The Disorganised Nature of European Disability: Rethinking Protection for HIV Positive Individuals

Abstract

Despite the fact that there are approximately 80 million individuals with disabilities within the EU, there is no coherent definition of disability. There is also no clear consensus amongst Member States as to the question of whether People Living with HIV/AIDS (“PLHA”) should be defined as “disabled” and thus acquire the various legal protections associated with such a designation. This paper will argue that in order to adequately protect PLHA within the EU, the European Court of Justice (“CJEU”) need to ensure that a coherent EU wide definition of disability based upon the social model of disability is adopted. Such a definition is necessary in order to ensure adequate protection not only for PLHA but for all individuals from disability discrimination throughout the EU. In addition to this central argument, this paper will also argue that the lack of a coherent definition of disability grounded in the social model fragments protection for PLHA across the EU leading to a number of possible unintended consequences. PLHA may seem a strange choice of focus but, in some ways, PLHA represent the “front line” in the ideological battle concerning the definition of disability at an EU level and the question concerning the relationship between sickness and disability as will be seen by the Advocate General’s opinion in the recent HK Danmark (Ring and Skouboe Werge) case concerning unlawful discrimination within employment.