The status and effect of the Convention on the Rights of Persons with Disabilities in EU law

The EU signed the CRPD in 2007, and the Council adopted a Decision on the Conclusion of the CRPD (Decision hereafter) in 2009.[1] In January 2011, the CRPD entered into force in the EU. The accession of both the EU and all its Member States to an international (human rights) treaty is a technique commonly referred to as a “mixity”. Jan Klabbers explains that this technique enables the EU and Member States to create shared competences in relation to international treaties.[2] An obligation to declare its competences at the accession came from article 44, paragraph 1 of the CRPD, which was specifically created to enable the accession of the EU.[3] This provision prescribes that “regional integration organizations” must declare the scope of their competences when acceding to this treaty. In that light, at the time of its accession to the CRPD, the EU issued a number of declarations and one reservation.[4] The purpose of those declarations was to fulfil the requirement stipulated in the treaty by defining the scope of its competences and delineating it from the competences of its Member States. This means that the EU is bound by the CRPD only to the scope of its competences.

According to the Decision, there are three possibilities regarding the competences of the EU and Member States concerning individual CRPD provisions: Both the EU and Member States share competences to act; only the EU has competence to act; and only Member States have competence to act.[5] Also, the EU can support and supplement Member States when they act in the scope of their competence.[6] Those competences are not fixed and can be expanded or decreased by amending the Decision.[7] The Decision contains a list of around 50 EU acts in the Appendix. Those acts “illustrate” the scope of the EU competence concerning the CRPD.[8] The list includes several acts concerning independent living and social inclusion and the regulation of ESIFs, which is particularly relevant for the purposes of this study.

In the hierarchy of legal sources in EU law, primary EU legislation has primacy over concluded international agreements, while secondary law is inferior to international agreements. This position of international law was crystallized by the ECJ amid the lack of such rules in EU law.[9] This means that secondary EU law – regulations, directives and decisions that fall within the scope of the agreement – must be interpreted in a manner that is consistent with the CRPD, as far as possible.[10] Delia Ferri argues that considering the exclusive jurisdiction of the ECJ, the Court could raise the CRPD to a constitutional level and equalize it with the primary EU law – the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), the Charter of Fundamental Rights of the European Union (CFREU) and the European Convention on Human Rights (ECHR).[11]

Characteristics of a specific provision of an international agreement and secondary law are important factors when considering their interactions. The more ambiguous and prone to different interpretations secondary law is, the more it will be susceptible to the interpretation in consistency with an international agreement. The ECJ indicated the significance of the wording of secondary law in relation to international law in its case law, including in Commission v. Germany, Demirel v. Schwäbisch Gmünd and other cases.[12] Following the ECJ doctrine, it is inferred that the more prescriptive and precise a provision of international law is, the more of an effect it will have on secondary EU law.

The capacity of an international agreement to have a direct effect in the EU is an important characteristic of the relationship between international law and EU law. Firstly, the question of monism and dualism should be addressed here. Although formally a monist legal order, the EU has not been in actuality that welcoming for international law, according to Klabbers.[13] This author argues there is a general view that international agreements are not directly effective in EU law.[14] Cannizzaro and others warned against conflating the concepts of monism and dualism with direct effect, direct applicability and supremacy of international law in a domestic (or EU) legal order.[15] The fact that an international agreement is valid in the EU legal order does not automatically make it directly effective.[16]

On the other hand, Ferri makes the case for a special status of the CRPD in EU law, considering its specific character as an international human rights treaty. The author argues that the CRPD reflects core constitutional values of the Member States, such as anti-discrimination and equality, and that the CRPD is a “clarification” of the rights and obligations enshrined in the CFREU and ECHR, in the context of persons with disabilities.[17] Following that, she argues, the CRPD could be considered as part of the composite constitution of the EU.[18] Article 26 of the CFREU also addresses independence and social inclusion. (The CFREU uses a term outdated in disability law and scholarship – “integration”):

“The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”.

This provision contains a rather broad wording that carries barely any prescriptiveness and thus does not seem capable of much effectiveness in actuality. The ECJ has interpreted this provision as a principle rather than a right.[19] In Wolfgang Glatzel v. Freistaat Bayern, the Court found that in order to be effective, the principle from article 26 of the TFEU must be concretized in the EU or domestic legislation.[20] The CRPD provisions on independent living and social inclusion of children and adults with disabilities (primarily art. 19 and art. 23) present the concretization of the principle, as they offer more information on which measures shall be ensured by the States Parties and which forms of alternative care for children should be provided.[21]

The ECJ has established exclusive jurisdiction to interpret international agreements in the scope of its competence.[22] The Court has jurisdiction only over those treaties (or their provisions) that are directly effective. The direct effect of the CRPD is questionable in EU law, especially due to the wording of provisions that is often broad and susceptible to differing interpretations, as are most other human rights instruments. However, Ferri argues that the CRPD provisions could still be considered to have a direct effect, based on an ECJ case law.[23] The CRPD’s effect in EU law should be weighed in the context that it is essentially an anti-discrimination treaty on the one hand and, on the other, a constitutional status of the prohibition of discrimination on the basis of disability enshrined in: article 10 and article 19, paragraph 1 of the TFEU; article 21, paragraph 1 of the CFREU; and the prohibition of discrimination in article 14 of the ECHR.