C. Analysis of the European Commission’s responses to complaints

The European Network on Independent Living submitted a complaint in 2019 to the EC about the use of ESIFs in Romania to build “sheltered housing” and day-care centres for persons with disabilities.[1] The organization named several issues with the programme, including that those facilities will be used by approximately 500 people (6–10 per unit), where units will be built in the same perimeter, indicating that the provision of care will function in a fashion similar to typical residential institutions but smaller in size and partialized; and that those facilities will be situated in “small villages or small towns” with little or no public transportation and poor prospects for community inclusion, activation, employment and maintaining contacts with close persons, which indicates a context of isolation and segregation.[2] Around the same time, NGOs submitted a similar complaint against Estonian authorities for the use of EU funds to build a “village” for persons with autism and other intellectual disabilities.[3] Also, complaints for alleged misuse of ESIFs in Poland, Austria and Bulgaria were submitted.[4] In the case of Austria, funds were used to build institutions for adults, and the latest for children with disabilities, in Upper Austria and Carinthia.[5] In all its replies to complainants, the EC was consistent with arguments used to support the position that the co-financing of long-term residential care with ESIFs is not contrary to EU law under certain conditions. An important point made by the European Network on Independent Living was that the complaint procedure is itself flawed, as the examination relies solely on the documentation submitted by the authorities, which precludes an unbiased inquiry of the actual situation.[6]

In a response to a complaint on the use of ESIFs in Romania, the DG REGIO organized its general argument – that such use of ESIFs is permitted and even desirable, and that the State did not breach EU law – around several issues: the existence of strategic documents for DI in Romania as a proof of general adherence to DI; the interpretation of the CRPD as permitting or even promoting the development of long-stay residential care in groups smaller than traditional institutions; the non-obligating character of the GC 5 of the CRPD Committee; interpretations of CPR and ERDF regulation provisions in relation to promoting social inclusion and the transition from institutional to community-based services; and the interpretation of CPR provisions related to the competence of Member States when implementing funds under shared management. This analysis will particularly focus on the interpretation of the CRPD, CPR and ERDF by the EC in relation to social inclusion and the transition from institutional to community-based care and independent living, due to their hierarchical and substantive relationship and issues surrounding the EC’s understanding of those provisions.

In a response to this complaint in 2020, the EC reinstated the view of the Legal Service that the GC 5 of the CRPD has “policy weight”.[7] The EC based its argument on the fact that the GC 5 is not legally binding, possibly to relativize the only authoritative interpretation of the CRPD and offer alternatives, which will be shown to fall short of an appropriate interpretation of a human rights treaty in accordance with general rules of treaty interpretation.[8] Importantly, the EC found that the support for residential facilities under the operational programme falls into the scope of the implementation of EU law by Romania, in accordance with article 51, paragraph 1 of the Charter of Fundamental Rights of the European Union (CFREU).[9]

Referring to a regulation on ERDF, the EC specifically mentioned article 5 and recitals 15 and 16 of the regulation.[10] Article 5, paragraph 9 (a) enshrines one of the investment priorities under thematic EAC 9 of the CPR, which is aimed at “promoting social inclusion, combating poverty and any discrimination by investing in health and social infrastructure … and the transition from institutional to community-based service”.[11]

The respective wordings of the aforementioned recitals are slightly more specific but still ambiguous:

“In order to promote social inclusion and combat poverty, particularly among marginalised communities, it is necessary to improve access to social, cultural and recreational services, through the provision of small-scale infrastructure, taking account of the specific needs of persons with disabilities and the elderly”.[12]

“Community-based services should cover all forms of in-home, family-based, residential and other community services which support the right of all persons to live in the community, with an equality of choices, and which seek to prevent isolation or segregation from the community”.[13]

The EC, in its response, proceeded to conclude that those two recitals prove that the use of ESIFs for infrastructure projects such as smaller long-stay residential institutions is not only allowed but desirable. This was primarily based on the wording “through the provision of the small-scale infrastructure” in recital 15. Notwithstanding, a conclusion that the wording means the development of long-stay residential care in smaller groups – and not, for example, small infrastructural adjustments and modifications to enable access to general services – can be characterized as an expansive interpretation of the term “small-scale infrastructure”, and is certainly not in line with the CRPD. The interpretation does not adhere to the CRPD unless the CRPD itself is interpreted as allowing for such forms of care, which is an approach hardly defendable from the aspect of general rules of treaty interpretation and completely neglectful of the authoritative interpretation by the CRPD Committee.[14]

Those infrastructural developments can be related to ramps, elevators or the building of general-service facilities that are accessible and available to the named groups of people, as the purpose of that infrastructure is to enable social, cultural and sports activities, in accordance with article 9 and article 19 (c) of the CRPD and the CRPD Committee’s interpretation of the latter provision.[15] If the recital is interpreted, nevertheless, as a call for States to develop residential infrastructure, those could be affordable housing units, for example, and not small institutions. Still, it is unquestionable that the wording of recital 15 is vague and allows for different interpretations.

Here it must not be forgotten that secondary EU law must be interpreted in line with the CRPD, as far as possible. The space for different interpretations of the ERDF regulation thus shrinks, as it must not be inconsistent with the CRPD. Moreover, the ambiguity of the wording of recital 15 leaves it more susceptible to its alignment with the CRPD, as explained above. Recital 16, which is a paraphrasis of article 19 (b) of the CRPD, mentions “residential and other community services”. Seemingly, the EC interprets this recital as prescribing the development of small institutions, while the CRPD Committee interpreted article 19 (b) of the CRPD to not permit States Parties to develop any “institutional forms of support services which segregates and limits personal autonomy”. Again, as is the case with the EC’s view on recital 15, such an interpretation can be described as neglecting the object and purpose of the CRPD, and even giving little regard to the internal context as interpretive elements (and completely neglecting the CRPD Committee).

The DG REGIO also reminded that under article 69, paragraph 3 of the CPR and ERDF Regulation article 3, paragraph 3,[16] funding long-stay residential care is not listed as ineligible.[17] Finally, the EC body concluded that there is no “general and absolute” prohibition to invest ESIFs in institutional care and that the concept of an institution is itself questionable since it is not characterized only by the size but also by the characteristics of its organization, functioning and culture.[18] Moreover, the DG REGIO held that the margin of appreciation of States Parties expressed in the GC 5 of the CRPD Committee means that where the development of long-stay residential care is part of a DI programme, that should be respected (despite the explicit expression against any forms of institutional care by the CRPD Committee in the GC 5).[19]

The EC’s interpretations of the CRPD are hardly defendable from the standpoint of the general rules of treaty interpretation, and especially the need for effectiveness in human rights interpretation. This could also raise a question of the EU’s respect for article 26 of the VCLT and the pacta sunt servanda principle, which prescribes that parties must take their international obligations seriously and in good faith (i.e. not with the intention to minimize its effects or simply ignore it). However, the CRPD provisions are susceptible to, at times, significantly different interpretations, as most provisions of any human rights treaty are. Therefore, rather than the ECJ raising the CRPD on a constitutional level, as Ferri argued, a more urgent issue is to have the CRPD provisions interpreted by this court. After all, article 3, paragraph 5 of the Treaty on European Union (TEU) prescribes that the EU “shall contribute to … strict observance and development of international law”.[20]

That might have already been a case if the ECJ[21] had not dismissed an appeal by two OPDs and an NGO to the order of the General Court.[22] Namely, those organizations brought the EC before the General Court for the Decision not to stop the funding which was being used in Bulgaria to build institutions for persons with disabilities, after a complaint had been submitted to the EC by those same organizations. The General Court and the ECJ found their application inadmissible due to the lack of locus standi and have not dealt with substantive aspects of the compatibility of relevant actions with the CRPD. Neža Šubic criticized the restrictiveness in interpreting locus standi rules for non-privileged groups and raised an issue of curbed access to justice for persons with disabilities in the EU.[23] It should be emphasized that even if the EC would be ordered to suspend, interrupt or cancel payments, a Member State could on its own continue to finance such a project in this and other cases.[24]

In another study, Mario Mendez analysed “avoidance techniques” employed by EU courts when EU actions are challenged for the infringement of international agreements.[25] First and foremost, the author listed the restrictive standing requirements as one of the tools, then the wide margin of appreciation recognized to Member States in relation to mixed agreements, invocability of those agreements as a review criterion and lastly the interpretation of the agreements themselves.[26] In relation to the CRPD, we have seen only the first technique employed by the Court. However, the EC has commonly employed two sets of tools to avoid implications of complaints on EU actions: an “ineffective” interpretation of the CRPD, and the insistence on the wide margin of appreciation of Member States in the use of EU funds and in the implementation and application of the CRPD.