In Brussels and Budapest, 23 December 2020 – In 2019, the European Network on Independent Living – ENIL and the Validity Foundation submitted two separate complaints against the Managing Authorities in Romania and Estonia, for using European Structural and Investment Funds (ESI Funds) to build new institutions for disabled people. After almost a year, the European Commission responded to both complaints, finding that Member States are not violating EU law if they use ESI Funds to invest in new institutions. ENIL and Validity are deeply disappointed by this assessment, which seriously undermines the prospect of full implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD) within the European Union.

In Romania, ENIL complained about call for tenders number P.O.R./8/8.1/8.3/B/1, which has as its objective the construction of “sheltered housing” units for disabled people. The call will result in the construction of at least 57 residential facilities and 18 day care centres, affecting over 500 individuals. Most projects, for which ENIL found detailed information, will result in complexes for up to 30 residents. They will be located in small villages or in small towns, in some of the most socio-economically disadvantaged areas of the country and the EU. Residents of these facilities – where they will be deprived of their liberty – will be subjected to block treatment, a set routine and other institutional care practices. They will be forced to spend their days in day care centres, without an opportunity to decide where, with whom and how to live their lives.

In Estonia, Validity issued a complaint concerning the construction of an entire “special care village” for long-term placement of people with autism, Down syndrome and other “rare diseases” in the rural village of Liikva, Harju Country. The project, which has received over EUR 1 million under the “Cohesion Policy Funds in Estonia Operational Programme”, is nearing completion and will be comprised of three log-cabins built from Finnish wood, each of which with a capacity of up to 10 adults. The Estonian authorities point out that the new care village was necessitated by the absence of community-based services for adults with disabilities in Estonia, particularly where family members are unable to care for their disabled relatives. The village will be self-contained and cut-off from the community, with a farm, orchard and all therapeutic services provided within the surrounds, with official information stating that residents are likely to remain there for the rest of their lives.

The complaint procedure, which can take up to 12 months, allows anyone in the EU to report violations of EU law, including the CRPD and the Charter of Fundamental Rights. In the case of Romania and Estonia, the Commission accepted that building these facilities “involves implementing EU law” and did not dispute the fact that they could be regarded as institutions. However, the Commission stated that there is no “general and absolute prohibition for the ESI Funds to support long-stay residential institutions” for disabled people, disregarding the binding nature of the CRPD on all actions taken by Managing Authorities and the Commission.

Despite the serious allegations by ENIL and Validity, and the evidence provided, the Commission failed to conduct proper investigations. Instead, the examination of the complaints was limited to a paper-based assessment of strategies, plans and other documents provided by the Managing Authorities (i.e. the responsible Ministries) in the two countries. On this basis, the Commission concluded that they have “not found any references neither in the operational programme nor in the documents related to the call that could be considered a violation” of the Fundamental Rights Charter, the CRPD or the ESI Funds regulations. No independent assessment, such as by a national human rights institution or NGOs, was sought by the Commission to establish ongoing or potential human rights violations in the ESI funded facilities.

In their respective responses to the Commission’s decision, ENIL and Validity challenge the erroneous interpretation of the CRPD advanced by Commission lawyers that seeks to justify and facilitate the continued segregation of disabled people in long-stay residential institutions. The two organisations reminded the Commission that human rights violations are rarely planned for in the Governments’ strategic documents. Therefore, by limiting its investigation to contact with the Managing Authority, the Commission has failed to protect disabled people in the EU from discrimination and in reality, has created a legal vacuum. With the complaint procedure being the only accessible way organisations and individuals in the EU can highlight infringements of EU law, the Commission has made it impossible for disabled people in institutions to find legal protection for their rights. ENIL and Validity have therefore urged the Commission to re-open the complaints and establish a breach of EU law. The organisations are calling for the projects to halted and for infringement proceedings to be brought against the two countries for violation of the Charter of Fundamental Rights and the CRPD.

With new ESI Funds regulations and the new CRPD-based European Disability Strategy coming into force in 2021, it is time for the European Commission to start walking the talk. As long as the construction of new institutions – funded by EU taxpayers – is considered justified, the prospect of independent living and social inclusion will remain nothing but a dream for EU’s disabled citizens.

Find the Romanian complaint here and ENIL’s response here (see Annex).

Find the Estonian complaint here.

Photo: Example of a complex of 3 interconnected sheltered housing units (for 24 residents) and a day care centre (for 30 users) in Vaslui County, the commune of Oltenesti.