D. Financial regulation 2021–2027 and the transition from institutional to independent living in the community

Possibly due to controversies regarding the use of EU funds, complaints by civil society and feedback from the CRPD Committee, the new ESIF programming period brought another set of measures and provisions addressing the issue. Still, it is hard to say if it will significantly impact the use of those funds in Member States – in other words, if those funds will be still used to build long-stay residential care.

Already in recital 6 of the ESIF regulation 2021–2027[1] (CPR 2021–2027 hereafter), Member States are called to respect obligations set forth in the CRPD, and it is expressed that ESIFs “should be implemented in a way that promotes the transition from institutional to family-based and community-based care”. Also, the funds “should not support actions that contribute to any form of segregation or exclusion, and, when financing infrastructure, should ensure the accessibility for persons with disabilities”. This wording indicates that there is an intention to address the issues of funding projects which contributed to the segregation of and discrimination against adults and children with disabilities: the development of long-stay residential care. The use of the term “family-based care” directs attention to the situation of children with disabilities and the problem of building facilities for institutional care, unlike in the previous regulation, where it was omitted. The wording used is non-obligatory and resembles the language of a policy goal, which is common for a preamble. Regardless, it certainly reveals that the issues in the previous programming period had not gone unnoticed. Considering the non-obligatory character and knowing the argument used by the EC in its responses to the complaints, the new text does not guarantee the compliance of either the EC or all its Member States with the CRPD.

The CPR 2021–2027 introduced horizontal and thematic “enabling conditions”, in accordance with article 15, paragraph 1, a tool equivalent to the ex-ante conditionalities (EACs) from the previous programming period. One of the horizontal enabling conditions is the “implementation and application” of the CRPD.[2] Fulfilment criteria related to this condition are, inter alia, a national programme for the implementation of the CRPD and a mechanism to monitor and report on the operations financed by ESIFs that are not aligned with the CRPD set in place. Also, those mechanisms should handle complaints submitted in relation to the use of ESIFs in the context of the CRPD, in accordance with article 69, paragraph 7 of the CPR 2021–2027. Such fulfilment criteria are a novelty and probably an attempt to advance scrutiny over the use of funds. National implementation plans must have measurable goals, data collection and monitoring mechanisms.

Thematic enabling conditions are related to the ERDF, the European Social Fund Plus (ESF+) and the Cohesion Fund, in accordance with article 15, paragraph 1 of the CRPD 2021–2027. Specific objectives in relation to social inclusion and persons with disabilities include the support for housing and social services and transitions from institutional to community-based care.[3] Two enabling conditions prescribe that Member States have strategic policy frameworks concerning social inclusion and long-term care in place. Fulfilment criteria include the existence of “measures for the shift from institutional to family- and community-based care”. A criterion concerning the enabling condition in relation to long-term care is the existence of measures that promote community- and family-based care and DI.

The policy objectives, enabling conditions and fulfilment criteria are not substantively much different from those of the previous programming period. The current document contains the term “family-based care”, which is commonly used in relation to the care for children, signifying that this is an issue recognized as relevant for the ESIFs. Thematic enabling conditions are not vastly more specific in relation to DI than the old EACs. However, a horizontal enabling condition which prescribes measures related to the implementation and application of the CRPD indicates more CRPD-focused programming. The “long-term care” is an issue relatively novel for ESIF regulation. In the current CPR 2021–2027, it is addressed to a much larger scope than in the preceding document.

The ERDF and Social Cohesion regulation do not prescribe the exclusion of investments in residential care for children and adults with disabilities from the scope of those funds.[4] One of the special objectives in relation to persons with disabilities includes the development of “new or modernised social housing”.[5] Most importantly, one of the policy objectives concerns the transition from institutional to community-based care.[6] Its corresponding output is the “capacity of new or modernised social care facilities (other than housing)”, while its implementation is measured based on the “annual users of new or modernised social care facilities”.[7] The ESF+ should not be used to support any actions that contribute to segregation or social exclusion and should contribute to the implementation of the CRPD.[8]

Based on the CPR 2021–2027 and the ERDF Regulation for the same period, there are hardly any significant attempts to decidedly preclude investments in the development of long-term residential care for children and adults with disabilities detectable. The Preamble of the CPR 2021–2017 contains some promising formulations, but its enabling conditions and fulfilment criteria do not solidify those aspirations to the extent it could have been done. Provisions on monitoring, reporting and complaints in relation to noncompliance with the CRPD seem to be the most promising ones in the current legislation, as they should open the possibility to scrutinize the use of funds more transparently and invite other stakeholders to the discussion. By introducing those measures, the EU at least partly fulfils a recommendation from paragraph 51 of the Concluding Observations issued by the CRPD Committee in 2015.[9] If interpreted in line with the CRPD, based on the CRPD Committee’s interpretation and the VCLT, both regulations would virtually exclude residential long-term care for persons with disabilities. However, the EC has not favoured such an interpretation and has relativized the significance of the CRPD in the past, as explored above. In that light, it is obvious that the wording offered in the current regulation did not close down the possibility of investments in long-term residential care.

What is necessary is either the shift of the approach taken by the EC and the Member States to the CRPD (which is less likely to happen by itself) or preferably the ECJ’s interpretation of relevant CRPD provisions in order to implement and apply the CRPD in good faith and effectively. As Mendez noted, a lenient attitude of the Court will likely result in poor adherence to EU agreements, as it should not be expected by legislative and executive bodies to be strongly committed to international law.[10] Commenting on an approach of the ECJ to legislative review, Damian Chalmers observed that undertaking tasks that had shown to be challenging for domestic constitutional courts could be “political suicide for a supranational judiciary”.[11] Although the present issue considers the review of EC actions, following Chalmers’ views, a similar conclusion could not be inferred, as the ECJ had “a much more aggressive posture” against the EC measures.[12]

In light of the findings and the elaboration by Chalmers, if a locus standi issue were overcome, perhaps such a case against EC actions could have reasonably good chances before the ECJ. The locus standi requirements of NGOs that would bring a case before the Court could be met by bringing the case on behalf of one or more applicants who are directly affected by a measure. This would be associated with a number of difficulties due to a specific factual situation and often specific legal status of children and adults with disabilities who live in residential care. This was argued by appellants in their appeal to the ECJ on the General Court’s decision. Šubic dealt with this issue thoroughly in her critique of the Court’s decision, arguing that the usual interpretation of locus standi rules significantly impedes the access to justice of those people.[13] Another avenue to the improved access of OPDs and NGOs to the Court could be an expanded interpretation of locus standi rules in their favour.