edf response to the consultation on a draft general block ...conclusion of the united nations...

European Disability Forum

EDF response to the Consultation on a draft General Block Exemption Regulation

(the GBER) on state aid measures

June 2013

“In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.” Article 4 § 3 of the United Nations Convention on the Rights of Persons with Disabilities


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List of contents

1. Who we are .......................................................................................................... 3

2. Introduction .......................................................................................................... 3

3. Conclusion of the United Nations Convention on the Rights of Persons with

Disabilities by the European Union .......................................................................... 4

4. List of EDF proposals for changes to the current GBER proposal ................................ 5

4.1 Recitals ................................................................................................... 5

4.2 Definitions (article 2 and annex I of the GBER draft proposal) ....................... 6

4.3 Notification Thresholds (Article 4 of the GBER draft proposal) ...................... 9

4.4 Incentive effect (Article 6 of the GBER draft proposal) ............................... 10

4.5 Cumulation (Article 9 of the GBER draft proposal) ..................................... 10

4.6 Training aid (Article 27 of the GBER draft proposal) ................................... 11

4.7 Aid for the recruitment of disadvantaged workers or for the employment of disabled workers in the form of wage subsidies (Article 28 of the GBER draft proposal) .................................................................................................... 12

4.8 Aid for compensating the additional costs of employing disabled workers (Article 29 of the GBER draft proposal) .......................................................... 15

Annex 1 – Relevant extracts for the GBER from the United Nations Convention on the

Rights of Persons with Disabilities ......................................................................... 18

Annex 2 – List of EDF amendments to the current text of the Commission on a draft

General Block Exemption Regulation (the GBER) on state aid measures ................... 21

Acknowledgements .................................................................................................. 32

APPENDIX ................................................................................................................ 32

Contact Person at the EDF Secretariat: .................................................................... 32

EDF response to the Consultation on a draft General Block Exemption Regulation (the GBER) on state aid measures

The document is available in English and on alternative (PDF) format upon demand.

©European Disability Forum 2013. This document may be published, quoted and reproduced, provided the source is given.


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1. Who we are

The European Disability Forum (EDF) is the European umbrella organisation run by persons with disabilities and their families we represent the interests of 80 million persons with disabilities in Europe. Our mission is to ensure that persons with disabilities have full access to human rights through their active involvement in policy making and implementation in Europe. EDF is a member of the International Disability Alliance and the Social Platform and works closely to the European institutions, the Council of Europe and the United Nations.

2. Introduction

EDF welcomes the presentation of the Consultation on a draft General Block Exemption Regulation (the GBER) on state aid measures, and also welcomes the opportunity to express its position in relation with the provisions contained effecting workers with disabilities.

In 2008, EDF welcomed the regulation on General Block Exemption. The current GBER defines areas of action under which undertakings can receive aids by the state without distorting the internal market of the EU. Especially positive for persons with disabilities is the fact that the scope of the regulation covers training aids and aids for disadvantaged and disabled workers.

It is important to highlight that no major problems of implementation have come from the provision of aid in employment for disabled people. In this regard, specific articles refer to the possibility of the state to provide undertakings with individual aids for training covering up to 100% of the costs and to provide aids for employment of disabled workers covering both wage subsidies and the additional costs of employing persons with disabilities such as adaptations of the workplace or technical aids. In addition, further aids can be provided to sheltered workshops employing at least 50% of persons with disabilities.

In particular, EDF welcomed the fact that the regulation increased the percentage of aids allowed for wage subsidies, from 60% to 75%, in order to employ persons with disabilities and simplified the contractual conditions. Furthermore, the regulation allows the cumulation of aids in favour of disabled workers, meaning for example that incentives for both employment and training of persons with disabilities are allowed.

However, EDF identified room for improvement, especially with regards to the definitions of accessibility, sheltered employment and training conditions for persons with disabilities.

EDF is now answering the public consultation on a draft General Block Exemption Regulation (the GBER) on state aid measures with the wish to keep the instruments that have been proven to be effective and to add some improvements that could


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allow the EU to achieve a better regulation allowing better inclusion in employment for persons with disabilities.

EDF welcomes that the European Commission has kept in the draft proposal essentially the main elements of the current GBER. In the context of the current financial crisis persons with disabilities face unemployment rate that can be 20% higher than non-disabled persons and in case of severe disabilities, employment rate is only a 1/3 of the employment rate of people without disabilities. This is the reason why this regulation comes at a critical time where incentives for employment for people with disabilities should be strengthened.

3. Conclusion of the United Nations Convention on the Rights of Persons with Disabilities by the European Union

Since the last review of the General Block Exemption Regulation (GBER) the European Union has concluded the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD). The UN CRPD binds the Union since January 2011.

By a Council Decision of 26 November 2009, concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), the European Union is bound by this Convention to the extent of its competences.

The Council Decision includes an annex with a declaration of competences. This declaration states Community Acts which refer to matters governed by the Convention and illustrate the extent of the area of competence of the Community in accordance with the Treaty establishing the European Community.

The declaration of competences includes “in the field of independent living and social inclusion, work and employment” the Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation) (OJ L 214, 9.8.2008, p. 3)

The declaration of competences will be periodically reviewed to update the list of acts effected by the areas governed by the UN CRPD. The current review of the General Block Exemption Regulation (the GBER) on state aid measures is a unique opportunity to ensure that in the process of the State Aid Modernisation (“SAM”) the perspective of the UN CRPD is included in accordance to the Council Decision referred above.

The articles from the UN CRPD which are specially relevant for the General Block Exemption Regulation (the GBER) on state aid measures are: article 1 on purpose,


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article 2 “definitions”, article 9 on “Accessibility” and article 27 on “Work and Employment” Please see Annex 1 for the relevant extracts from these articles.

EDF also proposes a recital to avoid that thresholds related to this regulation does not diminish the financial intensity of the aid that it is foreseen under the European Social Fund.

In accordance with the elements referred above EDF would like to propose the following amendment to the European Commission draft proposal:

European Commission GBER draft Recitals

EDF proposal Recitals

Recital 22 bis (new) The European Union concluded the United Nations Convention on the Rights of Persons with Disabilities in December 2010. State aids is among the list of competences relating to independent living, social inclusion and employment which will be reviewed by the UN CRPD Committee on the basis of the EU report to be presented in 2013

Recital 51 bis (new) In case of training aid co-funded by the European Social Fund (ESF), and in order to optimize the investments during the period 2014-2020, the maximum threshold of the aid will be the same (as minimum) to the maximum allowed by the regulations of the ESF in regard to the region targeted by the aid.

4. List of EDF proposals for changes to the current GBER proposal

4.1 Recitals

In addition to the new recital proposed by EDF in the point 3 of this position paper, EDF would like to propose a general amendment to the text of recitals and articles. In order to ensure that the terminology used by this regulation is in compliance with


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the UN CRPD terminology, EDF suggests replacing all over the document “disabled worker” by “worker with disabilities”. EDF proposals in this regard can be found in the annex 2 of this position.

In regard to recital (50) EDF proposes to reinstate “compensation of the additional costs for the employment of workers with disabilities” among the central objectives of the economic and social policies of the Union and its members (as it is recognised in the recital 62 of the 2008 GBER)

European Commission GBER draft Recitals

EDF proposal Recitals

(50) The promotion of training and the recruitment / employment of disadvantaged and disabled workers constitutes a central objective of the economic and social policies of the Union and its Member States.

(50) The promotion of training and the recruitment / employment of disadvantaged and disabled workers constitutes a central objective of the economic and social policies of the Union and its Member States, including the tool for compensation of the additional costs.

4.2 Definitions (article 2 and annex I of the GBER draft proposal)

EDF believes that the definitions currently used by the 2008 GBER are all-embracing and have been instrumental to produce enough covering of the current national realities on the State Aids regulation for employment of persons with disabilities.

However, due to the restrictive definition of some governments in regard to disability (more linked to the eligibility to pension schemes systems rather than to the employment policies) the recognition of disability status becomes a real barrier for employers. Depending on the country the access to State Aid to support employment of workers with disabilities is easier or more difficult. Some countries’ definition of disability is legally quite restrictive and some others are more in compliance with the UN CRPD. This is the reason why EDF welcomed in 2008 GBER the definition 2.20.b.

Even though the current proposed definition is all-encompassing, the future regulation would benefit from one definition in compliance with the UN CRPD (article 1 “purpose” of the UN CRPD)

A more comprehensive definition of disability in compliance with the UN CRPD would bring more equality in the State Aids policies at EU level and would impede country differences in the implementation of State Aids notification exemptions. EDF


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proposes to replace the current article with the definition of the UN CRPD1 adapted to a worker with disabilities.

The compliance with the wording of the UN CRPD should also include the replacement of all references to “disabled workers” by “workers with disabilities”


European Commission GBER draft Article 2 – Annex I

Definitions

EDF proposal Article 2 – Annex I

Definitions

9. 'disabled worker' means any person:

(a) recognised as disabled under national law; or

(b) having a recognised limitation which results from physical, mental or psychological impairment;

9. 'disabled worker with disability’ means any person:



who has a long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in a work environment on an equal basis with other workers

The current 2008 GBER regulation takes the approach of EDF by defining “sheltered workshops” as undertakings instead of establishments. EDF suggests maintaining the current threshold of 50%, as proposed by the European Commission, so as to target more specifically persons with disabilities that face stronger difficulties in accessing the mainstream labour market or those with very severe disabilities.

The UN CRPD has brought a number of elements that are relevant for the SAM and in particular to the GBER review. This is the case of three main concepts that should be included in the Annex 1 of the current draft GBER. These concepts are (1) accessibility and (2) supported employment.

These concepts will clarify the scope of the implementation of all the costs that are eligible and related to the needs linked to the employment of persons with

1 UN CRPD Article 1: Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.


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disabilities.


Definitions


Definitions

New. Accessibility: appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical work or training environment, to transportation linked to work purposes, to information and communications, including information and communications tools, materials, technologies and systems in the working environment. These measures shall include the identification and elimination of obstacles and barriers in order to allow persons with disabilities to access employment and training on an equal basis with others

At the same time, supported employment services can greatly contribute to employment of persons with disabilities in the open labour market as this allows for workers with a disability to receive personalized support in the work place. These services are of utmost importance for some workers with disabilities in order to fully develop their capacity in an open environment as well as for building confidence of the employer.

EDF believes that the proposal from the European Commission could be strengthened in order to understand better the specific services of supported employment that could be referred in the future block exemption regulation.

Supported employment services range from support in engagement, vocational profiling, job development, job analysis, job support and career support.

Supported employment providers have a fundamental role to accompany the disabled worker through personal assistance and fading this assistance as soon as the worker with disability feels comfortable on the job. Providers of support employment also assist the undertaking in the recruitment process and the job support. This support is especially relevant for people and persons with intellectual and psychosocial disabilities as well as for workers that acquire a disability and return to employment.


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Definitions


Definitions

New. Supported employment: means support in engagement, vocational profiling, job development, job support, including personal assistance and coaching, and career support provided to people with disabilities to secure and maintain paid employment in the open labour market.

In regard to ‘sheltered employment’ a slightly change would be needed in order to ensure that sheltered employment employ workers with disability under comparable working conditions as workers in the same sector of activity in order to be in accordance with the UN CRPD.



Definitions


Definitions

22. 'sheltered employment' means employment in an undertaking where at least 50% of workers are disabled

22 sheltered employment means employment in an undertaking where at least 50% of workers are disabled workers with disability and are employed under comparable working conditions as workers in the same sector of activity

4.3 Notification Thresholds (Article 4 of the GBER draft proposal)

EDF welcomes article 4 Notification thresholds and the decision of the European Commission to maintain the current threshold limits exempted from notification.

In accordance with the semantic elements, coming from the UN CRPD, referred in point 3 and 4.1, EDF would like to propose the following amendment to the European Commission draft proposal:

European Commission GBER draft Article 4

EDF proposal Article 4

(j) aid for the employment of disabled workers in the form of wage costs: EUR

(j) aid for the employment of disabled workers with disabilities in the form of


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10 million per undertaking per year;

(k) aid compensating for additional costs of employing disabled workers: EUR 10 million per undertaking per year;

wage costs: EUR 10 million per undertaking per year;

(k) aid compensating for additional costs of employing disabled workers with disabilities: EUR 10 million per undertaking per year;

4.4 Incentive effect (Article 6 of the GBER draft proposal)

EDF agrees with the European Commission proposal.

In accordance with the proposals expressed above, EDF would like to propose just a semantic amendment as follows:



5. By derogation from paragraph 2, the following categories of aid shall be presumed to have an incentive effect if the conditions laid down in the relevant specific provisions in Chapter III are fulfilled: (a) aid for the recruitment of disadvantaged workers in the form of wage subsidies and aid for the employment of disabled workers in the form of wage subsidies, in accordance with Article 28, (b) aid compensating for the additional costs of employing disabled workers, in accordance with Article 29.

5. By derogation from paragraph 2, the following categories of aid shall be presumed to have an incentive effect if the conditions laid down in the relevant specific provisions in Chapter III are fulfilled: (a) aid for the recruitment of disadvantaged workers in the form of wage subsidies and aid for the employment of disabled workers with disabilities in the form of wage subsidies, in accordance with Article 28, (b) aid compensating for the additional costs of employing disabled workers with disabilities, in accordance with Article 29.

4.5 Cumulation (Article 9 of the GBER draft proposal)

EDF supports the current proposal from the European Commission on the Art 9. However it has been detected a possible mistake in the article 9.5 that should read ‘By way of derogation from paragraph 2(b)’.



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5. By way of derogation from paragraph 1(b), aid in favour of disabled workers, as provided for in Articles 28 and 29, may be cumulated with aid exempted under this Regulation in relation to the same eligible costs above the highest applicable threshold under this Regulation, provided that such cumulation does not result in an aid intensity exceeding 100% of the relevant costs over any period for which the workers concerned are employed.

5. By way of derogation from paragraph 2(b), aid in favour of disabled workers with disabilities, as provided for in Articles 28 and 29, may be cumulated with aid exempted under this Regulation in relation to the same eligible costs above the highest applicable threshold under this Regulation, provided that such cumulation does not result in an aid intensity exceeding 100% of the relevant costs over any period for which the workers concerned are employed.

4.6 Training aid (Article 27 of the GBER draft proposal)

EDF regrets that the aid intensity of the training aid has been diminished by 10% (in the current 2008 GBER) the aid intensity can amount up to 80% of the eligible costs.

It is important to highlight that in the current period of crisis when a number of vulnerable workers are facing restructuring of their companies or needs to enhance their professional skills, it is of paramount importance that training aid intensity is maintained.

EDF proposes to increase the aid intensity of eligible costs up to 90% by the way of including as well the costs of accessibility measures for workers with disabilities. Some examples in this regard are: training for people with physical disabilities requires accessible premises, that blind people need alternative formats, deaf and hard of hearing persons need sign language interpreters or captionists and that people with dyslexia or intellectual disabilities will need easy to read formats, people with autism spectrum disorders will need augmentative/alternative communication tools and environment accommodation as well as coach support. The provision of reasonable accommodation facilities would increase the costs of the training and it could be a disincentive for the undertaking to make them.




3. The eligible costs shall be: (a) trainers’ personnel costs, for the

3. The eligible costs shall be: (a) trainers’ personnel costs, for the


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hours during which the trainers participate in the training; (b) trainers’ and trainees’ operating costs directly relating to the training project such as travel expenses, materials and supplies directly related to the project, depreciation of tools and equipment, to the extent that they are used exclusively for the training project; (C) advisory service costs linked to the training project; 4. The aid intensity shall not exceed [50%] of the eligible costs. It may be increased, up to a maximum aid intensity of 70% of the eligible costs, as follows: (a) by 10 percentage points if the training is given to disabled or disadvantaged workers; (b) by 10 percentage points if the aid is awarded to medium-sized enterprises and by 20 percentage points if the aid is awarded to small enterprises;

hours during which the trainers participate in the training; (b) trainers’ and trainees’ operating costs directly relating to the training project such as travel expenses, materials and supplies directly related to the project, depreciation of tools and equipment, accessibility costs for trainees with disabilities, to the extent that they are used exclusively for the training project; (c) advisory service costs linked to the training project; 4. The aid intensity shall not exceed [50%] of the eligible costs. It may be increased, up to a maximum aid intensity of 70 90% of the eligible costs, as follows: (a) by 10 percentage points if the training is given to disabled workers with disabilities or disadvantaged workers; (a bis) by 20 percentage points if there is accessibility measures have to be foreseen, during the training, in order to allow for participation of workers with disabilities. (b) by 10 percentage points if the aid is awarded to medium-sized enterprises and by 20 percentage points if the aid is awarded to small enterprises;

4.7 Aid for the recruitment of disadvantaged workers or for the employment of disabled workers in the form of wage subsidies (Article 28 of the GBER draft proposal)

EDF welcomed the clarity that the 2008 GBER regulation brought to the Aid for recruitment of workers with disabilities. EDF understands the needs for simplification of the new regulation but would have preferred to make the difference for articles for disadvantaged workers and for workers with disabilities. This is the reason why EDF would promote to have again two different articles in order to

In accordance with the elements referred above EDF would like to propose the dividing article 28 into two different articles. Please see annex 2 for detailed proposal in this article.


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Aid for the recruitment of disadvanged workers or for the employment of

disabled workers in the form of wage subsidies


Aid for the recruitment of disadvantaged workers or for the

employment of disabled workers in the form of wage subsidies

Divided into two articles 28 and new 28 bis

1. Aid schemes for the recruitment of disadvantaged workers or for the employment of disabled workers shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The aid must lead to a net increase in the number of disadvantaged or disabled employees in the undertaking concerned, compared with the average over the previous twelve months. 3. Paragraph 2 does not apply where the post or posts shall have fallen vacant following voluntary departure, disability, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy or expiry of a fixed term contract. 4. Except in the case of lawful dismissal for misconduct the disadvantaged or disabled worker shall be entitled to continuous employment for a minimum period consistent with the applicable national legislation or any collective agreements governing employment contracts. 5. If the period of employment is shorter than 12 months, the aid shall be reduced pro-rata accordingly. 6. Eligible costs shall be: (a) the wage costs over a maximum period of 12 months following recruitment of a disadvantaged worker; (b) the wage costs over a maximum


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period of 24 months following recruitment of a severely disadvantaged worker; (c) the wage costs over any given period during which the disabled worker is employed. 7. The aid intensity shall not exceed: (a) 50% of the eligible costs, as regards aid for the recruitment of disadvantaged workers; (b) 75% of the eligible costs, as regards aid for the employment of disabled workers.

Article 28 bis Aid for the recruitment of disadvanged workers or for the employment of disabled workers with disabilities in the form of wage subsidies

1. Aid schemes for the recruitment of disadvantaged workers or for the employment of disabled workers with disabilities shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The aid must lead to a net increase in the number of disadvantaged or disabled employees with disabilities in the undertaking concerned, compared with the average over the previous twelve months. 3. Paragraph 2 does not apply where the post or posts shall have fallen vacant following voluntary departure, disability, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy or expiry of a fixed term contract. 4. Except in the case of lawful dismissal for misconduct the disadvantaged or


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disabled worker with disability shall be entitled to continuous employment for a minimum period consistent with the applicable national legislation or any collective agreements governing employment contracts. 5. If the period of employment is shorter than 12 months, the aid shall be reduced pro-rata accordingly. 6. Eligible costs shall be: (a) the wage costs over a maximum period of 12 months following recruitment of a disadvantaged worker; (b) the wage costs over a maximum period of 24 months following recruitment of a severely disadvantaged worker; (c) the wage costs over any given period during which the disabled worker with disability is employed. 7. The aid intensity shall not exceed: (a) 50% of the eligible costs, as regards aid for the recruitment of disadvantaged workers; (b) 75% of the eligible costs, as regards aid for the employment of disabled workers with disabilities.

4.8 Aid for compensating the additional costs of employing disabled workers (Article 29 of the GBER draft proposal)

EDF welcomes the inclusion of this article in the current draft proposal, following the 2008 GBER article 42.

EDF believes that the list of the eligible costs could have been improved in relation to 2008. This means that the costs that could be added would be:

- Accessible transport to the working place and for work related activities

- Costs of working areas when the worker with disabilities should follow a rehabilitation plan or due to psychosocial disabilities

- Costs of supported employment as defined in article 2/annex I


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Aid for compensating the additional costs of employing disabled workers


Aid for compensating the additional costs of employing disabled workers

with disabilities

1. Aid for compensating the additional costs of employing disabled workers shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The eligible costs shall be the following: (a) costs of adapting the premises; (b) costs of employing staff solely for time spent on the assistance of the disabled workers; (c) costs of adapting or acquiring equipment, or acquiring and validating software for use by disabled workers, including adapted or assistive technology facilities, which are additional to those which the beneficiary would have incurred had it employed workers who are not disabled; (d) where the beneficiary provides sheltered employment, the costs of constructing, installing or expanding the establishment concerned, and any costs of administration and transport which result directly from the employment of disabled workers. 3. The aid intensity shall not exceed 100% of the eligible costs.

1. Aid for compensating the additional costs of employing disabled workers with disabilities shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The eligible costs shall be the following: (a) costs of adapting the premises to make them accessible, as defined by article 2, for a worker with disability; (b) costs of employing staff solely for time spent on the assistance of the disabled workers; (c) costs of adapting or acquiring equipment, or acquiring and validating software for use by disabled workers with disabilities, including adapted or assistive technology facilities, which are additional to those which the beneficiary would have incurred had it employed workers who are not disabled; New point) costs of accessible transport to the working place and for work related activities New point) costs of working hours related to the impact of disability services such as rehabilitation, medical and psychological assistance, during those hours. New point) costs of supported employment as defined in annex I (d) where the beneficiary provides sheltered employment, the costs of constructing, installing or expanding


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modernising the production units of the undertaking concerned, training of supervisors and any costs of administration and transport which result directly from the employment of disabled workers with disabilities. 3. The aid intensity shall not exceed 100% of the eligible costs.


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Annex 1 – Relevant extracts for the GBER from the United Nations Convention on the Rights of Persons with Disabilities

Extract of relevant articles (definitions, accessibility, and employment) of the UN Convention on the Rights of Persons with Disabilities concluded by the EU in December 2010, and entered in to force in January 2011.

Article 1 Purpose

(…)

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

Article 2 Definitions

(…)

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

“Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.

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;


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(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 27 Work and employment

1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.

States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;

(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;


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(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;

(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;

(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;

(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business;

(g) Employ persons with disabilities in the public sector;

(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;

(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;

(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.


Annex 2 – List of EDF amendments to the current text of the Commission on a draft General Block Exemption Regulation (the GBER) on state aid measures

Recital/Article European Commission Draft GBER EDF proposal for amendments

Recital 22 (new) Recital 22 bis (new) The European Union concluded the United Nations Convention on the Rights of Persons with Disabilities in December 2010. State aids is among the list of competences relating to independent living, social inclusion and employment which will be reviewed by the UN CRPD Committee on the basis of the EU report to be presented in 2013

Recital 22 As regards aid for the recruitment of disadvantaged workers in the form of wage subsidies aid compensating for the additional costs of employing disabled workers, aid for SMEs' access to finance aid and aid in the form of reductions of environmental taxes, the existence of an incentive effect may be presumed if specific conditions set out for those categories of aid in this Regulation are fulfilled.

As regards aid for the recruitment of disadvantaged workers in the form of wage subsidies aid compensating for the additional costs of employing disabled workers with disabilities, aid for SMEs' access to finance aid and aid in the form of reductions of environmental taxes, the existence of an incentive effect may be presumed if specific conditions set out for those categories of aid in this Regulation are fulfilled.

Recital 27 Moreover, this Regulation should specify the circumstances Moreover, this Regulation should specify the circumstances


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under which different categories of aid may be cumulated. Aid exempted by this Regulation and any other compatible aid exempted under this Regulation or approved by the Commission may be cumulated as long as those measures concern different identifiable eligible costs.

Where different sources of aid are related to the same – partly or fully overlapping – identifiable eligible costs, cumulation should be allowed up to the highest aid intensity or aid amount applicable to that aid under this Regulation. This Regulation should also set out special rules for cumulation of aid measures with and without identifiable eligible costs, for cumulation with de minimis aid and for cumulation with aid in favour of disabled workers.

under which different categories of aid may be cumulated. Aid exempted by this Regulation and any other compatible aid exempted under this Regulation or approved by the Commission may be cumulated as long as those measures concern different identifiable eligible costs.

Where different sources of aid are related to the same – partly or fully overlapping – identifiable eligible costs, cumulation should be allowed up to the highest aid intensity or aid amount applicable to that aid under this Regulation. This Regulation should also set out special rules for cumulation of aid measures with and without identifiable eligible costs, for cumulation with de minimis aid and for cumulation with aid in favour of disabled workers with disabilities.

Recital 50 The promotion of training and the recruitment / employment of disadvantaged and disabled workers constitutes a central objective of the economic and social policies of the Union and its Member States

(50) The promotion of training and the recruitment / employment of disadvantaged and disabled workers constitutes a central objective of the economic and social policies of the Union and its Member States, including the tool for compensation of the additional costs.

Recital 51 Furthermore, the intensities of aid exempted by this Regulation should be increased if the training is given to disabled or disadvantaged workers.

Furthermore, the intensities of aid exempted by this Regulation should be increased if the training is given to disabled workers with disabilities or disadvantaged workers.

Recital 51 bis In case of training aid co-funded by the European Social


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(new) Fund (ESF), and in order to optimize the investments during the period 2014-2020, the maximum threshold of the aid will be the same (as minimum) to the maximum allowed by the regulations of the ESF in regard to the region targeted by the aid.

Recital 52 Certain categories of disabled or disadvantaged workers still experience particular difficulties in entering and remaining in the labour market. For this reason, public authorities are justified in applying measures providing incentives to undertakings to increase the levels of employment of these categories of workers, in particular of young people. Employment costs form part of the normal operating costs of any undertaking. It is therefore particularly important that aid for the employment of disabled and disadvantaged workers should have a positive effect on employment levels of those categories of workers and should not merely enable undertakings to reduce costs which they would otherwise have to bear. Consequently, such aid should be exempt from the notification requirement when it is likely to assist those categories of workers in entering or re-entering and staying in the job market.

Certain categories of disabled workers with disabilities or disadvantaged workers still experience particular difficulties in entering and remaining in the labour market. For this reason, public authorities are justified in applying measures providing incentives to undertakings to increase the levels of employment of these categories of workers, in particular of young people. Employment costs form part of the normal operating costs of any undertaking. It is therefore particularly important that aid for the employment of disabled workers with disabilities and disadvantaged workers should have a positive effect on employment levels of those categories of workers and should not merely enable undertakings to reduce costs which they would otherwise have to bear. Consequently, such aid should be exempt from the notification requirement when it is likely to assist those categories of workers in entering or re-entering and staying in the job market.

Article 2

Definitions

9. 'disabled worker' means any person:


9. 'disabled worker with disability means any person:



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who has a long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in a work environment on an equal basis with other workers.

New. Accessibility: appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical work or training environment, to transportation linked to work purposes, to information and communications, including information and communications tools, materials, technologies and systems in the working environment. These measures shall include the identification and elimination of obstacles and barriers in order to allow persons with disabilities to access employment and training on an equal basis with others

New. Supported employment: means support in engagement, vocational profiling, job development, job support, including personal assistance and coaching, and career support provided to people with disabilities to secure and maintain paid employment in the open labour market.


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22. 'sheltered employment' means employment in an undertaking where at least 50% of workers are disabled

22 sheltered employment means employment in an undertaking where at least 50% of workers are disabled workers with disability and are employed under comparable working conditions as workers in the same sector of activity

Article 4

Notification Thresholds

(j) aid for the employment of disabled workers in the form of wage costs: EUR 10 million per undertaking per year;

(k) aid compensating for additional costs of employing disabled workers: EUR 10 million per undertaking per year;

(j) aid for the employment of disabled workers with disabilities in the form of wage costs: EUR 10 million per undertaking per year;

(k) aid compensating for additional costs of employing disabled workers with disabilities: EUR 10 million per undertaking per year;

Article 6

Incentive effect

5. By derogation from paragraph 2, the following categories of aid shall be presumed to have an incentive effect if the conditions laid down in the relevant specific provisions in Chapter III are fulfilled: (a) aid for the recruitment of disadvantaged workers in the form of wage subsidies and aid for the employment of disabled workers in the form of wage subsidies, in accordance with Article 28, (b) aid compensating for the additional costs of employing disabled workers, in accordance with Article 29.

5. By derogation from paragraph 2, the following categories of aid shall be presumed to have an incentive effect if the conditions laid down in the relevant specific provisions in Chapter III are fulfilled: (a) aid for the recruitment of disadvantaged workers in the form of wage subsidies and aid for the employment of disabled workers with disabilities in the form of wage subsidies, in accordance with Article 28, (b) aid compensating for the additional costs of employing disabled workers with disabilities, in accordance with Article 29.

Article 9

Cumulation

5. By way of derogation from paragraph 1(b), aid in favour of disabled workers, as provided for in Articles 28 and 29, may be cumulated with aid exempted under this Regulation in

5. By way of derogation from paragraph 2(b), aid in favour of disabled workers with disabilities, as provided for in Articles 28 and 29, may be cumulated with aid exempted


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relation to the same eligible costs above the highest applicable threshold under this Regulation, provided that such cumulation does not result in an aid intensity exceeding 100% of the relevant costs over any period for which the workers concerned are employed.

under this Regulation in relation to the same eligible costs above the highest applicable threshold under this Regulation, provided that such cumulation does not result in an aid intensity exceeding 100% of the relevant costs over any period for which the workers concerned are employed.

Article 27

Training aid

3. The eligible costs shall be: (a) trainers’ personnel costs, for the hours during which the trainers participate in the training; (b) trainers’ and trainees’ operating costs directly relating to the training project such as travel expenses, materials and supplies directly related to the project, depreciation of tools and equipment, to the extent that they are used exclusively for the training project; c) advisory service costs linked to the training project; 4. The aid intensity shall not exceed [50%] of the eligible costs. It may be increased, up to a maximum aid intensity of 70% of the eligible costs, as follows: (a) by 10 percentage points if the training is given to disabled or disadvantaged workers;

3. The eligible costs shall be: (a) trainers’ personnel costs, for the hours during which the trainers participate in the training; (b) trainers’ and trainees’ operating costs directly relating to the training project such as travel expenses, materials and supplies directly related to the project, depreciation of tools and equipment, reasonable accommodation costs for trainees with disabilities, to the extent that they are used exclusively for the training project; (c) advisory service costs linked to the training project; 4. The aid intensity shall not exceed [50%] of the eligible costs. It may be increased, up to a maximum aid intensity of 70 90% of the eligible costs, as follows: (a) by 10 percentage points if the training is given to disabled workers with disabilities or disadvantaged workers; (a bis) by 10% if there is a need of provision of reasonable accommodation, during the training, for workers with disabilities.


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(b) by 10 percentage points if the aid is awarded to medium-sized enterprises and by 20 percentage points if the aid is awarded to small enterprises;

(b) by 10 percentage points if the aid is awarded to medium-sized enterprises and by 20 percentage points if the aid is awarded to small enterprises;

Article 28

Aid for the recruitment of disadvantaged workers or for the employment of disabled workers in the form of wage subsidies

1. Aid schemes for the recruitment of disadvantaged workers or for the employment of disabled workers shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The aid must lead to a net increase in the number of disadvantaged or disabled employees in the undertaking concerned, compared with the average over the previous twelve months. 3. Paragraph 2 does not apply where the post or posts shall have fallen vacant following voluntary departure, disability, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy or expiry of a fixed term contract. 4. Except in the case of lawful dismissal for misconduct the disadvantaged or disabled worker shall be entitled to continuous employment for a minimum period consistent with the applicable national legislation or any collective

1. Aid schemes for the recruitment of disadvantaged workers or for the employment of disabled workers shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The aid must lead to a net increase in the number of disadvantaged or disabled employees in the undertaking concerned, compared with the average over the previous twelve months. 3. Paragraph 2 does not apply where the post or posts shall have fallen vacant following voluntary departure, disability, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy or expiry of a fixed term contract. 4. Except in the case of lawful dismissal for misconduct the disadvantaged or disabled worker shall be entitled to continuous employment for a minimum period consistent with the applicable national legislation or any collective


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agreements governing employment contracts. 5. If the period of employment is shorter than 12 months, the aid shall be reduced pro-rata accordingly. 6. Eligible costs shall be: (a) the wage costs over a maximum period of 12 months following recruitment of a disadvantaged worker; (b) the wage costs over a maximum period of 24 months following recruitment of a severely disadvantaged worker; (c) the wage costs over any given period during which the disabled worker is employed. 7. The aid intensity shall not exceed: (a) 50% of the eligible costs, as regards aid for the recruitment of disadvantaged workers; (b) 75% of the eligible costs, as regards aid for the employment of disabled workers.

agreements governing employment contracts. 5. If the period of employment is shorter than 12 months, the aid shall be reduced pro-rata accordingly. 6. Eligible costs shall be: (a) the wage costs over a maximum period of 12 months following recruitment of a disadvantaged worker; (b) the wage costs over a maximum period of 24 months following recruitment of a severely disadvantaged worker; (c) the wage costs over any given period during which the disabled worker is employed. 7. The aid intensity shall not exceed: (a) 50% of the eligible costs, as regards aid for the recruitment of disadvantaged workers; (b) 75% of the eligible costs, as regards aid for the employment of disabled workers.

Article 28 bis

Aid for the recruitment of disadvantaged workers or for the employment of disabled workers with disabilities in the form of wage

1. Aid schemes for the recruitment of disadvantaged workers or for the employment of disabled workers shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The aid must lead to a net increase in the number of disadvantaged or disabled employees in the undertaking concerned, compared with the average over the previous twelve months.

1. Aid schemes for the recruitment of disadvantaged workers or for the employment of disabled workers with disabilities shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The aid must lead to a net increase in the number of disadvantaged or disabled employees with disabilities in the undertaking concerned, compared with the average over the previous twelve months.


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subsidies 3. Paragraph 2 does not apply where the post or posts shall have fallen vacant following voluntary departure, disability, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy or expiry of a fixed term contract. 4. Except in the case of lawful dismissal for misconduct the disadvantaged or disabled worker shall be entitled to continuous employment for a minimum period consistent with the applicable national legislation or any collective agreements governing employment contracts. 5. If the period of employment is shorter than 12 months, the aid shall be reduced pro-rata accordingly. 6. Eligible costs shall be: (a) the wage costs over a maximum period of 12 months following recruitment of a disadvantaged worker; (b) the wage costs over a maximum period of 24 months following recruitment of a severely disadvantaged worker; (c) the wage costs over any given period during which the disabled worker is employed. 7. The aid intensity shall not exceed: (a) 50% of the eligible costs, as regards aid for the recruitment of disadvantaged workers; (b) 75% of the eligible costs, as regards aid for the employment of disabled workers.

3. Paragraph 2 does not apply where the post or posts shall have fallen vacant following voluntary departure, disability, retirement on grounds of age, voluntary reduction of working time or lawful dismissal for misconduct and not as a result of redundancy or expiry of a fixed term contract. 4. Except in the case of lawful dismissal for misconduct the disadvantaged or disabled worker with disability shall be entitled to continuous employment for a minimum period consistent with the applicable national legislation or any collective agreements governing employment contracts. 5. If the period of employment is shorter than 12 months, the aid shall be reduced pro-rata accordingly. 6. Eligible costs shall be: (a) the wage costs over a maximum period of 12 months following recruitment of a disadvantaged worker; (b) the wage costs over a maximum period of 24 months following recruitment of a severely disadvantaged worker; (c) the wage costs over any given period during which the disabled worker with disability is employed. 7. The aid intensity shall not exceed: (a) 50% of the eligible costs, as regards aid for the recruitment of disadvantaged workers; (b) 75% of the eligible costs, as regards aid for the employment of disabled workers with disabilities.

Article 29 1. Aid for compensating the additional costs of employing disabled workers shall be compatible with the internal

1. Aid for compensating the additional costs of employing disabled workers with disabilities shall be compatible with


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Aid for compensating the additional costs of employing disabled workers with disabilities

market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The eligible costs shall be the following: (a) costs of adapting the premises (b) costs of employing staff solely for time spent on the assistance of the disabled workers; (c) costs of adapting or acquiring equipment, or acquiring and validating software for use by disabled workers, including adapted or assistive technology facilities, which are additional to those which the beneficiary would have incurred had it employed workers who are not disabled;

the internal market within the meaning of Article 107(3) of the Treaty and shall be exempt from the notification requirement of Article 108(3) of the Treaty, provided the conditions laid down in this Article and in Chapter I are fulfilled. 2. The eligible costs shall be the following: (a) costs of adapting the premises to make them accessible for a worker with disability; (b) costs of employing staff solely for time spent on the assistance of the disabled workers; (c) costs of adapting or acquiring equipment, or acquiring and validating software for use by disabled workers with disabilities, including adapted or assistive technology facilities, which are additional to those which the beneficiary would have incurred had it employed workers who are not disabled; New point) costs of accessible transport to the working place and for work related activities New point) costs of working hours related to the impact of disability services such as rehabilitation, medical and psychological assistance, during those hours. New point) costs of supported employment as defined in annex I


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(d) where the beneficiary provides sheltered employment, the costs of constructing, installing or expanding the establishment concerned, and any costs of administration and transport which result directly from the employment of disabled workers. 3. The aid intensity shall not exceed 100% of the eligible costs.

(d) where the beneficiary provides sheltered employment, the costs of constructing, installing or expanding modernising the production units of the undertaking concerned, training of supervisors and any costs of administration and transport which result directly from the employment of disabled workers with disabilities. 3. The aid intensity shall not exceed 100% of the eligible costs.


Acknowledgements

This position paper has been prepared in consultation with all EDF membership.

APPENDIX

Contact Person at the EDF Secretariat:

Javier Güemes, EDF Deputy Director

Tel: +32 (0) 2 282 46 00, Email: [email protected]

More information about EDF is available on www.edf-feph.org.

Should you have any problems in accessing the documentation, please contact the EDF Secretariat. (T: +32 (0) 2 282 46 00).

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