The role of soft law in advancing the rights of persons with disabilities in the EU: A ‘hybridity’ approach to EU disability law

• Published date: 01 July 2022
• Author: Delia Ferri
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/eulj.12454

ORIGINAL ARTICLE

The role of soft law in advancing the rights of

persons with disabilities in the EU: A ‘hybridity’

approach to EU disability law

Delia Ferri

*

Abstract

This article discusses the role of soft law in advancing the rights of persons with disabilities in the

European Union (EU). In doing so, it revisits the emergence of the standalone, yet cross-cutting, field

of ‘EU disability law’through the lens of the ‘hybridity theory’advanced inter alia by Trubek and

Trubek. Being speculative in nature, this article construes EU disability law as a fruitful area for an

enquiry into the dynamic relationship between hard and soft law. Until the entry into force of the

Treaty of Amsterdam, soft law was crucial to attract disability within the sphere of action of the EU

and to embed the social model of disability, displaying a value-setting role. In the post-Amsterdam

period, soft law and hard law coexisted, being complementary to one another. Both contributed to a

common objective, namely that of advancing equality of opportunities for persons with disabilities.

After the conclusion of the UN Convention on the Rights of Persons with Disabilities, the dynamic

relationship between hard and soft law has become more complex and akin to what Trubek and

Trubek define as ‘transformation’.

*Professor of Law, School of Law and Criminology, Maynooth University. This contribution has been written within the remit of the project ‘Protecting

the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity through European Union Law: Exploring New Paths –DANCING’,

funded by the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme (Grant Agreement No.

864182). I am grateful to Neza

ˇ

Subic, Giuseppe Martinico and Charles Edward O'Sullivan for their valuable comments on earlier drafts, and to the

reviewers for their constructive remarks. The usual disclaimer applies.

Received: 27 July 2022Revised: 18 January 2023Accepted: 19 January 2023

DOI: 10.1111/eulj.12454

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2023 The Author. European Law Journal published by John Wiley & Sons Ltd.

134 Eur Law J. 2022;28:134–153.

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1|INTRODUCTION

In the past 50 years, the importance and volume of soft law (i.e., instruments having no legally binding force but pro-

ducing legal and practical effects)

1

have grown exponentially in the European Union (EU) legal system.

2

Ştefan et al.

note that soft law currently accounts for more than 10% of EU law and spans across all the Union's fields of action.

3

The recently deployed EfSoLaw dataset showcases that soft law ‘is now used as much in EU policy as hard law’.

4

Further, soft law has also supported, and adapted to, the ongoing process of European integration. While its legal

effects, desirability and, foremost, its legitimacy are highly questioned,

5

it has played a vital role in the development

of EU law, for example in areas such as social policy

6

or competition law,

7

and, as most recently debated, in the appli-

cation of environmental legislation relating to climate change.

8

Disability is another field in which soft law has been of key importance. Until the late 1990s, given the lack of

any legal basis in the Treaties, the former European Community (EC) had addressed disability primarily through the

use of soft law.

9

With the entry into force of the Treaty of Amsterdam, the then EC acquired the competence to

combat discrimination on the ground, inter alia, of disability. Further to those constitutional changes, the rights of

persons with disabilities started to be addressed by hard law (i.e., codified legislative measures), alongside soft

law instruments. In 2009, the conclusion by the EU

10

of the UN Convention on the Rights of Persons with Disabil-

ities (CRPD)

11

brought about a major impetus for the development of the EU action on disability. It triggered the

adoption of legislation aimed, to varying degrees, at improving access for people with disabilities to a wide range of

goods and services,

12

or at protecting disability rights.

13

In this context, however, soft law has continued to play a

vital role. Two major overarching policy strategies, adopted by means of Commission communications—the

European Disability Strategy 2010–2020 (EDS),

14

and its successor, the Strategy on the Rights of Persons with Dis-

abilities 2021–2030 (2021 Strategy)

15

—have contributed to drawing the contours of current EU disability law.

As yet, an array of academic works has extensivelydiscussed legal developments related to the EU action on

disability,

16

and the impact of the CRPDon the EU legal order.

17

Scholars have further engagedwith and commented

1

F. Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’(1993) 56 Modern Law Review, 19. See, also,

G.M. Borchardt and K.C. Wellens, ‘Soft Law in European Community Law’(1989) 14 European Law Review, 267.

2

Opinion AG Bobek in Case C-16/16 P, Kingdom of Belgium v. European Commission, ECLI:EU:C:2017:959, paras. 4 and 81 et seq. See also O. Ştefan,

‘European Union Soft Law: New Developments Concerning the Divide between Legally Binding Force and Legal Effects’(2012) 75(5) Modern Law Review,

279.

3

O. Ştefan et al., ‘EU Soft Law in the EU Legal Order: A Literature Review’(2019) King's College London Law School Research Paper Series, available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3346629.

4

B. Cappellina, A. Ausfelder, A. Eick, R. Mespoulet, M. Hartlapp, S. Saurugger and F. Terpan, ‘Ever More Soft Law? A Dataset to Compare Binding and Non-

binding EU Law across Policy Areas and over Time (2004–2019)’(2022) 23(4) European Union Politics, 741.

5

Among others, D. Petropoulou Ionescu and M. Eliantonio, ‘Democratic Legitimacy and Soft Law in the EU Legal Order: A Theoretical Perspective’(2021)

17(1) Journal of Contemporary European Research, 43; C. Andone and F. Coman-Kund, ‘Persuasive Rather Than ‘Binding’EU Soft Law? An Argumentative

Perspective on the European Commission's Soft Law Instruments in Times of Crisis’(2022) 10(1) The Theory and Practice of Legislation,22–47.

6

M. Dawson, ‘New Governance and the Displacement of Social Europe: The Case of the European Semester’(2018) 14(1) European Constitutional Law

Review, 191.

7

H.A. Cosma and R. Whish, ‘Soft Law in the Field of EU Competition Policy’(2003) 14 European Business Law Review, 25; O. Ştefan, Soft Law in Court:

Competition Law, State Aid and the Court of Justice of the EU (Kluwer, 2013); and O. Ştefan, ‘Helping Loose Ends Meet? The Judicial Acknowledgement of

Soft Law as a Tool of Multi-Level Governance’(2014) 21 Maastricht Journal of European and Comparative Law, 359, 379.

8

D. Petropoulou Ionescu and M. Eliantonio, ‘Soft Law Behind the Scenes: Transparency, Participation and the European Union's Soft Law Making Process

in the Field of Climate Change’(2022) European Journal of Risk Regulation,1.

9

L. Waddington, From Rome to Nice in a Wheelchair: The Development of a European Disability Policy (Europa Law Publishing, 2005).

10

Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with

Disabilities [2010] OJ L 23/35.

11

Annex I, UN Convention on the Rights of Persons with Disabilities, 13 December 2006, in force 3 May 2008, UN Doc. A/RES/61/106.

12

For example, Directive (EU) 2019/882 on the accessibility requirements for products and services [2019] OJ L 151/70.

13

Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC

Text with EEA relevance, OJ L 94, 28.3.2014, 65–242.

14

Commission, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’, COM (2010) 636 final.

15

Commission, ‘Union of Equality: Strategy for the Rights of Persons with Disabilities 2021–2030’, COM (2021) 101 final.

16

Inter alia, D. Ferri and A. Broderick, Research Handbook on EU Disability Law (Edward Elgar, 2020).

17

Among others, see L. Waddington and A. Lawson, ‘The Unfinished Story of EU Disability Non-Discrimination Law’, in A. Bogg, C. Costello and

A.C.L. Davies (eds.), Research Handbook on EU Labour Law (Edward Elgar, 2016) 474.

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