The European disability rights revolution

This chapter demonstrates the balance that has been struck between the free movement rights, those of economically inactive persons included, and the Member States' interest in limiting access to their solidarity systems. The author comments on the recent developments in the ECJ's case law towards a broad interpretation of the notion of 'worker', as a result of which some categories of inactive persons are considered to be workers as well, and on the effect this has with regard to access to social benefits for these 'workers' and the members of their family. The chapter focuses on the consequences of this financial responsibility in relation to the application of Directive 2004/38 on the right of residence. The author comments on the effect the ECJ's recent case law, based on the notion of European citizenship, has on economically inactive EU citizens' entitlement to social minimum benefits when they move within the EU. Keywords: ECJ; EU citizens; free movement; Member States

Intersections between EC competition law and solidarity principles have been at the very centre of the European academic and political debate since the end of the Eighties (paragraph 1 - Introduction). The case law of the Court of Justice of the European Communities (ECJ) has progressively developed along a path aimed at striking a tentative balance between the two normative principles. This article begins by providing an analysis of the ECJ's case law, focusing in particular on the leading cases concerning the compatibility between supranational competition law and national social insurance monopolies (paragraph 2 - Solidarity vs. competition: the ECJ's case law concerning the social insurance monopolies). The critical evaluation of the ECJ's case law supports the conclusion that the Court of Justice has struck an elusive balance between the two principles, in so far solidarity has been constructed and categorised as a quelified derogation to the full application of Community competition rules (paragraph 3 - A critical evaluation of the ECJ's case law). The conceptual underpinnings of the ECJ's case law are imbued with two main shortcomings: they imply a reductive interpretation of the normative notion of solidarity within the European legal order; they tend to entrap the interrelations between competition and solidarity within an idea based on inevitable conflict, lacking to consider the possible relationship of mutual reinforcement and support. The so-called third sector sphere appears to be particularly at odds with this vision. By providing the example of the recent Italian general reform of the social assistance system, the author tries to develop this idea of combination and reciprocal adjustment between competition mechanisms and solidarity functions (paragraph 4 - Soildarity and competition: the Italian example of the social assistance reform). The more recent developments of the EC legal order post Amsterdam, including the draft Treaty establishing the European Constitution, encourage this effort aimed at establishing a more balanced and responsive relationship between competition and solidarity principles and values (paragraph 5 - By way of conclusion: solidarity and competition in the new European Constitution).

There have been sweeping changes to disability legislation in recent years. Disability Discrimination in Employment considers the impact of the Disability Discrimination Act 2005 which gives disabled people greater employment rights and protection, and also requires public bodies to promote equality of opportunity for disabled people. The authors also analyse the additional guidance on the definition of disability which came into force in May 2006 to update the 1996 guideline, as well as the effects of the Equality Act 2006 and the Equality and Human Rights Commission. Disability Discrimination in Employment is an invaluable guide for employment lawyers. Written for those advising both claimants and respondents, it provides a clear, accessible and thorough account of this complex area of law. Incorporating the most recent legislative changes and case law, this guide is a useful tool for those practising in the tribunal as well as for those providing non contentious advice. This book provides a comprehensive, practical and up to date overview of litigating discrimination claims in the employment tribunal, the Employment Appeal Tribunal, and the Higher Courts.The authors analyse the important cases which cover issues such as: general guidance on the approach to disability discrimination cases; mental impairments; compensation in disability claims; and reasonable adjustments and knowledge. Disability Discrimination in Employment provides a lucid distillation of the concepts set out in the legislation and allows practitioners quick access to key cases and materials. Invaluable practical advice, checklists, information on relevant procedural rules, and useful precedents are presented in a clear and accessible format alonside the relevant legislation and case law. As well as being extensively cross-referenced throughout each chapter contains a useful summary of the law, a list of relevant cases, a list of statutory provisions and references to the Code of Practice and Guidance. The appendices contain a copy of Part II of the Disability Discrimination Act 1995 marked up to show the legislative changes as well as copies of the Guidance and the Code of Practice.

Apparently some people upon coming across [Down Syndrome dolls] were offended. […] Still, it’s curious, and telling, what gives offense. Was it the shock of seeing a doll not modeled on the normative form that caused such offense? Or the assumption that any representation of Down Syndrome must naturally intend ridicule? Either way, it would seem that we might benefit from an examination of such reactions—especially as they relate to instances of the idealisation of the human form that dolls […] represent. (Faulkner)

This report analyses and compares European Union (EU) law, with a focus on the Employment Equality Directive and related case law, and the United Nations Convention on the Rights of Persons with Disabilities (CRPD), in the wider context of international human rights law, to establish how they address disability equality and non-discrimination. The report identifies particular areas where the approaches of the UN and the EU to disability equality and non-discrimination law are compatible, and it also identifies the areas where compatibility appears to be lacking.

The conflict between EU consumer protection provided for by the Directive on unfair terms in consumer contracts and principles of arbitration came to a head in the ECJ's Claro case. This case has shown that the arbitration clause may be an unfair contract term par excellence. I use this case as a point of departure for the considerations on unfairness of arbitration clause in contracts between businesses and consumers. Consequently, I draw a parallel between the Claro case and the lasting contractual practice in the Czech Republic where the arbitration clauses incorporated in standard form contracts between businesses and consumers are in many instances unfair. Their unfairness stems from the fact that arbitration clauses refer to arbitrators ad hoc who are unilaterally appointed and paid by businesses. Since standard form contracts are proffered by businesses, consumers are not given an opportunity to negotiate about the contract. This state of affairs in the Czech Republic is at variance with the Directive on unfair contract terms as well as the ECJ's case law which provides its interpretation.From the structural viewpoint, first I am going to briefly inform about the consumer protection provided by the Directive. Subsequently, I deal with the ECJ's cases having an importance for further considerations regarding unfair nature of arbitration clauses while putting particular emphasis on the ECJ's Claro case. Then, I aim to show that the Directive has not been correctly implemented into Czech Law. As a next step, I would like to offer a possible solution for this unsatisfactory situation in the Czech Republic with the help of comparative insight into legal orders of the Member States. Finally, the development of the view on arbitration clauses as unfair contract terms in the EU is reflected.

The recast of the European Insolvency Regulation, which has been applicable from 26 June 2017, implements a philosophy of Euro universalism, according to which insolvency proceedings opened in a Member State where the debtor has its centre of main interests (COMI) should have a universal scope and encompass all the debtor’s assets situated throughout the EU. The wording of the Recast Regulation is intended to comply with the ECJ case law concerning COMI, such as Interedil, Eurofood, Bank Handlowy or Mediasucre judgments. Nevertheless, it is now questioned whether the Recast Regulation strengthens or rather weakens the COMI/registered office rebuttable presumption and opens the gate for insolvency forum shopping. As far as international company law is concerned, the issue of transfer of seat as well as forum shopping has been widely discussed. So far the ECJ has issued a series of judgments in which it has explained the European freedom of establishment and the cross-border activities of companies in the internal market. Similarly, the US Supreme Court has issued several signifcant decisions, such as CTP Corp. v. Dynamics Corp. of America, Edgar v. MITE Corp., and International Shoe Co. v. State of Washington, in which the limits of acceptable forum shopping are better delineated. Based on the aforementioned, it may be concluded that European harmonization measures facilitating cross-border mobility should additionally assist in achieving predictability and efficiency, as well as the economic viability and security of the operations under consideration. This contribution analyses and expounds on the lessons that can be learned from both the ECJ case law as well as US Supreme Court’s decisions on international company law, including an examination of their effect on insolvency forum shopping. There is no doubt that, if successful, harmonized legislation on these matters would be a great asset for the internal market.

Creating Visible Children?

The article provides an overview of the most important developments in the field of EU copyright law in the period 2009-2013. It points to the active role the ECJ has taken in interpreting the EU copyright directives, in particular the Information Society Directive. The article discusses the ECJ's case law covering the condition for copyright protection, the exclusive economic exploitation rights, including a full treatment of the Used Soft case, exceptions to copyright and in particular the case law on fair compensation for private copying. It argues that the ECJ's case law is consistently rooted in the objectives of primary law, notwithstanding certain weaknesses in the interpretation of substantive copyright law in detail. A brief outline of the most important legislative activities since 2009 puts the Court's case law in the overall context of the development of EU copyright in the last 5 years

The article reviews components and recent discussion of the ‘Social Model of Disability’, with special focus on two books, Disability Rights and Wrongs by Tom Shakespeare, and The Social Model: Europe and the Majority World edited by Colin Barnes and Geof Mercer. The ‘Social Model’ calls for close and sceptical scrutiny, as it has become one of the most influential metanarratives in campaigns and publications of the ‘Disability Movement’, while tending to overlook the complexities experienced by many disabled people and their relatives. Some components of a Social Model appear in historical literature of Asia and the Middle East, lending credibility to its ongoing life as an interesting idea. Yet current anglophone advocacy of the model makes assumptions of universality that are questionable in the socio-economic situations experienced by much of the global population having disabilities. A calmer and better informed discussion of the model’s merits and flaws would contribute to greater understanding of global disability. DOI 10.5463/DCID.v22i1.14

This article argues for civil rights for dying people. The creation of such rights should be understood as complementary to, but distinct from, existing initiatives to provide dying people with social benefits. A basis for rights for terminally ill people can be found in the disability rights movement. Through an ethnographic case study of two dying individuals, I argue that terminally ill people can be subjected to disability discrimination as it is understood within the dominant theoretical framework of disability rights: the social model of disability. Nevertheless, while disability rights provides a theoretical basis for understanding discrimination against people who are dying, existing U.S. disability rights legislation largely does not recognize, nor address this discrimination. For this reason, it is necessary to develop a separate set of rights of the dying. I conclude by arguing that such “dying rights” are a logical extension of disability rights, and will bring ancillary benefits to both disabled people and the disability rights movement itself. There is thus a strong foundation for a legal and political alliance between disability rights advocates and advocates for people who are dying.

By establishing a general framework for equal treatment in employment and occupation, Directive 2000/78 (Employment Equality Directive ) provides the basis to tackle discrimination on a number of grounds, including disability. Since the seminal decision in HK Danmark , released in 2013, the Court of Justice of the European Union (CJEU) has interpreted the Employment Equality Directive in light of, and in compliance with, the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), which was concluded by the European Union (EU) alongside its Member States. In spite of some false steps and setbacks, the CJEU has progressively embraced the social-contextual conceptualisation of disability enshrined in Article 1 CRPD, and highlighted the role of reasonable accommodation in dismantling barriers faced by persons with disabilities in employment contexts. In that regard, the CJEU’s case law on the Employment Equality Directive has contributed to the protection of the right to work of people with disabilities on an equal basis with others. In 2021, the CJEU released two significant decisions, in the cases of XX v Tartu Vangla and TC, UB v Komisia za zashtita ot diskriminatsia and VA . While those decisions do not depart from previous jurisprudence, they represent important milestones in the advancement of disability rights at the EU level. In both Tartu Vangla and Komisia za zashtita ot diskriminatsia, individuals with disabilities were denied the possibility of working in the judicial system, respectively as prison officers and as jurors, on the premise that their disabilities would prevent them from performing the expected duties. Ruling on the prohibition of discrimination on the ground of disability, the CJEU stressed the importance of providing reasonable accommodation to ensure equal treatment of persons with disabilities working in the justice system. The CJEU made no explicit reference to Article 13 CRPD on access to justice. Yet, this contribution argues that, in its effort to ensure the equal enjoyment of the right to work within a judicial setting, the Court used the Employment Equality Directive to advance access to justice for persons with disabilities. While the organisation of justice remains a competence of the Member States, this contribution contends that the CJEU effectively relies on non-discrimination to support the implementation of Article 13 CRPD.

In this chapter, the ECJ's position on reverse discrimination is examined. After a brief explanation of the ECJ's case law establishing the purely internal situations rule, there is analysis of the ECJ's case law according to which reverse discrimination does not fall within the scope of Union law and, hence, is not prohibited by Union law. Since this position has not been unanimously approved of, we will also discuss some proposals which aim to address reverse discrimination at the Union level. Finally, the question of whether the underlying rationale of the ECJ's traditional position on reverse discrimination remains valid will be assessed on the basis of the current Treaties. ECJ'S TRADITIONAL APPROACH: REVERSE DISCRIMINATION IS NOT PROHIBITED BY UNION LAW THE EARLY CASE LAW ON PURELY INTERNAL SITUATIONS The Notion of a ‘Purely Internal Situation’ The Court of Justice used the notion of a ‘purely internal situation’ for the first time in 1979, in the Knoors case. Mr Knoors was a Dutch national residing in Belgium where he had been working as a plumbing contractor. He applied to the Dutch authorities for authorisation to practise the same trade in the Netherlands. However, the Dutch authorities refused his application because he did not possess the necessary qualifications according to the Dutch legislation. They added that Mr Knoors could not be considered a beneficiary of the provisions of Directive 64/427, according to which a Member State has to recognise the actual practice in another Member State as a sufficient proof of the qualifications required. In this context, the question was raised as to whether a national could be considered to be a beneficiary of the Directive towards his own state.

The Paper explores the right of non-discrimination on the ground of sexual orientation from the perspective of the European Union. In the first part, it analyses how Member States address the issue and EU citizen’s perception on the topic. Then, using a ECJ case law, the paper analyses EU legislation and how it interacts with national systems, highlighting the means by which EU citizens can act in order to see their rights respected. The paper also explores the gaps present in EU legislation and how these gaps could affect the fruition of the rights bound to EU citizenship. The paper concludes that despite the presence of important gaps and limitations deriving from the Treaties, the European Union’s institutions and in particular, the European Court of Justice play a fundamental role in the expansion and the respect of these rights.

This paper, which was published in 2006, gives an overview of the steps that have been taken by the European Union to develop a policy relating to disability and disabled people since its foundation. Initiatives in the period prior to the adoption of the Amsterdam Treaty were characterised by limited action programmes and a lack of binding policy measures. The inclusion in the EC Treaty of Article 13, which provides for the adoption of measures to address disability discrimination; the mobilisation of an active disability movement; and the recognition of a new social model of disability, have resulted in significant developments from the mid-1990s onwards. The most important legal development has been the adoption of the Framework Employment Directive in 2000, which prohibits employment related discrimination on the grounds of disability and requires that reasonable accommodations be made for disabled people. The impact of this provision in a number of Member States is considered and the author reflects on possible ways forward for the EU disability policy. The author holds the European Disability Forum Chair at the Faculty of Law, Maastricht University, the Netherlands.