EN Official Journal of the European Union C 177/15

Opinion of the European Economic and Social Committee on ‘Accessibility as a human right for persons with disabilities’ (own-initiative opinion)

(2014/C 177/03)

Rapporteur: Mr VARDAKASTANIS

On 14 February 2013 the European Economic and Social Committee decided to draw up an own-initiative opinion, under Rule 29(2) of its Rules of Procedure, on

Accessibility as a human right for persons with disabilities.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 19 November 2013.

At its 495th plenary session, held on 21 and 22 January 2014 (meeting of 21 January), the European Economic and Social Committee adopted the following opinion by 152 votes with 3 abstentions.

1. Conclusions and recommendations

1.1 The EESC calls on the EU institutions to acknowledge that Article 9 of the United Nations Convention on the rights of persons with disabilities (UN CRPD) constitutes a human right in itself and therefore its full implementation must lead to the creation of the necessary conditions by means of legal and policy measures to enable persons with disabilities to access all kind of environments and aspects of life. It is crucial to their full enjoyment of civil and political rights, as well as their social, economic and cultural rights. Accessibility benefits the whole of society.

1.2 The EESC calls on all of the EU institutions, political bodies, and agencies, including the EESC, to prepare, in consultation with the European disability movement, a concrete plan for ensuring the accessibility, inter alia, of their premises, websites and documents.

1.3 The EESC recognises accessibility as a basic prerequisite for sustainability and its social dimension, in combating poverty and marginalisation and promoting social cohesion.

1.4 The EESC acknowledges that positive steps have been taken in areas such as transport and telecommunications (e.g. the Digital Agenda), but more actions are needed, including in the internal market.

1.5 The EESC acknowledges that lack of accessibility constitutes discrimination in itself, and therefore underlines the need for the EU to develop non-discrimination legislation and calls on the Council to unblock the Proposal for a Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation COM(2008) 426 final (Article 19 TFEU).

1.6 The EESC calls on the European Commission (EC) to fulfil its long-standing commitment and present a legally-binding European Accessibility Act.

1.7 The EESC calls on the European Parliament and the Council of the EU to conclude the current Proposal for a Directive on the accessibility of public sector bodies' websites in accordance with the EESC opinion on Accessibility of public sector body websites (1) and the European Disability Forum.

1.8 The EESC calls on the EU institutions to agree on the inclusion of compulsory ex-ante conditionalities on accessibility and disability in the current Structural Funds common provisions regulation, and in external aid instruments and other funding instruments.

1.9 The EESC believes that the crisis and resulting austerity measures should not be used by the EU and the Member States as an excuse to undermine respect for accessibility as a human right.

1.10 The EESC notes that, when enforcing accessibility as a human right, the following fundamental principles should be considered: freedom to make choices and of movement, independent living, reasonable accommodation, participation, universal design and anticipatory duty.

1.11 The EESC calls on the EU and its Member States to put in place monitoring and enforcement mechanisms with the involvement of organisations representing persons with disabilities.

1.12 The EESC stresses that the following EU policy areas should have an accessibility dimension: legal capacity, political participation, employment, State aid, transport, education, access to goods and services, research, foreign policy and housing.

1.13 The EESC believes that the EU institutions, when implementing the UN CRPD provisions, should include accessibility in the following instruments: standardisation, harmonisation, technical requirements, incentives for companies, trade union policies and collective agreements.

1.14 The EESC notes that awareness-raising strategies are a crucial means for achieving respect for accessibility as a human right on the part of society, including the citizens themselves and main actors such as schools and the mass media, in accordance with Article 8 (UN CRPD).

1.15 The EESC considers that accessibility should be included in the curricula of scientific disciplines (e.g. architecture, engineering, computer science etc.).

1.16 The EESC believes that there are insufficient statistical instruments to support the enforcement of accessibility as a human right and therefore calls on Eurostat to ensure that they are developed.

1.17 The EESC reiterates the commitment it has expressed in previous opinions to create a Steering Committee to monitor the implementation of the UN CRPD.

2. Introduction

2.1 The human rights approach to disability means that the EU as a party to the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) and all citizens have the responsibility to build a society in which all human beings, including persons with disabilities, can enjoy their civil, political, economic, social and cultural rights.

2.2 The UN CRPD definition of a person with a disability underpins and reinforces the human rights approach to disability: Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

2.3 The EU accompanied its conclusion of the UN CRPD with a list of competences of which accessibility is an integral part. The UN CRPD is the only human rights treaty concluded by the EU so far.

2.4 The World Disability Report (2011) of the World Health Organization and the World Bank stresses that the built environment, transport, information and communications are often inaccessible to persons with disabilities (2).

2.5 Access to the physical environment and public transport is a pre-condition for freedom of movement for persons with disabilities, guaranteed in Article 13 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Civil and Political Rights (ICCPR). Similarly, access to information and communication was seen as a pre-condition for freedom of opinion and expression, guaranteed in Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the ICCPR (3)

2.6 The UN CRPD focal point (located in the EC) has a fundamental role to play in the implementation of the UN CRPD and this has to be undertaken in a very proactive way.

2.7 The Council of the EU endorsed on 29 October 2012 the establishment of a framework to protect, promote and monitor the implementation of the UN CRPD made up of the European Ombudsman, the European Parliament Petition Committee, the EU Agency on Fundamental Rights, the European Disability Forum and the EC.

2.8 The EESC welcomes the full involvement of the European Disability Forum in the framework and stresses the need for civil society to be very closely involved in its proceedings.

2.9 The UN CRPD recognises accessibility as a right in Articles 9, 3 and 21.

2.10 The UN CRPD articles on accessibility establish an important legal/policy agenda of its own which cannot be seen in isolation, and therefore accessibility must be considered as an enabler and facilitator of enjoyment of all the other civil, economic, social and cultural rights.

2.11 Over recent years accessibility has received greater attention from the EU legislator and has been included, inter alia, in policy areas such as public procurement, structural funds and other funding instruments, passenger rights, the technical standards sector (TSI-PRM) and employment. This is especially important given the ageing of the European population.

2.12 The European Disability Strategy (EDS), the main specific policy instrument on disability, has introduced concrete EU targets in this area. Through the EDS, the EC has committed itself to presenting legally-binding measures for achieving accessibility, including web accessibility and the European Accessibility Act (4).

2.13 The Digital Agenda for Europe serves as a good model for introducing general policy strategies while also including specific actions to ensure access for persons with disabilities. Progress on accessibility will spill into society and the economy in general, creating new jobs and bringing added value. The full implementation of this Agenda should result in a barrier-free digital Europe for persons with disabilities.

2.14 There is a need to use the potential of accessibility for the internal market since it will enhance transnational mobility in Europe while facilitating the mobility of workers and persons with disabilities. Access to life-long learning schemes should be ensured. European employment strategies should also include the need for job retention and retraining for those becoming disabled during their working lives.

2.15 The Europe 2020 strategy could have taken a more comprehensive approach to disability, including accessibility and the involvement of persons with disabilities and their representative organisations. The lack of comprehensive indicators for disability in this strategy has led to a lack of attention, information and allocation of resources to disability. Job creation is the fundamental strategy for ensuring social inclusion.

2.16 The EESC stresses that much more still needs to be done and therefore welcomes the EC Proposal for a Directive on the accessibility of public sector bodies' websites.

2.17 The EESC calls on the EC to deliver on its commitment to propose a legally-binding European Accessibility Act with no further delay or postponement.

2.18 The economic crisis is having a dramatic impact on the enjoyment of the human rights of persons with disabilities, including accessibility. Accessibility levels are deteriorating and, as a result, more inaccessible societies are developing. It should be noted that all families are affected by the economic crisis, but there are disproportionate effects in families with children with disabilities (5).

2.19 The EU needs to adopt a specific programme to ensure that children with disabilities have access to all environments and aspects of life.

2.20 Europe needs inclusive growth and accessibility as a basic prerequisite for achieving sustainability and especially for the implementation of its social dimension, in combating poverty and marginalisation and promoting social cohesion through the inclusion of persons with disabilities.

3. Accessibility as a human right

3.1 The EESC believes that ‘accessibility as a human right’ needs to be transformed into a political and operational concept. It is a concept valid for the whole of society and not solely for persons with disabilities.

3.2 The EESC highlights that the right to accessibility as a human right, and in relation to a policy agenda, should be understood in two ways: — as a human right in itself referring to the possibility of participating, acting, communicating and being informed autonomously and safely; and — as a human right inherent in the implementation of other human rights, making it a fundamental enabler and facilitator.

3.3 The EESC acknowledges the UN CRPD guidelines for developing the concept of accessibility and believes that policy making in this area should include: — enabling persons with disabilities to live independently and participate fully in all aspects of life and; — the adoption of measures that include the prevention, identification and elimination of obstacles and barriers to accessibility.

3.4 The EESC endorses the need to ensure independent living (related to community living and life in the community), as mentioned in Article 19 of the UN CRPD, by means of three main actions: — ensuring that persons with disabilities can choose their own preferred place of living; — providing the support needed in order to enjoy the same rights as other members of society; and — ensuring that access to general services is available on an equal basis to persons with disabilities.

3.5 The EESC notes that persons with disabilities must be able to exercise the freedom to make choices independently and autonomously on an equal basis with others.

3.6 The EESC takes note of the ‘Global Report on living and being included in the community (6)’ produced by Inclusion International, which points out that persons with intellectual disabilities are denied basic accessibility rights, such as owning the keys of their homes, the right to access commercial services, the right to decide where to take a walk or the right to go to the playground with fellow students.

3.7 The EESC acknowledges that institutionalisation is an extreme violation of human rights and is the unfortunate consequence of the development of social services in Europe, compared to other areas of the world, and affects all countries of the European Union regardless of their standards of living. De-institutionalisation strategies need to be followed up by the development of alternative community-based services, since without services there can be no improvement; persons with disabilities become homeless people.

3.8 The EESC considers that a ‘barrier’ should be understood to mean not just a physical barrier, but also attitudinal and legislative barriers, as well as policy, behaviours and customs, lack of awareness and cultural discrimination. The EESC would point out that the removal of these barriers benefits the whole of society.

3.9 The EESC notes that more attention should be paid to the recognition of sign language and other forms of communication for deaf persons, as well as speech-to-text formats for people with hearing impairments. There should also be facilities to ensure the provision of braille documents and screen readers for blind persons and easy-to-read information for persons with intellectual and behavioural disabilities.

3.10 The EESC would point out that signage, accessible information and communication, support services, orientation and movement within and through buildings is crucial for many persons with disabilities, especially those experiencing cognitive fatigue.

3.11 The EESC notes two fundamental instruments to be considered in the analysis of accessibility as a human right: — Reasonable accommodation means ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms" (Article 2 of CRPD)’. In no case should reasonable accommodation replace the obligation to ensure the accessibility of infrastructures, built environment and services and goods according to the principles of universal design. Reasonable accommodation seeks to ensure individual justice in the sense that non-discrimination and equality are provided, taking the dignity, autonomy and choices of the person into account. The EESC believes that a general enhancement of accessibility standards leads to more reasonable accommodation; — The EESC believes that the principle of ‘disproportionate or undue burden’ should be implemented in accordance with current regulations and therefore calls on the public authorities to control and support the implementation of reasonable accommodation through alternative means (funds, procurement etc.). This should include an impact assessment in which the right of the citizen should prevail over the needs of the provider. It is important to ensure that there are very few exceptions in the application of the principle of reasonable accommodation.

3.12 The EESC considers that universal design should be a guiding principle for ensuring full access to society and that it needs to be made an operational policy requirement in the policy making process, for example by including it in the articles of a regulation (7). There is a need to accompany the general design with the development of complementary assistive devices and technologies.

3.13 Compliance with the anticipatory duty of accessibility can bring enormous benefits to persons with disabilities by anticipating their needs before they actually arise. From a product or service perspective, this will require that such potential needs be taken into consideration during the design phase.

3.14 There should be a distinction between, on the one hand, the obligation to ensure access to all newly-designed, built and produced objects, infrastructure, goods, products and services and, on the other, the obligation to remove the barriers and ensure access to the existing physical environment, transportation, information and communication, and services open to the general public. States Parties are under the obligation to ensure both, but as the former is to be implemented gradually, States parties should set definite, fixed timeframes, and allocate adequate resources for the removal of existing barriers (8).

3.15 The EESC notes that personal assistance (including ‘live assistance’ as mentioned in the UN CRPD) is a fundamental targeted action to ensure that persons with disabilities have access to a number of rights.

3.16 The EESC acknowledges that non-discrimination is a fundamental instrument for ensuring respect for human rights, but it is not sufficient unless accompanied by other instruments, such as positive action and standardisation, as well as training and the promoting the rights of persons with disabilities amongst employers, civil engineers, architects, lawyers, economists etc. This training should be included in their educational curricula. The EESC believes that progress should be made with the currently abandoned Proposal for a Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation COM(2008) 426 final (based on Article 19 of the TFEU).

3.17 There will be no fundamental implementation of accessibility obligations as a human right unless there is substantive and meaningful participation by organisations of persons with disabilities (DPOs) in implementation of Article 4(3) and 33 when addressing accessibility. Participation can be ensured if organisations of persons with disabilities receive necessary financial resources to develop their advocacy activity. The EESC calls for the Fundamental Rights programme, which will replace the PROGRESS programme, to guarantee the same level of financial support to umbrella and specific organisations of persons with disabilities.

3.18 The EESC highlights that the degree to which persons with disabilities enjoy human rights differs between rural and urban areas and that this imbalance should be tackled by means of effective policies at national and regional level.

3.19 Companies and employers in the EU should include accessibility in their diversity policies and should promote the creation of diversity plans.

3.20 The EESC recognises the impact of accessibility on social cohesion and EU sustainability strategies should therefore include accessibility as a means to implement their objectives.

3.21 The EESC notes that women with disabilities face restrictions in accessing their rights, including in the areas of health, social inclusion, education and employment. These restrictions result in worse living conditions, health problems, unemployment and poverty. The same applies to other vulnerable persons with disabilities such as children, elderly people and people in need of high levels of support, who face serious restrictions in accessing their rights.

3.22 The EESC would point out that today's young people are the future and that accessible conditions need to be created to enable those with disabilities to fully enjoy their rights. The EESC calls for the EU to ensure that its youth policies include a specific dimension to support young people with disabilities.

4. Impact on EU legislation and policy making

4.1 The EESC notes that following the EU's conclusion of the UN CRPD, any proportionate policy/legal initiative in the EU should be analysed from the perspective of ensuring independent living for people with disabilities, full participation and removal of barriers and obstacles. This concept should have an impact on existing EU regulations, some of them specified in the declaration of competences.

4.2 The EESC considers that the internal market should be developed in such a way as to ensure that it includes disability, standardisation and harmonisation of accessibility, as a means to modernise it and make it more competitive and inclusive in a global economy. There exists an economy of disability.

4.3 The EESC calls for the creation of an EU agenda based on two factors: — the human right of accessibility; and — the inclusion of accessibility in other mainstream policy-making.

4.4 The EESC believes accessibility to be a fundamental right, requiring a specific political agenda, and urges the EC to present a proposal for an accessibility rights agenda in relation to its policy making.

4.5 The EESC calls for the following areas to be analysed from the perspective of accessibility as a human right: — access to certain services and social policies requires the full enjoyment of legal capacity. The EU should ensure harmonisation of the principles of legal capacity for persons with disabilities in the EU; — political participation and the voting rights of persons with disabilities in all elections (local and national), particularly European elections, should be legally guaranteed by ensuring that polling stations, ballots, information from political parties etc. are accessible; — civil rights (property, right to life, autonomy, safety etc.). Access to these basic civil rights need to be ensured through European action, including personal assistance to allow persons with disabilities freedom of choice in enjoying accessibility.

4.6 The EESC calls for concrete actions to be developed in the following areas, from the perspective of accessibility as a human right: prevention of the effects of the economic crisis on accessibility standards and independent living for persons with disabilities; provision of access to education (9); a programme for access to social and cultural (10) rights (social relations, recreation, tourism); international cooperation, financial-trade agreements and the EU's position in areas such as natural disasters and development cooperation, MDGs, asylum-seekers and the UN and the IMF; in the field of research, Horizon 2020 should be utilised; access to housing, including State housing; sports, as a mean of social inclusion, should be enjoyed, including access to buildings, premises, programmes etc.

4.7 Inclusion can be achieved inter alia through collective action by all stakeholders in a number of areas of fundamental rights: — EU political parties must include in the internal procedures means to enable participation by persons with disabilities. Social partners should ensure that collective agreements include persons with disabilities and means for accessing employment and reasonable accommodation. The EESC welcomes the EU Framework Agreement on Inclusive Labour Markets and calls for full implementation of this agreement at national level. — Civil society organisations (CSOs) should promote actions that include access for persons with disabilities in their general social demands. — All stakeholders mentioned in this paragraph should ensure that their premises, websites, internal procedures and recruitment policies are accessible.

4.8 The EESC calls for developing and strengthening the inclusion of a strategy on standardisation and accessibility in the development of technology.

4.9 The EESC notes that accessibility will enable activity to develop in new sectors, requiring new skills, particularly in the ICT sector. Persons with disabilities should be able to overcome the digital divide with the support of targeted EU policies.

4.10 The EESC believes that capacity-building is needed for all stakeholders: public authorities, private companies, civil society and organisations of persons with disabilities. Special attention should be paid to SMEs.

4.11 The EESC calls on the EC to fulfil its long-standing commitment and present a legally-binding European Accessibility Act.

4.12 The EESC welcomes the presentation of the proposal on accessibility of public sector bodies' websites and reiterates its recommendations set out in its opinion on Accessibility of public sector body websites (11): — the Web (i.e. services and content) has become second nature in seeking employment, obtaining information, accessing education, shopping and socialising; — the web content of services should be made accessible for all operators (companies or public sector).

4.13 The EESC welcomes the inclusion of accessibility criteria and disability conditionality in the Structural Funds regulations and in other areas such as transport and passenger rights.

4.14 The EESC considers that the EU Presidents' meeting on disability and the EC DGs' meeting on the implementation of the UN CRPD should be held periodically, as announced, with the participation of representatives of the European disability movement with a view to political monitoring and promoting the implementation of the UN CRPD, including its accessibility provisions.

4.15 The EESC notes that, while there is clearly insufficient funding for accessibility, the inclusion of accessibility as a criterion for current funding systems would bring some improvement in this area: Structural Funds, social investment package, future general block exemptions on State aid in employment, TEN-T guidelines.

4.16 The EESC also believes that access to mass media and the visibility of the needs of persons with disabilities in this type of media need to be enhanced.

5. Monitoring

5.1 The EESC calls for a strategy of citizen empowerment to be developed, as the fundamental way to ensure full implementation of accessibility. Awareness-raising campaigns are needed and persons with disabilities, and all other citizens, need to be educated in their accessibility rights.

5.2 The EESC regrets the lack of indicators and calls on Eurostat to provide for a strategy to develop specific indicators based on those of the Office of the High Commissioner on Human Rights (OHCHR) and on the Draft General Comment of the UN CRPD Committee on Article 9.

5.3 The EESC calls for the inclusion in standards of clear accessibility criteria and mechanisms for monitoring (built environment, infrastructure, modern ICT, inter alia operating systems for tablets and smartphones and the EC Mandate 376 on accessibility requirements of ICT products and services). Persons with disabilities should participate fully at all stages in the development of standards.

5.4 The EESC believes that strong systems of enforcement need to be created, since they are currently failing in Europe.

5.5 The EESC highlights the need to use the monitoring mechanisms included in the future Structural Funds common provisions regulation to ensure that the ex-ante conditionalities of disability are observed and that social partners and organisations of persons with disabilities fully participate in that monitoring.

5.6 The EESC considers that European and national education strategies should include accessibility for persons with disabilities in the curricula of studies in schools and universities.

5.7 The EESC reiterates its commitment expressed in previous opinions to creating a Steering Committee to monitor the implementation of the UN CRPD by the EESC in the development of its activities as a political body.

5.8 A European system of accessibility certification mechanisms must be promoted. Organisations of persons with disabilities' should be involved.

5.9 The dimension of accessibility should be included in the EU's legal and policy impact assessments. Tools to promote that inclusion in a unified way in all Member States should be established.

5.10 The EESC calls for the implementation of the European Disability Strategy by the EU institutions (including the EESC) to be monitored and would point out that the accessibility of premises, recruitment policies and information (either physical or electronic) needs to be ensured. The review of the strategy in 2015 should pay particular attention to this policy area.

Brussels, 21 January 2014. The President of the European Economic and Social Committee Henri MALOSSE

(1) OJ C 271, 19.9.2013, p. 116-121.

(2) World Disability Report, Summary, p. 10.

(3) International Covenant on Civil and Political Rights prescribes in article 25 lit. c the right of every citizen to have access, on general terms of equality, to public service in his/her country. Provisions of this article could serve as basis to incorporate the right of access in the core human rights treaties. Section 2 and 3. International Convention on Elimination of All Forms of Racial Discrimination guarantees everyone the right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks (ICERD, Article 5, paragraph (f).). In this way a precedent for viewing the right to access as a right per se has been established in the international human rights legal framework. (Draft General Comment on Article 9 — UN CRPD committee).

.

(4) As presented in the EC Workprogramme 2012 in item 99.

(5) The Committee on the Rights of the Child adopted a General Comment on No 9 (2006) on the rights of children with disabilities. The importance of accessibility was reiterated by the Committee on the Rights of the Child through its General Comment No 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts (Article 31).

(6) http://inclusion-international.org/living-in-community/.

(7) Making a building accessible ab initio may increase the total cost of construction by up to 0,5% (or not at all, in many cases), while the cost of subsequent adaptations may be higher than the percentage if taken ab initio. Accessibility of information and communication, including ICT, should also be achieved ab initio because subsequent adaptations of Internet and ICT may increase costs, so it is more economic to incorporate mandatory accessibility features of ICT from the earliest stages of design and construction. (Draft General Comment on Article 9 — UN CRPD committee). The average lifetime of a building or other physical infrastructure is more than 50 years, while for a digital infrastructure is no more than 3-4 years. It is also worth mentioning that construction costs are much lower.

(8) Draft General Comment on Article 9 — UN CRPD committee.

(9) Without accessible transport to schools, without accessible school buildings, accessible information and communications, persons with disabilities would be denied the opportunity to exercise their right to education (article 24 of CRPD). Thus schools have to be accessible, as explicitly provided for in Article 9(1)(a) of CRPD. But the entire process of inclusive education must be accessible, not just buildings but also all information and communications, support services and reasonable accommodation in schools (Draft General Comment on Article 9 — UN CRPD committee).

(10) Article 30 of the CRPD lays down that States Parties recognise the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:

(a) Enjoy access to cultural materials in accessible formats;

(b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;

(c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.

Provision of access to cultural and historical monuments considered patrimonial may indeed be a challenge in some circumstances; however State Parties are under obligation to strive to provide access to those sites as far as possible. Many monuments and sites of national cultural importance have been made accessible in a way that preserved their cultural and historical identity and uniqueness. (Draft General Comment on Article 9 — UN CRPD committee).

The international WIPO Copyright Treaty to facilitate access to published works that was adopted in June 2013 should ensure access to cultural material without unreasonable or discriminatory barriers for persons with disabilities, especially those facing challenges accessing traditional print materials.

(11) OJ C 271, 19.9.2013, p. 116-121.