"...And the Mountain Gave Birth to a Mouse"

by Rodolfo Cattani

Disappointment following the unsuccessful disability specific directive of the
European Commission.


After a first informal announcement which presented the specific directive to combat discrimination on the grounds of disability, the European Commission stepped back and decided to present the proposal for a cross-cutting directive establishing a general framework for equal treatment prohibiting any discrimination not only on the grounds of disability, but religion or belief, age or sexual orientation. As a matter of fact, from the moment the Commission was accepting the request from the disability movement culminating with "1 million 4 disability", which gathered 1,300,000 signatures, a lot of pressure from parliamentary groups of liberal and socialist Europeans, and a few Commissioners, succeeded in negatively orientating, by a handful of votes, the position of the European Parliament.
The Commission had also planned to present two different directive proposals, but the option to grant all motives of possible discrimination in a single proposal was passed because of the firm belief that it would be easier to receive assent for the more controversial aspects like religion and faith and sexual orientation. The proposal was therefore presented by the Commissioners' College last July 2nd.
The European Disability Forum immediately took position, commenting the proposal with much criticism. The passed document is decidedly poor and the provisions regarding the area of disability are concentrated in a single article (4).
In terms of content, the proposed directive presents severe limitations, most of all in regards to the right of access to education and specific financial services, particularly insurance.
There is also great confusion between the principle of "reasonable accommodation" and the one relating to the preventive adoption of measures allowing persons with disabilities effective access to protection and social services, education and access to goods and services available to the population, entailing a fundamental limitation to the principle of accessibility. There comes also heavily into play the principle of "disproportionate burden" maybe rendering fruitless the actual enjoyment of numerous rights. The proposal seems without a doubt a retrogression in regards to the more advanced legislation of some state members, in particular on the issue of accessibility, and constitutes a very negative sign in relation to the application in the European Union of the Convention of the United Nations on the rights of persons with disabilities.

Immagine - Manifesto della campagna: “1 million 4 disability”The reaction of civil society and trade union organizations and networks was on the contrary rather favourable. The Social Platform, the trade union organizations and some groups advocating human rights had positioned themselves in favour of a cross-cutting directive which included all causes for discrimination contained in Article 13 in the Treaty of the Union. In fact, the directive can be sufficient for organizations defending the human rights of persons at risk of discrimination for their sexual orientation. Less favourable, on the contrary, were the reactions of organizations representing seniors and minority groups based on race, ethnicity and religion. These groups are working to coordinate their response to the proposed directive. The European Commission, on its part, considers that the proposal has a large scope relating to the competence and limitations sanctioned by Article 13 and is optimistic concerning its quick assent. The European Parliament will have to come to a decision shortly and it is predictable that its judgment will be favourable. The European Council, finally, will be called to take the final decision which could be rather hard-won. If the actual French Presidency seems to be inclined to give its assent in the short term, but some state members are still holding up. Germany would like to reach an eventual adoption only after its national elections in the fall of 2009, and the United Kingdom still has reservations about the issue of discrimination against older adults. Spain is favourable to the adoption, but the majority of countries still seem to be undecided. France does not express itself, since it has at the present time the Presidency of Europe, but it does not seem to have the intention to get deeply committed towards the adoption. What's more, the vagueness of the text could facilitate its agreement, reducing objections by state members.
The European Disability Forum is studying various strategic options, inclined finally for the more positive one: attempt to improve the proposal during the course of its legislative procedure, avoiding the adoption of a conflicting attitude with European institutions or other organizations representing groups at risk of discrimination.
The pure and simple rejection of the proposal, though it is coherent with the statement "1 million 4 disability", could be counterproductive just like an excessively delaying tactics. The future perspectives are not however very rosy, and the missed adoption of the actual proposal would not guarantee in any way the presentation of a new text by the Commission which will be installed in 2009. If on the part of the institutions there is some opening, the result of the chosen strategy could be partially positive.

Foto - Corteo della campagna “1 million 4 disability” a Brussels il 4 ottobre 2007

Immagine - Pagine da Citizens Gathering 
It could be possible to work on improving Article 4 and the paragraphs relating to education and financial services. The reintroduction of the request of a disability specific directive is not to be excluded, but will not be possible before 2010.
This implies a long-term strategy which could be based on the identification of a new legislative basis. However, even the attempt in developing an initiative in the area of accessibility could fail since the atmosphere is not encouraging. As a matter of fact, it was expected that the Commission proposed a directive on e-Accessibility, while instead at the moment we are writing these lines, there is only the perspective of a provision concerning Web accessibility. On the other hand, a directive based on the access to goods and services does not seem particularly adapted to cover the fundamental aspects such as access to education, independent living, etc.
To exit the dead end, a European agreement on disability between state members could be proposed, but this hypothesis seems unrealistic.
In conclusion, we have to repeat that the cross-cutting directive proposal passed by the Commission is devoid of any ambition and is absolutely not in line with the principles of the convention of the United Nations on the rights of persons with disabilities, nor with the set of rules on equal treatment and anti-discrimination adopted by many state members. The area of disability is strongly penalized by not being able to report any effective and prescriptive progress, while it seems there is an obvious and disappointing “banalization” of the principles of the convention. There is a significant restriction of the rights, most of all in regards to the access to education and the enjoyment of financial services.
The language is imprecise and sometimes contradictory which leaves space to interpretation. Some of the legislative concepts introduced are not well defined, their scope not made clear (reasonable solutions, disproportionate burden, preventive application).
It can be asserted without a doubt that if this directive were to be adopted in its present form, it would not provide any advantage to persons with disabilities in Europe, but, on the contrary, it could provide entry to discriminatory attitudes and behaviours, penalizing strongly persons with disabilities who are expecting much else from European institutions. 
The mountain gave birth to a mouse: a lot of hope was unfulfilled, but the movement is not giving up. The European elections are around the corner.