At the time of a first assessment, ten years after the adoption of the law n ° 2005-102 of February 11, 2005 for equal rights and opportunities, participation and citizenship of people with disabilities, address the issue the effectiveness of rights linked to the recognition of disability is, in several ways, a challenge.
First, because assessing the effectiveness of rights is in itself a complex issue. Ensuring their effectiveness would amount to ” giving rights the force of law “, in the words of a campaign launched by Amnesty International a few years ago. Because this is a question that has become central in legal reflection 1 .
As J. Commaille notes, “law and public action (as a new form of public policy) can no longer be justified except by their results” 2.
But we still need to agree on the meaning to be given to this search for effectiveness. We can, with Véronique Champeil-Desplats, “agree on the fact that this notion refers to the general question of the passage from having to be to being or, in other words, from the statement of the legal norm to its realization or its implementation in the world ” 3 .
The notion of the effectiveness of fundamental rights thus refers to the idea of observing and respecting the norm that enunciates the law. Different writings have shown that the study of the effectiveness of fundamental rights can result from a combined and compared use of different concepts 4.
More precisely, the analysis of the effectiveness of fundamental rights leads to questions on four questions. First, of the validity of rights: are rights proclaimed, and what consequences can be drawn from this proclamation, or absence of proclamation, of rights? Secondly, that of the enforceability of these rights, which refers to their implementation: do the guaranteed rights benefit from legal remedies enabling them to be respected? in other words, the question of opposability joins that of the justiciability of rights. Third, the efficiency of fundamental rights. Efficiency is a quality attached to an action “which produces an effect”. In other words, it is a question of being interested here in the effects produced by the fundamental rights and their irruption in the hierarchy of the norms. Finally, a fourth question arises: that of the effectiveness of rights. Efficiency is said of something that produces the expected effect, which exerts an action proportionate to the expected ends 5 . The question then shifts to evaluating the results obtained in relation to the expected objectives.
Applied to the rules relating to disability, the analysis grid finds full application. Indeed, the ambition of the law of February 11, 2005 was to recognize new rights for people with disabilities. “Based on the general principles of non-discrimination and free choice by each of his life project”; the billwas presented as “making it possible to guarantee equal rights and opportunities for people with disabilities” and to reinforce accessibility, not only of places and public spaces, but also of services, with the creation of departmental houses of disability supposed to be one-stop-shops facilitating access to rights. The emphasis was thus placed by the text on the proclamation of rights and their enforceability. But what about their efficiency and effectiveness? If the starting point was the recognition of rights, ten years later, the situation seems dominated by complexity: complexity of the legal concept of handicap, first (1); complexity of access to law, then (2); finally, complexity of access to the judge (3).
I. THE COMPLEXITY OF THE LEGAL CONCEPT OF DISABILITY
One of the great merits of the 2005 law is to have established a legal definition of disability. Constitutes a handicap, within the meaning of French law 6 , any limitation of activity or restriction of participation in life in society suffered in his environment by a person due to a substantial, lasting or definitive deterioration of one or more physical functions. , sensory, mental, cognitive or psychic, of a multiple handicap or a disabling health disorder 7 . The definition laid down by the law of 2005 and codified in the Code of Social Action and Families is thus both medical and social, referring to the limitation of the possibilities of interaction of an individual with his environment, caused by a disability. causing disability, permanent or not 8 .
This definition must however coexist with others, particularly in the European and international sense. Thus, the International Convention on the Rights of Persons with Disabilities (CIDPH), adopted on December 13, 2006 by the United Nations General Assembly, defines disability as a situation resulting from the interaction between a person with a disability and various barriers that can hinder their full and effective participation in society on an equal basis with others 9 .
But above all it must coexist in domestic law with related concepts, from which it differs. In the first place, that of infirmity, historically established by the law of July 14, 1905 relating to compulsory assistance to the elderly, the infirm and the incurably deprived of resources . The notion of infirmity refers to a cause of impairment of functions and is assessed in itself, independently of its consequences. Its depreciating connotation means that it is hardly used any more 10 . The concept of disability should not be confused with that of incapacity either, which depends on a legal assessment and places the person – disabled or not – under a protected legal regime 11 and is similar to that of vulnerability 12. Finally, disability and dependency must be distinguished, because of the choice made by the French legislator to distinguish between the care of old age and that of disability. Dependence, defined in opposition to autonomy, is assessed in relation to the age of the person, and refers to the situation of the elderly who “need help to carry out the essential acts of life. or whose condition requires regular monitoring ” 13 . It is assessed according to a national grid for the allocation of the personalized autonomy allowance 14 . However, a parallel is often drawn between the situation of elderly people with loss of autonomy and those of people with disabilities 15 .
On the other hand, the concept of handicap is closer to that of incapacity and invalidity. As the doctrine notes, an examination of the case-law relating to the protection of workers’ health highlights the interweaving of the concepts of medical incapacity, invalidity and handicap, this combination being the source of difficulties generating litigation 16 .
On the one hand, the concept of invalidity refers to the functional insufficiency of one or more organs having consequences on working capacity. The concept is used on a technical level as a condition for entitlement to a pension paid under invalidity insurance 17 . The benefit of the pension supposes an “invalidity” reducing by at least two thirds the capacity for work or gain 18 . The amount of the pension, which takes over from health insurance rights, is conditioned by the classification of the insured in one of the three categories of disability provided for in the texts, according to the impact of the disability on the ability to work and lead an independent life 19. The pension ends at the legal retirement age: it is then replaced by an old-age pension granted in respect of incapacity for work 20 .
As for incapacity for work, it comes under social security law and employment law. Is unfit for work, the insured who is not able to continue the exercise of his job without seriously damaging his health and who is definitely suffering from a medically established incapacity for work, taking into account his physical abilities mental health in the exercise of a professional activity 21. Thus, the recognition of medical incapacity for work allows a social insured to benefit from the full rate for the calculation of his old age pension even though he does not justify the required insurance period when he reaches the legal retirement age. Aptitude for work, assessed by the workforce doctor, is also a condition of access to unemployment insurance benefits 22. Unfit is also understood in the sense of unfitness for the job and is assessed by the occupational physician. However, invalidity and unfitness for work are not synonymous: one can be disabled and able according to the case law of the Court of Cassation, which considers that “” the award of an invalidity pension of the second category by a social security does not imply that the beneficiary is unfit for work within the meaning of Article L. 351-1 of the Labor Code ” 23. Just as one can be disabled and able to work, which is evident from the very status of disabled worker. Indeed, according to article L5213-1 of the Social Security Code, “a disabled worker is considered to be any person whose possibilities of obtaining or keeping a job are effectively reduced following the alteration of one or more physical, sensory, mental or psychic functions ” 24 .