Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?

Abstract:

In recent years the European Union (EU) has sought to develop a far-reaching policy regarding persons with disabilities. However, to date, EU non-discrimination legislation does not provide any clear legal definition of what constitutes a disability.

The Court of Justice of the European Union (CJEU) has attempted to fill this gap and, in several decisions, has elaborated on the concept of disability and its meaning under EU law. The CJEU, with reference to the application of the Employment Equality Directive, has explained the notion of disability mainly by comparing and contrasting it to the concept of sickness.

Against this background, this article critically discusses recent case law and attempts to highlight that, even though the Court has firmly embraced the social model of disability envisaged by the UN Convention on the Rights of Persons with Disabilities, the boundaries between the concepts of sickness and disability remain blurred.