Implementing International Disability Law in the European Union

Ottavio Quirico is a senior researcher in the Department of International Humanities and Social Sciences at the University for Foreigners of Perugia in Italy and a professor in the School of Law at the University of New England in Australia and the Centre for European Studies at the Australian National University. He is also a member of the Research Centre on Transnational Legal Relations at the Federal University of Paraiba in Brazil, an alumnus of the European University Institute in Florence and a member of the Doctoral Committee of the University of Pavia in Italy. Inter alia, he has been a Marie Curie fellow at University Pantheon-Assas in France and has acted as a consultant to the United Nations.

• List of abbreviations ixIntroduction: EU multi-layered disability regulation 11 The trajectory of disability rights: history and sources of EU disability law 51.1 A concise history 51.2 The EU and the Convention on the Rights of Persons with Disabilities (CRPD) 111.2.1 The (tripartite) structure of the CRPD 111.2.2 The EU and the CRPD as a mixed agreement 121.2.2.1 Substance: a matter of competence 121.2.2.2 Procedure: between national institutions and the Committee on the Rights of Persons with Disabilities (CtRPD) 141.2.3 Allowing individual petitions under the Optional Protocol to the CRPD 161.2.4 The CRPD between EU law and the law of the Member States 171.3 Expanding the frame: the EU and (soft and hard) international obligations outside the CRPD 211.4 Disability in the legal sources of the EU jurisdiction 231.4.1 Disability in the sources of EU law and the centrality of the Charter of Fundamental Rights 231.4.2 Disability in the sources of EU Member States’ law and the key role of action plans 271.5 Disability in the Council of Europe sources between the European Convention on Human Rights (ECHR) and the European Social Charter 291.6 Prospective accession of the EU to the ECHR and sources of disability law 311.7 From fragmentation to harmonisation? The concept of ‘disability’ and the scope of application of disability rules 322 Articulating the institutional framework between the EU and Member States 342.1 Outlining the EU institutional framework for the CRPD 342.1.1 Decision-making (primary rules) 382.1.1.1 The European Commission as the core legislative mechanism to implement disability policies (CRPD article 33(1)) 382.1.1.2 Parliamentary impulsion 412.1.1.3 The polyhedric action of the Council of the EU 432.1.2 Rights enforcement (secondary norms) 452.1.2.1 The composite EU framework to promote, protect and monitor the implementation of the CRPD (article 33(2)) 452.1.2.2 The CJEU, dualism and disability rights under the CRPD 472.2 Mapping national institutions under CRPD article 33 502.2.1 National frameworks to implement, promote, protect and monitor the CRPD: variable geometry 502.2.1.1 Implementing the social disability paradigm in Denmark 502.2.1.2 The plurality of CRPD mechanisms in France 542.2.1.3 Germany and the implementation of the CRPD in federal States 572.2.1.4 Applying the CRPD in Italy as a region-based system 612.2.1.5 Comprehensively implementing the CRPD in Latvia 642.2.1.6 Romania and disability rights balancing 662.2.1.7 Financing deinstitutionalisation in Slovakia 682.2.1.8 Ad hoc mechanisms to implement the CRPD in Spain 702.3 Nothing about Us without Us: effective participation through representative organisations? 732.4 Institutional competence for external action on disability: formal and informal channels 762.5 The Council of Europe system, disability and the accession of the EU to the ECHR 782.5.1 Mainstreaming disability rights through decision-making 782.5.2 Rights enforcement 792.5.2.1 The progressive disability policy of the European Committee on Social Rights 792.5.2.2 Lights and shadows in the disability jurisprudence of the European Court of Human Rights 812.6 Perspectives disclosed by the accession of the EU to the ECHR: progressing disability rights in the light of institutional attrition? 873 Improving inclusiveness through substantive regulation 903.1 Key directions: ‘twin’ transitions and the 2030 EU Disability Strategy 903.1.1 Substance: promoting accessibility internally and externally 913.1.2 Implementation: respecting, protecting and fulfilling disability rights 953.2 Including people with disabilities in the common market and policy 973.2.1 Fostering participation 973.2.1.1 Participation and accessibility 973.2.1.2 Harmonising accessibility 1013.2.2 Improving independent living 1043.2.2.1 Deinstitutionalising EU Member States 1043.2.2.2 Channelling funding into community-based services 1103.2.3 Achieving equal access through education 1123.2.3.1 The struggle for inclusiveness 1123.2.3.2 Improving inclusiveness 1173.2.4 Employment as a pathway to inclusion 1203.2.4.1 The request for an accessible labour market 1203.2.4.2 Comprehensively reforming employment as the centre of gravity for inclusion 1253.3 A disability-inclusive sustainable economy: the European Green Deal and disability 1283.4 Disability-oriented external action 1313.5 Parallel disability rights developments in light of the accession of the EU to the ECHR? 133Conclusion: Harmonising the layers 138Documents 140Cases 156Bibliography 160Index 169