Decision of the Council of the Union of 26 November 2009 Concern- Concern-ing the Conclusion, by the European Community, of the United

Na-tions Convention on the Rights of Persons with Disabilities (2010/48/EC)

The adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD or Convention) in 2006 marked a turning point in setting minimum standards for the rights of persons with disabilities. The EU and its Member States are parties to the UNCRPD and are pursuing its implementation.

From a formal point of view, Art. 3 states that “in matters falling within the competence of the Community and without prejudice to the respective compe-tences of the Member States, the Commission shall be the focal point for matters relating to the implementation of the UN Convention”. From a substantial point of view, the UN Convention transposed by the aforementioned Decision pro-vides, in letter c of the preamble, for “the universality, indivisibility, interdepend-ence and interrelation of all human rights and fundamental freedoms and the need to ensure their full enjoyment by persons with disabilities without discrim-ination”; it also recognises: in letter e, “that disability is an evolving concept and that disability is the result of the interaction between persons with impairments and behavioural and environmental barriers, which prevent their full and effec-tive participation in society on an equal basis with others”; in letter g, “the im-portance of mainstreaming disability issues in relevant strategies related to sus-tainable development”. In letters i, j, k and m the document affirms the need to achieve substantive equality on the indispensable premise of the recognised “di-versity of persons with disabilities” and the concern that they continue to face obstacles in their participation in society as equal members of society, despite the recognition of “the useful contributions, existing and potential, of persons with disabilities to the general well-being and diversity of their communities”. Im-portant, because of the strategic diversity aspects echoed in the Directive on non-financial business information, which we shall also examine, is letter o: “persons with disabilities should have the opportunity to be actively involved in

decision-making processes relating to policies and programmes, including those that di-rectly affect them”. This is a guiding principle in the definition of ‘disability man-agement’ which, in this monographic study, is developed in terms of strategic business management.

Interesting in this part of the text is the legal notion which, in Art. 1, justifies the need for legislative interventions to rebalance and restore substantive equality between people: “Persons with disabilities are those with enduring physical, mental, intellectual or sensory impairments which, in interaction with barriers of various kinds, may hinder their full and effective participation in society on an equal basis with others”. In Art. 4, an important principle of effectiveness is en-shrined, transferring the legal burden to States Parties, which “undertake […] to adopt all appropriate legislative, administrative and other measures to implement the rights recognised in the present Convention; to adopt all appropriate measures, including legislative measures, to amend or repeal any existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; […] to adopt all appropriate measures to eliminate discrimina-tion on the basis of disability by any person, organisadiscrimina-tion or private enterprise”.

The reference to private companies contains a legislative policy commitment to direct profit-making initiatives towards the social aims described. Arts. 6 and 7 highlight the condition of ‘multiple discrimination’ in which women and children with disabilities risk finding themselves, identifying as a task of the States parties the adoption of the necessary measures to remove the conditions of inequality.

The core of the convention is in the part of the articles that regulates access to employment (intended both as entry and continued employment and employa-bility) for persons with disabilities. Art. 26, in referring to habilitation and reha-bilitation as tools for independent living, requires states to adopt effective and appropriate measures to enable people to fully integrate and participate in all areas of life. It is the same law that stipulates the State’s duty to organise, strengthen and develop comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services. To achieve this, it is essential to promote the provision and use of technologies, support tools and “reasonable accommodation”, which are de-signed, implemented and identified for and with people with different abilities.

Art. 27 (Work and employment) states that “States Parties recognise the right of persons with disabilities to work, on an equal basis with others; in particular, the right to support themselves through freely chosen or accepted employment in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall guarantee and promote the exercise of the right to work, including for those who have acquired a disability during employment, by taking appropriate initiatives, including legislative ones, in par-ticular to (a) prohibit discrimination on the basis of disability in all forms of em-ployment, in particular with regard to conditions of recruitment, hiring and

employment, continuity of employment, career advancement and conditions of safety and hygiene at work (b) to protect the right of persons with disabilities, on an equal basis with others, to benefit from fair and favourable employment con-ditions, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, protection from harassment and dis-pute resolution procedures; (c) to ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others (d) to enable persons with disabilities to have effective access to technical and voca-tional guidance programmes, employment services, and vocavoca-tional and continu-ing education; (e) to promote employment opportunities and career advance-ment for persons with disabilities in the labour market, such as assistance in find-ing, obtaining and retaining employment, and in reintegration into employment (f) to promote opportunities for self-employment, entrepreneurship, the organ-isation of cooperatives and starting one’s own business; (g) to employ persons with disabilities in the public sector; (h) to promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include anti-discrimination action programmes, incentives and other measures; (i) to ensure that persons with disabilities are provided with reasonable accommodation in the workplace; (j) to promote the acquisition, by persons with disabilities”. In Annex II (Declaration concerning the competence of the European Com-munity under the UN Convention, in accordance with Article 44, paragraph 1), it is high-lighted that, to date, “the Community shares competence with the Member States with regard to measures to combat discrimination on the grounds of dis-ability”: it therefore exercises shared legislative competence (⁴) and assumes (⁴) This shared legislative power has already been expressed in a series of Community legis-lative acts on disability, which can be traced back to three main areas. Accessibility: ex ceteris, Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity; Directive 2001/85/EC of the European Parliament and of the Council of 20 November 2001 relating to special provisions for vehicles used for the carriage of passen-gers comprising more than eight seats in addition to the driver’s seat, and amending Direc-tives 70/156/EEC and 97/27/EC; Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail system, as amended by Directive 2004/50/EC of the European Parliament and of the Council; Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system, as amended by Directive 2004/50/EC of the Eu-ropean Parliament and of the Council; Directive 2006/87/EC of the EuEu-ropean Parliament and of the Council of 12 December 2006 laying down technical requirements for inland waterway vessels and repealing Council Directive 82/714/EEC; Directive 2003/24/EC of the European Parliament and of the Council of 14 April 2003 amending Council Directive 98/18/EC on safety rules and standards for passenger ships; Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive); Commission Decision

2008/164/EC of 21 December 2007 concerning a technical specification for interoperability relating to persons with reduced mobility in the trans-European conventional and high-speed rail system; Directive 95/16/EC of the European Parliament and of the Council of 29 June 1995 on the approximation of the laws of the Member States relating to lifts, as amended by Directive 2006/42/EC of the European Parliament and of the Council on machinery, and amending Directive 95/16/EC; Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communi-cations networks and services (Framework Directive); Directive 2002/22/EC of the Euro-pean Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive);

Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of service quality, as amended by Directive 2002/39/EC of the Euro-pean Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services and as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services. Independent living and inclusion in society, work and employ-ment: ex ceteris, Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation); Directive 2006/54/EC of the Euro-pean Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. Personal mobility: ex ceteris, Council Directive 91/439/EEC of 29 July 1991 on driving licences and Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (again); Directive 2003/59/EC of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC; Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91; Regulation (EC) No 1107/2006 of the Euro-pean Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air; Regulation (EC) No. 1899/2006 of the European Parliament and of the Council of 12 December 2006 amending Council Regulation (EEC) No. 3922/91 on the harmonisation of technical requirements and admin-istrative procedures in the field of civil aviation; Regulation (EC) No. 1371/2007 of the Eu-ropean Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations; Regulation (EC) No. 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No. 1191/69 and No. 1107/70; Commission Regulation (EC) No. 8/2008 of 11 December 2007 amending Regulation (EEC) No. 3922/91 as regards common technical requirements and administrative procedures applicable to commercial transportation by aeroplane. Access to information: ex ceteris, Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code re-lating to medicinal products for human use, as amended by Directive 2004/27/EC of the

consequent political responsibility for the effectiveness of the regulatory measures taken and omitted.