Conclusion: Where does minority protection stand in the EU?
This chapter has provided a snapshot of the key elements of the historical and current developments concerning minority rights protection in the EU. We have seen that although the EU is not a minority rights organisation, and does not set legally binding benchmarks for minority protection, it would be wholly inaccurate to conclude that the EU has little to do with minority rights. From the starting point of demanding minority protection in a political context within its mission for enlargement, the EU Treaty, in Article 2, now boldly declares that minority protection is fundamental to the very existence of the EU. While this claim is not borne out comprehensively in legal competences, there are numerous avenues in the EU through which minority rights can be pursued. The first is the EU's non-discrimination framework, which ensures that minorities who differ from others in terms of race, ethnicity, religion, national minority status, and to some extent, nationality, are protected from discrimination, in relation to a number of fields falling within the scope of the TFEU and relevant directives. This is a very important point for minority protection, as, within a minority rights framework, non-discrimination always serves as an important safety net, and starting point, for participation in society.
Beyond this, the protection of minority identities requires that diversity is actively protected and promoted. While EU law fares less well in this realm than in the non-discrimination field (where legal obligations are much stronger), the EU has engaged with promotion of diversity since the 1980s. Furthermore, things are improving. Alongside commitments to linguistic and cultural diversity, the EU has shown recent concern for protection of regional minority regimes, religious diversity and ensuring diversity in the democratic process of EU decision-making.
None of this, of course, amounts to a comprehensive policy in favour of minority protection; but it does serve as a step in the right direction. Furthermore, there exist a plethora of provisions which have a relevance to minority protection. Instead of a singular provision in the EU legal regime committing to minority protection, we find a range of EU laws open up to minority protection. Indeed, as the Council of Europe's FCNM demonstrates, minority protection is an all-pervasive concept; it can only truly be achieved if properly mainstreamed across all spheres.
Overall, however, despite some positive developments, there are some important omissions in EU law towards minority protection and also opacity regarding the place that minority protection has in the current and future vision of the EU. Two points in particular spring to mind in illustrating this. First, although Article 2 TEU was introduced in 2009, no effort has been made by the EU institutions to outline and clarify an EU position on this. Thus, minority protection in the EU remains without significant policy direction. Secondly, many of the recent steps towards minority protection are actually constrained by reference to member states' wishes. Closer analysis of the wording of judgements such as Bressol, and provisions on religious diversity or political participation show that the EU is required to respect the diversity arrangements that exist at national level. This may represent a positive development in that EU law is no longer permitted to breach national diversity arrangements. However, and crucially, the EU's protection for minorities extends only insofar as minority diversity and minority rights are already supported at domestic level. In other words, these developments do not create new forms of diversity or rights, but rather safeguard the existing arrangements, and, in turn, the legal and political sovereignty of member states. EU law does not permit the EU to challenge and enhance member states' poor levels of protection of minority rights. Such a scenario places serious doubts on any prospect of a significant evolution of EU minority protection.
The current position of minority rights protection in the EU can be summed up in three parts. The first is that there is now such a thing as EU 'minority rights' identity: the issue of minority protection is part and parcel of legal, political, sociological, media and other discussions which occur on a daily basis within, and in relation to, the EU. For proponents of minority rights, this is to be commended and is itself a fundamental achievement. Second, EU law impacts positively on minority protection through numerous avenues, largely because implementing some aspects of EU law, for example on non-discrimination or on cultural, linguistic, religious or political diversity, necessitates focus upon issues relevant to minorities. However, these competences and legal developments, though existing, remain under-used - an age-old problem with the EU in this field (Ahmed, 2009b) - and have not provided the EU with a settled direction for minority protection. Third, recent advances in the last few years provide potential for the EU's greater commitment to minority rights protection, not least through Article 2 TEU, which arguably provides a compelling basis for the EU institutions to outline more clearly the EU's relationship with minority rights - a task which has been taken up, to some extent, by the EU's Fundamental Rights Agency, if not by the EU institutions themselves.
- 1. The European Parliament, for instance, called for inclusion of minority rights in the EU's Charter of Fundamental Rights.
- 2. CJEU, Case C-391/09, Wardyn, 12 May 2011;ECJ, Case C-148/02, Garcia Avello  ECR I-11613.
- 3. CJEU, Case C-73/08, Bressol and Others  ECR I-2735.
- 4. ECJ, Cases C-137/84, Mutsch  ECR 2681;C-274/96, Bickel and Franz  ECR I-7637.
- 5. ECJ, Case C-281/98, Angonese v. Cassa di Riparmio di Bologna  ECR I-4139; CJEU, Case C-56/09, Zanotti, 20 May 2010.
- 6. CJEU, Case C-236/09, Test-Aschat  ECR I-773.
- 7. ECJ, Case C-54/07, Feryn  ECR I-5187.
- 8. See Chapter 3 in this volume.