The Treaty of Lisbon firmly states that respect for minorities is a value of the EU. As Tawhida Ahmed writes, however, this declaration has not been acted upon by the EU institutions; in particular, the creation of an explicit EU strategy on minority rights has still not been realised. In fact, the matter is still largely left to the member states to pursue on their own terms, with EU law playing a secondary role. This is despite the fact that the Lisbon Treaty signals that the EU is prepared to be more open and accepting of minority protection as a key value of the Union, with legally binding consequences.
Minority protection in EU internal law has been simultaneously a salient topic as well as a non-topic in European legal debates. Its salience has been secured by the academic and civil society push for the EU to better engage in real protection for minorities in Europe. Yet, one could call the topic a non-issue in that there were no direct legal provisions on minority protection in the EU Treaties. Consequently, legal commentary has largely been of an explorative nature, seeking to essentially unravel what an EU minority rights regime might potentially look like, but always mindful of the rather far-fetched nature of the exercise.
Today, although minority protection remains of a patchwork nature in EU internal law, the changes brought to EU law since the 2009 Treaty of Lisbon provide better grounds for its evolution. Although this new emphasis on minority rights and diversity must not be exaggerated (the EU Treaties still do not embody a general legal competence on minority rights), since 2009, the legal environment is one where concrete legal moves towards minority protection could actually occur.
The primary source of this potential change is Article 2 of the Treaty on European Union (TEU). Article 2 declares that the EU values respect for the rights of persons belonging to minorities, and while it is not one of the EU’s competencies, it does provide scope for notable legal consequences. It is a value to be promoted by the EU (Article 3 TEU); it is a value which is requested of acceding states (Article 49 TEU); and it is a value which, if breached by member states has been determined, can trigger the Article 7 TEU investigation procedure, whereby certain rights of member states can be suspended by the EU. In short, in terms of explicit commitment to minority rights, it is a marked advancement of the pre-2009 legal environment where minority protection in the EU was explicitly acknowledged only as a political requirement in the process leading to state accession to the EU.
Aside from criticisms of substantive content (or lack thereof) of EU minority protection, one of the major deficiencies with EU minority policy (in the internal sphere) before 2009 was the absence of an explicit EU strategy on minority protection. The EU was largely a passive actor in the field and showed little signs of dissatisfaction with that role. Today, one may have hoped that Article 2 would provoke or even obligate a change in this attitude. However, this has not been the case in the three years since the Lisbon Treaty entered into force. Instead, the EU remains passive and devoid of strategy. The EU institutions have so far responded disappointingly to the novelties within the Treaty of Lisbon; Article 2 TEU has triggered no significant efforts on the part of the EU institutions to carve out a defined policy field for minority protection in the EU.
For instance, although the European Commission (Directorate-General Justice) now has a webpage entitled ‘minorities’, its content is disappointing. After introducing minority protection as a value of the EU in Article 2 TEU, it then limits its discussion mainly to the policy of non-discrimination, before pointing out what the EU cannot do in the field of minority rights (i.e. it has no general powers in the field). All of this is summed up in twenty or so lines, with no further links provided to the topic of minority protection in the EU. There appears therefore to be few dedicated efforts towards acting on the changes to EU legal provisions made by the Treaty of Lisbon. As such, the EU has not addressed its pre-Lisbon failure to utilise its legal provisions for the protection of minorities.
An explicit strategy on a sensitive topic like minority protection is of course a risk to the smooth running of European political and legal integration. However, a strategy does not need to be groundbreaking or interventionist of member states: some form of explicit EU acknowledgement of its role in minority protection is needed in order to serve as a starting point for moving forward a debate which has remained static for a number of decades now.
On the other hand, the failure of the EU to provide this starting point may in itself represent its strategy on minority protection: it may signify that the EU sees itself as continuing to exercise a passive role in the field, and one which is secondary to its member states. This would be commensurate with several other legal developments in Lisbon which see decisions on the content of minority protection as within the rightful jurisdiction of the EU member states. For example, provisions encouraging or respecting the role of regional and local entities in EU decision-making (Article 4(2) TEU; Article 5 TEU) seem to implicate bodies which are already recognised by member states, leaving no scope for the participation of other bodies, for example those which are struggling to gain recognition in member states or which deserve recognition. The Treaty likewise requires the EU to respect pre-existing legislative, administrative or customary traditions of the member states in relation to animal welfare (Article 13 Treaty on the Functioning of the European Union – TFEU) or to maintain relationships with religious organisations which have a pre-existing status under national law (Article 17 TFEU).
So perhaps these Treaty provisions speak loud and clear as to the strategy the EU embraces for minority protection since 2009. However, these provisions relate to specific fields and cannot constitute the full interpretation of Article 2 TEU and other Treaty developments which signal the EU’s preparedness to be more open and accepting of minority protection as intrinsic to its values and identity.
Note: This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics.
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Tawhida Ahmed – University of Reading
Dr Tawhida Ahmed is a Lecturer at the School of Law at the University of Reading. Her areas of interest include EU Law; International Law; human rights; minority rights. She is the author of The Impact of EU law on Minority Rights (Hart, 2011)