The Ada-A Model for Europe with "Sharper Teeth"?

Article excerpt

...I wish...for the passionate sense of the potential, for the eye which... sees the possible....

Soren Kierkegaard, 19th century Danish philosopher

Kierkegaard's wish might be regarded s a prescient view of a new European legal emphasis on persons with disabilities as human subjects rather than as objects, persons who have the potential and the possibilities to contribute to marketplace productivity. Lawyers who represent clients engaging in business in Europe, particularly clients actually establishing European branches, keeping current on work setting discrimination laws is critical. Two major European Commission (EC) Directives announced in 2000 fundamentally expand anti-discrimination protections for workers.

The first, the so-called Race Directive,1 is the broader of the two in one respect, since it applies across the spectrum. That is, its provisions address not only employment discrimination, but also discrimination in other areas, such as housing, transportation, and education.

The second, the Framework Directive,- although limited to employment law, protects workers from discrimination based upon religion or belief, disability, age and/or sexual orientation. (Prior EC Directives have prohibited discrimination based on sex.3) The year 2003 was the European Year of the Disabled, probably a direct response to this second mandate from the EC. Unarguably, revisions to workplace discrimination laws for persons with disabilities are now on the agenda of domestic legislation in all European Union countries.

This article focuses on developments in the area of discrimination on the ground of disability. It is not a discourse on the Americans with Disabilities Act, and reference is made to that statute only in a comparative sense. The EC has looked to the American statute as a beginning point, and its relevance when analysing the responses to the directive cannot be over-estimated.

SOME EUROPEAN LAW BASICS

There is frequent confusion among Americans with regard to the terms "European Community" or EC (originally "European Communities") and "European Union." Some legal professionals wrongly believe the KC to be defunct and the EU to be the only correct term. "European Union" is the goal pronounced in the Single Europe Act of 1987, but the European Communities is the collective body with law-making powers. Thus, one might speak of "EU law," designating law applicable to those countries in the European Union, or "EC law," the more official term that refers to the actual source of law. The EU, then, is a geographical entity, whereas, "EC" is the reference to the body that adopts and enforces laws.

The EC directive has no counterpart in American jurisprudence. It is a mandate from the EC that states an intended result. The means by which each member state attains this result via the enactment of domestic law is left to the individual member state. The other primary form of European legislation is the regulation, which is immediately effective in all member states without any necessity for domestic law. As a practical matter, the directive has been much more frequently used.

Currently, the adoption of a European Constitution is a topic of considerable controversy, although approval of the draft was actually anticipated for early 2004. The purpose of the 1999 Cologne Council was to draft a Charter and Constitution, and the dilemma of how a country, once admitted to the EU, might later withdraw has finally been addressed in Article 59, Title IX, of the draft. This Charter is incorporated into the proposed constitution as Part II of that document. (The draft was published in 2003.)

Two lingering points of dissension remain: (i) the proposed revamping of voting weights (currently, votes from those member states with the largest population, such as Germany, France, and Italy, are more heavily weighted than are those from the less populated states, a reduction of power that has not been acceptable to the larger members), and (ii) the insistence of countries such as Ireland and Italy that the document contain a reference to the Christian foundation of the European Union. …