Defining Disability in the European Union Non-discrimination Legislation: Judicial Activism and Legislative Restraints

European Public Law is an English language journal edited at the Institute of European Public Law at the Law School, Hull University. A forum for the discussion of issues in the development of public law, the journal traces the public law of the Member States as it is shaped by the law of the European Union as well as by the Council of Europe’s European Convention on Human Rights.

European Public Law provides a detailed analysis of constitutional and administrative law at a crucial stage of European integration and legal development. In its articles, authorities in the field investigate the extent to which the separate systems of public law in each Member State are, notwithstanding their distinct historical and cultural backgrounds, developing a European Public Law in tandem with the law of the European Union Treaty. The journal also examines the public law systems of new Member States.

Without neglecting the more traditional concerns of constitutional and administrative law, the journal explores the emerging constitution of the European Union and the interplay between law and politics. It is concerned with the identification, examination and control of public power as public and private become ever more intertwined. Public law is given a wide interpretation, including the structure of government, judicial review, the conduct of regulatory bodies, redress of grievance through ombudsmen and administrative bodies, protection of human rights and protection against discrimination, openness and transparency, fiscal and monetary policy, and the role of regulation in the contemporary state and the European Union.

In short, the journal embraces the operation and control of government and government agencies, regulation of economic and commercial affairs and relationships between the state and individuals.To date European Union anti-discrimination legislation, particularly the Employment Equality
Directive (Directive 2000/78/EC), does not provide any clear definition of disability as a ground
of discrimination. In the last few years, the Court of Justice of the European Union (CJEU) has
attempted to fill this gap and discussed the concept of disability in several decisions, in the attempt to
provide a definition of the ground of disability. The ratification by the European Union of the UN
Convention on Rights of Persons with Disabilities (UNCRPD), has led to a clear overruling in
the case law: the Court shifted from the medical model to the social model of disability. The
UNCRPD now represents a milestone for the CJEU, which recognized that a duty arises to define
disability in line with the social model, under the principle of consistent interpretation. Against this
background, this article discusses CJEU case law, and compares and contrasts the judicial activism
of the Court with the cautious approach adopted by the European Commission in the proposal for a
new non-discrimination directive.