B. Analysis of the European Commission’s position on European Structural and Investment Funds and the transition from institutional to independent living in the community

Importantly, the EC had in 2018 dealt internally with the regularity of the use of ESIFs for the investment in long-term residential care.[1] According to the Legal Service, an EC legal department reporting to the President of the Commission, the need for an expert opinion came after the Directorate-General for Regional and Urban Policy (DG REGIO) communicated to Member States that the support of ESIFs for long-term residential care is prohibited under the legal framework and especially considering article 19 of the CRPD, which was a view contested by some Member States.[2] The DG REGIO and Directorate-General for Employment, Social Affairs and Inclusion (DG EMPL) asked the Legal Service if the use of ESIFs is irregular in the light of the thematic EAC 9 (considering it explicitly indicates that the ERDF should be used for the transition from institutional to community-based services), if the EU and Member States are legally obligated by General Comment No. 5 of the CRPD Committee (GC 5 hereafter), and whether it is possible and/or obligatory for the EC to impose sanctions where there is a breach of fundamental rights in institutions that received support from ESIFs.[3]

The DG REGIO and DG EMPL asked if the GC 5 is a legally obligating document because the CRPD Committee asserted in that document that any form of institutions, large or small, are unacceptable under the CRPD, while for children with disabilities, small group homes “are especially dangerous”.[4] Unsurprisingly, the Legal Service answered that the GC 5 is not a legally binding document. This body also argued that international treaties are interpreted in accordance with article 30 and article 31 of the Vienna Convention on the Law of Treaties (VCLT) and that the treaty body “cannot alter the legal interpretation of the Convention in accordance with these provisions of the VCLT”.[5] This way, the Legal Service implied that the CRPD Committee’s interpretation of article 19 might not be in line with the VCLT general rules of interpretation, although it did acknowledge that the GC 5 has “policy weight and should be taken into account when it comes to the implementation of the Convention”.[6] Implicitly, the Legal Service recognized that Member States and the EC do not act in line with policy goals established through an authoritative interpretation of the CRPD by the treaty body, despite the lack of a legal obligation. It is possible that the formulation of the question had restricted the Legal Service’s intervention, as it focused on an unquestionable issue: the non-obligating nature of a human rights treaty body’s general comment.

Nonetheless, the fact that the Legal Service questioned the interpretation by the CRPD Committee is a particularly interesting aspect of their Opinion. In another peer-reviewed work, the author analysed article 19 and article 23 of the CRPD and the CRPD Committee’s GC 5, using the interpretive framework of the VCLT.[7] The author found that the CRPD Committee’s interpretation is indeed in line with the VCLT and the common practice of regional and international human rights bodies’ interpretations of human rights instruments. In short, the CRPD Committee (and other stakeholders such as some OPDs, CSOs and scholars) are focused on the effectiveness of CRPD provisions, in line with the background justification firstly for the CRPD itself, and then also for article 19 and article 23 of the CRPD.[8] An effectiveness approach to treaty interpretation is perhaps a backbone of human rights interpretation and is based on the VCLT rule that a treaty should be interpreted in good faith. Hence, the effectiveness approach being ingrained in the VCLT general rules of treaty interpretation makes the CRPD Committee’s interpretation expressed in the GC 5 valid, also from the point of the VCLT and common interpretive practice. Interpreters, however, must be cautious about resorting to expansive interpretations and creating new obligations to parties, which was not the case with the CRPD Committee’s interpretation. Nonetheless, the dynamism of human rights treaties may sometimes also lead to the expansion of obligations by courts to accommodate treaties to present circumstances.

The Legal Service engaged with the interpretation of the CRPD and the CPR to determine whether investments in long-stay institutions should be considered irregular. The Legal Service used, as a foundation, the lack of absolute prohibition to invest in long-term care both in the CPR and article 19 of the CRPD. On the basis of the lack of such a prohibition, the Legal Service saw that long-term institutions “have to be kept in good shape” as long as people are placed there.[9] This was argued in the light of the fact that the transition from institutions to community and family living or independent living is a process that will not happen overnight. The point made by the Legal Service is a strong one, and actually largely aligned with the views of the CRPD Committee and many OPDs and State Parties: investment in institutions, in the process of DI, is allowed so far as to keep residents safe and healthy before the transition is finalized.[10] However, this does not include expansion by building completely new institutions or by increasing the capacities of existing ones, as such actions are obviously contrary to the goal of DI.[11] Moreover, even extensive renovation has the potential to impede investments into DI by depleting financial resources that could have been used to develop conditions for independent living in the community and family living. Likewise, extensive and expensive renovations threaten to jeopardize the process of DI, as they indicate that those facilities are to be used for decades to come, which is strategically incompatible with DI.

Without elaborating further on the issue of expanding existing institutions and building new ones, the Legal Service concluded by analogy that investments in residential care should be allowed, as they “may serve to achieve thematic objectives of article 9 of the CPR and the overall aim of article 19 of the CRPD”.[12] This is perhaps the main logical fallacy found in this analysis, as the Legal Service used an inadequate analogy to legitimize investments into building new and expanding existing institutions while basing the argument on the view that those institutions should be kept in “good shape” as long as people reside there. There is a significant difference between maintaining existing institutions in decent condition and investing in the expansion and building of new institutions.

Secondly, it is highly questionable how investments into long-stay residential care serve to achieve the goals of article 9 of the CPR and article 19 of the CRPD, which was claimed by the Legal Service.[13] Those provisions explicitly aim at promoting social inclusion by investing in health and social infrastructure for the transition from institutional to community-based services (thematic objective 9 in relation to the ERDF) and ensuring that persons with disabilities can choose where and with whom to live are not compelled to live in any particular living arrangement, have access to specialized services that support community living, and have access to and available general services, all with an aim to realize independent, community and family living.[14] Likewise, article 23, paragraph 5 of the CRPD, not mentioned in the CPR and the Legal Service’s Opinion, also seeks to ensure that children with disabilities are placed in family-based forms of alternative care and not residential care. Therefore, any investments into residential care can hardly contribute to the realization of those rights, obligations and policy objectives. A standard to keep those institutions in proper shape while people still live there does not come from article 19 of the CRPD, article 23 of the CRPD or article 9 of the CPR but from the rights to life and survival, the freedom from inhumane and degrading treatment, the right to personal security and the right to the highest attainable standard of health – the adequate standard of living enshrined in the European Convention of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and other treaties. Therefore, the Legal Service was wrong to claim that investments into long-stay residential care serve the stipulated goals, either for adults or for children with disabilities.

The Legal Service concluded its Opinion with a statement that Member States can co-finance long-stay residential care with ESIFs but should “progress in general in ensuring independent living arrangements and deinstitutionalisation”.[15] In other words, there is no prohibition of investing ESIFs in long-stay residential care and there is no legal obligation to progress in DI but rather a requirement, according to the Legal Service. This finding differs significantly from the view of the CRPD Committee on DI and the views of OPDs and CSOs that attempted to challenge the EC and Member States for the use of ESIFs for those forms of care.