FEBRUARY 2002

FEBRUARY 2002 - ELSA publishes information about the Proposed European Union Disability Directive...

ELSA's comments on The European Disability Forum's proposal for a new Disability Directive are available on the next page.


February 27 2002
- ELSA comments on Proposal for a Disability Specific Directive

The European League of Stuttering Associations

Comments on the Proposed Directive

(suggested amendments in bold with notes below)

Proposal for a Directive implementing the principle of equal treatment for persons with disabilities

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 13 thereof,

Having regard to the proposal from the Commission,[1]

Having regard to the Opinion of the European Parliament,[2]

Having regard to the Opinion of the Economic and Social Committee,[3]

Having regard to the Opinion of the Committee of the Regions,[4]

Whereas:

(1) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

(2) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Standard Rules on the Equalisation of Opportunities for Persons With Disabilities and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories.

(3) The Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council and the Commission in Nice on 7 December 2000 affirms, in the Article 21, that any discrimination on the ground of disability shall be prohibited.

(4) The principle of equality of opportunity for all, including people with disabilities, represents a core value shared by all Member States.

(5) The overall purpose of the United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, adopted by the General Assembly on 20 December 1993[5] is to ensure that all people with disabilities may exercise the same rights as others.

(6) These Rules call for action at all levels both within States as well as through international cooperation to promote the principle of equality of opportunity for people with disabilities.

(7) Disability is a social construct arising out of a relationship between a physical, intellectual, sensory, psychological, speech or other impairment and the environment.

Notes:

To ensure speech and other impairments fall within the Directive

Also, check the use of “disability” and “impairment” in the directive generally - Is the term disability often used where impairment is meant ?

Not sure what is meant by the term “social construct”. Others may not understand it.

 

(8) Discrimination based on a disability adversely affects people who currently have a disability, people who have had a disability in the past, people who may have a disability in the future, and people who are associated with a person with a disability, as well as those who are assumed to fall into one of these categories and arises even where the disability is minor, or largely hidden..

Notes:

Especially in the light of the social model, it should be made clear that disabling discrimination may apply even if the impairment itself is minor or its effects are largely hidden. A stutter may be minor or apparently minor but still give rise to discrimination.

Is there any way to have Recitals 7 & 8 apply to the Framework Employment Directive also?

(9) The Council has adopted a Resolution on Equality of Opportunity for People with Disabilities.[6]

(10) The Commission has issued a Communication entitled "Equality of opportunity for people with disabilities -- a new European Community disability strategy" .[7]

(11) The Commission has issued a Communication entitled "Towards a Barrier Free Europe for People with Disabilities". [8]

(12) The European Parliament has adopted a Resolution on “Towards a Barrier Free Europe for People with Disabilities”[9]

(13) To ensure the full participation of all persons with disabilities, specific action needs to be taken to address areas such as education, social protection including social security and healthcare, social advantages and access to and supply of goods, services and information, including transportation, the communications environment, the built environment, housing, banking and insurance.

(14) To this end, any direct or indirect discrimination or discrimination in the form of failure to make an reasonable accommodation based on disability as regards the areas covered by this Directive should be prohibited throughout for Community.

(15) In implementing the principle of equal treatment for persons with a disability, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.

(16) Women with disabilities and women who are associated with a person with a disability are particularly vulnerable to disability based discrimination and Member States should pay specific attention to combating such discrimination.

(17) People adversely affected by discrimination based on disability are frequently also adversely affected by discrimination on other grounds and Member States should ensure that adequate attention is paid to combating multiple discrimination.

(18) The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence. Given the difficulties associated with obtaining reliable statistical evidence in this area, sole reliance on statistical evidence to demonstrate indirect discrimination is not appropriate for the purposes of this directive.

(19) Appropriate measures should be provided, i.e. effective and practical measures to ensure the full access and participation of persons with a disability, for example adapting premises, equipment, services, goods and the means by which information is conveyed.

(20) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.

(21) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by persons with a particular disability, and such measures may permit organisations of persons with a disability or others where their object is or includes the promotion of the special needs of persons with disability or otherwise relates to disability.

Notes:

To ensure that other main objects of organisations of persons with a disability are covered. Additionally, to ensure that organisations “for” disabled persons are covered.

(22) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(23) Persons who have been subject to disability discrimination should have adequate means of legal protection. To provide a more effective level of protection, associations or legal entities should also be empowered to engage in proceedings, as the Member States so determine, either on behalf of or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts.

(24) The effective implementation of the principle of equality requires adequate judicial protection against victimisation for complainants and witnesses.

(25) The rules on the burden of proof must be adapted where there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought. However, it is not for the respondent to disprove that the plaintiff has a particular disability.

Notes:

Thought to be a typing error

(26) Member States need not apply the rules on the burden of proof to proceedings in which it is for the court or other competent body to investigate the facts of the case. The procedures thus referred to are those in which the plaintiff is not required to prove the facts, which it is for a court or competent body to investigate.

(27) Member States should promote dialogue with non-governmental organisations to address different forms of discrimination covered by this Directive.

(28) Protection against discrimination based on disability would itself be strengthened by the existence of a body or bodies in each Member State, with competence to analyse the problems involved, to study possible solutions and to provide concrete assistance for the victims, including receiving and pursuing complaints from individuals of discrimination on grounds of disability. Member States may opt to establish a body dealing exclusively with disability discrimination or to establish a body or bodies dealing with a variety of grounds of discrimination.

(29) Member States should provide for effective, proportionate and persuasive sanctions in case of breaches of the obligations under this Directive.

(30) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the EC Treaty, the objectives of this Directive, namely ensuring a common high level of protection against disability discrimination in all the Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and the impact of the proposed action, be better achieved by the Community. This Directive does not go beyond what is necessary in order to achieve those objectives.


Chapter 1: General provisions

Article 1: Purpose

The purpose of this Directive is to lay down a framework for combatting discrimination on the ground of disability, with a view to putting into effect in the Member States the principle of equal treatment.

Article 2: Concept of discrimination

1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever based on a disability and no discrimination in the form of a failure to make a reasonable accommodation.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of disability;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put a person having a particular disability at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Notes:

Consider whether paragraph (a ) (direct discrimination) requires an exception where there is objective justification, and whether the exception in paragraph (b) (indirect discrimination) is too wide.

(c) the failure to make a reasonable accommodation where this cannot be justified shall be regarded as a form of discrimination.

This means that the persons, including public bodies, referred to in Article 3 shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to the activities in the areas referred to in the Article 3, unless such measures would impose a disproportionate burden on the provider or supplier. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.

3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when an unwanted conduct related to disability takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment, in particular if a person's rejection of, or submission to, such conduct is used as a basis for a decision which affects that person. In this context, the concept of harassment may be defined in accordance with national laws and practice of the Member States.

4. An instruction to discriminate against persons on grounds of disability shall be deemed to be discriminatory within the meaning of paragraph 1.

5. For the purposes of this Directive, the imposition of segregated services or institutions for a person with a disability shall be regarded as a form of discrimination unless objectively justified.

Article 3: Scope

1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(a) social protection, including social security and healthcare;

(b) social advantages;

(c) education;

(d) access to, including conditions regulating access, and supply of goods, services, facilities and information which are available to the public, including transportation, the communications environment, the built environment, banking and insurance and housing.

Notes:

Broadens the article; also used in the UK’s DDA in addition to goods and services.

2. Member States shall introduce such measures as are necessary to enable them actively and visibly to promote the objective of equality for persons with disabilities by its incorporation, in particular, into all laws, regulations, administrative provision, policies and activities in the areas referred to in paragraph 1 of this Article.

Article 4: Accessible Information and Procedures

Member States shall take account of a disabled individuals’ preferred means of communication when seeking to provide accessible information and procedures. In particular Member States shall endeavour to provide information in braille, through sign language, and in forms which are accessible to people with learning disabilities

where the need arises.

Article 5: Accessible Design / Retro-fitting

Transport Environment

  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

a. participate in an audit of all rolling stock within three years of adoption of this Directive. This audit should determine priorities within the transport system. The audit should take account of -

i. Stock which may be immediately and feasibly made accessible;

ii. Stock which may be made accessible but with greater financial and technical difficulty

iii. Stock that may be objectively impossible to make accessible.

With regard to rolling stock in respect of 1(a)(iii) this stock should be phased out over [15 years after publication of the Directive in the Official Journal].

b. introduce such measures as are necessary to ensure that all new rolling stock is accessible, and that old rolling stock will be made accessible with fifteen years from the date of adoption of this Directive.

i. With regard to old rolling stock Member States should aim to ensure that with regard to rail travel at least one carriage per route is accessible pending full accessibility.

ii. With regard to old rolling stock Member States should aim to ensure that with regard to bus travel that at least one bus per route is accessible pending full accessibility, where this is not possible those routes without accessible transport should be prioritised.

c. Rolling Stock definition - For the purpose of this directive the term rolling stock refers to trains, trams, buses, taxis and other forms of public transport whether privately or publicly owned.

  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

a. require all air and sea travel providers to participate in an audit of all air and sea carriers and air and sea ports within three years from the date of adoption of this Directive. This audit should determine priorities within the transport system. The audit should take account of -

i. Carriers and Ports which may be immediately and feasibly made accessible;

ii. Carriers and Ports which may be made accessible but with greater financial and technical difficulty;

iii. Carriers that may be objectively impossible to make accessible.

With regard to air and sea carriers in respect of 2(a)(iii) these carriers should be phased out over [20 years after publication of the Directive in the Official Journal].

b. introduce such measures as are necessary to ensure that air and sea carriers and air and sea ports are accessible, and that existing air and sea carriers and air and sea ports will be made accessible within over [20 years after publication of the Directive in the Official Journal].

  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

a. participate in an audit of all transport buildings within three years of the adoption of this Directive. This audit should determine priorities within the transport system. The audit should take account of –

i. Buildings which may be immediately and feasibly made accessible;

ii. Buildings which may be made accessible but with greater financial and technical difficulty

iii. Buildings that may be objectively impossible to make accessible.

introduce such measures as are necessary to ensure that all new buildings in respect of transport are accessible, and that existing transport buildings will be made accessible within [15 years after publication of the Directive in the Official Journal].

b. With regard to transport buildings Member States should aim to ensure that Key stations or stops are accessible pending full accessibility.

c. ensure that there is visability between transport buildings and air and sea ports [15 years after publication of the Directive in the Official Journal].

d. With regard to visit-ability Members States should aim to ensure that Key transport buildings are accessible pending full accessibility.

Built Environment

  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

a. participate in an audit of all State buildings within three years of the adoption of this Directive. This audit should determine priorities with respect of State buildings. The audit should take account of –

i. Buildings which may be immediately and feasibly made accessible;

ii. Buildings which may be made accessible but with greater financial and technical difficulty

iii. Buildings that may be objectively impossible to make accessible.

b. introduce such measures as are necessary to ensure that all new buildings where public services are conducted are accessible, and that existing buildings where public services are conducted are made accessible within [15 years after publication of the Directive in the Official Journal].

i. With regard to existing buildings where public services are conducted Member States should ensue that key offices are accessible pending full accessibility.

    1. introduce such measures as are necessary to ensure that all new public housing developments are capable of being adapted to provide accessible housing.
    2. introduce such measures as are necessary to ensure that twenty percent of new private house developments are capable of being adapted to provide accessible housing.
  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

    1. Introduce such measures as are necessary to ensure that all courses involved in the education of professionals involved in the design and construction of the physical environment include education on standards and norms for accessibility.
  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

Communications Environment

  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

a. introduce such measures as are necessary to ensure that all new telecommunications are accessible, and that existing telecommunications are made accessible within [15 years after publication of the Directive in the Official Journal].

i. With regard to existing State telecommunications systems Member States should aim to ensure that key information sites and systems are accessible pending full accessibility.

b. Introduce such measures as are necessary to ensure that Internet service providers ensure web accessibility within [5 years after publication of the Directive in the Official Journal].

Notes:

Why is this dealt with separately? Also, web accessibility is largely dealt with by Webmasters rather than ISP’s, and there would be very significant problems trying to say that every website (by an EU resident?) on the internet absolutely has to be accessible, especially for all disabilities.

Procurement

  1. With a view to ensuring equal opportunity for people with disabilities Member States shall –

a. Draft State Equality codes of practice in compliance with this Directive, within [12 months after publication of the Directive in the Official Journal].

i. Ensure that the States Equality codes of practice are reviewed every five years.

b. Ensure that all state contracts are awarded to companies that comply with State Equality codes of practice and retracted from companies if found to be in persistent violation, within over [5 years after publication of the Directive in the Official Journal].

Article 6: Positive action

1. With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to disability.

2. The principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety of persons with disabilities or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting the integration of persons with disabilities, and especially women with disabilities.

Those laws, regulations and administrative provisions contrary to the principle of equal treatment where the concern for protection which originally inspired them is no longer well founded shall be revised.

Article 7: Minimum requirements

1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.


Chapter II: Remedies and Enforcement

Article 8: Defence of rights

1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which that discrimination is alleged to have occurred has ended.

In order to ensure equal and effective rights of access and participation in judicial and/or administrative procedures, such procedures shall be organised and conducted in a manner which is accessible to all persons with disabilities.

2. Member States shall ensure that associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

Member States shall ensure that such associations, organisations or other legal entities may engage in judicial and/or administrative procedures in order to enforce the obligations provided for under Article 4 of this Directive.

3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment.

Article 9: Burden of proof

1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been discrimination within the meaning of Article 2 then it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

Notes:

The “and” (which we have replaced with “then”) seems to be a typing error.

 

2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to complainants.

3. Paragraph 1 shall not apply to criminal procedures.

4. Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with Article 7(2).

5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

Article 10: Victimisation

Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.

Article 11: Dissemination of information

Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are, in an appropriate and accessible way, brought to the attention of the persons concerned by all appropriate means throughout their territory.

Member States shall encourage the involvement of disability NGOs in the dissemination of national measures adopted pursuant to this Directive.

Article 12: Dialogue with non-governmental organisations

Member States shall encourage and maintain dialogue with appropriate non-governmental organisations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of disability with a view to promoting the principle of equal treatment.


Chapter III: Bodies for the Promotion of Equal Treatment

Article 13

1. Member States shall provide for an independent body for the promotion of the principle of equal treatment of all persons without discrimination on the grounds of disability. This body may form part of one or more independent, pre-existing or new agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

Notes:

Widens the Article.

2. Member States shall ensure that the functions of the independent body referred to in paragraph 1 include:

-- without prejudice to the alleged victims of discrimination and of associations, organisations or other legal entities referred to in Article 7(2), receiving and pursuing complaints from individuals of discrimination on grounds of disability,

-- starting and conducting investigations or surveys concerning discrimination on grounds of disability,

-- publishing independent reports and making recommendations on any issue relating to such discrimination.

-- monitoring compliance with this Directive and related national laws and practices.

3. Member States shall ensure that the membership of the independent body referred to in paragraph 1 includes persons with disabilities and parents of people with disabilities unable to represent themselves. Where the independent body is only concerned with the promotion of the principle of equal treatment on the grounds of disability, the Member State shall ensure that the membership is broadly representative of the national disability community, and that a majority of the membership of the body is made up of persons with disabilities and parents of people with disabilities unable to represent themselves.


Chapter IV: Final Provisions

Article 14: Compliance

Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b) any provisions contrary to the principle of equal treatment which are included in individual or collective contracts or agreements, internal rules of undertakings and rules governing profit-making or non-profit making associations, are or may be declared, null and void or are amended.

Article 15: Sanctions

Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and persuasive. The Member States shall notify those provisions to the Commission by [date two years after publication in Official Journal] at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 16: Implementation

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by [date two years after publication in Official Journal]. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

Article 17: Report

1. Member States shall communicate to the Commission by [date five years after publication in Official Journal], and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

2. The Commission's report shall include a comparative assessment of the measures adopted by the Member States and shall take into account, as appropriate, the viewpoints of the relevant non-governmental organisations. In accordance with the principle of gender mainstreaming, this report shall, inter alia, provide an assessment of the impact of the measures taken on women and men. In light of the information received, this report shall include, if necessary, proposals to revise and update this Directive.

Article 20: Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 21: Addresses

This Directive is addressed to the Member States.

 


[1]

[2]

[3]

[4]

[5] United Nations General Assembly Resolution 48/46 of 20 December 1993.

[6] [1997] O.J. C12/1.

[7] COM(96) 406 final.

[8] COM(2000) 284 final.

[9] A5-0084/2001 (4/4/2001)

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