Blog post by: Florian Sanden, Policy Coordinator at the European Network on Independent Living (ENIL)
The fact that cross-border access to the personal budget is being denied, while recognition of guardianship and institutionalisation is supported, shows that the argument that the EU has no competence on disability is not true. We need to stop accepting this justification and advocate for increased usage of article 19 TFEU.
On the 24th of May, the European Parliament voted for the adoption of the directive establishing the European Disability Card and the European Parking Card. The new cards will make it easier for disabled people to receive preferential conditions when accessing services while staying in another EU country. Those services comprise cultural events or reserved seats in parks. Services falling under social assistance, for example the personal budget, income or housing support, will not be included.
During the negotiations of the directive between the European Parliament and the EU Council, ENIL and EDF argued that the European Disability Card should entail access to disability specific social services. This would have been necessary to dismantle the key barrier blocking the access of disabled people to the freedom of movement.
The European Commission and more importantly the Member States rigorously blocked all attempts in this direction, the argument being that the European Union has no competence in coordinating access to social services. Similar arguments are brought forward in connection to the Guidance to Member States on Independent Living. More binding legislation is not possible because of lack of competences it is said. Some put in doubt whether the planned guidance should be done at all.
In May 2023 the European Commission published a proposal for a regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults. The purpose of this regulation is to create a cross-border recognition of protective measures which can encompass “guardianship, curatorship and analogous institutions, the designation and function of any persons or body having charge of the adult´s person or property, representing, or assisting the adult, decision concerning the placement of the adult in an establishment or other place where protection can be provided.
In other words, the European Commission is proposing a regulation which would create a cross-border recognition of guardianship regimes and placements in institutions. Member States who categorically rejected cross-border recognition of entitlements to personal assistance, are discussing this legislation with enthusiasm.
We thus find ourselves in a situation where cross-border access to personal assistance is being denied while the cross-border recognition of guardianship and placements in institutions are being accepted.
Providing cross-border access to personal assistance, does not fall under EU competences but putting people under guardianship and institutionalising them does?
Obviously, those justifications of the European Commission and of the Member States do not make any sense. As so often, legal arguments are being used to justify political intent. It is apparent that key actors in national governments and within the Commission do not want to adopt reforms that would increase the self-determination of persons with disabilities but are determined to continue the repressive approach of depriving us of our liberty.
It is high-time for the disability community to stop accepting the no competence justification, also because the EU treaties do not support it. Article 19 of the Treaty of the Functioning of the European Union (TFEU) states that the EU Council, acting “in accordance with a special legislative procedure, after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” We have the Employment Equality Directive from 2000 and the European Accessibility Act from 2019.
For many years the disability portfolio was under the responsibility of DG JUST. Over the years, it became accepted that disability is a matter of social policy. One of the most important objectives of EU disability policy is the implementation of the UN CRPD which is a human rights treaty. We need to advocate for the position that disability is a matter of fundamental rights and of fighting discrimination. Let us make use of art. 19 TFEU.
The UN Guidelines on Deinstitutionalisation, including in emergencies, clearly state that institutionalisation equals discrimination. It follows that in falls well within EU competence to legislate against institutions.