Welcome to ERA – Academy of European Law

OK, thank you for the introduction and again thank you for the invitation. I’m going to speak about the national implementation and monitoring, and I particularly liked the image of the elephant this morning because everybody who is dealing and studying a topic thinks that his topic is the most important. Well I () my own topic and the elephant theory confirms it because the first part, the first task of states when they ratify the convention is to set up this monitoring, implementation and monitoring mechanism. In a way, why are they important? Because it is true these mechanisms that the convention will be implemented. So, strong mechanisms are not a guarantee, but increase the chances of having effective implementation of all the rights of the convention. That’s why I think my subject is important. But, of course it only serves the implementation of all the other rights of the convention. However, it’s a complicated issue: often people have to do these things in a rush because it’s the first thing they need to do when they ratify a convention and it’s very sensitive. Everything which concerns institutions is sensitive because it affects resources, power relationships, it requires expertise, it changes relationships, working matters so it’s sensitive. There is a framework provided for in the convention, but of course it has to take into account the particularities of a state, and often this makes the task quite complicated for those who are in charge of this.

Article 32, 33 sorry, of the convention is the response to two concerns, which you find here on my PowerPoint presentation. The background of this article is the move from standard setting to implementation. As has been often said, during the negotiations, the attention was not only on substantive rights, but also, if not most, on implementation, clarification, articulation of the rights of persons with disabilities with a view to changes , effective changes in domestic laws and policies,. So the implementation of rights was considered one of the most important aspects in the minds of the drafters of the convention. Second thing, is that at least at UN level, people have started to realize for the last decade that implementation and human rights take place first and foremost at the national level, and this is according to the principle subsidiarity which says that states have the primary role to implement human rights. As Jack Donnelly says the struggle for human rights will be won or lost at the international level. People might draft conventions, provide advice, but changes will only happen at the national level, with national bodies, national policy makers, national advocates. This is why I call, this is why I national structures for the national implementation and monitoring of the convention are necessary to maximize the effect of the convention and a way to domesticate this convention in national settings.

What I’m going to say now, here you can find the contents, you can find it back in several documents. One of them is a study here I did for the office of the UN high commissioner for human rights, which provides a comparative analysis of the implementation of article 33 in European states, yeah so it gives an overview of the implementation in each state and afterwards it compares and highlights best practices. It’s a bit old, it was made in July 2011 so it’s not up to date. For that you have to go to other reports. Sorry to make some marketing, but I have also a book on the issue with 6 case studies and if you want a discount from later you can take this one, this sheet outside the room.

OK let’s go now to this article 33. So, I will examine two parts. First one, the national level. As you read, it’s about national implementation and monitoring, and I will discuss the theory which is unfortunately a bit necessary. Then, most importantly I will come with examples. And I hope you will continue this with your own experience and with the exercise. And secondly, I will, as indicated in the programme, I will deal with the EU level. It’s a new aspect, it’s a tricky aspect, but as you know, the EU has concluded the CUPD on 23 December 2011 if I’m right, or no, yeah. So it has also to implement article 33.

Article 33 makes our task easy because it’s divided into 3 paragraphs and we can just divide explanation of article also 33 in three parts.

The first paragraph deals with governmental departments, with the implementation, and requires to establish focal points and if necessary a coordination mechanism. The second part provides for the establishment or designation of independent mechanism and the third part provides for the participation of civil society in the monitoring process. So, very easy, three parts, three paragraphs, three different actors, three parts for my presentation.

Actually not that easy because there is an overlap and there are some tricky aspects and its not clear under which one you fall. But that you will see now.

So, I start with the national level, for which article 33 is actually meant. And the first paragraph says that state parties in accordance with their system of organization shall designate one or more focal points within government for matters relating to the implementation of the present convention. It’s an obligation. It’s a procedural obligation. That’s what you need to establish. You need to have somebody who is responsible for matters relating to the implementation of the convention. It’s one or more focal points so there is some flexibility, you can appoint focal points in several ministries or departments. This aspect of a focal point for implementation is the first time in an international human rights treaty, I say treaty because in the UN standards rules, you will find it as well that these UN standard rules are not binding and are thus not a treaty. In most states there is already a department that is responsible for disability issues and usually it’s that department that will receive this mandate. The difference will be that usually that department for the future has to focus on the convention, I will not say as well, but has to focus to integrate the convention in all its activities and its work. So, it’s the convention that should be on the wall in front of their desk when they carry out all their policy making and other activities. Concretely, what should they do? They have different functions, that, focal points have, and the first one as I’m sure most of you, if your country has ratified the convention have already experience is the stage drafting the state report. It’s an exercise that is not just handing in a report to the UN committee on the rights of persons with disabilities, it gives you the chance to have an overall assessment of the national legislation and policies. It should not be the last step of the focal point. Once, that’s only the start to not stop there. There are many other aspects that are included in the functions among which defining the measures to implement the CIIPD, developing and implementing disability rights policies, participation of civil society. However, we have it already. We are only in article 33(1), but we already have civil society here. But I will discuss it as a whole in the third part of my presentation, so I don’t speak about this now, and also to serve as a contact point, but at the national level, citizens to whom, who is actually responsible for implementing the convention and also for the international level. If your country has ratified the optional protocol to the convention and somebody is introducing a complaint, the committee cannot look to the exact department or the exact ministry or the local government that is responsible for the issue, this committee for instance needs one contact point through which the complaint will be dealt with. It’s an example. So () national and international level. In practice, most states have appointed their ministry of social affairs. And As I said this is normal as they have the expertise in disability issues as long as now the focus is on the convention and the convention is on the wall in their office if I may frame it like this. And in certain countries you have also sub-focal points like in the UK and Belgium. These are federal states and states with devolved administration where it’s useful because of their competences to also have a focal point to deal with the matters for which these regional or local governments are responsible.

The second part of this article 33(1) deals with the coordination mechanism. As you see here, in the quote “state parties shall give due consideration to the establishment or designation of a coordination mechanism to facilitate related action in different sectors and at different levels.” “Shall give due consideration” so it’s not an obligation but you shall still give consideration. It’s, what is compulsory is to give due consideration to its possible establishment or designation. Again, this is the first time in an international human rights treaty and coordination is important. You have two dimensions actually: the vertical dimension which means cooperation between different levels of government. Sorry, again I take my country as example, but in Belgium we have different regions with exclusive competences to ensure cooperation between the federal states and the regions you need vertical cooperation between different layers of government. But also horizontal cooperation between different ministries. The idea of mainstreaming disability rights is that every ministry dealing with issues that affect persons with disabilities is aware of the convention and takes part in the implementation of the convention. So, the purpose is to facilitate discussions on the implementation of the convention and achieve coherent national disability rights policies. In the words of Gerard Quinn, whose name we have mentioned this morning, the purpose is to achieve joined up government and avoid that policy take the form of fragmented measures in which, regarding which different departments have no awareness. I have seen myself, having worked for a department previously that somebody in the family law section was dealing with legal capacity although the human rights unit or the international coordination service was not aware of it. It often happens that disability rights issues are dealt with in a fragmented way and the purpose of such a coordination mechanism is first of all to share the information and to exchange expertise and facilitate discussions. Basically, when we see, when we look at practice we see that there are three ways in which states establish or designate a coordination mechanism. Sometimes, often even, the focal point is the coordination mechanism. This is not a problem, the only question that should be asked is whether there could have been another value to establish a distinguished mechanism. If this is not the case, why not? That case, the focal point or the lead focal point in federal states will have two heads. In other states there is a distinct coordination mechanism, as we can see in France, Germany, Spain. The advantage when you do that is that coordination becomes more visible, that you can distinguish the two functions of focal point and coordination mechanism. Sometimes there is no coordination mechanism, for instance if your country is a small country like Slovenia, everybody knows each other it is not necessary to add structures, if people already work together and coordinate enough. So the question that would be asked is one, can the focal point do this, yes/no? If no, then maybe establish a distinct coordination mechanism. Or, maybe no mechanism is necessary because in practice coordination is already ensured. A coordination mechanism is however quite useful because it provides more than coordination. Again, it facilitates the participation of persons with disabilities, as we will see in the third part. It gives also a face to the implementation of the convention, by including all departments that are responsible for disability issues. As I said earlier it facilitates discussion at the different levels and avoids fragmented policy measures.

Now I come to the most important, or at least most difficult to achieve part, to achieve under Article 33, which is article 33(2) and provides that states shall designate or establish a framework including one or more independent mechanisms as appropriate, to promote, protect and monitor implementation of the convention. When designating or establishing such a mechanism, states shall take into account and here I give you the short name: the Paris principles. So they shall take into account the Paris principles when designating or establishing such a mechanism. Let’s have a look at this provision which actually provides everything that should be taking into account when implementation, when implementing article 33(2). It speaks about designation or establishment. So, you can, you don’t have to create something new if this is not necessary. So everything will depend on what already exists in your country, but you have of course to check out if they can play the role that we will now examine. And if not, to adapt them to make sure that they meet the requirements set by article 33(2). Again, you can have one or more independent mechanism. The purpose is to be sure that the whole mandate is covered, and there is either a possibility to share the functions because there are three functions, as you will see: promote, protect and monitor. But again to take into account federal states and states with devolved administration and to create several mechanisms that in those states will of course have to collaborate.
Here I must say that although it’s innovative, it’s not the first time we find this kind of provision in a treaty. I don’t know if you heard about it, about UPCAST, the optional protocol to the convention against torture which in article 18 provides for a similar body but with a very specific mandate: to prevent torture by visiting places of detention. And this, that provision was one of the main sources of inspiration for the drafters of the convention, and in a way part of the new human rights architectures, of the national human rights architectures, that are encouraged and developed in international treaties and that are also encouraged by the UN, by the Council of Europe. You have a kind of new actor that is actually kind of a watchdog, that is not watching outside of the garden, but inside. So, states are required to develop in their own state a bodies which are not only consultative bodies () but bodies that verify that states are respecting their international commitments. When we start with the exercise of designating or establishing an independent mechanism, we shall have two questions in mind. The first one is who? And to do what? And second question is how they will do it and can they do it? They are in function of that you can either, create a new mechanism, adapt the mechanism or in some case do nothing and just find somebody who can do it or is already doing it.

So first what, what shall it do here? And here you have all the functions, I will not go into detail , you find this in the documents, but the function is triple: promotion, protecting, protection and monitoring. Promotion is quite broad, it means awareness raising , training, education, research which can be done by dissimulating materials, organizing events, training all the people concerned or that are in contact with persons with disabilities, education in schools, outside schools, research by doing studies. It should be noted that promotion is an obligation for states under Article 8, so other actors can also and have also made the focal points to participate in promoting the rights under the convention. Protection is more sensitive and cannot be undertaken by focal points or other state actors. It concerns complaints handling, quasi-judicial procedures, amicus curiae, which means providing advice or giving an opinion to a judge who is dealing with a case that falls under the convention and this can be done both at national level in the national courts or at the international level in the case of a complaint, an individual complaint, before the CIPD committee, providing assistance, financial, legal, strategic assistance and possibly representing somebody before national courts. Finally, that’s the most important and innovative aspects of this mechanism is monitoring. Basically, the main aspect of monitoring is evaluating policies and legislation in the light of the convention and providing opinions on how to achieve compliance with it. Data collection- very important, which is linked to the possibility of creating indicators. Undertaking general enquiries and other policy makers are important issues, and also ensuring follow up of both recommendations by the independent mechanism itself and those of the CAPD committee, because once the report has been submitted to the CAPD committee, it will issue recommendations and the purpose is not that these recommendations stay on the website of the UN for four years, but that they are translated into national policies, and there, independent mechanisms have an important role. So, as you see, it is a broad catalogue of activities, it’s not always to do this all at once. You have to start somewhere. It’s not easy to establish these priorities, but all these priorities have only one purpose, is to make sure that the CAPD is complied, complied with. As I said, especially for protection and also for monitoring this is a delicate task. Providing an evaluation is sensitive. You have to meet certain requirements to make sure that you can do this in a neutral and objective way. And that’s why there is a reference to the famous Paris principles. And that’s answers how shall I undertake these tasks. And the Paris principles, besides explaining what they should do, provide for two fundamental principles: independence and pluralism. But before I go into that, just bits explanation of what the Paris principles are: these are principles that regulate so called national human rights institutions which actually play the role of independent mechanisms, not for the rights of persons with disabilities only, but all human rights. And 20 years ago they established by their own principles that all these institutions should meet and these principles have been recognized by different international documents and have now been used in the CAPD as benchmarks against which the independent mechanisms have to be evaluated. Now I just take a bit of water.

The first principle is independence. I cannot tell you that you should implement this or that article of the convention if I receive orders to say this in a particular way. I should be, how can I say, I am state funded but I still need to be independent from the different actors in the state apparatus. And to guarantee that, I should be created by law. Why? Because if I say something that doesn’t please the government, I’m sure that tomorrow I still have a job. Governmental involvement shall be limited. I shall establish my priorities, appoint my staff and define my strategy. And of course, most sensitive issues, I need funding to raise these and be sure that on 1st of January I get the funding again whatever I have said to the government about its policies. So it should be preferably established by parliament or it should be ensured that funding does not depend on what I will say to the government or parliament. So that’s the first aspect. Second, pluralism. And there I quote literally the Paris principles: “pluralism is achieved by representation or appointment of and cooperation with civil society, organizations and then you have the whole list: NGOs, trade unions, concerned social and professional organisations.” So under the Paris principles, and that’s very important, civil society is a very broad notion, and as we shall see in Article 33(3), there it only concerns persons with disabilities. Even governmental departments can be present, but in an advisory capacity. That means that if they are in the governing body that adopts opinions, chooses actions, they should be there as observers. That’s what the Paris principles say. We’ll see how you can achieve this because there is a certain overlap with article 33(3), again in the third part that will deal with civil society exclusively. These Paris principles have created more, good but also mess. It has complicated the task for many people because it is something new for most of the people, not only that, but also because principles that were applied to more, to institutions with broad mandate, were used as benchmarks for mechanisms with a particular mandate, namely to promote, protect and monitor the rights of persons with disabilities. So there are many questions, but the idea is that you have to take these Paris principles and read them in the light of the convention. Which means for instance that NGOs like you see here, should be read as DPOs, for instance. And one of the most, one of the sensitive questions is whether all the mechanisms in this framework should comply with the Paris principles. Nobody agrees on it, everybody has a version, but I think that as long as the three functions are carried out by mechanisms that are independent and pluralistic, then the goal is achieved. Other bodies may do this as well, no problem; everybody has to promote the convention. You can provide additional monitoring mechanisms, but they’re outside this framework. Because I think it‘s impossible to monitor if you’re not completely independent. So here you have it’s the Article 33(2= speaks about the framework which gives it a flexibility. You can create different bodies, one body, have one body, designate one body and adapt it. You have many possibilities. The convention does not provide for a single option. But from practice, and from, I did for the study for the UN, I identified three options which is not maybe the option, it’s not models, it’s options which can, as I will explain, be changed or combined. The first one is that I see that states appoint their national human rights institutions. And this is normal because you have to meet the Paris principles, and these Paris principles are just the guidelines for these institutions, so in a way, appointing your national human rights institution is like doing the most normal thing because they are the pedigree for this independent mechanism and often they already promote, protect and monitor the rights of persons with disabilities. Some countries have no NHRI but they can also then appoint their equality body, as did Belgium for instance, Germany appointed the German Institute for Human Rights. In the UK you have a different three national human rights institutions that have been appointed as independent mechanisms: one for the UK in general, for England the Commission on Equality and Human Rights, one in Northern Ireland and one in Scotland; the Scottish Human Rights Commission, and in addition, there is also an equality body that has been appointed in Northern Ireland. What is interesting with the Commission on Equality and Human Rights in the UK is that it has both the mandate of the national human rights institution and equality body and the same applies for instance with the Danish Institute for Human Rights. This means that, as you know maybe, under EU law states have to create equality bodies. It has already different heads and this guarantees that it will implement the full mandate, and in particular include protecting the rights of persons with disabilities in its mandate. Another option is to appoint ombudsman institutions. They are often very strong in protecting rights and in Spain this was done and also in Latvia. In some countries you have none of these institutions which can carry out the role of independent mechanism and you have to start from scratch. It can sometimes be a very good solution like happened in Austria with the Austrian monitoring body, where different representatives of the different actors I mentioned sit and decide on the working of the independent mechanism. And you have also other bodies in other states which have been appointed as well. And as you see, the rule is that there is no standard model and in most cases the different options have been combined and as you see for instance Spain is falling within option 3 and 2. You have Germany: their organization for persons with disabilities that is carrying out the role of independent mechanism, but also the Spanish ombudsman. There you find Denmark in the third option, but Denmark falls in the three, as you will see in the end of the presentation. So , what counts is that you take into account the structures that exist, make sure that the whole mandate as explained, so promotion, protection and monitoring is covered and adapt the bodies or body you appoint to make sure that it meets the requirements of independence and pluralism, as provided for in the Paris principles. It’s really a lot and if it is achieved then I can say that the goal has been reached, but changing institutions is not always an easy task. In other words, it’s not possible to import solutions. Everybody has to find his own solution and it’s an on-going process, because it’s only by doing that we know what works and what does not work.

Last but not least, civil society. Civil society in particular, persons with disabilities and their representative organisations shall be involved and participate fully in the monitoring process. The slogan “nothing about us without us”, that was repeated and stressed during the negotiation is reflected in the convention. And actually, it´s not only reflected in Article 33(3) which explicitly provides that they shall be involved in the monitoring process, but it comes, you can see it in different parts of the convention and it applies in somewhat different ways to the two previous paragraphs of article 33. Article 33(1), focal points and a coordination mechanism are implementing the convention, while this has to be done with the participation of persons with disabilities as provided by the overall principle of participation in Article 4 paragraph 3. So they shall not just on their own monitor and be involved, they should be closely associated to the work of the focal points and the coordination mechanism. Article 33(2), they have the Paris principles which provide for the representation of NGOs and DPOs. Independent mechanisms are monitoring mechanisms so the Paris principles provide for the participation which is here repeated in Article 33(3). So we will see how this can be realized, both under the Paris principles and under Articles 33(3). And, you can also take article 33(3) independently. It’s a freestanding provision, so this means that, if persons with disabilities want to have a say in the monitoring, they should also be able to do so outside existing structures or channels provided for them. They should be () to do their own monitoring activities. This gives to something which you can call the multi-level involvement. When I show this slide I’m afraid that people think that’s too much. Especially people from DPOs say that we cannot be everywhere at the same place and at the same time. But actually one of the best ways to realize participation and have an input in policy making is often to have different channels through which you can influence policy making or decision making. So, as I said, article 33 is a freestanding provision, but participation applies to all the bodies set under Article 33. For the focal point or the coordination mechanism, I think that in several states they either cooperate with persons with disabilities and their representative organisations, or are represented in the coordination mechanism like in France, with the Comité Interministériel du Handicap, I think that’s the name, or with the Spanish disability council. So one of the ways to involve persons with disabilities is to have them included in the coordination mechanism. Another issue which happens, which occurs in many countries is advisory boards, and other countries, () Austria, Germany, the Czech Republic, Slovenia, Latvia, Belgium have so called advisory boards and in Belgium we have even advisory boards at the regional level. So the purpose of these advisory boards is to provide an input in policy making, give advice, they are consultative bodies, to the focal point. Sometimes these bodies have made confusion and even in my own country, between Article 33(1) and article 33(2) because sometimes these bodies have been appointed independent mechanism. And that’s where there have been some problems, some overlap, because although they play in a way the role of independent mechanism, when they provide advice, because that’s what the independent mechanisms do as well, they provide recommendations, monitoring is not always covered, and often governmental departments are represented as well. In the independent mechanism, and there you have to dual leg, if I may say, of the Paris principles on the one hand and Article 33(3) on the other hand, you have different ways of involving persons with disabilities in this independent mechanisms, like in Austria, the set, there are representatives of the different actors mentioned in the Paris principles. In Italy you have a council where they are represented. In Spain, you have an organization () where all the organizations of persons with disabilities are represented. So that’s representation. This is possible either when you create a new organization or where you have a body where persons with disabilities are already involved for a long time. But in other countries, mainly those who have national human rights institutions, you have bodies that deal with human rights in general, and there they can provide for the appointment of a person with a disability or a representative or organisations of persons with disabilities as happened in Germany and the UK. Another way is to provide for cooperation. In Belgium we have appointed an equality body, but in that equality body we have created a steering committee which gives an oversight of the work of the independent mechanism where DPOs are represented. Or you can institutionalise or formalize either cooperation like in Germany where you have regular meetings which always take place between the independent mechanism, the German Institute for Human Rights, and disabled people’s organisations. And, as I said earlier, it’s also important to make sure that civil society organisations, DPOs, persons with disability organisations, can act without existing structures and have the capacity by drafting shadow reports for instance to participate in the monitoring process on their own. Here, these are two examples. I´m sure that you have also many in the country of, your countries in mind and we can discuss this after the presentation. I picked out two, and I will also discuss another experience, that of my own country, after my presentation, before the workshop. I point to these two cases because they point to some interesting aspects which I think give some general lessons about article 33. In Denmark, as many countries, the ministry of social affairs has been appointed focal point and there is an interministerial committee of civil servants on disability matters which works closely with the DPOs. It’s a very classic model of implementing article 33(1). Interestingly, for Article 33(2), Denmark has appointed three bodies: its NHRI, its national human rights institution, which is actually also its equality body, which ensures to a certain extent that the mandate of promoting, protection and monitoring is fully covered. Although, it is less strong on protection than on the other functions. Since the Danish institute for human rights has been established for promoting and protecting human rights in general, it had no specific links with persons with disabilities, and that’s why the Danish disability council was appointed as well, to enhance the participation of persons with disabilities in the framework. Last but not least, the parliamentary ombudsman is also involved to strengthen the protection within the framework. So, I don’t say that you cannot achieve the same with one body, but one way of doing this is to appoint several bodies, change them: some people of the Danish disability council sit on the board of the Danish institute for human rights. Change them, and ensure coordination between them. It’s one way of doing things. In Slovenia they are for instance, you have the ministry of labour, family and social affairs who is the focal point. You have no coordination mechanism but here it’s maybe not necessary to add structures because the country is not a very big country. And then you have the council for persons with disabilities of Slovenia. And there you have this (I hope there is nobody from Slovenia here, maybe yes? We can discuss about it) but there you have a confusion between article 33(2) and (1) because this council is more an advisory body, where DPOs and also institutions dealing with disability issues are present, and also representatives of the different ministries of Slovenia, so 1/3, 1/3, 1/3: One-third DPOs, one third institutions dealing with disability issues and one third of ministries, which is not in total conformity with the Paris principles, because they provide that governmental departments can only be present with an advisory capacity. And as I said earlier, it’s more a consultative body and the independent mechanism have not only the function to promote by issuing studies and providing advice, but also to protect and also to monitor, so it’s not true that the whole mandate is sufficiently covered. After this presentation I will explain more about my own country, where I have been involved in setting up this body so I will more speak about the process and the obstacles than about the outcome.

Now I will come to the most difficult part of my story. The last part is really not so easy because it’s difficult to change institutions and to make sure that they are independent, pluralistic. It’s something very new, but there is another issue: it is that, as you know, the EU has ratified or concluded a convention. This has led to a certain difficulty regarding article 33(2) and 33 in general. Why?

First of all, the European Union, as you know, is a supra-national organization. It has limited and conferred powers. And this implies that it is acting in a field in which both the EU and member states have competences. It’s a mixed agreement the COPD. All the aspects dealt with under the CAPD do not fall under the exclusive competence of the European Union institutions. They fall also on aspects on which competences between the EU and member states are shared. But the most, the biggest problem is, as indicated in the title of Article 33: it deals with national implementation and monitoring. How do you apply a provision dealing with the national question to a supra-national organization? My theory is that they simply didn’t think about it when they concluded the convention, and it was maybe better not to think too much about it, because in a way it let the fox in the hen house. “Le loup dans la bergerie” as we would say in French, because it has created difficulties, especially regarding these Paris principles which have been created for national human rights institutions. You don’t have national human rights institutions at the EU level. So I can say that I have the feeling that they do not like too much Article 33, and especially 33(2), and I have to be careful about what I´m saying because I feel like it’s very suspicious and very dangerous to change institutions and it doesn’t please everybody. So I first should start with one particular document which is the code of conduct. I´m sure you have heard about it. It explains how competences will be shared. As I said, the convention contains a field in which both the EU and member states have competences so it has to be established who is competent for what. The arrangement for Article 33 had also to be provided, and the way in which this was to be solved was also to be indicated, and this is what was done in the code of conduct, adopted before the CAPD by the EU. As far as the focal point is concerned, it’s the commission who is appointed. If you have a disability you need to, as most of you know, you need the DG justice and this can be applauded actually, because this unit has moved from the DG employment, social affairs and inclusion to the DG justice and most of the time focal points are within the ministry of social affairs which is not as such bad, but from the human rights perspective, having also, or having the focal point in the ministry of justice has advantages because it´s from a rights based, it has a more a rights based approach to disability issues. It’s not clear who is the coordination mechanism. If it’s the commission itself, that, I think will be cleared up later on, but it appears that the focal points place is what it was for the moment. Another body that should be mentioned is the disability body high level group, maybe some of you are part of it or represent your country there, which has been established long ago, before direct application of the conventions. They have a structure which exists and which works already for a long time, and is composed of national experts on disability issues. What is sure is that it will be involved in the state reports; I mean the state report of the EU, because the input of the national experts will also be necessary to establish this report. And this leads me to another question, is that, when you speak about coordination at the EU level, do you speak about coordination between the different DGs or also coordination between EU level and national level. And those coordinations fall under Article 33(1), as well, or is this just something else, a matter of cooperation which falls rather under EU law? I have no answer to the question. Here we come to the most tricky: the independent mechanism. And what has been tricky in particular is this monitoring aspect, which does not really exist before the convention at the EU level. And as I said also the Paris principles which provide criteria for national bodies. The question is also: who has to be monitoring? Whose action is to be monitored? Those of the EU institutions, that’s obvious, but also compliance by member states with the convention when implementing EU law? Yes or no, and if yes, who has to do this? So, as I said, to build a framework you have to look around, see what you have, make sure that all the functions are covered and, if necessary, adapt the body to make them in compliance with the Paris principles. That’s the method. The EU, the commission did the exercise and that’s the result. The commission is responsible for promotion, protection of compliance with the convention by member states when implementing the convention, and monitoring also of member states. The ombudsman has the task to promote, and to monitor EU institutions. The EU fundamental rights agency has again promotion under its functions and data collection and indicators development.

In the beginning you had not the European disability forum and during the negotiations during the creation of this framework it was added, and its task is now to promote and to protect the implementation of the convention by EU institutions. And lastly, you have the European parliament petition committee which is responsible for protecting both vis à vis EU institutions and member states. So everybody is doing a bit of everything, you see this, that bodies are responsible for promoting, some for protection, some for monitoring. It’s difficult to evaluate this. There is a lot of discussion. Some people say that there are strange things. If you have read () like the commission is in both article 33(1) and 33(2). That’s one aspect, is this possible? Is it normal? Is its purpose to monitor also state action, or only EU action? Who is monitoring the compliance with the convention by EU institutions. There are many questions; I will not go into detail. They are very sensitive, that is the least I can say, but yeah. It will start to work soon, and maybe make an evaluation then. But at first sight there are certain problems I think. This leads me to my conclusion.

This article I think is very positive because it’s the most complete monitoring system ever in an international human rights treaty covering the implementation by state actors, by governmental departments, monitoring by independent mechanisms and participation of civil society. Will it ensure the implementation of the convention overnight? No. But it might accelerate the process of implementing the convention. So the purpose of this Article 33 is that states do not just ratify the convention and then say OK, now we have done it, it’s over. The purpose is to translate it into national policies and legislation. But the even most important things when these mechanisms are established is that (I drafted this before Andre’s presentation this morning), it’s not the destination. It’s not one and for all established. It’s like legislation: it’s an on-going process, and the importance is to evaluate it, review it and continuously improve it on the basis of experience. It’s not a static question, but it should be dynamic and evolve.

Thank you very much.