Concluding remarks

The inferior secondary law of the European Union (EU) must be interpreted in line with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), as far as possible, but only in the scope of the EU’s competence which also considers the issues surrounding independent living and community inclusion, and life in a family environment. However, the issue of interpretation of the CRPD in the EU persists, as the European Court of Justice (ECJ) has yet to employ its exclusive competence to interpret the relevant CRPD provisions (art. 5, art. 19, art. 23).

The EU courts’ decisions on admissibility may indicate that the courts would rather lay aside the issue for the time being. Still, the insistence on the ECJ taking the interpretation of the CRPD into its hands makes much sense since, as Mario Mendez explained, it can be hardly expected that the EU administration will be particularly dedicated to the implementation and application of the human rights treaty on their own. After all, avoidance techniques employed by the European Commission (EC) such as the argument of the wide margin of appreciation to support an “ineffective” interpretation of the CRPD, together with restrictive standing requirements of the ECJ and the continuing funding of long-stay residential care through the European Structural and Investment Funds (ESIFs), call into question the EU’s dedication to the CRPD but also international law in general. The Vienna Convention on the Law of Treaties (VCLT) prescribes that States must take their obligations seriously and in good faith, meaning that the EU may be in breach of the VCLT itself.

Interpretations offered by the CRPD Committee have not convinced the EC, which categorized them as having only “policy weight”, but then also neglected their policy value too. In fact, the EC has gone as far as to offer an understanding of the CRPD Committee’s General Comment No. 5 (GC 5) as allowing for the development of long-stay residential care based on a wide margin of appreciation given to States when conducting deinstitutionalization (DI), despite the explicit opposition of the CRPD Committee to such forms of care in the same document. While the EC’s view of the GC 5 is almost nonsensical, its interpretation of article 19 of the CRPD is hardly in line with the general rules of treaty interpretation of the VCLT. The EC’s interpretation strips the CRPD of its effectiveness, which is a cornerstone of human rights treaties interpretation derived from the principle of good faith in treaty interpretation and firmly rooted in article 31 of the VLCT. An effectiveness approach to interpretation is commonly employed by regional and international human rights courts and bodies, and it seeks to achieve real and concrete protection of the human rights of its beneficiaries. In opposition to that, the EC went to great lengths to justify the investments in long-stay residential care, even where it meant neglecting the general rules of treaty interpretation. After all, a likely motive of the EC to apply such an interpretation was to avoid arousing too much opposition from Member States that benefited from those funds. The opposition of some Member States to the communication by the Directorate-General for Regional and Urban Policy (DG REGIO) to stop using ESIFs to develop residential care facilities is what generated the need for an opinion from the EC’s Legal Service in the first place.

On the other hand, we have seen the introduction of measures (ex-ante conditionalities; enabling conditions) in ESIF regulation that should promote investments in independent and community living for adults and life in a family environment for children with disabilities. However, the efficacy of those measures has not been satisfying. This is not surprising considering the EC’s interpretation of the CRPD. Regardless, the current regulation has brought some improvements, especially in the sphere of monitoring, leaving the impression of a seemingly more dedicated approach to the right to independent and community living by the EU when compared to previous such regulations.

The actions of civil society and other actors, as well as the CRPD Committee’s recommendations, have an impact on the content of EU legislation. Considering the noticeable trend of the increased sensitivity of financial regulation for the critical CPRD norms on the one hand, and the fact that EU courts are especially cautious in addressing legislative acts while being a lot keener to strike down administrative actions of EU institutions, indicates a path to the increased compliance of EU actions with the CRPD. From the perspective of organizations of persons with disabilities (OPDs) and non-governmental organizations (NGOs), energetic advocacy towards lawmakers in the EU, which has been employed in the past several years, bears fruit. The efforts of OPDs and NGOs as “transnational norm entrepreneurs” to push for a specific interpretation of those CRPD provisions is a significant factor of internalization of the CRPD in EU law. Considering that problematic interpretations of article 19 and other relevant CRPD provisions by the EC persist, even a CRPD-compliant legislation may, in practice, be a framework for actions not compliant with the CRPD. Therefore, the insistence on bringing cases before the ECJ, despite the issues with restrictive standing requirements exerted by the Court, is perhaps the most significant of all avenues.