Introduction
It is well known that the advancement of disability rights within the European Union was first prompted by the entry into force of the Treaty of Amsterdam, Footnote 1 which conferred on the former European Community the competence to combat discrimination on the basis, inter alia, of disability by virtue of Article 13 EC. Footnote 2 The rights of persons with disabilities were then made more visible within the Charter of Fundamental Rights proclaimed in 2000. The Charter provides for an all-embracing prohibition on discrimination on the ground of disability among others (Article 21), and includes a provision on the integration of persons with disabilities (Article 26). With the entry into force of the Lisbon Treaty, in 2009, the Charter acquired constitutional status, and former Article 13 EC was recast as Article 19 TFEU. Footnote 3 Article 10 TFEU was also introduced to support the mainstreaming of non-discrimination within all EU policies and actions. Alongside those constitutional developments, in 2010, the EU acceded to the UN Convention on the Rights of Persons with Disabilities, which has become an ‘integral part of EU law’. Footnote 4 Furthermore, in the last 20 years, the EU has passed several regulations and directives that protect or address, often incidentally, the rights of persons with disabilities. Footnote 5 Among those, Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive), Footnote 6 which marked the first legislative intervention designed to address discrimination on the grounds of disability (among others), remains the cornerstone of EU disability legislation. Footnote 7
Taking into account this complex and dynamic framework, this article interrogates the role of the Charter of Fundamental Rights vis-à-vis the UN Convention on the Rights of Persons with Disabilities and EU legislation in ensuring the equal enjoyment of rights for people with disabilities. In doing so, it critically examines the extent to which the Luxembourg judges have engaged with the Charter, with a view to understand its interplay with sub-constitutional and legislative sources in the Court of Justice case law related to disability discrimination. The overarching research question underpinning the analysis proposed is hence: to what extent and how do the Charter provisions protecting the rights of persons with disabilities interact with the UN Convention and with related EU legislation in this field within the case law of the European Court of Justice? This article, while building on existing scholarship on EU equality law Footnote 8 and disability law, Footnote 9 does not delve into substantive issues such as the definition of disability for the purpose of EU law, the ‘social-contextual model’, Footnote 10 or reasonable accommodation,Footnote 11 nor does it focus on the impact of the Convention on EU anti-discrimination law per se, Footnote 12 or entertain the diverse scope and meaning of the non-discrimination norms in the UN Convention and in EU law, which have been extensively discussed by other scholars. Footnote 13 By contrast, this article is concerned with whether the formal constitutionalisation of the Charter has provoked a shift in the way in which the Charter has been used in the disability case law after 2009, or whether sources of rights that are hierarchically inferior (at least formally) to the Charter, such as the Employment Equality Directive and the UN Convention, are primarily relied upon. In doing so, it aims to understand the reasons for the use or (non-use) of the Charter in judicial reasoning and unveil the contours of the multi-layered EU disability law traced by the Court of Justice. Ultimately, this article argues that the Court traces an overlapping – and often somewhat counterintuitive or ‘unorthodox’ – relationship between various layers of norms in its judicial reasoning.
The section immediately following these introductory remarks recalls the most relevant legal provisions. This section does not delve into a substantive examination of Articles 20, 21 and 26 of the Charter, as a constitutional source of disability rights, nor the UN Convention or the Employment Equality Directive, which have each been the subject of thorough doctrinal analysis.Footnote 14 Rather, this section provides the context for the third section, which appraises the extent to which the Charter has been mentioned and relied upon in the Court’s decisions on disability vis-à-vis other sources since the 2000s. This third section maps the most relevant pre-Lisbon and post-Lisbon case law, and surveys the use of the Charter and its role in the Court’s decisions, comparing and contrasting the role played respectively by the Charter, the UN Convention and what have been termed ‘secondary rights’.Footnote 15 The analytical mapping takes into account the threefold function that the Charter can fulfil.Footnote 16 It acknowledges that the Charter can act as an aid to the interpretation of EU secondary law (and national law falling within the scope of EU law); that it can be relied upon as grounds for judicial review, and EU legislation found to be in breach of the Charter ‘is to be held void and national law falling within the scope of EU law that contravenes the Charter must be set aside’; or operate ‘as a source of authority for the ‘discovery’ of general principles of EU law’. It deliberately focuses on decisions in which Articles 21 and 26 of the Charter have been referred as a ground for judicial review of EU legislation by national courts in their requests for preliminary ruling to the Court of Justice, or have been used as an aid to the interpretation of EU secondary law by the Court, but does not examine case law in which provisions of the Charter are cited but are not relevant to the ratio decidendi.Footnote 17 As a result of the assessment conducted, the fourth section reflects on the elusive scope of application of the Charter as a hurdle for the application of the Charter vis-à-vis other sources, and examines in a critical fashion the interaction between the Charter and the UN Convention. The concluding section draws the various strands of analysis together.
Disability equality in the EU constitutional and legislative frameworks
As noted in the introduction, Article 19 TFEU remains the main provision conferring upon the EU the legislative competence to combat discrimination on the basis of disability, and underpins the EU regulatory powers in the field, tallying with the horizontal provision contained in Article 10 TFEU.
The Charter also enshrines the principle of equality and non-discrimination. Article 20 of the Charter provides for the principle of equal treatment. Footnote 18 Article 21 establishes the principle of non-discrimination. As highlighted by Muir, Footnote 19 the Court does not rigorously distinguish between Articles 20 and 21 of the Charter: both are understood as expressions of the general principle of equal treatment. Article 21(1) of the Charter lists disability as one of the grounds on which discrimination must be prohibited. Footnote 20 The wording, included in this provision, ‘any discrimination based on any ground such as…’ could be interpreted as allowing the protection of further categories of discrimination beyond those explicitly listed, within the scope of application of EU law. However, in line with Article 6(1) TEU and Article 51 of the Charter, the Explanations relating to the Charter overtly state that ‘Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas’. Footnote 21 Meaningfully located within Chapter III on Equality is also Article 26 of the Charter. This provision affirms that ‘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’. Footnote 22 Despite the slightly outdated language, with reference to integration rather than inclusion, Footnote 23 and in spite of its ‘(probably deliberately) vague’ scope and effects, Footnote 24 Article 26 of the Charter can be considered reflective of the ‘social-contextual model of disability’, Footnote 25 in that it focuses on participation in society and the need to ensure the independence of persons with disabilities within their communities. The ‘social-contextual model’ has been considered the most refined elaboration of the ‘pure’ social model.Footnote 26 The latter focuses solely on the external barriers encountered by people with disabilities and conceives of those barriers as creating disability, and contrasts the medical model of disability – which views disability as a mere consequence flowing from impairment. The former conceives disability as an interactive process between people with impairments and societal barriers. Article 26 has been qualified by the European Court of Justice, in line with the Explanations to the Charter and with what commentators had previously argued, Footnote 27 as a principle rather than a right. Footnote 28 This means that Article 26 is intended to guide the EU institutions when they legislate, but that it does not oblige them to act and is not directly enforceable. Footnote 29 Those aspects were elucidated by the Court in Glatzel: Footnote 30
[…] although Article 26 of the Charter requires the [EU] to respect and recognise the right of persons with disabilities to benefit from integration measures, the principle enshrined by that article does not require the EU legislature to adopt any specific measure. In order for that article to be fully effective, it must be given more specific expression in European Union or national law. Accordingly, that article cannot by itself confer on individuals a subjective right which they may invoke as such […].
The Luxembourg judges seem to confirm the binding nature of Article 26 of the Charter. The prescriptive nature of a principle, as highlighted by Lock, ‘only removes the legislature’s discretion as far as the question is concerned whether it needs to comply’, but ‘leaves intact the legislature’s discretion as to how it should comply’. Footnote 31
The UN Convention enjoys a sub-constitutional status within the EU legal order, Footnote 32 and, by virtue of this status, EU legislation must be interpreted in a manner consistent with it. Footnote 33 Notably, the UN Convention provides for an extensive articulation of fundamental rights in light of disability which is underpinned by a social-contextual understanding of disability. Its text explicitly affirms that ‘disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others’. Footnote 34 The UN Convention is informed by the principle of equality which has been referred to as its ‘leitmotif’. Footnote 35 In particular, Article 2 of the Convention provides a broad definition of discrimination on the basis of disability, highlighting that such discrimination includes the denial of a reasonable accommodation, while Article 5 articulates the principle of equality and enshrines what has been termed by the UN Committee on the rights of persons with disabilities ‘inclusive equality’. Footnote 36 Inclusive equality embraces: a fair redistributive dimension, which requires that socio-economic disadvantages are addressed; a recognition dimension, which necessitates the combatting of stigma, stereotyping, prejudice and violence, and the recognition of the dignity of human beings and their intersectionality; a participative dimension, which aims to reaffirm the social nature of people with disabilities as members of the society; and an accommodating dimension, which entails making ‘space for difference as a matter of human dignity’. Footnote 37
The constitutional rights of persons with disabilities and the CRPD sub-constitutional framework are closely intertwined with a range of secondary rights included in EU legislation. As noted above and widely acknowledged by scholarship, the most important secondary law addressing disability-based discrimination is the Employment Equality Directive.Footnote 38 This Directive applies to both public and private sectors, with regard to access to employment, working conditions, and access to vocational training and membership. It also applies to involvement in an organisation of workers or employers, or a professional organisation, and to the benefits provided by such bodies. Alongside prohibiting discrimination, this Directive imposes a duty on employers to provide reasonable accommodation for persons with disabilities. Furthermore, Article 7 of the Directive permits member states to maintain or adopt specific measures to prevent or compensate for disadvantages experienced by disabled persons, and to maintain or adopt measures relating to health and safety at work, or measures ‘aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment’.
On the whole, this brief recount has endeavoured to highlight that the constitutional character of disability equality is rooted in the Treaty and in the Charter, while the actual protection of the rights of persons with disabilities stems from multi-layered sources, which have a different – yet overlapping – normative content and exist at different levels in the hierarchy. In theory, the content and scope of rights provided in EU legislation should be fleshed out through the interpretation of EU constitutional norms, with the Charter playing a fundamental role in enhancing those rights. However, as it is discussed below, the extent to which the Luxembourg judges have engaged with the Charter, compared to these other sources, paints a rather different picture.
Mapping the Charter in the Court of Justice case law on disability discrimination
After having presented in a succinct fashion the multi-layered legal context, this section surveys the body of case law on discrimination on the basis of disability adjudicated upon by the European Court of Justice, which has been, in general, scant and is mostly concerned with the Employment Equality Directive. This systematic mapping exercise provides a critical appraisal of the relevance of the Charter in European Court of Justice decisions vis-à-vis the UN Convention on the Rights of Persons with Disabilities and the Directive. Consistent with this approach, this section does not discuss in a detailed manner the content of Court’s decisions, which have been extensively commented upon by scholars, nor does it explore the meaning of disability for the purpose of EU non-discrimination law, or the duty to provide reasonable accommodation, which are outside of the scope of this article.
The irrelevance of the Charter and the focus on the Employment Equality Directive in the ‘pre-Lisbon’ cases
The first, and most widely criticised judgment in this field, Footnote 39 Chacón Navas, Footnote 40 concerned a Spanish employee who, after being off work sick for eight months, was dismissed. In the case pending in front of the Juzgado de lo Social of Madrid, while the employer acknowledged that the dismissal was ‘unlawful’ under Spanish law and offered compensation, the employee argued that the dismissal was discriminatory and void. The Spanish court decided to stay the proceeding and requested a preliminary ruling from the European Court of Justice. The first core question asked of the Luxembourg judges concerned whether the employee’s health condition could be considered a disability according to the Employment Equality Directive. It is well known that, in answering that question, the Court adopted a narrow interpretation of disability, based upon the medical model, and clearly distinguished the concept of sickness from that of disability. Footnote 41 With its second question, the referring court asked ‘whether sickness can be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination’. Footnote 42 Along the lines traced by Advocate General Geelhoed, Footnote 43 the Court answered in the negative to this question, by relying on the fact that ‘no provision of the EC Treaty prohibits discrimination on grounds of sickness as such’. Footnote 44 Interestingly, the Advocate General explicitly contrasted the closed list of the Treaty with open lists of prohibited grounds that pertain to ‘classical international human rights treaties and, for example, Article II-81 of the Constitutional Treaty’ (which is now Article 21 of the Charter). Footnote 45 The European Court of Justice did not mention the Charter (nor the failed Constitutional treaty): it acknowledged that fundamental rights ‘which form an integral part of the general principles of [EU] law include the general principle of non-discrimination’, Footnote 46 but emphasised the closed character of the list of grounds included in the Treaty, and its reasoning revolves around the limited scope of EU law. The Court recalled that the principle of non-discrimination is ‘binding on Member States where the national situation at issue in the main proceedings falls within the scope of [EU] law’, and concluded that the scope of the Employment Equality Directive could not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in its Article 1. Footnote 47
The subsequent decision, Coleman, Footnote 48 concerned a case of discrimination by association. The facts underpinning this decision are well-known: Ms. Coleman claimed that she had been dismissed from her employment and treated less favourably than her fellow employees due to her being a primary care-giver for her disabled son. In essence, the referring court asked the European Court of Justice whether the Employment Equality Directive must be interpreted as prohibiting discrimination on grounds of disability only in respect of an employee who is a person with a disability, or whether the Directive protects also employees who are not themselves disabled, but are treated less favourably on the grounds of their association with a person with a disability. Interestingly, the Luxembourg Court decided not to include any reference to the Charter of Fundamental Rights, which had been cursorily cited, in a footnote alongside relevant human rights instrument enshrining the principle of equality and non-discrimination, by Advocate General Maduro in his Opinion. Footnote 49
Chacón Navas and Coleman are the oldest rulings on disability discrimination. In spite of them being subsequent to the solemn proclamation of the Charter, no reference to Articles 20, 21 or 26 can be found in either of those decisions. In both cases, the reasoning of the Court revolves around the Employment Equality Directive, which was at the core of the questions asked by national courts.
Given that the UN Convention had not been yet ratified by the EU (and Chacón Navas even predates its approval by the UN General Assembly), it remained, predictably, immaterial to the judicial reasoning. Footnote 50 The irrelevance of the Charter is also somewhat unsurprising, and is easily explained by its lack of binding legal effect and uncertain constitutional status at that time. Nevertheless, it cannot be forgotten that the Charter had in fact been cited in some pre-Lisbon cases as a codification of EU fundamental rights already recognised in the Treaties, legislation and case law. Footnote 51 It is, for example, difficult to forget the ‘pro-Charter’ manifesto of Advocate General Mischo in Booker Aquacultur:
I know that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the [EU] legal order. Footnote 52
On the whole, it is interesting to note that, in both decisions, the Luxembourg judges cited point 26 of the Community Charter of the Fundamental Social Rights of Workers (albeit in a cursory manner), which was referred to in the former Article 136(1) EC and within the preamble to the Employment Equality Directive. Footnote 53 This point 26 is the direct antecedent of, and source of inspiration for, Article 26 of the Charter of Fundamental Rights. Thus, the Court could have arguably cited the Charter in that connection, and this would have possibly placed a greater emphasis on the social context and on the barriers faced by people with disabilities. The Court’s focus on the Directive and the lack of engagement with the Charter did not impede the adoption of wider concept of discrimination to encompass discrimination by association. In fact, Coleman is said to represent ‘a landmark ruling in the cause of the implementation of the principle of equal treatment in the Member States’. Footnote 54 Citing the Charter, and in particular Article 26 would have possibly buttressed a more thorough reasoning on role of carers in supporting the participation of people with disabilities in society.
Furthermore, looking retrospectively at those pre-Lisbon disability cases, it seems safe to state that a reference to Article 21 of Charter would not have changed the strict interpretation of the closed list of discrimination grounds in EU law. As will be further discussed in subsequent sections, that interpretation has been consistently endorsed by the European Court of Justice also in the post-Lisbon case law. This is inevitably linked to the scope of EU law and its nature of ‘derivative’ legal order, in which the exercise of EU powers depends upon the allocation of competences set out in the Treaties. Footnote 55 However, a reference to Article 26 of the Charter in the context of interpretation of the list of grounds could have supported a more social-oriented and less medicalised reading of disability. It is worth recalling that the Advocate General in Chacón Navas did acknowledge the social model of disability and claimed that that ‘certain physical or mental shortcomings are in the nature of “disability” in one social context, but not in another’, while, in the end, he adopted a medical model approach. Footnote 56 Moreover, this ruling was released at a time in which the discourse on the social model had already crept into EU policies. Footnote 57 Hence, the use of the Charter as interpretive aid could have allowed the Court to embrace a social understanding of disability, before the ratification of the UN Convention, and to look at the stigma faced by Ms Chacón Navas, as she unable to come back to work, as well as at the social context which ‘disabled’ her.
An ‘unexpected’ interplay of sources: the limited relevance of the Charter in ‘post-Lisbon’ case law and the surge of the UN Convention as pivotal normative reference
O’Brien and Koltermann suggest that, after the entry into force of the Lisbon Treaty, the European Court of Justice ‘warmed to the Charter quite quickly’, having relied on, or at least referred to, the Charter in several judgments. Footnote 58 They also argue that the Court’s decisions have come to include ‘more substantive deliberations on the scope and content of individual norms’ of the Charter. Footnote 59 In a general fashion, De Burca notes that the Luxembourg Court has placed increasing emphasis on the Charter in an expanding number of cases. Footnote 60 Most recently, Frantziou suggests that the Charter has become ‘an essential port of call for human rights discourse in the EU’ and ‘has, overall, been overwhelmingly more present in EU law since its entry into binding force than it had been pre-Lisbon’. Footnote 61 However, this general trend is not confirmed in case law concerning the right of persons with disabilities not to be discriminated against. It is true that the Court has started to engage with the Charter but, as yet, with the exception of Glatzel, Footnote 62 Articles 20, 21 and 26 of the Charter have not played a significant role in this strand of case law.
In HK Danmark, Footnote 63 which was not only the first post-Lisbon case, but also the first decision following the EU accession to the UN Convention, the Court elaborated a definition of disability based on the social-contextual model conceptualisation enshrined in Article 1 of the UN Convention. The case has attracted a great deal of scholarly attention because, for the first time, the Court interpreted (albeit reluctantly) Footnote 64 the Employment Equality Directive in a manner consistent with the UN Convention. Footnote 65 In that vein, the Luxembourg judges recognised that ‘if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of “disability” within the meaning of Directive 2000/78’. Footnote 66 The Court revised the definition of disability embraced in Chacón Navas, but did not overrule that decision in all respects, as it still held that an illness cannot be considered a disability. According to Schiek, the Court ‘only modified the Chacon Navas ruling as far as absolutely necessary to pay respect to the [UN Convention]’. Footnote 67 In HK Danmark, the European Court of Justice also stated that a reduction in working hours can constitute a reasonable accommodation for the purpose of the Directive as interpreted in light of and in compliance to the UN Convention. Footnote 68 In line with the questions of the referring court, the judicial reasoning revolves around the interpretation of the Directive. The UN Convention represents the main point of reference in that reasoning; no reference to the Charter is made. Given that the Charter is part of the EU constitutional framework alongside the Treaty, it seems startling that, at the outset of the decisions, when the relevant legal provisions are mentioned, no reference to the Charter is made. Furthermore, the Charter could have arguably been mentioned when referring to the principle of equality, and Article 26 could have also been used to support the interpretation of the concept of reasonable accommodation, as cornerstone of an inclusive workplace, alongside the UN Convention.
In Commission v Italy, Footnote 69 which arose from an infringement procedure against Italy for failure to correctly implement Article 5 of Employment Equality Directive (on reasonable accommodation), the reasoning of the European Court of Justice focused (quite obviously) on the interpretation of the Directive. Significantly, following the line of reasoning of HK Danmark (which is widely cited), the Court refers several times to the UN Convention, in light of which it interprets the Directive. In other post-Lisbon disability cases originating from requests for preliminary ruling, such as Ruiz Conjero, Footnote 70 and, more recently, in DW v Nobel Plastiques Ibérica SA, Footnote 71 similar to HK Danmark, the Court did not refer to the Charter. Without exploring the details of those decisions, which have been thoroughly discussed by scholars elsewhere, Footnote 72 it suffices to point out that the Charter did not feature in the questions raised by the national court and the Court did not cite the Charter motu proprio, not even cursorily or a fortiori or within the relevant legal context.
In two decisions (Kaltoft Footnote 73 and Daouidi Footnote 74 ), as will be discussed further in the next section, the (limited) scope of application of the Charter prompted the Court to focus on EU secondary law (namely on the Employment Equality Directive), Footnote 75 and on its interpretation in light and in compliance with the UN Convention, rather than on the Charter. By contrast, in the case of Milkova, Footnote 76 the Court engaged briefly with the Charter, which was used de facto as an aid to the interpretation of the Employment Equality Directive, in order to assess whether the Bulgarian legislation at stake contravened that Directive and should be set aside.
In Z v A Government Department Footnote 77 and in Glatzel Footnote 78 the Charter was essentially invoked by the national court as parameter to assess the validity of EU legislation. However, in Z v A Government Department, as it will be further explained in the subsequent section, having excluded that Mrs Z’s legal situation fell within the scope of EU law, the Court did not have jurisdiction to rule on the validity of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation and of the Employment Equality Directive vis-à-vis the Charter.
In Glatzel, contrary to what occurred in the Z case, the Court did assess EU secondary legislation vis-à-vis the Charter. The case originated from a request from preliminary ruling of the Bayerischer Verwaltungsgerichtshof in the proceeding between Mr Glatzel and Freistaat Bayern, concerning the refusal to Mr Glatzel of a driving licence for heavy goods vehicles, on the ground that his visual acuity in one of his eyes did not reach the minimum level required by point 6.4 of Annex III to Directive 2006/126. In essence, the German court asked the Court whether the physical conditions to be complied with by drivers constituted discrimination on the grounds of disability and violated Article 20, Article 21(1) and Article 26 of the Charter. Footnote 79 Ultimately, the Court concluded that there was not ‘any information capable of affecting the validity of point 6.4 of Annex III to Directive 2006/126 in the light of Articles 20, 21(1) or 26 of the Charter’. Footnote 80 With regards to Article 21(1), the Court, first, stipulated that a difference in treatment on the basis of visual acuity necessary to drive power-driven vehicles is not, in principle, contrary to that provision of the Charter, in so far as such a requirement actually fulfils a public interest objective, is necessary and is proportionate in achieving its objective. Footnote 81 The Court contended that the minimum threshold of visual acuity provided for in Directive 2006/126 was specifically designed to improve road safety, which is an objective of general interest for the EU. Footnote 82 It then went on to state that the principle of proportionality requires the principle of equal treatment to be reconciled, as far as possible, with the requirements of road safety which determine the conditions for driving motor vehicles. Footnote 83 In that vein, the Court examined whether point 6.4 of Annex III to Directive 2006/126 was disproportionate in relation to the objective pursued. It highlighted that the EU legislature, which has a broad discretion in adopting decisions involving complex medical issues, drafted the provision at stake ‘in the light of that knowledge and attempted to limit as much as possible any interference with the rights of persons suffering from visual defects’. Footnote 84 The Court also emphasised that it ‘cannot substitute its assessment of scientific and technical facts for that of the legislature on which the founding treaties have conferred that task’. Footnote 85 It therefore concluded that the requirement included in point 6.4 of Annex III was not disproportionate. Footnote 86 Furthermore, the Court briefly examined the validity of point 6.4 of Annex III vis-à-vis Article 26 of the Charter. Footnote 87 After highlighting that Article 26 of the Charter includes a principle, which is not justiciable per se, it confirmed the validity of the Annex under review. In that regard, Ward contends that the approach taken by the European Court of Justice diminishes the impact of Article 26 of the Charter in the field on non-discrimination. Footnote 88 She also argues that:
to the extent to which a right listed in Article 21(1) of the Charter is additionally supported by a principle, as is the case with respect to the prohibition on discrimination on the basis of disability, the [European Court of Justice] has interpreted the relevant provision – that is Article 26 of the Charter on the integration of persons with disabilities – in such a way that its influence in relevant litigation is light. Footnote 89
While the overall outcome of the analysis of the European Court of Justice in Glatzel has been harshly criticised by several scholars, Footnote 90 the Luxembourg judges looked at the aim of the Directive under review (which was that of making ‘it easier for physically disabled persons to drive vehicles’), Footnote 91 and held that that Directive did in fact implement Article 26 of the Charter. From this decision it can be inferred that the Court retains some leeway to intervene and assess EU implementing legislation vis-à-vis Article 26. It is to be expected (and would indeed be desirable) that, in the future, the Court will engage in a deeper manner with the content of Article 26 of the Charter, and that might consider specific disability legislation, such as, for example, the European Accessibility Act, to be an implementing act of Article 26. Footnote 92 Finally, the Court turned its examination to Article 20 of the Charter. Footnote 93 It recalled that under Annex III of Directive 2006/126, certain drivers who do not satisfy the standards relating to visual acuity, the issue of a driving licence may be envisaged in ‘exceptional cases’, where a driver submits to an individual examination to test his fitness to drive. This possibility is not provided for drivers under point 6.4 of that Annex. The European Court of Justice stated this differentiation does not constitute a difference in treatment contrary to Article 20 as the situations at stake are not comparable. Without delving into the details of the decision, for the purpose of the current analysis, it suffices to point out that the Luxembourg Court did assess the validity of the legislation at stake vis-à-vis the Charter. Yet, it does not engage with the substance and the wide-ranging implications of the open-textured provisions of the Charter. This is particularly true for Article 26, which could have a transformative potential when it comes to ensuring ‘inclusive equality’ for people with disabilities. However, as widely discussed by O’Brien, ‘the content or implications of Article 26 of the Charter went unexamined’. Footnote 94
On the whole, compared to the pre-Lisbon scenario, the Charter has commenced to display some (quite limited) influence on case law of the European Court of Justice on disability discrimination. However, the Employment Equality Directive (or more broadly secondary law) remains the anchor of the judicial reasoning, with the UN Convention playing an interpretive role to ensure an unambiguous and uniform meaning of secondary rights, and supporting legal certainty. The visibility of the Charter in the Court of Justice’s case law concerning disability is minimal. This observation tallies with Ward’s more general arguments that the Charter has had ‘a muted impact on the evolution of EU equality law’, Footnote 95 and that the influence of Articles 20 and 21 of the Charter in the development of general EU equal treatment law has been a ‘low profile’ one. Footnote 96
A number of findings emerge from the survey conducted in this section. First, the Court does not cite the Charter motu proprio, not even as a rhetorical flourish. When the national court does not refer to the Charter in its questions, the Luxembourg judges do not engage with it. Second, even when the referring court presents questions related to the Charter or uses the Charter as a parameter of validity for EU legislation (such as Daouidi), the Court avoids answering those questions. Third, in the only instance (Glatzel) in which the Court has actually used the Charter as parameter of validity of EU legislation, it has not fully engaged with the substance of the Charter provisions. Finally, this appraisal also shows that the Charter has not offered to the Court a foothold with regard to the interpretation of the ground of ‘disability’, which is a key point in several decisions. The ‘paradigm shift’ (more formal than substantial) that has occurred since HK Danmark revolves only around the UN Convention as a main legal and conceptual benchmark. In that connection, the Court, with the purpose of offering a univocal interpretation of disability to secure the uniform application of EU law, has drawn the contour of an interesting and unorthodox relationship between the Charter and the UN Convention itself, which will be explored in the subsequent sections.
Exploring the ‘unorthodox’ relationship among sources of EU disability law: the elusive boundaries of the scope of application of the Charter and the implicit constitutionalisation of the UN Convention
In general, as noted by Frantziou, the Charter has ‘steadily (and not that slowly) assumed a constitutional place at the apex of the EU hierarchy of norms’, and the Court has tended to affirm the ‘Charter’s prominence as the primary source of fundamental rights protection in the Union’, often replacing references to the European Convention on Human Rights with mentions of the Charter. Footnote 97 By contrast, the survey conducted above seems to show that, in disability discrimination case law, the Court has downplayed the constitutional status of the Charter, referring to the UN Convention as a source par excellence of the rights of persons with disabilities. Certainly, the UN Convention with its extensive articulation of disability rights, overt embracing of the social-contextual understanding of disability, and wide-ranging formulation of the equality principle, constitutes a safe and easy interpretive anchor. However, the unwillingness of the Court to engage with the Charter seems rooted in systemic reasons (rather than on its substance, which, as mentioned before, align to the rational of the UN Convention). It is argued here that the elusive notion of ‘implementing EU law’, purported by Article 51(1) of the Charter, de facto, has been used by the Court as a shield to avoid engaging with delicate questions related to the scope ratione personae of EU non-discrimination law.
It is well known that the Charter applies to all EU institutions, bodies, offices and agencies, but it is applicable to member states only when ‘they are implementing Union law’, as specified by Article 51(1) CFR. Article 51(2) CFR, in a similar vein to the second indent of Article 51(1) CFR, provides that the Charter cannot extend the competences which have been conferred onto the EU by the Treaties. Fontanelli contends that Article 51 CFR is ‘the key provision of the Charter’s self-restraint vis-à-vis Member States’, Footnote 98 while Lenaerts highlights that scope of application of the Charter is ‘the keystone which guarantees that the principle of conferral is complied with’. Footnote 99 The Explanations to the Charter in relation to Article 51(1) elucidate that ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’. Footnote 100 Those explanations rely on pre-Lisbon cases such as Wachauf Footnote 101 and ERT. Footnote 102 In the post-Lisbon context, the renowned decision in Åkerberg Fransson marks an important watershed as the Court stated that ‘the applicability of [EU] law entails applicability of the fundamental rights guaranteed by the Charter’. Footnote 103 In essence, Article 51(1) CFR requires a connection with EU law. Footnote 104 This connection is said to exist when member states are applying a provision of EU law (apart from the Charter itself), or are applying a national law that transposes EU legislation, or that is otherwise intended to implement EU law or pursues its objectives. Footnote 105 However, in disability case law, the necessary connection between the situation at stake and EU law remains somewhat elusive.
The applicability of the Charter in Milkova and a nuanced consitutionalisation of the UN Convention
Milkova is the only case in which the European Court of Justice adopts a broad understanding of the notion of ‘implementing EU law’ for the purposes of Article 51(1) in line with the Åkerberg Fransson jurisprudence. Consequently, this case represents also a notable exception in that the Court actually engages with the Charter, while still referring widely to the UN Convention and interpreting the Employment Equality Directive in light of that Convention. The engagement with the Charter seems even more exceptional if we consider that the referring court did not explicitly mention to the Charter in its questions but only briefly cited it in its order, without ‘spell[ing] out how that instrument of EU law might be relevant to the facts of the dispute in the main proceeding’. Footnote 106
The decision in Milkova followed from a request for preliminary ruling from the Supreme Administrative Court of Bulgaria and concerned the interpretation of Articles 4 (on occupational requirements) and 7 (on positive action) of the Employment Equality Directive and of Article 5 of the UN Convention (on non-discrimination). That request was raised in the proceedings brought by Ms Milkova in relation the decision to terminate her employment relationship. In particular, Ms Milkova, a person with a disability, had alleged that the Bulgarian legislation was discriminatory in conferring on employees with certain disabilities a specific protection in the event of dismissal, without extending such protection to civil servants with the same disabilities. Advocate General Saugmandsgaard Øe suggested that the Employment Equality Directive was not applicable in circumstances similar to those of the dispute in the main proceedings, ‘where the differentiation at issue was based on a criterion other than those exhaustively listed in Article 1’ of the Directive. Footnote 107 Consequently, he argued that the Directive could not be interpreted in the light of the provisions of the Charter. Footnote 108 Notably, however, he presented in his Opinion ‘a number of observations in the alternative to cater for the eventuality that the Court does not follow that recommendation’, without focusing on the Charter in those observations. Footnote 109 The Court did not follow the former indication of the Advocate General, but considered that the Bulgarian legislation at issue in the main proceedings comes within the scope of Article 7(2) of the Employment Equality Directive. Footnote 110 As a consequence, the Luxembourg judges established the applicability of the Charter, by holding that the Bulgarian legislation pursues an objective covered by EU law. They highlighted that, even though Article 7(2) of the Directive does not require member states to adopt positive measures, such a discretion ‘does not permit the conclusion that rules adopted by Member States, such as those at issue in the main proceedings, fall outside the scope of EU law’. Footnote 111 Ultimately, the European Court of Justice stated that Article 7(2) of the Directive, ‘read in the light of the UN Convention and in conjunction with the general principle of equal treatment enshrined in Articles 20 and 21 of the Charter’, allows for a national legislation which confers on employees with certain disabilities specific protection in the event of dismissal, without conferring such protection on civil servants with the same disabilities, unless it is established that there has been an infringement of the principle of equal treatment, Footnote 112 but left it to the referring court to ascertain whether a violation of the principle of equal treatment occurred. Footnote 113
In Milkova, the Luxembourg judges relied heavily on the UN Convention, but still applied the Charter. In that regard, they remind us that the application of the Charter must be triggered by another EU legal provision, and that the connection between the Member State action and the EU provision still exists when member states enjoy a margin of discretion within the framework of EU law and are acting within that margin left by EU law, as already stated in N.S. Footnote 114 Even though it was not obvious from the Bulgarian’s court reference that the legal situation at stake fell within scope of EU law, as the alternative options purported in the Opinion of Advocate General Saugmandsgaard Øe (who focuses in a first place on the ground of the differentiation purported by the Bulgarian legislation) show, the Charter was relied upon by the Court. Yet, the European Court of Justice suggests that the Directive (a secondary source) must be read in conjunction with a constitutional source (the Charter) and in light of a sub-constitutional source (the UN Convention). The Court seems implicitly to suggest a reversal of hierarchy between the UN Convention and the Charter. In the words of the Court, the UN Convention subtly becomes the (constitutional) point of reference for the protection of the rights of persons with disabilities.
Tracing a ‘thin red line’: Z v A Government Department
Z v A Government Department originated from a request for preliminary ruling raised by the Irish Equality Tribunal. That national court asked the European Court of Justice whether the refusal of paid leave from employment equivalent to maternity leave and/or adoptive leave to a woman who conceived a child through surrogacy could constitute a discrimination on the ground of sex for the purpose of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation interpreted, inter alia, in light of the Charter. If that was not the case, it asked whether that Directive was valid vis-à-vis, inter alia, Article 21 of the Charter. In response to those first questions, the European Court of Justice, in a nutshell, held that the subject matter of the case did not fall within the scope of that Directive, Footnote 115 and that it was unnecessary to assess the validity of Directive 2006/54 in the light of the Charter. Footnote 116 The other questions, which are the most relevant for the purpose of this analysis, concerned, in essence, whether the Employment Equality Directive, interpreted in the light of the UN Convention, must be understood as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker, who is unable to bear a child and who has availed herself of surrogacy, constitutes a discrimination on the ground of disability, and, if the answer is in the negative, whether that Directive is valid in the light of, inter alia, Articles 21 and 26 of the Charter. In answering the question, the European Court of Justice focused on whether Mrs Z could be considered a person with a disability and concluded that ‘the inability to have a child by conventional means does not in itself, in principle, prevent the commissioning mother from having access to, participating in or advancing in employment’. Footnote 117 In that vein, it held that Mrs Z’s condition did not entail a disability for the purpose of the Employment Equality Directive. As a consequence, the Court, without even making a reference to the well-rooted jurisprudence on Article 51 of the Charter, deemed it unnecessary to examine the validity of the Employment Equality Directive in light of the Charter.
The laconic approach of the Court to the Charter’s applicability does not offer many opportunities for speculation. However, this point was discussed by Advocate General Wahl in his Opinion. He only examined it with reference to Directive 2006/54, and then stated that those remarks applied mutatis mutandis to the Employment Equality Directive. Footnote 118 The Advocate General recalled that ‘invoking a Charter provision will not suffice to transform a situation otherwise falling within the ambit of national law into a situation covered by EU law’. Footnote 119 He also stated that ‘while the Charter (and the primary law as a whole) must undoubtedly be observed in the interpretation of EU secondary legislation’, it cannot be deployed in such a way as to extend the scope ratione materiae of secondary legislation. Footnote 120 He then went on by stating that ‘a specific legislative instrument reflecting a fundamental legislative choice to enhance substantive equality … cannot be construed, simply by evoking fundamental rights, as covering other (possible) forms of discrimination’. Footnote 121 This is the same rationale underpinning the decision in Chacon Navas (as well as Kaltoft) that the list of grounds included in Article 19 TFEU is exhaustive. Footnote 122 In the Z case, however, what is striking is that the Court is not really confronted with a prospective additional ground of discrimination (such as sickness or obesity). By contrast, as noted elsewhere, Mrs Z could in fact be considered a person with disabilities, but, according to the European Court of Justice, not for the purpose of the Employment Equality Directive. Footnote 123 The Court relied on the limited scope of the Directive ratione materiae, and explicitly and deliberately narrowed down the definition of disability. Footnote 124 In its reasoning, the Court did not use the Charter (as it could have) to support an approach to disability discrimination capable of ensuring substantive equality. Article 26, by virtue of its reference to ‘measures designed to ensure their independence, social and occupational integration’, could have bolstered the view that, as noted by Waddington, the barriers experienced by Mrs Z were ‘the absence of a statutory regime providing for a period of paid leave following the birth of a child through surrogacy’, Footnote 125 i.e. the absence of measure to enhance occupational integration.
On the whole, this heavily criticised decision, which paid lip service to the UN Convention and embraced a medicalised view of disability revolving around the role of the physical impairments rather than social barriers, Footnote 126 shows (once again) that the Court refers preferably to the Convention as a benchmark for the protection of disability rights, rather than to the Charter. Such reluctance to the Charter is unequivocally linked to the willingness on the side of the Court to limit the reach of EU non-discrimination law, as well as to protect member states’ prerogatives in an area which is ethically sensitive and when the widening of the scope of application has potentially far-reaching economic and financial consequences. In fact, we cannot but remember that surrogacy remains a controversial practice and raises concerns of commodification of women’s bodies, and that Mrs Z’s case revolves around an economic entitlement. Footnote 127
Kaltoft and Daouidi: leaving the Charter behind
While in Z the European Court of Justice held that the situation did not fall within the scope of EU law, in Kaltoft and Doauidi, the Court essentially declined to answer the questions related to the Charter as the national court did not demonstrate that the situation at issue came within the scope of EU law.
In Kaltoft, Footnote 128 the Court considered that the Charter as such was not applicable. Mr Kaltoft worked as a child-minder in Billund, Denmark, but was dismissed from his employment. He claimed that he was a victim of discrimination on the basis that he was obese. The Danish district court, examining the complaint, decided to stay the proceedings and sought a preliminary ruling from the European Court of Justice. It asked four questions to the Luxembourg judges. The first three questions, in essence, enquired whether obesity can be considered to be a protected ground of discrimination under EU law. With its fourth question the Danish court queried whether obesity can be deemed to be a disability covered by the Employment Equality Directive. In none of these questions did the Danish court refer overtly to the Charter. However, the first question is relevant for the purpose of this analysis, as the national court explicitly asked whether it is ‘contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights’ to discriminate on the grounds of obesity. Following well-established case law, the Court recalled (exactly as it had done in Chacon Navas) that ‘fundamental rights which form an integral part of the general principles of EU law include the general principle of non-discrimination’. Footnote 129 However, the Luxembourg judges denied that EU law lays down a general principle of non-discrimination on the grounds of obesity. Footnote 130 The Court also held that there was no evidence suggesting ‘that the situation at issue in the main proceedings, in so far as it relates to a dismissal purportedly based on obesity as such, would fall within the scope of EU law’, Footnote 131 stating that the Charter was not applicable. Footnote 132 While the list of grounds in Article 21 of the Charter is non-exhaustive and wider than that included in Article 19 TFEU, the Charter cannot expand the EU’s competences. Advocate General Jääskinen, echoing Advocate General Wahl’s words in Z v A Government Department, and citing Chacon Navas, recalls that that ‘a generalised link between Member State and EU labour markets law’ is not sufficient to engage EU fundamental rights protection at national level, as this ‘would breach the established boundary on the outer limit of EU fundamental rights law’. Footnote 133 Ultimately, the Court concluded that obesity per se does not amount to a disability, but when an employee’s obesity does entail a limitation that, in interaction with various barriers, hinders his equal participation on the workplace then obesity can be included in the concept of disability. Footnote 134
In the subsequent case of Daouidi, the European Court of Justice did not examine the questions related to the Charter that the referring court had posed. Rather, it focused on the Employment Equality Directive. Footnote 135 The decision originated from a request for a preliminary ruling raised by the Social Court of Barcelona, in the course of the disability discrimination on the dismissal of Mohamed Daouidi by Bootes Plus SL. The Social Court asked five questions, which concerned the Charter and the Employment Equality Directive. First, it asked whether, essentially, the decision of an employer to dismiss a worker due to his temporary incapacity (of uncertain duration) constitutes a discrimination for the purpose of Article 21(1) of the Charter. Second, it asked whether Article 30 of the Charter, on the protection against unjustified dismissal, requires national law on manifestly arbitrary dismissal to be applied when the discharge infringes a fundamental right. In addition, it enquired whether a dismissal for temporary incapacity, such as that at stake, would come under the scope of the Charter, and in particular of Articles 3, 15, 31, 34(1) and 35(1), and in such a case, whether those Articles could be directly applied by the national court. Last, the Social Court queried whether a dismissal for temporary incapacity could amount to a direct discrimination on the grounds of disability under the Employment Equality Directive. In his Opinion, Advocate General Bot focused only the fifth question as to whether or not the dismissal could have been considered discriminatory on the ground of disability for the purpose of the Directive. Footnote 136 In a similar fashion, the Court answered only the fifth question posed by the referring court with the view of allowing it to determine whether the condition of Mr Daouidi, i.e. a temporary incapacity of uncertain duration, could be deemed to be a disability within the meaning of the Employment Equality Directive. The Court, after concluding that when a situation of temporary incapacity for work is ‘long-term’ it can amount to a disability for the purpose of the Directive, Footnote 137 recalled that, in light of Article 6(1) TEU and Article 51(2) of the Charter, the Charter does not extend the scope of EU law. The Court held that it could not be established that the situation falls within the scope of a provision of EU law other than those set out in the Charter, because the fact that a person finds him or herself in a situation of temporary incapacity for work does not automatically imply that the limitation suffered by that person may be classified as ‘long-term’ and, therefore, does not fall squarely within the notion of ‘disability’ referred to by the Employment Equality Directive. Footnote 138 The Court, hence, concluded that it did not have jurisdiction to answer the first four questions. Footnote 139
In both Kaltoft and Doauidi, the Court only focused on the interpretation of the Directive in light of the UN Convention and ignored the Charter. Even though the facts included implicit connections with EU law, this different approach to the Charter (compared to Milkova) is linked to the quite evident refusal to use Article 21 of the Charter to enlarge the material scope of the prohibition of discrimination beyond the grounds listed in Article 19 TFEU and in the Employment Equality Directive. As noted by Ward, the European Court of Justice is yet ‘to adopt an approach pursuant to which an assessment is first made as to whether a substantive provision of EU law applies to a dispute, and then allowing categories of discrimination concerning the application of that provision of EU law to be prohibited going beyond the list in Article 21(1)’. Footnote 140 A few scholars suggest that the European Court of Justice has indeed missed the opportunity to emphasise the innovative value of the Charter and to exploit its potential to extend the scope of non-discrimination ratione personae. Footnote 141 By contrast, through the reference to the UN Convention, the Court engages with an extensive interpretation of disability, in lieu of adding additional distinct grounds of discrimination. The UN Convention (more than the Charter) has allowed the Court to slowly extend the reach of EU non-discrimination law without questioning its formal scope deriving from the strong link between the Employment Equality Directive and Article 19 TFEU (i.e. the closed list of grounds included therein). From a substantive point of view, the Court is still far away from complying with the social contextual model. However, this attempt shows once again that the UN Convention (and not the Charter) has become the (constitutional) cornerstone to amplify the reach of EU law.
Glatzel and beyond: the constitutionalisation of the UN Convention?
Despite the mismatch that still exists between EU law and the UN Convention, Footnote 142 the latter has undoubtedly influenced, as indicated above, the interpretation of the concept of disability. This is arguably because the UN Convention, with its disability-sensitive enunciation of rights, has offered to the Court an important conceptual base upon which to articulate the contours of the prohibition of discrimination on the ground of disability in EU law. Interestingly, the European Court of Justice has also implicitly traced a synergetic relationship between the Charter and the UN Convention, Footnote 143 tacitly constitutionalising the UN Convention. This, as noted above, emerged in Milkova, but is more explicit in Glazel. In the latter case, the Court stated that:
as far as concerns the issue of discrimination on grounds of disability, … Article 21(1) of the Charter requires the EU legislature, in particular, not to apply any difference in treatment on the basis of a limitation resulting, in particular, from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other persons, unless such a difference in treatment is objectively justified. Footnote 144
In referring to disability for the purpose of the Charter, the Luxembourg judges used the wording of Article 1(2) of the UN Convention, as elaborated in HK Danmark. The Court de facto uses the Convention (which is a sub-constitutional source within the EU legal order) to interpret a (formally) hierarchically superior source. Interestingly, the Court has always held (including in Glatzel) Footnote 145 that the principle of consistent interpretation applies only with regard to EU secondary law, Footnote 146 highlighting the hierarchal relation between international agreements concluded by the EU and EU secondary law. Footnote 147 By contrast, in Glatzel, while explicitly endorsing its own previous jurisprudence, the Court interpreted the definition of disability included in Article 21(1) of the Charter in light of and in compliance with the UN Convention. The implicit approach adopted by the Court seems to indicate that the Convention, which is indeed the first human rights treaty ratified by the EU has in fact become part of the EU’s fundamental rights system, and of the EU constitutional fabric. Footnote 148 In other terms the European Court of Justice has considered the UN Convention a constitutional source within the hierarchy of sources. Such an approach tallies with the observation that the Charter is regularly cited in policy documents and features in the non-binding preamble of relevant legislation Footnote 149 alongside (and seemingly on the same foot of) the UN Convention. For example, the European Disability Strategy 2010-2020 aims to ‘harness the combined potential of the … Charter of Fundamental Rights, the Treaty on the Functioning of the European Union, and the UN Convention’. Footnote 150
In 2018, a request for a preliminary ruling was issued by the Tribunal d’Instance de Sens. Footnote 151 This request focused on the Charter and on whether Article 21 CFR and Article 39(2) CFR allow the right to vote for the European Parliament to be withdrawn because a person has been placed under a guardianship measure due to his or her mental disability. Importantly, the Tribunal d’Instance de Sens explicitly asked whether ‘Article 21 of the Charter, interpreted in the light of the United Nations Convention on the Rights of Persons with Disabilities’ allows the right to vote in European parliamentary elections to be withdrawn as a consequence of a guardianship. Regrettably the request was withdrawn by Tribunal d’Instance de Sens in May 2019, Footnote 152 but it would have been extremely interesting to see whether the Court would have confirmed the progressive constitutionalisation of the Convention.
An important opportunity to further consolidate the UN Convention as a constitutional source of disability rights could be offered by a recent request for preliminary ruling. This request, raised by a Bulgarian administrative court in Case C-824/19, Footnote 153 does not mention the Charter, but revolves around (once again) the Employment Equality Directive and the UN Convention (and namely Article 5 of the Convention on the principle of equality). The national court asks in essence whether, in light of the UN Convention, it is permissible for a person without the ability to see to be able to work as a court assessor and participate in criminal proceedings, or whether ‘the specific disability of a permanently blind person a characteristic which constitutes a genuine and determining requirement of the activity of a court assessor, the existence of which justifies a difference of treatment and does not constitute discrimination based on the characteristic of “disability”’. Footnote 154 It remains to be seen to what extent the Court will engage with the UN Convention, and whether the Charter will eventually play a role in the reasoning.
Concluding remarks
This article has discussed the role of the Charter in European Court of Justice’s case law on disability, unveiling the ambiguous, counterintuitive and somewhat unorthodox relationship that exists between the Charter, the UN Convention and the Employment Equality Directive.
The ‘quantitative’ appraisal conducted reveals that references to the Charter in case law on disability discrimination are scant. While the irrelevance of the Charter has come to an end after the entry into force of the Lisbon Treaty, Articles 20, 21 and 26 have yet to play a significant role in the case law of the European Court of Justice. Referring courts themselves have generally failed to invoke the Charter to a great extent. Even when the Charter was in fact invoked by national courts as a parameter for validity of EU legislation, the Court either declared that the Charter was not applicable or, as in Glatzel, did not really delve into the content of the provisions invoked. By contrast, the UN Convention has become the main normative point of reference for the protection of the rights of persons with disability and the enhancement of disability equality.
In exploring the reasons for such a limited role of the Charter (a limited role already criticised by scholars such as O’Brien with regard, in particular, to the concept of disability),Footnote 155 and in contrasting it with the major role played by the UN Convention, the article contends that a major hurdle hampering the relevance of Charter is the elusive way in which the Court has interpreted the notion of ‘implementing EU law’ for the purpose of Article 51. Case law on disability confirms that the Åkerberg Fransson formula leaves considerable uncertainty in situations where the issue is, at least to some extent, governed by EU law or the facts of the case show some kind of connection with EU law.Footnote 156 In Daouidi and Kaltfot, the uncertain boundaries of the scope of application of the Charter unveil an evident aversion on the part of the Court to include new standalone grounds of discrimination. However, the Court does attempt to engage with an extensive interpretation of disability in lieu of adding such additional distinct grounds of discrimination relying on the UN Convention. This approach might still amplify the reach of EU non-discrimination law if, echoing Waddington’s words,Footnote 157 the European Court of Justice keeps ‘saying all the right things’ and eventually stops getting them wrong by focusing more on the role of external barriers in disabling an individual. In Z, the approach of the Court is rather ambiguous and eventually seems an attempt to assuaging fears about ‘competence creep’ in a sensitive area with deep ethical implications and wide-ranging financial issues. In this case, Article 51(1) of the Charter was, de facto, used as a shield to avoid engaging with those delicate issues. However, developments that open up to a more extensive use of the Charter and to a social-contextual interpretation of disability when it comes to situations akin to that of Mrs Z, are not to be excluded. After all, the Court has already shown signs of a more open attitude towards the role that the Charter can play in other fields, such as that of EU citizenship, in cases like Chavez.Footnote 158
The limited relevance of the Charter is counterbalanced by the growing importance of the UN Convention on the Rights of Persons with Disabilities, which has been consistently highlighted by several scholars. This article, however, adds to that scholarship by arguing that the Court has opened up a new relationship between the Charter and the UN Convention. It maintains that the European Court of Justice, with its usual ‘stone by stone’ approach, Footnote 159 subtly constitutionalised the UN Convention. Should the Luxembourg Court interpret the Charter in light of the UN Convention in other future cases beyond Glatzel, the UN Convention (and not the Charter) would de iure become the primary constitutional benchmark within the EU law legal order when it comes to the promotion of the rights of persons with disabilities. This might further downplay the role of the Charter in non-discrimination case law. It may, however, also trigger a process of a more extensive interpretation of the Charter in tandem with the UN Convention, based on the synergistic approach evident in Glatzel. This would actually enhance the potential and the reach of the Charter, and in particular of Article 26.
