EDF position
on the proposal for a Council Decision concerning the conclusion, by the European Community, of the United Nations Convention on the rights of Persons with Disabilities
23 October 2008
Introduction
In March 2007, the European Disability Forum called the signature of the UN Convention on the Rights of Persons with Disabilities by the European Communities “a historic event” and called for a rapid ratification of the Convention and its Optional Protocol by the Communities and its MemberStates
On 2 September 2008, the European Commission adopted a proposal for a Council Decision concerning the conclusion, by the European Communities, of the United Nations Convention on the Rights of Persons with Disabilities[1], as well as a proposal for a Council Decision concerning the conclusion, by the European Communities, of the Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities.
As of mid-October 2008, the above-mentioned proposals were still not available for downloading neither from Pre-lex nor Oeil databases, despite repeated queries from EDF. In this respect, EDF would like to voice its regret over the lack of transparency of the procedure and the inefficient communication.
Nevertheless, EDF welcomes the proposals for the Council decisions and would like to express that they will be adopted and implemented as soon as possible. EDF is particularly pleased that the Commission is recommending to the Council to ratify the Optional Protocol and believes that ratification of the Protocol by the Community will help avoid the gaps in competencies between the Community and the EU Member States, and contribute to harmonious interpretation of the Convention provisions across the EU.
EDF has carefully studied the proposal for a Council decision and would like to raise a number of questions with regard to the text.
COMMENTS ON THE TEXT OF THE PROPOSAL FOR A DECISION
Legal basis
EDF takes note that the Commission has chosen Articles 13, 26, 47(2), 55, 71(1), 80(2), 89, 93, 95 and 285 as legal basis for the two Council decisions.
EDF would like to enquire about the Commission’s logic for including or not including various Articles of the Treaty in the legal basis list. Some Articles listed as the legal basis are clearly appropriate – e.g Articles 13, 71(1) and 80(2) and 95; the choice of other Articles (and omission to include some Articles) appears, on the face of it, arbitrary.
Furthermore, comparing the legal basis list with the list of Community competencies listed in Annex 2 of the proposal, EDF notes that out of so-called “freedom of movement” Articles of the Treaty, enumerated in Annex 2 (Art. 26, Arts. 45-48 and Art.55), only Articles 55 and 47(2) are referred to as a legal basis.
EDF would therefore like to ask the Commission:
-What is the significance of including, or not including an EC Treaty Article as a legal basis for the Decision?
-On what basis have articles been selected for inclusion as a legal basis?
Article 3
Paragraph 1 of Article 3 provides that the Commission is appointed as focal point for matters relating to the implementation of the Convention in accordance with Article 33.1 of the Convention. Presuming that the Commission will play the role of a ‘government’ for the purpose of the implementation of the Convention (that calls for designation of focal points within governments), EDF would like to know what the functions of the Commission would be in this respect.
EDF would like the following points to be considered:
-If the tasks of the focal point are allocated to the already existing unit at the Commission, have the steps been taken to change, if appropriate, the mandate and powers of such unit to equip it with the means to oversee the implementation of the Convention?
-Is the designated unit appropriately placed in the hierarchical chain of command at the Commission to have an adequate overview of all policies and procedures that inform the implementation of the Convention?
-Does the Commission envisage equipping the designated unit with necessary financial and human resources to perform its work on the implementation of the Convention?
Paragraph 2 of Article 3 also reserves the possibility of the Community institutions to establish a coordination mechanism to facilitate related action in different sectors and at different levels in accordance with Article 33.1 of the Convention.
Should such coordination mechanisms be established, the following points should be considered:
-Does the mechanism have a permanent structure and functions according to an established procedure?
-Is the mechanism equipped with expertise and resources to coordinate the specific tasks on implementation of the Convention?
-Does the mechanism have an established procedure for consulting organizations of disabled people?
Paragraph 3 of Article 3 provides that the Council shall decided on the basis of the Commission proposal on designation of one or more independent mechanisms to promote, protect and monitor implementation of the Convention, in accordance with Article 33.2 of the Convention.
Upon presentation of the Commission proposal, EDF will provide an elaborate submission with its vision for such independent mechanism. As a preliminary remark, EDF would like the following points to be considered:
-Will the mechanism respect the Paris Principles relating to functioning of the national institutions for protection and promotion of human rights?
-Will the mechanism have the power to scrutinize the Community legislation in light of the Convention and make recommendations as to its compliance?
-Will the mechanism have adequate powers of handling complaints and investigation?
Most importantly, EDF would like to enquire how the obligation of the States parties under Article 33(2) of the Convention to actively involve the organizations of persons with disabilities in the monitoring process will be fulfilled.
Article 5
Paragraph 1 of Article 5 provides that Member States shall submit to the Commission reports on Convention matters falling within the Community competence for collation and transmission of a joint report to the UN Committee on the Rights of Persons with Disabilities. Furthermore, paragraph 2 of the same Article provides for a reporting mechanism of the Community institutions.
It appears to EDF that neither of these provisions provides for reporting on measures taken by the European Communities to give effect to its obligations under the Convention: paragraph 1 addresses the obligations of Member States, whereas paragraph 2 – obligations of individual Institutions.
Therefore, EDF would like to obtain the following clarifications:
-How do the European Communities intend to report to the UN Committee on the Rights of Persons with Disabilities on their substantial obligations under the Convention, such as adoption and enforcement of the Community legislation and programmes, training activities or data collection?
-What is the purpose and added value of collating individual Member States’ reports into a joint report, bearing in mind that the EU Member States will all be individually bound by the reporting obligations under the Convention as its States parties? How is duplication of efforts to be avoided in the areas of shared competence between the Community and the EU Member States?
-Does the European Commission agree with EDF’s understanding that the reports of the Community Institutions will be limited to providing the information on, for example, the measures taken to increase the employment of persons with disabilities by the Institutions, to or make the websites, publications and infrastructure of the Communities and the EU external delegations accessible?
-How will full involvement of persons with disabilities be ensured in the reporting process on the Community level?
COMMENTS ON ANNEX 2
- Declaration of the European Community in application of Article 44(1) of the Convention on the Rights of Persons with Disabilities
EDF would like to raise a number of questions regarding the Commission’s logic for including (or omitting to include) some areas in list of Community competencies.
In EDF’s understanding, the European Community competencies are listed in Article 3 EC and include 21 areas. These are unofficially divided up into exclusive, shared and supportive (coordinating) competencies. EDF notes that the list of Community competencies featured in Annex 2 of the proposal for a Decision includes some but not all areas of these three competencies listed in Article 3 EC:
Exclusive competence: Internal market (Article 95) is included, but competition rules (Articles 81-86) are not;
Shared competence: Agriculture (Articles 36-37) is included, but consumer protection (Article 153) is not;
Supportive competence: Education (Article 149) is included, but public health (Article 152) is not.
Strangely, neither Structural Funds nor development aid are mentioned anywhere in the list of competencies which, given the pivotal importance of these areas to the Community, is confusing.
Furthermore, the wording of the third paragraph of the Annex is vague and imprecise and does not explicitly state that the list of competencies relate to the Convention obligations.
EDF would like to suggest that in order to avoid gaps and confusion, Article 3 EC is taken as a basis for defining the extent of the Community competencies in respect of the Convention. Competencies listed in Article 3 EC should be linked to individual Articles in the Treaty and the Community obligations under the Convention.
Finally, EDF would like to request the European Commission to consider whether the inclusion of the institutional and procedural provisions (e.g composition of the Institutions, financial provisions, Staff Regulations, communication with citizens, language) of the Treaty Establishing the European Communities in the list of Community competencies would be useful and appropriate.
- Reservation concerning Article 27.1 of the United Nations Convention on the Rights of Persons with Disabilities
EDF notes that the European Community has decided to make a reservation to Article 27.1 of the Convention which permits to exclude armed forces from the scope of application of the principle of non-discrimination on the grounds of disability.
EDF feels that this is a regretful decision and calls on the Community to recall its reservation because:
-armed forces of Member States is clearly not covered by the Community competence;
-if an EU Member State decides to make a reservation to Article 27.1 regarding the employment of persons with disabilities in the armed forces, it will be able to do so as a State party to the Convention without implicating the Community and all other 26 MemberStates in such decision. Nevertheless, EDF hopes that no MemberState will enter such reservation and see the armed forces as an opportunity to integrate all disabled people in different sections of armed forces based on service needs and personal qualifications.
Janina Arsenjeva
Tel +32 2 282 4602
The European Disability Forum (EDF) is the European umbrella organisation representing the interests of 50 million disabled citizens in Europe. EDF membership includesnational umbrella organisations of disabled peoplefrom all EU/EEA countries, as well asEuropean NGOs representing the different types of disabilities, organisations and individuals committed to disability issues. The mission of the European Disability Forum is toensure disabled people full access to fundamental and human rights through their active involvement in policy development and implementation in Europe.
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european disability forum forum européen despersonnes handicapées
rue du Commerce, 39-41 — B-1000 Brussels — T +32-2 -282 46 00 — F +32-2 - 282 4609
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[1]COM (2008)530 final/2.