While the European Commission proposal is to be welcomed as such in its current state it risks an increase in social exclusion. A strong co-production approach combined with transition access to services could remedy the problem.
By Florian Sanden, florian.sanden@enil.eu
Amendments of the European Network on Independent Living
To the Proposal for a Directive of the European Parliament and of the Council
Establishing the European Disability Card and the European Parking Care for persons with disabilities
COM(2023) 512 final
2023/0311 (COD)
Anti-Discrimination in Internal Human Rights Law and EU Law
Article 2 of the Universal Declaration of Human Rights states that “Everyone is entitled to all the rights and freedoms set forth in his declaration without distinction of any kind”. Articles 2, 3 and 5 of the United Nations Convention on the Rights of Persons with Disabilities oblige state parties to ban discrimination against disabled people of any kind and work proactively to identify and eliminate barriers preventing the enjoyment of freedoms on an equal level with non-disabled people.
Article 21 of the Treaty on the Functioning of the European Union (TFEU) establishes the freedom of movement of every citizen: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.”
Article 21 of the Charter of Fundamental Rights of the European Union prohibits “Any discrimination based on any grounds such … disability”.
From the outline of this legal situation it becomes clear that the right to move and reside freely within the EU applies to disabled people and that both the EU-level and the Member States have to ensure this right can be enjoyed in practice.
In practice the right to the freedom of movement of disabled people is severely restricted. EU countries do not recognise disability status between each other. If a disabled person moves from country A to country B, the disability status granted in country A is not accepted in country B. Many disabled people require access to support services. Ensuring access to such services is a measure required under the UN CRPD to enable the enjoyment of rights and freedoms and avoid discrimination. Disabled people can not automatically access support services such as personal assistance, personal budgets and housing support when moving across borders. Also there is automatic access to reasonable accommodations or protection from discrimination at work or in education. To access such services and protections, assessment procedures have to be repeated in the new country of residence. Since such procedures take months or years, it is impossible to many disabled people to enjoy the freedom of movement. Non-disabled people enjoy automatic access to social security from the first day when taking up residence in a new Member State. By not removing those barriers, the EU-level and the Member States violate their obligations under the Convention and the Universal Declaration on Human Rights.
Disabled people are affected by above average poverty and unemployment rates. Thus, the majority of disabled people is unlikely to be able to finance personal assistance, housing or a car by themselves. The steps taken by state parties to remove these barriers are so far ineffective and restricted by lack of political will.
The European Disability Card and the European Parking Card
The Proposal for a Directive on the European Disability Card and the European Parking Card recognizes the right of every citizen to move and reside freely within the territory of the Member States in recital 3. Article 2 on the scope of the directive states that the legislation “shall apply to parking conditions and facilities and to all situations where special conditions or preferential treatment are offered by private operators or public authorities to persons with disabilitis”. The term “services” refers to services within the meaning of Article 57 TFEU and passenger transport services”. According to article 57 services shall in particular included “(a) activitis of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; (d) activities of the professions”. Access to benefits in the area of social security under Regulations (EC) No 883/2004 and (EC) No 987/2009 is explicitly excluded from the scope of the Proposal for a Directive.
According to the Proposal for a Directive the new card will allow disabled people to access special condi-tions or preferential treatments with respect to services, activities and facilities in the areas of culture, sports, leisure and transport when visiting other Member States. For example, theatres, cinemas, sports centres or amusement parks might offer free access or reduced tariffs to disabled people. If personal assis-tants are granted free of charge access to public transport when accompanying a disabled person, holders of a Disability Card from another member state have to receive the same benefit. Priority access, aids, ma-terials in braille might be provided. The European Parking would allow access to parking spaces reserved for disabled people or allow for extended parking. To obtain the cards, a person needs to have disabilities officially recognised in an EU Member State.
If special conditions or preferential treatments are offered to holders of a disability status granted within the same country, the same conditions and treatments have to be offered to holders of a European Disability Card, originating from a different EU Member State.
Access to special conditions and preferential treatment is intended for disabled people staying in another Member State for short periods of time.
ENIL regrets the scope of the proposed directive. The proposed directive will not remove the barriers to the freedom of movement. Thus, the EU-level and the Member States fail in their obligations under Internal Human Rights Law and EU Law. The lack of political will to recognise disabled people as holders of equal rights is highly deplorable.
ENIL recognises that in the EU there is currently to political will to ensure automatic access to disability support services when disabled people move across borders. ENIL sees that the Commission Proposal goes to the limit of what is currently politically possible. ENIL welcomes what is proposed within the narrow scope of the directive. If adopted, the proposal will facilitate the reduce barriers to tourism and travelling for disabled people, improve access to the freedom of movement and reduce discrimination. In addition, the Directive represents a limited mutual recognition of disability status and assessment procedures between countries. The proposed cards have an important symbolic value for increased European integration in the area of disability policy.
Proposed changes
Given the already limited scope, ENIL urges the Council of the EU not to water down the Commission Proposal.
ENIL asks the Council of the EU and the European Parliament to include several important changes to the proposed directive.
ENIL proposes the following modifications:
- The definition of persons with disabilities in Article 3 (c) derived from the UN CRPD should be replaced by the definition provided under the social mode of disability
- A recital should be added encouraging Member States to adopt disability definitions as expressed in the social model of disability and design fair and transparent disability assessment procedures accordingly.
- Article 11 foresees the consultation of experts when delegated acts are being produced. Article 12 proposes the creation of a committee to assist the Commission. Both articles need to be amended to enable the participation of disabled people. However, this just participation is not enough. The directive has to install a genuine co-producetion process.
ENIL supports the following recommendations and amendments proposed by the European Disability Forum:
- Article 2.1 (Scope) should be retained as it is in the Commission proposal to allow for the widest scope possible
- Article 2.2 (Scope) should be extended to include temporary protection when moving permanently to another Member State to work or study, while a persons’ disability status is being reassessed.
- Article 4 (beneficiaries) should also include third country nationals who are residents of an EU Member State and have a recognized disability
- Article 6 (Format, mutual recognition, issue and validity of the European Disability Card) shall state clearly that the Card should be free of charge and voluntary.
- Article 7 (Format, mutual recognition, issue and validity of the European Parking Card for persons with disabilities) should include a new database on the applicable parking rules
- Article 9 (Surveillance, compliance, accessibility of information and awareness raising) should be extended to include EU-level funding, an online database with the relevant information on the Disability Card, as well as an EU-coordinated awareness raising campaign.
- Persons with disabilities and their representative organisations shall be meaningfully involved in the Committee procedure and the development of delegated acts (Articles 11 and 12)
- Annex II (the Parking Card model) shall also contain writing in Braille
Amendments 1
Recital 10
| Text proposed by the European Commission Due to the lack of recognition of disability status between Member States, persons with disabilities may face specific difficulties when exercising their fundamental rights of free movement. | Amendments proposed by ENIL Due to the lack of recognition of disability status be-tween Member States, persons with disabilities may face specific difficulties when exercising their funda-mental rights of free movement. The Social Model of Disability establishes that it is society which disables physically impaired people. Disability is something imposed on top of impairments, by the way disabled people are unnecessarily isolated and excluded from full participation in society. Impairment are the functional limitation within the individual caused by physical, mental or sensory impairment. Disability is the loss or limitation of opportunities to take part in the normal life of the community due to physical and social barriers. Member States are encouraged to modify their nationally applied definitions to align with the Social Model of Disability and to design fair and transparent disability assessment procedures accordingly. |
Explanation: The anti-discrimination concept within the UN CRPD was designed according to the Social Model of Disability. The description of disability in the UN CRPD is no proper definition as state parties decided against including a definition. The Convention was intended as a roadmap for policy reform. The Social Model of Disability provides a definition of disability. The UN CRPD lays down minimum standards. Thus, we invite state parties to go beyond the provisions in the Convention and adopt disability definitions based on the Social Model of Disability. We invite the European Parliament and the Council of the EU to add a definition based on the Social Model of Disability to the proposed directive.
Amendments 2
Article 3 Definitions
| Text proposed by the European Commission “persons with disabilities” means persons who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others; | Amendments proposed by ENIL “persons with disabilities” means persons who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others; The Social Model of Disability establishes that it is society Ih disables physically Impaired people. Disability is something imposed on top of impairments, by the way disabled people are unnecessarily isolated and excluded from full participation in society. Impairment are the functional limitation within the individual caused by physical, mental or sensory impairment. Disability is the loss or limitation of opportunities to take part in the normal life of the community due to physical and social barriers. |
| Explanation: The same explanation as provided for amendment 1 applies. |
Amendments 3
Article 3 Definitions (g) new
| Text proposed by the European Commission New | Amendments proposed by ENIL (g) Co-production is a relationship where professionals and citizens share power to design, plan and deliver support together, recognising that both partners have vital contributions to make in order to improve quality of life for people and communities. It entails several components: Co-design, including planning of services; Co-decision making in the allocation of resources; Co-delivery of services, including the role of volunteers in providing the services; Co-evaluation of the services. |
Explanation: Article 4 (3) of the UN CRPD obliges state parties to consult and actively involve disabled people and their representative organisations in the development and implementation of legislation and policies concerning persons with disabilities. Having disabled people participate is becoming more and more common. However, such participation is almost always tokenistic. The disabled people involved rarely have a real say in the decisions reached. Thus, we need to more beyond mere participation to co-production which involves a real redistribution of power.
Amendments 4
Article 3 Definitions (h) New
| Text proposed by the European Commission New | Amendments proposed by ENIL (h) An organization representing disabled people has to have a membership consisting of disabled people in its entirety. The board and all governing body have to consist of disabled people. The Organisation has to prove that a strong effort is undertaken to fill renumerated positions, including senior positions, with adequately qualified disabled staff. |
Explanation: Many organisations refer to themselves as disabled people´s organisations when in fact, non-disabled people have the actual power. Even if the governing bodies consist of disabled people, staff positions are almost always filled by non-disabled professionals. Excluding disabled people from paid positions is unacceptable and has to stop.
Amendments 5
Article 11 Exercices of the delegation
| Text proposed by the European Commission Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. | Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. Delegated acts shall be produced in co-production with disabled people and their representative organisations. If the disabled people involved do not do this work in a professional capacity at a disabled people´s organization, a monetary compensation shall be provided. |
Explanation: For an explanation on co-production see the previous amendment. Disabled people are increasingly asked to serve in various committees and consultative bodies free of charge. Such work is often done in parallel to work and educational commitments and causes significant strains. Paid positions remain reserved for non-disabled people. It is time to reward the voluntary work done by disabled people by providing monetary compensations. The allowances provided to members of the European Economic and Social Committee shall serve as an example.
Amendments 7 (originally proposed by the European Disability Forum)
Article 4 Beneficiaries
| Text proposed by the European Commission This Directive shall apply to: a. Union citizens and family members of Union citizens whose disability status is recognised by the competent authorities in the Member State of their residence by means of a certificate, a card or any other formal document issued in accordance with national competences, practices, and procedures, as well as, when applicable, to person(s) accompanying or assisting them including personal assistant(s), b. Union citizens and family members of Union citizens whose rights to parking conditions and facilities reserved for persons with disabilities are recognized in their Member State of residence by way of a parking card or another document issued in accordance with national competences, practices, and procedures as well as, when applicable, to person(s) accompanying or assisting them including personal assistant(s). | Amendments proposed by ENIL This Directive shall apply to: a. Union citizens and family members of Union citizens whose disability status is recognised by the competent authorities in the Member State of their residence by means of a certificate, a card or any other formal document issued in accordance with national competences, practices, and procedures, as well as, when applicable, to person(s) accompanying or assisting them including personal assistant(s), b. Union citizens and family members of Union citizens, as well as third country nationals that have permanent residence status in a Member State of the European Union, whose rights to parking conditions and facilities reserved for persons with disabilities are recognized in their Member State of residence by way of a parking card or another document issued in accordance with national competences, practices, and procedures as well as, when applicable, to person(s) accompanying or assisting them including personal assistant(s). 5) |
Explanation: Currently, the proposal only includes EU citizens and their family members as potential Card holders both for the Disability Card and the Parking Card. This should be widened also to third country nationals who are resident in the EU and have their disability recognised by a Member State. The Commission has announced the adoption of a legal act to cover third country nationals. When/if such proposal is launched, this amendment can be dismissed.
Amendments 8 (originally proposed by the European Disability Forum)
Article 6 – Format, mutual recognition, issue and validity of the European Disability Card
| Text proposed by the European Commission 4. The European Disability Card shall be issued or renewed by the Member State of residence directly or upon application by the person with disabilities. It shall be issued and renewed within the same period set in the applicable national legislation for issuing disability certificates, disability cards or any other formal document recognising the disability status of a person with disabilities. | Amendments proposed by ENIL 4. The European Disability Card shall be issued or renewed by the Member State of residence directly, if such is the procedure according to the national disability recognition, or upon application by the person with disabilities. It shall be issued and renewed free of charge for the beneficiary and within the same period set in the applicable national legislation for issuing disability certificates, disability cards or any other formal document recognising the disability status of a person with disabilities. The card shall never be required as a proof of disability in the context of rights established in other Union legislation. |
Explanation: it should be voluntary to become a European Disability Card holder to avoid stigmatisation. There should be no direct issuing of the Card unless the person has asked for it or the European Disability Card is embedded, for example, in the national disability card resulting from the national disability assessment. Furthermore, it should never be an obligation to show the Card as proof of disability for services that are granted under other Union legislation, such as the right to assistance at airports under Regulation 1107/20062. It also has to be free of charge so that cost would not be an additional barrier to apply for the Card.
Amendments 9 (originally proposed by the European Disability Forum)
Article 7 – Format, mutual recognition, issue and validity of the European Parking Card for persons with disabilities
| Text proposed by the European Commission New | Amendments proposed by ENIL 8. (new) The Commission shall set up a publicly available database that contains relevant information related to the applicable parking rules, conditions, and spaces as defined on local, regional, or national level. The database shall be available in all EU languages. 9. Member States shall encourage public authorities to upload relevant information in the database. |
Explanation: The proposal tackles the issue of the lack of harmonisation of the design of the Parking Cards as they are issued now by the Member States. However, it does not address the problem of parking spaces and the rules around parking itself, which differ across Member States, regions, or even cities in the EU. This should also be included in the Directive, for example by setting up an EU-level database to easily access information about parking rules and parking spaces.
Amendments 10 (originally proposed by the European Disability Forum)
Article 9 – Surveillance, compliance, accessibility of information and awareness raising
| Text proposed by the European Commission 1.Member States shall make the conditions and rules, practices, and procedures to issue, renew or with-draw a European Disability Card and a European Parking Card for persons with disabilities publicly available in accessible formats, including in digital formats, and upon request in assistive formats re-quested by persons with disabilities. 2.Member States shall take appropriate measures to raise awareness among the public and inform per-sons with disabilities, including in accessible ways, about the existence and conditions to obtain, use, or renew the European Disability Card and the Europe-an Parking Card for persons with disabilities. […]7.The information referred to in paragraph 1 and 2 of this Article shall be made available free of charge in a clear, comprehensive, user-friendly and easily ac-cessible way, including through private operators’ or public authorities’ official website where available, or by other suitable means, in accordance with the rele-vant accessibility requirements for services set in Annex I of Directive (EU) 2019/882. | Amendments proposed by ENIL 1.Member States shall make the conditions and rules, practices, and procedures to issue, renew or with-draw a European Disability Card and a European Parking Card for persons with disabilities publicly available in accessible formats, including in digital formats, as well as in national sign languages and easy to read format, and upon request in assistive formats requested by persons with disabilities. This information, including information about the services covered in article 2 paragraph 1, shall be collected on an EU-level website and shall be available in all EU languages. Member States shall take appropriate measures, and the European Commission shall coordinate a campaign,to raise awareness among the public and inform persons with disabilities, including in accessible ways, about the existence and conditions to obtain, use, or renew the European Disability Card and the European Parking Card for persons with disabilities. […]7.The information referred to in paragraph 1 and 2 of this Article shall be made available free of charge in a clear, comprehensive, user-friendly and easily accessible way, including through an EU-level website in all EU languages, private operators’ or public authorities’ official website where available, or by other suitable means, in accordance with the relevant accessibility requirements for services set in Annex I of Directive (EU) 2019/882. (new) The information referred to in paragraph 1 and 2 of this Article shall be understandable, without exceeding a level of complexity superior to level B1 (intermediate) of the Council of Eu-rope’s Common European Framework of Reference for Languages. (new) The Commission shall ensure that appropriate funding is made available to the Member States to cover the cost of the administrative procedures, the physical issuing of the Card, the information provision, and the awareness raising campaign, and other related costs. |
Explanation: The proposal leaves the responsibility of awareness raising campaigns, information about the advantages available, and funding the Cards up to the Member States. EDF outlined that it would be essential to have an EU-level centralized database in all EU languages showing the available advantages for each Member State, designated EU funding, and an EU-level awareness raising campaign aimed at citizens and service providers. We believe it would be better to have a centralised approach on EU-level to ensure harmonisation of the information, coherence, and accessibility and to avoid delays, misunderstandings and incoherences in implementation later on.
Amendments 11 (originally proposed by the European Disability Forum)
Article 15 – Access to information
| Text proposed by the European Commission 1.Member States shall ensure that private operators or public authorities make information on any special conditions or preferential treatment pursuant to Article 5 publicly available in accessible formats. 3. The information referred to in paragraph 1 of this article shall be made available free of charge in a clear, comprehensive, user- friendly and easily accessible way, including through the private operators or public authorities’ official website where available, or by other suitable means, in accordance with the relevant accessibility requirements for services set in Annex I of Directive (EU) 2019/882. | Amendments proposed by ENIL 1.Member States shall ensure that private operators or public authorities make information on any special conditions or preferential treatment pursuant to Article 5 publicly available in accessible formats. To his end, EU funding should be provided as mentioned in Article 9. [… 3. The information referred to in paragraph 1 of this article shall be made available free of charge in a clear, comprehensive, user- friendly and easily accessible way, including through the private operators or public authorities’ official website where available, or by other suitable means, in accordance with the relevant accessibility requirements for services set in Annex I of Directive (EU) 2019/882, without exceeding a level of complexity superior to level B1 (intermediate) of the Council of Europe’s Common European Framework of Reference for Languages. |
Explanation: Justification: Providing EU funding will lead to better implementation by the Member States and take some burden off the authorities that will issue the Card.
Amendments 12 (originally proposed by the European Disability Forum)
Annex II – European Parking Card for persons with disabilities
| Text proposed by the European Commission | Amendments proposed by ENIL 3. (new) The words “European Parking Card” shall be displayed in braille using the Marburg code dimensions. |
Explanation: Braille is included in the European Disability Card, but not in the European Parking Card. In a number of Member States, persons who are blind and those with low vision are eligible to be beneficiaries of the European Parking Card. Adding braille on the card will facilitate the identification of the card by the users. |
Brussels 31st of October 2023
Contact information:
Florian Sanden
ENIL Policy Coordinator, florian.sanden@enil.eu
ENIL Brussels Office vzw/asbl
Mundo J – 6th Floor, Rue de l’Industrie 10, 1000 Brussels
Belgium
secretariat@enil.eu, www.enil.eu
