judicial

2012 Doha Shopping Mall Fire – 5 Jail Sentences for Negligence !

2013-07-19:  Once upon a time, back in 1979, when I was flying to Sydney, Australia … one of the scheduled stops on the route was Bahrain and the New International Airport Terminal there.  In spite of the flashy and expensive building, I noticed how obsolete looking (and functioning) were the fittings in the toilet area.  Could it possibly be, I wondered, that the Arab Gulf Region was being supplied with shoddy, second rate construction products from you-know-where ??

Fast forward to a few years ago … in Riyadh, Saudi Arabia … and I encountered one building – the same building – where one half had a 110 Volt electrical supply, and the other half had a 220 Volt supply.  Amazing !?!   Two different consultants, or contractors, or whatever … one from North America, and the other from Europe … with the Saudis in the middle, having to tolerate this nonsense !!

'Villaggio' Shopping Mall Fire (Doha City in Qatar) - 28 May 2012

Photograph taken by Brian Candy. 2012-05-28. Click to enlarge.

DOHA City Fire – Monday, 28 May 2012 …

I distinctly remember that some Irish people who had actually witnessed the Fatal Fire Incident at the ‘Villaggio’ Shopping Mall (www.villaggioqatar.com), in Doha (capital city of Qatar) … were afterwards talking to Mr. Joe Duffy, on the lunchtime ‘Liveline’ Programme (Ireland’s RTE Radio 1 Station).

19 People were killed on that Monday morning in Doha … 13 Children, 4 Teachers, and 2 Firefighters.  Many more were injured from inhaling toxic smoke.

According to various news reports … an electrical fire, caused by a light fitting (which was not ‘fit for its intended use’) in a Nike Shop, engulfed a section of the shopping centre … spreading to the Gympanzee Drop-and-Shop Childcare Centre on the first floor.

The staircase leading to the Childcare Centre collapsed … trapping victims inside.  One of their fire exits led directly to the seat of the fire, while the other fire exit was locked from the outside.

In addition, the ‘Villaggio’ – a luxury mock-Italian shopping centre (one of the most popular in the country !) where customers could ride around Venetian-style Canals, in Venetian-style Gondolas – was later found to be in breach of legislation because Essential Fire Safety Measures were either inadequate or missing, at the time of the fire: the fire sprinkler system was not working properly; inflammable paint and decorative mouldings were used in the construction; the building did not have effective fire evacuation procedures in place; the building was not equipped with proper fire-fighting equipment; and the fire alarm wasn’t loud enough.

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A Qatari Court – Thursday, 20 June 2013 …

The recent outcome from this Qatari Court Case has been nagging at me ever since I saw the news on Al Jazeera (English) … www.aljazeera.com

Only Some of the People having Control / Responsibility were convicted for the Negligence which resulted in the 19 Deaths, and many injuries, at the 2012 ‘Villaggio’ Fatal Fire Incident.

Four people received six-year jail terms, while the fifth received a five-year term.  All five are currently out on appeal, and will remain out of custody until the appeals process is completed.

Those convicted include Two Co-Owners of the Childcare Centre, and Members of the Mall’s Management Team.  Sheikh Ali Bin Jassim Al Thani, one of the co-owners, is also currently Qatar’s Ambassador to Belgium … while Iman Al-Kuwari, the other co-owner, is the daughter of Qatar’s Culture Minister.

Two other defendants, including the Mall’s Assistant Manager and Head of Security, were cleared of all charges.

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Other People having Control / Responsibility were also Careless, Incompetent, and Negligent …

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U.N. Disability Rights Convention – World Map of States Parties

2013-03-14:   The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was adopted on 13 December 2006 at the U.N. Headquarters Building in New York.  The Convention was opened for signature on 30 March 2007, when there were 82 Signatories to the Convention, 44 Signatories to its Optional Protocol, and 1 Ratification.  Historically, this is the highest number of signatories to a U.N. Convention on its opening day.  It is the first comprehensive Human Rights Treaty of the 21st Century.  It is also the first Human Rights Convention to be open for signature by regional integration organizations, e.g. the European Union (EU).  The Convention entered into force, as an International Legal Instrument, on 3 May 2008.

According to the United Nations … this Convention is intended as a Human Rights Instrument with an explicit social development dimension.  It adopts a broad categorization of persons with disabilities, and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms.  It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.

I say … that most of the rights specified in this Convention are already contained in other long-established International Human Rights Instruments, e.g. rights to shelter, free movement, education, employment, voting, etc.  The critical issue for people with activity limitations has always been, and remains to this day … Lack of Accessibility … which prevents them from effectively and independently exercising their basic rights and fundamental freedoms as individual human beings.

Substantively … this is a United Nations Accessibility for All Rights Convention.

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The World Map below illustrates the situation, in October 2012, with regard to the very large numbers of States Parties to the U.N. Convention on the Rights of Persons with Disabilities (CRPD)

  • 154 Signatories to the Convention ;
  • 90 Signatories to the Optional Protocol ;
  • 124 Ratifications and Accessions to the Convention ;
  • 74 Ratifications and Accessions to the Optional Protocol.

Using the Map, it is simple to identify those ‘other’ countries (nudge-nudge-wink-wink) …

U.N. Disability Rights Convention Map - World Ratifications (October 2012)

Image size 2.64 MB – Click to enlarge.

Since October 2012 …

  • Singapore signed the Convention on 30 November 2012
  • Cambodia ratified the Convention on 20 December 2012
  • Albania ratified the Convention on 11 February 2013
  • Barbados ratified the Convention on 27 February 2013

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HOWEVER … far too many individuals and organizations seem to be content to just settle back and end this good news story at Ratification.  They fail to understand that this is only the beginning !

The real challenge ahead will be to ensure that the Convention is Properly Implemented.

The Target before every State Party is … Effective Accessibility for All !!

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Sustainable Design International Ltd. – Our Practice Philosophy

2012-10-25:   The Practice Philosophy of Sustainable Design International Ltd. is an issue which has occupied my mind greatly during this past summer … as I asked myself some difficult questions …

What has really been happening to our planet since 1992 … and earlier, since 1972 ?

Where is SDI now ?

Are we on the same track … the right track ?

Where are we going in the short to medium-term future ?

Architecture … is practice as a separate design disciple now obsolete ?

Fire Engineering … can it be dragged, screaming, from the proverbial ‘caves’ … and transformed to respond creatively to the safety and security requirements of a complex built environment ?

Sustainability … what impact does this intricate, open, dynamic and still evolving concept have … should it have … on the provision of conventional Architectural and Fire Engineering Services ?

‘Green’ … is this marketing ploy helpful … or an annoying obstacle … to effective implementation of Sustainable Development ?

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WBCSD's Vision 2050 Poster (2010)World Business Council for Sustainable Development (WBCSD)

Vision 2050: ‘The New Agenda for Business’ (2010)

Click the Link Above to read and/or download a PDF File (3.73 Mb)

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Colour image showing the Tile Page of 'Keeping Track of Our Changing Environment: From Rio to Rio+20 (1992-2012)' ... published in 2011 by the Division of Early Warning and Assessment (DEWA), United Nations Environment Programme (UNEP), Nairobi. Click to enlarge.

Colour image showing the Tile Page of ‘Keeping Track of Our Changing Environment: From Rio to Rio+20 (1992-2012)’ … published in 2011 by the Division of Early Warning and Assessment (DEWA), United Nations Environment Programme (UNEP), Nairobi. Click to enlarge.

2011 – United Nations Environment Programme

Keeping Track of Our Changing Environment: From Rio to Rio+20 (1992-2012)

Click the Link Above to read and/or download a PDF File (4.83 Mb)

Extract from ‘Foreword’ …

This publication serves as a timely update on what has occurred since the Earth Summit of 1992 and is part of the wider Global Environment Outlook-5 (GEO-5) preparations that will lead to the release of the landmark GEO-5 report in May 2012.  It underlines how in just twenty years, the world has changed more than most of us could ever have imagined – geopolitically, economically, socially and environmentally.  Very few individuals outside academic and research communities envisaged the rapid pace of change or foresaw developments such as the phenomenal growth in information and communication technologies, ever-accelerating globalization, private sector investments across the world, and the rapid economic rise of a number of ‘developing’ countries.  Many rapid changes have also taken place in our environment, from the accumulating evidence of climate change and its very visible impacts on our planet, to biodiversity loss and species extinctions, further degradation of land surfaces and the deteriorating quality of oceans.  Certainly, there have been some improvements in the environmental realm, such as the significant reduction in ozone-depleting chemicals and the emergence of renewable energy sources, new investments into which totalled more than $200 thousand million in 2010.  But in too many areas, the environmental dials continue to head into the red.

Achim Steiner, United Nations Under-Secretary-General, and Executive Director, United Nations Environment Programme (UNEP), Nairobi.

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Sustainable Design International Ltd. – Ireland, Italy & Turkey

[ http://www.sustainable-design.ie/ ] 

SDI Practice Philosophy Explained (October 2012)

Click the Link Above to read and/or download a PDF File (670 Kb)

SDI  is a professional, trans-disciplinary and collaborative design, architectural, fire engineering, research, and consultancy practice … specialists in the theory and practical implementation of a Sustainable Human Environment (social – built – virtual – economic).

WE are committed to … the protection of society, the best interests of our clients, and ‘user’ welfare … not just cost-effective compliance with the Minimal Health & Safety Objectives in Legislation & Codes !

Sustainability … continues to fundamentally transform our Architectural, Fire Engineering & Consultancy Practice.

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2012 Sustainable Society Index - World View at a Glance

Colour image showing the Sustainable Society Index World View for 2012 … presenting the world average scores for 21 Sustainability Performance Indicators. The inner circle of the spider’s web represents a score of 1, meaning no sustainability at all, while the outer ring represents a perfect score of 10 or full sustainability. Click to enlarge.

Sustainable Society Foundation – The Netherlands

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Colour image showing the Tile Page of 'Measuring Progress: Environmental Goals & Gaps' ... published in 2012 by the Division of Early Warning and Assessment (DEWA), United Nations Environment Programme (UNEP), Nairobi. Click to enlarge.

Colour image showing the Tile Page of ‘Measuring Progress: Environmental Goals & Gaps’ … published in 2012 by the Division of Early Warning and Assessment (DEWA), United Nations Environment Programme (UNEP), Nairobi. Click to enlarge.

2012 – United Nations Environment Programme

Measuring Progress: Environmental Goals & Gaps

Click the Link Above to read and/or download a PDF File (4.72 Mb)

‘Foreword’ …

If we measured the world’s response to environmental challenges solely by the number of treaties and agreements that have been adopted, then the situation looks impressive.  Over 500 international environmental agreements have been concluded since 1972, the year of the Stockholm Conference and the establishment of the United Nations Environment Programme (UNEP).

These include landmark conventions on issues such as trade in endangered species, hazardous wastes, climate change, biological diversity and desertification.  Collectively, these reflect an extraordinary effort to install the policies, aims and desires of countries worldwide to achieve sustainable development.

Yet despite the impressive number of legal texts and many good intentions, real progress in solving the environmental challenges themselves has been much less comprehensive, a point clearly underlined in the Global Environment Outlook-5 (GEO-5), for which this report ‘Measuring Progress: Environmental Goals and Gaps’ and a previous publication ‘Keeping Track of Our Changing Environment: From Rio to Rio+20’ are companion products leading up to Rio+20.

This report outlines findings from a UNEP study that, with support from the Government of Switzerland, has catalogued and analyzed existing ‘Global Environmental Goals’ contained in the international agreements and conventions.  It asks the fundamental question as to why the aims and goals of these policy instruments have often fallen far short of their original ambition and intentions.  One possible reason is that many of the goals are simply not specific enough;  the few goals that are specific and measurable appear to have a much better record of success.

These include goals to phase out lead in gasoline, ozone-depleting substances (ODS) and certain persistent organic pollutants (POP’s), specific Millennium Development Goal targets calling to halve the number of people without access to safe drinking water and improved sanitation, and targets to increase the number and extent of protected areas.  Indeed, even when measurable targets have been set but not actually met, they have usually led to positive change and often to significant change.

The vast majority of goals, however, are found to be ‘aspirational’ in nature.  They lack specific targets, which generate obvious difficulties in measuring progress towards them.  In addition, many aspirational goals are not supported by adequate data that can be used to measure progress, global freshwater quality being one stark example.

It is clear that if agreements and conventions are to achieve their intended purpose, the international community needs to consider specific and measurable goals when designing such treaties, while organizing the required data gathering and putting in place proper tracking systems from the outset.

A set of Sustainable Development Goals, as proposed by the UN Secretary-General’s High-Level Panel on Sustainability, could be an excellent opportunity and starting point to improve this situation while representing another positive outcome from Rio+20, two decades after the Rio Earth Summit of 1992 and four decades after the Stockholm Conference.

Achim Steiner, United Nations Under-Secretary-General, and Executive Director, United Nations Environment Programme (UNEP), Nairobi.

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Public Procurement & ‘Design for All’ – It’s Crunch Time, Folks !

2011-10-12 & 2011-10-17:  Close your eyes … and imagine, for a split second, the value and material extent of all the Public Procurement Contracts being tendered for and awarded each week, throughout Europe.  ‘Enormous’ is the only appropriate word which must spring to your mind !   If you don’t believe me, check out the statistics for yourself !!   And that value is going to keep increasing !!!

The European Commission has recently proposed that suitable instruments be developed which will permit the operation of the Accessibility / Design for All Requirements in EU Public Procurement Directives to commence, with full effect.  This process is proving to be problematic … and it is certainly not as open and transparent as it should be.

Leaving aside the utilities sectors (water, energy, transport and postal services) … recall that EU Directive 2004/18/EC of the European Parliament and of the Council, of 31 March 2004, on the Co-Ordination of Procedures for the Award of Public Works Contracts, Public Supply Contracts and Public Service Contracts had to be implemented, at national level in all of the EU Member States, no later than 31 January 2006.  This Directive was amended, in a minor way, by Directives 2005/51/EC and 2005/75/EC.  In spite of these amendments, 31 January 2006 remained the target date for national implementation.

[ Ireland’s national implementing legislation … European Communities (Award of Public Authorities’ Contracts) Regulations 2006 … came into operation on 22 June 2006.]

In addition, each Member State had to ensure that Directive 2004/18/EC was properly implemented by using effective, available and transparent Monitoring Mechanisms.

With regard to specific rules governing specifications and contract documents … Article 23.1 of Directive 2004/18/EC stated, and still does state …

‘ The technical specifications as defined in point 1 of Annex VI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents.  Whenever possible these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users.’

Not the strongest possible language to encourage ‘accessibility’ … there’s nothing quite like a shall to concentrate minds !

[ However, in Ireland … with regard to the same specific rules governing specifications and contract documents … Section 23 (2) of the European Communities (Award of Public Authorities’ Contracts) Regulations 2006 states …

‘ In awarding a public contract, a contracting authority shall, as far as practicable, ensure that the technical specifications for the contract take account of the need to prescribe accessibility criteria for all persons who are likely to use the relevant works, products or service, particularly those who have disabilities.’ ]

As already discussed in my post, dated 2 November 2010 … many people in the European Union Institutions would prefer to steer completely away from the Social Aspects of Sustainable Human and Social Development … fuzzy areas, not capable of easy quantification … leaving small, peripheral groups in the Institutions (neither well connected to the mainstream, nor fully aware of the ‘ins’ and ‘outs’ of that mainstream) to look after the Social Aspects.

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Public Procurement in the European Union (EU)

The Award of Public Works Contracts, Public Supply Contracts and Public Service Contracts concluded in the EU Member States on behalf of State, Regional or Local Authorities and other bodies governed by public law entities, is subject to the respect of Principles enshrined in the EU Treaties and, in particular, to …

  • the principle of freedom of movement of goods ;
  • the principle of freedom of establishment ;
  • the principle of freedom to provide services ;   and
  • the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency.

For Public Contracts Above A Certain Value … it has been deemed necessary to draw up provisions of Community Co-Ordination of National Procedures for the award of such contracts, which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition.

– Adapted from Preamble Paragraph #2, EU Directive 2004/18/EC

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Is Europe Serious about Implementing the Public Procurement Accessibility / Design for All Requirements ?

Before looking at how Accessibility / Design for All is being handled within the fast evolving European Public Procurement Framework … it is sobering to compare and contrast how DG Environment (ENV), in the European Commission, is promoting and actively supporting Green Public Procurement, i.e. Public Procurement which is environment-friendly … http://ec.europa.eu/environment/gpp/index_en.htm … no messing about there !

If we (speaking as a European) are serious, therefore, about the ‘real’ implementation of Accessibility for All / Design for All / Inclusive Design / Universal Design / Barrier-Free Design in the Built Environment … it is of fundamental importance that an easily assimilated Standard (as defined in Paragraph #2, ANNEX VI of Directive 2004/18/EC) be produced ‘on the table’ for reference by Public Contracting Authorities … NOW !!!

Built Environment:  Anywhere there is, or has been, a man-made or wrought (worked) intervention in the natural environment, e.g. cities, towns, villages, rural settlements, service utilities, transport systems, roads, bridges, tunnels, and cultivated lands, lakes, rivers, coasts, and seas, etc … including the Virtual Environment.

Virtual Environment:  A designed environment, electronically generated from within the built environment, which may have the appearance, form, functionality and impact – to the  person perceiving and actually experiencing it – of a real, imagined and/or utopian world.

The Built and Virtual Environments continue to merge into a new Augmented Reality.

A comprehensive document capable of answering a major portion of Europe’s current needs in this area is on the verge of being published as a full International Standard … ISO 21542: ‘Building Construction – Accessibility & Usability of the Built Environment’.  And … as is the case with hundreds of ISO Standards in other sectors, this standard could easily be approved by CEN, one of Europe’s Standards Organisations, as an EN (European Standard) … under the Vienna Agreement on Technical Co-Operation between ISO and CEN, which was confirmed by both organizations in 2001 … and the period to practical application of ISO 21542 on the ground would be relatively swift.

Every delay represents not only a precious opportunity missed to improve the Accessibility of the Built Environment … but another blatant Denial of Human and Social Rights to vulnerable groups of people in all our communities !

Yes, this document was badly managed at the beginning of its very long gestation period, and its contents were a bit of a mess for the first few years … AND European countries were indignant, then, at the prospect of it becoming a European Standard.  However, walking around any major city in any country in Europe today, and witnessing the universally appalling and miserable efforts at Accessibility Implementation … you would have to be outraged at the level of hypocrisy and blatant self-delusion practiced by Europeans !

BUT NOW … ISO FDIS 21542 … the Final Draft of the International Standard which was issued for voting, beginning on 22 September 2011 … is a very respectable looking document altogether.  It makes important statements about ‘creating a sustainable built environment which is accessible’.  Its purpose is ‘to define how the built environment should be designed, constructed and managed to enable people to approach, enter, use, egress from and evacuate a building independently, in an equitable and dignified manner and to the greatest extent possible’ … ‘principles which are supported by Preamble (g) and Articles 9, 10 and 11 of the United Nations Convention on the Rights of Persons with Disabilities’.  I could go on, and on … but I will resist the temptation, since I was heavily involved in the development of this ISO Standard !

The point is … there is no longer any reason for European countries to complain about the inadequacy of this International Standard … and it should be the preferred instrument of choice to facilitate the immediate operation of the Accessibility / Design for All Requirements in EU Public Procurement Directive 2004/18/EC.

Unfortunately, this may not happen !

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Years too late, near the end of 2007 … DG Employment, Social Affairs & Inclusion (EMPL), in the European Commission, issued the following Mandate …

M/420 EN – Brussels, 21 December 2007

Standardization Mandate 420 to CEN, CENELEC and ETSI in Support of European Accessibility Requirements for Public Procurement in the Built Environment

Click the Link Above to read and/or download PDF File (67.4 kb)

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This Mandate covers 2 Phases of Work.  Phase I deals with compiling an inventory of existing accessibility-related standards and an analysis of any gaps … as well as with issues of accessibility implementation monitoring and conformity assessment.  Phase II is the actual accessibility standard(s) development phase.

However … Mandate M/420 EN is a flawed document, and it should have received much closer scrutiny from the European Standards Organizations named in the document title … before any work in Phase I commenced.  Failing that … the first work item on the Phase I Agenda should certainly have been a critical examination of the mandate.

In a post, dated 15 January 2011 … I wrote …

The European Union’s Accessibility Strategy, related Policies and Programmes … and the monitoring, targeting and independent verification of Accessibility Implementation … all require a radical overhaul !

All those Officials in the European Commission who are involved, in any way, shape or form, with Accessibility of the ‘Human Environment’ would do well to RE-READ AND MEDITATE DEEPLY on the contents of the 2003 Final Report from the Group of Accessibility Experts, which was established by the European Commission itself … “

The Final Report from the 2003 EU Group of Accessibility Experts, of which I was a Member, can be downloaded towards the end of that post.

The Officials who drafted Commission Mandate M/420 EN paid little, if any, attention to that 2003 Expert Group Report.

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At the end of Phase I … in response to the European Commission’s Mandate M/420 EN … a long, rambling CEN Joint Report (document ref. CEN/BT/WG 207 N 29) of 425 Pages was issued, dated 8 August 2011, for general discussion and comment.

Some Comments on the CEN Joint Report …

1.  Terminology

CEN Joint Report – CEN/BT/WG 207 N 29

3.4     Conclusions View, Findings and Recommendations

3.4.1  Overview

Terms such as ‘procurement’, ‘inclusion’, ‘accessibility’ and ‘compliance’ are difficult to define precisely, and they are often not fully understood by those responsible for managing or providing the products or environments people use.  They are also not readily understood by those administrating and triggering the procurement process.

It is strange, therefore … and unacceptable … that this Report does not attempt to reduce and/or remove the ambiguity surrounding these terms … by providing a clear definition, with a supporting explanatory text, for each of the terms listed above.

I’m not even sure that the large numbers of people who helped to draft the CEN Joint Report fully understand those terms !

Most importantly, the Report is not at all precise about … and in fact appears to be completely confused by … the clear distinction which must be made between ‘accessibility’ and ‘access’.

2.  ‘Accessibility’ & UN CRPD

Accessibility does not begin and end with Article 9 of the United Nations 2006 Convention on the Rights of Persons with Disabilities (CRPD) !!!   See my post, dated 15 January 2011 … and #6 below.

3.  EU Ratification of UN CRPD

The full implications arising from European Union (EU) Ratification, on 23 December 2010, of the United Nations 2006 Convention on the Rights of Persons with Disabilities (CRPD) … for both EU Institutions, and the EU Member States (whether or not they have individually ratified the UN Convention) … have not been properly examined in the CEN Joint Report.

See my post, dated 5 February 2011 .

4.  Mainstreaming ‘Accessibility’

For the majority of people involved in the spatial planning, design and development of the European Built Environment, Accessibility is all about transport issues … for example, how far a proposed new building is from a transportation node.

We are communicating such a confused message (is it Accessibility for All, Design for All, Inclusive Design, Universal Design, or Barrier-Free Design ?) … that many policy and decision makers just could not be bothered.  And who, in Europe, is really concerned with the quality of Accessibility Implementation ???

In addition … the CEN Joint Report neglected to deal adequately … or at all … with a major body of EU Legislation which has been implemented at national level, in the Member States, many years ago … Safety at Work Legislation !   All of the EU Directives require that workplaces be accessible.  Yet, I know for a fact that, in Ireland, the Health & Safety Authority (HSA) is doing absolutely nothing to check whether this requirement is being complied with or not.

A Sustainable Built Environment is Accessible for All !   So many different types of International/European/National Legislation mandate that the Built Environment shall be Accessible for All !!   Good Design demands that the Built Environment is Accessible for All !!!

So why is Accessibility not being properly integrated into the operation of Environmental Impact Assessment (EIA) Legislation ?

Environmental Impact:  Any effect caused by a given activity on the environment, including human health, safety and welfare, flora, fauna, soil, air, water, and especially representative samples of natural ecosystems, climate, landscape and historical monuments or other physical structures, or the interactions among these factors; it also includes effects on accessibility, cultural heritage or socio-economic conditions resulting from alterations to those factors.

No case need be made for the integration of Accessibility into Sustainability Impact Assessment (SIA) … it self-evidently must be !

Sustainability Impact Assessment:  A continual evaluation and optimization process – informing initial decision-making, or design, and shaping activity/product/service realization, useful life and termination, or final disposal – of the interrelated positive and negative social, environmental, economic, institutional, political and legal impacts on balanced and equitable implementation of Sustainable Human and Social Development.

5.  What Is The Overriding European Social Priority ?

The overriding European Social Priority is to commence operation, with full effect, of the Accessibility / Design for All Requirements within the fast evolving European Public Procurement Framework … as quickly as possible.

Do we have to wait another 2 or 3 years, at least, for the production of an ‘acceptable’ European Accessibility Standard ??   Instead, why not approve ISO 21542 as the European Standard when it is published as a full standard … which will be very soon ?   ISO 21542 is already being used as the benchmark in the CEN Joint Report !

AND … do we have to wait, for who knows how long … before Effective Monitoring Procedures … and Independent Verification Procedures … are put in place at European and National/Regional/Local Levels ???

Quality of European Accessibility Implementation … is critical !

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2011-10-17 …

6.  Post UN CRPD – A More Demanding Scope & Quality of Implementation

Not unexpected … but it has still been a most enlightening experience to read the recent UN CRPD Committee Report on Spain … selected extracts from which are reproduced below.  The language used by the Committee is strong and direct … finally !

This is not a good report and, in places, it makes for unpleasant reading … a concrete example of the ‘hypocrisy and blatant self-delusion practiced by Europeans’, which I talked about earlier.

In accordance with Article 36.3 of the UN Convention on the Rights of Persons with Disabilities (CRPD) … the UN Secretary-General will be making this Report available to all States Parties.

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United Nations Committee on the Rights of Persons with Disabilities

Sixth Session – 19 to 23 September 2011

Concluding Observations on Initial Report of Spain

(Article 35 of UN CRPD)

The Committee considered the initial report of Spain (CRPD/C/ESP/1) at its 56th and 57th meetings, held on 20 September 2011, and adopted the following concluding observations at its 62nd meeting, held on 23 September 2011.

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III.  Principal Areas of Concern & Recommendations

A.  General Principles & Obligations (Articles 1 & 4)

11.  The Committee takes note of the adoption of Act 26/2011 which introduces the concept of ‘person with disabilities’ as defined in the Convention and expands the protection of persons with disabilities.  However, it is concerned that not all persons with disabilities are covered by the law.

12.  The Committee urges the State Party to ensure that all persons with disabilities enjoy protection against discrimination and have access to equal opportunities irrespective of their level of disability.

13.  The Committee welcomes Act 49/2007, dated 26 December 2007, establishing the Permanent Specialized Office to deal with offences and sanctions in equal opportunities, non-discrimination and universal accessibility by persons with disabilities.  However, it is concerned by the slow development and lack of promotion of this arbitration system at the regional government level; by the lack of information on the number of sanctions submitted and resolved; and by the failure of the State Party to report on actions undertaken to implement this law.  The Committee is concerned about the overall effectiveness of the system.

14.  The Committee recommends that the State Party raise awareness among persons with disabilities about the system of arbitration; increase the level of free legal aid; and ensure the regulation of offences and sanctions at the regional government level.

15.  The Committee regrets the lack of information on the meaningful participation of persons with disabilities and their representative organisations at the regional level in designing, and evaluating the implementation of legislation, policy and decision-making processes; and the participation of children with disabilities at all levels.

16.  The Committee recommends that the State Party take specific measures to: ensure the active participation of persons with disabilities in public decision-making processes at the regional level; and to include children with disabilities at all levels.

17.  The Committee takes note of Act 2/2010 of 3 March 2010 on sexual and reproductive health decriminalizing voluntary termination of pregnancy, allowing  pregnancy to be terminated up to 14 weeks and including two specific cases in which abortion is allowed for longer time limits due to the fact that the foetus has a disability:  until 22 weeks of gestation, provided there is ‘a risk of serious anomalies in the foetus’, and beyond week 22 when, inter alia, ‘an extremely serious and incurable illness is detected in the foetus’.  It also notes the explanations provided by the State Party for maintaining this distinction.

18.  The Committee recommends that the State Party abolish the distinction made in Act 2/2010 in the period allowed under law within which a pregnancy can be terminated, based solely on disability.

B. Specific Rights (Articles 5-30)

Equality and non-discrimination (Article 5)

19.  The Committee welcomes the adoption of Act 26/2011 amending regulations which will abolish the need to have a disability certificate to bring a discrimination claim before a judicial body.  However, it regrets the lack of information on cases of discrimination, and it is concerned that persons with disabilities will still be marginalized.  The Committee is further concerned by the lack of information on reasonable accommodation.  It is also concerned that in practice disability affects parents’ guardianship or custody of their children and that legal protection against discrimination on the grounds of disability is not enforceable in cases of discrimination due to perceived disability or association with a person with a disability.

20.  The Committee urges the State Party to expand the protection of discrimination on the grounds of disability to explicitly cover multiple disability, perceived disability and association with a person with a disability, and to ensure the protection from denial of reasonable accommodation, as a form of discrimination, regardless of the level of disability.  Moreover guidance, awareness raising and training should be given to ensure a better comprehension by all stakeholders, including persons with disabilities, of the concept of reasonable accommodation and prevention of discrimination.

Article 8 – Awareness-Raising

25.  The Committee commends the many initiatives taken by the State Party to implement the Convention.  However, it notes that more needs to be done to increase awareness in society, in the media and amongst persons with disabilities themselves of the right of persons with disabilities.

26.  The Committee calls upon the State Party to take proactive measures to enhance awareness of the Convention and its Optional Protocol at all levels, in particular among the judiciary and the legal profession, political parties, Parliament and Government officials, civil society, media, persons with disabilities, as well as the general public.

Article 9 – Accessibility

27.  The Committee takes note that Act 26/2011 amends regulations which will shorten the timelines for meeting accessibility requirements in public facilities; and goods and services available to the public.  However, it remains concerned at the low level of compliance with these requirements, in particular, at regional and local levels, in the private sector, and in relation to existing facilities.  The Committee is aware of situations of discrimination faced by air passengers with disabilities, including situations of denial of boarding.  The Committee reminds the State Party that Article 9 of the Convention also demands access to information and communication.

28.  The Committee recommends that sufficient financial and human resources be allocated as soon as possible to implement, promote and monitor compliance with accessibility legislation through national measures as well as through international cooperation.

Article 11 – Situations of Risk & Humanitarian Emergencies

31.  The Committee is concerned at the insufficiency of specific protocols for persons with disabilities in emergency situations.

32.  The Committee calls upon the State Party to review its laws and policies related to emergency situations with a view to including provisions guaranteeing the security and protection of persons with disabilities.

[ My Comment:  This is a gross understatement of a serious problem which continues to fester not only in Spain but, more generally, in Europe ! ]

Article 19 – Living Independently & Being Included in the Community

39.  The Committee is concerned at the lack of resources and services to guarantee the right to live independently and to be included in the community, in particular in rural areas.  It is further concerned that the choice of residence of persons with disabilities is limited by the availability of the necessary services, and that those living in residential institutions are reported to have no alternative to institutionalization.  Finally, the Committee is concerned about linking eligibility of social services to a specific grade of disability.

40.  The Committee encourages the State Party to ensure that an adequate level of funding is made available to effectively enable persons with disabilities to: enjoy the freedom to choose their residence on an equal basis with others; access a full range of in-home, residential and other community services for daily life, including personal assistance; and to enjoy reasonable accommodation so as to better integrate into their communities.

41.  The Committee is concerned that the law for the promotion of autonomy limits the resources to hire personal assistants only to those persons who have level 3 disabilities and only for education and work.

42.  The Committee encourages the State Party to expand resources for personal assistants for all persons with disabilities in accordance with their requirements.

Article 24 – Education

43.  The Committee welcomes the fact that the principle of inclusion governs the schooling of pupils with special educational needs; that discrimination in education is prohibited; and that most children with disabilities are included in the regular education system.  It commends the enactment of Organic Act 2/2006 on Education, which obliges the education authorities to provide specialist teachers, qualified professionals and the necessary materials and resources, as well as the laws that oblige schools to make necessary curricular adjustments and diversifications for pupils with disabilities.  However, the Committee is concerned by the implementation of these laws in practice, in view of reported cases of failure to provide reasonable accommodation, of continued segregation and exclusion, of financial arguments used as justification for discrimination, and of the cases of children enrolled in special education against their parents’ will.  The Committee notes with concern that parents challenging the placement of their children with disabilities in special education have no possibility of appeal and that their only alternative is to educate them at their own expense or pay for the reasonable accommodation of their child in the regular education system.

44.  The Committee reiterates that denial of reasonable accommodation constitutes discrimination and the duty to provide reasonable accommodation is immediately applicable and not subject to progressive realisation.  It recommends the State Party to:

     (a)  Increase its efforts to provide reasonable accommodation in education, allocating sufficient financial and human resources to implement the right to inclusive education; paying particular attention to assessing the availability of teachers with specialist qualifications; and ensuring that educational departments of local governments understand their obligations under the Convention and act in conformity with its provisions ;

     (b)  Ensure that the decisions to place children with a disability in a special school or in special classes, or to offer them solely a reduced standard curriculum, are taken in consultation with the parents ;

     (c)  Ensure that the parents of children with disabilities are not obliged to pay for the education or for the measures of reasonable accommodation in mainstream schools ;

     (d)  Ensure that decisions on placing children in segregated settings can be appealed swiftly and effectively.

C.  Specific Obligations (Articles 31-33)

Statistics and data collection (Article 31)

49.  The Committee regrets the low level of disaggregated data on persons with disabilities.  The Committee recalls that such information is indispensable to: understanding the situations of specific groups of persons with disabilities in the State Party who may be subject to varying degrees of vulnerability; developing laws, policies and programmes adapted to their situations; and assessing the implementation of the Convention.

50.  The Committee recommends that the State party systematize the collection, analysis and dissemination of data, disaggregated by sex, age and disability; enhance capacity building in this regard; and develop gender-sensitive indicators to support legislative developments, policymaking and institutional strengthening for monitoring and reporting on progress made with regard to the implementation of the various provisions of the Convention.

51.  The Committee regrets that the situation of children with disabilities is not reflected in the data on the protection of children.

52.  The Committee recommends that the State Party systematically collect, analyse and disseminate data, disaggregated by sex, age and disability, on abuse and violence against children.

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New Dublin Criminal Courts Building – Denying Human Rights !

2011-04-07:  The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is an issue, right here and now, for Architects in Ireland … and the Irish Built Environment, whoever designs, constructs, operates or manages it … not because this country has, or has not, ratified the Convention … but because the European Union has ratified this Convention !   And as we have all witnessed, on countless times since the early 1970’s … it has required a big stick from Europe to drag Ireland’s social legislation into the modern era.

UN CRPD Article 13 – Access to Justice

1.  States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

2.  In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

Last week … from Monday, 28 March 2011 … until Thursday, 31 March 2011 … I attended as a Juror at the  New Criminal Courts of Justice Building, which is located at the Main Gate to the Phoenix Park in Dublin … near the junction between Parkgate Street and Infirmary Road.

I was very curious to experience this new building as an ordinary user.  However, I was not at all happy at the outcome … the accessibility performance was so inadequate.

In the case of this new building, it is clear that the Irish State has failed – is failing – to comply with Article 13 of the UN Convention on the Rights of Persons with Disabilities … and is thus denying a basic human right to many people in our society.

Colour photograph showing the Main Entrance to the New Criminal Courts of Justice Building in Dublin, with entrance steps in the foreground. Photograph taken by CJ Walsh. 2011-03-30. Click to enlarge.

Colour photograph showing the Main Entrance to the New Criminal Courts of Justice Building in Dublin, with entrance steps in the foreground. Photograph taken by CJ Walsh. 2011-03-30. Click to enlarge.

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Post Occupation Evaluation (POE) is not a well-known architectural concept among architects … and even when it is known, it is not the most favoured.  This subject has, in my direct experience, been treated with light-hearted frivolity in 8 Merrion Square, Dublin !   Afterall, who wants to meet the failures of their cherished designs head-on … up-front and in their faces ??   To some architects, successes never seem to count as being of equal, or more, importance.  But, they are both a vital tool in continuous learning.

POE, however, is a crucial part of work as a practicing architect.  It is essential to feed previous design failures and successes … and ‘real’ information about building user/occupant behaviour … back into new projects !   This is ‘real’ CPD (Continuing Professional Development) in action … and a serious issue which is completely overlooked in the Royal Institute of the Architects of Ireland’s current approach to CPD !!

The reason so much of the built environment … so many buildings … is/are so inaccessible for many people … is not because designers have something against people with activity limitations … it is because designers just do not want human beings … anybody … to enter and use their buildings.  People are so messy … and they always want to do silly things with a building which were never planned … or they want to change things around, spoiling ‘the design’ … etc., etc., etc.

This problem begins back in the architectural schools, and becomes a deeper problem on the professional practice courses organized by professional institutes … here, and in other countries.  POE and building user/occupant behaviour is not covered … at all !   Can you believe that ??   I still can’t.

Tyranny of the Plan is another architectural concept.  I will try to explain it this way.  Take the photograph above.  Why, for example, are there no handrails on the right hand side … the major part … of those steps ?   Because of that Tyranny of the Plan Drawing !   It looked ‘right’ … beautiful, almost sexy … just to have handrails on that part of the steps leading from the main front doors … design movement was continued and controlled.  This is not the same as people movement.

On Sunday morning last, I measured those steps myself … (riser) 150 mm in height x (going) 300 mm in depth … (2 x riser) + (1 x going) = 600 mm … ideal dimensions for steps inside a building … but not the most convenient, comfortable or safe dimensions for steps outside a building.

Handrails are definitely required throughout the full extent of the steps !   But, that would have looked very sloppy on the plan drawing.  Now, however, take a closer look at those steps … looking down from above … and just imagine that you are a frail, older person and your sight may not be the greatest … that you are visually impaired in some manner …

Colour photograph showing details of the steps, handrails and tactile ground surface indicators at the Main Entrance to the New Criminal Courts of Justice Building in Dublin, Ireland. Photograph taken by CJ Walsh. 2011-03-30. Click to enlarge.

Colour photograph showing details of the steps, handrails and tactile ground surface indicators at the Main Entrance to the New Criminal Courts of Justice Building in Dublin, Ireland. Photograph taken by CJ Walsh. 2011-03-30. Click to enlarge.

The wrong type of tactile ground surface information is being given at the top and bottom of the steps … we would like to warn users of the hazard they are approaching, i.e. the steps, by using a ‘blister’ surface indicator … not direct them to turn left or right when they perceive those continuous ‘corduroy’ ridges.  The horizontal handrail extensions at the top and bottom of the short flight of steps are insufficiently long.  There is inadequate visual contrast at all of the step nosings (i.e. the leading top edges) which would have helped people to accurately locate those edges.  And, as already referred to above, the step dimensions could have been greatly improved with a slight adjustment … for example, (riser) 125 mm in height x (going) 350 mm in depth … (2 x riser) + (1 x going) = 600 mm … much better altogether for steps outside a building !   Compare and contrast with the many Japanese photographs shown in earlier posts.  There is no comparison !   This is sloppy work in Dublin.

Mies van der Rohe (1886-1969), the Master German Architect, is often quoted as having said: “God is in the details”.  Right on, Ludwig … ride ’em cowboy !!!

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For security reasons, it was not possible to take any photographs inside the building.  However, it was abundantly clear that accessibility for people with activity limitations, generally, was inadequate.  While some small account had been taken of the needs of people using wheelchairs … people with a visual impairment would have a very difficult time using this building.  Furthermore, when it came to the ‘swearing-in’ of Jurors at Court No.7, circulation was incredibly confined and restricted … I was having to squeeze myself forward in order to be ‘processed’.  What a mess !

This was an unacceptable and very disappointing example of poor, misguided and minimalist accessibility implementation … making an ironclad case for effective independent verification of Accessibility Performance, as required by the United Nations Convention on the Rights of Persons with Disabilities … at the end of the design stage in a project, and especially during the actual process of construction … to ensure that an ‘informed’ design intention becomes reality.

UN CRPD Article 33 – National Implementation & Monitoring

1.  States 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, and shall give due consideration to the establishment or designation of a co-ordination mechanism within government to facilitate related action in different sectors and at different levels.

2.  States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention.  When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.

3.  Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.

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And that is not the end of the story !   When construction of a building has been completed and it is then occupied, Competent Building Management  is critical in maintaining an initial level of good accessibility performance throughout the life cycle of that building.  Once again, however, the management of this building was sloppy … take a bow, the  Courts Service of Ireland !

Symptoms of Larger Problems … Two Short Little Anecdotes …

a) Unheeded Building Evacuation Warning

In the middle of Roll Call, on the first morning that I attended as a Juror, a Voiced Stand-By Building Evacuation Warning was announced over the building’s public address system.  It was explained that there had been ‘an incident’.  That’s all … no other information was given.  This announcement was repeated again, and again, and again.  It then stopped, momentarily, and then started again.  It finally ended.

During the announcements … we all looked around … there were at least 150 people in the room … then looked at each other, shrugged our shoulders and smiled.  We at least thought that the person in charge of the Roll Call would be in a position to quickly find out what was going on … but no, she also shrugged her shoulders and carried on calling out names.

Afterwards, I asked one of the many ushers what had happened … was it a serious incident ?   He didn’t know, and just stated that ushers are generally told nothing.

This is entirely unacceptable !   Are clowns managing the New Criminal Courts of Justice Building in Dublin ??

b) Disrespectful ‘Swearing-In’ of Jurors

An Information Leaflet, produced by the Courts Service back in January 2010, entitled: ‘Attending for Jury Service’ … contains the following Introduction …

Jury Service is an important civic duty.  It is a vital part of our criminal justice system.  You must arrive on time to ensure trials are not delayed.  To assist you we have prepared this leaflet which includes a map to guide you to (the) jury assembly area of the Criminal Courts of Justice.

Concerning ‘Swearing-In a Jury’ … it is stated in the Leaflet …

The court registrar calls out your name and asks you to take an oath on the Holy Book of your choice, or you may affirm.

From the beginning, nobody was informed about these options.  On the final morning, when I was selected to be a Juror, the only Holy Book which was placed in front of Jurors was the Christian Bible.  No other Holy Book was visible.  Everyone was being processed in one way … without any consideration or respect for their dignity as an individual person.

With all of the stress of these occasions, and the formalities involved … the ‘Swearing-In’ Judge was even wearing a wig (I thought that those days were long gone !) … it would be all too easy for people … ‘automatically’, almost by reflex action, and not wanting to make a fuss … to go through a ‘standard’ processing procedure, which for them had little or no meaning.  Is that the intended purpose of ‘Swearing-In’ ??

It may have escaped the attention of the Courts Service that Ireland is now a pluralist and richly varied multi-cultural society.  Some people are religious, others are not … some people are Christians, others are Moslems, Jews or Buddhists, etc., etc … whatever !

A range of Holy Books must be visible to all Jurors … and they must all be informed about the option of ‘Affirming’ … before ‘Swearing-In’ commences !

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EU Ratification of UN Disability Convention – EFC Legal Study

2011-02-05:  Further to my post, dated 15 January 2011

Many people directly or indirectly involved with Disability-Related Issues in Europe … may not yet know that, a few weeks ago, the European Union ratified the 2006 United Nations Convention on the Rights of Persons with Disabilities (UN CRPD).  They may not even know that their own country, as a Member State of the European Union, had perhaps already ratified the UN Convention one or two years earlier.

At this time, the majority of Member States have proceeded, voluntarily, to ratify the Convention … with some of those, inexplicably, declining/refusing to ratify the Convention’s Optional Protocol.

Human & Social Rights can be a difficult subject area !

Ireland has not ratified the UN Convention … and, unfortunately, the attitude of many policy-makers and decision-makers within our Irish Institutions of State, large and small, is that it’s business as usual … no need to worry or fuss, or give a damn … until this country does actually sign on the Convention’s bottom line … an attitude which displays a magnificent ignorance of the changed reality, post Lisbon Treaty, which is the European Union’s Current Legal Environment !!

Please examine carefully, for yourselves, the findings of this Legal Study, recently approved for publication by the European Commission …

European Foundation Centre (EFC)

Brussels, October 2010

Study on Challenges and Good Practices in the Implementation of the UN Convention on the Rights of Persons with Disabilities

Click the Link Above to read and/or download PDF File (1.46 Mb)

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EU RATIFICATION OF THE UN CRPD – ASPECTS OF EU LAW

The following are selected extracts from the EFC Study … my selection (!) … to answer specific issues relating to UN CRPD Implementation within the European Union.  Typographical errors in the Study have also been corrected … and, post Lisbon Treaty, references to the EU Treaties have been properly updated …

The legal basis for the conclusion of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) signals the appropriate legal basis for its implementation within the European Union (EU).  In this respect, and in line with Article 4 of the UN Convention, implementation implies that instruments may be adopted or modified by the Union in order to comply with the Convention and give effect to its provisions and principles.  Although the choice of the legal basis for the decision concluding an international agreement is very important, it is not decisive for implementation.  In European Court of Justice Case C-178/0345, which concerned the implementation of the Rotterdam Convention on International Trade in Hazardous Chemicals, the Court stated that ” the fact that one or more provisions of the Treaty have been chosen as legal bases for the approval of an international agreement is not sufficient to show that those same provisions must also be used as legal bases for the adoption of measures intended to implement that agreement at Community level “.   The latter statement means that EU Treaty provisions other than those mentioned in EU Council Decision 2010/48/EC to conclude the UN CRPD can be used as legal bases to implement UN CRPD obligations in specific fields.

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The United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) is an international human rights agreement where both the European Union (EU) and its Member States are contracting parties.  The UN Convention is thus a Mixed Agreement.  Mixed Agreements involve a Shared Contractual Relationship between the EU, its Member States and one or more third countries and/or international organisations.  As a Mixed Agreement, the UN CRPD covers fields that fall in part within the competence of the EU, in part within that of the Member States and in part within the shared competence of the EU and its Member States.  It is therefore essential for the EU and the Member States to closely co-operate, in order to implement legislation stemming from the Convention in a coherent manner and ensure unity in the international representation of the Union.

EU Member States, when participating in Mixed Agreements, do not act as entirely autonomous subjects of international law; they are subject to a Duty of Loyal Co-Operation between one another and the EU.  This duty extends to each of the negotiation, conclusion and implementation phases.  In this sense, there is a collective management of the obligations under international law.  The duty of loyal co-operation, deriving from Article 4.3 of the Treaty on European Union (TEU), embraces two sets of obligations: first, Member States shall take appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the EC Treaty or resulting from action taken by the EU Institutions;  and second: Member States shall facilitate the achievement of the Union’s tasks and shall abstain from any measure which could jeopardise the attainment of the Union’s objectives … which are set out in Article 3 of the Treaty on European Union (TEU).

Treaty on European Union (TEU) – Consolidated Version, as Amended by the Treaty of Lisbon

Article 4.3

Pursuant to the principle of sincere mutual co-operation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

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In relation to EU Member States Compliance with a Mixed Agreement concluded by the EU … the European Court of Justice has inferred that for matters falling within EU competence … the Member States fulfil, within the EU system, an obligation in relation to the Union which has assumed responsibility for due performance of the agreement.  In other words, if a Member State fails to take all appropriate measures to implement provisions of the Mixed Agreement that fall within the competence of the EU … it not only fails to fulfil its international obligation, but is also acting in breach of EU Law.  The European Commission may thus bring an infringement case against a Member State that has not properly fulfilled its duty.  The principle underpinning such mechanisms is the ‘duty of loyal co-operation’, which provides the foundation for managing shared competence within Mixed Agreements.

The line dividing international responsibility for implementation of the International Mixed Agreement between the EU and its Member States depends on the obligations respectively assumed.  The UN CRPD contains a clause setting out ‘separate’ responsibility.  According to Article 44.1, Regional Integration Organisations acceding to the Convention shall declare, in their instruments of formal confirmation or accession, the extent of their competence.  This division of responsibility for implementation implies that the European Union only bears responsibility for the breach of those obligations it has assumed.

EU Council Decision 2010/48/EC on the conclusion of the UN CRPD refers to EU competence in respect of those matters governed by the UN CRPD, and lists EU Instruments which demonstrate such competence.

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STRUCTURE OF THE EFC REPORT

The main objective of the Study was to analyse the obligations set out in the UN CRPD and, in particular, to gather information about the various practices of the EU Member States and the European Union in implementing the UN CRPD.

The work was carried out by the European Foundation Centre (EFC), representing the European Consortium of Foundations on Human Rights and Disability … under Contract No. VC/2008/1214 … for the European Commissions Directorate-General for Employment, Social Affairs & Inclusion.

Section 1 of this Report sets the appropriate background for the analysis that will follow.

Section 2 of the Report provides an overview and general recommendations on the implementation of the social model of disability, and core obligations deriving from Article 1 and Preamble Paragraph (e) of the UN CRPD.

Section 3 of the Report provides an overview and general recommendations on the implementation of Article 3 (General Principles), Article 4 (General Obligations), Article 5 (Equality and Non-Discrimination), and Article 9 (Accessibility) of the UN CRPD.  The section also reviews UN CRPD articles on Inter-Sectionality, namely Articles 6 (Women with Disabilities) and Article 7 (Children with Disabilities).  It is worth noting that the articles addressed in this section are articles of general and crosscutting application, and therefore their application is relevant for the implementation of all articles of the Convention.

Section 4 of the Report provides an overview and general recommendations on the implementation of selected substantive provisions of the UN CRPD which apply existing civil, political, economic, social and cultural rights within the context of disability.  Specifically, the section considers the implementation of Articles 16 (Freedom from Exploitation, Violence and Abuse) and 17 (Protecting the Integrity of the Person), which are seeking to assert protections that underscore the humanity of all persons with disabilities.  The section also considers the implementation of Articles 12 (Equal Recognition before the Law) and 19 (Living Independently and Being Included in the Community), both of which aim at maintaining and safeguarding the autonomy of the person.  Furthermore, articles on specific accessibility rights, namely Article 13 (Access to Justice) and Article 29 (Participation in Political and Public Life), are likewise addressed.  Finally, the section considers the implementation of Articles 24 (Education) and 27 (Work and Employment).

Section 5 of the Report contains an overview and general recommendations on the implementation of articles which outline steps that are necessary to support reforms.  Specifically, the section considers the implementation of Article 31 (Statistics and Data Collection), Article 32 (International Co-Operation), and Article 33 (National Implementation and Monitoring).

Section 6 of the Report suggests good practices for the EU and national policy-makers for the future and overall implementation of the Convention, and the effective achievement of its objectives.

It is worth noting that, while it is hard to be definitive, given that the UN Committee on the Rights of Persons with Disabilities is still in its infancy and has yet to pronounce on the obligations of the UN CRPD … it is nevertheless possible on the basis of the general principles of the Convention and interpretative tools, such as the Vienna Convention on the Law of Treaties, to identify illustrative challenges to the implementation of the UN CRPD.  For the purposes of this Study, the review of EU and Member States policies and legal instruments is based on the analysis of the UN CRPD and checklists that were produced from this Study to measure progress.

Finally, for the purposes of the Study, a challenge is defined as a ‘difficulty’ posed by existing national or EU practice which may potentially hamper the full and effective implementation of the UN CRPD by the EU Member States and/or the European Union.  In order to meet such challenges, it will be necessary, inter alia, for the EU (as appropriate) and/or its Member States to review legislation and/or policy with a view to full compliance.  On the other hand, a practice is defined as good if it fulfils certain requirements of the Convention or mainstreams the general principles, consistent with Article 3 of the UN CRPD, and has an awareness-raising impact.

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EU Accessibility & Ratification of UN Disability Rights Convention

2011-01-15:  Recently, I was waiting … and waiting … for the first mention of this important news to pop up on any of the European Disability Networks … the Formal Ratification by the European Union (EU) of the 2006 United Nations Convention on the Rights of Persons with Disabilities … on 23 December 2010 last.

History in the making !!

This U.N. Convention was adopted on 13 December 2006 (2006-12-13), at the United Nations Headquarters in New York … and was opened for signature on 30 March 2007.  It entered into force, i.e. became an International Legal Instrument, on 3 May 2008 (2008-05-03).  A copy of the Convention can be downloaded, here, on this Site … in my post, dated 31 October 2009.

Finally, on Monday 10 January 2011 … via ICTA-Europe, EDeAN, and the EU Press Release below … it was announced …

EU Press Release IP/11/4 – Brussels, 5 January 2011

EU Ratifies UN Convention on Disability Rights

Click the Link Above to read and/or download PDF File (25kb)

So much for instant communication in our much-vaunted Information / Knowledge / Smart Society !!

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Ordinarily, this news would be nothing to get excited about.

BUT … since the Lisbon Treaty entered into force on 1 January 2009 … the European Union now has a legal personality all of its own, separate from those of the individual EU Member States.  See Article 47 in Title VI – Final Provisions – of the Treaty on European Union (consolidated version).

This is the first time that the EU has become a party to an international treaty.

The 2006 United Nations Convention on the Rights of Persons with Disabilities is now part of the European Union’s Acquis Communautaire, i.e. the extensive body of EU Law.

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The consequential impacts flowing, therefore, from the EU’s Ratification of the U.N. Convention … at both European and Member State (National) levels … will be very, very interesting to observe during the immediate short term.  [A note of caution … be patient, and allow for a short period of ‘bedding-in’ at the start.  See below.]

The European Commission, for example, must now take full account of the Convention in the drafting and implementation of any new legislation, policies and programmes … in fact, all of its activities.

The European Court of Justice must also take full account of the Convention in all of its work.

This will, inevitably, heavily influence what is … or is not … happening with regard to social and other policies at national level in the Member States.  Many Member States (16) have already ratified the Convention … and more power to them !   BUT among these 16 … the Czech Republic and Denmark have not yet ratified the UN Convention’s Optional Protocol … how strange … and unacceptable !!

Some Member States … and I am thinking specifically of Ireland … will have to be dragged, screaming, to the point of ratification.  And even when that position has been reached … proper implementation will always be an issue.  Just consider, for a moment, Ireland’s uncaring and ham-fisted approach to implementation of the 1989 U.N. Convention on the Rights of the Child … which it did actually ratify way back on 28 September 1992 !   See my post, dated 30 November 2009.

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Accessibility of the ‘Human Environment’ – A Harmonized EU Understanding !

As far as the European Union must now be concerned … and all of the EU Member States … Preamble Paragraph (g) and Articles 9, 10 & 11 of the 2006 United Nations Convention on the Rights of Persons with Disabilities – together – form the basis of a harmonized understanding for Accessibility of the ‘Human Environment’ … which includes the Built Environment, the Social Environment, the Economic Environment, and the Virtual Environment … concepts which I have defined, here, many times before.

Preamble Paragraph (g)

Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development,

Article 9 – Accessibility

1.  To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.  These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

     (a)  Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces ;

     (b)  Information, communications and other services, including electronic services and emergency services.

2.  States Parties shall also take appropriate measures:

     (a)  To develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public ;

     (b)  To ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities ;

     (c)  To provide training for stakeholders on accessibility issues facing persons with disabilities ;

     (d)  To provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms ;

     (e)  To provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public ;

     (f)  To promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information ;

     (g)  To promote access for persons with disabilities to new information and communications technologies and systems, including the Internet ;

     (h)  To promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.

Article 10 – Right to Life

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Article 11 – Situations of Risk & Humanitarian Emergencies

[My Note: An outbreak of fire in a building would be a situation of serious risk.]

States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.

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Accessibility of the ‘Human Environment’ – Competent & Effective EU Implementation !

Within the European Union as a whole, because it is a party to the Convention in its own right … and also within the individual EU Member States … Articles 31 & 33 of the 2006 United Nations Convention on the Rights of Persons with Disabilities – together – mandate that implementation is taken seriously … that it is competent and effective … and, most importantly, that independent monitoring and verification is a fundamental part of the process.

Article 31 – Statistics & Data Collection

1.  States Parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention.  The process of collecting and maintaining this information shall:

     (a)  Comply with legally established safeguards, including legislation on data protection, to ensure confidentiality and respect for the privacy of persons with disabilities ;

     (b)  Comply with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles in the collection and use of statistics.

2.  The information collected in accordance with this article shall be disaggregated, as appropriate, and used to help assess the implementation of States Parties’ obligations under the present Convention and to identify and address the barriers faced by persons with disabilities in exercising their rights.

3.  States Parties shall assume responsibility for the dissemination of these statistics and ensure their accessibility to persons with disabilities and others.

Article 32 – International Co-Operation

1.  States Parties recognize the importance of international co-operation and its promotion, in support of national efforts for the realization of the purpose and objectives of the present Convention, and will undertake appropriate and effective measures in this regard, between and among States and, as appropriate, in partnership with relevant international and regional organizations and civil society, in particular organizations of persons with disabilities.  Such measures could include, inter alia:

     (a)  Ensuring that international co-operation, including international development programmes, is inclusive of and accessible to persons with disabilities ;

     (b)  Facilitating and supporting capacity-building, including through the exchange and sharing of information, experiences, training programmes and best practices ;

     (c)  Facilitating co-operation in research and access to scientific and technical knowledge ;

     (d)  Providing, as appropriate, technical and economic assistance, including by facilitating access to and sharing of accessible and assistive technologies, and through the transfer of technologies.

2.  The provisions of this article are without prejudice to the obligations of each State Party to fulfil its obligations under the present Convention.

Article 33 – National Implementation & Monitoring

1.  States 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, and shall give due consideration to the establishment or designation of a co-ordination mechanism within government to facilitate related action in different sectors and at different levels.

2.  States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention.  When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.

3.  Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.

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The European Union’s Disability Strategy 2010-2020 [COM(2010) 636 final]

The general approach to, and the quality of, Accessibility Implementation in Europe … when compared, for example, with Japan … is pathetically inadequate.

It is quite amazing, therefore, that the texts which deal with Accessibility of the ‘Human Environment’ in the EU’s Disability Strategy Document 2010-2020 … are weak and far too vague … basically, meaningless claptrap drafted by desk jockeys / ‘suits who do not know’ !   We did not achieve a ‘Europe Accessible For All’ by 2010 (see below) … do you see it ??   And … at the current rate of progress, neither will we achieve a ‘Europe Accessible For All’ by 2020 !

The European Union’s Accessibility Strategy, related Policies and Programmes … and the monitoring, targeting and independent verification of Accessibility Implementation … all require a radical overhaul !

All those Officials in the European Commission who are involved, in any way, shape or form, with Accessibility of the ‘Human Environment’ would do well to RE-READ AND MEDITATE DEEPLY on the contents of the 2003 Final Report from the Group of Accessibility Experts, which was established by the European Commission itself …

EU 2003 (EYPD) Expert Group on Accessibility

October 2003

2010: A Europe Accessible For All

Click the Link Above to read and/or download PDF File (294kb)

I was a Member of that Expert Group !

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AND SOME WIDER CONCERNS …

1.  The European Union HAS NOT RATIFIED the UN Disability Rights Convention’s Optional Protocol.  If the Union is so Open and Transparent … and so committed to Human and Social Rights for All EU Citizens … somebody, somewhere, has to scream out loud “Why is the EU Not Ratifying this Optional Protocol ???”.   And … we demand an honest answer !!!

Optional Protocol – Article 1

1.  A State Party to the present Protocol (‘State Party’) recognizes the competence of the Committee on the Rights of Persons with Disabilities (‘the Committee’) to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention.

2.  No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol.

2.  The EU Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities.  Above, I talked about a short period of ‘bedding-in’.   BUT … get your teeth into the ‘meat’ of this document … which indicates that it might be a much longer and more difficult process !?!

Official Journal of the European Union (15 December 2010) – 2010/C 340/08

EU Council – UN Disability Rights Convention – 2010 Internal Code of Conduct

Click the Link Above to read and/or download PDF File (729kb)

3.  At EU Council … How Important is this Issue Considered ?   In the 37 Page Report on the Justice and Home Affairs Council Meeting, which was held in Brussels from 2-3 December 2010 … the adoption of the above Internal Code of Conduct rated just a very brief mention on the last page.  It was not mentioned, at all, among the Main Results of the Meeting !

4.  Will Disability Networks, at both European and Member State (National) levels, have the stamina … and be sufficiently competent and focused … to rigorously monitor European Union Implementation of the UN Disability Rights Convention ??   And … will these Networks be courageous in challenging the EU Institutions … if Implementation is found to be Inadequate ???   I’m not so sure !

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European Union Economic Governance – Too Late For Dithering !

2010-12-22:  November & December 2010 … when the shit really started to hit the international economic fan ! … there has been an excess of hysterical nonsense in the Irish Media concerning growing European Union (EU) Economic Governance … and a perceived erosion of Irish National Sovereignty.  How sad ?!?

Economic Environment … the intricate web of real and virtual human commercial activity – operating at micro and macro-economic levels – which facilitates, supports, but sometimes hampers or disrupts, human interaction in the Social Environment.

Social Environment … the complex network of real and virtual human interaction – at a communal or larger group level – which operates for reasons of tradition, culture, business, pleasure, information exchange, institutional organization, legal procedure, governance, human betterment, social progress and spiritual enlightenment, etc.

However, let me sketch out an altogether different and much more positive picture !

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Thesis – My Argument

[During 2009, I first raised this issue in meetings of the IIEA (Institute of International & European Affairs) Economists’ Group, in Dublin.]

Towards the end of 2010 … we can now see that Inter-Governmental Economic Governance in the European Union has failed … miserably.  This has not only destabilized the EuroZone … but the entire European Union, itself, as a political entity … and will continue to do so … until Economic Governance is brought much closer to, and fully within, the Community Method … which is a lengthy and complex process.

Back in 2009, however, when the Financial Markets were not in such a mad frenzy … it would have been natural to imagine that an interim stage in this process would most probably be to adopt an Open Method of Co-Ordination.  This is no longer an option … being too little, too late, to calm the Markets.

Throughout this process of reform, the European Central Bank (ECB) and the National Central Banks can, and must, retain their independence … as legally mandated in European Union Primary Legislation, i.e. the Treaties.

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Three Concerns I have had for some time …

–  Economists don’t know the Community Method from the Rhythm Method, and they are ill-equipped to deal with matters of Mainstream European Union Institutional Reform ;

–  The use of Economic Performance Indicators in the EU Stability & Growth Pact is simplistic and crude … and, therefore, very problematic ;

–  Economic Performance Indicators must be improved … qualitatively … and be mainstreamed in considerations, and the implementation, of Sustainable Human & Social Development … as legally mandated in the EU Treaties.

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Mr. Olli Rehn, European Commissioner for Economic & Monetary Affairs recently delivered a speech at the Institute of International & European Affairs, in Dublin …

Mr. Olli Rehn, European Commissioner

9 November 2010

Reinforcing EU Economic Governance: Relevance for Ireland

Click the Link Above to read and/or download PDF File (39kb)

However … instead of trying to desperately backfill the holes and gaps in the current, failed Inter-Governmental Method of Economic Governance in the European Union … Commissioner Rehn should be clearly identifying the proper target as the Community Method of Economic Governance … and plotting an appropriate course to reach that target … as soon as practicable !

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This is a useful background document … and includes a lot of information about the EU Stability & Growth Pact

European Commission & General Secretariat of the EU Council

June 2007

EU Economic & Monetary Union – Legal & Political Texts

Click the Link Above to read and/or download PDF File (2.66 Mb)

Since Ireland joined the European Economic Community (EEC) in 1973 … after 10 years of accession negotiations ! … an ‘informed’ view of European Integration has always been that the different Countries are pooling their national sovereignty, in an expanding range of specific areas, for the greater benefit of all their citizens.  This has certainly been the experience of Ireland.  And … let us also not forget that Irish Politicians and Senior Civil Servants have participated directly – at all stages – in the development of the EMU Legal & Political Texts listed.  There is no such thing as a Domineering ‘Brussels’ Big Brother !

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This is the most recent update of the EuroZone’s Economic Performance Indicators

European Commission, Directorate-General for Economic & Financial Affairs (DG ECFIN)

2 December 2010

Key Economic Indicators for the Euro Area

Click the Link Above to read and/or download PDF File (360kb)

It is now widely acknowledged that Gross Domestic Product (GDP) is neither a reliable nor an adequate indicator of Sustainable Human & Social Development.  But … that is another story … for another day !

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Community & Inter-Governmental Methods of Governance

The Community Method is the expression used for the most common and effective operating and decision-making mode of institutions in the European Union.  It proceeds from an integration logic, with due respect for the subsidiarity principle … and has the following salient features:

  • European Commission monopoly of the Right of Initiative, with a strong monitoring role in implementation ;
  • should consensus not be achieved, widespread use of Qualified Majority Voting in the Council of the European Union ;
  • an active, participatory role for the European Parliament ;
  • uniform interpretation of EU Law by the Court of Justice.

In contrast to the … Inter-Governmental Method … which proceeds from an inter-governmental logic of co-operation between EU Member States … to a large extent outside the institutional framework of the European Union … and has the following salient features:

  • the European Commission’s Right of Initiative is shared with the Member States or confined to specific areas of activity … with little, if any, monitoring role for the Commission in implementation ;
  • the Council of the European Union generally acts unanimously … and unilaterally ;
  • the European Parliament has merely a consultative role ;
  • the Court of Justice plays only a minor role.

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Open Method of Co-Ordination

The Open Method of Co-Ordination (OMC) developed as an instrument of the 2000 Lisbon Strategy, and provided a new framework for co-operation between the EU Member States, whose national policies could thus be directed towards certain common objectives.

Under this method of governance, the Member States are evaluated by one another (peer pressure), with the European Commission’s role being limited to ‘lite’ surveillance.  The European Parliament and the Court of Justice play virtually no part in the OMC process.

The Open Method of Co-Ordination takes place in policy areas which fall within the competence of the Member States … such as employment, social protection, social inclusion, education, youth and training.

It is based principally on:

  • jointly identifying and defining objectives to be achieved (adopted by the Council of the European Union) ;
  • jointly established measuring instruments (statistics, indicators, guidelines) ;
  • benchmarking, i.e. comparison of the Member States’ performance and exchange of best practices (oversight by the European Commission).

Depending on the areas concerned, the OMC involves so-called ‘Soft Law’ Measures which are binding on the Member States to varying degrees but which never take the form of ‘Hard Law’ Directives, Regulations or Decisions.  Thus, in the context of the Lisbon Strategy, the OMC required the Member States to draw up national reform plans and to submit them to the European Commission.

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Colour photograph showing the last resting place, in Arbour Hill Cemetery Dublin, for many - not all - Executed Leaders of the 1916 Revolution. The Memorial was designed by G. McNicholl. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.

Colour photograph showing the last resting place, in Arbour Hill Cemetery Dublin, for many – not all – Executed Leaders of the 1916 Revolution. The Memorial was designed by G. McNicholl. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.

Ireland’s National Sovereignty in 2010/2011 ?

On a beautiful sunny day, this past autumn … I again visited Arbour Hill Cemetery in Dublin … the last resting place for many Executed Leaders of the 1916 Revolution … an event which finally initiated an irrevocable process of terminating a prolonged period of barbaric external imperial domination and cultural cleansing of the indigenous population …

Colour photograph showing, in the background, a latin cross and the Irish language version of the 1916 Proclamation of Independence inscribed on the stone wall, with the simple grass-covered graves of Executed Leaders in the foreground. Detail of the 1916 Revolution Memorial in Arbour Hill Cemetery, Dublin. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.

Colour photograph showing, in the background, a latin cross and the Irish language version of the 1916 Proclamation of Independence inscribed on the stone wall, with the simple grass-covered graves of Executed Leaders in the foreground. Detail of the 1916 Revolution Memorial in Arbour Hill Cemetery, Dublin. Photograph taken by CJ Walsh. 2010-10-24. Click to enlarge.

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On the wall behind the graves … the 1916 Proclamation of Independence is inscribed in the Irish Language, and also in English …

Poblacht na hEíreann

THE PROVISIONAL GOVERNMENT OF THE IRISH REPUBLIC

TO THE PEOPLE OF IRELAND

IRISHMEN AND IRISHWOMEN:  In the name of God and of the dead generations from which she receives her old tradition of nationhood, Ireland, through us, summons her children to her flag and strikes for her freedom.

Having organized and trained her manhood through her secret revolutionary organization, the Irish Republican Brotherhood, and through her open military organizations, the Irish Volunteers and the Irish Citizen Army, having patiently perfected her discipline, having resolutely waited for the right moment to reveal itself, she now seizes that moment, and, supported by her exiled children in America and by gallant allies in Europe, but relying in the first on her own strength, she strikes in full confidence of victory.

We declare the right of the people of Ireland to the ownership of Ireland, and to the unfettered control of Irish destinies, to be sovereign and indefeasible.  The long usurpation of that right by a foreign people and government has not extinguished the right, nor can it ever be extinguished except by the destruction of the Irish people.  In every generation the Irish people have asserted their right to national freedom and sovereignty:  six times during the past three hundred years they have asserted it in arms.  Standing on that fundamental right and again asserting it in arms in the face of the world, we hereby proclaim the Irish Republic as a Sovereign Independent State, and we pledge our lives and the lives of our comrades-in-arms to the cause of its freedom, of its welfare, and of its exaltation among the nations.

The Irish Republic is entitled to, and hereby claims, the allegiance of every Irishman and Irishwoman.  The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally, and oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past.

Until our arms have brought the opportune moment for the establishment of a permanent National Government, representative of the whole people of Ireland and elected by the suffrages of all her men and women, the Provisional Government, hereby constituted, will administer the civil and military affairs of the Republic in trust for the people.

We place the cause of the Irish Republic under the protection of the Most High God, Whose blessing we invoke upon our arms, and we pray that no one who serves that cause will dishonour it by cowardice, inhumanity, or rapine.  In this supreme hour the Irish nation must, by its valour and discipline and by the readiness of its children to sacrifice themselves for the common good, prove itself worthy of the august destiny to which it is called.

Signed on Behalf of the Provisional Government,

THOMAS J. CLARKE,

SEAN Mac DIARMADA,          THOMAS Mac DONAGH,

P. H. PEARSE,          EAMONN CEANNT,

JAMES CONNOLLY,          JOSEPH PLUNKETT.

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As We Approach the 100th Anniversary of the 1916 Revolution … Ireland has failed to implement and foster the social values so eloquently elaborated in the 1916 Proclamation of Independence … widespread, deeply ingrained corruption infects our economic environment … and the institutions of national governance are dysfunctional and no longer ‘fit for purpose’ … while individuals within those institutions rise in rank according to their own natural level of incompetence.

Politically … Ireland has not yet properly matured as an Independent State.

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Ireland’s Relationship with the European Union … I am more than a little curious as to why Ireland is not associated with Declaration No.52, which is annexed to the Treaty of Lisbon

52.  Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia and the Slovak Republic on the symbols of the European Union

Belgium, Bulgaria, Germany, Greece, Spain, Italy, Cyprus, Lithuania, Luxemburg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and the Slovak Republic declare that the flag with a circle of twelve golden stars on a blue background, the anthem based on the ‘Ode to Joy’ from the Ninth Symphony by Ludwig van Beethoven, the motto ‘United in diversity’, the euro as the currency of the European Union and Europe Day on 9 May will for them continue as symbols to express the sense of community of the people in the European Union and their allegiance to it.

Yes … we have a lot to discuss before 2016 !

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Update:  2013-06-03 …

On Friday, 31 May 2013, at the Institute of International & European Affairs (IIEA) in Dublin … I attended the third seminar in a series organized to mark Ireland’s Presidency of the Council of the European Union (January to June 2013) … the seventh such Presidency … and 40 years since Ireland officially joined the European Economic Community (EEC), on 1 January 1973 … after a long, long, long accession process …

‘Economic Sovereignty in an Age of Globalization and EU Integration – Economic, Legal and Political Perspectives’

[ For full information about this IIEA Economic Seminar:  www.iiea.com ]

Because the seminar was not only very interesting, but is directly relevant in the context of this post … and the remarks of Mr. Peter Sutherland, Chairman of Goldman Sachs International and the London School of Economics, and former Irish Attorney General, former European Commissioner and former Director-General of the World Trade Organization, caused quite a stir in the printed media on the following day … here is Paper 2 from Seminar Session I … which went to the heart of discussions on the day …

Prof. John W O’Hagan, Dept. of Economics, Trinity College Dublin, Ireland

Shared Economic Sovereignty: Beneficial or Not, and Who Decides ?

Click the Link Above to read and/or download PDF File (635 Kb)

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Update:  2014-07-04 …

Economists exist and operate in a special bubble … in their own little isolated world of quasi-science and fantasy, where everything in ‘our’ society is seen merely as an input, or fuel, for economic development.  And when they talk about Sustainable Economic Growth … believe me, their notion of ‘sustainable’ is altogether different from our understanding of that word !

European Union Economic Governance

It should come as no surprise to learn, therefore, that economists are blissfully unaware that the EuroZone’s current directionless (and dysfunctional) economic governance is causing enormous instability and harm to the whole political entity that is the European Union …

EU Economic Governance & The European Semester - Who Does What and When, Every Year

Flow chart diagram, in colour, showing how it is proposed that The European Semester will operate … which EU Institution will do what, and at what stage every year.  Source: Council of the European Union.  Click to enlarge.

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This issue is too important for all of us … to be left to economists and national politicians, alone, to muddle through !

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Irish Nursing Home Care – Dysfunctional National Governance !!

On Tuesday last … 9 November 2010 … Ireland’s Office of the Ombudsman issued a Report to the Irish Oireachtas (the Dáil and Seanad) … in accordance with Section 6(7) of the 1980 Ombudsman Act … concerning an Investigation based on more than 1,000 individual complaints made, since 1985, on behalf of older people who were unable to get long-term nursing home care from their health boards … now the Health Service Executive (HSE).

Please Note Well … this Report is not just about Older People !

This document raises a number of very serious and fundamental issues concerning our current system of Dysfunctional National Governance in Ireland.  Every Irish person should, therefore, expend a small bit of time and effort in making themselves familiar with these problems … especially in the run-up to any by-elections … or, perhaps, even a general election … and certainly before we enter a prolonged period of being hammered in a Draconian Series of 4 Budgets !

This Report places a major question mark over the positions of Ms. Mary Harney T.D., Minister for Health & Children (a woman of strong ‘Boston-esque’, neo-liberal and anti-social convictions) … and the Senior Civil Servants (plural !) in Her Department.

And don’t be fooled into thinking, either, that the Department of Health & Children is our only dysfunctional national ministry !   See my previous Posts.

Ms. Emily O’Reilly, Ireland’s Ombudsman, deserves our full support !

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This is the Full Ombudsman’s Report …

9 November 2010 – Office of the Ombudsman

WHO CARES ? An Investigation into the Right to Nursing Home Care in Ireland

Click the Link Above to read and/or download PDF File (621kb)

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Conclusions (Executive Summary)

The conclusions of this investigation are easily stated:

  • The Health Act 1970 has required the State to provide nursing home care for those who need it.
  • It is an open question as to whether that obligation continues in place, notwithstanding recent amendments to the Health Act 1970.
  • The State has failed consistently to meet this obligation over four decades.
  • The State has failed over that same period, and despite repeated commitments (especially since 2001), to amend the law so as to bring actual practice and legal obligations into harmony.
  • Very many people over these decades have been deprived of their legal entitlement.
  • Access to nursing home care over this period has been marked by confusion, uncertainty, misinformation, inconsistency and inequity.
  • Very many people over this period have suffered significant adverse affect.
  • This situation has been allowed to continue with the full knowledge and consent of the responsible State agencies.
  • Arising from these failures, the State is now facing several hundred legal actions from, or on behalf of, people seeking compensation for the costs incurred in having to avail of private nursing home care.
  • These particular failures, which have been allowed to continue for decades, point inevitably to wider failures in government.

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The conduct of the investigation and the preparation of this report for the Oireachtas have been marked by an unprecedented level of rancour and disagreement.

The Department, in particular, has laid a multiplicity of charges against the Ombudsman regarding the manner in which the investigation has been conducted.  Amongst its charges are:

  • that the Ombudsman exceeded her jurisdiction in undertaking this investigation ;
  • that the Ombudsman failed to abide by fair procedures particularly in relation to the provision of a draft version of the investigation report ;
  • that the Ombudsman displayed prejudice and objective bias in the course of the investigation ;
  • that the Ombudsman displayed arrogance in purporting to interpret the law ;
  • that the Ombudsman has purported to deny the State bodies concerned their right to have the litigation (detailed in this report) determined by the Courts.

The Minister, acting on behalf of the Government, has informed the Ombudsman that the Government supports the submission of her Department in which these charges are made.  While the HSE, in general, has been more temperate, it has specifically charged the Ombudsman with attempting to influence the outcome of court proceedings.  In effect, the Department and the HSE are saying that the Ombudsman undertook this investigation in bad faith.

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In fact, the Ombudsman’s motivation in producing this report was five-fold:

     1. To highlight the very significant difficulties faced over several decades by families seeking to make arrangements for long-term nursing home care for a family member.

     2. To represent, in many instances through their own words, the distress and upset (including financial) of people who complained to the Ombudsman’s Office over the years in relation to nursing home care.

     3. To highlight the inadequacy and the tardiness of the State’s responses to these problems.

     4. To raise the issue of whether and, if so how, people adversely affected should have some recognition of having been failed by the State.

     5. To raise wider questions of governance prompted by the practices highlighted in this report.

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In the 2001 Report: ‘Nursing Home Subventions’, the then Ombudsman expressed the view that the issues of bad administration dealt with in that report reflected significant dysfunction in our system of government.  That view could, with only minor contextual amendments, be reproduced in full here with the same validity as in 2001.

The then Ombudsman identified deficits in three sets of relationships which, in his view, contribute significantly to this dysfunction.

These relationships are:

The Relationship between the Oireachtas and the Executive – the Constitutional model whereby the Legislature makes the laws and the Executive implements them has become a fiction; in fact, it is the Executive (Government) ‘which decides policy; which proposes legislation and ensures its passage through the Oireachtas and, subsequently, in its executive capacity ensures that the laws are implemented’.  Parliament is relatively powerless and not in a position to exercise the role (including that of calling the Executive to account) envisaged in the Constitution.

Relationships within the Executive – in the past, there was a clear division of functions as between the political (Ministerial) side and the official side.  The integrity of the governmental process depended, to a large extent, on the official side being seen to be non-political; the tension inevitably generated by this division was regarded as necessary and healthy.  “Good government”, as Professor Séamus Ó Cinnéide put it, “depended on a certain distance and balance between the two sides”.  This distance and balance no longer applies and, again to quote Professor Ó Cinnéide, this change is part of “an unspoken revolution in our system of governance”.  Again, another key element in the overall model of government has been discarded or, at the very least, diluted considerably.

Relationship between Department and Health Boards – similar to the relationships within the Executive, the relationship between the Department and the health boards is most effective where the latter are prepared to keep a certain distance from the former and to exercise, as necessary, their status as independent, statutory bodies.  But the health boards, for the greater part, failed to act independently; to ‘a large extent, health boards appear to act in relation to the Department as if they are satellites rather than independent bodies […]   The majority of the health boards were prepared to continue with a scheme, about which they increasingly had doubts, for as long as the Department told them they should.’

The present Ombudsman comments on these three areas from the perspective of today and concludes that, if anything, matters have disimproved rather than improved.  In relation to the role of the Oireachtas, the Ombudsman observes that parliament has been sidelined and exercises only a limited role.  Reflecting the views of many commentators, the Ombudsman observes that our governmental arrangements are undermined significantly by virtue of having an Executive which is too powerful and a Legislature which is too weak.

As regards relationships within the Executive, and taking the example of the Department of Health & Children, the Ombudsman observes that the distance between Ministers and senior civil servants – which was a necessary feature of our model of government – no longer exists.  In the wider context of the health service, the Ombudsman draws attention to a continuing confusion as to the respective roles of the HSE and of the Department.

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Findings (Executive Summary)

The Ombudsman finds, in relation to the type of complaints dealt with in this investigation, that the health boards (HSE) failed to fulfil their obligations to older people under section 52 of the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department.  As a result of these failures, very many older people (and their families) suffered significant adverse affect over several decades.  The Ombudsman finds that these failures of the health boards (HSE) and of the Department constitute (to use the language of the Ombudsman Act) actions “based on an undesirable administrative practice” and also actions “contrary to fair or sound administration”.  These findings are at a level of generality as this investigation is an ‘own initiative’ one rather than one linked to specific, named complainants.

The Ombudsman takes the view that the HSE and the Department should acknowledge formally that the State, in the case of older people needing long-term nursing home care, has not been meeting its obligations under section 52 of the Health Act 1970.  This acknowledgment could be in the form of a public statement from the two bodies and could be made on a ‘without prejudice’ basis.

There is no satisfactory solution to the issue of whether there should be financial redress for those who have been adversely affected by the State’s failure to provide long-stay care.  The financial consequences for the State, in meeting a recommendation to compensate all those adversely affected, would be enormous, potentially running to several billion euros.  In present circumstances, it appears this is not a cost which the State can meet.  Nor is it likely that the State will be in a position to meet this type of charge for many years to come.  On the other hand, not to recommend financial redress, might be seen as condoning maladministration and allowing bad practice to go unchecked.  It would also mean that individual people and their families are being left with nowhere to turn and with a financial burden to bear which, as the Ombudsman understands the law, should have been borne by the State.

With considerable reluctance, the Ombudsman takes the view that in present circumstances the public interest is best served in not recommending any specific redress in the sense of financial compensation for those affected adversely.  The Ombudsman suggests that some thought be given within the Department to devising some limited scheme under which families which have suffered serious financial hardship might be assisted.  One possibility, in this regard, is that the existing Supplementary Welfare Allowance scheme might provide the statutory mechanism for the making of one-off payments, based on exceptional need, for such people affected adversely by the State’s failure to provide nursing home care for a family member.

The Ombudsman feels it is vital that steps be taken to prevent situations, such as described in this report, coming about in the future; or, where they do come about, there should be mechanisms in place to deal with them at an early stage.  The Ombudsman proposes that, in future, measures to deal with such instances should be conducted with full transparency and in the public domain.  The Ombudsman proposes the creation of an independent group whose function would be to advise Government on how best to handle legal actions, or threatened legal actions, which involve numbers of people and which arise from a contended failure of a State agency to meet statutory obligations particularly in instances where those claimed to be affected belong to a vulnerable group in society.  Past examples of situations where such an approach might have been helpful include:

          –   the army deafness claims ;

          –   the contaminated blood claims ;

          –   education rights of autistic children ;

          –   provision of secure care for children ;    and

          –   the right of older people to long stay nursing home care.

This proposal is based on the premise that the State should react to such situations, not simply in legalistic terms, but in terms which have regard both to legal rights (including human rights), to the State’s finances and the overall public interest.  The proposal envisages that, while ultimate legal responsibility for dealing with such claims will continue to rest with the State (and its relevant agency), the direction of the State’s response should have regard to the advice of this group.  Amongst the options for this group would be that of stating a case to the High Court, perhaps at an early stage, in order to get legal clarity where that is needed.  The overall thrust of this proposal is that the State’s response to situations of this kind should be speedy, be made at an early stage, and be based on considerations of fairness and the public good rather than, as tends to happen at present, being defensive, combative and legalistic.

Some thought might be given to the possibility of such a group acting as adviser to the Attorney General in fulfilling the role of guardian of the public interest or, alternatively, that this group would replace the Attorney General in fulfilling that role.  In any case, there is certainly considerable scope for improving our governmental mechanisms with a view to ensuring that, where these major issues arise, they will be handled always with a view to securing the public interest.

Emily O’Reilly – Ombudsman – November 2010

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EU Sustainable vs. Green Public Procurement – Beware !

2010-11-02:  For a long, long time … too long … I have been bleating on about the major and substantial difference between Sustainable Design and Green Design … or ‘Sustainability’ and ‘Green-ness’.  See my previous Posts.

This bores me no end !

HOWEVER … there are some serious implications if this difference is not properly understood … particularly by individuals, groups or organizations attempting to advance the Application of Criteria which address Social and/or Ethical Concerns within, for example, the European Union’s Public Procurement Framework … or the EU’s Construction Product Framework.

The following is a nice little example of exactly what I am talking about … explained by no less an authority than the Directorate General for Environment in the European Commission itself … on its very own Public Procurement WebPage at  http://ec.europa.eu/environment/gpp/index_en.htm … as viewed, by me, on 2010-09-12 …

[ For a moment, let’s just overlook the simplistic and crude ‘three pillars’ understanding of Sustainable Development.  See my previous Posts.]

Sustainable Public Procurement (SPP) … means that public authorities seek to achieve the appropriate balance between the three pillars of sustainable development – economic, social and environmental – when procuring goods, services or works at all stages of the project.

Green Public Procurement (GPP) … means that public authorities seek to procure goods, services and works with a reduced environmental impact throughout their life cycle compared to goods, services and works with the same primary function that would otherwise be procured.

Practical Differences Between SPP & GPP !

GPP is often more easily accommodated than SPP within the existing legal and practical framework of procurement.  Green requirements can be included in technical or performance-based specifications for products, services and works.  Provided the conditions set out in the ‘Helsinki Bus’ and ‘Wienstrom’ Cases, and Evropaïki Dynamiki vs. European Environment Agency (EEA) … are met, green award criteria can also be applied (further information on these cases is available at  http://ec.europa.eu/environment/gpp/case_law_en.htm).

The application of Criteria aimed at addressing Social or Ethical Concerns can be more difficult in the context of regulated public procurement procedures.  Public authorities are specifically empowered to include social requirements in their conditions for the performance of contracts or to reserve certain contracts for performance by sheltered workshops or employment programmes (Articles 26 and 19 of Directive 2004/18/EC respectively).

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My Note:  DIRECTIVE 2004/18/EC of the European Parliament and of the Council, of 31 March 2004, on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

[ For another moment, let’s just overlook the unfortunate use of disability-related language … which fails, utterly, to take account of the 2001 World Health Organization’s International Classification of Functioning, Disability & Health (ICF).  See my previous Posts.]

Article 19 – Reserved Contracts

Member States may reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions.

The contract notice shall make reference to this provision.

Article 26 – Conditions for Performance of Contracts

Contracting authorities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications.  The conditions governing the performance of a contract may, in particular, concern social and environmental considerations.

ANNEX VI – Definition of Certain Technical Specifications

For the purposes of this Directive:

1. (a)  ‘technical specification’, in the case of public works contracts, means the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority.  These characteristics shall include levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling and production processes and methods.  They shall also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve ;

    (b)  ‘technical specification’, in the case of public supply or service contracts, means a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures ;

2.  ‘standard’ means a technical specification approved by a recognised standardising body for repeated or continuous application, compliance with which is not compulsory and which falls into one of the following categories:

–  International Standard: a standard adopted by an international standards organisation and made available to the general public ;

–  European Standard: a standard adopted by a European standards organisation and made available to the general public ;

–  National Standard: a standard adopted by a national standards organisation and made available to the general public.

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In order for a Criterion … any Criterion … to be acceptable within the European Union’s Public Procurement Framework, it should be expressly linked to the subject matter of the Contract … should be specific … and should be capable of objective verification.

Beware !!

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