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Update on the Proposal for a Council Directive on implementing the principle
of equal treatment between persons irrespective of religion or belief,
disability, age or sexual orientation
(Article 13 directive)
By Janina Arsenjeva
European Disability Forum
The European Disability Forum campaign for an equal treatment directive was based on a number of pillars:
- Article 13 of the Treaty on the Euroepan Communities that allows the European Union to take legislative measures to combat discrimination based on disability;
- Employment Directive adopted in 2000 that prohibits disability-based discrimination in employment;o The directive was warmly welcomed by EDF who nevertheless never ceased calling for more legislation to address discrimination in areas such as sectors, as provision of goods and services, housing, telecommunications etc.
- UN Convention on the Rights of Persons with Disabilities that was signed by the European Communities in 2007 and is now about to be ratified;
- The One Million For Disability campaign that managed, in 2007, to collect 1.3 million signatures in support of the comprehensive legislation against disability-based discrimination.
The EDF campaign called for prompt adoption of ambitious legislation
corresponding to the following demands:
- A directive as a step towards implementation of the UN Convention
- A directive taking account of the existing instruments (the Racial Equality Directive, the Employment Directive, the Air Passengers Regulation)
- A directive with a broad personal scope protecting all persons who are disabled or perceived disabled or may become disabled in the future, as well as protecting against discrimination by association
- A directive providing protection against discrimination in all areas of life (=broad material scope)
- A directive providing for strong dissuasive sanctions and remedies in case of violations
2. EUROPEAN COMMISSION PROPOSAL FOR A DIRECTIVEResponding to the many demands for a directive, the European Commission adopted a proposal on 2 July 2009. For the European Disability Forum, it had a number of strengths and even a longer list of weaknesses:
Strengths of the proposal:- Wide scope, covering health, education, social policy, access to goods and services;
- Refusal to provide reasonable accommodation is considered discrimination;
- Two-track approach to accessibility: (1) anticipatory duty to make goods and services accessible, and (2) reasonable accommodation to be provided to a specific individual with a disability if the general measure is insufficient;
- The reversal of the burden of proof in judicial proceedings.
Weaknesses of the proposal:- Insufficient protection against discrimination in provision of financial services, particularly, insurance;
- Exclusion of the special needs education from the scope of the directive;
- Absence of definitions of important concepts (effective non-discriminatory access, fundamental alterations, reasonable accommodation…) and inadequate definitions of other terms (i.e disproportionate burden).
3. PROCEDUREThe adoption of the Directive requires unanimity in the Council, and the European Parliament is only consulted (i.e its opinion does not bind Member States). The Euroepan Parliament produced its opinion on the Directive on 2 April 2009, after many months of negotiations, involving two parliamentary committees and producing over 300 amendments. The coalition of NGOs who are members of the Social Platform actively participated in the negotiations and contributed to the significant improvements made to the proposal.
However, the provision on financial services remained insufficiently strong, and a confusion between the terms of anticipatory duty to provide accessbility and reasonable accommodation can be noted. These aspects will have to improved at the next stage of negotiations (i.e at the Council).
The negotiations at the Council have been virtually non-existent in the past 5 months, as the current Czech EU Presidency is not at all interested in the Directive. The European disability community, as well as other non-discrimination networks are now working to re-activate the interest towards the Directive among as many Member States as possible.
Disclaimer: This document has been supported by the European Commission. The content of this document is the sole responsibility of its publishers and represents in no way the views of the Commission and its services.