Zhaneta POPOSKA

EUROPEAN UNIONS ACCESSION TO THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

1. Introduction

nitially established as an organisation for economic integration, over the years the European Union has been adding to its competences wider social and political issues. Today, the Union sees itself in a more humane form, as an active participant in the advancement of human rights. One of the arguments in this favour is its accession to the United Nations Con vention on the Rights of the Persons with Disabilities (CRPD, the Convention),1 which is the subject of this paper. The legal system of the European Union is sui generis.2 EUs legal personality3 provides for
1 The Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted with consensus by the General Assembly of the UN on December 13, 2006, opened for signature on March 30, 2007, and entered into force on May 03, 2008. CRPD encompasses a large spectrum of rights, both civil and political and economic, social and cultural rights, and is the highest standard on protection of the rights of persons with disabilities.

The author holds a J.D. in International Human Rights Law

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the possibility to sign and accede to international treaties within the frame of its competences. These, then become legally binding for the European Institutions and the Member States in accordance with article 300(7) of the Treaty establishing the European Community (TEC).47 According to the case law of the Court of Justice of the European Union (CJEU) in several cases,5 the international treaties the EU has acceded to became part of the EU law following their entry into force. Thus, according to the CJEU, following the European Councils authorization of EUs accession to the CRPD, the provisions of the Convention which is on its own a unicum are legally binding upon the institutions of the Union and part of the EU law, without a requirement for their transposition. On the positioning of the CRPD in the legal system of the EU following its accession, it could be argued that in the legal hierarchy this Convention stands between the EU primary and the secondary law.6 Namely, according to the CJEU in the IATA case, the treaties concluded in accordance with Article 300(7) of TFEU have higher legal status than EUs secondary law and, at the same time, according to the Kadi case, these cannot put into question the autonomy of the EU legal system. In other words, CRPD can2 See: ECJ, NV Algemene Transport en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, Case 26/62, [1963] ECR 1963, 1, 05.02.1963. 3 As of December 1, 2009, and the entry into force of the Treaty of Lisbon, the European Union which succeeded the European Community has a legal personality as provided for in Article 47 of the Treaty on the Functioning of the European Union (TFEU). 4 As in Article 216(2) of the Treaty of Lisbon. This article incorporates the pacta sunt servanda principle in EU law, thus guaranteeing that the treaties concluded under this article are binding on the European Institutions and the Member States. 5 See: inter alia ECJ, Commission of the European Communities v French Republic, Case C-239/03, [2004] ECR I-09325, 07.10.2004. In this case, the CJEU found that the mixed agreements concluded on part of the Community, its Member States and third parties have equal legal status as the Community treaties in the Community legal system. Consequently, Article 300(7) of the TEC grants equal legal status to the mixed agreements, such as the CRPD. See: Quinn G., Waddington L. (October 2010). Study on challenges and good practices in the implementation of the UN Convention on the Rights of Persons with Disabilities VC/2008/1214. 6 The Constitutional corpus is consisted of the founding treaties and their protocols, the Charter of Fundamental Rights and the European Convention on Human Rights (ECHR). Although the EU has not acceded to the ECHR, the CJEU (in Roland Rutili v Ministre de lintrieur, Case 36-75, [1975] ECR 1219) found that ECHR cohabitates with the EU law. The sources of international law, such as the international treaties, decisions of international organisations and international customary law, fall under EU primary law, and are above its secondary law (regulations, directives and decisions). See: Lavranos N. (2009). Revising Art.307 EC, in Fontanelli F., Martinico G., Carrozza P. (eds), Shaping Rule of Law through Dialogue.

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not be contrary to the general principles of the TFEU, but it will represent a basis for continuous interpretation of EUs secondary law. Following this, I consider it very unlikely that the provisions of the CRPD can be directly applicable in the EU legal system because they are directed to the Member States, and because they are neither sufficiently comprehensive nor unconditional. However, taking into consideration the opinion of the CJEU in the C-61/94 case, in which it clearly states that the international treaties to which the EU has acceded have a higher legal standing than EUs secondary law, I consider that these provisions need to be read in a consistent manner with the international treaty. Thus, it can be concluded that the accession to the CRPD creates an obligation for the Union to read the EU law in a manner consistent with the CRPD.7 2. EUs Accession Process to the Convention on the Rights of Persons with Disabilities The European Union signed the CRPD (without its Optional Protocol)8 on March 30, 2007, and the European Council, with its Decision 2010/48/ EC of 26 November 2009, authorised the Union to accede to the CRPD,9 which the Union did on December 23, 2010, thus becoming the 97th State Party to the Convention. For EU, the CRPD entered into force in January 2011. The Council of the EU decided to base its decision on Articles 13 and 95 in conjunction with Articles 300(2) and 300(3) of the TEC as legal ground for acceding to the CRPD, rejecting the European Commissions proposal to use multiple legal grounds to this end.10 Namely, Article 13 of the TEC
7 See: Study of the High Commissioner for Human Rights on key legal measures for the ratification and implementation of the Convention on the Rights of Persons with Disabilities, A/HRC/10/48, para. 58. 8 It should be noted that the Commission submitted a Proposal for a Council Decision on EUs ratification of the Optional Protocol of the CRPD in 2008; however this proposal is still negotiated and an official decision is pending. See: European Commission proposal COM (2008)530, Proposal for a Council Decision concerning the conclusion, by the European Community, of the Optional protocol to the United Nations Convention on the Rights of Persons with Disabilities. 9 See: Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities. 10 The Commission proposed multiple legal grounds including the following articles: 13, 26, 47(2), 55, 71(1), 80(2), 89, 93, 95 and 285 of the TEC in conjunction with Articles 300(2) and 300(3) of the TEC. It is interesting to mention that the Proposal for a Council Decision also does not mention those articles which provide for additional competences

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authorises the Council to undertake appropriate measures to combat discrimination on grounds of disability, thus vesting the EU with competences in the non-discrimination field. This article has no direct applicability, but allows for adoption of legally binding measures and of sui generis soft law measures, such as guidelines and programmes for action. Article 95 of the TEC creates legal basis for adoption of measures for harmonisation in relation to the creation or to the functioning of the common market. Taking into consideration that the common market is a wide concept which includes removal of different types of barriers in the free movement of goods, people, services and capital, this article enables the EU to regulate several areas which fall within the scope of the CRPD, especially when it comes to accessibility, of the physical surroundings as well as the goods and services.11 This is important because it treats the issue of accessibility foreseen in the CRPD as a horizontal one through which the other articles should be read. Finally, Article 300 of the TEC defines the procedure for EUs accession to international treaties, providing that only a Council decision, following completed consultations with the European Parliament, is the appropriate legal mechanism for accession. The legal ground used for EUs accession to the CRPD is important in evaluating the international responsibility of the EU, though it is not determining for the implementation of the provisions of the Convention. Namely, the CJEU in the C-178/03 case states that the fact that one or more provisions of the Treaty have been chosen as legal bases for the approval of an international agreement is not sufficient to show that those same provisions must also be used as legal bases for the adoption of measures intended to implement that agreement at Community level (CJEU, Commission of the European Communities v European Parliament and Council of the European Union, 2006, para. 46). This means that other grounds aside from the abovementioned can be used as legal basis for fulfilment of the obligations under various areas arising from the CRPD. It is also worth noting that the EU alongside the Decision 2010/48/EC submitted a declaration of competences in which it numbers the existing secondary law, in order to demonstrate EUs scope of competences in the areas stemming from the CRPD. This step was made in accordance with Article 44 paragraph 1 of the Convention which states that regional inteto those of the Member States (such as, for example: Article 149 of the TEC in the area of education or Article 152 of the TEC in the area of health). 11 See: Waddington L. (2008). The Internal Market and Disability Accessibility: Using EC Law to Establish an Internal Market in Disability Accessibility Goods and Services.

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gration organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by the present Convention, aiming towards legal security on international level, and confirming the existing international responsibility of the EU (UN Convention on the Rights of Persons with Disabilities, 2006, Art. 44, para.1). The documents numbered in the declaration do not limit the Union to apply the CRPD in areas, which fall within its competences but have not yet been regulated with the existing legislation. It should be noted that the CRPD is a mixed agreement, providing for shared contractual relations among the EU, its Member States and one or more third countries and/or international organisations. As a mixed agreement, the CRPD includes areas, which fall in part under the competences of the EU, in part within those of its Member States, and in part within the shared competences of the EU and its Member States. Thus, it seems of utmost importance that close cooperation takes place between the EU and its Member States in order to implement the legislation arising from the CRPD in a coherent manner, and to attain unity in the international representation of the Union. When participating in mixed agreements, the EU Member States do not act as fully autonomous subjects of international law, as they are bound by their obligation for loyal cooperation among themselves and with the EU. This obligation includes the processes of negotiation, ratification and implementation. If a Member State does not undertake all necessary measures to implement the provisions of the mixed agreement which fall within the competence of the EU (such as the ones from the CRPD), not only will it not fulfil its international obligations, but it will also be in breach with the EU law. In this case, the European Commission can open a case against that Member State for breach of EU law, as it did in Etang the Berre Case C-239/03. At present, 27 EU Member States signed and 24 ratified the CRPD, while 22 Member States signed and 19 ratified its Optional Protocol. The states that have signed but not yet ratified the Convention are obliged to refrain from actions that would be contrary to the subject and purpose of the CRPD. In EUs accession process to the CRPD, it filed a reservation on Article 27, paragraph 1 of the Convention, calling upon Article 3, paragraph 4 of Directive 2000/78/EC, which provides that discrimination on grounds of disability will not apply in relation to employment in the armed forces. In other words, the EU explains that employment in the armed forces is an area, which remains in full competence of the EU Member States so it is up to them to decide how they will resolve the issue of equal treatment in this area. Also, some Member States have filed reservations and interpretative

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Zhaneta POPOSKA

3. Process of Implementation of the Convention on the Rights of Persons with Disabilities by the EU from the aspect of protection against discrimination on grounds of disability The European Union needs to undertake specific steps to implement the Convention in practice. In this chapter I attempt to map some of these steps, which, in one way or another, touch upon the issue of protection against discrimination on grounds of disability. A special consideration is given to the Articles 4, 5, 9, 24, 27 and 33, elaborated bellow, although it should be noted that the other articles of the CRPD are also exceptionally important. Article 4 General Obligations. In accordance with Article 4 of the Convention, the EU undertook the obligation, within the frame of its competences, to provide for full realisation of the rights of the persons with disabilities without discrimination on any kind on grounds of disability through legal, administrative and other measures in order to implement the Convention, and to undertake appropriate measures to modify or abolish and laws, regulations, customs or practices that constitute discrimination against persons with disabilities. In order to fully implement its obligations, aside from the initial identification of existing legislation conducted before the accession to the CRPD, the EU needs to map the existing legal acts and practices in order to enable measuring of their compliance with the standards set with the provisions of the Convention. If necessary, these need to be modified by including special reference to rights of persons with disabilities or abolished if they are not in accordance with the Convention. Article 5 Equality and Non-discrimination. Article 5 of the CRPD sets a serious challenge for the EU Member States with regards to introducing the obligation for reasonable accommodation outside of employment in the national legislation. At present, under EUs secondary law, reasonable accommodation is a legal institute only in the field of employment and labour relations, under the 2000/78/EC Directive on equality in employment;
12 For example, Malta (reservation on Article 25 and 29), the Netherlands (interpretative declaration of Articles 10, 15, 23 and 25), France (interpretative declaration of Article 15), Poland (reservation on Article 23(1) and 25), Slovakia (reservation on Article 27(1) ()) and Great Britain (reservation on Article 12(4), 24 and 27). For more information on the filed declarations and reservations, see: http://www.un.org/disabilities/default. asp?id=475.

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however unjustified incompliance with this institute is not explicitly considered a form of discrimination. Moreover, laws on protection against discrimination outside the area of employment exist only in nine EU Member States: Austria, Belgium, Great Britain, Germany, Hungary, Finland and Spain.13 The monitoring of the implementation of the 2000/78/EC Directive showed that in the area of non-discrimination, EUs secondary laws influenced the Member States laws through the process of transposition. This is an argument in favour of EUs speeding up its efforts for adopting the European Commissions proposal for a new Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation,14 which will facilitate the implementation of the CRPD. Also, the EU can have a key role in the implementation of the principle of equality in practice in the Member States, especially by motivating them to introduce affirmative measures in a number of areas of the social life. Article 9 Accessibility. With regards to Article 9 of the CRPD, it should be noted that EU Member States have adopted legislation on accessibility; however, many challenges lie ahead to realising full alignment with the Convention. Namely, in the Member States the accessibility concept is understood in its narrow meaning as it encompasses only access to objects and transport, without incorporating the access to information and communication, including information and communication technologies.15 Additionally, regardless of the existing legislation, in the majority of EU Member States the monitoring of its implementation is inefficient, the accessibility standards are not fully respected and the sanctions for incompliance are not applied consistently. An additional challenge is posed by the exceptions for implementation of these provisions which some Member States have introduced in their national laws, such as: excluding exempting objects from implementation of the accessibility standards, or implementation of these standards only for public bodies, and not for the private sector.
13 See: European Network of Legal Experts in the Non-Discrimination Field. (2009). Disability and non-discrimination law in the European Union, An analysis of disability discrimination law within and beyond the employment field. 14 See: European Commission proposal COM/2008/0426, Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, 02.07.2008. The proposal Directive, which has been in a Council procedure for over five years, aims to supplement EUs anti-discrimination legislation, that is the existing directives and to ban discrimination in areas outside of employment on the above-mentioned grounds. 15 See: International Disability Rights Monitor - IDRM. (2007). Regional Report on Europe, p.34-35.

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The experiences from the EU Member States showed that in order to fully implement the accessibility principle, adoption of legislation in this area is not sufficient. There should be clear legal deadlines for adjustment of all legal subjects to the accessibility standards, and a monitoring mechanism should be established to ensure appropriate implementation of the legislation for providing accessibility for persons with disabilities on equal footing with the others. With regards to accessibility under the Decision 2010/48/EC, the EU noted its limited competences in the area of access to goods and services, personal mobility (transport), and information and communication technologies. These are shared competences of the EU and its Member States, which is why the Council spelled out some of these instruments in the decision itself. Namely, in principle the EUs instruments (Directive 2004/18/ , Directive 2001/85/ and Directive 2001/83/) are in line with Article 9 of the CRPD with regards to the part on access to goods and services within the frame of the internal market, but there is room for improvements. Further on, in the section on access to transport, EUs instruments (for example, Regulation 1107/2006/ which is based on Article 80(2) of the TEC can be considered as good practice) are well developed in relation to advancing the accessibility of persons with disabilities because they directly set standards for support of the persons with disabilities and they require strict compliance by the air transporting companies, and the appointment of a body to monitor the implementation of the Regulation. Additionally, in the area of information and communication technologies, EUs instruments are mostly based on Article 95 of the TEC (Directive 2002/21/, Directive 2001/85/ and Directive 2001/83/) and are in line with Article 9 of the CRPD; however the implementation needs to be improved in order to enable full and efficient access for persons with disabilities.16 Finally, it should be noted that the EU also uses its financial instruments to promote accessibility and inclusion of persons with disabilities in all areas of the social living. Such measures can be found in the Council Regulation 1083/2006/ setting the general provisions for the European Regional Development Fund, European Social Fund and the Cohesion Fund, out of which Article 16 bears exceptional importance for the CRPD. Namely, it clearly notes the obligation of the Member States and the Com16 See: European Commission INCOM06-02 Final, Electronic Communications Package: implementation of the provisions related to disabled users in the Member States, 12.09.2006.

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mission to undertake all appropriate measures to prevent any discrimination on grounds of, inter alia, disability in the course of the various phases of implementation of the activities supported through these funds. From all of the above, it clearly follows that the EU needs to develop general standards on accessibility on grounds of disability and to include these in a harmonised legal instrument developed on grounds of Article 95 of the TEC. Article 24 Education. With regards to Article 24 of CRPD, it should be noted that, although some of the EU Member States have adopted legal provisions providing for inclusive education of persons with disabilities, there are many challenges for the full alignment with the Convention. Namely, although in most of EU Member States persons with disabilities are allowed access to mainstream education, the option for these children to pursue education in specialised schools is open, and often even preferred.17 Further on, the constant lack of resources for securing support systems for students with disabilities, lack of appropriate teacher training for work with children with disabilities, as well as the different approach in schools in urban and rural settings seriously brings into question the devotion to inclusive education of persons with disabilities in the EU Member States.18 The 2010/48/ Decision notes that the EU shall contribute to the development of quality education by encouraging cooperation among its Member States as well as by supplementing and supporting their efforts in this field. Based on this, aiming to indicate its competences in the field of education, the Council enumerated several EU instruments in the Decision itself (Regulation 918/83/ and Council Regulation 1083/2006/ ). Still, taking into consideration the present situation, the Union will have a lot more work in this field regarding education of children with disabilities in the individual Member States. Article 27 Work and Employment. In the area of employment and labour relations, the EU Member States have adopted legislation which has been largely influenced by the EU anti-discrimination legislation, especially by the 2000/78/EC Framework Employment Directive. By transposing the Directive, all EU Member States have banned discrimination on grounds of disabilities in the context of employment, majority of them introduced rea17 For example in: Bulgaria, Greece, Lithuania, Spain and Great Britain. Cyprus is a good example, as it provides for compulsory enrolment of children with disabilities in the mainstream educational system, and if necessary they are additionally taught by specially trained teachers. The law provides for preschools specially equip for children with hearing impairment and autistic children where they can attend school in shortened hours. 18 See: supra note 5 Study on challenges and good practices in the implementation of the UN Convention on the Rights of Persons with Disabilities VC/2008/1214.

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sonable accommodation for persons with disabilities, and some introduced affirmative measures on employment of persons with disabilities (quotas). Another EU instrument worth mentioning, especially with regards to multiple discrimination on grounds of disability and gender, although not directly provided, is the 2006/54/EC Directive. Namely, its Article 6, which provides for the personal scope of the Directive, explicitly includes disability as a protected ground. However, lack of explicit mentioning of multiple discrimination, points out to the conclusion that there is a need for revision of the text of the Directive. Based on the above, and having in mind Article 27 of the CRPD and standards it sets, it should be concluded that, although a large progress has been made, further challenges remain for the EU Member States to full alignment with the Convention in the field of employment and labour relations, especially along two lines. Firstly, as noted above, there should be an explicit provision providing that unjustified inobservance of reasonable accommodation will constitute discrimination, and second, the evident lack of regulation of multiple discrimination in the Unions anti-discrimination legislation needs to be overcome. This could be done by supplementing the EU anti-discrimination directives, introducing definitions of terms such as disability, reasonable accommodation and multiple discrimination, providing for unified application of these institutes by the EU Member States, and having in mind the social model of disability.19 A better option would be to provide these in the proposal by the European Commission for a new Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. Article 33 National Implementation and Monitoring. The EU Member States are at various stages of establishing or appointing a national monitoring mechanism for following the implementation of the Convention provisions in practice, regarding their full alignment with Article 33 of the

19 Throughout history, there have been various theories of interpretation of disability, however none incorporating all of its elements. These theories progressed and changed under various influences through the years. Starting from the traditional, through the medical, up to the social model in all its variations, we can say that today the dominant model is the one encompassing both the disability itself, and its social aspects as a phenomenon. See: Poposka, Zh. (2012). [Discrimination on Grounds of Disability in the International Human Rights Law]. University Sv.Kiril i Metodij Skopje, Faculty of Law Iustinianus I, p.12-20.

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CRPD. Namely, the majority of EU Member States20 have appointed focal point/s at the highest government levels. Majority of EU Member States still havent neither established a coordination mechanism,21 nor chosen a framework22 for promoting, protecting and monitoring the implementation of the CRPD rights. Another issue worth analyzing, as done in this paper, is the following: what will be the EU coordination mechanism? Namely, by acceding to the Convention, the EU accepted the obligation to implement the provisions contained in Article 33. Article 3 of the 2010/48/EC Decision states that the European Commission is the focal point in accordance with Article 33 of the CRPD, adding that all Commission competences in this regard shall be additionally agreed with a Code of Conduct among the EU and its Member States in 2010. Namely, the Commission is the executive authority of the EU established to promote the common interest of the EU by participating in the decision making, monitoring the appropriate implementation of the founding treaties and the EU law, and by implementing the common policies and managing the European funds. Appointing the Commission as a focal point is in line with the structural requirements of the CRPD. However, the Commission on its own is a unique and complex managing structure, thus the following options are available when it comes to an actual person in charge of contact within the Commission itself, and in line with Article 33: the President of the Commission, the Secretary General, or the Commissioner on Justice, Fundamental Rights and Citizenship. The argument for choosing the Commissioner as the contact person is supported by her/his technical knowledge in implementing the Convention. Namely, the General Directorate on Employment, Social Policy and Equal Opportunities and its Department on Integration of Persons with Disabilities operates under the Commissioner on Justice, Fundamental Rights and Citizenship. The Department has knowledge of the entire EU legislation and policies with regards to persons with disabilities, as well as the resources and expertise needed to support the implementation of the CRPD. On the issue of appointing or establishing a coordination mechanism for implementing the CRPD at EU level, there are three options: Inter-ser20 EU Member States that have not appointed a focal point are: Finland, France, Greece, Lithuania and Portugal. 21 EU Member States which still have not chosen a coordination mechanism are: Bulgaria, Finland, France, Greece, Malta, Lithuania, Poland, Portugal, Slovakia and Slovenia. 22 Such a framework was chosen by the following EU Member States: Austria, Cyprus, Germany, Italy, Lithuania, Sweden and Great Britain.

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vice Group on Disability,23 the High Level Group on Disability,24 or establishing a European Pact for the rights of persons with disabilities.25 The EU is still deciding which of these three options would be the best choice. Finally, last section of the national monitoring mechanism is the establishing of a framework for promoting, protecting and monitoring the implementation of the Convention rights. Within the frame of the EU, at the moment, there is no body with competences that will cover all tasks in accordance with Article 33, paragraph 2 of the CRPD. Thus, the EU needs to consider a mode of appointing (or establishing) of several bodies as part of the framework that will, within the frame of their competences, implement parts of the tasks foreseen in Article 33 of the Convention. This framework could encompass the following bodies/institutions/agencies: Fundamental Rights Agency,26 European Ombudsman,27 and the Court of Justice of
23 Inter-service Group on Disability is an existing body presided by the Department on Integration of Persons with Disabilities; it meets once in two months, providing for a discussion forum on issues regarding persons with disabilities among the various Directorate Generals and offices within the Commission. 24 High Level Group on Disability provides for a discussion forum on the issue of disability and the civil society, including organisations of persons with disabilities, among the representatives of the EU Member States. 25 The aim of this Pact is to provide for long-term guidelines for EU policies on disability, and to develop modes for their implementation. The European Disability Forum has been advocating for the establishing of the Pact. More information on the European Disability Pact is available at: http://cms.horus.be/files/99909/MediaArchive/library/ EDF_proposal_for_a_European_Disability_Pact.doc. 26 Fundamental Rights Agency (FRA) was established under Article 300(8) of TEC in 2007 with a Council Regulation () No.168/2007 of 15 February 2007 in order to assist and provide expertese to the EU Institutions and EU Member States on fundamental rights. The Agency is limited in its work by the Multi-Annual Framework. As part of this framework, the Agency can undertake the tasks related to promoting and monitoring the implementation of the rights enshrined in the Convention (in this case, the Multi-Annual Framework will need to be adjusted accordingly, in order to include among the tasks of the Agency promoting and monitoring the implementation of the rights enshrined in the Convention). More information on the Agency is available at: http://ec.europa.eu/ frawebsite/home/home_en.htm. 27 The European Ombudsman, in accordance with its competences can partly undertake tasks related to the protection of the rights of the Convention. It can serve only as a complaints mechanism in cases of discrimination on grounds of disability by the EU Institutions and bodies. It cannot conduct investigations against national, regional or local authorities in the EU Member States, conduct investigations against actions undertaken by the national courts or ombudspersons, or cases against natural or legal persons, and it cannot represent cases in front of courts and tribunals, or conduct strategic litigation. More information on the European Ombudsman is available at: http://www.ombudsman.euopa.eu.

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the European Union.28 The main remark to the existing bodies would be that none of these fulfils the independence criteria required with Article 33, paragraph 2 of the CRPD. Thus, an ideal solution would be for the EU to establish a new ad hoc body29 that will implement the tasks related to promoting, protecting and monitoring the implementation of the Convention rights. However, a basic challenge to establishing a new body from this range is generating political will within the Council and the EU Member States. The EU should yet resolve this dilemma. Conclusion We can conclude that a lot of challenges remain for the EUs full implementation of the CRPD provisions, from alignment of the EU legislation with the Convention and fulfilment of the obligations stemming from it, especially with regards to appointing a national monitoring mechanism within the frame of the EU, to providing for consistency in implementing the CRPD provisions among the EU Member States. However, what is very likely is that the CRPD provisions, and the interpretation of these provisions by the Committee on the Rights of Persons with Disabilities, will become a reference point for interpreting EU law,
28 As part of the framework, the Court of Justice of the European Union can undertake the tasks related to the judicial protection of the Convention rights, with two limitations. Firstly, the probable lack of capacity for direct applicability of the CRPD provisions in EUs legal system, with regards to their direction to the Member States, and their lack of comprehensiveness and unconditionality, as required by the CJEU. From these reasons, the national courts and the EU courts cannot recall the general principles of the CRPD. Still, the national courts of the Member States can request a preliminary opinion from the Court in accordance with Article 234 of the TEC (now Article 267 of the TFEU) in order to receive guidance on the CRPD provisions direct applicability, that is whether they create individual rights which the national courts are obliged to protect. Secondly, the limitations related to the indirect access to the EU judicial system. Namely, with the entering into force of the Treaty of Lisbon, the natural and legal persons, including organisations of persons with disabilities can challenge the legality of EU law which is directly applicable in front of the European courts on grounds of Article 263 of the TFEU. In this case, the applicant needs to show he/she is directly affected by the challenged legal act. However, this article has not been interpreted by the EU courts to date, so it is not yet clear how difficult it will be in practice for natural and legal persons to gain direct access to the courts. 29 EU Disability Rights Monitoring Body. The decision to establish this body will need to be made by the Council, on a proposal by the Commission, and following completed consultations with the European Parliament, and it will need to reflect on the mandate, competences, financing and composition of the body.

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as well as the law of the European Convention on Human Rights30 with regards to advancing the rights of persons with disabilities, especially on the part of the protection against discrimination on grounds of disability.

30 The EU law is closely connected to the ECHR. Namely, the CJEU looks at the ECHR as an inspiration for determining the scope of protection of the Human Rights within the frame of the EU law; moreover, the Charter also reflects the ECHR rights (though, it is not limited to them). Although the EU is not yet a signatory to the ECHR, EU law is consistent with the ECHR. The Treaty of Lisbon contains a provision providing for EUs accession to the ECHR, which is also allowed with Protocol 14 of the ECHR. Accession negotiations are underway among the two organisations, the EU and the Council of Europe, on the modalities and means for the accession, as well as on the relationship between the CJEU and the European Court of Human Rights (ECtHR). However, this would enable all natural persons to directly file a case against the EU to the ECtHR for breaches of ECHR rights, which will be an important development in International Human Rights Law.

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Abstract This paper is analysing the European Union accession process to the United Nations Convention on the Rights of Persons with Disabilities, first international human rights treaty to which the EU has acceded. It also analyses issues such as: positioning of the Convention in the EU legal system, multiple legal grounds for EUs accession to the Convention, as well as the division of duties among the EU and its Member States regarding the implementation of this treaty. Finally, it analyses the issue of efficient implementation of the Convention by the EU through a consideration of the protection against discrimination on grounds of disability. Along these lines, it provides analysis on the articles of the Convention, which are directly related to the protection against discrimination on grounds of disability, such as Articles 4 (general obligations), 5 (equality and non-discrimination), 9 (accessibility), 24 (education), 27 (work and employment) and 33 (national implementation and monitoring).

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