Challenges on European Non-Discrimination Law from the Social Model of Disability Approach

Abstract

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The European Union Framework Directive provides for protection against discrimination on various grounds, including disability. However, its material scope is only limited to the employment field. What seemed to be a breakthrough in anti-discrimination law (as it finally stepped forward to embrace protected grounds in addition to the traditional ones such as gender and race) has been evaluated and criticized from different points of view: it is argued that, nowadays, European regulation on protection against discrimination still is flawed. One of the prior issues that may be solved is the determination of the personal scope of application of the Framework Directive. Considering the European legislator avoided defining disability, this onus has been on the European Court of Justice, that has outlined a definition this term in order to implement the Directive provisions. In doing so, the influence of the disability model that has prevailed at each moment has been crucial, entailing a struggle among the former medical model and the emerging social model. Insofar as the criteria of this latter has been imposed, a Human Rights approach was developed, and the personal scope of the Framework Directive could be extended to a wide variety of health problems covered by the notion of disability. It is worth mentioning the case-law that has marked a turning point for the European definition of disability, as Chacón Navas, HK Denmark, Z vs. A, FOA, and Daouidi, all of them referred hereinafter. This article has two main objectives. First of all, to identify the elements given by the European Court of Justice for the purpose of defining disability, and for this purpose the leading cases will be analyzed. Secondly, according to the social developments in disabilities studies, some concerns about the evolution of the dynamic concept of disability will be outlined. The article concludes with brief final remarks on the future development of the disability concept within the European non-discrimination regulations.