a Physical and Cognitive
Disability by a Company-Based Work-Experience Program’ (2020) online International Journal of Disability, Development and Education 1, 1.
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gap in unemployment rate between disabled and non-disabled citizen of all the 27 Member States of the European Union (EU-27).58
This gap can partly be explained by looking at the history of disability rights in the Netherlands. Disability activism has not been clearly present, it has not received as much attention as other subjects did.59 In the early 1990’s the services that became available for disabled citizens seemed to mostly be of a segregated character, disabled citizens were put in boarding schools or foster families that were trained to take care of them. This trend of separation continued throughout the years.60 The result of this segregation can still be seen
today; disability does not seem fully normalised yet.
When looking at the developments in the conceptual and practical approaches, the Netherlands have mirrored surrounding countries such as Germany, the UK and Belgium. However, in these developments they have always been a step behind, implementing new measures years, and sometimes even decades, later.61 This trend continued into the 21st century when signing the CRPD.
3.2.2: The signing and ratification of the CRPD
In 2007 the Netherlands became a party to the CRPD, one of the now 182 parties to do so. In spite of this early signing, it was not until 2016 that the Netherlands actually ratified the CRPD. To put into perspective, the average time for parties to ratify the CRPD was two years and seven months.62
The biggest issue that the Dutch had with the CRPD revolved around Article 9(1) of the Convention in combination with General Comment No 2 of the CRPD Committee. Article 9(1) and the General Comment both concerned accessibility to public places for disabled citizens. The CRPD required States to take measures to make sure that private parties that offer either facilities or services in a public sphere need to be fully accessible for citizens with disabilities. According to the Committee this duty for the States was unconditional.63 Article 9 of the CRPD
may not in substance be important when comparing the rights of disabled workers and their free
58 Marjolein Büscher-Touwen, Marian de Groot and Lineke van Hal, ‘Mind the Gap between Higher Education
and the Labour Market for Students with a Disability in the Netherlands: A Research Agenda’ (2018) 6(4) Social Inclusion 149, 150.
59 Luc Brants, Paul van Trigt and Alice Schippers, ‘A short history of approaches to disability in the
Netherlands’ in Roy Hanes, Ivan Brown and Nancy E. Hansen (eds), The Routledge History of Disability (Routledge 2018), 150.
60 Ibid 157. 61 Ibid 160.
62 Oomen (n 55) 421. 63 Ibid 437.
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movement, which is what this research is focused on, but it does give a clear image to the approach that the Dutch government has towards disabled citizens. During the negotiations regarding Article 9, the Dutch State Secretary declared that the CRPD does not have any consequence for private parties.64 This concerned not only Article 9 but the entire CRPD. If what he said is legitimate then this would mean that private parties do not have to adhere to the CRPD, denying any horizontal effect the CRPD might have. Moreover, the State Secretary continued and declared that the CRPD does not have direct effect.65 Dutch disabled citizens
can, according to him, not invoke the CRPD before a national court. However, this is still a matter that has to be decided by the Dutch judges.
Evidentially, the Dutch government ratified the CRPD seemingly without reservation to Article 9. Nevertheless, they did transpose Article 9 in such a way that a reservation is almost implied. Whilst transposing they made an amendment to the Law on Equal Treatment on the Basis of Handicap or Chronic Disease (Wgbh/Cz).66 This amendment obliged parties, according to Article 9 CRPD, to provide reasonable accommodation for disabled citizens without imposing an unreasonable burden. However, they did not reference any of the other obligations set out in Article 9 CRPD.67 The incorrect transposition of the CRPD is what makes the domestic law systems so difficult for disabled workers to comprehend. EU law does not give clear guidelines to Member States on what rights disabled workers enjoy, this untransparent and insecure access to allowances are a violation of the CRPD.
3.2.3: The Dutch domestic disability law system
Next to international law, the Dutch have their own domestic laws regarding disability. These laws need to adhere to the requirements laid down by EU primary and secondary law.
Dutch domestic law went through a change at the start of 2004. When a new system of support for disabled persons was created. The revision of the old system started between 2004 and 2009, when a substantial reassessment was made in regard to citizens that received long term disability benefits.68 The new Disability Benefits Act was introduced in 2005 that is called
64 Brief van de Staatssecretaris van Volksgezondheid Welzijn en Sport (English: Letter of the State Secretary of
Public Health, Wellbeing, and Sports), Tweede Kamer, Vergaderjaar 2015–2016, 33 990, nr. 25.
65 Ibid.
66 In Dutch: wet gelijke behandeling handicap of chronische ziekte, article 2(a). 67 Oomen (n 55) 438.
68 Cathelijne van der Burg and Rienk Prins, ‘Employment instead of benefit receipt? Process and outcomes of
17
the WIA, this is the abbreviation for the Work and Income (Capacity to Work) Act.69 This act made a distinction between two types of benefits that disabled citizen can acquire.
The first type is the IVA-benefit, this benefit can be received if the person concerned is completely incapacitated, or at least 80%, for work due to disability or illness and has no, or only a slight, chance of recovery. Disabled citizens are only entitled to this benefit after at least two years of sickness. The second type is the WGA-benefit, this benefit can be obtained if a worker is temporarily or partially incapacitated for work, at least 35%, due to illness or invalidity.70 This benefit can also only be accessed after two years of incapacity. If the disabled
citizen is less than 35% incapacitated due to disability or illness, they do not receive any right to a benefit. Both these benefits only allow the disabled citizen to earn 65% or less of their previous income. Moreover, self-employed disabled citizens need to take out a private insurance otherwise they cannot enjoy these benefits in the event of incapacity for work.
Furthermore, the Law on Participation (2015)71 made an end to social work facilities and made municipalities the main responsible actor for people with a functional disability who are able to work.72 The new Law on Social Support that was also introduced in 2015, had severe budget cuts for those municipalities.73 This made the Law on Participation highly criticised by the disabled community.74 The disabled citizens that fell under the Law on Participation were barred from the highly contested Wajong law, which is the disability act for young disabled citizens.75 Young disabled citizen can apply for a Wajong-benefit if they are between the ages of 18 and 30 and are legally living in the Netherland. As previously shown in the Hendrix case the Wajong-benefit is not exportable, even if the person keeps on working in the Netherlands and purely moves outside of the borders.76 The before mentioned budget cuts were needed, according to the Dutch government, to stimulate disabled citizens to take up regular jobs and become a part of society and in that way normalizing disability.
However, a 2016 social study showed that only 17% of Dutch employers have employees that are disabled, with one third of the employers stating that they did not see inclusion of disabled workers as their responsibility.77 In 2018 the Jobs Agreement between the
69 In Dutch: Wet Werk en Inkomen naar Arbeidsvermogen 2005.
70 Frans Pennings, ‘The New Dutch Disability Benefits Act: The Link Between Income Provision and
Participation in Work’ in Stamatia Devetzi and Sara Stendahl (eds), Too Sick to Work? Social Security Reforms
in Europe for Persons with Reduced Earnings Capacity (Kluwer Law International 2011), 82.
71 In Dutch: Participatiewet 2015.
72 Büscher-Touwen, de Groot and van Hal (n 58) 150.
73 In Dutch: Wet Maatschappelijke Ondersteuning (WMO) 2015. 74 Oomen (n 55) 444.
75 In Dutch: Wet Arbeidsongeschiktheidsvoorziening Jonggehandicapten 2015. 76 Hendrix (n 10).
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government and employers was made to combat this. A disabled person can fall under the Jobs Agreement if they are unable, because of their disability or illness, to earn minimum wage.78 This constitutes a good improvement for social inclusion for disabled workers, but it does not keep in mind the highly educated disabled citizen that will almost automatically fall outside this target group. This results into a huge development that needs to be made to normalize disability on the work floor. A new more transparent system might be able to show employers what benefits they receive from hiring disabled workers as well as provide disabled workers access to a judge when they are being denied work based on vague or discriminative reasoning.
3.2.4: Conclusion
The Dutch and disability law have a complicated relationship. The lack of attention at the early stages of the introduction of social rights has resulted into the Netherlands continuingly being one step behind on disability law. The ongoing battle of social inclusion is obviously present when looking at the implementation of international law such as the signing and ratifying of the CRPD. Also, when looking at the domestic law the Dutch have a peculiar image of social inclusion of disabled citizens and struggle to normalise disability, which is especially noticeable on the field of the labour market.
3.3: Ireland
3.3.1: A short introduction to Ireland and disability law
The second country that will be discussed is Ireland. Ireland is, as beforementioned, a dualist country with a common law system. To focus on disability, according to the 2014 numbers of Eurostat the unemployment rate for disabled citizens is 22.6%. This is a high number, however, Ireland’s unemployment rate for non-disabled citizens is 14.9%, also a high number. The average difference in the EU-27 is 1,85, Ireland is currently below that, but the difference is still significant being almost 8%.
Ireland is one of the few countries that has commissioned national surveys of the public opinion regarding disability, these surveys are assigned every five years.79 In this survey specific topics are addressed to get an overview of the public opinion on the participation of disabled citizens in society. The results of these surveys lead to a paradox. A paradox where
78 Büscher-Touwen, de Groot and van Hal (n 58) 152.
79 Roy McConkey, ‘Public Perceptions of the rights of persons with disability: National surveys in the Republic
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the public became more open to and supportive of the protection of disability rights whilst they also seemed to conclude that there was an increase in lack of rights for disabled citizens.80 This can be explained by the fact that citizens became more informed and started to notice the problems of the current system that they were oblivious to before.
Unfortunately, there is still a huge gap in the disability rights system in Ireland. This can be seen through their legislation. The attempts made to trigger government action through litigation have generally failed in the past 20 years.81 The main problem is the lack of
enforceable rights in a court of law, through the virtually complete absence of legal remedies.82
This, combined with a conservative stance by the Supreme Court of Ireland when it comes to socio-economic rights, leaves Irish disability law at a stand-still until the signing of the CRPD.
3.3.2: The signing and ratifying of the CRPD
Ireland was one of the first 40 countries to sign the CRPD back in 2007. Nevertheless, they were the last of the EU-27 to actually ratify it, eventually doing so in March 2018 almost exactly 11 years after signing it.83 The usual route for Ireland to implement international agreements is through a proposal that the Minister of Foreign Affairs offers to the Government. The Government will then seek legal advice from the Attorney General. Once this proposal is approved under Article 29.4 of the Constitution of Ireland 1937, the instruments for ratification can be deposited by the Irish representatives in the UN.84 The legal consequences are therefore limited when Ireland becomes part of an international human rights treaty.
The biggest problems that Ireland faced with the CRPD were Articles 12, 14 and 27. The late ratification of the CRPD can mostly be explained by Irish domestic law not meeting the requirements of those articles.85 Fresh legislation was therefore necessary to meet those
requirements, with especially Article 12 being a problem.86 Article 12 CRPD contains the right
to equal recognition before the law, this encompasses the legal capacity for people with disabilities. Ireland did eventually ratify the CRPD but did make a reservation on Article 12
80 Ibid 137.
81 Jurgen de Wispelaere and Judy Walsh, ‘Disability Rights in Ireland: Chronicle of a Missed Opportunity’
(2007) 22(4) Irish Political Studies 517, 519.
82 Ibid.
83 Gerard Quinn, ‘Bringing the UN Convention on rights for persons with disabilities to life in Ireland’ (2009) 37
British Journal of Learning Disabilities 245, 245.
84 Eilionóir Flynn, ‘The Long Road to Ratification: Ireland and the CRPD’ in Emily Julia Kakoullis and Kelley
Johnson (eds), Recognising Human Rights in Different Cultural Contexts: The United Nations Convention on the
Rights of Persons with Disabilities (CRPD) (Palgrave Macmillan 2020), 134.
85 Claire Murray, ‘Moving Towards Rights-based Mental Health law: The Limits of Legislative Reform’ (2013)
49 Irish Jurist 161, 166.
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stating that: ‘(…) to the extent Article 12 may be interpreted as requiring the elimination of all substitute decision making arrangements, Ireland reserves the right to permit such arrangements in appropriate circumstances and subject to appropriate and effective safeguards.’ Even though Article 12 is not directly about rights for disabled workers, it showcases the general opinion of the Irish government regarding disabled citizens and their equal recognition before the law.
In the time that Ireland had signed but not yet ratified the CRPD, a number of cases relating to it came to the various courts of Ireland. The most notable one was M.X. v HSE of the High Court, that revolved around the direct applicability of the CRPD especially since it was also signed by the EU.87 The Irish Court stated that the CRPD was not directly applicable in
Irish law. However, the appointed judge did state that this did not mean that the CRPD was entirely immaterial and also recognised that the law in this area is evolving, in both the legislative as well as the judicial areas.88
3.3.3: The Irish domestic disability law system
Disability law was hardly present in the Irish domestic law system before 1996. In 1996 the Commission on the Status of People with Disabilities was introduced. This Commission wrote a report that delivered key recommendations to the change of the disability law system that allowed for the Disability Bill 2001 to be introduced.89 This bill was quickly withdrawn in February of the next year because of a strong opposition of disability groups. Later, the National Disability Strategy of 2004 was launched that introduced three new acts: The Disability Act 2005, The Education for People with Special Education Needs Act 2004 and The Citizens Information Act 2007. These three acts together were seen as the most progressive pieces of legislation for Ireland at the time.90 Sadly, there were some problems with it since they all
seemed to lack any ‘real’ legal remedies.
The Disability Act 2005 provides for the right to an independent assessment of need for disabled Irish citizens.91 This assessment is done by an assessment officer who is independent
in carrying out their tasks and with no regard to the costs that providing a certain service requires.92 The Act also provides a complaints procedure for citizens that are not satisfied with their assessment. However, this is a highly complicated procedure that makes it difficult to
87 High Court of Ireland MX v HSE [2012] IEHC 491. 88 Murray (n 85) 176; MX v HSE (n 87) para 49. 89 de Wispelaere and Walsh (n 81) 519.
90 Ibid 517.
91 Disability Act 2005, Section 8-9.
92 Eilionóir Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities:
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exhaust all potential remedies, in addition, even if all potential remedies can be exhausted the facts of the decision related to the assessment cannot be reviewed by a judge. The complaints procedure is almost completely internal and therefore does not constitute any legal remedies.93 This seems to go against the rule of law requirements of access to a judge, legal certainty and transparency.
Moreover, even though the introduction of these three acts are a step in the right direction there is still a huge amount of improvement necessary to normalise Irish disabled citizens participation in society, especially in regards to the labour market.94 Employers still
have a lack of knowledge when it comes to state support schemes that are available to them, which result into them not hiring disabled employees.95
3.3.4: Conclusion
Ireland is seen as a conservative country; this is reflected in their relationship with disability law. The high unemployment rates of disabled citizens and the decade it took to ratify the CRPD give a good example of that. However, it seems that change and progress are on the horizon, disability strategies are being formed and judges seem to recognise change, with the possible result of a revolution on the field of disability law. It will mostly be interesting to see the development of the CRPD in Court now that it has finally been ratified.
3.4: A comparison between the Dutch and Irish systems
First and foremost, when comparing Ireland and the Netherlands, a difference occurs within the way these countries implement international law. Ireland is a predominantly dualist country whilst the Netherlands is mainly a monist country. In pure dualistic states the international law does not exist in domestic law prior to transposing it. In a pure monist state international law does not have to be transposed into national law, since it is automatically incorporated in domestic law. Most countries are a combination between both but do have a tendency towards one side. In theory this seems like a big difference but in practice the political processes often do not differ in a significant way.96 International law usually requires amendments to already existing legislation or the creation of fresh legislation either way.
93 Ibid.
94 Clodagh Nolan and Claire Irene Gleeson, ‘The Transition to employment: the perspectives of students and
graduates with disabilities’ (2017) 19(3) Scandinavian Journal of Disability Research 230, 231.
95 Ibid 233.
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Secondly, when comparing the histories of both countries and their relationship with disability law, a similar development tends to appear. Both Ireland and the Netherlands have a relatively short history with disability law, it only became an important discussion around 20 years ago. This short history is reflected in the public opinion that citizens seem to have towards disability law and equal treatment of disabled citizens. The Dutch government for instance simply stated that if blind people cannot read a menu in a restaurant, they should ask someone in the restaurant to read it out for them, concluding that would be enough.97 The Irish
government feels that ensuring a possibility for ‘real’ legal remedies is not yet necessary.98
Fortunately for disabled citizens, in both countries a positive trend began with people starting to become more aware and informed on disability rights.99
Thirdly, this upcoming awareness can partly be explained by the implementation of the CRPD. Both countries signed the CRPD in 2007 and both countries implemented it way later than average, for the Netherlands this was nine years, for Ireland almost eleven. They both had problems with ratifying the Convention since neither agreed with everything the CRPD entailed. Eventually, both countries did ratify the Convention with Ireland making a reservation on Article 12 and the Netherlands transposing Article 9 slightly different in their own domestic law, therefore implying a reservation.100 This created a difference in the amount of protection disabled citizens can receive in both countries.
Fourthly, both countries have an incredible number of disabled citizens that are able to work but are currently unemployed. In the Netherlands the disabled unemployment rate is more than twice the amount of non-disabled unemployment rate whilst in Ireland the disabled citizens that are unemployed are almost one fourth of every disabled citizen that is able to work. This is a huge amount which can be explained by the limited amount of positive obligations and enforceable rights. The Dutch government took away a large part of the funding for municipalities that are the main responsible actor for disabled workers. Moreover, one third of the Dutch employers stated that they did not see inclusion of disabled citizens as their responsibility. To combat this the Netherlands created the Jobs Agreement for social inclusion. However, this only includes people that would earn less than minimum wage and not the highly educated disabled citizens. In Ireland there is a similar trend, the lack of real legal remedies, with assessments of social funds being made behind closed doors with no possibility to combat
97 Ibid 438.
98 de Wispelaere and Walsh (n 81) 519. 99 McConkey (n 79) 129.
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them, constitutes an enormous problem. Irish disabled citizens are deprived of legal certainty and the right to judicial review which are core aspects of the rule of law and therefore of the EU. Moreover, the lack of knowledge on this field does not help this problem, since disabled citizens, as well as employers, do not know what their rights are.
Both Ireland and the Netherlands have notable gaps in their systems when it comes to disability law. These disparities created a barrier for disabled citizen to make use of their free movement right, as shown above, acquiring disability allowances in both countries are based on vague conditions that differ greatly between the two compared countries. Moreover, the process of assessing whether a disabled citizen can rightfully obtain such allowances is non-transparent and almost seem arbitrary. This comparison gives a good example of how vastly different two domestic law systems can be based on the system of coordination that is currently being used by the EU. Apart from the gaps visible in the free movement right of disabled citizen, the basic human rights of equal treatment, non-discrimination and equal recognition of disabled citizens in a court of law, that are obtainable through the CRPD, also seem to be mostly ignored with both Ireland and the Netherlands making reservations to articles that constitute these fundamental rights. In the next chapter the possible solutions to these significant problems will be discussed when looking at the action the EU might undertake to solve the incompatibilities of the current system with free movement and human rights.
Chapter 4: Possible solutions
As shown above, the main problems with the current system are the lack of transparency and the inability for disabled workers to access a judge. These problems become especially evident when disabled workers move to and reside in another Member State. So far, the EU has not undertaken any excessive action to combat this issue. This chapter will focus on the possible solutions the EU can take to solve the incompatibility of the current system with free movement and human rights.
First and foremost, the most obvious solution would be to change the exportability of the non-contributory benefits. If disabled citizens could take their disability allowances with them when moving to another Member State, their freedom of movement would not be infringed. However, this option would not solve the discrepancies with human rights since this solution does not solve the disparities between the national law systems of Member States. For instance, employers can still be hesitant to hire a disabled citizen. Sure, it would solve the obstacles to free movement but in the wider context of disability rights, disabled citizens would still be at a huge disadvantage which makes this not a waterproof solution.
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Secondly, there is the possibility for the EU to adopt a new legal act relating to the rights for disabled workers. Before discussing the scope of such a measure, the first question is whether the EU can act at all, for this the legal basis needs to be determined.
4.1: The legal basis
The decision of the legal basis states an objective consideration of the aim and context of the text itself, no subjective considerations are allowed.101 The current Regulation 883/2004 that
manages the disability allowances, the non-contributory benefit, is based on Article 48 TFEU combined with Article 352 TFEU. This legal basis allows for measures to be adopted on the field of social security to secure the free movement of workers. Social security is a highly controversial area of law for the EU and its Member States since it is a poorly developed area at the EU level.102 It seems that social security instruments are located somewhere between hard and soft law. They are legally binding but there are not hard sanctions that can be imposed to actually force a compliance.103 Social security can be useful to create a minimum standard but since it is such a controversial issue rooted deeply in the socio-economic status of Member States it has certain limitations. Therefore, Article 48 TFEU is not the best choice in regards to the legal basis for the measure that will be proposed.
The next option could be Article 19 TFEU, this article entails the principle of non-discrimination on the basis of, among other things, disability. The problem with Article 19 TFEU as a legal basis is that a more difficult procedure is prescribed that can create a problem. For a measure to be adopted on the basis of Article 19 TFEU unanimity of the Council is necessary for appropriate action. This is way more difficult to achieve than when the ordinary legislative procedure is used that certain other articles prescribe. Therefore, Article 19 TFEU is not the greatest option to create a legal instrument.
Other articles such as Article 114 TFEU, that regulates the internal market, and Article 21 TFEU, that states the right to move and reside freely in other Member States, can come to mind. However, Article 114 TFEU is limited by its exclusion of the free movement of persons and any rights related to employed persons laid down in paragraph 2 of the same article. Article 21 TFEU is not a valid option since it entails the free movement rights overall and does not purely focus on the right for workers which this proposed measure is intended to focus on.
101 See to that extend: Case C-376/98 Tobacco Advertising I [2000] ECR I-08419, paras 59-60.
102 Tineke Dijkhof, ´The Contested Value of International Social Security Standards in the European Union´
(2012) 14 European Journal of Social Security 174, 180-181.
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The most obvious option is therefore Article 46 TFEU, in combination with Article 45 TFEU. Article 46 TFEU allows for regulations and/or directives to be made to bring about free movement for workers. This article prescribes the ordinary legislative procedure laid down in Articles 289(1) and 294 TFEU and allows for a certain procedural harmonisation of rights for disabled workers. The scope and format of this proposed measure shall be discussed below.
4.2: The scope and format of the proposed measure
One of the most importance issues that Member States have struggled with is the identification of a disabled worker. The EU legislature has currently left this to the discretion of the national authorities.104 The definition for disabled worker is extremely important for legal certainty. If
the EU legislature does not give a definition, a disabled worker, when moving to another Member States, has the possibility to be denied an allowance in the new Member State even though they did receive it in the previous Member State. The EU legislature has also not given a definition to the term ‘worker’ but the CJEU has defined this in the famous Lawrie-Blum case.105 Nevertheless, the CJEU also points out that a single definition of worker is not present in EU law since it all depends on the situation.106 Moreover, according to the Comparative Report of the European Commission of 2015 many that are workers according to the
Lawrie-Blum criteria are still being deprived of rights.107 This leads to the conclusion that a mere definition by the CJEU does not establish any legal certainty. A definition by the EU legislature is necessary, since arbitrary differences in the treatment of persons with disability as well as their recognition as workers could result into disability discrimination and in that way create an obstacle for the free movement of disabled workers.108
A procedural harmonisation through Article 46 TFEU would be the best solution to solve the problems that occur in the current system. Article 46 has the possibility to create a system that is transparent and allow for access to a judge through the possibility of an infringement procedure either vertically, when the authorities denies them disability allowance, and horizontally, when an employer does not treat them equal to other non-disabled workers. For the measure the same format will be used as is used for the Services Directive
104 Anna Gerbrandy, Willem Janssen, Lyndsey Thomsin, ‘Shaping the Social Market Economy After the Lisbon
Treaty: How ‘Social’ is Public Economic Law’ (2019) 15 Utrecht Law Review 32, 40.
105 Case 66/85 Lawrie-Blum [1986] ECR 1986-0212, para 17.
106 E.g. Case C-85/96 Martinez Sala [1998] ECR 02691, para 30; also, Case C-256/01 Allonby [2004] ECR
I-00873, para 63.
107 Commission, ‘Comparative Report 2015: the concept of worker under Article 45 TFEU and certain
non-standard forms of employment’, 8.
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2006/123/EC.109 This will be a procedural harmonisation measure that allows for the possibilities of exceptions if they are proportionate and subsidiary, since disability allowances are closely linked to the socio-economic status of the different Member States.110 Moreover, this measure shall solely be focused on disabled workers and exclude any non-economically active disabled citizens.
The main point of this measure is related to the definition of disability and the definition of a disabled worker, defining the term disability and the term worker for disabled citizens and also state the limitations of these definitions. The exact definition of a disabled worker needs to be researched and the opinions of all Member States and their current definitions in national law should be taken into account. The most important objective is that the definition, however it may be, is the same for all Member States. This will create legal certainty and transparency.
The second point will focus on the points of single contact. Similarly to Article 6 of the Services Directive, this article will demand that Member States will provide points of single contact. These points of single contact will provide all the information needed through electronic means at a distance and are required to be regularly updated. Furthermore, this information needs to be easily accessible to both providers and recipients. This will help disabled citizen and employers alike since one of the main complaints was that both did not know their rights.
The third important requirement is the infringement procedure. The proposed measure should state the right to access a judge when disability allowances are denied by the Member States or when an employer does not want to hire a disabled worker based on discriminative grounds. Obviously, some type of work cannot be completely fitted to the disabled worker, exceptions are allowed. However, this exception should not be misused since studies have shown that employers remain hesitant to offer jobs to disabled workers.111
The fourth point of the proposed measure is the non-discrimination clause. Member States have to ensure that the recipient will not be discriminated based on the recipients’ nationality or place of residence. Since, this measure is being made to allow for free movement for disabled workers they should also not be discriminated based on their nationality.
The last important objective of the measure is the obligation for Member States to make clear rules regarding the state aid given to employers that hire disabled citizens. Currently, it is
109 Services Directive (n 18).
110 The CJEU also mentions this argument in the before-mentioned Hendrix case (No. 10), para 55. 111 Irmgard Borghouts-Van De Pas, ‘Labour Market Participation of the Disabled: Policies and Practices in
