The Unfinished Story of EU Disability Non-Discrimination Law

The adoption of a developed disability policy, including the adoption of disability non-discrimination legislation, is a relatively recent concern for the European Union. For most of the history of the EU, the founding Treaties contained no explicit reference to disability, and therefore no disability-specific competence existed. Nevertheless, occasional references to disability, and disabled people, were found in a handful of legal instruments and soft law initiatives, although these did not amount to an attempt to develop a broad disability policy or programme until relatively recently. From a competence-related perspective, the major breakthrough occurred with the Amsterdam Treaty, which came into force in 1999, and which included the first explicit mention of disability. The inclusion of Article 13 (now Article 19 of the Treaty on the Functioning of the European Union (TFEU)) in the European Communities Treaty in 1999 sparked a flurry of academic speculation on its potential value and implications for EC non-discrimination law on grounds including disability. The rapid adoption of two directives, the Racial Equality Directive and the Employment Equality Directive, based on Article 13 EC, generated a further round of academic discussion. Since then the legal situation has evolved significantly: Member States have transposed the directives and a body of related case law has emerged in both the Court of Justice of the EU (CJEU) and within some Member States. Meanwhile the Council has declined to adopt a Commission proposal for a new non-discrimination directive to fill some of the perceived gaps left by the initial two directives.