Disability: EU funding of institutions barely legal

Is the European Commission complying with its obligations under the UN convention on disability to stop funding institutions from the EU budget?

Since 2011 the European Union has been party to the United Nations Convention on the Rights of Persons with Disabilities. This has obliged the EU to pursue independent living arrangements for disabled individuals, entailing an end to the funding of institutions from EU funds. But the evidence indicates the European Commission has failed to comply with its responsibilities when it comes to the disbursement of monies.

Article 19 of the convention covers living independently and living in the community. It recognises ‘the equal right of all persons with disabilities to live in the community, with choices equal to others’. This includes ‘the opportunity to choose their place of residence and where and with whom they live on an equal basis with others’, being ‘not obliged to live in a particular living arrangement’.

In 2017, the supervisory UN Committee on the Rights of Persons with Disabilities explained the implications of article 19. It said independent living referred to ‘life settings outside residential institutions of all kinds’. It called for states-party to have deinstitutionalisation policies—closing institutions such as nursing homes, group homes, villages for disabled people or psychiatric facilities with long-term residency.

In 2009 the Council of the EU adhered to the convention and in 2013 the Court of Justice of the EU (ECJ) reaffirmed that the convention had become part of the acquis. Article 17 of the Treaty on European Union meanwhile says of the European Commission: ‘It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union.’ The commission is bound to implement the decisions of the council and the ECJ and so is obliged to implement the convention, including article 19.

Strict use

In its concluding observations on the initial report of the EU, published in 2015, the Committee on the Rights of Persons with Disabilities recommended that the union ‘develop an approach to guide and foster deinstitutionalization and to strengthen the monitoring of the use of the European Structural and Investment Funds so as to ensure that they are used strictly for the development of support services for persons with disabilities in local communities and not for the redevelopment or expansion of institutions’. The EU should also ‘suspend, withdraw and recover payments if the obligation to respect fundamental rights is breached’.

Since the adoption of the convention, the European Network on Independent Living (ENIL) has been collecting data on breaches of this obligation. Its shadow report in February this year published evidence that in Lithuania the government had decided to move 2,700 to 3,000 disabled people out of large institutions but only into group homes or other smaller institutions. For this project €26.5 million from the European structural and investment funds (ESIF) had been used. In the Łódź voivodeship in Poland, between 2014 and 2020 resources from the European Regional Development Fund (ERDF) specifically had financed institutions with 80-90 residents. In Greece the region of Attica planned to enhance the infrastructure and programmes of institutions with support from ESIF funds.

In July 2020, ENIL filed a complaint to the commission about the investments in Łódź. (In the same year complaints were submitted about the use of EU funds to finance institutions in Romania and Estonia.)

Complaint closed

Last month, ENIL was notified by the commission on the Łódź case that ‘no breach of the applicable Union law in relation to the ERDF co-financing has been demonstrated and therefore the complaint will be closed’. According to the commission’s letter, the Polish government had been approached to supply information and explanations; from the messages received the commission had concluded no EU regulations had been violated. That exchange is not open to public scrutiny.

Rather than focusing on this case, the commission suggested it was more fruitful to discuss the topic ‘in the broader political context of ensuring progress of and strengthening, in a coordinated manner, the deinstitutionalization process in Poland through a continuous dialogue and monitoring exercise that must involve all parties’. The Directorate for Regional and Urban Policy (DG Regio) said it would ‘take additional steps’ with the Polish authorities and the Polish commissioner for human rights, though these were not identified. The process of deinstitutionalisation in Łódź was ‘subject to analyses at national level’, whose outcome would ‘be presented when deemed necessary’.

The commission emphasised that, according to its legal interpretation, more proactive measures were not required because ‘there is no general prohibition for the ESIF funds to support longstay residential institutions’. In any case the financing of institutions represented a transitional measure, since the change from institutional care to community-based support was long and complicated. As a result, it was necessary to allow continued investments in institutions as the member state in question had made ‘progress in general on ensuring independent living’, a position supported by the commission’s legal service.

Ombudsman’s inquiry

In April the EU ombudsman published however the results of an own-initiative inquiry into how the commission monitors the ESIF. The report from Emily O’Reilly said the commission should not base its assessments on information provided by national authorities only—independent sources, such as national and regional ombudsmen, should be taken into account. The commission was encouraged actively to seek contact when in need of input.

The ombudsman added that the commission should be less vague when designing follow-up actions with national authorities. Apparently in the course of a complaint procedure in 2019 it had ‘engaged in intensive dialogue with the Hungarian authorities concerning an EU-funded project that had failed to promote deinstitutionalization’. In this case the commission had intervened and halted the project, raising concerns about the housing model involved. O’Reilly said the commission ‘could adopt this approach more systematically’.

By allowing investments in institutions as long as the country concerned can present these as transitional measures, the commission is interpreting the legal framework too loosely. In its guidance, the Committee on the Rights of Persons with Disabilities has said that ‘no new long term institutions should be built and that older long-term care residential institutions should not be renovated beyond the most urgent measures necessary to safeguard residents’ physical safety’. Indeed the EU´s 2021 regulation on the application of its funding streams says that member states should ‘respect the obligations set out’ in the convention and that the funds ‘should not support actions that contribute to any form of segregation or exclusion’.

In response to a question from the EU ombudsman, the commission said it would ‘launch infringement proceedings only as a last resort,’ where no agreement could be reached with the member state. It stressed the role of national courts in enforcing EU law.

Clear responsibility

Especially in the case of disability rights, relying on individuals taking governments to court is highly unsatisfactory. Exclusion from access to justice is a widespread phenomenon for disabled people: taking a public body to court requires significant financial and emotional resources they are unlikely to have.

As guardian of the treaties, the commission has a clear responsibility to enforce union law. There are strong indications that its interpretation of the legal situation differs from the assessment of other authoritative bodies.

The commission should instead adopt the view broadly shared by ENIL, the Committee on the Rights of Persons with Disabilities and the EU ombudsman. It needs then to institute more effective procedures to enforce the legal framework on the use of EU funds when it comes to financing institutions accommodating disabled people.