Equality for persons with disabilities on the move

The European Commission has put its disability cards on the table but it is not a full hand.

In early September the European Commission presented its proposal for a European Disability Card and a European Parking Card for persons with disabilities. This followed extensive consultations with stakeholders, including organisations representing persons with disabilities. If the directive is adopted before the European Parliament elections of June 2024—and there are signs that the Council of the EU and the parliament want to achieve this—the new rules will apply from November 2026 at the earliest.

The proposal aims to promote the effective exercise by people with disabilities of their right to free movement by facilitating the mutual recognition of disability status for card holders within the European Union. It responds to the longstanding call of the European disability movement to adopt binding, EU-wide legislation in this area, to ensure equal treatment for people with disabilities in exercise of their free-movement rights.

The mutual recognition would however be limited in time. If one were to become a resident of the host country, that country would retain the competence to assess the disability and issue the cards according to its national legislation.

The proposed legal instrument is a directive. A regulation would have offered more legal certainty but the commission is bound here by the legal bases for the initiative and the principles of subsidiarity and proportionality.

Pragmatic approach

What matters is that the commission has heard the civil-society organisations’ call for a legally binding instrument. A council recommendation of 1998 on the parking card had very little effect and a more recent pilot project on the disability card had limited scope and constrained results.

The proposed directive is remarkable for its very pragmatic approach:

• while it addresses the disability card and the parking card, it treats these as two physically separate documents, each with their own purposes and eligibility criteria;
• it builds on the mutual-recognition approach, which respects the national competence for disability assessment and granting of the cards while at the same time ensuring equal treatment for persons with disabilities on the move;
• for the disability card, it does not give a list of services, activities and facilities covered but simply says that if in the host EU country these come with special conditions or preferential treatment for persons with disabilities—be that from public or private entities—then equal treatment is to be ensured for card holders from other EU countries.

The approach is not identical for the two cards. The disability card will not replace national disability cards where these exist but only serve when the bearer is in other EU countries. The parking card, however, will replace national cards as a single document.

Strong points of the proposed directive include:

• for both cards the applicant can choose the format: physical, digital or both;
• either format will have to be fully accessible to the holder and respect their privacy about the type or level of disability;
• measures are foreseen to avoid forgery and fraud, important to ensure effective mutual recognition.

Fine-tuning needed

Some fine-tuning is needed: it should remain fully voluntary to be a disability or parking card holder and it should never be an obligation to show the disability card as proof of disability for services already granted under other EU legislation—such as passenger rights for persons with reduced mobility. It would also be useful to indicate that the cards must be delivered at no extra cost to the bearer, compared with national cards.

More importantly, an EU-level, centralised register is necessary for the two cards. This would serve to inform the public, in all EU languages and through accessible information, about the available advantages in each country, thereby allowing persons with disabilities to plan ahead when travelling within the EU. Such a register would also facilitate co-operation between competent national authorities, where needed.

Also, the proposal only concerns EU citizens and family members, which does not seem compatible with a human-rights-based approach. Third-country nationals with disabilities who are family members of an EU citizen and who are legally resident in an EU country, with recognised disability status there, should be covered when lawfully moving within the union under EU law. The commission is aware of this issue but prefers to consider separate legislation.

Major loophole

As mentioned, the EU country of residence remains competent to deliver the cards according to its national legislation. This is inevitable, because harmonising national legislative acts on disability was never the intention. The commission was also very careful to clarify in its proposal that social security or other social-protection benefits, co-ordinated in a cross-border context by EU social-security regulations, would not be included and that too is understandable.

But why, as indicated in article 1 of the proposed directive, only aim here to facilitate ‘short stays of persons with disabilities in a Member State other than that of which they are a resident’, to the detriment of those who move their residence to another EU country or simply are on longer stays? If the directive is adopted as such, it will fail to address an indirect barrier to the free movement of persons with disabilities in the EU: when they move to reside in another EU country, the process of reassessing their disability status there can take a long time—often many months and sometimes more than a year—leaving them in limbo between two national competencies. The directive ought to aim to address this loophole in EU law.

After all, the recitals (preamble) of the proposed directive recall that ‘every citizen of the Union has the fundamental right to move and reside freely within the territory of the Member States’. And in the explanatory memorandum, concerning the legal basis of its proposal, the commission refers to article 21(2) of the Treaty on the Functioning of the European Union; this gives the EU competence to adopt provisions to facilitate the right of EU citizens to move and reside freely within the territory of the member states.

At the very least, European card holders should be entitled to equal treatment for special conditions or preferential treatment in the host country, also in the context of a change of residence, while their disability status is being reassessed and they wait to receive a new card. Arguably, the disability card could even facilitate continued access to state-funded social security and social benefits, be that from the issuing country or the host country, during the transition between two countries, based on a concertation mechanism between competent bodies—another reason an EU-level register is necessary.

For further details, see the European Blind Union’s position paper on the proposal