Research Handbook on Minority Politics in the European Union 1800375921, 9781800375925

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RESEARCH HANDBOOK ON MINORITY POLITICS IN THE EUROPEAN UNION

Research Handbook on Minority Politics in the European Union Edited by

Tove H. Malloy Professor of European Studies, Department of European and International Law, Europa-Universität Flensburg, Germany and External Lecturer, Department of Social Sciences and Business, Roskilde University, Denmark

Balázs Vizi Research Professor, Institute for Minority Studies, Centre for Social Sciences, Hungary and Associate Professor, Department of International Law, University of Public Service, Hungary

Cheltenham, UK • Northampton, MA, USA

© Tove H. Malloy and Balázs Vizi 2022

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2022944509

This book is available electronically in the Political Science and Public Policy subject collection http://dx.doi.org/10.4337/9781800375932

ISBN 978 1 80037 592 5 (cased) ISBN 978 1 80037 593 2 (eBook)

EEP BoX

Contents

List of figuresvii List of tablesviii List of contributorsix 1

Introduction to the Research Handbook on Minority Politics in the European Union1 Tove H. Malloy and Balázs Vizi THE POLITICS OF THE ACQUIS COMMUNAUTAIRE

PART I 2

The Treaties and minority rights Rainer Hofmann and Moritz Malkmus

3

Fundamental rights and racial and cultural minorities in the EU: carving out a mandate to protect ‘Others’ Kyriaki Topidi

38

4

Fundamental rights and non-EU minorities: from an ambiguous concept to an integrated society? Roberta Medda-Windischer and Katharina Crepaz

62

5

The Court of Justice of the European Union and ‘minorities’ Kristin Henrard

6

European Union law and international minority rights law Norbert Tóth

PART II

16

84 112

THE POLITICS OF DECISION-MAKING AND POLICY-MAKING

7

The European Parliament, the Council and the European Council Noémi Nagy and Balázs Vizi

128

8

The European Commission and minority rights Tawhida Ahmed

144

9

Enlargement and minority politics: the unravelling of the EU’s transformative power? Tove H. Malloy

10

The democratization efforts Petra Lea Láncos

162 190

v

vi  Research handbook on minority politics in the European Union PART III THE POLITICS OF DIVERSITY 11

Linguistic diversity and language rights Jose Ramón Intxaurbe Vitorica and Eduardo Ruiz Vieytez

211

12

The cultural policy of the European Union Miklós Király

230

13

European Union Roma policy: under construction Melanie H. Ram

250

PART IV THE POLITICS OF COHESION 14

European Union regional policy and national minorities Tamara Hoch

15

Between dynamic practice and normative limits: minorities and debordering processes in the European Union Alice Engl

16

Special territories in the European Union Maria Ackrén

17

Problem territories and internal peace: minority nations and ‘internal enlargement’ in the European Union Tove H. Malloy

PART V

272

289 309

330

THE POLITICS OF EXTERNAL ACTION

18

Minority rights and European Union conditionality in the Western Balkans: from external to internal politics? Maria Dicosola

19

The ‘near abroad’: the European Union, minority rights and the Eastern neighbourhood365 Graham Donnelly and Federica Prina

20

The European Union and global development cooperation: promoting minority rights? Laia Pau Romaní and Joshua Castellino

Index

347

398 423

Figures

11.1

Promotion of diversity and integration in the EU and in its member states

226

14.1

EU frameworks and protection, preservation and promotion of minorities

275

15.1

Geographic distribution of cross-border EGTCs with a member located in a minority settlement area

298

19.1

EU anti-discrimination interventions: key documents

374

19.2

Frequency of inclusion of minority issues in EU–EaP3 documents during VLAP negotiations

375



vii

Tables

1.1

Three phases of EU minority politics

15.1

Classification of the minority situation in cross-border EGTCs with a member located in a minority settlement area

299

16.1

The Outermost Regions of the EU

312

16.2

The Overseas Countries and Territories of the EU

316

16.3

Examples of territories sui generis320

16.4

Summary of the regions in this study

325

19.1

Anti-discrimination in EaP3 VLAP Action Plans

377

viii

4

Contributors

Maria Ackrén has been Associate Professor in Political Science at Ilisimatusarfik/University of Greenland since 2011. She originally came from the Åland Islands and took her PhD in Political Science at Åbo Akademi University in Finland in 2009. She was also appointed as Adjunct Professor in Political Science at Åbo Akademi University in 2015. Her research focuses on territorial autonomies in the world, island studies, regional parties, methodological issues and international relations with a focus on Arctic/Greenlandic relations. She has published widely in national and international journals and various national and international anthologies. Tawhida Ahmed is Reader at City Law School, University of London, UK. She publishes on the protection of human rights of minorities and other vulnerable persons, combining domestic, European and international perspectives on these issues. She is the author of the book The Impact of EU Law on Minority Rights, which offers a comprehensive analysis of the features of European Union (EU) law relevant to minority rights. Joshua Castellino is Executive Director of Minority Rights Group International. He founded the School of Law at Middlesex University London, UK, where he retains his professorship and holds visiting academic positions at the College of Europe, Poland; Oxford University, UK; and the Irish Centre for Human Rights, Ireland. He sits on governing boards of civil society organisations in India, the Netherlands, the UK, Hungary and Italy, among others. Before completing his PhD in International Law, he worked as a journalist in Mumbai, India. He has published eight books and numerous articles on international law, including the well-known Minority Rights Series. Katharina Crepaz, PhD, is Senior Researcher at the Institute for Minority Rights of Eurac Research, Italy, and Privatdozentin (Senior Lecturer with habilitation) at the Technical University of Munich, Germany. She holds a PhD in Political Science (University of Innsbruck, Austria, 2015) and a Habilitation in Health Sciences with Special Focus on Diversity Governance (Technical University of Munich, Germany, 2020). Her research and teaching focuses on different types of societal diversity (e.g., minorities, migrants, gender), on ensuring inclusion and participation for diverse groups, and on the nexus between health and diversity. Maria Dicosola is Associate Professor of Comparative Public Law at the Department of Law of the University of Bari A. Moro, Italy. Her research interests focus in particular on human and minority rights, constitutional and democratic transitions, and citizenship studies. She is the author of several publications in those fields, such as the book Stati, nazioni e minoranze: La ex Jugoslavia tra revival etnico e condizionalità europea (States, Nations and Minorities: Former Yugoslavia between Ethnic Revival and European Conditionality). Graham Donnelly is a Research Affiliate of the School of Social and Political Sciences at the University of Glasgow, UK, having completed a PhD in Russian, Central and East European Studies at the University of Glasgow in 2018, focusing on EU engagement in minority rights ix

x  Research handbook on minority politics in the European Union issues in Moldova, Ukraine and Georgia. During his PhD studies, he worked extensively with the European Centre for Minority Issues in both Flensburg and in its Caucasus office in Tbilisi, where he led on the 2015 Eastern Partnership Minorities Network’s response to the European Commission’s review of the European Neighbourhood Policy. Alice Engl is Senior Researcher and Leader of the Research Group ‘Autonomies, Boundaries and Identities’ at the Institute for Minority Rights of Eurac Research in Bolzano/Bozen, Italy. She holds an MA and a PhD in Political Science (University of Innsbruck) and a postgraduate MA in European Studies (University of Vienna). Her research focuses on minorities in sub-state cross-border cooperation processes and inter-state relations and the EU integration processes, with a particular focus on the impact of EU cohesion policy on border regions with minority identities. Kristin Henrard is Professor of International Law at the Brussels School of Governance, Belgium. She co-directs the Fundamental Rights Centre at the Vrije Universiteit Brussel. Previously she was Professor of Human Rights and Minorities at Erasmus University Rotterdam (2007–20). She has more than 160 publications, a substantial part of which pertain to human rights and minorities, ranging from educational rights and linguistic rights to the prohibition of (racial) discrimination, socio-economic and political participation and religious fundamental rights. Several of her publications elaborate on the role of international courts and their legitimacy concerns (in this respect). She continuously expands her range to multi-disciplinary papers, particularly pertaining to integration and nationality/citizenship. Tamara Hoch earned her doctorate in Political Science at Roskilde University in 2014 with a thesis on the Europeanisation of national minority politics in the EU. Since then, she has been a lecturer at different universities in Denmark and Germany of various courses within EU studies, public policy studies and international politics. For nearly five years, Dr Hoch was Chief Editor of the Journal on Ethnopolitics and Minority Issues in Europe. Her main research interests focus on EU politics and policies, European frameworks for national minorities and Europeanisation studies, and she has published widely on these topics. Rainer Hofmann, Dr iur., is Professor of Public Law, Public International Law and European Law at Goethe University Frankfurt, Germany, and President of the German Branch of the International Law Association. He was a member and President (1998–2004, 2008–12) of the Advisory Committee on the Council of Europe Framework Convention for the Protection of National Minorities, and was a member of the Executive and the Management Board of the EU Fundamental Rights Agency representing the Council of Europe. Miklós Király is Professor in the School of Law at Eötvös Loránd University (ELTE), Budapest, Hungary. He has been Head of Department of Private International Law and European Economic Relations since 1999. He is a former member of the EU Expert Group on a Common Frame of Reference in the Area of European Contract Law (2010–14), a member of the European Law Institute (ELI) and a former member of the European Law Institute Council (2013–21). He has previously served as a member of the Governing Council of UNIDROIT (the International Institute for the Unification of Private Law) in Rome (2014–18). He regularly teaches on the law of the EU, the law of international economic relations and private international law. He is author of some 100 studies on European law, civil law and private international law.

Contributors  xi Petra Lea Láncos, LLM, PhD, habil., is an Associate Professor at Pázmány Péter Catholic University, Budapest, Hungary. She was a Junior Research Fellow at the Max Planck Institute for Comparative Law and Public International Law, Heidelberg, from 2006–07. Between 2016 and 2019 she was a Research Fellow at the Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer, Germany. Besides her academic career, she has worked at the Office of the Commissioner for Fundamental Rights (2013–15) and the National Media and Infocommunications Authority (2015–16), and since 2019 she has been working at the Constitutional Court of Hungary. She is Editor of the Hungarian Yearbook of International Law and European Law. Since 2022 she has been a member of the Committee of Experts of the European Charter for Regional or Minority Languages. Moritz Malkmus, Dipl.-Jur., is a Research Assistant and PhD candidate at the Chair of Public Law, Public International Law and European Law of Professor Rainer Hofmann at Goethe University Frankfurt, Germany. His work focuses on the protection of so-called ‘New Minorities’ under international law. Tove H. Malloy is Professor of European Studies at the Europa-Universität Flensburg, Germany and External Lecturer at Roskilde University, Denmark. She is the former Director of the European Centre for Minority Issues in Flensburg, Germany, and has been a member of the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities, for which she was elected Gender Equality Rapporteur (2011–18). She is a political theorist by background, specialising in the political and legal aspects of national and ethnic minority rights in international relations and international law, especially in the European context. She is the author of National Minority Rights in Europe and has co-edited a number of volumes on minority rights protection and non-territorial autonomy, as well as two textbooks. She is a co-founding member of the COST (European Cooperation in Science and Technology) project ENTAN (European Non-Territorial Autonomy Network) and serves as consultant with the Council of Europe and the OSCE (Organization for Security and Co-operation in Europe). She holds a PhD in Government from Essex University, UK. Roberta Medda-Windischer, Dr (LLM, PhD), is Senior Researcher and Group Leader for Equality and Diversity in Integrated Societies at the Institute for Minority Rights of Eurac Research, Bolzano/Bozen, Italy. She is an international lawyer specialising in minority protection, migration issues, diversity management and human rights. Dr Medda-Windischer worked as Legal Officer for various international organisations, including the European Court of Human Rights, the United Nations (UN) High Commissioner for Refugees, the OSCE and the UN Centre for Human Rights. At Eurac Research, her research focuses on the protection of minorities in international law and on new minorities stemming from migration. Noémi Nagy is Associate Professor at the Department of International Law, University of Public Service (Ludovika), Budapest, Hungary. She formerly worked at the Faculty of Law, University of Pécs, Hungary; the MTA-ELTE Research Group on Legal History, Hungary; the Research Institute for Linguistics, Hungarian Academy of Sciences; and the Wirth Institute for Austrian and Central European Studies, University of Alberta, Edmonton, Canada. She holds a PhD in Law as well as university degrees in law and psychology. Her research focuses on language rights, minority rights and the international protection of human rights.

xii  Research handbook on minority politics in the European Union Federica Prina is a Lecturer in Security Studies at Central and East European Studies (CEES), in the School of Social and Political Sciences of the University of Glasgow, UK. She has published widely on minority rights and inter-ethnic relations in the Russian Federation. She is a Managing Editor of the European Yearbook of Minority Issues and sits on the editorial board of Europe-Asia Studies. Previously, she was a Research Associate at the University of Glasgow for a European and Social Research Council-funded project on non-territorial autonomy and minority participation in Central and Eastern Europe (2014–17), and a Researcher at the European Centre for Minority Issues, Flensburg, Germany (2011–13). Melanie H. Ram (PhD, George Washington University) is Professor of Political Science at California State University, Fresno, US, and a scholar of international organisations, EU enlargement, Central and East European politics, and human rights. She has followed domestic and international advocacy, agenda-setting and policymaking regarding Roma since the mid-1990s, particularly in the context of European integration. Her work is published in Global Governance, Europe-Asia Studies, Ethnopolitics, Comparative European Politics and Studies in Comparative International Development, among others. Laia Pau Romaní has worked as Development and Partnerships Coordinator at the Fundraising Department of Minority Rights Group International since February 2019. She has extensive experience in statutory funding, programme design, project management and grant management in non-governmental and international organisations. She has more than eight years of experience working in the field of human rights and minority rights, including research, capacity-building, advocacy, and monitoring and evaluation work, with field experience in the Western Balkans, in Kosovo. Her previous employers include the OSCE, the European Commission and the European Centre for Minority Issues. She holds a master’s degree in History and another in International Human Rights Law and Democratisation. Eduardo Ruiz Vieytez is Professor at the University of Deusto, Bilbao, Spain, where he acts as Vice Rector for University Strategy. He has previously been the Dean of the Faculty of Social and Human Sciences and Director of the Human Rights Institute. He has also served as Legal Adviser of the Basque Ombudsman. Among other responsibilities, Dr Ruiz Vieytez has been a member of the Spanish Council for Integration of Migrants, the Spanish Observatory for Religious Pluralism and the Basque Culture Official Institute. He has also participated in several missions of the Council of Europe concerning minorities in different countries. His research and publications deal mainly with integration policies, minority rights, and the management of religious, linguistic and cultural diversity. Kyriaki Topidi, Dr habil., is currently Head of the Research Cluster on Culture and Diversity and a Senior Research Associate at the European Centre for Minority Issues, Germany. Her research interests focus on diversity management, minority protection rights and mechanisms (with a special interest in religion), and human rights law. She is the author and editor of a number of volumes and scientific articles. Norbert Tóth holds a master’s degree in Law and a master’s in Political Science. He also obtained a PhD in International Law in 2013. His main fields of research include international minority rights law, international human rights law, law of diplomatic and consular relations, European integration and EU law. He is currently teaching international law and some related subjects at the Faculty of Public Governance and International Studies of the University of

Contributors  xiii Public Service (Ludovika), Budapest, Hungary. He has authored around a hundred publications and is a member of societies including the Association for the Study of Nationalities and the American Society of International Law, among others. José Ramón Intxaurbe Vitorica holds a PhD in Law and is a Researcher at the Pedro Arrupe Institute of Human Rights and Lecturer in Constitutional Law and History of Law at the University of Deusto, Bilbao, Spain. His publications and main research areas are related to the legal challenges posed by the management of sociocultural diversity in contemporary democracies, law related to equality and non-discrimination policies, or EU migration and asylum policies. As part of the Basque Government’s Peace and Coexistence Plan, he is a co-author of several reports on strategies and actions for peace and coexistence, and on the attention paid to victims of terrorism and violence, commissioned by the General Secretariat of Human Rights, Coexistence and Cooperation. Balázs Vizi graduated in Law at Eötvös Loránd University, Budapest, Hungary. He received a PhD in Political Science from the University of Leuven (KUL), Belgium. He has specialised in international human and minority rights law, and since 2002 he has worked at the Institute for Minority Studies, Centre for Social Sciences, Budapest. He is Associate Professor at the Department of International Law, Faculty of Public Governance and International Studies, University of Public Service (Ludovika), Budapest, and lectures at Eötvös Loránd University. He is the author of several publications on minority issues in the context of the European integration, and editor of several books on minority rights protection.

1. Introduction to the Research Handbook on Minority Politics in the European Union Tove H. Malloy and Balázs Vizi

INTRODUCTION A Research Handbook on minority politics in the European Union (EU) is both long overdue and perhaps premature.1 It is overdue given the large accumulation of scholarship on minority issues in the EU by an increasing number of scholars and a broadening scope of disciplines. As this scholarship has been scattered in the form of journal articles and book chapters, there is a need to take stock of this in a joint analysis. On the other hand, it is perhaps premature, as it is generally agreed that the legal competences on minority protection and minority issues are rather limited within EU law and therefore the EU has claimed that it is unable to act on minority politics. However, minority politics exists in every EU member state, and the history of the 20th century has shown that elevating minority politics to the international level has been the best way to ensure proper protection of minorities and good policy-making also at the national level. Focusing on the politics of minority issues as opposed to restricting one to the legal protection of minority rights, therefore, makes sense. What do we mean by ‘politics’? Some scholars have argued that politics refers to ‘the discussions, clashes, and compromises between different actors, such as government offices, political parties, interest organizations, social movements, and citizen groups, all of whom seek to influence how public values are defined, produced, and allocated’ (Sørensen and Torfing, 2017: 31). This definition allows for a broad spectrum of individuals and groups to be seen as relevant in influencing how the EU develops policies involving minority issues and/or policies directly addressing minority issues. Of importance in this respect is to acknowledge that scholars, academics and other external commentators, or what some might call the epistemic community, are also part of the politics of the EU (Haas, 2008). Interest groups and citizen groups are of particular relevance, as politics is a matter of trying to influence policy-making even if one finds oneself systematically disadvantaged by the dominant political style (Hix and Høyland, 2011). One cannot, therefore, speak of politics without acknowledging that there are actors who are excluded from the realm of politics. Exclusion from EU politics has been pointed out again and again, not least in regard to its approach to addressing minority protection and minority issues (Malloy, 2005a, 2005b; Ahmed, 2011; Toggenburg, 2019). Denying, deliberately omitting or hiding the undecidable and contingent of a political issue, with a view to eliminating it or taking it out of the political space for contestation, will not only result in some actors being disempowered and excluded

1 The post-World War II co-operation in Europe has changed names several times. European Economic Community (EEC) refers to the first constellation of the community from 1958–93, whereas European Communities (EC) refers to the constellation in force from 1993–2009. The European Union (EU) refers to the current post-2009 constellation. In this chapter, the EU is used as a generic reference.

1

2  Research handbook on minority politics in the European Union from the deliberations but may also result in some policy areas becoming depoliticized (Fawcett et al., 2017). Depoliticization is like ideology; it can conjure up ‘a naturalizing totalization of social meanings and identities that presents them as something that is a given and to be taken for granted’ and which ‘cannot be called into question and transformed through action’ (Sørensen and Torfing, 2017: 32). While such depoliticization may be deliberate or subconscious, any depoliticization of minority issues in the EU might be seen as a conscious and self-serving act by governing agencies, an attempt to render minority politics non-politcal. As such, a Research Handbook on minority politics must address both politics and non-politics.

ABOUT THIS RESEARCH HANDBOOK This Research Handbook is deliberately multi-disciplinary in order to ensure that multiple dimensions and multiple perspectives are considered. Studies of EU minority politics have unfortunately been somewhat compartmentalized. While legal scholars have focused on minority rights protection, political scientists and international relations scholars have focused on actions of actors from the institutional and other perspectives. Thus, without providing a state-of-the-art overview, as this is diligently provided by the contributors to this volume, it is clear that the first works on the EU’s approach to minority politics analyses mainly sought to identify the legal sources potentially affecting minority rights within the evolving EU law of human rights and non-discrimination (De Witte, 1993; Estébanez, 1995; Toggenburg, 2000). From an international law perspective the fact that the process of European integration entered into a new phase after 1992 extending EU activities and legislation in many fields drew scholarly attention to the potential impact of international minority protection instruments on EU policy-making, including policies for external action, such as enlargement (Henrard, 2004; Hillion, 2008). In the lack of any normative basis for minority rights protection under EU law, legal approaches had to rely on scattered elements in EU law that might be deemed relevant for the protection of ethno-cultural minority groups. Moreover, from the perspective of legal theory, scholars searched for indirect links between international norms and EU policies, while linguists analysed the position of minority languages in the EU’s complex language-use legislation and policies (Shuibhne, 2002). With regard to institutional analyses, political scientists and international relations scholars have focused mainly on policies that could empower ethno-cultural minorities as individuals and groups, or the lack thereof. Moreover, institutional analyses of the impact of enlargement policies on candidate countries and thus indirectly on ethno-cultural minority groups provided some of the first critical analyses of the EU’s approach to minority politics. These analyses have also been influenced by analyses on European integration and the effect of Europeanization both externally and internally. In regard to the latter, innovative explorations of EU policies on regional identities and on ethno-regional and border communities exploring the concept of subsidiarity and multi-level governance have contributed to a dynamic view of ethno-cultural minority politics (Keating, 1998, 2001). Finally, the context of enlargement gave a new impetus to analyse the situation of Roma in light of relevant EU actions and policies, and this was extended to internal policy-making after the adoption of a Roma Strategy in 2011 (Vermeersch and Ram, 2009). In terms of a chronological overview of minority politics, Gabriel Toggenburg has suggested a very useful categorization of the evolution of minority politics and policies related to

Introduction  3 ethno-cultural minority groups (2009). He has argued that minority politics in the EU may be represented by three phases of political development, none of which has been concluded; they are all ongoing and open-ended. The early and first political phase began in the 1980s with the European Parliament (EP) tabling resolutions addressing minority issues aiming at creating a supranational system of minority protection. This phase, which Toggenburg calls the idealistic phase, is characterized by an unrealistic approach by the EP as there was not consensus in the body on the issue. Even if a few initiatives were adopted at the plenary and took the shape of an EP resolution calling for an EU action in this field, neither the European Commission (EC) nor the Council of the EU (representing member state governments; hereafter the Council) showed any interest in making a step in this direction.2 It was idealistic in the sense that the resolutions of the EP were not legally binding on any institution, and the resolutions represented the EP’s role as the value carrier of the institutions charged with managing the EU. The EP initiatives were ignored not only because member states rejected the idea of legislating on minority rights under EU law, but also because in the early 1990s member states (with a few exceptions) supported the codification of minority rights outside the EU, resulting in the adoption of a number of standard-setting international documents within the CSCE/OSCE (Conference on Security and Co-operation in Europe, later the Organization for Security and Co-operation in Europe) and the Council of Europe. The second political phase began with the preparation for eastern enlargement and was spearheaded by the Council and the EC rather than the EP. It institutionalized minority protection for new member states entering in 2004 and 2007 through the June 1993 European Council’s conditions for accession, which included the so-called Copenhagen Criteria, and through the EC’s monitoring of accession states’ compliance. At the same time, the phase saw the shift from a cultural approach to a broader political integration of ethno-cultural groups in order to counter any emerging conflicts along ethnic lines in the new member states. The third political phase, which Toggenburg names the internalization phase, represents the period after 2007 and the adoption of the Treaty of Lisbon, which for the first time mentions minority rights among the ‘values’ of the EU (Art. 2). This opened a new phase that has seen the EP again as a key player. Pointing out in 2005 that there exist double standards (inconsistencies) between old and new member states in the EU’s policies towards ethno-cultural groups, the EP made suggestions to the EC on how minority protection may not contradict EU law. Thus, the EP suggested that the criteria imposed on the new member states could indeed be implemented across all member states. The three phases are summarized in Table 1.1. Toggenburg’s perspective is primarily legal and thus leaves the implementation of EU policy-making unexamined. For instance, the Cohesion Policy area, which regulates regional development and cross-border co-operation through the Structural Funds, has an impact on how ethno-cultural groups can participate and influence these areas of politics,3 while the area of Cultural Policy has implemented numerous programmes and instruments on inter-cultural dialogue and cultural heritage protection that are relevant for the protection of minority identities.4 In addition, there have been a few examples when EU programmes promoting multilingualism and language learning included minority or ‘lesser-used’ languages.5 Unfortunately, 4 5 2 3

For more on the actions of the EP, see Chapter 8 in this volume. See Chapter 14 in this volume. See Chapter 12 in this volume. See Chapter 11 in this volume.

4  Research handbook on minority politics in the European Union Table 1.1

Three phases of EU minority politics

Phase

When?

Main actions

Main foci

Idealistic

1980s onwards

Unrealistic and non-legally binding

Languages and culture

documents Eastern enlargement

1990s onwards

Conditions for respecting and

Security

protecting ethno-cultural groups in

Political participation

new member states Internalization

2007 onwards

Some member states engage in

Anti-discrimination

minority protection

Source: The authors.

most of these policies do not refer directly to ethno-cultural minority groups as target groups and thus remain obscure in terms of minority politics within the EU. However, research has shown that ethno-cultural minority groups tap into these programmes, especially with regard to regional development and protection of cultural heritage (Malloy, 2010). Although the participation of ethno-cultural minority groups is not recorded, there is growing scientific evidence that they are pro-active in seeking to access and use the funding of such programmes to improve, for instance, the environment of their homelands or expand the protection of their cultural heritage sites (Klatt, 2006). There is, therefore, emerging action which shows that EU minority politics is multi-dimensional, not confined to the legal sphere. As one policy area rarely offers the opportunity for developing a comprehensive and coherent theory of understanding, we have endeavoured to include as many disciplines as possible in this Research Handbook. We realize that while methods applied in policy studies are increasingly becoming cross-disciplinary, theoretical approaches tend to be defined within disciplines. Thus, the individual contributors have had full freedom in terms of theoretical approaches; however, in order to ensure a good basis from which to understand both politics and policies, authors have been asked to provide a critical overview of the research and scholarship within their own areas of study. Specifically, they were asked to: ● ● ● ● ●

Provide an overview of the research efforts so far on the particular area of EU politics; Provide a critical overview of the knowledge gathered so far; Assess the methods used and theoretical approaches; Amend with new knowledge, if applicable; Assess the gaps in research and propose future efforts.

The overall aim was that the contributions combined would deliver an updated if not comprehensive multi-dimensional state-of-the-art overview of the research and knowledge in the field within a timeframe from the Treaty of Rome until today. A multi-dimensional analysis is needed to assess whether there is a pattern in the EU’s approach to minority politics. Patterns of politics usually display intentions of actors and institutions as well as output, and understanding of patterns can eventually lead to theorizing. Important is that studying patterns allows one to see multiple dimensions, while also spotting repetitions. By seeing multiple dimensions and repeated behaviour, one creates not only a broader perspective but also a deeper understanding of phenomena. Understanding a phenomenon such as minority politics is fruitless without a good working definition of the objects in question. This Research Handbook will focus on minorities of a broad definition. ‘Ethno-cultural,’ as an encompassing term, will refer

Introduction  5 to ethnic (including racial), national, linguistic, religious and indigenous groups residing in homelands or demonstrating long-term residency in new host states. This means, for instance, that research on the human and social rights of immigrants, asylum seekers and refugees is also addressed when relevant. The ‘problem’ of defining a minority has been the topic of debates for decades. The United Nations (UN) Sub-Commission on Prevention of Discrimination and Protection of Minorities6 has grappled with the issue almost since its establishment and a number of prominent experts has provided input (Capotorti, 1985; Deschênes, 1985). The problem of a legal definition of a minority in international law is a question of whether there can be found a universal definition of ethno-cultural groups. Inasmuch as international law instruments apply to a wide range of states, a definition would have to be broad and general. That is near impossible in contemporary circumstances where ethno-cultural groups self-identify according to particular characteristics and a hybrid of diverse affiliations. Moreover, seeking a definition runs into the dilemma of whether to use objective or subjective criteria (Pentassuglia, 2002). Objective criteria may result in discrimination; subjective criteria could lead to segregation. This is because the criterion of objective is related to pre-determination, whereas subjective self-identification relates to self-determination. Where self-determination allows ethno-cultural groups to freely self-identify as per the standards of universal human rights and international law, pre-determination requires advanced or external decision on the identity of ethno-cultural groups (Lijphart, 1995). Most domestic legislations apply for practical reasons a clear definition of the minority rightsholders, either based on objective or mixing objective and subjective criteria. Any normative delineation will inevitably draw group boundaries including some and leaving out others from beneficiaries of minority rights, largely influencing also the individuals’ personal perceptions of belonging to a minority (Wimmer, 2008). Under international law there is not necessarily a need to define ‘minority.’ On the one hand, governments prefer to reserve their right to do so in national legislation; on the other hand, since minority rights are deeply entrenched in the universal protection of human rights, the free choice of identity fits well into the individualistic approach of international human rights regimes (Vizi, 2013). Indeed, it has been argued that ethno-cultural minority groups are voluntary associations (Packer, 1995, 1999), and it is a fact that human rights instruments aimed at protecting ethno-cultural groups, such as the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Art. 3(2), and the European Framework Convention for the Protection of National Minorities, Art. 3(1), provision that belonging to a minority is a free choice. This is to a great extent an ideal provision, and it could be argued that it does not allow for the innate bonds that many cultures foster. Such native and often unconditional attachments may not be easily subjected to the will of the individual, as has been intensely debated by Chandran Kukathas (1991, 1995, 1997) and Will Kymlicka (1994). Finally, it could be argued that each case is unique. The characteristics and contexts vary from minority to minority and from country to country, often influenced by historical events and outcomes. Thus, the social and political sciences operate with analytical definitions; that is, working definitions that have the sole purpose of analysing a phenomenon, while legal experts often prefer to work with the premise that a minority is a matter of fact, not law.



6

In 2006 the Sub-Commission was replaced with the Human Rights Council Advisory Committee.

6  Research handbook on minority politics in the European Union Furthermore, for analytical purposes, the field of minority studies applies a dichotomy system of two categories of ethno-cultural minority groups in Europe: the so-called ‘old’ and ‘new’ ethno-cultural groups. Old ethno-cultural groups refer to minorities who have traditionally been numerically a minority for many years or centuries and who resided in the same homeland for generations, whereas new minorities indicate a group which has been present in a territory for a shorter period, usually after voluntary immigration. These vague rules are, of course, only guidelines, because one could ask: what constitutes many years versus a few and when is immigration voluntary and involuntary? These questions will always invite arbitrary responses. This is why scholars prefer to argue that the question of a definition is unique to each case, each country, each political system. Notwithstanding this, there are social scientists who have volunteered definitions over the years (Macartney, 1934; Claude, 1955; Laponce, 1960; Modeen, 1969; Jackson Preece, 1998), and they have all combined objective and subjective criteria. Therefore, a Research Handbook on minority politics would need to combine objective and subjective criteria in order to produce good analysis.

PLAN OF THE HANDBOOK Apart from the Introduction, this Research Handbook consists of five different parts each focusing on specific areas of minority politics that we have found relevant. Parts I and II combine legal analyses and an institutional approach, whereas parts III–V are policy- and non-policy oriented. Each part discusses the directions that EU institutions and policies have taken with regard to minority politics with a view to providing evidence for a political pattern. Part I, ‘The politics of the acquis communautaire,’ addresses the legal framework that underpins the institutionalization of the EU and thus the norms and standards that can support minority rights protection. This is the process of constructing the so-called acquis communautaire, or the accumulated legislation, legal acts and court decisions that constitute the body of EU law. The ‘constitutional’ frame, so to say, is a logical point of departure to begin the investigation of emerging patterns of minority politics in the EU. In Chapter 2, Rainer Hofmann and Moritz Malkmus provide an overview of the developments in primary EU law and the European Treaties, arguing that decisive changes occurred that potentially paved the way for a more minority-sensitive policy. However, they must conclude that only with the adoption of the Lisbon Treaty in 2007 did the EU member states break the silence of the treaties and include a reference to minority protection – a reference that, however, opened many questions as to its interpretation and eventual application. According to Hofmann and Malkmus, the EU legal framework therefore ‘remains rudimentary, highly open to interpretation and in many respects it hardly goes beyond the mere prohibition of discrimination’ (this volume: 31). Prohibition of discrimination has been the main approach to minority rights protection within the EU. In Chapter 3, Kyriaki Topidi takes a close look at the scope of the EU anti-discrimination scheme with a view to assessing its relevance with regard to ethno-cultural minority groups. She explains that the ‘EU institutions have generally produced a considerable body of policies focusing on the reduction of socio-economic exclusion, including among minorities, but also as connected to ethnic discrimination’ (this volume: 53). However, she argues that the EU needs a ‘coherent approach’ towards protecting minority rights in parallel with the strengthening of the anti-discrimination tools (this volume: 57). One problem that she sees is that the EU relies on procedure rather than substantial fundamental rights. This will not

Introduction  7 achieve the goal of inclusion, which is one of the EU’s main goals in this area, because in some fragmented societies inclusion is not achievable through procedure alone. Moreover, Topidi is sceptical of the soft law policies, as they do not provide the horizontal mainstreaming that is needed. Thus, in the absence of a comprehensive legal framework, constant monitoring is needed. The question of third-country nationals, or non-EU citizens, is addressed in detail by Roberta Medda-Windischer and Katharina Crepaz in Chapter 4. They agree that although the EU has developed measures to ensure protection against discrimination with regard to non-EU persons, reaching ‘consensus on the right to identity and on the right to participation seems to be much more difficult, especially if such an approach is to include also “new” non-EU minorities’ (this volume: 78). Basically, they argue that there are ‘considerable discrepancies between the rights and protection mechanisms available to minority populations who are EU citizens and those who do not hold EU citizenship’ (this volume: ibid.). In Chapter 5, Kristin Henrard sees a positive trend in so far as the Court of Justice (of the EU) has been more active on referring to the prohibition of discrimination and human rights in its jurisprudence. This, she argues, has also had positive impact on the protection of minority rights. However, the Court does not seem to be willing to go beyond the need to protect the fundamental rights enshrined in the four freedoms and thus is not seen as providing any opening for a broader protection scheme of minority rights. Since the Court is the ultimate voice that could expand the scope of application of minority rights in EU law, Henrard’s analysis seems to support the argument that the EU has resorted to a proxy model with regard to minority rights. Norbert Tóth rounds out Part I with an examination of this proxy model and how norms of international minority rights law affect and influence EU law. In Chapter 6, he makes it clear that it is a one-way relationship, as EU law does not have the ability to influence international law. In fact, EU law must respect norms and standards enshrined in international law. This means, according to Tóth, that EU policy-makers should take into consideration existing minority rights law both in terms of the protection of discrimination and the special rights that international law has provisioned in several international conventions. However, Tóth concedes that not all EU member states are accepting international law on minority rights. For instance, France has made a reservation to Article 27 of the UN International Covenant on Civil and Political Rights and remains outside the Council of Europe’s two main instruments on minority protection, the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. An opening was perhaps made when the EU referred to minority rights in its enlargement policies. Yet, until the day that all EU member states are party to the international conventions, the EU cannot make minority rights protection an internal policy. To complement the analyses on the legal competences, or lack thereof, with regard to the protection of minority rights, Part II, ‘The politics of decision-making and policy-making,’ examines the decision-making within the EU institutions and the attempts made at policy-making with regard to minority rights and more broadly minority issues. In Chapter 7, Noémi Nagy and Balázs Vizi examine the actions by the EP, the Council and the European Council. Their extensive review of initiatives and resolutions on minority rights taken by the EP shows that many members of the EP (MEPs) have had ‘a genuine and lasting commitment to minority rights’ (this volume: 142). While at times unrealistic, the EP and especially its informal sub-committee on minorities, the Intergroup, has evidenced that minority rights are ‘a value

8  Research handbook on minority politics in the European Union worth cherishing’ (this volume: ibid.). However, Nagy and Vizi are much more critical of the other decision-making institutions. The European Council and the Council have only taken minority issues seriously when policies on enlargement were debated and adopted. Relegating the protection of minority rights to the external level is not tenable and ‘cannot replace the development of an own protection system by the EU’ they argue (this volume: ibid.). In Chapter 8, Tawhida Ahmed examines the EC’s initiatives and influence on minority politics. She specifically emphasizes the EC’s powers to initiate legislation and thus, within the confines of EU treaty competences, to shape EU action towards minority rights protection. According to Ahmed, the EC has the option to take an ‘expansive approach,’ which entails three ways that it could maximize its legal powers: by focusing on the ‘full spectrum of minority rights where permitted,’ by ‘engaging in minority rights as broadly as legal powers allow’ and by ‘applying these consistently across case studies and states’ (this volume: 145). However, Ahmed eventually concludes that the EC has not maximized on its powers. While it does occasionally engage with minority rights, Ahmed argues that ‘the “quantity” is low compared to the possibilities presented by the legal powers’ (this volume: 144), and when it does act, ‘the actions also are not “quality” acts of effective engagement’ (this volume: ibid.). Given that the EU has included the respect for minority rights as a core value for the Union, the EC’s reluctance to act might, according to Ahmed, be regarded as particularly problematic and could be perceived as ‘a voluntary unwillingness by the Commission to support minority-related issues’ (this volume: ibid.). Ahmed’s analysis seems to document that there are overt attempts to depoliticize minority politics in the EU. Ironically, the EC was much more willing to support the protection of minority rights in its external policies. In Chapter 9, Tove H. Malloy argues that the EU’s enlargement policy initiated in 1993 in Copenhagen finally broke the negative pattern, as it put minority politics at the top of the agenda. However, the conditionality policy approach through the so-called Copenhagen Criteria was aimed only at the applicant countries, and this was soon criticized by scholars and observers alike. Moreover, as it became clear that the standards underpinning conditionality were not EU standards but international law standards, criticism became even fiercer. And when countries like Estonia and Latvia eventually were approved for membership by 2004 without having met all the conditions, scholars gave the EU a thumbs down. As the EU made conditionality firmer in the following enlargement policies, and the European Council took back some powers from the EC, resulting in a rise in bilateral disputes between existing member states and candidate countries as well as splits among member states, there seemed to be little basis for the seeing a positive pattern. The criticism of enlargement policies only amplified the earlier criticism of the 1980s regarding the level of democracy in the decision-making processes. In Chapter 10, Petra Lea Láncos rounds out Part II by addressing the efforts by the EU to counter the criticism of the democratic governance of the Union. Being reproached for the so-called ‘democratic deficit,’ the EU initiated a stream of policies aimed at democratizing the Union and bringing the citizens closer to the decision-making processes. With regard to ethno-cultural minority groups, these processes eventually led to the amendment to Article 2 on the values of the EU with the reference to the respect for minority rights. However, due to the vague and ambiguous reference, Láncos looks to the institutional level for alternative evidence of how the EU might have included ethno-cultural minorities in the democratic processes. She examines sub-committees in the EP, the Committee of the Regions and the Open Method of Co-ordination as well as the European Citizens’ Initiative, only to conclude that minority stakeholder engagement in these

Introduction  9 bodies needs to be more visible. The EU’s openness to diversity and willingness to accommodate diversity as expounded in its motto ‘United in Diversity’ does not seem an honest pledge, at least not with regard to ethno-cultural minorities. Part III, ‘The politics of diversity,’ therefore puts diversity in focus. In Chapter 11, José Ramón Intxaurbe Vitorica and Eduardo J. Ruiz Vieytez start the investigation by examining how language policies are managed within the EU, both at the regulatory level and at the institutional level, through the implementation of specific initiatives and programmes that affect minority languages. Aside from the 27 official languages in the EU, many minority languages are used every day in the member states. However, there are few direct regulations on linguistic matters. This, Vitorica and Vieytez argue, may stem from the fact that the EU defends the promotion of diversity while seeking elements of cohesion and integration. The inter-state character of the EU emphasizing state languages takes priority over the reality of linguistic diversity in most of the member states. The notion of ‘linguistic justice’ for minority and unofficial languages, they argue, is thus not respected in the EU. Miklós Király is also concerned about the tensions between cohesion and diversity. In Chapter 12, he argues that diversity and culture are two notions that are closely intertwined in European society. Through an examination of the EU’s approaches to diversity in its cultural policies and by mapping the relevant policies and actions in the area of culture and cultural heritage, Király shows that the EU’s aim at creating a common European identity and cultural heritage takes priority over promoting and protecting regional diversity and particularity. This has ramifications, Király argues, in that not only may it alienate ethno-cultural minority groups and other social groups, it may also disrupt the aims of the EU treaties. Although recent policies have sought to address the tension between the local spheres of culture and the aim of cohesion, Király is not convinced that they will satisfy ethno-cultural minority groups. In the last chapter of Part III on diversity, Chapter 13, Melanie Ram examines various EU initiatives and actions on Roma integration efforts. This is one area of ethno-cultural diversity where the EU has endeavoured to use its competences on the prohibition of discrimination. As the right to free movement within the EU became available to the new member states, the issue of Roma migrating to the old member states for seasonal jobs hit the top of the EU’s agenda for a short period. These migrants were not welcomed in the old member states. Thus, a strategy for Roma integration was adopted in 2011 requiring all member states to design and implement national action plans for the integration of Roma minority groups. However, according to Ram, the strategy was criticized by activists, and by 2018 a self-evaluation by the EC admitted that the strategy had not had the desired impact. Scholars and analysts had criticized the strategy from the beginning for not having enough leverage over national governments because it was non-binding. Indeed, some scholars argued that the strategy had the adverse result of stigmatizing Roma communities. Thus, Ram shows very well in her analysis that rather than achieving respect for Roma and their participation in accessing their own rights, the EU had again managed to side-line an important aspect of European diversity. In Part IV, ‘The politics of cohesion,’ the focus is on one of the strongest objectives of the EU, the need to integrate the member states as cohesive populaces and as a united territory of states. The dynamics of integration on the one hand, and diversity on the other, is arguably one of the aspects that contribute to whether minority politics can have a space in the EU. The aim of the so-called Cohesion Policy influences the way in which minority issues can be addressed. A major aspect of this is the regional focus on regions and border regions. Tamara Hoch starts this discussion in Chapter 14 with her examination of the Regional Policy. The

10  Research handbook on minority politics in the European Union Regional Policy provides for a decentralized mode of governance, encouraging new governance approaches and implementation through soft mechanisms. According to Hoch, this development enables ethno-cultural minorities to access policies through new channels without necessarily being beneficiaries of such policies. As such, regional policies cannot advance the protection of minority rights, but they can contribute to the preservation and promotion of minority cultures and languages as well as increasing their participation in regional development. However, accessing policies and funding depend entirely on the agency and actions of ethno-cultural minority groups. If they are not pro-active, they will likely not benefit from the policies fleshed out in the name of cohesion. One aspect of cohesion is debordering, or the aim of opening borders by eliminating all internal borders to the free movement of persons, goods and services. In Chapter 15, Alice Engl provides a comprehensive overview of EU-related debordering processes in minority contexts, focusing on sub-state cross-border co-operation and kin-state activism as the two main venues of debordering. She discusses the limits and the potential of the EU in these processes, including political backlashes, such as the Covid-19 pandemic, which pushed border region networks and institutions to step up their calls for the EU to normatively acknowledge the political role of border regions and their co-operation. Engl outlines the main characteristics as well as current problems and limits of cross-border co-operation and kin-state activism and provides empirical examples from European borderlands. By doing so, she illustrates a dynamic practice on the ground that contrasts with a rather narrow normative framework at the EU level. This leads her to conclude that the EU’s basic principles of cross-border co-operation could well be augmented with an agenda on ethno-cultural minority issues. Cohesion is also at the forefront of the discussion provided by Maria Ackrén in Chapter 16. She examines how the EU can promote cohesion within member states that have special and autonomous territories situated at great distances from the European Continent. Unity within such states is needed to promote cohesion of the EU in general but also to secure the protection of the rights of EU citizens living far away. Focusing on mostly former colonies, Ackrén discusses the functioning of the status of the Overseas Countries and Territories (OCTs) and the so-called ‘outermost regions.’ All are integrated to varies extent within the respective member states and many have distinct indigenous cultures different from the metropolitan state. They do not, however, enjoy protection as ethno-cultural minority groups under the European minority regime of the Council of Europe and the OSCE, but they can call upon the UN for protection and recognition. Some of these regions have special arrangements with the EU, and their metropolitan state may have negotiated a protocol specifically for these regions, thus, according to Ackrén, creating lex specialis in regard to EU law. However, not all of these regions are in fact members of the EU, and thus represent potential challenges to the integration and cohesion of the EU. As Ackrén concludes, there is little research on these territories’ individual relations to the EU. Their role in the dynamics of minority politics in the EU, and more broadly in the integration politics, remains under-explored. Part IV’s focus on integration and cohesion is rounded out by a discussion of another aspect of special territories within EU member states. Territories with special or autonomous status situated contiguously within member states have in the past represented enduring security threats to the EU’s aim of peace and security in the European continent. This is because they were in conflict with their parent state over territory or with other ethno-cultural groups within a regional territory. Today, most such disputes have been normalized mainly through the inaction of the EU. However, induced by the tensions between cohesion and regional

Introduction  11 development policies as well as undemocratic government policies during the financial and economic crises in 2008, a few autonomous regions represent a renewed threat to the EU’s aim of cohesion. In Chapter 17, Tove H. Malloy discusses the non-policy of the EU in regard to disputes involving regional ethno-cultural identities and their central governments. The separatist movements in Scotland and Catalonia have tried to push EU minority politics towards new horizons of recognition within the legal and political framework of the EU, but to no avail. Due to these disputes, threats of secession have emerged. However, since these regions do not wish to leave the EU due to secession from the parent member state, claims for an internal enlargement policy have emerged. This has never been entertained as a potential solution by the EU institutions, and as Malloy argues, ‘remains a theoretical concept on the drawing board’ of international law and EU law experts (this volume: 330). As several of the observers and experts conclude, the notion of internal enlargement will not stand a chance in the Council, which is bound by neutrality on matters pertaining to individual member states’ territorial integrity. Malloy concludes that while this is still a non-policy area in the EU and thus mainly an academic debate, it is a new reality that challenges the cohesion of the Union, and thus the debate will continue. Part V, ‘The politics of external action,’ is devoted to the EU’s external policies and action with a view to assessing the role of minority politics in this area. In Chapter 18, Maria Dicosola examines the status of the enlargement policy for the Balkans as amended and perhaps improved. This is a region that has taken a long time to prepare for accession into the EU for various reasons, a major one being the multi-cultural and multi-ethnic character of the applicant states. The prolonged enlargement process has produced a different scenario than earlier enlargements, thus allowing for the EU to tighten the approval process and put applicant states under greater scrutiny. According to Dicosola, the Balkan region provides a unique example of the weakness of EU conditionality in the field of minority rights, mainly due to the ongoing process of nation-building and the resulting weak democratization outcomes. Dicosola suggests, therefore, that the EU’s approach towards the Balkan states should be reconsidered at all levels in order to enable a ‘shift from the logic of the implementation of external standards to that of the genuine development of internal democratic values’ (this volume: 348). In Chapter 19, Graham Donnelly and Federica Prina examine another aspect of the EU’s external policy and action, the influence of minority politics on the policies of the Eastern Neighbourhood Programme (ENP). Policies for the so-called ‘near abroad’ do not follow the enlargement conditionality criteria and only indirectly refer to the protection of minority rights, but nonetheless all the countries offered partnerships under this programme have considerable population groups belonging to ethno-cultural minority groups. Donnelly and Prina show how the EC approaches the issue of minorities in the programming of projects through the provisioning and funding of the promotion and development of minority rights protection. However, this support has been selective and differentiated, and they question the extent to which the protection of minority rights can be described as forming part of the EU’s normative agenda for the ENP. Indeed, they see the EU relying largely on international organizations like the Council of Europe for taking on these matters. Only when the security of the ENP region is threatened will the EU refer to the protection of minority rights, as in the case of the illegal annexation of Crimea. The final chapter of this section focuses on the role of minority politics in the EU’s global development policies. In Chapter 20, Laia Pau Romaní and Joshua Castellino examine the various development programmes and the evolution of these in terms of incorporating human

12  Research handbook on minority politics in the European Union and minority rights. They reflect on how human and minority rights have come into play in the external actions of the EU, most notably through the human rights action plans, and the fact that the EU’s External Action Service addresses minority rights protection in its annual reports on human rights. They argue that there is now a clear strategic geographic focus emerging with cross-cutting priorities on migration, peace, security, Sustainable Development Goals and gender equality. Indeed, the EU is endeavouring to deepen its commitments to the UN 2030 Agenda, the Paris Climate Agreement and other global strategies. Specifically, with regard to minority rights protection, Romaní and Castellino highlight the EU’s prioritization of minority rights in its funding streams and calls for action. They also note that the European Development Fund, one of the largest funding schemes of the EU, refers to minority rights protection as a cross-cutting issue. However, it does not seem to feature minority rights as one of its priorities. Romaní and Castellino also note that certain trade programmes do not address human or minority rights, and they raise an alarm regarding the streamlining of programmes foreseen for the next budget cycle. The merger of a number of funding schemes and programmes appears to challenge the future mainstreaming of human and minority rights in the EU’s global development efforts. As the authors of the contributions to this Research Handbook have documented, ‘challenging’ seems a general but mild characterization of the dynamics of the EU’s task in the area of minority politics. Words and phrases like ‘rudimentary,’ ‘lack of coherence,’ ‘discrepancies,’ ‘missed opportunities,’ ‘relegating minority rights,’ ‘low quantity,’ ‘lack of quality,’ ‘reluctance,’ ‘negative pattern,’ ‘thumbs down,’ ‘vague and ambiguous,’ ‘lack of priority,’ ‘tension,’ ‘alienation,’ ‘lack of leverage,’ ‘political backlashes,’ ‘under-explored,’ ‘depoliticization,’ ‘non-policy,’ ‘weakness of conditionality’ and ‘selective differentiation’ are evidence that authors are concerned with the empirical facts that they have found. Of course, there are also positive developments, and authors do point out that there is room for manoeuvre, especially if the EC would open up to new opportunities and follow the Court’s suggestions. The many political initiatives; scattered commitments to promote cultural, linguistic diversity and combatting discrimination; and the fact that the term ‘minority’ now appears in primary EU law show the great variety of legal and political sources of an emerging EU minority policy. In its external realm, the EU has formulated more consistently its concerns on the situation of ethno-cultural minorities within the enlargement policy and in its external actions. However, the different policy areas affecting ethno-cultural minorities are but parts of a mosaic picture yet to be collated: the coherent and consistent approach – required in many EP resolutions – is obviously missing. Thus, this Research Handbook draws up a trajectory of a moving target, because it is not feasible to predict what may be the final position of minority politics in the EU. The EU is still far from providing protection for ethno-cultural minorities, and minorities are far from having any institutional channel allowing them to participate in the integration project. The often recurrent argument is that the legal framework and institutional architecture of the EU set the limits, and for this reason political will is the key. The contributors to this volume show that scholarship based on theorizing as well as empirical data has monitored the EU’s actions closely and critically over the years, exposing the weaknesses that should be amended as well as the opportunities that could be seized. This Research Handbook does not pretend to provide solutions in this EU policy area, but it is our hope that it may serve as offering an insightful overview of the institutional, policy and normative elements that are relevant for understanding minority politics in the EU.

Introduction  13

REFERENCES Ahmed, Tawhida, The Impact of EU Law on Minority Rights (Hart Publishing, 2011). Capotorti, Francesco, ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities,’ UN Doc. E/CN.4/Sub.2/384/Rev.1 [1985]. Claude, Inis L., National Minorities: An International Problem (Harvard University Press, 1955). Council of Europe, European Framework Convention for the Protection of National Minorities. European Treaty Series No. 157 adopted by the Committee of Ministers 1st February 1995, available at www​.coe​.int/​en/​web/​conventions/​full​-list​?module​=​treaty​-detail​&​treatynum​=​157 (accessed 14 February 2022). Dechênes, Jules, ‘Proposal Concerning a Definition of the Term “Minority”,’ UN Doc. E/CN.4/ Sub.2/1985/31. [1985]. De Witte, Bruno, ‘The European Community and its Minorities’ in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds), Peoples and Minorities in International Law (Martinus Nijhoff, 1993), 167–85. Estébanez, Maria-Amor, ‘The Protection of Ethnic, Religious and Linguistic Minorities’ in Nanette Neuwahl and Allan Rosas (eds), The European Union and Human Rights (Kluwer Law International, 1995), 133–63. Fawcett, Paul, Matthew Flinders, Colin Hay, and Matthew Wood (eds), Anti-Politics, Depoliticization, and Governance (Oxford University Press, 2017). Haas, Peter, ‘Epistemic Communities’ in Daniel Bodansky, Jutta Brunnee and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008), 791–806. Henrard, Kristin, ‘Charting the Gradual Emergence of a More Robust Level of Minority Protection: Minority Specific Instruments and the European Union,’ 22 Netherlands Quarterly of Human Rights [2004], 559. Hillion, Christophe, ‘The Framework Convention for the Protection of National Minorities and the European Union,’ research report (Council of Europe, 2008). Hix, Simon, and Bjørn Høyland, The Political System of the European Union, 3rd edition (Palgrave Macmillan, 2011). Jackson Preece, Jennifer, National Minorities and the European Nation-States System (Clarendon Press, 1998). Keating, Michael, The New Regionalism in Western Europe (Edward Elgar Publishing, 1998). Keating, Michael, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford University Press, 2001). Klatt, Martin, Fra modspil til medspil? Grænseoverskridende samarbejde i Sønderjylland/Schleswig 1945–2005 (From agonism to co-operation? Cross-border co-operation in the region of Sønderjylland/ Schleswig 1945–2005) (Institut for Grænseregionsforskning, Syddansk Universitet, 2006). Kukathas, Chandran, The Fraternal Conceit: Individualist versus Collectivist Ideas of Community (Centre for Independent Studies, 1991). Kukathas, Chandran, ‘Cultural Toleration’ in Ian Shapiro and Will Kymlicka (eds), Ethnicity and Group Rights (New York University Press, 1995), 69–104. Kukathas, Chandran, ‘Liberalism, Communitarianism and the Political Community’ in Ellen Frankel Paul et al. (eds), The Communitarian Challenge to Liberalism (Cambridge University Press, 1997), 86–7. Kymlicka, Will, ‘Individual and Community Rights’ in Judith Baker (ed.), Group Rights (Toronto University Press, 1994), 17–34. Laponce, J.A., The Protection of Minorities (University of California Press, 1960). Lijphart, Arendt, ‘Self-Determination versus Pre-Determination of Ethnic Minorities in Power-Sharing Systems’ in Will Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, 1995), 275–88. Macartney, C.A., National States and National Minorities (Oxford University Press, 1934). Malloy, Tove H., ‘Fundamental Rights and National Minorities in the European Union: Protection or Empowerment?’ in Jørgen Kühl and Marc Weller (eds), Minority Politics in Action: The Bonn-Copenhagen Declarations in a European Context, 1955–2005 (Institut for Grænseregions forskning, 2005a).

14  Research handbook on minority politics in the European Union Malloy, Tove H., National Minority Rights in Europe (Oxford University Press, 2005b). Malloy, Tove H., ‘Creating New Spaces for Politics? The Role of National Minorities in Building Capacity of Cross-Border Regions,’ 20/3 Regional and Federal Studies [2010], 335–52. Malloy, Tove H., ‘Introduction’ in Tove H. Malloy (ed.), Minority Issues in Europe: Rights, Concepts, Policy, Vol. 1 (Frank & Timme, 2013), 13–23. Modeen, Tore, The International Protection of Minorities in Europe (Mariehamn: Åbo Akademi, 1969). Packer, John, ‘On the Definition of Minorities’ in John Packer and Kristian Myntti (eds), The Protection of Ethnic and Linguistic Minorities in Europe (Institute for Human Rights, 1995), 23–65. Packer, John, ‘Problems in Defining Minorities’ in Deirdre Fottrell and Bill Bowring (eds), Minority and Group Rights in the New Millennium (Kluwer International Law, 1999), 223–51. Pentassuglia, Gaetano, Minorities in International Law (Council of Europe and ECMI, 2002). Shuibhne, Niamh Nic, EC Law and Minority Language Policy (Kluwer Law International, 2002). Sørensen, Eva, and Jacob Torfing, ‘The Janus Face of Governance Theory: Depoliticizing or Repoliticizing Public Governance’ in Paul Fawcett, Matthew Flinders, Colin Hay and Matthew Wood (eds), Anti-Politics, Depoliticization, and Governance (Oxford University Press, 2017), 28–48. Toggenburg, Gabriel, ‘A Rough Orientation through a Delicate Relationship: The European Union’s Endeavours for (its) Minorities,’ 4/16 European Integration online Papers (EIoP) [2000]. Toggenburg, Gabriel, ‘The European Union and the Protection of Minorities: New Dynamism via the European Citizen Initiative?,’ 11/3–4 Europäisches Journal für Minderheitenfragen [2008], 362–91. Toggenburg, Gabriel, ‘The European Union vis-à-vis Minorities: A Play in Three Parts and an Open End’ in Csaba Tabajdi (ed.), Pro Minoritate Europae. Minorities of Europe Unite! (EU-Ground, 2009), 162–205. Toggenburg, Gabriel, ‘EU er ikke perfekt for mindretallene’ (‘The EU is not perfect with regard to minority protection’), Flensborg Avis, 15 June 2019. Vermeersch, Peter, and Melanie H. Ram, ‘The Roma’ in Bernd Rechel (ed.), Minority Rights in Central and Eastern Europe (Routledge, 2009), 61–74. Vizi, Balázs, ‘Protection without Definition: Notes on the Concept of ‘Minority Rights’ in Europe,’ 15 Minorities Research [2013], 7–26. Wimmer, Andreas, ‘The Making and Unmaking of Ethnic Boundaries: A Multilevel Process Theory,’ 113/4 American Journal of Sociology [2008], 970–1022. UN General Assembly, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. UNGA Resolution 47/135 of 18 December 1992 available at www​.ohchr​.org/​en/​p​rofessiona​linterest/​pages/​minorities​.aspx​#:​~:​text​=​Adopted​%20by​%20General​% 20Assembly%20resolution%2047%2F135%20of%2018%20December%201992&text=1.,the%20 promotion%20of%20that%20identity (accessed 14 February 2022).

PART I THE POLITICS OF THE ACQUIS COMMUNAUTAIRE

2. The Treaties and minority rights Rainer Hofmann and Moritz Malkmus

INTRODUCTION European integration as it stands today had not been possible without the 1989 fall of the Berlin Wall and the subsequent demise of socialist regimes in Europe. But these events did not only bring about the end of the partition of Europe as originally agreed upon in the 1945 Yalta Conference. They also resulted in new challenges to peace and stability, such as increasing tensions between majority and minority populations, in particular in the Balkans and some successor states of the former Soviet Union, which in some instances led to severe inter-ethnic violence and outright warfare. As a consequence of these developments, European political leaders not only opened the way for the eventual eastern enlargement of the European Union (EU) but also created an international system of minority rights protection, based on two major pillars:1 the office of the Organization for Security and Co-operation in Europe (OSCE) High Commissioner on National Minorities (HCNM) as an institution to prevent, by means of silent diplomacy, inter-ethnic tensions from developing into inter-ethnic violence;2 and the institutions established under the Council of Europe (CoE) treaties drafted in order to protect and to promote both the rights of persons belonging to national minorities (the 1995 Framework Convention for the Protection of National Minorities; FCNM),3 and regional and minority languages (the 1992 European Charter for Regional or Minority Languages; ECRML).4 Thus, it is important to note that in the 1990s, the EU as the major political European actor did not play a truly significant role in the process resulting in the creation of this political and legal minority-rights-related system. Today, and notwithstanding some persisting inter- as well as intra-state conflicts (arguably) based on, or related to, minority issues, the major goal of the existing European minority rights-related system is, fortunately enough, much more concerned with the protection of the specific rights of persons belonging to national minorities necessary in order to ensure their distinct identity while contributing to the establishment of truly inclusive and integrated societies than with issues of peace and stability. In view of this development, it is indeed interesting to assess whether, and if so to what extent, these fundamental changes in the European minority-rights-related system did have an impact on the role of the EU within this system. From a legal point of view and considering the most fundamental principle of conferral5 as For an account of these developments, see Hofmann et al. 2018, pp. 7 et seq. On the activities of the High Commissioner, see the website www​.osce​.org/​hcnm. 3 ETS (European Treaty Series) 15; on the FCNM, see the contributions in Hofmann et al. 2018 and its website www​.coe​.int/​en/​web/​minorities. 4 ETS 148; on the ECRML, see the contributions in Boysen et al. 2011 and its website www​.coe​.int/​ en/​web/​european​-charter​-regional​-or​-minority​-languages. 5 It should be recalled that under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein, Art. 5(2) TEU. 1 2

16

The Treaties and minority rights  17 enshrined in Art. 5(1–2) of the Treaty on European Union (TEU), the essential precondition for such a changed role of the EU would be the existence of a corresponding and sufficient legal basis in the EU primary law. In this context, it should be noted at the outset that although the Lisbon Treaty introduced the notion6 of ‘minorities’ into primary law (Art. 2 TEU; Art. 21(1) of the Charter of Fundamental Rights and Freedoms; CFR), it did not provide the EU with an explicit legislative competence to protect persons belonging to minorities (Toggenburg 2018, p. 50). Nonetheless, today, as a (preliminary) result of a long and still ongoing process, numerous legal (and political) acts directly and indirectly related to the protection of minorities can be considered as part of the acquis communautaire (cf. Hoffmeister 2008, p. 175; Shoraka 2010, p. 93; Toggenburg 2018, pp. 49 et seq.). Notwithstanding this clearly most welcome development, the EU remains – in contrast to the CoE and the OSCE and despite its increasing efforts – to be considered a less relevant actor as regards the setting of minority-rights-related European standards. This is mainly due to the already mentioned peculiarities of the potential legislative competences, which will be discussed in more detail later and which cannot be disregarded when assessing the prospects, but also the possible limits, of minority protection under the aegis of the EU. More particularly, in many policy areas relevant for persons belonging to minorities – such as culture, education and language, or social and cohesion policy – the EU is only vested with so-called ‘shared’ (Art. 4 of the Treaty on the Functioning of the EU; TFEU) or ‘supporting competences’ (Art. 6 TFEU) and is therefore limited in its scope of (legal) action. Thus, the legal framework of the EU minority policy that has emerged under these preconditions could still be described as a ‘fragmented regime’ (De Witte and Horváth 2008, p. 365), which is why it seems appropriate, as was further suggested, to look at minority protection brought about by EU law from a broader perspective by ‘putting measures from a number of diverse, interlocking policy areas into a comprehensive minority protection’ (De Witte and Horváth 2008, p. 367) or ‘diversity management’ (Toggenburg 2005, p. 718) framework. Against this background, the following contribution attempts to shed light on the various stages of the European integration process and the development of the European Treaties from a minority rights perspective, and aims to provide a brief overview of how and to what extent this particular concern is enshrined in EU primary law. For this purpose, Section 2 describes the past development of the European Treaties, while Section 3 outlines the status quo before some conclusions are drawn in Section 4.

MINORITY PROTECTION IN THE PRE-LISBON PERIOD The Treaty of Rome and the Single European Act: Four Fundamental Freedoms and Human Rights without Minority Rights When the Treaty of Rome entered into force on 1 January 1958 and thus established the European Economic Community (EEC), one of the EU’s predecessor communities, it did not

It should be noted that there is no definition of the term in primary law. Although the lack of a uniform definition is fully in line with the international standard, specific issues arise in the context of EU law, which are discussed by Guliyeva 2014, pp. 165–98, who also proposes a working EU definition. 6

18  Research handbook on minority politics in the European Union carry any provisions on fundamental rights,7 let alone on the protection of (national) minorities (cf. Topidi 2004, pp. 183–202). Admittedly, this can be attributed on the one hand to the general state of human rights law and minority protection at both national and international level in the immediate post-war period,8 but more importantly on the other hand to the primarily economic objectives of the EEC (Topidi 2004, p. 183; Shoraka 2010, p. 12; Douglas-Scott 2018, p. 384; Bilgin 2019, p. 94), as laid down in the preamble and Arts 2 and 3 of the EEC. While the elaboration of new human rights standards was given an institutional framework mainly by the CoE, the six signatory states of the Rome Treaty aimed at establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it. (Art. 2 EEC Treaty, emphasis added)

Among the key important features of this new legal framework were the ‘elimination, as between Member States, of customs duties and of quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect’ (Art. 3(a) EEC Treaty, emphasis added) and the ‘abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital’ (Art. 3(c) EEC Treaty, emphasis added); these four fundamental freedoms were safeguarded, inter alia, by the principle of non-discrimination based on grounds of ‘nationality’ (e.g., Art. 7 EEC Treaty) or ‘sex’ (Art. 119 EEC Treaty) (cf. Topidi 2004, p. 183). In this respect, however, (national) minority issues were beyond the integration logic of the market or might even have been perceived as an obstacle to the convergence of economies at that time (cf. Arnauld 2004, p. 126). The Community legal order only gradually opened up to fundamental rights concerns after, starting in the late 1960s/early 1970s, the European Court of Justice (ECJ) began to establish its jurisprudence9 according to which fundamental rights formed an integral part of the general principles of Community law in the sense of Art. 215(2) EEC Treaty (now Art. 340 (2) TFEU) which again were part of unwritten EEC law (cf. Pentassuglia 2002, p. 144). In doing so, the ECJ drew inspiration from the constitutional traditions common to the Member States and went on to state that:

7 Although attempts have already been described to include a kind of human rights reservation clause in the EEC Treaty, these were (apparently) rejected for fear that Member States could undermine Community objectives by invoking such a provision (cf. De Búrca [1999] 2021, p. 487). 8 After the collapse of the first international system for the protection of the rights of national minorities under the League of Nations, the idea prevailed that the international protection of minority rights could best be achieved through an effective system of human rights protection based not on group rights but on individual rights, in particular the prohibition of discrimination. Accordingly, the Universal Declaration of Human Rights of 1948 (Art. 2) as well as the European Convention of Human Rights of 1950 (Art. 14) included prohibitions of discrimination but no minority (group) rights (cf. Henrard 2013, paras 32 et seq.; Hofmann et al. 2018, pp. 5 et seq.). 9 Beginning with Case 29/69 Stauder v City of Ulm, Sozialamt (1969) ECR (European Court Reports) 419. For a more comprehensive analysis of the developments in case law, see Douglas-Scott 2018, p. 409 et seq.; Kadelbach 2019, paras 1–8; and with a special focus on minority protection Pentassuglia 2002, pp. 144 et seq.

The Treaties and minority rights  19 Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law. (Case 4/73 Nold v Commission [1974] ECR 491, para. 13)

After that ruling, the ECJ increasingly referred not only to the European Convention on Human Rights (ECHR) – which in its Art. 14 contains an accessory prohibition of discrimination based on ‘association with a national minority’ – but also to the jurisprudence of the European Court of Human Rights (ECtHR) (cf. Topidi 2004, p. 185; Kadelbach 2019, para. 5). However, despite this gradual opening to fundamental rights concerns, minority-specific issues hardly played any role in the early case law of the ECJ, even if, after the cautious reference above, minority rights considerations – in view of the obligations under international treaties concluded by the Member States (e.g., Art. 27 ICCPR [International Covenant on Civil and Political Rights], Art. 14 ECHR) – would have been at least conceivable (cf. Pentassuglia 2002, p. 145; Topidi 2004, p. 186). There were only very few exceptions10 when minority issues became relevant at all (cf. Pentassuglia 2002, pp. 145 et seq.; Shoraka 2010, pp. 132 et seq.; and for subsequent developments, see Bilgin 2019, pp. 103 et seq.). In the Case of Bickel and Franz (1998), for example, the Court generally held with respect to the German-speaking minority of South Tyrol that ‘the protection of such a minority may constitute a legitimate aim’ (Case C-274/96 Criminal proceedings against Bickel and Franz [1998] ECR I-7637, para. 29) of a Member State’s policy without, however, elaborating on this concept any further (cf. Pentassuglia 2002, p. 145). In this context, it should be stressed that the Court did not rule that positive measures taken by Member States in favour of persons belonging to national minorities would be as such incompatible with Community law, but rather included minority protection in its proportionality test for assessing the legality of such measures (cf. Hofmann 2001, p. 559; and in more detail the contribution, in this volume, by Kristin Henrard on the ECJ). Nevertheless, the emerging jurisprudence on human rights, including on non-discrimination, did not trigger broader synergy effects for the protection of minorities in these early stages of European integration, but rather ‘reflects that at that time special minority rights were indeed not part of EU law’ (Henrard 2011, p. 411). Likewise, the entry into force of the Single European Act (signed in 1986) brought no significant change in this respect, even though for the first time ‘human rights’ were mentioned in the preamble of a founding document (cf. Topidi 2004, p. 183). This, however, should not obscure the fact that there have been some noteworthy – rather ‘idealistic’ (Toggenburg 2018, p. 51) than politically achievable – efforts since the 1980s within the framework of the European Parliament (EP) to integrate comprehensive minority and group protection into the Community’s internal law (cf. Toggenburg 2008a, pp. 3 et seq.; Toggenburg 2008b, pp. 116 et seq.; Shoraka 2010, pp. 122 et seq.; Toggenburg 2018, p. 51). In addition to the various (non-binding) parliamentary resolutions,11

For example, Case C-137/84 Mutsch (1985) ECR 2681; Case C-379/87 Groener v Minister for Education and the City of Dublin (1989) ECR 3967; Case C-274/96 Criminal proceedings against Bickel and Franz (1998) ECR I-7637; Case C-281/98 Angonese v Cassa di Risparmio di Bolzano SpA (2000) ECR I-4139. 11 For example, Resolution on a Community Charter of Regional Languages and Cultures and on a Charter of Rights of Ethnic Minorities (1981) OJ C287/106; Resolution on Measures in Favour of Linguistic and Cultural Minorities (1983) OJ C68/103; Resolution on the Languages and Cultures of the Regional and Ethnic Minorities in the European Community (1987) OJ C318/160; Resolution on Linguistic Minorities in the European Community (1994) OJ C61/110. 10

20  Research handbook on minority politics in the European Union the ambitious drafting of a ‘Charter of group rights’ should be mentioned, although it was never voted on (Toggenburg 2008a, pp. 3 et seq.). Nevertheless, one noticeable outcome of these early parliamentary efforts can be seen in the financial support given to the European Bureau for Lesser-Used Languages (EBLUL),12 a non-governmental organisation that promoted linguistic diversity and the rights of speakers of these languages and operated from 1982 to 2010 (see also the contribution, in this volume, by José Ramón Intxaurbe Vitoria and Eduardo Javier Ruiz Vieytez on linguistic diversity and language rights). The Maastricht Treaty: The Promise of Democracy Some noticeable change was brought about in the period after the entry into force of the Maastricht Treaty (1993) and its promise of an ever-closer union based on democracy, the rule of law and human rights. Interestingly, while the aforementioned concepts were all laid down in the preamble and the new provisions of the EU’s founding Treaty, the protection of minorities could not yet be found among them. This reflects not only the Union’s lack of commitment to internal minority protection at that time, but also needs to be considered against the background that the initial inclusion of ‘fundamental rights’ – in Art. F(2) TEU (Maastricht) – into primary law was intended to codify the ECJ’s previously mentioned jurisprudence (cf. Hartley 1993, p. 214; Hoffmeister 2008, p. 178; Streinz 2018, para. 24), which, as seen before, did not extend to minority-specific issues. However, minority rights gained considerable relevance in the course of the EU’s eastern enlargement (cf. Toggenburg 2004; Schwellnus 2006; Toggenburg 2008a, pp. 5 et seq.; Shoraka 2010, pp. 116 et seq.; Topidi 2010; Kochenov 2011, pp. 44–7; DG EXPO 2012; Vizi 2017, pp. 54 et seq.; and the contribution, in this volume, by Tove H. Malloy) when the European Council, at its Summit in Copenhagen (1993), defined the substantive criteria states must fulfil in order to become a member of the Union. These so-called ‘Copenhagen Criteria’ include ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’.13 In order to further substantiate the latter requirements, the EU14 referred, inter alia, to the OSCE principles, the ECHR and FCNM, and devoted considerable attention to the minority rights situation in the respective candidate countries (cf. Pentassuglia 2001, pp. 11 et seq.; Sasse 2005, pp. 7 et seq.; De Witte and Horváth 2008, p. 377; Shoraka 2010, p. 118; Topidi 2011, p. 39). The organisation’s growing awareness15 of the sensitivity of unresolved minority issues should certainly Since 1983 EBLUL received Community funding under Budget line B3-1006 (Regional and Minority Languages and Cultures). As the Budget line did not have a sufficient legal basis in secondary law, the funding was discontinued after the ECJ’s ruling in Case C-106/96 United Kingdom v Commission (1998) ECR I-2729 and later continued from other funds (cf. Toggenburg 2000; Ó Riagáin 2000, pp. 33–43; Gazzola et al. 2016, pp. 33–66). 13 Bulletin of the European Communities (1993) Vol. 26 No. 6, p. 13. 14 For the first accession round, see COM(97) 2000 final, Vol. I, 15 July 1997, p. 44. On later accession negotiations, see also the Accession Partnership with Turkey, Council Decision 2006/35/EC (2006) OJ L22/36; Council Decision 2008/157/EC (2008) OJ L51/9; Accession Partnership with the former Yugoslav Republic of Macedonia, Council Decision 2008/212/EC (2008) OJ L80/36. See, more recently, European Commission, North Macedonia 2019 Report, SWD(2019) 218 final, 29 May 2019, pp. 31 et seq.; Serbia 2020 Report, SWD(2020) 352 final, 6 October 2020, pp. 38 et seq.; Albania 2020 Report, SWD(2020) 354 final, 6 October 2020, pp. 38 et seq. 15 For the Commission’s position, see COM(97) 2000 final, Vol. I, p. 45: ‘Minority problems, if unresolved, could affect democratic stability or lead to disputes with neighbouring countries. It is there12

The Treaties and minority rights  21 be seen in the light of the collapse of the socialist regimes and the violent developments in the Balkans, as it expressed the Union’s endeavour to address minority conflicts in candidate countries before they could become internal ones and put a strain on its cohesion (Toggenburg 2008a, p. 5; Shoraka 2010, p. 116). Nevertheless, as the EU did not engage in any policies concerning national minorities living in the ‘old’ Member States, it was faced with criticism for applying double standards, especially after the Treaty of Amsterdam came into force (1999) and transferred all Copenhagen Criteria into Art. 6(1) TEU and, thus, into binding internal standards except16 those relating to the protection of minorities (cf. Arnauld 2004, pp. 125, 135; Henrard 2010, pp. 21–70; Vizi 2017, pp. 60 et seq.; Bilgin 2019, p. 95). As far as the EU’s internal policies are concerned – and despite what has been said before – attention should be drawn to the introduction of Art. 128(1) EC Treaty (now Art. 167(1) TFEU), which stipulated that: The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.

The added value in relation to minority issues can be seen in the fact that this provision, for the first time, recognised not only diversity among Member States but also regional cultural diversity as worthy of preservation, thus expressing an increased perception of diversity below the level of nation states (Henrard 2010, p. 58; Hoch Jovanovic 2013, p. 88). The new emphasis on the cultural dimension of the EU was further reflected in the EP’s ‘Resolution on Linguistic Minorities in the European Community’,17 adopted just one year after the Treaty of Maastricht had entered into force (Pentassuglia 2002, p. 148; Toggenburg 2008a, p. 4). The Amsterdam Treaty: Universal Rights of Non-Discrimination Against the background of the ambivalent relationship between the great importance attached to minority rights issues in the enlargement process on the one hand and the absence of internal standards on the other, the Treaty of Amsterdam, which entered into force in 1999, brought a decisive step towards shaping a more substantial standard of protection against direct and indirect discrimination of persons belonging to certain groups that would also enhance the legal situation of minorities (cf. Pentassuglia 2002, p. 149; Shoraka 2010, pp. 125 et seq.; Henrard 2010, pp. 37 et seq.; Malloy 2013, p. 66). Art. 13 EC Treaty (now Art. 19(1) TFEU) marked the beginning of a new generation of EU anti-discrimination law by opening up legislation in this area to grounds other than nationality and gender, which, to a considerable extent, can be attributed to the increased consciousness of the growing spread of racism throughout Europe (cf. Bell 2002, pp. 63 et seq.; Bell [1999] 2011, pp. 618 et seq.). Art. 13 EC Treaty stipulates that: fore in the interest of the Union and of the applicant countries that satisfactory progress in integrating minority populations be achieved before the accession process is completed, using all opportunities offered in this context.’ 16 It should nevertheless be noted that the introduction of ‘respect for human rights’ could also be understood to cover minority protection, as Hoffmeister 2008, p. 178 argued. See, on both possible ways of interpretation, Bilgin 2019, p. 95. 17 (1994) OJ C61/110.

22  Research handbook on minority politics in the European Union Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

While the provision did not have direct effect in the sense that it prohibited discrimination by itself, it did enable the Union to adopt legislation to that end (Bell 2002, p. 125; Shoraka 2010, p. 126; Ahmed 2011, p. 89). The grounds of discrimination particularly relevant for minorities are those of ‘racial or ethnic origin’ and ‘religion’; however, Art. 13 EC Treaty did not include minority protection as such (cf. Ahmed 2011, p. 89). Nevertheless, as the principle of non-discrimination can to some extent also be understood as to encompass (or at least to allow for) the adoption of positive action or measures,18 this provision was and is of great practical importance in achieving substantive equality in certain areas (Bilgin 2019, pp. 110–11). Particularly noteworthy in this context are the two directives issued on the basis of Art. 13 EC Treaty, the Racial Equality Directive19 and the Framework Employment Directive,20 which cover both the public and private sector (see Pentassuglia 2002, p. 149; De Witte and Horváth 2008, pp. 370 et seq.; Henrard 2010, pp. 38 et seq.; Ahmed 2011, pp. 89 et seq.; Malloy 2013, p. 67; Bilgin 2019, pp. 98–100; and the contribution, in this volume, by Kyriaki Topidi on fundamental rights and EU minorities). Furthermore, based on a mandate given by the European Council,21 the EU CFR was drafted and proclaimed in 2000 (on the overall development, see Douglas-Scott 2018, p. 389; Kadelbach 2019, paras 9–11), starting a period of ‘major constitutional change in the field of human rights’ (De Búrca [1999] 2021, p. 491) within the Union that would eventually result in a textual inclusion of ‘minorities’. Notwithstanding the indisputably ground-breaking importance of this document, with respect to minority rights it can be best described as ‘rather modest’ (De Witte 2004, p. 110) since the drafters rejected several proposals to include any special minority (group) rights in a separate provision (cf. Schwellnus 2001, pp. 7–11; De Witte 2004, p. 110). Instead, the Charter introduced in its Art. 21(1) a provision on the prohibition of any discrimination based on ‘membership of a national minority’ and in its Art. 22 the Union’s obligation to ‘respect cultural, religious and linguistic diversity’, the relevance of which will be discussed later, as the Charter remained a non-binding instrument until the 2009 entry into force of the Lisbon Treaty.

According to Grabenwarter and Struth (2021, Rn. 80), it is at least in line with today’s prevailing view on Art. 19(1) TFEU that the said provision also authorises positive action. Nevertheless, it should be noted that such measures still cannot be adopted explicitly for the protection of national minorities, as minorities are not mentioned in the current provision. 19 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000) OJ L180/22-26. 20 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (2000) OJ L303/16-22. 21 Cologne European Council 3–4 June 1999. Presidency conclusions and annexes, para. 44. 18

The Treaties and minority rights  23 The Constitutional Treaty: Opening up to the Rights of Persons Belonging to Minorities Further impetus was given by the discussion on the Treaty establishing a Constitution for Europe (Constitutional Treaty; CT),22 which not only incorporated the above-mentioned provisions of the CFR23 but also (unlike the previous draft24) explicitly referred to ‘respect for human rights, including the rights of persons belonging to minorities’ (Art. I-2 CT) as one of the values the Union is founded on (cf. De Witte 2004, pp. 110–11; Heintschel von Heinegg 2007, p. 50; Drzewicki 2008, pp. 139). The (intended) legal nature of the values enshrined in Art. I-2 CT went far beyond being declaratory: besides being an accession criterion25 ‘serious and persistent breach[es]’26 of the Union’s values could also serve as grounds for suspending some of the rights of the respective Member State (cf. Piris 2006, p. 133). Naturally, such inclusion of ‘minorities’ into this core provision did not go without controversy (cf. De Witte 2004, pp. 110–11; Piris 2006, pp. 133–4; Drzewicki 2008, pp. 138–41). While some states represented at the Intergovernmental Conference, notably Hungary and Romania, insisted on the inclusion of the rights of minorities,27 a group of other states strongly opposed such initiative (cf. Piris 2006, p. 134; Drzewicki 2008, p. 140). It is therefore of particular importance to pay attention to the exact wording of the provision that was also advocated by the HCNM and finally adopted as a compromise, since ‘rights of persons belonging to minorities’ emphasises the individual dimension of protection and conversely excludes collective or group rights (cf. Piris 2006, p. 134; Drzewicki 2008, pp. 140–41). In 2005, these efforts came to an abrupt end when the Constitutional Treaty’s ratification failed, as is well known, due to the negative outcome of the referenda in France and the Netherlands. However, after a ‘period of reflection’, the majority of substantive changes, including the mentioned provisions on minorities, could be preserved in the Treaty of Lisbon that entered into force in 2009 (cf. Mayer and Thies 2010, paras 20 et seq.; Schütze 2012, p. 40). This illustrates how the discussion on the Convention on the future of Europe can be seen as the turning point that laid a decisive foundation for opening up the EU’s (internal) legal order to the rights of persons belonging to minorities (similar Drzewicki 2008, p. 138).

MINORITY PROTECTION AFTER THE LISBON TREATY For the first time in the history of the European Treaties, the Lisbon Treaty, which drew heavily on the provisions of the Constitutional Treaty (cf. Craig 2010, p. 311), introduced in Art. 2 TEU and Art. 21(1) CFR the notion of ‘minorities’ into European primary law (on the legal situation after Lisbon, see FRA 2011, pp. 22 et seq.; Shoraka 2010, pp. 125 et seq.; 22 Treaty establishing a Constitution for Europe (2004) OJ C310/1. See generally on the Convention on the Future of Europe, Piris 2006, pp. 45 et seq. 23 Art. II-81 CT (on non-discrimination) and Art. II-82 CT (on cultural, religious and linguistic diversity). See Piris 2006, pp. 134 et seq. and 141 et seq. 24 Draft Treaty establishing a Constitution for Europe (2003) OJ C169/1-150. 25 Art. I-1(2) CT reads: ‘The Union shall be open to all European States which respect its values and are committed to promoting them together.’ 26 Art. I-59(2) CT. 27 On the proposals for amendments to Art. 2, see The European Convention, ‘Reactions to draft Articles 1 to 16 of the Constitutional Treaty’, Brussels, 26 February 2003, CONV 574/1/03 REV 1, p. 17.

24  Research handbook on minority politics in the European Union Ahmed 2011; Topidi 2011, pp. 37–59; Ahmed 2013, pp. 30–51; Hoch Jovanovic 2013, pp. 86 et seq.; Bilgin 2019, pp. 92–115). Although the above-mentioned provisions are the only ones so far explicitly referring to minorities, current EU law carries a number of provisions that may be relevant either directly or indirectly for persons belonging to a minority group, some of which will be outlined in the following section. Minorities and Diversity within the Founding Values and Objectives of the Union The first textual inclusion of a reference to minorities is found in the general provisions of the TEU, where Art. 2 makes a ‘ground-breaking’ (Shoraka 2010, p. 130; Ahmed 2013, p. 35; Hoch Jovanovic 2013, p. 86) – some would rather say ‘half-hearted’ (Kochenov 2014, p. 93) – commitment to the protection of minorities. Art. 2 TEU reads: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Art. 2 TEU (identical to Art. I-2 CT) contains an exhaustive list of founding ‘values’ which not only form the core of the Union’s constitutional framework28 but also serve as essential structural principles for the further development of the EU and its Member States (cf. Calliess 2016, para. 8; Heintschel von Heinegg 2018, paras 1 et seq.; Klamert and Kochenov 2019, pp. 23 et seq.). After the amendments of Maastricht (Art. F(1) TEU) and Amsterdam (Art. 6(1) TEU) the new provision finally completed the codification of principles that were originally formulated in the 1993 accession criteria (Klamert and Kochenov 2019, p. 24). In this respect, it is worth noting that Art. 2 TEU – like the Copenhagen Criteria – comprised, without further defining the term,29 all ‘persons belonging to minorities’ and thus was much broader than Art. 21 CFR, which refers to ‘national minorities’. However, in view of the special ‘Declaration on the Sami people’,30 it has already been argued that the Member States may have had national – i.e., ethnic and linguistic – minorities in mind first and foremost (Heintschel von Heinegg 2018, para. 11) and thus made implicit reference (Hilf and Schorkopf 2020, para. 38) to the FCNM. Moreover, Art. 3(3) TEU on the objectives of the Union emphasises that it ‘shall combat social exclusion and discrimination’ (subpara. 2) and ‘respect its rich cultural and linguistic diversity’ (subpara. 4). Despite the rather programmatic nature of the provision (cf. Klamert 2019, p. 32), it should be noted with regard to the latter wording that it is after all broad enough to understand the concept of ‘diversity’ not only as such between the Member States but also

Recently, the ECJ has used the term ‘constitutional framework’ in relation to Art. 2 TEU without, however, referring to the ‘rights of persons belonging to minorities’ as general principles of EU law (Opinion 1/17 CETA ECLI:​EU:​C:​2019:​341, para. 110). 29 Even if the lack of an explicit definition is completely in line with the situation of international minority protection law, this might additionally inhibit the effects of Art. 2 TEU on the Union legal order. However, it has already been argued that such flexibility might also be useful (cf. Ahmed 2013, p. 36). More clarity can probably only be provided by the ECJ, which is responsible for the binding interpretation of EU law (Art. 267 TFEU). On the issue of definition in general, see Guliyeva (2014). 30 (2004) OJ C310/465-465 (Final Act of the Treaty establishing a Constitution for Europe). 28

The Treaties and minority rights  25 within them, thus leaving room for minority-friendly considerations (cf. FRA 2011, p. 23). Nevertheless, the norm in itself does not establish any independent obligations (Klamert 2019, p. 32), but requires further elaboration within the framework of the treaties. The inclusion of minorities in the Union’s founding values acquires particular significance through numerous cross-references31 within the Treaties (cf. Klamert and Kochenov 2019, p. 24). Particularly noteworthy are Arts 7 and 49 TEU, which seek to safeguard the Union’s values through a special mechanism, both internally as well as in the accession process. Furthermore, according to Art. 8 TEU, the European Neighbourhood Policy builds on the mentioned values, including the protection of minorities which has been addressed in various action plans (cf. Hoch Jovanovic 2013, p. 84). In addition thereto, both Arts 2 and 3 TEU provide substantive guidance in the context of interpretation and implementation of Union law (cf. Ahmed 2013, p. 34). Past decisions32 of the ECJ have left no doubt about the high significance of the mentioned provisions in this respect (cf. Klamert 2019, p. 32; Klamert and Kochenov 2019, pp. 23 et seq.). Although ‘the rights of persons belonging to minorities’ have not been part of that jurisprudence, the Court has shown possible ways of including particular values and objectives into judicial decision-making that might become relevant once minority issues are at stake (cf. Hoch Jovanovic 2013, p. 88). From a methodological point of view, the ECJ seems to have moved towards making the values of Art. 2 TEU justiciable (not taken alone, but) in combination with such provisions that express a concretisation of these values (cf. Hilf and Schorkopf 2020, para. 46a). In the past, this meant, for example, that the ECJ33 considered the value of ‘the rule of law’ (Art. 2 TEU) in conjunction with the second subparagraph of Art. 19(1) TEU in order to derive Union law standards on judicial independence (cf. Hilf and Schorkopf 2020, para. 46a.). Nevertheless, in contrast to the above-mentioned decisions, this approach does not appear to be easily implemented with regard to minority issues, as explicit references to ‘minorities’ are still rare. On the other hand, it does not seem entirely inconceivable, at least if one takes into account various norms that indirectly affect minority issues. This would mean, for example, interpreting norms on cultural or linguistic diversity, education or social inclusion in the light of the values of Art. 2 TEU. Another interesting development, the further consequences of which remain to be seen, seems to have occurred just recently in a similar context when the ECJ (C-899/19 P, paras 53–5) confirmed the General Court’s decision in Case T-391/17 that although there is no general legal basis for measures to protect minorities, the Union is at the same time not prevented from taking into account the values of Art. 2 TEU and objectives of subpara. 4 of Art. 3(3) TEU when acting on the basis of an existing competence. Accordingly, provided there is such a valid legal basis, legal acts of the EU may also aim to respect minority rights and cultural and linguistic diversity (C-899/19 P, para. 55).

For example, Arts 3(1) and (5), 7(1) and (2), 8(1), 13, 21(2)(a), 32, 42(5), 49 TEU. With regard to Art. 2, see Opinion 2/13 Accession of the European Union to the ECHR ECLI:​EU:​ C:​2014:​2454, para. 168; Case C-64/16 Associação Sindical dos Juízes Portugueses ECLI:​EU:​C:​2018:​ 117, paras 30 et seq.; Case C‑284/16 Achmea ECLI:​EU:​C:​2018:​158, para. 34; Case C‑621/18 Wightman et al. ECLI:​EU:​C:​2018:​999, para. 62; Case C‑619/18 European Commission v Republic of Poland ECLI:​ EU:​C:​2019:​531, paras 42, 47, 58; and with regard to Art. 3, see Case C-9/99 Échirolles ECLI:​EU:​C:​ 2000:​532, paras 22–4. 33 Case C-64/16 Associação Sindical dos Juízes Portugueses ECLI:​EU:​C:​2018:​117, para. 32. 31 32

26  Research handbook on minority politics in the European Union Against this backdrop, the (future) significance of the inclusion of ‘respect for […] the rights of persons belonging to minorities’ into the values on which the ‘Union is founded’ should not be underestimated (cf. Ahmed 2013, p. 35). Nevertheless, the effect of Arts 2 and 3 TEU is limited mainly by the fact that they neither confer subjective rights on individuals (or groups) nor do they provide the Union with any competences to pursue its own minority policy (Ahmed 2011, p. 61; Topidi 2011, p. 48; Klamert and Kochenov 2019, p. 25). Fundamental Rights and Minority Protection Art. 6 TEU, which was largely redrafted by the Lisbon Treaty, reaffirms the EU’s commitment to fundamental rights (cf. Lock 2019a, pp. 80 et seq.; Schorkopf 2020, para. 1) and has considerable effect on the legal situation of persons belonging to minorities (cf. Shoraka 2010, p. 125; Ahmed 2013, pp. 37 et seq.). This becomes particularly clear with regard to Art. 6(1) TEU, which states that the CFR ‘shall have the same legal value as the Treaties’, thus elevating the Charter to the rank of (binding) EU primary law (see Kadelbach 2019, para. 19), including the provisions relevant to minorities discussed below, as well as non-minority-specific human rights such as freedom of religion, etc. In parallel, Art. 6(3) TEU confirms the continued existence of unwritten fundamental rights as ‘general principles of the Union’s law’ alongside (and not subordinate to) the written fundamental rights of the CFR (Pache 2017, para. 1; Lock 2019a, paras 1, 21–5). Thus, the ECHR remains a relevant source of inspiration for the development of European fundamental rights, also with regard to the rights of minorities deriving from the Convention (cf. Shoraka 2010, pp. 138 et seq.). In this respect, however, it needs to be noted that the ECHR only contains, in its Art. 14, an accessory prohibition of discrimination based on ‘association with a national minority’, but beyond that it does not contain any minority-specific provisions comparable to Art. 27 ICCPR,34 and neither do the protocols35 (Shoraka 2010, p. 139; Schabas [1993] 2015, p. 581). As a result, many of the areas that are important for preserving a distinct minority identity and language are hardly adequately covered (Shoraka 2010, p. 139). It is therefore no surprise that the ECtHR’s case law has long been of little relevance to the protection of the rights of persons belonging to national minorities, although following the landmark judgment in D.H. and Others v the Czech Republic,36 a series of decisions concerning discrimination and segregation of Roma pupils in the school systems of a number of EU Member States clearly shows the noticeably increased sensitivity of the ECtHR to the concerns of minorities (cf. Hofmann 2005, p. 597; Shoraka 2010, p. 140; Peters and König 2013, para. 184; Schabas [1993] 2015, p. 582). In this way, as has already been noted (Kochenov 2011, p. 37), it seems at least conceivable to transfer such minority-relevant principles, which have already been recognised in the case law of the ECtHR, into the legal system of the EU.

For a discussion of Art. 27 ICCPR, see Schabas 2019, pp. 795 et seq. It should be mentioned, however, that Art. 1 of the 12th Additional Protocol to the ECHR contains a non-accessory prohibition of discrimination, the relevance of which remains rather limited due to the relatively small number of States Parties to this additional protocol. 36 D.H. and Others v the Czech Republic (GC) Appl. No. 57325/00 (Judgment of 13.11.2007). 34 35

The Treaties and minority rights  27 Individual Rights of Non-Discrimination and the Principle of Respect for Diversity The second textual inclusion of the issue of minorities in EU primary law can be found in the EU Charter of Fundamental Rights, which applies to EU institutions as well as Member States when they are implementing37 Union law (Art. 51(1) CFR) and has, pursuant to Art. 6(1) TEU, ‘the same legal value as the Treaties’. Art. 21(1) CFR states that: Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

According to the Explanations,38 the above provision draws, inter alia, on Art. 13 EC Treaty (Amsterdam) (now Art. 19 TFEU) and Art. 14 ECHR (cf. Kilpatrick 2014, p. 579; Martin 2019b, para. 1). Therefore, the question arises whether Art. 21(1) CFR is to be interpreted in accordance with Art. 14 ECHR. Although the Explanations39 do not provide an entirely clear picture in this regard, it has been rightly argued that Art. 21 CFR ‘must be understood to have the same meaning and scope’ (Martin 2019b, para. 2) as Art. 14 ECHR, to the extent that both provisions correspond, which also holds true for the membership of a national minority. At the same time, both provisions are far away from being identical, since the prohibition of discrimination in Art. 21(1) CFR stands on its own and therefore has a broader scope of application than Art. 14 ECHR, which can only be invoked in conjunction with another freedom (cf. Martin 2019b, para. 2). With regard to the concept of discrimination and the possibility of justifying differential treatment, there are similarities but also important differences between the CRF and the ECHR, which have already been pointed out40 in the context of the ‘radically different approaches to the definition of discrimination “on grounds of ethnic origin”’ (Martin 2019b, para. 2). Furthermore, a crucial question remains to what extent Art. 21 CFR contains the obligation not only to refrain from discriminating against national minorities, but also to take active or positive measures in order to promote their distinct identity and create substantive equality (see Toggenburg 2018, p. 53). In this respect, however, there are considerable limitations arising from primary law which put particular emphasis on stating that ‘the Charter shall not extend in any way the competences of the Union as defined in the Treaties’ (Art. 6(1) TEU).41 Therefore, even if it would seem conceivable to derive from the non-discrimination principle in Art. 21(1) CFR an obligation of the EU to take positive action or measures (in that sense see Shoraka 2010, p. 132), this approach would nevertheless be limited by the mandatory requirement that the EU would have to act on the basis of existing competences (Lock 2019a, para. It is well known that the ECJ (e.g., Case C-617/10 Åkerberg Fransson ECLI:​EU:​C:​2013:​105, para. 19) interprets this requirement rather broadly (Lock 2019c, para. 6). 38 Explanations relating to the Charter of Fundamental Rights (2007) OJ C303/24. 39 On the one hand, Explanations to Art. 52 CFR do not include Art. 21 CFR in the list of provisions that are to be interpreted in consistency with the ECHR, while on the other hand Explanations to Art. 21 CFR ([2007] OJ C303/24) presuppose a certain consistency. 40 Martin 2019b, para. 2 refers to Biao v Denmark (GC) Appl. No. 38590/10 (Judgment of 24.5.2016), paras. 96 et seq. and Case C-668/15 Jyske Finans EU:​C:​2017:​278, para 20. 41 This provision largely corresponds to Art. 51(2) CFR, which states: ‘The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’ 37

28  Research handbook on minority politics in the European Union 5). The latter seems highly problematic, since the enabling provision in Art. 19 TFEU – unlike Art. 21(1) CFR – does not extend to ‘national minorities’ and thus provides the Council with no solid legal basis to take appropriate action to combat discrimination based on this specific characteristic (FRA 2011, p. 23; Toggenburg 2018, p. 53; Bilgin 2019, p. 101) – a difference that, giving the explicit wording, ‘can hardly be ignored’ (Toggenburg 2018, p. 53) and creates an obstacle that will be difficult to overcome without treaty amendments. In addition thereto, Art. 22 CFR reaffirms the Union’s commitment to ‘respect cultural, religious and linguistic diversity’. As these terms can be interpreted quite broadly (Hölscheidt 2019, para. 21; Lock 2019b, paras 3–5), many of the particular characteristics that distinguish minorities can easily be subsumed under ‘cultural, religious and linguistic diversity’, while the meaning and scope of the term ‘to respect’ remains controversial (cf. Craufurd Smith 2014, p. 618). According to a predominantly held view (cf. Peters and König 2013, para. 186; Hölscheidt 2019, para. 17; Lock 2019b, para. 2; Jarass 2021, para. 3), Art. 22 CFR – in contrast to the overall nature of the Charter – is not considered as providing for an individual right42 but rather a principle that, pursuant to Art. 52(5) CFR, needs to be ‘implemented by legislative and executive acts’ and ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. In this sense, Art. 22 CFR obliges the Union to refrain from disproportionate interference with Member State policies affecting diversity in any of the areas mentioned, but does not impose on it a duty to take positive action (Hölscheidt 2019, paras 15, 28; Jarass 2021, para. 8). Nevertheless, one could see a minority-friendly effect of the provision in the fact that it offers Member States some kind of protection against EU policies aiming at a certain harmonisation. Moreover, the provision remains relevant to minority issues insofar as ‘cultural, religious and linguistic diversity’ may constitute a legitimate aim on the basis of which other provisions of primary law may be subjected to proportionate restrictions (Craufurd Smith 2014, p. 624; Jarass 2021, para. 9). However, it needs to be noted that the term ‘to respect’ indicates a less extensive duty than ‘to promote’ the diversity of cultures within the Union, as used in Art. 167(4) TFEU (cf. Craufurd Smith 2014, p. 619). The controversial genesis of Art. 22 CFR is particularly revealing with regard to the Member States’ reluctance to include more far-reaching provisions on minority protection in primary law. During the drafting phase, criticism has been voiced that the rights of persons belonging to minorities were not sufficiently protected and even some demands were made that minorities should be granted the right to exercise their culture in community and to regulate their internal affairs autonomously (cf. Hölscheidt 2019, paras 10–14). Nevertheless, the drafters could not agree to include specific (group) rights or further additions to the rights of minorities and finally adopted Art. 22 CFR in its current version (Hölscheidt 2019, paras 13–14). In summary, one could say that, notwithstanding the fact that the Charter does not provide for specific minority rights, the prohibition of any discrimination based on ‘ethnic origin’ and ‘membership of a national minority’ (Art. 21(1) GRC) and the recognition of the diversity of cultures, religions and languages (Art. 22 GRC) might serve, despite all its inherent limitations, at least in the future as a promising basis for a much more minority-sensitive policy within the EU and not only as an important reference point in its foreign policy.

On the arguments for a rights-based interpretation, see Craufurd Smith 2014, p. 620.

42

The Treaties and minority rights  29 Minorities in the European Competence Structure: Between Member States and the Union Apart from the above provisions, the EU’s capacity to take action in the field of minorities is strongly determined by the distribution of competences laid down in the Treaties. According to the principle of conferral (on this principle, see Lenaerts and Gutiérrez-Fons 2018, pp. 112 et seq.; Schütze 2018, p. 229), ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties’ as stipulated in Art. 5(2) TEU. As the Member States did not provide the EU with any explicit competences to pursue its own minority policy, minority protection remains a ‘transversal task that the EU can or must pursue in a variety of policy contexts’ (FRA 2011, p. 10). This results in a most complex distribution of powers and roles between the EU and its Member States which here can only be described in an overview (for more detail, see Ahmed 2011, pp. 74 et seq.; Toggenburg 2018, pp. 53 et seq.). As already mentioned, Art. 19(1) TFEU (ex Art. 13 EC Treaty) contains the Union’s main enabling provision to combat discrimination based on certain grounds, such as ‘racial or ethnic origin’ or ‘religion’. Since this provision has not been substantially amended after the Treaty of Amsterdam, reference may be made to the above. What is new, however, is the horizontal clause in Art. 10 TFEU stating that ‘the Union shall aim to combat discrimination based on […] racial or ethnic origin’ when ‘defining and implementing its policies and activities’ (cf. FRA 2011, p. 23). Although Art. 10 TFEU does not confer any additional competences on the Union (cf. Rossi 2016, para. 3), the provision nevertheless represents noteworthy progress in so far as it extends the duty to ‘combat discrimination’ to all other areas of action and thus ‘provides a normative backbone for a mainstreaming approach’ (FRA 2011, p. 23) that might eventually lead to more minority-sensitive legislation. Art. 9 TFEU should be seen in a similar light (cf. FRA 2011, p. 24), as it further requires the Union to ‘take into account requirements linked to […] the fight against social exclusion’. However, it needs to be noted, firstly, that there is no explicit reference to ‘minorities’ in either of the provisions, and secondly, that the prohibition of discrimination is in itself a necessary but not sufficient condition for the realisation of substantive equality for persons belonging to national minorities (cf. Shoraka 2010, p. 126), as pertinent action of the EU would presuppose the existence of an explicit competence in this regard. Therefore, it can be argued that adequate minority protection will be difficult to achieve on this basis alone. A similar picture emerges with regard to some of the particular policy areas that are typically relevant to minorities, such as culture, education, or regional and social policy (see, in more detail, Ahmed 2011, pp. 98–118, 121 et seq.; Ahmed 2013, pp. 40 et seq.; Hoch Jovanovic 2013, pp. 88 et seq.). With regard to the first one, Art. 167(1) TFEU reaffirms the emphasis on the Union’s cultural dimension (on this notion, see Garben 2019c, paras 4 et seq.) introduced by Art. 128 EC Treaty (Maastricht) and is to be seen in combination with Art. 3(3) TEU and Art. 22 CFR (cf. Shoraka 2010, pp. 128–9; Hoch Jovanovic 2013, pp. 89). Art. 167(2) TFEU vests the EU with limited competences to act in a coordinating and supportive way (cf. Blanke 2016, paras 5 et seq.); furthermore, the horizontal clause in Art. 167(4) TFEU adds the Union’s obligation to ‘take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures’ without changing the existing distribution of competences (cf. Blanke 2016, para. 15). Similar limitations exist in relation to Art. 165(1) TFEU, which states that the Union ‘shall contribute to the

30  Research handbook on minority politics in the European Union development of quality education’, but at the same time emphasises the importance of ‘fully respecting’ the Member States’ responsibility for the content of teaching, the organisation of education systems and their cultural and linguistic diversity (see, in more detail, Ahmed 2011, pp. 99–101; Garben 2019b, paras 1 et seq.). Thus, the existing body of norms makes it rather difficult for the EU to pursue a broader minority-centred policy or even legislation, although it opened up, for example, to possibilities to set up programs43 that benefit minorities (cf. De Witte and Horváth 2008, pp. 374 et seq.; Shoraka 2010, p. 129; Ahmed 2011, pp. 126 et seq.). Also worth mentioning is the increasing commitment to social inclusion in the post-Lisbon period,44 which additionally affects minority communities (cf. Topidi 2011, p. 55). The social dimension of the Union is not only enshrined in the objectives of Art. 3(3) TEU and in the horizontal clause of Art. 9 TFEU, but also finds concrete expression in the provisions of Arts 151–61 TFEU. Although legislative measures in this field remain limited, due to Arts 4(2) (b) and 153(2) TFEU (cf. Topidi 2011, p. 55; Garben 2019a, p. 1352), there has been some focus on minority groups,45 especially through initiatives under the European Social Fund46 (cf. Ahmed 2011, pp. 98–9). Similar effects are conceivable in the area of the EU’s regional development policy (Arts 174–8 TFEU), especially for minorities living in disadvantaged regions (cf. Hoch Jovanovic 2013, pp. 93 et seq.). While these provisions are still far away from forming a sufficient basis for a fully-fledged minority protection system (cf. FRA 2011, p. 23), they illustrate that the Treaties do indeed offer several starting points for pursuing a minority-sensitive policy.47 The Minority SafePack Initiative: A Missed Opportunity? Against the background of this set of standards, which is still rudimentary in terms of minorities, the Minority SafePack Initiative (MSPI)48 received considerable attention (cf., more detailed, Toggenburg 2018, pp. 61 et seq.). The initiative describes its aim as improving the protection of persons belonging to national and linguistic minorities and strengthening cultural and linguistic diversity by calling on the EU to adopt legal acts49 that use the existing legal framework in this area. To pursue this goal, MSPI used the possibility of plebiscitary partici-

43 For example, the ‘Life Long Learning Programme’; see Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning (2006) OJ L327/45. 44 On the EU Cohesion Policy, see the Commission’s website https://​ec​.europa​.eu/​regional​_policy/​ en/​policy/​themes/​social​-inclusion/​. 45 On the EU funding for Roma equality, inclusion and participation, see the Commission’s website https://​ec​.europa​.eu/​info/​policies/​justice​-and​-fundamental​-rights/​combatting​-discrimination/​roma​-eu/​eu​ -funding​-roma​-equality​-inclusion​-and​-participation​_en. 46 On the interventions and achievements of the European Social Fund in the area of Migrants and Minorities, see EC, The European Social Fund: Migrants and Minorities, 2010, available at https://​ec​ .europa​.eu/​employment​_social/​esf/​docs/​br​_migrants​_minorities​_en​.pdf. 47 At least with regard to Art. 2 and Art. 3(3) subpara. 4 TEU, this seems to have been recently confirmed by the ECJ (C-899/19 P, paras 53–5) when, as mentioned above, it upheld the General Court’s decision in Case T‑391/17, according to which, legal acts of the EU may also aim to respect minority rights and cultural and linguistic diversity (C-899/19 P, para. 55) when acting on the basis of an existing competence. 48 See the initiative’s website www​.minority​-safepack​.eu/​. 49 The proposals are printed and commented on in Toggenburg 2018, pp. 66 et seq.

The Treaties and minority rights  31 pation – foreseen in Art. 11(4) TEU – and launched a European Citizens’ Initiative. After the Commission’s initial decision50 to refuse to register the initiative was annulled by the General Court of the EU,51 nine out of 11 proposals could be registered. The collection of the required number of signatures was completed in 2018, and in December 2020, after a public hearing on the issue, the EP adopted a resolution52 in support of the initiative. However, evaluating the nine proposals, the Commission53 concluded – without any exception – that no additional legal action was necessary and therefore refused to pursue further legislative initiatives. Given the MSPI’s special approach to ‘pragmatically use all the different (albeit limited) legal avenues the EU system offers in order to introduce minority-friendly elements in EU law and politics’ (Toggenburg 2018, p. 70), the Commission’s rejection must be seen as highly deplorable and as a missed opportunity to explore the possibilities of implementing further legislative acts in favour of persons belonging to minorities within the existing Treaty framework. On 24 March 2021, the initiators filed an action for annulment of the Commission’s decision, arguing, among other things, that it failed to give sufficient reasons for its conclusion that no action was needed.54 It thus remains to be seen whether the initiative will succeed in pursuing its objectives.

CONCLUDING REMARKS Even if the Treaty of Lisbon is ‘far from revolutionary’ (Toggenburg and McLaughlin 2013, p. 256) in this respect, it has indeed laid decisive foundations for the development of a more minority-sensitive policy within the framework of the EU, especially as Art. 2 TEU and Art. 21(1) CFR finally broke the silence of the Treaties in terms of ‘minorities’ (cf. also FRA 2011, p. 22; Ahmed 2013, p. 35). Nevertheless, the legally binding EU framework continues to remain rudimentary and highly open to interpretation, and in many respects it hardly goes beyond the mere prohibition of discrimination, which despite numerous political initiatives (but also EU funding programmes) still falls well short of the Union’s interest in minority issues in the context of its foreign and accession policies. As the evolution of the Treaties has shown, these often-criticised deficits have their origin, to a large extent, in the unwillingness of Member States to confer corresponding competences to the supranational level of the EU. This situation does not really come as a surprise considering that among the eight CoE Member States which have not ratified the FCNM, the most important legally binding international document in the field of minority rights, are four EU Member States: Belgium, France, Greece and Luxembourg.55 As it seems most unlikely that these countries will change, in a foreseeable future, their fundamentally reluctant position towards minority rights within the EU legal order, improving the legal situation of minorities within that legal order by way of amending the Treaties does not constitute a viable option. Therefore, the protection of minorities within Commission Decision C(2013) 5969 final, 13 September 2013. Case T‑646/13 Minority SafePack – one million signatures for diversity in Europe v Commission ECLI:​EU:​T:​2017:​59. 52 P9_TA(2020)0370. 53 Communication from the Commission on the European Citizens’ Initiative ‘Minority SafePack – one million signatures for diversity in Europe’, C(2021) 171 final, 14 January 2021. 54 Case T-158/21 Minority SafePack – one million signatures for diversity in Europe v Commission. 55 The four other States are Andorra, Iceland, Monaco and Turkey. 50 51

32  Research handbook on minority politics in the European Union the Union needs to be pursued as a transversal task – within the framework of the existing provisions56 – and will arguably continue to develop rather quietly under headings such as cultural or linguistic diversity than by ways of (specific) legislation (cf. Palermo and Woelk 2003, p. 7; Toggenburg 2004, p. 31; Hofmann and Friberg 2004, pp. 137, 143). Further progress, such as an approximation to the standards of the CoE, might be achieved – similar to the methods applied for the incorporation of fundamental rights into Union law – by way of jurisprudential developments or through a slow and gradual exchange between the European institutions involved (Toggenburg 2004, p. 14; Hofmann and Friberg 2004, pp. 137, 143; Ahmed 2013, pp. 50–51; Bilgin 2019, p. 114). In any case, achieving the political goal that the Union eventually applies the same standards in minority affairs in its internal as in its external policies remains quite a difficult task, as has been confirmed most recently by the Commission’s strict and uncompromising position towards the MSPI; nonetheless, achieving this goal has indeed become somewhat more likely with the entry into force of the Treaty of Lisbon (cf. Ahmed 2013, pp. 30 et seq.) and the recent decisions of the EU Courts (T-391/17; C-899/19 P), which justifies cautious optimism.

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56 The possibilities of pursuing minority interests within the framework of non-minority-specific provisions have already been demonstrated by Henrard 2010, pp. 36 et seq.

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European Parliament Resolution on a Community Charter of Regional Languages and Cultures and on a Charter of Rights of Ethnic Minorities (1981) OJ C287/106. Resolution on Measures in Favour of Linguistic and Cultural Minorities (1983) OJ C68/103. Resolution on the Languages and Cultures of the Regional and Ethnic Minorities in the European Community (1987) OJ C318/160. Resolution on Linguistic Minorities in the European Community (1994) OJ C61/110. Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning (2006) OJ L327/45. Directorate-General for External Policies (DG EXPO), ‘Mainstreaming human and minority rights in the EU enlargement with the Western Balkans’ 2012, available at www​.europarl​.europa​.eu/​meetdocs/​ 2014​_2019/​documents/​droi/​dv/​54​_dpstudy​_/​54​_dpstudy​_en​.pdf. P9_TA(2020)0370.

European Commission COM(97) 2000 final, Vol. I, 15 July 1997. Decision C(2013) 5969 final, 13 September 2013. North Macedonia 2019 Report, SWD(2019) 218 final, 29 May 2019. Serbia 2020 Report, SWD(2020) 352 final, 6 October 2020. Albania 2020 Report, SWD(2020) 354 final, 6 October 2020. Communication from the Commission on the European Citizens’ Initiative ‘Minority SafePack – one million signatures for diversity in Europe’, C(2021) 171 final, 14 January 2021.

Legislative Acts Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000) OJ L180/22-26. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (2000) OJ L303/16-22.

Other Documents Accession Partnership with Turkey, Council Decision 2006/35/EC (2006) OJ L22/34; Council Decision 2008/157/EC (2008) OJ L51/4. Accession Partnership with the former Yugoslav Republic of Macedonia, Council Decision 2008/212/ EC (2008) OJ L80/32. Bulletin of the European Communities (1993) Vol. 26 No. 6. Cologne European Council 3–4 June 1999. Presidency conclusions and annexes. Draft Treaty establishing a Constitution for Europe (2003) OJ C169/1. Treaty establishing a Constitution for Europe (2004) OJ C310/1.

The Treaties and minority rights  37 The European Convention, ‘Reactions to draft Articles 1 to 16 of the Constitutional Treaty’, Brussels, 26 February 2003, CONV 574/1/03 REV 1. Explanations relating to the Charter of Fundamental Rights (2007) OJ C303/17-35.

3. Fundamental rights and racial and cultural minorities in the EU: carving out a mandate to protect ‘Others’ Kyriaki Topidi

INTRODUCTION: THE EVOLVING NATURE AND NEEDS OF MINORITY RIGHTS PROTECTION IN THE EUROPEAN LEGAL SPACE The protection of minority groups within contemporary, (super-)diverse societies is a central feature of liberal, democratic regimes. Particularly within the context of the European Union (EU), ‘discrimination […] means a failure to uphold core EU values’ (European Commission, 2020, 1). Within the frame of a current analysis of minority protection schemes within the Union, a few preliminary observations may be nevertheless required. Conceptually, minority groups possessing ‘ethnic, religious or linguistic characteristics differing from those of the rest of the population […] and show[ing] […] a sense of solidarity, directed towards preserving their culture, traditions, religion or language’ (Capotorti, 1977, 96) operate and exist today within a post-state framework. In other words, the state is losing its primacy as the sole unit of analysis for minority protection (Bieber and Bieber, 2021, 182). Put even more simply, every group is a minority group at EU level. At the same time, the EU frame also challenges the overlap between national citizenship and minority protection.1 Population movements, immigration and mixed families increasingly create scenarios of multiple citizenship. Still, different forms of racism are pervasive in European societies covering race (e.g., anti-Black racism, anti-Gypsyism, anti-Asian racism) or religion (e.g., anti-semitism, anti-Muslim hatred) (European Commission, 2020, 2). Regardless of this reality, there has been considerable discussion on how the EU has offered both internally but also in its external relations a largely unclear mandate to protect minorities within its space. In Europe, the post-war approach to minority protection has been based on individual rights.2 It is now accepted that all members of minority groups have guaranteed rights, including that of equality. The promotion of ethnic and cultural diversity has also become largely consonant with the social integration of minority groups. While the opportunity to develop common European standards about minority inclusion was not entirely grasped in the aftermath of the collapse of the Soviet Union in the early 1990s, The Advisory Committee of the Framework Convention of National Minorities has moved to include in its work both traditional minorities but also migrants (cf. Council of Europe, 2016, Thematic Commentary No. 4, The Framework Convention: A Key Tool to Managing Diversity through Minority Rights – The Scope of Application of the FCNM). 2 See the United Nations Charter (1945), the International Convention on the Elimination of All Forms of Racial Discrimination (1965) or the International Covenant on Civil and Political Rights (1966). 1

38

Fundamental rights and racial and cultural minorities in the EU  39 it is still the case that minority groups are trapped in a Janus-faced status: on the one hand they are considered vulnerable segments of the population among majoritarian states, and on the other they are viewed as potentially threatening to the stability of states (Csergo et al., 2017, 5). What has changed between the early 1990s and the present is that today the primary targets of this tension are, for the most part, recent immigrant minority groups; in particular, Muslims. Within such a socio-political frame that still considers minorities mostly as ‘threats’, as the experience of the European refugee crisis that saw its culmination in 2015 showed, minority groups are now in need of a shift in their perception from risks to the integrity of national cultures to that of subjects of a more consistent European minority rights regime, including within the EU. Furthermore, recent efforts towards minority inclusion in multicultural European societies have triggered minority agency that varies greatly across the space of the EU’s 27 Member States. Often, this kind of agency tends to essentialize collective identities in search of more ‘security’. The example of Brexit is an apt reminder of this process. The failures of Roma inclusion and persisting marginalization serve as another reminder of the importance of local context and national implementation mechanisms, but also of the potential for mobilization of minority organizational resources (Csergo et al., 2017, 10). EU minority policy is therefore finding itself at a crucial point of its development. While the ratification of the Framework Convention for the Protection of National Minorities has become a (tacit) precondition towards EU accession, the purpose and content of the instruments for international minority rights are still debated in the beginnings of the 21st century (Csergo et al., 2017, 8). The diversity of treatment of the issue of minority protection among EU Member States, which ranges from offering extensive rights to refusal to recognize minority groups as such, places the frame of analysis at a level where the impact of law in the absence of explicit competences can only be indirect (Bieber and Bieber, 2021, 184). Many aspects of minority rights norms are consequently contested, including among EU Member States.3 Equally contested is the approach used to protect minorities in Europe: is legal protection a suitable and the exclusive means to protect ‘Others’ in our diverse societies? Should minority agency shape the type of action required, and if so, to what extent? As importantly, does (transnational) integration, like the one pursued within the Union that claims equality to be one of its basic values, require, as its prerequisite, a strong normative framework relying mostly on anti-discrimination laws? Ultimately, the central questions on minority protection stand unchanged: is the Union ever going to be able to provide guarantees for the protection of minorities with fragile identities and interests? What would be the place for special/positive measures in the EU’s legal and policy framework beyond the traditionally recognized realm of national states, particularly if not all EU member states feel the need to keep up with minority rights improvements and adjustments? And can we still claim that the values at the base of the Union such as social inclusion, integration and cultural diversity retain their meaning when minorities continue to be framed as sources of internal and/or external threat? With the help of the review of the main instruments of law and policy on fundamental rights, the present contribution will reflect on why and how minority protection as related to fundamental rights protection in the EU is under pressure to evolve. More specifically, it will argue, following the review of the present framework of action on minority fundamental rights



3

Belgium, Greece and Luxembourg have not ratified the FCNM while France has not signed it.

40  Research handbook on minority politics in the European Union protection, that the EU’s legal and policy level is in need of reinforcement at three distinct levels, if they are to have an impact on minority protection: first, in the continued focus on the implementation as well as on adoption of relevant legislation; second, in the sustained treatment of minority protection as a cross-cutting issue across all fields of competence of the EU; and finally, in the encouragement of the development of clear qualitative and quantitative indicators for minority protection for existing (and aspiring) member states.

EU LEGAL REFERENCES TO MINORITY PROTECTION AND FUNDAMENTAL RIGHTS It was established early on that the EU legal order protects against discrimination on the basis on nationality, and therefore ethnic and other minorities with EU citizenship can benefit from such protection.4 Article 13 of the Treaty on European Union, or TEU (now Article 19 of the Treaty on the Functioning of the European Union; TFEU), formally added the EU legal competence to combat discrimination on the basis of sex, racial or ethnic origin or belief, disability, age or sexual orientation. On the basis of this specific treaty provision, which remains, so far, the core norm to combat discrimination against minorities, a number of directives have been introduced, such as the one on discrimination in employment5 as well as the race equality directive.6 Their material scope extends to the private sector and covers access to and supply of goods and services. Directive 2000/43 forbids direct and indirect discrimination both horizontally (in private legal relations) as well as vertically (as an obligation for public authorities).7 It covers employment but also discrimination in the context of social protection, education and housing. The directive is inspired and motivated by EEC (European Economic Community) Regulation 1612/68 on the free movement of workers. The two seemingly disconnected pieces of EU law, despite the difference in their target groups, share a connecting thread in their understanding of discrimination, as being either overt or covert (i.e., direct/indirect). Regulation 1612/68 also requires equality of treatment of workers both ‘in fact and in law’ (5th recital of the Regulation) (De Vos, 2020, 69). The European Court of Justice (CJEU) in relation to Article 7(2) of Regulation 1612/68 case law tentatively detached discrimination from restriction to free movement, acknowledging the human aspect of market freedoms (Tryfonidou, 2011) well before the directive. The most important shortcoming of Directive 2000/43 relates to the lack of systematic monitoring of member state compliance. Case law from the CJEU has stressed further particular aspects of the prohibition of discrimination within the EU in relation to Directive 2000/43. For example, the case of Feryn 4 See, for example, Regulation (EEC) No. 1612/68 on the rights of EU migrant workers; in particular, Article 7(2) of the Council of 15 October 1968 on freedom of movement for workers withing the Community, OJ L 257, 19.10.1968, pp. 2–12 (now repealed) requiring equal treatment of EU workers in social and tax areas. 5 Directive 2000/78/EC of 27 November 2000 establishing a general framework on equal treatment in employment and occupation, OJ 2000 L303, 2.12.2000. 6 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L180, 19.7.2000, at 22–6. 7 The European Commission planned in 2021 to report on the application of the Directive and follow up with any possible legislation by 2022 (European Commission, 2020, 4).

Fundamental rights and racial and cultural minorities in the EU  41 (C-54/07)8 highlighted how the practice of any employer who publicly states that he or she will not employ individuals of a certain ethnic/racial origin constitutes direct discrimination in the spirit of the Directive 2000/43, while in Runevic-Vardyn (C-391/09),9 the Luxembourg Court took issue with how national rules on the use of names may indirectly discriminate individuals on the basis of their ethnic origin. More recently, in the CHEZ case (C-83/14),10 the Court of Justice added a new layer to its minority rights approach. The case concerned a case of discrimination against Roma communities on the basis of Directive 2000/43. The disputed practice of the electricity company CHEZ consisted of placing meters out of reach of consumers only in Roma-inhabited districts. The case in question was lodged by a non-Roma on the basis of indirect discrimination. The applicant, a local shopkeeper, was concerned that her electricity bill was inflated, but she was unable to read the meter. The Court declared the practice discriminatory due to the fact that it was targeting actual or perceived Roma districts. Furthermore, it placed the burden of proof on the company to rebut the presumption. The Court, however, did not stop there: it found that even in the case where such a practice was found to be free from any consideration of racial/ethnic origin, it would be still found to be contrary to the Directive, as it constituted indirect discrimination. This finding was based on the argument that the practice promoted racist assumptions about the Roma minority, affecting it disproportionately (and negatively) but also without any objective or reasonable justification. Any concerns about electricity theft were therefore to be treated on a case-by-case basis in order for any measure to comply with the spirit and the content of the Directive. The case thus reflects a strong anti-discrimination approach combined with a prominent minority-protection approach, as the underlying argumentation aimed to protect the group in question from stigmatization. It remains, still, to be seen whether the same kind of protection shield will be extended to other minority groups by the Court. Directive 2000/78 establishes a general framework for equal treatment in employment and occupation on the grounds of disability, sexual orientation, religion/belief and age in the workplace. It has been used repeatedly before the CJEU but mostly with a focus on age and disability discrimination.11 More recently, there is emerging jurisprudence on the right of religious institutions to hire co-believers,12 but also in relation to the wearing of a headscarf by a woman at work as a symbol of her religious identity. The directive leaves discretion to Member States regarding issues such as the definitions of what constitute protected characteristics or the interpretation of dissuasive, proportionate and effective sanctions (Carrera et al., 2017a, 61). This line of case law shows the complexity of the balancing of potentially discriminatory practices for women in employment who wear an Islamic headscarf against policies of religious neu-

C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV, OJ C223, 30.08.2008. 9 C-391/09 Runevic-Vardyn ECR [2011] I-3787. 10 C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskiminatisa and Anelia Nikolova, 16 July 2015 (Grand Chamber). 11 Case C-144/04 of Mangold (ECR[2005] I-9981) constitutes the first important case to launch the use of the directive in relation to equal treatment in work on the basis of age. 12 See, for example, C-68/17 IR v JQ or C-414/16 Egenberger v Evangelisches Werk fuer Diakonie und Entwicklung e.V. 8

42  Research handbook on minority politics in the European Union trality within private companies.13 Here, the CJEU held in Achbita that the prohibition against wearing a headscarf, arising from an internal rule of the company prohibiting the wearing of visible religious, political and philosophical signs in the workplace, does not constitute direct discrimination based on religious belief, in the meaning of the Directive. The rule will be, however, found discriminatory if it can be established that it affects disproportionately employees of a particular religion/belief, despite its apparently neutral framing. In this case, it must also be shown that the measure is not objectively justified by a legitimate aim and the means used to achieve the aim in question are appropriate and necessary. In Bougnaoui, the Court found differently as the defendant firm had no similar policy of religious neutrality but it was rather the wishes of clients that were invoked to prevent a design engineer from wearing an Islamic headscarf. In this latter case, the Court found a breach of the 2000/78 Directive. In addition, Directive 2004/38 EC on citizens’ rights14 can also be relevant for minorities to the extent that it sets out the rights of EU citizens to move and reside in other Member States on the basis of EU citizenship. The 2004/38 Directive becomes especially relevant in circumstances where the home state of a citizen does not recognize or protect minority rights. It can be therefore used as a ‘proxy right’ to go to work and live in another Member State (Carrera et al., 2017a, 61). In its preamble, the 2004 Directive is declared to be aligned to the respect of fundamental rights, including as spelt out in the Charter. Its implementation is to be guided by those normative standards, in particular against any form of discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political or other opinion, membership of an ethnic minority, property, birth, disability, age or sexual orientation. The Directive per se, nevertheless, only guarantees a right to equal treatment on the basis of nationality (Article 24 of the Directive). Regarding third-country nationals, the most relevant reference in this context is the Long-Term Residents Directive.15 It concerns third-country nationals who have lived lawfully in the EU for five years and can support themselves (and their families), have comprehensive sickness insurance and, where required, fulfil integration requirements. The notion of equal treatment is included in Article 11 of the Directive, which provides for the equal treatment of long-term residents with nationals of the host states in the areas of employment, education, recognition of qualifications, social security and assistance, tax benefits, access to goods and services, freedom of association and free access to the territory (with some possible exceptions). The case of Kamberaj (C-571/10)16 emphasized the CJEU’s interpretation of the directive as precluding measures that prevent long-term-resident third-country nationals from receiving in equal terms housing benefits. Arguments related to the combat of social exclusion

The two well-known cases are Achbita v G4S Secure Solutions (Case C-157/15, Judgment of 14.03.2017) and Bougnaoui and ADDH v Micropole SA (Case C-188/15 Judgment of 14.03.2017). 14 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC and 93/96/EEC (OJ L158, 30.04.3004). 15 Council Directive 2003/109/EC of 25.11.2003 concerning the status of third-country nationals who are long-term residents OJ L16, 21.1.2004, at 44–53. 16 C-571/10 Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia Autonoma di Bolzano and Others (Grand Chamber) 24 April 2012. 13

Fundamental rights and racial and cultural minorities in the EU  43 and poverty (Article 34(3) of the Charter) were also articulated in this context,17 although it is safe to assume that the decision was oriented on the personal situation of the individual and not as much on the basis of his identity. All directives mentioned share a common starting point in their interpretation and use of the concept of equality: they depart from the assumption of individual rights exercise and protection serving the normative claim to non-discrimination. This departure point is further echoed in the Framework Decision on Racism and Xenophobia,18 which requires Member States to criminalize public incitement to violence or hatred against a group of persons defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin.19 In support and recognition of this approach, in June 2016 the European Commission followed up on the Framework Decision by establishing a High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance in order to reflect on ways to combat rising numbers of incidents of hate crime and hate speech. The traditional non-discriminatory approach in the directives mentioned has been criticized as less effective in defending minority rights. It has also been contrasted with one that would promote an integration system for the various ethnic and religious minorities within the EU, based on an obligation for positive measures imposed on states. In that direction, the shift in the burden of proof in discrimination cases from alleged victims to states, within the remit of Article 8 of Directive 2000/43 and Article 10 of Directive 2000/78, contributed to the advancement of evidence-based decision-making on discrimination, often with the help of statistical data. The directives have nevertheless left Member States to decide whether positive action measures were necessary in respect of discrimination against members of minority groups. Other treaty articles contributing indirectly to the protection of national minorities are Article 167 TFEU, which permits support for the development of cultures of the Member States in light of national and regional diversity; and Article 3 TEU, which adds that the EU ‘shall respect its rich cultural and linguistic diversity’. Specifically in the field of education, the EU, according to Article 164(1) TFEU, must also respect cultural and linguistic diversity, with an emphasis on the multilingualism of EU citizens as a means to encourage such diversity.20 While this kind of objective is indeed consonant with diversity, it is open to question to what extent it promotes integration and in what sense.21 Additionally, within the EU legal framework, minority-protection considerations can enter into play, more indirectly, even when they fall outside the strict legal competence of At para. 80 of the judgment. Framework Decision on combating certain forms and expression of racism and xenophobia by means of criminal law, OJ L328, 6.12.2008. 19 More specifically, the Decision requires the criminalization from Member States of: public incitement to violence or hatred directed against a groups of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin; the above-mentioned offence when carried out by the public dissemination or distribution of tracts, pictures, or other material; and publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7, 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group. 20 See, for example, the ‘three language policy’ (COM (2008) 0566), according to which EU citizens must speak in addition to their mother tongue a further two European languages. 21 Consider, for example, the concept of ‘easily understood languages’ in EU legislation and how its use challenges cultural and linguistic diversity. 17 18

44  Research handbook on minority politics in the European Union the Union, in a rule-of-law context such as the one included in Article 7 TEU for breaches of rule-of-law mechanisms. These breaches can be related, for example, to minority groups in a given state. However, ‘infringement procedures’ in connection to Article 7 TEU, when connected to minority protection, raise at least two sets of concerns. First, they have to be applied to all Member States that fail to uphold the rule of law in a coherent manner.22 Second, as EU processes lack independent monitoring capacities, including on minority-protection mechanisms, the collection of ‘equality data’ should become more consistent and coordinated at EU level. In March 2014, the European Commission published a Communication on a New EU Framework to Strengthen the Rule of Law23 as a measure allowing it to prevent a systematic threat within a Member State from developing into a ‘clear risk of a serious breach’ in line with Article 7 TEU. The Polish example, however, where the EU Framework was tested,24 confirmed the abovementioned shortcomings: it was applied vis-à-vis Poland (but not Hungary, which had introduced constitutional reforms in the same direction earlier). It also showcased how the process could fail when the involved partners do not find common ground in their understanding of common values (Carrera et al., 2017a, 93). Partially in reaction to this failure, in 2016 the European Parliament (EP) passed a Resolution calling on the Commission to initiate legislation on a comprehensive rule-of-law, democracy and fundamental-rights mechanism (DRF Resolution).25 Linked to this, the Rule of Law Report has been introduced as a preventive tool and as a part of the European Rule of Law Mechanism, which is designed to strengthen democracy, equality and the respect of human rights.26 It aims to identify danger zones in relation to the rule of law within Member States. It covers justice systems, the anti-corruption framework, media pluralism and other checks-and-balances mechanisms. In practice, it consists of a general report including 27 country-chapters with specific assessments per Member State.27 Additionally, to combat violations of the EU’s fundamental values as enshrined in Article 2 TEU, a Regulation of the European Parliament and Council was adopted in December 2020 aiming to protect the financial interests of the EU against breaches of the rule of law.28

Infringement procedures for segregation of Roma children in education should have been also applied to Romania, Bulgaria, France or Italy and not only to the Czech Republic, Slovakia and Hungary, as has been the case. See also Muiznieks (2017). 23 European Commission, Communication – A New EU Framework to Strengthen the Rule of Law, COM (2014) 158, 11.03.2014. 24 The issue of lowering the retirement age of judges sitting at the Supreme Court was later made the object of a case before the CJEU, since Poland did not comply with the suggestions of the European Commission. See C-619/18 European Commission v Poland, 24 June 2019, for failure to uphold Articles 2 and 19(1) TEU (available at http://​curia​.europa​.eu/​juris/​document/​document​.jsf​?text​=​&​docid​=​215341​ &​pageIndex​=​0​&​doclang​=​en​&​mode​=​lst​&​dir​=​&​occ​=​first​&​part​=​1​&​cid​=​21754636; last accessed on 8 July 2022). 25 European Parliament Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights PROV (2016)0409, 2016. 26 The latter is separate from infringement procedures. 27 The first such report was issued in 2020 (see https://​ec​.europa​.eu/​commission/​presscorner/​detail/​ en/​qanda​_20​_1757; last accessed on 8 July 2022). 28 Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget, OJ L 433I, 22.12.2020, at 1–10. 22

Fundamental rights and racial and cultural minorities in the EU  45 The emphasis of the EP’s approach towards a combination of numerical indicators with qualitative country-specific evaluation to assess breaches of the rule of law was nevertheless met with resistance from the Commission. As such, Article 7 TEU remains the principal tool to enforce EU values but can only be invoked in scenarios of systemic and persistent breaches. A clear understanding of how systemic and persistent breaches of fundamental rights should be interpreted and assessed is still missing. By implication, it also remains unclear how the vulnerability of minority groups on the basis of ethnicity, culture or religion, and even legal and social status (immigrants) can be remedied through Article 7 TEU. It should be also added that the implications of a rule-of-law failure are within given Member States in reality much broader for the EU polity than a strict national context: ‘systemic’ national rule-of-law failures can be amplified through the medium of mutual recognition of criminal law decisions.29 Cases where human rights considerations clash with EU law obligations (e.g., in asylum case law) demonstrate how fundamental rights protection can be elevated to a salient issue. The CJEU has been somehow slower to address this scenario.30 The cases of Aranyosi and Caldararu (C-404/15 and C-659/15) provided the first opportunity in 2016 for the Court to accept that within EU criminal cooperation, the executing national judicial authority must assess the fundamental rights situation in the issuing country before proceeding with the execution of the decision in question.31 The proliferation of fundamental rights violations against minorities can be thus at least addressed ex post. In more direct terms, the Charter of Fundamental Rights of the European Union,32 proclaimed in 2000 and legally binding with the entry into force of the Treaty of Lisbon in December 2009, consolidated a number of fundamental rights. The Charter refines minority references by mentioning national minorities but does not provide any further definition of the term ‘minority’.33 Article 21 of the Charter prohibits discrimination based on a number of grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion, belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.34 Article 21 of Charter largely reflects Article 19 TFEU, according to which the Council, with the consent of the EP, may take actions in order

Article 82(1) TFEU stipulates: ‘Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.’ 30 This approach can be contrasted with the ECtHR, which has established jurisprudence on the matter. See indicatively M.S.S. v Belgium and Greece, Appl. N.30696/09, 21.01.2011. 31 CJEU, Judgment of the Court (Grand Chamber) of 5 April 2016, C-404/15 and C-659/15 Pal Aranyosi and Robert Caldararu v Generalstaatsanwaltschaft Bremen (preliminary ruling). 32 Charter of Fundamental Rights of the European Union (2007/C 303/01). 33 Article 2 of the Lisbon Treaty (2007) made the Charter of Fundamental Rights a legally binding document. Article 2 of the Treaty also declared that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which, pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ 34 Article 21 of the Charter stipulates: ‘1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth disability, age or sexual orientation shall be prohibited. 29

46  Research handbook on minority politics in the European Union to combat discrimination based on sex or racial or ethnic origin, as well as on other criteria.35 The difference between the two provisions lies in the fact that Article 21 of the Charter does not include powers to enact anti-discrimination legislation but instead focuses on instances of discrimination that are attributable to institutions and bodies of the Union, in the exercise of powers conferred by the Treaties and towards Member State when implementing Union law.36 Article 22 of the Charter, additionally, calls for respect of inter alia cultural diversity as the Union is required to ‘respect cultural, religious and linguistic diversity’. Again, respect for cultural, religious and linguistic diversity is only covered when it arises in the context of cases where the EU has competence. Overall, there is a functional differentiation between Article 21 of the Charter outlining no fewer than 17 forbidden grounds for discrimination and Article 19 TFEU, which contains a closed catalogue of grounds of discrimination limited to only nine such grounds. In contrast with Article 19 TFEU, Article 21(1) of the Charter ‘does not create any power to enact anti-discrimination laws in these areas of Member States’ or private action, nor does it lay down a sweeping ban on discrimination in such wide-ranging areas. The limits of the EU’s approach when pursuing this kind of legal framework were tested in the ‘French Roma affair’ (Carrera, 2013) regarding the expulsion of Bulgarian and Romanian nationals of Roma origin from France in 2010. The event marked a turning point insofar as it showed how the entitlement of a minority group (as opposed to an individual member of a minority group) was defying the legal focus of the EU thus far focused on individual fundamental rights. The same trend is currently transpiring in aspects of religious freedom and discrimination concerning the Muslim minorities in the EU’s legal space (e.g., the issue of the headscarves, the niqab or the burqas). Another possibility for introducing a minority-protection dimension in the Union’s legal edifice can be located within Article 2 of the TEU,37 which refers to the values of the EU. The list includes respect for human dignity, freedom, democracy, equality, the rule of law and respect of human rights, including the rights of persons belonging to minorities.38 The ‘2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on the European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.’ 35 Article 19 of the TFEU states: ‘1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. ‘2. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union’s incentive measures, excluding any harmonization of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1.’ 36 See FRA – Article 21, available at https://​fra​.europa​.eu/​en/​eu​-charter/​article/​21​-non​-discrimination​ ?utm​_content​=​buffer87a6d​&​utm​_medium​=​social​&​utm​_source​=​twitter​.com​&​utm​_campaign​=​buffer (last accessed on 8 July 2022). See also C-354/13 FOA (Kaltoft) v Kommunernes Landsforening (KL). 37 Treaty on European Union and the Treaty on the Functioning of the European Union, 2012/ C326/01. 38 Article 2 TEU declares: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which

Fundamental rights and racial and cultural minorities in the EU  47 reference to ‘persons’ in the content of the Article reminds one of the individual dimension of the rights contained. At the same time, it also constitutes an effort to eliminate the ‘double standards’ between external conditions of membership of the EU and obligations of EU members. The reference to minorities within the TEU once more lacks specification on the type of minorities covered, but also on the implications of the protection in question. The value-oriented provision in Article 2 TEU can be nevertheless considered in conjunction with the role of the EP, which has been, over the years, calling for a more explicit involvement of the EU in the protection of the rights of minorities.39 Lastly, and in the absence of clear and comprehensive minority-rights standards, Article 6 of the TEU highlights the bond between the Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms, without affecting the Union’s core competences. Linking the fundamental rights contained in the Convention with the EU law as general principles of EU law, Article 6(3) TEU states that the fundamental rights resulting from the European Convention on Human Rights (ECHR) ‘shall constitute general principles of the Union’s law’. The consequence of this alignment is that the CJEU will be expected to interpret the provisions of the Charter as being identical to the equivalent provisions of the ECHR. The experience of the last waves of enlargement has already demonstrated the degree to which the European Commission relies on the standards of the ECHR in screening applicant states. Overall, the approach of EU anti-discrimination law formally privileges individual justice and merit, although timid steps towards consideration of justice between groups affected by more systematic inequalities, such as minorities, is beginning to be considered, particularly through the concept of indirect discrimination (De Vos, 2020, 65). There is at the same time a growing acknowledgement that other actors, such as local authorities or even private entities (e.g., businesses), can contribute to ensuring non-discrimination and inclusion within the Union (European Commission, 2020, 17–18).

‘SOFT LAW’ NORMATIVE TOOLS LINKING FUNDAMENTAL RIGHTS AND MINORITY PROTECTION The lack of specific measures to protect minorities within the EU has not excluded the consideration of other mechanisms that could improve the situation of national minorities. There has been more than one triggering factor leading to some involvement of the EU legal order with minority protection. The first such incentive stems from the enlargement process to Central and Eastern Europe in the 2000s. The Copenhagen criteria (or Accession criteria) were introduced as conditions that aspiring Member States had to fulfil in order to be admitted in the EU. They were legally enhanced through Articles 49 and 6(1) of the TEU. The first criterion, of particular interest here, stresses

pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ 39 See, for example, the European Parliament Resolution of 13.12.2016 on the situation of fundamental rights in the European Union in 2015 (2016/2009 (INI) or the European Parliament Resolution of 11.12.2013 on endangered European languages and linguistic diversity in the European Union (2013/2007 (INI)9).

48  Research handbook on minority politics in the European Union the need for candidate states to have stability of institutions guaranteeing democracy, the rule of law, human rights and the respect for and protection of minorities. To qualify the criterion in question, the European Commission through its annual monitoring of candidate states produced numerous related policy documents. Very characteristic of this process were Progress Reports, Opinions, Regular Reports or Strategy Papers (Marktler, 2006). Through evidence emerging from these documents, there has been broad literature substantiating a ‘double standards’ mechanism between the aspiring Member States of the time and the actual Member States, as the latter did not have to fulfil the conditions related inter alia to minority protection (Topidi, 2010).40 Internally, the approach of the EU towards the protection of the rights of minorities adopted a different angle. EU strategies for minority protection through socio-economic inclusion were introduced as a means to address inequalities. The shift in the angle of engagement with minority protection was based on the acknowledgement that institutions, as actors, and their policies can influence inclusion and exclusion patterns within given societies. Normatively, this acknowledgement can be linked either to frames of cultural recognition and/or to the intention to proceed to socio-economic redistribution (Cianetti, 2018, 2). But given how factors leading to disadvantage are interdependent (e.g., racial ethnic origin and education as one possible combination), it has become gradually clear that EU ‘soft law’ policies impacting minorities could not ignore the interactions between the different factors. The EU has, nevertheless, chosen to focus primarily on the link between ethnicity and socio-economic status, but it is more obvious today that other factors, such as gender, have a bearing on EU social integration (Cianetti, 2018, 3). Horizontally, the connecting point between anti-discrimination policy and other areas of policies has been mainstreaming. This approach was conceived on the basis of the integration of the race-equality objectives within all aspects of policy formulation, implementation and evaluation. Part of the process of mainstreaming was to introduce elements of the anti-discrimination policy into the EU’s Employment Strategy. More specifically, the European Employment Strategy (EES)41 has focused on groups which are affected by unemployment. It has operated through integrated annual guidelines (Employment Guidelines) emphasizing the relevance of the integration of minorities,42 since they constitute a disproportionately large segment of those unemployed.43 Member States have 40 See also the European Parliament Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, noting ‘the inconsistency of policy toward minorities – while protection of minorities is part of the Copenhagen criteria, there is no standard for minority rights in Community policy nor is there a Community understanding of who can be considered a member of a minority’ (available at https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​?uri​=​celex​%3A52005IP0228; last accessed on 8 July 2022). 41 The Employment Strategy crystalized in Title VII within the 1999 Treaty of Amsterdam. 42 See Guideline 7, Council Decision on guidelines for Member States’ employment policies for the year 2001, [2001] OJ L22/18, mentioning the needs of ethnic minorities and migrant workers. 43 In the 2010 European Commission Synthesis Report on Ethnic Minorities, Migrants and Employment it was noted that: ‘the employment situation for ethnic minorities with or without a migrant background can be described in terms of higher unemployment, higher undeclared activity (and hence no access to mainstream social protection), lower wages, entrapment in low-skilled work in spite of possible higher education, higher self-employment rates, and lower opportunities for continuous training than the majority population’ (http://​ec​.europa​.eu/​justice/​discrimination/​files/​sen​_synth​esisreport​2010partii​_en​ .pdf; last accessed on 8 July 2022).

Fundamental rights and racial and cultural minorities in the EU  49 been required to report annually in the form of ‘National Action Plans’ (NAPs) on measures taken to address these guidelines, although with varying responses.44 The Strategy assumed the validity of an intersectional approach to minority protection. Its innovation did not stop there: while it has lacked binding legal character, it has been based on a model of supranational multilevel governance, where representation and participation included private actors as well as Member States.45 It also covered third-country nationals, in contrast to the Race Directive. The basis of the EU’s approach connecting social exclusion of minorities with employment was to rely primarily on the notion of economic growth and individual employability as remedies to the marginalization of entire groups within society.46 The EU engagement with social inclusion was pushed through by the Council Decisions in March and December of 2000, as well as in December 2001.47 The social and labour market integration of ethnic and religious minorities proved, however, more complex:48 some groups have been more at risk of socio-economic exclusion, and in some other cases there has been no sign of improvement, with new categories of affected minorities emerging over the recent decades. Roma, Africans and Muslims count today among the most vulnerable ethnic minorities in the EU (Kahanec and Zimmerman, 2010, 1). Conceptually, the EES invited Member States to develop integration of minorities in the labour market through three main avenues: the development of their employability, the increasing of job opportunities and the prevention of all forms of discrimination against minority members.49 The Strategy has failed, overall, to develop comprehensively the mainstreaming aspect of minority protection within employment policy despite its innovative elements. While it is in general terms difficult to attribute any reforms within the Member States to the EES, the Strategy has been evaluated as a ‘weak governance tool’, as Member States have tended to stick to their own priorities, despite country-specific recommendations (Copeland and ter Haar, 2013, 21). This was in part also due to the lack of data, especially since the EES was designed to identify quantitative national targets to measure progress (Bell, 2004, 11). In fact, the scarcity of ethnic data on the national levels complicated further the

For the types of state responses, see Bell (2004) at 4–5. Articles 11 and 12 of the Race Directive call for member states to engage in dialogue with non-governmental organizations and the general population. 46 The EU’s attention to social exclusion was particularly increased in the period 2000–2005 (cf. Cianetti, 2018, 11). 47 The concept of social inclusion relies on three elements: equal access for all to basic resources and rights in order to promote participation in the labour market, the fight against the extreme forms of exclusion of the most marginalised groups and the involvement of all levels of governance in this process (cf. Council of the European Union Presidency Conclusions, Nice, December [2000] and Commission of the European Communities, Working Together, Working Better: A New Framework for the Open Coordination of Social Protection and Social Inclusion, COM [2005] 706 final, Brussels [2005]). 48 There are arguments that support the view that social inclusion has been essentially used as a ‘rhetorical device’ to compromise different views within the EU on social issues. See, for example, Barca (2009) at 6, 8. Other elements, such as health, education, housing, legal and physical security, standard of living, income and self-respect, as well as one’s role in decision making within one’s family, community and the broader society, are essential in order to capture one’s levels of inclusion and potential inequalities. 49 Council Decision on guidelines for the employment policies of the Member States [2003] OJ L197/13, at Guideline 7. 44 45

50  Research handbook on minority politics in the European Union implementation of the process.50 Its limited impact was also due to the failure to connect the principles of non-discrimination with measures taken to reduce social exclusion.51 Within the Communication on Non-Discrimination and Equal Opportunities for All, the Commission implicitly acknowledged the need to move beyond a fundamental rights approach in order to tackle structural inequalities experienced among others by ethnic minorities but without a concrete follow-up.52 More broadly, the EES was framed in the context of the Open Method of Coordination (OMC)53 put forward as a tool encouraging Member States to improve the situation of EU nationals, including that of minorities. It was also designed as a ‘mainstreaming’ tool that aims to promote the dialogue between European institutions and national levels of governance. It has encouraged the exchange of both quantitative and qualitative standards, with an eye for the creation of comparative benchmarks and standards, without eliminating the space required for national diversity. Consisting of ‘recommendations, guidelines or even self-regulation within a commonly agreed framework’,54 it reflects an attempt to acknowledge the possibilities of multilevel governance within the EU. The method was adopted to stimulate policy change through the spreading of best practices and by achieving a better convergence towards specific EU policies. It has not been directly used from an explicitly minority perspective, although it could in theory allow cross-cutting policy interventions. Today, it poses serious questions on the extent to which it can be reconciled with a ‘bottom-up’ approach that echoes the interests and concerns of minority groups. Particularly relevant areas of interest to minorities for OMC application have been employment and social and migration policy. Between 2006 and 2010, the European Social Agenda formalized a two-step approach setting two objectives: a ‘prosperity’ objective focused on employment and growth, and a ‘solidarity’ objective with emphasis on equal opportunities and inclusion, with the former consistently taking priority.55 The 2020 Agenda, launched in 2010, included a separate component for Social Protection and Social Exclusion where ‘groups at particular risk’ were to be identified by States. Once more the emphasis was on individual employment as the antidote to social exclusion, with more weight shifted to recent immigrants but away from any consideration of systemic patterns of inequalities in the EU (Cianetti, 2018, 13). The Agenda has been the main tool for growth and jobs over the past decade. According to the Commission, it was premised on smart, sustainable and inclusive growth (European Commission, 2019). Social inclusivity 50 Ethnic monitoring is often related to racial categorisation practices during the Second World War or is interpreted as a violation of data protection. Statistical data are nevertheless essential to monitor both direct and indirect discrimination (see 2002 Experts Report, http://​ec​.europa​.eu/​justice/​fundamental​ -rights/​document/​index​_en​.htm, at 174; last accessed on 8 July 2022). 51 See, for example, the 2004 Commission Green Paper on Equality and Non-Discrimination in an Enlarged European Union that noted this failure (in particular pp. 27–8). 52 See https://​eur​-lex​.europa​.eu/​legal​-content/​en/​TXT/​?uri​=​CELEX​%3A52008DC0420, at point 3.3 (last accessed on 8 July 2022). 53 See, for example, the 2008 European Commission Communication A Renewed Commitment to Social Europe: Reinforcing the Open Method of Coordination for Social Protection and Social Inclusion, where it is argued that the OMC within social inclusion should be used to its full potential (Commission of the European Communities, A Renewed Commitment to Social Europe: Reinforcing the Open Method of Coordination for Social Protection and Social Inclusion, COM(2008)418 final, Brussels. 54 White Paper on European Governance (2001) COM (2001) 428, at 4 and 20–22. 55 This approach was met with some resistance among EU institutions. For more on this point, see Cianetti (2018, 12).

Fundamental rights and racial and cultural minorities in the EU  51 was also included as an aim towards a fairer participation in the labour market of minorities (European Commission, 2019, 96–7). Yet extreme forms of poverty and exclusion are on the rise, especially in connection to the economic crisis hitting the EU after 2008, affecting a number of disadvantaged minority groups, including Roma.56 EU policy making additionally operated through interventions targeting specific minority groups. The experience of the EU Framework for National Roma Integration Strategy (NRIS),57 adopted in 2011, illustrates the possible span of areas covered through ‘soft law’ measures, as it extended to education, employment, health care and housing. The NRIS, as a ‘soft law’ policy, has offered the possibility to civil society to become involved in policy making but also benefit from funding, although through the medium of state-administered processes and not directly from the EU (Carrera et al., 2017b). The Framework in question, however, failed to address the systemic challenges and structural violations by EU Member States, while providing a weak form of review, accountability and enforcement for EU Member States (Carrera et al., 2017b).58 The Council has more recently (March 2021) adopted a recommendation on Roma equality, inclusion and participation, which is a non-binding instrument.59 According to the recommendation, Member States were called upon to adopt National Roma Strategic Frameworks (NRSF) and communicate them to the Commission by September 2021. This new attempt to tackle systemic disadvantage of Roma populations in the EU will be covering education, employment, health and housing participation as well as the fight against poverty, social exclusion, discrimination and anti-Gypsyism. The recommendation is part of a 10-year Action Plan announced by the European Commission in October 2020 to support Roma in the EU (European Commission, 2020). The Anti-Racism Action Plan includes several ambitious targets for 2030.60 Other similar ‘soft law’ tools specifically on Roma issues include the European Commission’s European Platform for Roma Inclusion,61 bringing together representatives and experts from national governments, the EU, international organizations and civil society bodies. The work of the Platform has been aimed at the exchange of information and best practices, but was offered little in terms of effective follow-up and systematic monitoring. Its strongest point has

Access to housing is a characteristic example (European Commission, 2019, 96–7). Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Framework for National Roma Integration Strategies up to 2020, COM (2011) 173. 58 The EU contributed 90 billion euros for the National Roma Integration Strategy between 2014 and 2020 with the aim of assisting in the integration of marginalised communities. 59 The new recommendation renews the older recommendation of 9 December 2013 on effective Roma integration measures in Member States (Council Recommendation of 12 March 2021 on Roma equality, inclusion and participation 2021/C 93/01, ST/6070/2021/INIT, OJ C 93, 19.3.2021, at 1–14). 60 These extend to cutting the experience of Roma discrimination by at least half, doubling the proportion of Roma filing a report when experiencing discrimination, reducing the poverty gap between the Roma and the general population by half, cutting the gap in participations in early childhood education by at least half, reducing the proportion of segregated primary schools for Roma children by at least half, cutting employment and gender gaps by at least half, reducing the gap in housing deprivation by a third, ensuring 95 per cent of Roma have access to tap water and cutting the gap in life expectancy by at least half. 61 See http://​ec​.europa​.eu/​justice/​discrimination/​roma/​roma​-platform/​index​_en​.htm (last accessed on 8 July 2022). 56 57

52  Research handbook on minority politics in the European Union been its potential to contribute to the exchange of information and incentives for policy change but only through informal means. Recent migratory population movements have introduced the question of third-country nationals’ entry into EU territory as an issue of concern for minority protection, in particular as it relates to refugee distribution.62 Finally, as mentioned above, in June 2016 the EU High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance63 was set up by the Commission, with representatives from Member States, international organizations and civil society.64 The forum raises timely concerns and topical issues with respect to the nexus between minority protection through fundamental rights but still constitutes part of a weak web of methodologically loosely framed initiatives. Ultimately, it essentially highlights the uncertainty surrounding the role of the European Commission in enforcing the existing EU secondary legislation on the matter. Illustrating the last point, the EP passed a resolution outlining ‘minimum standards for minorities in the EU’ in 2018, signalling the pressing need to bring together the available hard and soft law standards, given the diversity and pluralism characterizing the societies of the EU’s Member States (European Parliament, 2018). Not unrelated to the resolution, the Minority SafePack Initiative, launched in July 2013, pursuant to Article 11(4) TEU, represents a noticeably different kind of attempt to shape minority governance ‘from below’, in light of the gaps in legal protection and policy making affecting minority groups in the EU. It calls for the adoption of a set of legal acts and policies in the areas of regional and minority languages,65 education and culture, regional policy, participation, equality, and audio-visual and other media content aiming to create a more tangible EU minority policy.66 The initiative was initially refused registration by the European Commission and was later the object of an appeal before the CJEU. The Court overturned the Commission’s decision in 2017, declaring it invalid as it ‘manifestly does not contain sufficient elements to enable the applicant to ascertain the reasons for the refusal to register the proposed ECI [European Citizens’ Initiative]’. The Commission subsequently (within the same year) registered the initiative, reiterating the competence discrepancy between Article 19 TFEU, which does not make national minorities a protected ground, and Article 21 of the Charter, which is a purely prohibitive (but not enabling) provision vis-à-vis minority rights (Toggenburg, 2018, 70). The organizers then officially submitted their initiative to the Commission in February 2020, having gathered more than one million valid signatures from 11 Member States as statements of support. The initiative was presented to and debated in the EP in December 2020. A resolution on 17 December

See indicatively cases C-643/15 and C-647/15 related to cases brought by Slovakia and Hungary on the mandatory relocation of asylum seekers. 63 See https://​ec​.europa​.eu/​newsroom/​just/​item​-detail​.cfm​?item​_id​=​51025 (last accessed on 8 July 2022). 64 The EU High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance should not be confused with the High Level Group on Non-Discrimination, Equality and Diversity, established in 2015 by the European Commission but which has registered limited activity since its inauguration (see https://​ec​.europa​.eu/​transparency/​regexpert/​index​.cfm​?do​=​groupDetail​.groupDetail​&​ groupID​=​3328; last accessed on 8 July 2022). 65 Regarding language and culture policy, the initiative is proposing a streamlining of the policy areas on the basis of best practices and the experiences of other specialized bodies within the Council of Europe (ECRML). 66 See the Minority SafePack Initiative, www​.minority​-safepack​.eu (last accessed on 8 July 2022). 62

Fundamental rights and racial and cultural minorities in the EU  53 2020 expressed the Parliament’s support for it. In January 2021, the European Commission nevertheless decided to not initiate any legal acts for the protection of national and linguistic minorities within the context of the initiative. The latest development has seen the Citizens’ Committee of the Minority SafePack Initiative file before the General Court of the EU in March 2021 a request for annulment of the Commission’s decision.67 In sum, EU institutions have generally produced a considerable body of policies focusing on the reduction of socio-economic exclusion, including among minorities, but also as connected to ethnic discrimination. Two key factors in the development of an effective social policy paradigm at EU level remain underdeveloped: first, there is a persistent lack of data covering the prevailing patterns of minorities’ socio-economic disadvantage across the EU, as already mentioned. It is known that minorities are consistently among the primary targets of social exclusion (Cianetti, 2018, 4) but we are still not clear about the interconnections among the various elements of minority social presence. Second, there is incoherence between the fact that minority groups are at a disadvantage within the EU and the policies implemented to address this reality. This is why structural disadvantage hitting specific groups cannot be reversed despite the numerous initiatives undertaken. In other words, tackling minority exclusion from an individual-rights angle with explicit emphasis on the fulfilment of economic aims, and not through action based on the values of the Union, produces ambivalent effects on minority social inclusion efforts. The Commission has, nevertheless, pledged to address intersectional discrimination through further mainstreaming and by integrating an equality perspective into all EU intervention, following active consultations with organizations representing racial/ethnic minorities (European Commission, 2020, 19).

THE EVOLVING NATURE IN FUNDAMENTAL RIGHTS PROTECTION AND MINORITY RIGHTS IN THE EU: PERSISTING GAPS VS OPPORTUNITIES FOR DEVELOPMENT The well-defined and debated riddle between ‘new’ and ‘old’ minorities has become less pertinent in the case of the protection of fundamental rights within the EU: in socio-legal terms, the claims of both categories of minorities cover instances of claims to non-discrimination but also ones based on the ‘right to be different’ and to resist assimilation. It is, however, no longer as clear how ‘new’ and ‘old’ minorities are different in terms of their normative claims to fundamental rights protection. Minority-protection normative trends have also evolved in the international human rights arena: there is ‘a more dynamic tendency to extend minority protection to non-citizens […] over the recent past’,68 which adds pressure to extend protection to non-EU citizens. The current EU legal framework hesitates to consider the latter group as minorities worthy of equivalent fundamental rights protection to that of EU nationals. The

67 See www​.fuen​.org/​en/​article/​The​-Citizens​-Committee​-of​-the​-Minority​-SafePack​-ECI​-requests​ -the​-General​-Court​-of​-the​-European​-Union​-to​-annul​-the​-Commissions​-decision​-on​-the​-initiative (last accessed on 26 May 2021). 68 European Commission for Democracy through Law (2011, 6).

54  Research handbook on minority politics in the European Union typical illustration of this hesitation can be shown through the empirical evidence suggesting that discrimination due to Islamophobia is affecting non-citizens first and foremost.69 In diversity management terms, the general trend in the work of the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe suggests that minority policy concerns have moved beyond minority integration and are currently more focused on supporting societal diversity (Cianetti, 2018, 5).70 For the EU, this trend has been translated into the conflation of categories of ‘migrants’ with ‘minorities’. The implication of this fusion is not necessarily neutral (or progressive) as it can be also interpreted as an attempt to maintain the effects of the presence of the ‘migration crisis’ (Cianetti, 2018, 6). The notions of integration and the ‘European way of life’, in more horizontal terms, have displaced the classic equality concerns, sidetracking to some extent issues of preservation and focusing on the quest for cohesion instead (Toggenburg, 2006). Particularly in relation to discrimination on the basis of ethnic and racial origin, the EU Agency for Fundamental Rights (FRA) continues to produce extensive evidence on the patterns of discrimination against ethnic and religious ‘Others’ in the Union, including criminal victimization, affecting ethnic minorities and immigrants in the EU, mainly through reviews of the implementation of existing anti-discrimination legislation and policies.71 Even within a frame focusing on EU citizens belonging to minorities and non-discrimination, the expulsion of Bulgarian and Romanian Roma from France and Italy in 2010 showcased the limitations of the broader EU’s approach to minority fundamental rights protection and the Citizens’ Rights Directive 2004/38 more specifically. The incident stressed the interpretative gaps on the conditions/grounds required for EU citizens to be expelled from one Member State to another. The fact that the expelled group was a minority with European citizenship added a new group-oriented dimension to the issue. The EU’s response to the incident was addressed primarily through the instrument of Roma integration policies in the home states of EU Roma migrants. This approach has, in retrospect, stumbled upon the growing willingness of ‘majorities’ to espouse anti-minority political parties and politicians in a considerable number of Member States (Carrera et al., 2017a, 71). Persisting patterns of segregation – as mapped extensively for the Roma minority,72 for instance – whether direct or benevolent, intersectional aspects of discrimination as witnessed in the forced sterilization of Romani women covering both gender and ethnicity73 or the systemic problem of integration of Muslim women with implications for access to education

The FRA Report (2012) indicates a drop in the likelihood of Islamophobic discrimination for EU citizens as opposed to a rise for non-EU citizens (http://​fra​.europa​.eu/​en/​publication/​2010/​eu​-midis​-data​ -focus​-report​-2​-muslims; last accessed on 8 July 2022). 70 See also the OSCE Ljubljana Guidelines in the same direction. 71 See the FRA’s first and second EU Minorities and Discrimination Surveys (EU-MIDIS). 72 See, for example, the recent report on Roma and education, https://​ ec​ .europa​ .eu/​ info/​ sites/​ info/​files/​racial​_discrimination​_in​_education​_and​_eu​_equality​_law​_web​.pdf (2020; last accessed on 8 July 2022), and the connected European Commission infringement proceedings against Hungary for non-conformity with Directive 2000/43/EC in 2016. For the concept of ‘benevolent segregation’, see Advisory Committee on the Framework Convention, 4th Opinion on Hungary, adopted on 25.02.2016, at para. 39. Other FRA reports exploring the patterns of discrimination against the Roma can be found in the EU-MIDIS surveys of 2011 and 2016. 73 FRA (2013), at 8. 69

Fundamental rights and racial and cultural minorities in the EU  55 and employment,74 illustrate the difficulty of balancing inclusion duties as they derive from the broader human rights-related jurisprudence with minority rights per se (e.g., language or education rights for minorities). In cases related to religious minority identity, for instance, arguments of secularism and/or neutrality often take centre stage in courts’ findings, neglecting somehow the implications for the integration in society of these women-members of minority groups. The challenge increases further in a context where the collection of data remains problematic and lacking standardization (Extra and Yagmur, 2012, 7). In addition, the CJEU still chooses to keep dormant the avenue towards the recognition of the systemic nature of minority-related discrimination, avoiding the acknowledgement of interpersonal, institutional and intersectional forms of discrimination.75 The evidence from Achbita and Bougnaoui suggests that discrimination of Muslim women in employment has emerged, for example, as a relevant consideration in EU minority protection, stressing the intersectional perspective on fundamental rights for minorities. However, particularly in Achbita, the CJEU interestingly required additional accommodation for Muslim female workers affected by a headscarf ban, which was otherwise found justifiable (C-157/15, para. 43). Minority protection standards, as developed within other regional European fora, have also been relevant for the EU. The case of the Council of Europe’s ECHR and the case law of the European Court of Human Rights (ECtHR) are important. Adherence to the Convention is, for instance, a requirement for all EU Member States as members of the Council of Europe. Accession by the EU to the ECHR is also a requirement of the TEU, although one that has been put on hold. But while the EU and its institutions are not directly bound by the ECHR, the jurisprudence of the ECtHR is relevant for EU law through the Charter: ECHR rights in their interpretation by the Strasbourg court form the threshold below which similar Charter rights cannot fall. The Convention holds additionally a special place in EU law through Article 6(3) TEU, where the rights contained in it are declared to be general principles of EU law, as mentioned. Within this frame, since the mid-2000s the ECtHR’s jurisprudence on minority rights has evolved and emphasized the concepts of harm and the right to a remedy (Carrera et al., 2017a, 65). In other words, there is potential for a gradual shift from the stricter individual-rights non-discrimination approach to a minority group-based one. A string of cases on the Roma minority is serving as a platform for the formation of this broader approach acknowledging and attempting to remedy ‘group wrongs’. Forced sterilizations of Roma women76 and the use of vigilante and police violence77 are two such examples. This kind of case law, particularly when linked to EU Member States joining the EU after 2004, reminds one of the shortcomings of the minority approach pursued through the Copenhagen criteria. The next wave of case law, affecting both the Strasbourg but also the Luxembourg courts, will most likely stress the treatment of cultural and religious minorities. The increase in hate crimes and hate speech against cultural/religious minorities (among other minorities), includ74 See, for example, the European Commission against Racism and Intolerance (ECRI) Report on France, 5th Monitoring Cycle, published on 1 March 2016, CRI (2016), at paras. 69–70. 75 It is very often the case that it is hard to distinguish discrimination based on race/ethnicity and that based on religion and gender. 76 See indicatively VC v Slovakia (18968/07) 8 November 2011; NB v Slovakia (29518/10) 12 June 2012; IG, MK and RH v Slovakia (15966/04) 13 November 2012. 77 See indicatively Anquelova v Bulgaria (38361/07) 13 June 2002; Ognyanova and Choban v Bulgaria (46317/99) 23 February 2006; Mizigarova v Slovakia (74832/01) 14 December 2010.

56  Research handbook on minority politics in the European Union ing Islamophobia and anti-semitism, has brought to the fore questions on the role of the EU in protecting religious minorities. ECtHR findings on the right to freedom of association on the basis of minority status78 are promising, although the Court has been significantly less sympathetic to the legal argument of Muslim women to wear religious clothing/symbols on the basis of the objective of ‘living together’.79 Particularly in relation to faith groups, in the EU legal context Article 17 TFEU requires the EU to respect the status under national law of churches and religious organizations, but at the same time Article 167(4) TFEU imposes a duty on the EU to take into account the impact of EU law on religious diversity. De jure, the CJEU does not, however, generally favour religious differentiation over formal neutrality, on the basis of the right to religious freedom (as connected to the right of autonomy of churches and other organizations, whose ethos is based on religion/belief). The question then becomes, from the perspective of religious minorities, whether policies of neutrality can constitute indirect forms of discrimination. The CJEU’s answer has so far been that neutrality policies affecting religious expression have to be limited to what is strictly necessary and in proportional terms. So far, thus, the prohibition of religious discrimination within EU law coexists with freedom of religion (De Vos, 2020, 78). Yet the tension between the two normative statements is visible in Article 4(2) of the 2000/78 Directive, which stipulates:80 2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

In light of these developments and given that the various legal and policy measures tacking discrimination have not led to a significant reduction in discrimination (Carrera et al., 2017a, 75),81 it is worth considering the mapping of inequality and the exercise of fundamental rights for minority groups and their members through differentiated lenses: through their agency, understood as one’s capacity to act intentionally in pursuit of one’s rights; through their dis-

78 See, for example, the relatively recent ECtHR case of National Turkish Union and Kungyun v Bulgaria (No.4776/08) 8 June 2017 finding a violation of the right to freedom of assembly in Bulgaria as the state refused to register an association promoting the rights of the Muslim minority. 79 SAS v France (43835/11) 1 July 2014. 80 See also C-414/16 Vera Egenberger v Evangelisches Werk fuer Diakonie und Entwicklung e.V., 17 April 2018 (at paras. 51,61). 81 See also the FRA’s EU-MIDIS II Report: Second European Union Minorities and Discrimination Survey, which says that additional progress is required towards the achievement of the Directive 2000/43/ EC (http://​fra​.europa​.eu/​project/​2015/​eu​-midis​-ii​-european​-union​-minorities​-and​-discrimination​-survey; last accessed on 8 July 2022).

Fundamental rights and racial and cultural minorities in the EU  57 posal of social capital, as connected to social structures facilitating access to rights; and finally through democratic participation in decision-making at local, regional, national and European levels (Barca, 2009, 12). These can become equally relevant signals to detect the shortcomings of the EU’s rights-based policies on equality and exercising fundamental rights.

CONCLUDING REMARKS The respect of the democratic rule of law and fundamental rights, as laid out in Article 2 TEU, represents a clear starting point that can benefit the protection of minorities in the EU’s socio-legal space. It is hard to imagine an EU which protects minorities and their rights outside the frame of a solid democracy operating under the rule of law and protecting fundamental rights. Without effective monitoring mechanisms and follow-up procedures, the aim of oversight of Member States’ compliance with the Article 2 TEU commitments becomes very difficult. The lack of respect of the rule of law affects minorities disproportionately, which is why evidence-based and consistent approaches to the enforcement of existing EU legal standards have become essential. The role of the Charter is in need of enhancement to fulfil the more general fundamental rights commitments. Additionally, a partnership between EU bodies and stakeholders (e.g., equality bodies) can benefit the existing protection standards. Useful types of such partnership can include strategic litigation before national and EU courts but also data collection with a view to the development of regular civil society monitoring standards.82 Overall, there is a growing realization in the EU legal framework of the need for the consideration of minority rights protection, in parallel with the strengthening of the anti-discrimination tools. A coherent approach towards this goal is nevertheless still missing, especially in light of systematic trends towards (persisting) exclusion of particular minority groups (e.g., anti-Gypsyism, Islamophobia, minority language protection). Non-legally-binding ‘soft’ law tools are useful alternative mechanisms, given the absence of strict EU competence on minority protection, but they currently lack follow-up mechanisms and monitoring procedures that could ‘align’ state performance with more specialized international and regional standards of minority protection. The notion of inclusion is helpful as both a policy frame but also as a policy aim, which the Union has embraced.83 What is more problematic is its normative dimension: access to rights, institutions and services have been treated in procedural (rather than substantial) terms, Member States and EU law and policy-makers wrongly assuming perhaps that the public sphere will be operating as a neutral regulator of groups and individuals within society. Instead, in reality the public realm is most often marked by the perspectives and interests of specific parts of the society (e.g., the majority), making inclusion an illusion for those that do not align themselves with those perspectives. Flexibility and openness are necessary for democratic societies, such as those within the EU, to serve the aim of inclusion, equality and cohesion based on the interaction of different communities, not their separation.

A number of Member States monitor social indicators only in relation to nationality but not on the basis of race/ethnicity and religion. Ethnic monitoring, as connected to the design and adoption of policies, is necessary to identify the needs of particular groups. 83 Council of the European Union, 15223/01, Joint Report on Social Inclusion, Part II: The Member States, Brussels, 12 December 2001. 82

58  Research handbook on minority politics in the European Union A fundamental rights approach to minority protection is therefore a viable option in the current circumstances to the extent that it becomes more sensitive to a more intersectional understanding of discrimination, closer to the social trends affecting minorities on the ground. It can also be greatly supported by the imposition of a positive duty of Member States to promote equality. ‘Soft law’ policy intervention by the EU with a direct or indirect bearing on the various facets of inequality, as the experience of the previous policy making has shown, requires a more horizontal mainstreaming of the minority concerns in a variety of policy fields where the Union holds explicit competences, such as employment, culture or environment. An appropriate evaluation of the impact of new and continuing policies on the most vulnerable segments of society and of the degree of their inclusion will allow the creation of meaningful indicators for change towards a fairer, equitable and truly solidary European social space, despite the limited explicit EU legal bases on the issue.

REFERENCES Barca, F., Towards a Territorial Social agenda for the European Union, Report Working Paper, January 2009, available at https://​ec​.europa​.eu/​regional​_policy/​archive/​policy/​future/​pdf/​10​_barca​ _final​_formatted​.pdf (last accessed on 8 January 2021). Bell, M., ‘Combating Racial Discrimination through the European Employment Strategy’, 6 Cambridge Yearbook of European Legal Studies (2004) 55–71, available at http://​adapt​.it/​adapt​-indice​-a​-z/​wp​ -content/​uploads/​2014/​05/​mell​_mark​.pdf (last accessed on 8 January 2021). Bieber, F., and R. Bieber, Negotiating Unity and Diversity in the European Union (Palgrave, 2021). Capotorti, F., Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN E/CN.4/Sub.2/384/Rev.1 (1977). Carrera, S., Shifting Responsibilities for EU Roma Citizens: The 2010 French Affair on Roma Evictions and Expulsions Continued (CEPS, 2013). Carrera, S., E. Guild, L. Vosyliute and P. Bard, Towards a Comprehensive EU Protection System .europarl​ .europa​ .eu/​ thinktank/​ en/​ for Minorities (European Parliament, 2017a), available at www​ document​.html​?reference​=​IPOL​_STU​%282017​%29596802 (last accessed on 8 February 2021). Carrera, S., I. Rostas and L. Vosyliute, Combatting Institutional Anti-Gypsyism Responses and Promising Practices in EU and Selected Member States (CEPS, 2017b). Cianetti, L., ‘Trickle-down Social Inclusion: The EU Minorities Agenda in Times of Crisis’, 56/4 Journal of Common Market Studies (2018) 785–801, available at https://​papers​.ssrn​.com/​sol3/​papers​ .cfm​?abstract​_id​=​3176258 (last accessed on 8 January 2021). Copeland, P., and B. ter Haar, ‘A Toothless Bite? The Effectiveness of the EES as a Governance Tool’, 23/1 Journal of European Social Policy (2013) 21–36. Council of Europe, Thematic Commentary No. 4, The Framework Convention: A Key Tool to Managing Diversity through Minority Rights – The Scope of Application of the FCNM (Council of Europe, 2016), available at https://​rm​.coe​.int/​16806a8fe8 (last accessed on 8 July 2022). Csergo, Z., O. Vangelov and B. Vizi, ‘Minority Inclusion in Central and Eastern Europe: Changes and Continuities in the European Framework’, 3/4 Intersections (2017) 5–16. De Vos, M., ‘The European Court of Justice and the March towards Substantive Equality in European Union and Anti-Discrimination Law’, 20/1 International Journal of Discrimination and the Law (2020) 62–87. European Commission for Democracy through Law (Venice Commission), Compilation of Venice Commission Opinions and Reports Concerning the Protection of National Minorities, CDL (2011) 018. Extra, G., and K. Yagmur, Language Rich Europe (Cambridge University Press, 2012). Fundamental Rights Agency, EU-MIDIS I Report: First European Union Minorities and Discrimination Survey (2011), available at https://​fra​.europa​.eu/​en/​project/​2011/​european​-union​-minorities​-and​ -discrimination​-survey (last accessed on 8 January 2021).

Fundamental rights and racial and cultural minorities in the EU  59 Fundamental Rights Agency, EU-MIDIS Data in Focus Report 2: Muslims (2012), available at http://​ fra​.europa​.eu/​en/​publication/​2010/​eu​-midis​-data​-focus​-report​-2​-muslims (last accessed on 8 January 2021). Fundamental Rights Agency, Inequalities and Multiple Discrimination in Access to and Equality in Health Care (2013), available at https://​fra​.europa​.eu/​en/​publication/​2013/​inequalities​-discrimination​ -healthcare (last accessed on 8 January 2021). Fundamental Rights Agency, EU-MIDIS II Report: Second European Union Minorities and Discrimination Survey (2015), available at http://​fra​.europa​.eu/​project/​2015/​eu​-midis​-ii​-european​ -union​-minorities​-and​-discrimination​-survey (last accessed on 8 January 2021). Kahanec, M., and K.F. Zimmermann, ‘A Policy Agenda for Diversity and Minority Integration’, IZA Policy Paper No. 21, December 2010, available at www​.iza​.org/​publications/​pp/​21/​a​-policy​-agenda​ -for​-diversity​-and​-minority​-integration (last accessed on 8 January 2021). Marktler, T., ‘The Power of the Copenhagen Criteria’, 2 Croatian Yearbook on European Law and Policy (2006), available at www​.cyelp​.com/​index​.php/​cyelp/​article/​view/​23 (last accessed on 8 January 2021). Minority SafePack Initiative, www​.minority​-safepack​.eu. Muiznieks, N., Annual Activity Report 2016 (Commissioner for Human Rights, Council of Europe, 2017). Toggenburg, G.N., A Remaining Share or a New Part? The Union’s Role vis-à-vis Minorities after the Enlargement Decade, EUI Working Papers, 15 (2006). Toggenburg, G.N., ‘The Protection of Minority Rights by the European Union: The European Citizens’ Initiative as a Test Case’, in R. Hofmann, T.H. Malloy and D. Rein (eds), The Framework Convention for the Protection of National Minorities: A Commentary (Brill, 2018), 47–74. Topidi, K., EU Law, Minorities and Enlargement (Intersentia, 2010). Tryfonidou, A., What Can the Court’s Response to Reverse Discrimination and Purely Internal Situations Contribute to Our Understanding of the Relationship between the ‘Restriction’ and ‘Discrimination’ Concepts in EU Free Movement Law? (2011), available at www​ .jus​ .uio​ .no/​ ifp/forskning/prosjekter/markedsstaten/arrangementer/2011/free-movement-oslo/speakers-papers/try fonidou.pdf (last accessed on 25 May 2021).

EU Secondary Legislation and Policy Documents Charter of Fundamental Rights of the European Union (2007/C 303/01). Commission of the European Communities (2004) Green Paper on Equality and Non-Discrimination in an Enlarged European Union. Commission of the European Communities, A Renewed Commitment to Social Europe: Reinforcing the Open Method of Coordination for Social Protection and Social Inclusion, COM(2008)418 final, Brussels. Commission of the European Communities, Working Together, Working Better: A New Framework for the Open Coordination of Social Protection and Social Inclusion, COM (2005) 706 final, Brussels (2005). Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Framework for National Roma Integration Strategies up to 2020, COM (2011) 173. Council Decision on guidelines for the employment policies of the Member States [2003] OJ L197/13. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L180, 19.7.2000, at pp. 22–6. Council Directive 2003/109/EC of 25.11.2003 concerning the status of third-country nationals who are long-term residents OJ L16, 21.1.2004, at pp. 44–53. Council of the European Union Presidency Conclusions, Nice, December (2000). Council of the European Union, 15223/01, Joint Report on Social Inclusion, Part II: The Member States, Brussels, 12 December 2001. Council Recommendation of 12 March 2021 on Roma equality, inclusion and participation 2021/C 93/01, ST/6070/2021/INIT, OJ C 93, 19.3.2021.

60  Research handbook on minority politics in the European Union Directive 2000/78/EC of 27 November 2000 establishing a general framework on equal treatment in employment and occupation, OJ 2000 L303, 2.12.2000. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No.1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC and 93/96/EEC (OJ L158, 30.04.3004). European Commission (2010) Synthesis Report on Ethnic Minorities, Migrants and Employment (http://​ ec​.europa​.eu/​justice/​discrimination/​files/​sen​_synth​esisreport​2010partii​_en​.pdf). European Commission (2014) Communication – A New EU Framework to Strengthen the Rule of Law, COM (2014) 158, 11.03.2014. European Commission (2019) Assessment of the Europe 2020 Strategy: Joint Report of the Employment Committee and Social Protection Committees, DG for Employment, Social Affairs and Inclusion, available at https://​ec​.europa​.eu/​social/​main​.jsp​?catId​=​738​&​langId​=​en​&​pubId​=​8256​&​furtherPubs​=​ yes (last accessed on 25 May 2021). European Commission (2020) Communication from the Commission to the European Parliament, Council, European Economic and Social Committee and the Committee of the Regions – A Union of Equality: EU Anti-racism Action Plan 2021–2025, 18 September 2020 COM (2020) 565 final. European Parliament (2013) Resolution of 11.12.2013 on endangered European languages and linguistic diversity in the European Union (2013/2007 (INI)9). European Parliament (2016) Resolution of 13.12.2016 on the situation of fundamental rights in the European Union in 2015 (2016/2009 (INI)). European Parliament (2016) Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights PROV (2016)0409. European Parliament (2018) Resolution of 13 November 2018 on minimum standards for minorities in the EU (2018/2036 (INI)). Framework Decision on combating certain forms and expression of racism and xenophobia by means of criminal law, OJ L328, 6.12.2008. Regulation (EEC) No.1612/68 on the rights of EU migrant workers of the Council of 15 October 1968 on freedom of movement for workers withing the Community, OJ L 257, 19.10.1968, pp. 2–12. Treaty on European Union and the Treaty on the Functioning of the European Union, 2012/C326/01. White Paper on European Governance (2001), COM (2001) 428.

CJEU Case Law C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV, OJ C223, 30.08.2008. C-391/09 Runevic-Vardyn ECR [2011] I-3787. C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskiminatisa and Anelia Nikolova, 16 July 2015 (Grand Chamber), available at http://​curia​.europa​.eu/​juris/​liste​.jsf​?num​=​C​-83/​14 (last accessed 8 January 2021). Case C-144/04 Werner Mangold v Rudiger Helm, 22 November 2005 (Grand Chamber), available at http://​curia​.europa​.eu/​juris/​liste​.jsf​?language​=​en​&​num​=​C​-144/​04 (last accessed on 8 January 2021). C-68/17 IR v JQ, 11 September 2018 (Grand Chamber), available at http://​curia​.europa​.eu/​juris/​liste​.jsf​ ?language​=​en​&​num​=​C​-68/​17 (last accessed on 8 January 2021). C-414/16 Vera Egenberger v Evangelisches Werk fuer Diakonie und Entwicklung e.V., 17 April 2018, available at http://​curia​.europa​.eu/​juris/​liste​.jsf​?num​=​C​-414/​16 (last accessed on 8 January 2021). C-157/15 Achbita v G4S Secure Solutions, 14 March 2017, available at https://​eur​-lex​.europa​.eu/​legal​ -content/​EN/​TXT/​?uri​=​CELEX​%3A62015CJ0157 (last accessed on 8 January 2021). C-188/15 Bougnaoui and ADDH v Micropole SA, 14 March 2017, available at http://​curia​.europa​.eu/​ juris/​liste​.jsf​?num​=​C​-188/​15 (last accessed on 8 January 2021). C-404/15 and C-659/15 Pal Aranyosi and Robert Caldararu v Generalstaatsanwaltschaft Bremen, 5 April 2016, available at http://​curia​.europa​.eu/​juris/​liste​.jsf​?num​=​C​-404/​15 (last accessed on 8 January 2021).

Fundamental rights and racial and cultural minorities in the EU  61 C-643/15 and C-647/15 Slovak Republic and Hungary v the European Union, 6 September 2017, available at http://​curia​.europa​.eu/​juris/​liste​.jsf​?language​=​en​&​jur​=​C​,T​,F​&​num​=​c​-643/​15 (last accessed on 8 January 2021). C-571/10 Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia Autonoma di Bolzano and Others (Grand Chamber) 24 April 2012, available at http://​curia​.europa​.eu/​juris/​liste​.jsf​?num​=​C​-571/​ 10 (last accessed on 8 January 2021).

4. Fundamental rights and non-EU minorities: from an ambiguous concept to an integrated society? Roberta Medda-Windischer and Katharina Crepaz

INTRODUCTION ‘Even though I may not have a definition of what constitutes a minority, I would dare to say that I know a minority when I see one.’ This often-quoted and, at the same time, highly controversial statement by Max van der Stoel, the first High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe, appointed in 1993, illustrates one of the core – and still unresolved – issues of minority rights: What or who constitutes a minority, and which individual and group rights should arise from this status? Among policymakers, academics and public opinion, there is still considerable ambiguity around the definition of minorities – not to mention ‘new’ migrant minorities and non-European Union (non-EU) minorities – and their status and the specific rights deriving therefrom. If many controversies and debates still surround the concept and definition of minorities and, in particular, non-EU minorities, fundamental rights are not clear either. In fact, despite an all-encompassing approach based on fundamental rights, whereby these rights are defined by their universality and applicability to everyone, substantial differences between specific dimensions of fundamental rights for different individuals and groups can still be seen. The presence or absence of EU citizenship, for instance, is one of these distinguishing categories: Being or not being a citizen of a member state includes or excludes persons from EU citizenship, as member-state citizenship is the key prerequisite for EU citizenship. Getting back to minorities, the term ‘minority’ is often connected with historical groups that have been present in a territory for centuries and are therefore, generally, also member-state citizens and EU citizens; however, there are also other types of linguistic, religious and/or cultural minorities who are not EU citizens: These are so-called non-EU minorities. This group is made up of third-country nationals (TCNs) in the EU, which include new arrivals and long-term residents as well as refugees and asylum seekers.1 In this regard, it is also important to note that, within the category of TCNs, there are considerable differences in rights, status and public perceptions of foreignness – for example, between non-EU citizens from (geographical) European countries and non-EU citizens from non-European countries, who, in addition, might also be visible minorities. Many EU member states have indeed adopted bilateral agreements with neighbouring non-member states, which provide citizens of these countries with specific rights and benefits, such as facilitated access to the labour market of

There are also approximately 600,000 stateless persons in the EU, many of whom are Roma from the Western Balkans, but also ethnic Russians in the Baltic states (see https://​ec​.europa​.eu/​home​-affairs/​ what​-we​-do/​networks/​european​_migration​_network/​expert​-groups​_en/​platform​-statelessness​_en). 1

62

Fundamental rights and non-EU minorities  63 the EU member state.2 These legal differences, among other factors, have an impact on EU citizens’ attitudes towards and perceptions of non-EU citizens coming from European countries in comparison with their perception of non-EU citizens coming from outside Europe. Citizens from Central and Eastern European countries are particularly critical of international migration, and many of their citizens tend to overestimate the number of immigrants coming to their countries: According to survey data from Eurobarometer, in Bulgaria, Poland and Romania the estimated number of immigrants was eight times higher than the actual number (Eurobarometer, 2018, 10). As data from the European Social Survey shows, there are differences in how European and non-European TCNs are perceived, and these differences can also be noticed in countries that are generally more open to migration (e.g., the Scandinavian countries). According to the European Social Survey, migrants from low-income, non-EU European countries were regarded more favourably than those from low-income countries outside Europe. A hierarchy of preferred migrants is present in all investigated countries, ranging from kin-groups as most desirable to Muslims and particularly Roma as least desirable (European Social Survey, 2016, 5–6). As emerges consistently from analyses and surveys, Roma, whether they are EU citizens, citizens of other non-EU European countries or stateless persons, are especially subject to negative public perceptions and discrimination. For instance, according to a survey conducted by the EU Fundamental Rights Agency (FRA) among Roma and Travellers, over 45 per cent of respondents had felt discriminated against in at least one area of life in the preceding 12 months (Fundamental Rights Agency, 2020, 14). Roma also fall into the category of visible minorities (through their ethnicity but also their names) and are in fact the group perceived least favourably by EU citizens (European Social Survey, 2016, 5–6), although they are in many cases also present as a historic ‘old’ minority (e.g., in Italy). Determining who is considered an excluded ‘other’ and who can fully enjoy fundamental rights without discrimination and prejudices therefore strongly depends on perceptions, attitudes and stereotypes. As already becomes clear from the variety of categories and differences in status outlined above, non-EU minorities are a very heterogeneous group, for which a ‘one size fits all’ approach to measures and protection provisions is very difficult to find. This chapter aims to shed light on the heterogeneity of linguistic, religious and/or cultural non-EU minorities, and on the fundamental rights that different types of non-EU minorities are equipped with. As long-term-resident TCNs are the group of non-EU minorities that possesses the most detailed and most exhaustive catalogue of fundamental rights, they will be focused on in more detail. Additionally, long-term-resident TCNs have made the EU the centre of their socio-economic and personal lives; providing them with rights and opportunities for participation closely reflecting those of EU citizens is therefore also in the interest of EU member states in order to strengthen societal cohesion within their territories as well as within the EU as a whole.3

2 It is beyond the scope of this chapter to go into the details of bilateral and EU collective agreements granting special rights to citizens of certain non-EU countries; for an overview of the special provisions in place in this regard, please see https://​ec​.europa​.eu/​social/​main​.jsp​?catId​=​470​&​langId​=​ en; for an analysis of bilateral agreements in South-Eastern Europe and their impacts on minorities, see Lantschner and Medda-Windischer, 2001. 3 EU Council – Employment, Social Policy, Health and Consumer Affairs, Joint Report on Social Protection and Social Inclusion – 2006, 7294/06, 13 March 2006, according to which: ‘Regarding inclusion policy, the exclusion of people and groups, such as immigrants and ethnic minorities, from

64  Research handbook on minority politics in the European Union We will begin our analysis with a clarification of the concepts of minority and non-EU minorities, and we will attempt to categorize the different groups that can be subsumed under the latter. In the second section of this chapter, we will provide a framework for categorizing the fundamental rights of non-EU minorities, while arguing that there are certain types of rights (e.g., the right to existence and the right to equality) that are also more firmly established for non-EU minorities, while others (the right to diversity and the right to participation) are still more contested regarding TCNs. This categorization will then be supplied with an analysis of the instruments and mechanisms available for securing the fundamental rights of TCNs as non-EU minorities at the EU level. We will include both general provisions aimed at all EU residents (Racial Equality Directive, Employment Framework Directive, Charter of Fundamental Rights of the European Union) and those designed more specifically for TCNs (Family Reunification Directive, Long-Term Residents Directive and the New Pact on Migration and Asylum). We will aim to show that while there are now a variety of mechanisms and instruments in place, a thoroughly encompassing framework for protecting the rights of TCNs, and especially the right to identity and the right to participation in society, including political participation, is still lacking. In conclusion, we will discuss potential ways of creating inclusive and cohesive societies that respect all types of minority rights, including those of non-EU minorities, and will outline a model of human and minority rights for diversity governance (the ‘Tree Model’) as a promising concept.

NON-EU MINORITIES: CATEGORIZING A VERY HETEROGENEOUS GROUP The term ‘non-EU minorities’ refers to a very broad and heterogeneous population; the term contains not one but two concepts that need to be clarified before delving more deeply into the matter of fundamental rights. The first concept is the term ‘minority’ itself, which to this day still lacks a legally binding definition. The second concept is the term ‘non-EU’, which includes everyone who does not hold an EU passport, and therefore covers very diverse groups, such as TCNs who have recently arrived (e.g., through labour migration), TCNs holding a special status due to bilateral or EU collective agreements, TCNs who hold a long-term residence permit and have therefore achieved a status of ‘civic citizenship’ granting them similar rights to EU citizens, and also refugees and asylum seekers, who are a very specific group also protected by specific provisions and instruments of international law. We will therefore begin our chapter with a brief analysis of the term ‘minority’ and with an introduction to the different groups that can be considered ‘non-EU minorities’ and their specific characteristics. Focusing on the group of long-term-resident TCNs, the issue of civic citizenship and whether it can provide an inclusionary alternative to national citizenship will be discussed in more detail. What Constitutes and Who Belongs to a Minority? In order to be able to implement protection mechanisms, international organizations and states have to clarify the intended beneficiaries of such mechanisms. States are ultimately the participation in work and society represents a waste of resources, to be addressed for economic as well as social justice reasons’ (emphasis added).

Fundamental rights and non-EU minorities  65 main guarantors of minority protection, including the implementation and realization of the relevant international instruments and the rights assigned by them to persons belonging to minorities. Leaving the question of determining who can be a beneficiary of minority protection to the state’s margin of interpretation is not fully satisfactory, as doing so could lead to inconsistent implementation in relation to minority groups. International instruments should offer a common legally binding definition of minorities and should not be subject to diverse interpretations in different member states. To this day, however, no common definition of who comprises, and which defining characteristics constitute, a minority has been established. Article 2 of the Treaty on European Union states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ (European Union, 2012b, emphasis added; Medda-Windischer and Carlá, 2021). Article 21 of the EU Charter of Fundamental Rights (henceforth to be referred to as the ‘Charter’) outlaws discrimination on the basis of belonging to a minority: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’ (European Union, 2012a; emphasis added). Both documents provide protection of the fundamental rights of minorities, and outlaw discrimination based on belonging to a minority, but they still lack a legally binding definition or at least a more in-depth conceptualization of which groups can be considered minorities, again granting considerable leeway to the will – or absence thereof – of member states to implement minority protection mechanisms (Crepaz, 2020a). The ambiguity of the term ‘minority’ therefore is an issue that has to be kept in mind when looking at non-EU minorities and fundamental rights. For this chapter, we propose to define ‘non-EU minorities’ as TCNs who have arrived in the EU through migratory movements, and to consider them as members of new migrant minorities. These migrant minorities include citizens from European and non-European countries who, depending on the specific rights outlined in bilateral agreements with member states or with the EU collectively, may hold a different, more favourable legal status, leading also to a difference in how the public perceives them. Along the lines of the most quoted definition of minorities, established by Capotorti (1977), based on a combination of objective and subjective elements (that is, ethnic, cultural, religious or linguistic characteristics, residence or legal abode, numerical minority, non-dominant position, and a sense of solidarity or will to survive), a general definition of minorities encompassing both old and new minorities can be formulated as follows: A minority is any group of persons: ● present within a sovereign state on a temporary or permanent basis; ● smaller in number than the rest of the population of that state or of a region of that state; ● whose members share common characteristics of an ethnic, cultural, religious or linguistic nature that distinguish them from the rest of the population; and ● who manifest, even if only implicitly, the desire to be treated as a distinct group. According to this definition, the element of citizenship, which is usually required by states in order to limit the personal scope of application of most international instruments on minorities, is replaced by the element of presence, as suggested by the United Nations (UN) Human Rights Committee (1994). Likewise, the FRA and the Council of Europe apply a similar definition of minorities when referring to ‘persons belonging to linguistic, ethnic or national minorities,

66  Research handbook on minority politics in the European Union TCNs who immigrate to the EU, or immigrants who are long-term residents [and who] may all perceive that they belong to a minority group’ (EU Fundamental Rights Agency, 2011, 17), or when defining a minority as being composed of ‘persons, including migrants, belonging to groups smaller in numbers than the rest of the population and characterized by their identity, in particular their ethnicity, culture, religion, or their language’ (Council of Europe, 2008). The definition proposed by the UN Special Rapporteur on Minority Issues, Fernand de Varennes, also mentions that citizenship is not a requirement for being considered part of a minority, noting that ‘a person can freely belong to an ethnic, religious or linguistic minority without any requirement of citizenship, residence, official recognition or any other status’ (UN Special Rapporteur on Minority Issues, 2019, 18). A legally binding definition of the term ‘minority’ has not been established so far, neither for ‘old’ minorities, who are EU and member-state citizens, nor for ‘new’ minorities, who are TCNs coming to Europe through migratory movements. However, what appears to be a shortcoming at first glance could turn out to be an advantage: As there is no legally binding definition of a minority and thus also no predefined restriction to only minority groups who are citizens of EU member states, an expansion of protection measures to non-EU minorities, mainly migrant communities, could be feasible, at least for certain rights. The term ‘new minorities’ is subject to difficulties and criticism, as it seems to imply that individuals with a migratory background are in a minority position – that their status is ‘minoritized’. Contrary to this critique, the term underlines the diversity of these groups and its requirement of protection and promotion if desired. The term is also broader than ‘migrants’, as it includes not only first-generation migrants but also their descendants, the second and third generations, many of whom were born in their country of residence and can thus not be subsumed under the category of ‘migrants’. Widening the scope of minority rights, though not necessarily of all of them, to include so-called new minorities would fill an existing gap. Especially in terms of rights related to identity and diversity, most international instruments on migrants’ rights contain only weak and ambivalent references. Extending established and well-tested policies for ‘old’ minorities to encompass ‘new minorities’ could be a decisive step forward, as many European states and the EU have not yet developed sound instruments for the integration of ‘new’ minorities (Medda-Windischer, 2017, 2019). Non-EU Minorities As noted above, the term ‘non-EU minorities’ encompasses a heterogeneous variety of groups, as it refers to all populations without EU citizenship who possess linguistic, religious and/ or cultural traits that differ from those of the majority population in their place of residence. This includes recent arrivals as well as long-term residents and citizens coming from countries with which individual member states have, or the EU collectively has, a bilateral or collective agreement granting them a series of additional rights in comparison with the former group, refugees and asylum seekers. Before taking a closer look at the instruments used to grant fundamental rights to non-EU minorities in the next section, we will now provide a short overview of the different groups that constitute non-EU minorities, and of the most important differences between said groups. With increasing migratory flows and a growing number of TCNs living in EU member states for most of their lives, the EU needed to react to the changing reality of its population structure, and to find a balance between the need for migrant inclusion and the sometimes still very strict prerequisites for obtaining citizenship of an EU member state. EU instruments

Fundamental rights and non-EU minorities  67 from the Charter to the Long-Term Residents Directive (LTRD) introduced certain notions of ‘civic citizenship’, aimed at putting member-state nationals and long-term third-country residents on a similar legal footing.4 The concept of ‘civic citizenship’ is based on the idea of taking the residence requirement (five years) as a criterion for bringing the rights and duties of non-EU minorities – migrants and other new minorities – progressively into line with those of the nationals of the country in which they live, under conditions of equal opportunities and treatment. In this perspective, the integration of migrants and members of minorities can be measured in terms of substantial citizenship rights rather than of nominal citizenship status (Bauböck, 1994). In 1999 the Tampere European Council asserted: ‘The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its member-states. A more rigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens’ (Tampere European Council, 1999). Immigration, globalization and nation states’ subsequent adaptation processes to these developments have prompted various changes: the move from ius sanguinis to ius soli and ius domicilii in citizenship regimes, increasing recognition of multiple citizenship, the emergence of supranational models of governance and citizenship such as EU citizenship, and finally a shift from assimilation to pluralism in national politics of integration. However, the decisive legal qualifying factor for acquiring EU citizenship remains citizenship of a member state; this means that approximately 21 million EU residents (or 4.7 per cent of the EU population) (European Commission, 2020a, 1) who are citizens of non-EU countries remain excluded from EU citizenship. EU citizenship should bring the EU closer to its citizens and give it a new political and social dimension. Linking EU citizenship with member-state citizenship excludes TCNs, some of whom have been living in EU territory their whole lives, from a series of rights. There are indeed still a number of rights that remain exclusive to those holding full national citizenship. First, the right to vote and run for office in national elections is still extremely consequential. Non-citizens, even if they are permanent residents and long-time workers, have limited opportunity to participate in the democratic process at the national level and can thus also not influence policymaking on migration, which largely takes place at the national level. Second, although citizenship is generally not relevant for most private-sector employment, it is still important in the allocation of jobs in the judiciary, military and police. In Germany, citing just one example, government service employment positions5 are largely restricted to German or EU citizens. Within the EU itself, while EU citizens can automatically live and work in another EU country, TCNs have the right to reside and work in an EU country other than the country into which they have immigrated only after five years of continued residence and fulfilment of certain integration requirements (Council Directive 2003/109/EC, also known as the Long-Term Residents Directive).6 To find a remedy to the civic, political and 4 As outlined above, European TCNs who are long- or short-term residents may be perceived differently from those coming from non-European countries. For instance, a Norwegian living in Italy for just a few months may be viewed as less foreign than a Pakistani who has been a resident for 15 years. These differences stem from perceived cultural distance and internalized racism, and they particularly affect visible minorities. 5 Government service positions include financial and tax officers, public administration officials, criminologists, judges, prosecutors, bailiffs, police officers, criminal technicians, teachers, judiciary officers and officers of the Federal Office for the Protection of the Constitution. 6 There are exceptions to this situation due to bilateral agreements between non-EU countries and individual EU member states or the EU collectively. There are agreements with candidate countries

68  Research handbook on minority politics in the European Union social inclusiveness deficit of TCNs in Europe, some have suggested one of two options: either through reforms at the national level aimed at facilitating third-country nationals’ acquisition of national citizenship, or by extending the personal scope of EU citizenship. The former could involve either a deregulatory form of liberalization of naturalization rules (Evans, 1994) or an EU-induced harmonization of the national laws governing the acquisition and loss of citizenship. From a long-term perspective, such harmonization would perhaps be desirable. However, the likelihood is to a large extent limited insofar as the notion of national sovereignty remains allied to the concept of citizenship. Given the current political climate in Europe with rising far-right parties and nationalism framing migration as a threat (Crepaz, 2020b), which – due to the economic and social crisis caused by Covid-19 – is not likely to change anytime soon, an extension of naturalization possibilities for TCNs is also unlikely. Despite its limitations, the notion of ‘civic citizenship’ through long-term-resident status (infra) constitutes an important way forward in ensuring the broader participation of all long-term inhabitants, including those without EU citizenship. However, even this limited concept poses further restrictions, as it is generally conceived only for TCNs who already possess long-term-resident status, usually proven through a long-term residence permit. TCNs who have just recently arrived are mostly excluded from provisions on civic citizenship or long-term residence (infra), as are refugees and asylum seekers. There is an international legal framework specifically dedicated to the latter group, outlined by the 1951 Geneva Convention Relating to the Status of Refugees as well as in the provisions of the Common European Asylum System (CEAS),7 including the Dublin III Regulation (Regulation No 604/2013 of the European Parliament and of the Council of 26 June 2013), determining which member state is responsible for an individual’s asylum procedure. In the aftermath of the so-called refugee crisis of 2015 and the increasingly precarious situation in camps like Moria in Greece, the need for a reform of the CEAS became evident. For refugees and asylum seekers, but also for migrants more generally, the European Commission proposed in September 2020 the EU Pact on Migration and Asylum as the next step towards ‘striking a new balance between responsibility and solidarity’ (European Commission, 2020b); the Pact’s contents will be outlined in more detail in the next section on instruments and categories of fundamental rights. In this regard, it is important to note once again that, in order to effectively implement fundamental rights provisions, the beneficiaries of these measures must be clearly defined; however, the heterogeneity of the group referred to as ‘non-EU minorities’ complicates the establishment of the clear outline required. We will therefore supply our analysis of the protection mechanisms in place with a categorization framework of fundamental rights, looking not only at the contents of individual mechanisms and documents but also at which categories of rights can be addressed through which frameworks. (e.g., Albania, Kosovo, Montenegro, North Macedonia, Serbia, Ukraine) as well as with countries that are not aiming for EU accession – for example, Switzerland participates in the Schengen Area for the free movement of people and goods, and Swiss nationals are free to live and work in the EU. For further information please refer to https://​ec​.europa​.eu/​social/​main​.jsp​?catId​=​470​&​langId​=​en. 7 Since 1999 the EU has been working to create a CEAS. Between 1999 and 2005 several legislative measures harmonizing common minimum standards for asylum were adopted. Three pillars underpin the development of the CEAS: bringing more harmonization to standards of protection by further aligning the EU states’ asylum legislation; effective and well-supported practical cooperation; increased solidarity and a sense of responsibility among EU states, and between the EU and non-EU countries. See https://​ec​ .europa​.eu/​home​-affairs/​what​-we​-do/​policies/​asylum​_en.

Fundamental rights and non-EU minorities  69

CATEGORIZING THE FUNDAMENTAL RIGHTS OF NON-EU MINORITIES IN THE EU The main concerns generally held by minorities can be divided into four categories, which correspond to the historical development of international minority protection. During the initial stage of this development, legal protection was principally focused on protection from destruction and from discrimination on account of linguistic, cultural or religious distinctiveness. Later on, it was recognized that minorities must be given space to maintain and develop their linguistic, cultural and religious identity within a diverse society. Full and effective participation in cultural, social and economic life and in public affairs is at times considered to be a so-called fourth-generation minority entitlement. Similar to traditional/historical groups, non-EU minorities also have some basic claims, which can be classified into four categories and that are common to all minority groups, historical/traditional (old) groups and new (EU/ non-EU) groups alike. These categories are the right to existence, the right to equal treatment and non-discrimination, the right to identity and diversity, and the right to effective participation in public life. The right to existence is the first, most fundamental right and the basis for all other categories of rights. In many parts of the world, minority groups live under the shadow of extinction: Some have suffered or are suffering from physical destruction, genocide or ethnic cleansing, and so they have fought for or are fighting for the basic right to existence. The issue of forced population transfers, including demographic changes and collective expulsions, as well as the issue of recognition and registration of minorities, are among the most important aspects of this type of right. The right to existence also refers to the right to asylum for those who are persecuted because of their belonging to a minority population. Equal treatment and non-discrimination are the next category of rights. As a result of their ethnic, cultural, linguistic or religious characteristics, minorities can be singled out from others in society and may be subject to discrimination of many kinds: from threats to personal security to discrimination in employment, housing and even access to property. The non-discrimination and equality principles are closely linked: The principle of equality requires that equal situations be treated equally and that unequal situations be treated differently; failure to do so will amount to discrimination unless an objective and reasonable justification exists. In other words, the principle of non-discrimination is violated not only when states treat persons in analogous situations differently but also when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. Most national and international legal systems have opted for a negative formulation of the principle of equality – that is, the prohibition of discrimination. The abstract notion of equality is replaced by a concrete indication of the field of application and of criteria such as race, colour, religion, political or other opinion, national or social origin, etc. Minority protection policy is concerned with striking a balance between the concept of non-discrimination and special norms necessary to guarantee equality for minorities, or between the general rules of equality and exceptions based, for instance, on citizenship, which mainly concern members of non-EU minority groups stemming from migration. The right to identity is central for minorities and their distinctiveness; the identity to be protected and promoted may be national, cultural, religious or linguistic or all of these together. The right to identity and diversity has a transversal character because it can overlap with the categories of cultural, economic, social, civil and political rights, and because it is situated at

70  Research handbook on minority politics in the European Union the intersection of individual and collective rights. Protection of identity entails, at the very least, the right to use one’s own language in non-official contexts; the freedom of opinion and of expression, including the right to publish in any language without restrictions; and the freedom to practise one’s religion in any way not infringing the rights of others. At the same time, although persons belonging to minorities are not under a legal obligation to integrate into the national or local community where they live, they are aware that, if they want to participate in the wider (national or local) society, they have to acquire proper knowledge of the official language(s). In this respect, international norms set out two general parameters: on the one hand, preserving identity, and, on the other, integrating into the overall national society. Inclusion also means being able to participate in the public life of the national and/or local community, particularly with regard to matters affecting its culture, identity and institutions. This leads us to the fourth category of rights: the right to effective participation. Effective participation includes equal participation in the electoral process; adequate representation in parliament and other elected bodies; the establishment of effective consultative mechanisms; the general participation of members of minority groups in cultural, social and economic life, as well as in public affairs; and the enhancement of economic opportunities for persons belonging to minorities. With regard to the political participation of members of new minorities stemming from migration, Article 25 of the UN International Covenant on Civil and Political Rights (ICCPR) provides that every citizen shall have the right to take part in the conduct of public affairs and to vote and to be elected (United Nations, 1966). It is obvious from its wording that migrants without citizenship of the host country are not guaranteed any such rights under the ICCPR. In the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families the right to vote has been formulated only in relation to the country of origin. No statement is made about the right to vote in the country of employment of the migrant worker other than at a regional level and subject to restrictions contained in the legislation of the country of employment (Article 42(2)).8 Article 42(3) of the UN Migrant Workers’ Convention states that ‘migrant workers may enjoy political rights in the State of employment if that State, in the exercise of its sovereignty, grants them such rights’ (United Nations, 1990). In the 2005 communication ‘A Common Agenda for Integration’, in which the European Commission put forward a framework for the integration of TCNs in the EU based on the Common Basic Principles on Integration, the Commission encourages member states to ‘enhance the participation of immigrants in the democratic process … especially at the local level’ (European Commission, 2005, 9) as a means of supporting their integration. Mechanisms for consultation and co-determination are particularly relevant for new non-EU minorities and for members of old minorities without the citizenship of their country of residence – for example, the Russian-speaking minority in the Baltic countries, as they are generally excluded from national elections due to the citizenship requirement. The consultative councils for non-citizens established recently in many municipalities in Europe represent a way of channelling the interests and concerns of minority groups at the local level, especially when they have no right to vote or stand for elections. Effective participation in public affairs and building up trust can create loyalty to the state and to the society that the minorities are Article 42(2) UN Migrant Workers’ Convention provides: ‘States of employment shall facilitate, in accordance with their national legislation, the consultation or participation of migrant workers and members of their families in decisions concerning the life and administration of local communities.’ 8

Fundamental rights and non-EU minorities  71 a part of and, as Palermo and Woelk observe, ‘avoid the feeling by persons belonging to minorities that they should use other, less acceptable means for their opinions to be considered’ (2003, 241–2). Improvements in interethnic relations also require an emphasis on policies fostering a sense of belonging and trustworthiness as well as promoting and cultivating a common identity formed by multiple identities while maintaining specific characteristics of different groups. When designing policy measures and instruments, the categorization of rights outlined in this chapter can serve as a guiding framework for both the aims and desired outcomes of protection provisions.

FUNDAMENTAL RIGHTS FOR NON-EU MINORITIES AT THE EU LEVEL: INSTRUMENTS AND MECHANISMS Having established the categorization of fundamental rights, we will now use these categories as guidelines for our analysis of fundamental rights for non-EU minorities at the EU level. Our categorization serves as a compass to look at the capabilities, possibilities and deficits of the instruments and mechanisms we are about to introduce. We will distinguish between two types of instruments for our analysis: First, we will look at the EU standards on fundamental rights, with a focus on non-discrimination, relating to both EU and non-EU minorities alike (namely the Charter, the Racial Equality Directive and the Employment Framework Directive). Second, we will focus on fundamental rights and instruments specifically designed for non-EU-citizens, with a particular emphasis on migrants or ‘new’ non-EU minorities (the LTRD, the Council Directive on Family Reunification and the new EU Pact on Migration and Asylum). EU Standards on Fundamental Rights and Non-Discrimination The EU Charter of Fundamental Rights The Charter provides an instrument that applies to almost everyone, including TCNs and non-EU minorities.9 It tackles the right to existence and enumerates non-discrimination provisions, and it also touches upon participation. The Charter contains the following clear-cut provision: Article 21 stipulates, ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’ (European Union, 2012a; emphasis added). This provision

Title V, ‘Citizen’s Rights’, is generally not applicable to non-EU citizens. However, one provision within Title V applies entirely independently of citizenship: Article 41 concerning the right to good administration. In particular, Article 41(4) widens the personal scope of EU citizens’ right to communicate with the EU institutions foreseen in Article 24(4) of the Treaty on the Functioning of the European Union (TFEU; 2008) by stating that the right applies to ‘[e]very person’. In addition, three of the remaining seven provisions give rights to some groups of TCNs: the rights of access to documents, to appeal to the EU ombudsman and to petition the European Parliament, which also apply to ‘any natural or legal person residing or having its registered office in a Member State’. Finally, another provision recognizes that, while EU citizens have the right to move, ‘freedom of movement and residence may be granted, in accordance with the Treaties, to third-country nationals legally resident in the territory of a Member State’(Article 45 EU Charter). 9

72  Research handbook on minority politics in the European Union not only guarantees formal equality but has also been viewed as demanding positive action to obtain factual equality,10 such as special measures to protect minority languages or religions. Individuals and communities can perhaps more directly rely on Article 21 than on Article 22, which requires the EU to respect cultural, religious and linguistic diversity, because the wording of Article 22 confirms that it is not an individual right but more a recommendation to the EU institutions and member states.11 However, as Ward argues, Article 21 has had a low profile in comparison with other primary provisions of EU law, and this ‘has occasionally resulted in gaps and inconsistencies in the norms that have evolved via case law to secure their enforcement, and lost opportunities to illuminate areas that might be ripe for development’ (2018, 59). Despite these shortcomings in its implementation, the Charter is also interesting from the perspective of establishing common values for the EU. In its Preamble, the Charter states that the EU is founded on universal values of human dignity, freedom, equality and solidarity and based on the principles of democracy and the rule of law. Further, the Preamble establishes that the EU ‘contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe’ (European Union, 2012a, Preamble). The concept of maintaining diversity while also ensuring cohesion is thus already enshrined in the Preamble, and further political advances in this direction therefore could also claim to have a basis in the Charter. The Racial Equality Directive and the Employment Framework Directive In June 2000, the EU Council of Ministers adopted Directive 2000/43/EC, the Racial Equality Directive, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. This Directive requires all EU states to forbid discrimination on grounds of racial or ethnic origin in the fields of employment, education, healthcare, social protection, housing and access to goods and services. The Racial Equality Directive was complemented by Directive 2000/78/EC, the Employment Framework Directive, adopted in November 2000. This Directive forbids discrimination only in the field of employment and vocational training but on a wider range of grounds: religion or belief, age, disability and sexual orientation. One of the main gaps in the Racial Equality Directive is the lack of protection against related forms of discrimination, such as those based on religion or nationality.12 Both the Racial Equality Directive and the Employment Framework Directive can be categorized as instruments for non-discrimination. They forbid four forms of discrimination: direct and indirect discrimination, harassment and instructions to discriminate. Direct discrimination

The EU Network of Independent Experts on Fundamental Rights, created at the request of the European Parliament to monitor the situation of fundamental rights in the member states, and the EU have interpreted Article 21 in a broader sense, arguing that the implementation of equal treatment in favour of persons belonging to national minorities may impose certain positive obligations (Network of Independent Experts on Fundamental Rights, 2004). 11 See also Article 10 TFEU, which obliges the EU to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation when defining and implementing the policies and activities in all the various EU policy areas. 12 Article 3(2) of the Racial Equality Directive excludes protection against discrimination on the basis of nationality: ‘This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.’ 10

Fundamental rights and non-EU minorities  73 is defined as where ‘one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin’ (Racial Equality Directive, 2000, Article 2(2)(a)). An example would be where the manager of a hotel refuses to permit someone they believe to be associated with a minority group to enter the hotel bar. Indirect discrimination covers situations where ‘an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’ (Racial Equality Directive, 2000, Article 2(2)(b)). An example of indirect racial discrimination would be a requirement that all applicants for a street-cleaning job must pass a written language test. Although an apparently neutral requirement, this could place persons from certain communities at a particular disadvantage if the official national language is not their mother tongue. Moreover, given the nature of the job, such a test would not appear to be proportionate. In the case of the Employment Framework Directive, an example of indirect discrimination would be if a department store introduced a ban on its employees wearing hats when serving customers. The effect of this would be to bar people whose religious beliefs require them to cover their heads, such as Muslim women, from working in the store. The store would be guilty of indirect discrimination unless it can demonstrate that there is an objective and justifiable reason for the ban. The personal scope of the Racial Equality Directive includes all persons present in EU territory. Article 3(1) states, ‘this directive shall apply to all persons’ (Racial Equality Directive, 2000; emphasis added). The exclusion of protection from discrimination on the basis of nationality in Article 3(2) implies that TCNs are otherwise entitled to rely on the protection of the Directive. Recital 16 of the Preamble reinforces this, stating, ‘it is important to protect all natural persons against discrimination on grounds of racial or ethnic origin’. The Directive must therefore be interpreted as including all TCNs. As Morano-Foadi argues, however, discrimination on the basis of nationality can often hide other forms of discrimination, such as discrimination based on race, ethnic origin or religion (2010, 20). In some cases, it might be difficult to determine if nationality, or the lack of EU citizenship, is indeed the exclusionary criterion or if it is the distinguishing features of a person that caused the discrimination, which would then be race-based and covered by the provisions of the Directive.13 As mentioned earlier, in the reverse case, some member states might recognize favourable treatment of selected TCNs on the basis of bilateral agreements concluded with the country of origin of those TCNs; clearly, such developments could be problematic if they were implemented at the expense of other TCNs, creating differential treatments (Lantschner and Medda-Windischer 2001). The Racial Equality Directive has a relatively broad scope of application: It applies essentially to all aspects of employment and training, including ‘membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession’ (Racial Equality Directive, 2000, Article 3(1)(a)–(d)). The Employment Framework Directive also covers all these areas, so discrimination on grounds of religion or 13 See also Case C-54/07, Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV, [2008] ECR I5187 558-9. The case concerned the public statement of an employer (one of the Firma Feryn NV’s directors) that it would not recruit employees of a certain ethnic or racial origin (the term used was ‘immigrants’).

74  Research handbook on minority politics in the European Union belief is generally forbidden in matters related to employment. The Racial Equality Directive has an extended scope, applying also to ‘social protection, including social security and healthcare, social advantages, education, access to and supply of goods and services which are available to the public, including housing’ (Racial Equality Directive, 2000, Article 3(1) (e)–(h)). However, its scope is narrowed by the expression ‘within the limits of the powers conferred upon the Community’. Therefore, the prohibition of discrimination in health, education, housing, etc., applies only to the extent that these issues fall within the scope of EU competencies. The above-mentioned instruments (the Charter and Directives) are largely applicable to all persons living in the EU; however, there are also specific legal instruments to ensure the rights of non-EU citizens. The following section looks at the relevant EU standards specifically for non-citizens, with a particular emphasis on migrant workers who face specific forms of discrimination precisely on account of their lack of citizenship. In these cases, too, in both legal and socio-political terms, the position of non-EU citizens from European countries is often more favourable than that of citizens from non-European countries due to legal bilateral or EU agreements establishing further rights, as well as to real or perceived cultural proximity. As the case of the Roma minority shows, however, the public does not always have a positive – not to mention favourable – perception of certain minorities even when they are European or even EU citizens. Finally, it is important to note that the instruments designed for non-EU citizens apply to traditional/historical minorities as well as new non-EU minorities because not all non-citizens are migrants: As mentioned above, there are stateless minorities (such as many Roma or the Russian-speaking minority in the Baltic countries). Despite these considerations, it is clear that most instruments in this section will be particularly relevant for new minority groups stemming from recent migration. Fundamental Rights and Instruments Specifically Designed for Non-EU Citizens The Long-Term Residents Directive For several decades prior to 2003 the European Commission had consistently advocated for free-movement rights for TCNs; in 2003 it succeeded in finding an agreement around the LTRD that was finally adopted in January 2004 (Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents). The LTRD addresses non-discrimination as well as issues of participation in the labour market and free movement. Member states can impose labour market tests limiting movement from one country to another within the EU on economic grounds, or an overall quota on TCNs, along with special rules restricting the movement of seasonal workers or cross-border workers. The right of residence can be exercised if a long-term resident is pursuing an economic activity or a non-economic activity, but the second member state to where the TCN wishes to move can insist that the long-term resident have sufficient resources and sickness insurance (‘stable and regular’) and comply with ‘integration measures’ provided that such measures were not already complied with in the first member state (LTRD, 2003, Article 15(2)(3)). Long-term residents can bring with them their core family members as defined by the Family Reunification Directive, but the second member state retains the option of deciding whether to admit other family members (LTRD, 2003, Article 16). Once they have received their residence permit, long-term residents have the right to equal treatment in the second member state,

Fundamental rights and non-EU minorities  75 with the exception of social assistance and social protection, and subject to a possible one-year delay in gaining full access to the labour market (LTRD, 2003, Article 21(1)(2)). Before the long-term resident gains long-term resident status in the second member state, that member state can remove or withdraw their residence permit and expel the long-term resident and their family members in accordance with national procedures on grounds of public policy or public security, where the conditions for admission are no longer met and where the third-country national ‘is not lawfully residing’ there (LTRD, 2003, Article 21(1)(c)). The first member state must readmit such persons, although if there are ‘serious grounds of public policy or public security’ (LTRD, 2003, Article 21(2)(3)), the person concerned can be expelled outside the EU. As far as the conditions related to resources and health insurance are concerned, Peers notes that the Directive risks creating a distinction among long-term residents on the basis of class, between those in settled employment or self-employment able to meet their financial obligations and those facing difficulties in the labour market who are excluded from the chance to obtain status unless or until their situation stabilizes (2004, 155). He argues that ‘in cases where a large proportion of a group of non-citizens faces great economic difficulty in a host state, it follows that a large proportion of that group will be unable to obtain long-term resident status’ (2004, 155). The Directive allows states to impose integration requirements as a condition for acquiring long-term-resident status in the first place and to impose language requirements as a condition for access to education and training (LTRD, 2003, Article 11(3) (b)). Even if a TCN has already complied with the integration conditions in the first EU state, they may again be required to attend language courses in the second member state, and the Directive does not include any provisions for preserving identity rights. Thus, if a member state invokes the provisions of the Directive providing for an integration condition for the acquisition of long-term-resident status, there is the risk that this might conflict with the cultural and linguistic rights of migrants (LTRD, 2003, Article 5(2) and Article 15). In conclusion, the Directive clearly outlines the right to move between member states if the conditions are met, and this is certainly a new right of both practical and symbolic importance to TCNs.14 Yet, the limitations in the scope of the Directive and the conditions placed upon acquisition of long-term-resident status and the right to move to another member state clearly reduce its value as a contribution to ensuring equality between long-term-resident TCNs and EU citizens. The Council Directive on Family Reunification The proposal for a directive on the right to family reunification constituted the first of a set of measures presented by the European Commission on TCNs after the entry into force of the Amsterdam Treaty (Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification). Despite the adoption of an ad hoc EU instrument on family reunification, a harmonized concept of family either at the international or at the European level does not exist yet. The Migrant Workers’ Convention provides the most recent definition in its

Long-term-resident status is surely attractive for those residents who are unable or unwilling to acquire the nationality of their country of residence either because of the requirements for naturalization or because of the effects naturalization entail under the law of their country of origin. 14

76  Research handbook on minority politics in the European Union Article 44,15 but none of the EU member states have signed or ratified this instrument of public international law. The main purpose of the Family Reunification Directive is ‘to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States’ (Family Reunification Directive, 2003, Article 1). It mainly proposes non-discrimination rights. According to the Directive, a TCN must fulfil several conditions to be able to exercise their right to family reunification: The applicant must provide evidence that they have accommodation regarded as normal for a ‘comparable family’ in the same region and that meets general health and safety standards, sickness insurance in respect of all risks in the member state concerned for themselves and their family members, and stable resources that are greater than or equal to the level of resources below which the member states may grant social assistance (Family Reunification Directive, 2003, Article 7). Considerable discretion is left to the member states regarding the conditions necessary to exercise the right to family reunification. Article 8 of the Directive requires migrants to have resided lawfully in the territory of a member state for a period not exceeding two years before being joined by family members. However, a member state may also provide for a further waiting period of no more than three years between the submission of an application for family reunification and the issue of a residence permit to the family members, owing to considerations relating to the so-called ‘reception capacity’ of the country. Member states may in addition require TCNs to comply with integration measures in accordance with national law. In general, the level of protection provided for in the Directive is rather low while the requirements remain high. Nevertheless, as Groenendijk notes: ‘The Directive will act as an implicit standstill-clause against efforts to make the national rules even more restrictive’ (2004, 118). From the analysis conducted on the instruments dealing with non-citizens, and migrant workers in particular, it becomes clear that it is difficult to consider these instruments an adequate basis on which protection of ‘new’ non-EU minorities, with their specific language, religion and culture, can be devised. Instruments such as the UN Migrants Workers Convention, which could be useful for this purpose, are primarily ratified by countries of emigration only, and therefore cannot constitute important tools for the protection of ‘new’ non-EU minorities. Instruments like the LTRD introduce the concept of integration measures, which represent a legitimate concept, as they are aimed at improving migrants’ ability to participate in the national society of their new home country. However, they do not contribute to protecting, much less promoting, the cultural distinctiveness of non-EU minorities. The EU Pact on Migration and Asylum The EU Pact on Migration and Asylum is one of the most recent developments regarding the treatment of TCNs and non-EU minorities.16 The Commission aims to create a policy agenda

Article 44 of the Migrant Workers’ Convention refers to the family as ‘the natural and fundamental group unit of society’. 16 The European Parliament has examined the draft Pact presented by the Commission. The German Presidency of the Council has shown a clear willingness to move forward with the negotiations as quickly as possible. The coronavirus pandemic and also the extreme polarization of the public debate on this issue in the member states could render the negotiations difficult (Fondation Robert Schuman, 2020). The Commission has therefore not reached its initial goal of adopting the Pact by the end of 2021. 15

Fundamental rights and non-EU minorities  77 to set up a ‘Common European Framework on Migration and Asylum Management’ during the current (ninth) EU legislature. Reforming the CEAS has been ongoing for many years, as it has become more and more clear that the current system is unable to ensure an equal burden-sharing or solidarity mechanism, and it can also not provide the prerequisites for controlling migratory flows into the EU. ‘The New Pact recognizes that no Member State should shoulder a disproportionate responsibility and that all member-states should contribute to solidarity on a constant basis’ (European Commission, 2020a, 2). This should be done through an improved solidarity and responsibility-sharing mechanism, including relocation and return sponsorship, where member states would provide the necessary support to the member states under pressure (those with EU external borders or those located on the Mediterranean Sea) to ‘swiftly return those who have no right to stay’ (European Commission, 2020a, 5). Member states may freely decide whether and to what extent they want to divide their efforts between persons to be relocated and those to whom return sponsorship will apply – this means that reluctant member states could opt out of relocation through stronger return sponsorship efforts. As Carrera argues, the Pact pursues an asymmetric notion of solidarity, leading to an EU asylum system à la carte, in which only a handful of member states take responsibility for relocation and the fundamental right to asylum (2020, 6). It follows a ‘lowest common denominator’ approach in order to get especially the reluctant Visegrad states to agree to common rules regarding migration and asylum; Beirens (2020) notes that the Pact may be the last attempt to find a shared approach before migration and asylum policy is sidelined in the European integration process and left to the member states, ‘practically guaranteeing future conflicts between countries and injecting further uncertainty for refugees and migrants as to rights and treatment’. While some commentators thus see the Pact as a possible means of reconciling different state interests, non-governmental organizations such as Human Rights Watch criticize it as a missed opportunity to fundamentally reform the Dublin system. Return sponsorship suggests that the focus on return is equal to the focus on protection, which raises serious human rights concerns (Human Rights Watch, 2020). As a contrast to the strong focus on return policies, the Pact also proposes measures to strengthen legal pathways into the EU and to attract skilled workers. Through a revision of the LTRD, a true EU long-term-resident status should be created by strengthening the right of long-term residents to move and work in other member states (European Commission, 2020a, 24–5). This would be accompanied by measures designed to strengthen local integration: ‘beneficiaries of international protection would have an incentive to remain in the Member State which granted international protection, with the prospect of long-term resident status after three years of legal and continuous residence in that Member State. This would also help their integration into local communities’ (European Commission, 2020a, 6). The Commission has presented an Action Plan on Integration and Inclusion for 2021–2024, which sets out concrete actions to foster the inclusion of migrants and their families and broader social cohesion. ‘Ensuring migrants fully benefit from the European Pillar of Social Rights will be a key objective. It will recognise that people with a migrant background (e.g., foreign-born or second-generation migrants) often face similar integration challenges to third-country nationals’ (European Commission, 2020a, 27). It will be very interesting to see how this approach plays out in practice, as even though the integratory challenges might be similar, EU citizens and non-citizens do have a different set of rights that also directly influences their living circumstances. However, it might be a first step towards looking at diverse groups through the same lens, taking this diversity and not citizenship as the primary identifying

78  Research handbook on minority politics in the European Union characteristic. If this approach is successful, it could also lead the way towards less differential treatment of non-EU and EU minorities, but it must be noted that the Pact is still in a very early phase, and that negotiations in the European Parliament and the points of criticism raised by non-governmental organizations are likely to bring about substantial amendments to the current proposal.

CONCLUSIONS AND POSSIBLE WAYS FORWARD The growing diversity of national communities has generated pressures for the construction of new and more defensible forms of accommodating social cohesion and diversity. While it was relatively easy to reach a general agreement on the prevention and punishment of genocide – the very basis for the right to existence – and on the elimination of racial discrimination, reaching consensus on the right to identity and on the right to participation seems to be much more difficult, especially if such an approach is also to include ‘new’ non-EU minorities. As the analysis of the instruments in place for protecting the fundamental rights of non-EU minorities shows, there are still considerable discrepancies between the rights and protection mechanisms available to minority populations who are EU citizens and those who do not hold EU citizenship. To add to these discrepancies, there are further differences due to the differential treatment resulting from bilateral agreements that individual EU member states have entered into mainly with neighbouring non-EU countries or that the EU has entered into collectively. These legal differences are accompanied by socio-political differences regarding how EU citizens perceive European and non-European TCNs: With the exception of the Roma, who constitute the minority group most negatively affected by public stereotypes and prejudices, European TCNs are generally perceived more favourably than their non-European counterparts, who are often victims of different forms of discrimination including due to their being visible minorities (European Social Survey 2016, 5–6). As a long-term effect of the so-called ‘refugee crisis’ of 2015, these discrepancies and differential treatments are likely to increase, and measures for TCNs, especially those from non-European countries, are likely to become even more restricted in their scope and application. Roma and Sinti minorities, who are especially discriminated against even when they are EU citizens, have been the target of specific programmes, like the Decade of Roma Inclusion; unfortunately, these efforts have thus far not led to any sustainable improvement in their situation, and they face even more difficulties if they are TCNs or stateless persons. Despite these problems and shortcomings, the increased diversity of European societies is an ever more important fact and a way forward for integrating both EU and non-EU minorities while implementing their rights to diversity and participation, and a certain level of social cohesion in EU countries will have to be found. All policies that seek to reconcile social cohesion, unity and diversity are confronted with a veritable minefield of dilemmas. Whatever policy options, or mixes of policy options, one wants to choose, one has to face hard trade-offs and serious policy problems. Although societies need to evolve their own models of integration suited to their history, traditions, demographic composition, political requirements, etc., their decisions should be guided by two general principles: respecting diversity and fostering a sense of common belonging and unity. Respecting and reconciling these two apparently conflicting principles present a major challenge for contemporary societies. If they privilege unity, there is a risk that they will alienate minorities, provoke resistance and endanger the very unity they seek. If they privilege

Fundamental rights and non-EU minorities  79 diversity, they may not be able to accommodate the conflicting demands of their communities and pursue common goals, and would risk disintegration. How to reconcile the demands of cultural diversity and political unity – that is, how to create a political community that is both cohesive and stable and that satisfies the legitimate aspirations of minorities – has been a subject of considerable discussion ever since the rise of the modern state, and particularly during the past few decades.17 That which distinguishes all minority groups is that they manifest, albeit implicitly, a desire to maintain a collective identity that differs from a dominant culture. The existence of a minority is not static; it is dependent on the will of its members to continue to form a group distinct from the majority, and on their capacity to recreate their own identity. This means that the existence of a minority depends to a large extent on the minority itself and the relations it has established with the majority or with other groups of the population. The disappearance, affirmation, constitution or reorganization of a minority is considered to be a sociocultural process: a process by which a group of people differentiates itself from the rest, maintains and perpetuates that difference and gives it cultural, organizational and/or political expression. When reference is made to universal human rights or general norms of minority protection, there is no need to distinguish between persons belonging to ethnic, religious or linguistic groups made up of recent immigrants and historical minorities. Other rights, such as the right to use a minority language in relations with the authorities or the right to street names in a minority language, are more specific, and their implementation must be differentiated. The difference, however, is not based solely on the fact that a given group belongs to the ‘old’ or ‘new’ minority category: Other factors are relevant and apply without difference to both old and new minorities, such as socio-economic, political and historical factors. Furthermore, whether members of a minority live compactly together in a part of the state territory or are dispersed or live in scattered clusters, or whether members of a community having distinctive characteristics have long been established in the territory, while others have only recently arrived, are important factors. Minority groups – old and new minorities alike – are not an indistinct monolith but are composed of groups very different from each other, with diversified claims, duties and rights. In the process of integration as a response to immigration or in the case of historical minorities, individuals can be seen to be involved in a multifaced interactive process whereby members of majority and minority groups as well as migrants and historical minorities should be able to integrate in a shared community without giving up their distinctive ethnic, religious or cultural attributes and – equally important – without losing their distinctive identity. The basis for this process of inclusion is the creation of a common shared identity based on common values, such as human rights, democracy, tolerance and equality, but also on perceptions about trustworthiness, loyalty and commitment: a sense of membership of a common polity and of sharing a fate with others who are also part of that polity rather than culture- or descent-based criteria. Along these lines, the Preamble to the Charter affirms that ‘the peoples of Europe, in creating an ever-closer union among them, are resolved to share a peaceful future based on common values’. This implies that future challenges will not belong to any specific people; rather, all European peoples – that is, all those living in Europe, regardless of their citizenship status – fundamentally share a common future.

Among the vast literature see Malloy (2008).

17

80  Research handbook on minority politics in the European Union However, if developing shared collective identities, extending the personal scope of national or European citizenship, and allocating rights and duties on the basis of lawful and habitual residence may be crucial to developing among members of old and new minorities alike a sense of membership and thereby enhancing their sense of belonging, by no means can these be the sole determinant factors in fostering their sentiment of trust and commitment to ‘sharing a peaceful future’, as outlined in the Preamble to the Charter mentioned above. Policies and strategies designed to redress the inequitable position of minorities and combat formal and substantial forms of discrimination are just as essential. Legal instruments outlining fundamental rights, including those designed specifically for protecting the rights of non-EU minorities, constitute an important part of the toolset available to liberal democracies to create an environment open to diversity while maintaining a shared set of common values. Fundamental rights constitute the shared basis, a firm set of roots, metaphorically speaking, from which diverse groups and their individual characteristics can then grow and be nourished. We therefore propose a human and minority model for diversity governance, called the Tree Model, as a potential way forward for further developing fundamental rights mechanisms for non-EU minorities (Medda-Windischer, 2017). In the Tree Model, the tree represents the permanent dialogue between minority and majority groups present in a society. In the model, the roots symbolize the various groups in society, and the branches and foliage represent the resulting society in which unity and diversity co-exist in harmony. The crown of the tree – a diverse but integrated society – is sustained by a trunk representing the entire catalogue of human rights, including minority rights, such as those enshrined in the European Convention on Human Rights and its case law, which all European countries are bound to respect. The human rights trunk functions as a filter through which only those minority and majority claims, practices or traditions that are compatible with human rights standards will be admitted and recognized in society. This model has two strong components: the recognition of diversity and the preservation of unity and cohesion. The first refers to the extension of the scope of application of certain provisions typical of the protection of historical minorities, such as those from the Council of Europe Framework Convention for the Protection of National Minorities, to all minority groups, including new minority groups stemming from international mobility flows. The second denotes the protection of a core of common values based on the universal human rights catalogue contextualized and detailed, as far as Europe is concerned, by the European Court of Human Rights and its case law. Hence, according to this model, only minority and majority claims that are in line with human and minority rights standards will be recognized as worthy and as having value for building a stable and cohesive community. The Tree Model, with its combination of human and minority rights, complemented by general and specific integration measures, possibly represents, paraphrasing Leibniz and his ‘best of all possible worlds’, the best of all possible models of diversity governance, at least as far as Europe is concerned. Yet, the Tree Model for diversity governance is not without difficulties. It is based on a vision of society in which different communities should interact with each other in a spirit of equality and openness, creating a rich, plural and tolerant society. The process is thus burdensome for both parties. Minorities must learn to negotiate, often in an unfamiliar or even hostile environment where their minority statuses make them vulnerable to marginalization and segregation. The majority group, on the other hand, must cope with diversity in its schools, workplaces, housing, public spaces and neighbourhoods, and must display tolerance and broad-mindedness. The vision is not easy to realize and has its own problems. Some groups

Fundamental rights and non-EU minorities  81 might not be open and experimental, and others might jealously guard their inherited identities. At the heart of any successful model lies, in the end, a sincere willingness on both sides – majority and minority – for continuous interaction, mutual adjustments and accommodation.

REFERENCES Bauböck, Rainer, The Integration of Immigrants, Report of the 7th Meeting of the Joint Group of Specialists on Migration, Demography and Employment, Council of Europe, Strasbourg, 15–17 March (1994), CDMG(94) 25, para.3.1. Beirens, Hanne, The EU Pact on Migration and Asylum: A Bold Move to Avoid the Abyss?, Migration Policy Institute Commentaries, October (2020). www​.migrationpolicy​.org/​news/​eu​-pact​-migration​ -asylum​-bold​-move​-avoid​-abyss, accessed 23 December 2020. Capotorti, Francesco, ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’, UN Doc. E/CN.4/Sub.2/384/Rev.1 (1977). https://​digitallibrary​.un​.org/​record/​10387, accessed 23 December 2020. Carrera, Sergio, Whose Pact? The Cognitive Dimensions of the new EU Pact on Migration and Asylum, CEPS Policy Insights, No. 2020-22, September (2020), 1–13, 6. www​.ceps​.eu/​ceps​-publications/​ whose​-pact/​, accessed 23 December 2020. Council of Europe, Committee of Ministers, White Paper on Intercultural Dialogue: Living Together as Equals in Dignity (2008). www​.coe​.int/​t/​dg4/​intercultural/​source/​white​%20paper​_final​_revised​_en​ .pdf, accessed 23 December 2020. Crepaz, Katharina, ‘The Minority SafePack Initiative: A European Participatory Process Supporting Cultural Diversity’, European Yearbook of Minority Issues 17/2018 (2020a), 23–47. Crepaz, Katharina, ‘Overcoming Borders: The Europeanization of Civil Society Activism in the “Refugee Crisis”’, Journal of Ethnic and Migration Studies, DOI: 10.1080/1369183X.2020.1851471 (2020b), 1–14. Eurobarometer, ‘Special Eurobarometer 469: Integration of Immigrants in the European Union, Summary’ (2018). https://​europa​.eu/​eurobarometer/​surveys/​detail/​2169, accessed 24 June 2021. European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – ‘A Common Agenda for Integration’ – Framework for the Integration of Third-Country Nationals in the European Union/COM/2005/0389 final (2005). https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​HTML/​?uri​=​ CELEX:​52005DC0389​&​from​=​EN, accessed 23 December 2020. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum. Brussels 23/09/2020, COM(2020) 609 final (2020a). https://​eur​-lex​.europa​ .eu/​legal​-content/​EN/​TXT/​?qid​=​1601287338054​&​uri​=​COM:​2020:​609:​FIN, accessed 23 December 2020. European Commission, Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L180/22 (2000). https://​eur​-lex​.europa​ .eu/​legal​-content/​EN/​TXT/​?uri​=​CELEX​%3A32000L0043, accessed 23 December 2020. European Commission, Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2000 L303/16 (2000). https://​eur​-lex​.europa​.eu/​legal​ -content/​EN/​TXT/​?uri​=​celex​%3A32000L0078, accessed 23 December 2020. European Commission, Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (2003). https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​HTML/​?uri​=​CELEX:​32003L0086​&​ from​=​en, accessed 23 December 2020. European Commission, Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (2003). https://​eur​-lex​.europa​.eu/​legal​-content/​ EN/​TXT/​HTML/​?uri​=​CELEX:​32003L0109​&​from​=​en, accessed 23 December 2020. European Commission, Press Release, ‘A Fresh Start on Migration: Building Confidence and Striking a New Balance between Responsibility and Solidarity’ (2020b). https://​ec​.europa​.eu/​commission/​ presscorner/​detail/​en/​ip​_20​_1706, accessed 23 December 2020.

82  Research handbook on minority politics in the European Union European Court of Justice, Case C-54/07, Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV, [2008] ECR I5187 558-9. European Social Survey, Attitudes Towards Immigration and their Antecedents: Topline Results from Round 7 of the European Social Survey (2016). www​.​europeanso​cialsurvey​.org/​docs/​findings/​ESS7​ _toplines​_issue​_7​_immigration​.pdf, accessed 24 June 2021. European Union, Charter of Fundamental Rights of the European Union. Official Journal 2012/C 326/02 (2012a). https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​HTML/​?uri​=​CELEX:​12012P/​TXT​&​from​=​ EN, accessed 23 December 2020. European Union, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union – Consolidated version of the Treaty on European Union – Protocols – Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 – Tables of equivalences. Official Journal C 326, 26/10/2012 P. 0001–0390 (2012b). https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​HTML/​?uri​ =​CELEX:​12012M/​TXT​&​from​=​EN, accessed 23 December 2020. EU Council, Employment, Social Policy, Health and Consumer Affairs. Joint Report on Social Protection and Social Inclusion – 2006, 7294/06 (2006). https://​ec​.europa​.eu/​employment​_social/​ social​_inclusion/​docs/​2006/​cs2006​_7294​_en​.pdf, accessed 23 December 2020. Evans, Andrew, ‘Third Country Nationals and the Treaty on European Union’, European Journal of International Law (1994) 5, 199–219. Fondation Robert Schuman, ‘Understanding the New Pact on Migration and Asylum’, European Issue no 577, 16 November (2020). www​.robert​-schuman​.eu/​en/​european​-issues/​0577​-understanding​-the​-new​ -pact​-on​-migration​-and​-asylum, accessed 23 December 2020. Fundamental Rights Agency, Respect for and Protection of Persons belonging to Minorities 2008–2010 (2011). https://​fra​.europa​.eu/​sites/​default/​files/​fra​_uploads/​1769​-FRA​-Report​-Respect​-protection​-mi norities-2011_EN.pdf, accessed 23 December 2020. Fundamental Rights Agency, Roma and Travellers in Six Countries (2020). https://​fra​.europa​.eu/​sites/​ default/​files/​fra​_uploads/​fra​-2020​-roma​-travellers​-six​-countries​_en​.pdf, accessed 24 June 2021. Groenendijk, Kees, ‘Legal Concepts of Integration in EU Migration Law’, 6 European Journal of Migration and Law (2004), 111–26. Human Rights Watch, ‘The Pact on Migration and Asylum: To Provide a Fresh Start and Avoid Past Mistakes, Risky Elements Need to Be Addressed and Positive Aspects Need to Be Expanded’ (2020). www​.hrw​.org/​news/​2020/​10/​08/​pact​-migration​-and​-asylum, accessed 23 December 2020. Lantschner, Emma, and Roberta Medda-Windischer, ‘Protection of National Minorities through Bilateral Agreements in South Eastern Europe’, 1/1, European Yearbook of Minority Issues (2001), 535–61. Malloy, Tove H., ‘Conceptualizing Democratic Diversity Management for Multicultural Societies: Theories of Society and Law’, 6 European Yearbook of Minority Issues (2008), 281–306. Medda-Windischer, Roberta, ‘Integration of New and Old Minorities: Beyond a Janus-faced Perspective’, 14/1, European Yearbook of Minority Issues (2017), 1–36. Medda-Windischer, Roberta, ‘The Nexus of Old and New Minorities’, in Tove H. Malloy and Caitlin Boulter (eds), Minority Issues in Europe: New Ideas and Approaches (vol. 2) (Frank & Timme, 2019). Medda-Windischer, Roberta, and Andrea Carlá, ‘European Civic Integration and Common Values: The Experience of a Board Game’, 5/1, Peace Human Rights Governance (2021), 9–39. Morano-Foadi, Sonia, ‘Third Country Nationals Versus EU Citizens: Discrimination Based on Nationality and the Equality Directives’ (21 December 2010), SSRN. http://​dx​.doi​.org/​10​.2139/​ssrn​ .1729141, accessed 23 December 2020. Network of Independent Experts on Fundamental Rights, Report on the Situation of Fundamental Rights in the European Union in 2003, Fundamental Rights Series, January (2004). www​.europa​.eu​.int/​ comm/​justice​_home/​cfr​_edf/​index, accessed 23 December 2020. Palermo, Francesco, and Jens Woelk, ‘No Representation Without Recognition: The Rights to Political Participation of (National) Minorities’, 25/3, Journal of European Integration (2003), 225–48, at 240–41. Peers, Steve, ‘New Minorities: What Status for Third-Country Nationals in the EU System?’, in Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (OSI/LGI, 2004), 151–62.

Fundamental rights and non-EU minorities  83 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member-state responsible for examining an application for international protection lodged in one of the member-states by a third-country national or a stateless person (recast) (2013). https://​eur​-lex​.europa​.eu/​LexUriServ/​LexUriServ​.do​?uri​=​OJ:​L:​ 2013:​180:​0031:​0059:​EN:​PDF, accessed 23 December 2020. Tampere European Council, Presidency Conclusion, 15–16 October (1999). www​.europarl​.europa​.eu/​ summits/​tam​_en​.htm​#c, accessed 23 December 2020. United Nations, Human Rights Committee (HRC), ‘CCPR General Comment No. 23: Article 27 (Rights of Minorities)’, 8 April 1994, CCPR/C/21/Rev.1/Add.5. www​.refworld​.org/​docid/​453883fc0​.html, accessed 23 December 2020. United Nations, International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49 (1966). www​.ohchr​.org/​en/​professional interest/pages/ccpr.aspx, accessed 23 December 2020. United Nations, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Adopted by General Assembly resolution 45/158 of 18 December 1990. www​.ohchr​.org/​en/​p​rofessiona​linterest/​pages/​cmw​.aspx, accessed 23 December 2020. United Nations Special Rapporteur on Minority Issues, Effective Promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Report to the UN General Assembly, A/74/160, 15 July (2019). https://​undocs​.org/​A/​74/​160, accessed 23 December 2020. Van der Stoel, Max, ‘Keynote Address of Mr Max van der Stoel CSCE High Commissioner on National Minorities at the CSCE Human Dimension Seminar on “Case Studies on National Minority Issues: Positive Results”’, 24 May (1993). www​.osce​.org/​files/​f/​documents/​5/​8/​38038​.pdf, accessed 24 June 2021. Ward, Angela, ‘The Impact of the EU Charter of Fundamental Rights on Anti-Discrimination Law: More a Whimper than a Bang?,’ Cambridge Yearbook of European Legal Studies, 20 (2018), 32–60. www​.cambridge​.org/​core/​journals/​cambridge​-yearbook​-of​-european​-legal​-studies/​article/​impact​-of​the-eu-charter-of-fundamental-rights-on-antidiscrimination-law-more-a-whimper-than-a-bang/2E02 D91A17D00A16E3121DCDE0CBFC4A, accessed 23 December 2020.

5. The Court of Justice of the European Union and ‘minorities’ Kristin Henrard

INTRODUCTION AND SETTING THE SCENE In law, the standards developed in (international) regulation and legislation only provide a first layer of information. Interpretation, as visible through the way in which these standards are implemented and applied by public authorities, and eventually evaluated by courts, are equally – if not more – important to gauge the state of the law.1 The analysis of the approach of the Court of Justice of the European Union (CJEU) to ‘minorities’, and thus what the CJEU case law reveals about the EU’s minority politics, requires the identification of the relevant (standards and) case law, having regard both to the concept of ‘minority’ and issues/themes of relevance for minorities. The following paragraphs will first analyze the meaning of the concept of ‘minority’ and minority-specific rights and second, the overarching principles of minority protection. Third, these discussions then feed into the identification of the issues of concern to minorities, the most relevant standards and strands of case law of the CJEU. Inevitably, some reflections are in order on the (growing) significance of human rights within EU law, a theme that will be returned to throughout the subsequent substantive analysis. The end of this introduction will explain in what way and order these strands of case law of the CJEU are discussed in the remainder of this chapter. The Meaning of the Concept of Minority and Minority-Specific Rights Until now, when exploring the meaning of the concept of minority in international law, no generally accepted definition has been forthcoming.2 Nevertheless, when minority-specific instruments and institutions have been developed, several definitional attempts have been put forward, resulting in the identification of recurring definitional elements. Moreover, a certain definition is still often used as a starting point when discussing the notion of minority, namely the one by Francesco Capotorti, made in 1977 as Special Rapporteur of the United Nations (UN) Sub-Commission on Prevention of Discrimination and Protection of Minorities. According to him, a minority is:

The importance of interpretation/application, eventually by courts, is clearly visible in the amount of attention dedicated to case law of the European Court of Human Rights in handbooks on the European Convention on Human Rights, and indeed to case law of the CJEU in handbooks on EU law. 2 This is strikingly visible in the absence of a definition in the two most prominent documents on minority-specific rights, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and the Council of Europe Framework Convention for the Protection of National Minorities. 1

84

The Court of Justice of the European Union and ‘minorities’  85 A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language. (Capotorti 1979, par 568)

The review of minority-specific instruments confirms the focus of minority rights on groups that have a distinct ethnic, religious and linguistic identity. The following discussion will return multiple times to the right to respect for a distinct identity. At the same time, it is clear that ‘minorities’ in international law do not cover all disadvantaged and numerically inferior groups with distinct identities. Indeed, groups such as LGBTIQ people and persons with disabilities do not constitute ‘minorities’ as such,3 while members of ethnic, religious and linguistic minorities can also belong to the LGBTIQ community and/or have a disability.4 In line with the dynamic nature of law, the understanding about minorities has developed, in at least two respects, without there being full agreement on the matter. Firstly, the reference to ‘the state’ has been understood in a broader sense, as referring to any level of government with competences that matter to minorities. Put differently, minorities can also be defined in relation to sub-units of a state, when that sub-unit has competences that impact on minorities’ right to equal treatment and right to respect for their identity (Council of Europe 2002, par 14). For example, when a province has competences in relation to language in education, it makes sense to identify linguistic minorities in reference to the population of the province. Secondly, states are increasingly urged not to hold on to a strict citizenship requirement, in line with the growing acknowledgement that traditional, indigenous minorities on the one hand and new, migrant minorities on the other share several concerns and needs (Medda-Windischer 2009). Hence, a broad, inclusive definition of ‘minority’ is put forward. In order to counter any unease on the side of states about the implications of a broad definition of ‘minorities’, it is important to highlight that additional state obligations of states towards minority groups are not identical for all minority groups, but can be adapted in light of proportionality considerations. Indeed, the loose formulation of minority-specific standards (see also infra ‘The freedom of religion’), and the multiple qualifiers that are included,5 allow for proportionality considerations to tailor state obligations in relation to the respective minority groups. Typical factors that are relevant to determine what can reasonably be expected from a government in relation to a particular minority are indeed not only questions of numbers (relative concentrations) but also the extent to which minorities have durable ties with the state concerned. In this respect, it has been argued that resource-intensive rights become stronger over time.6 In terms of the Framework Convention for the Protection of National Minorities, states are urged to consider the application of minority-specific rights Some persons belonging to ethnic, religious and linguistic minorities can of course also be LGBTIQ, or have a disability, that could then lead to compound/additive or intersectional discrimination, pointing to the combination of discrimination on the respective grounds and to discrimination on an intersection of these grounds respectively; see Makkonen 2002. 4 This phenomenon receives increasing attention, inter alia in the literature on intersectional discrimination. 5 Typical qualifiers concern ‘as far as possible’, ‘state parties shall endeavour to ensure’, ‘where appropriate’ … . 6 This line of thinking is arguably visible in the Framework Convention for the Protection of National Minorities (FCNM) where some of the rights are reserved for minorities that inhabit areas either traditionally or in substantial numbers; see inter alia Article 11(2) of the FCNM. 3

86  Research handbook on minority politics in the European Union also to non-citizens, while having regard to reasonability and proportionality considerations (Eide 2008, pp. 124–5). When including minorities with a migrant background in the analysis in the EU setting, it is important to realize that not only third-country nationals (TCNs) are included but also EU citizens that have migrated to another EU member state.7 Minority Protection’s Overarching Principles The identification and evaluation of CJEU case law that concerns minorities, will also be facilitated by a discussion of minority protections’ overarching principles and their relation to and translation in terms of fundamental rights. The Permanent Court of International Justice (PCIJ)’s Advisory Opinion on Minority Schools in Albania (1935) provides important insights in these principles (and related rights). The Court identifies more or less explicitly two central goals/principles of minority protection, namely ‘equality’ (right to equal treatment) and ‘identity’ (right to respect for the separate identity), while implicitly acknowledging the transversal relevance of ‘participation’ (right to full and equal participation in society). The PCIJ highlights in its Advisory Opinion of 6 April 1935: [48] The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs. [49] In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties. [50] The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. [51] The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. [52] These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority. (PCIJ 1935; emphasis added)

The references to equality are explicit, while ‘racial peculiarities … traditions and … national characteristics’ are clearly reminiscent of a distinct identity. Where the Court refers to the overarching goal of the minorities’ treaties as securing for minorities ‘the possibility of living peaceably alongside that population and cooperating amicably with it’, it arguably recognizes that full participation in society as a minority – that is, with a distinct identity – is also a core principle of minority protection. The quote as well as the ensuing discussion furthermore clarified that the three benchmarks of minority protection are indeed closely intertwined. This intertwinement of the benchmarks becomes even clearer when expanding a bit further on the last lines of the PCIJ quote above, and the substantive equality reading of the right to equal treatment it reflects, going beyond mere formal or mathematical equality. 7 See inter alia the discussions on the case law concerning the recognition of particular surnames, and the prohibition of discrimination (on grounds of race, and of religion).

The Court of Justice of the European Union and ‘minorities’  87 As the selection and discussion of the relevant CJEU case law will confirm, for persons belonging to minorities the right to equal treatment is particularly important in two regards. On the one hand, they require an effective protection against invidious discrimination, ensuring that they are not treated formally unequally without reasonable and objective justification. On the other hand, in some respects they want to be treated differently (formally unequally) to take into account their distinct characteristics and ensuing needs and to ensure substantively equal treatment. These two angles to the right to equal treatment go back to Aristotle’s understanding that similar things need to be treated alike, while dissimilar things need to be treated differently to the extent of the dissimilarity (Nicomachean Ethics, nr. 1130b–32b). Both of these dimensions of the right to equal treatment are interrelated with the right to respect for one’s separate identity. One should indeed be protected against invidious discrimination because of one’s minority identity (characteristic), while the (equal) protection and promotion of one’s separate identity may also require differential treatment. Examples of the latter include exemptions for ritual slaughter, and providing mother-tongue education (also) to minority-language speakers. Last but not least, both dimensions of the right to equal treatment and the right to respect for one’s distinct identity also inform the participation benchmark. One’s full participation in society can be hampered when one is invidiously discriminated against on grounds of one’s minority identity; for example, when access to employment is blocked for a particular ethnic or religious group. A lack of accommodation of one’s distinct identity can also lead to an obstruction of one’s full participation. Indeed, the underlying idea of ‘duties of reasonable accommodation’ is exactly about addressing hurdles to participation because of the interaction between an identity characteristic of a person and the way society is structured (Goldschmidt 2007, p. 39). Relevant strands of standards and case law In light of the above considerations, several strands of CJEU case law seem relevant to include in the analysis here. These cases concern a non-exhaustive selection at the intersection of the equality, identity and/or participation principles of minority protection. Clearly, when identifying the relevant standards, these principles translate most directly in fundamental rights as rights essential for a life of human dignity (Griffin 2008, p. 3; Tomuschat 2008, pp. 2–3). An ongoing discussion concerns the extent to which the effective enjoyment of minorities’ fundamental rights requires minority-specific rights, in addition to the general human rights, as rights for every human being, and the prohibition of discrimination. The emergence of instruments dedicated to minority-specific rights both at the UN level and at the European level8 seems to indicate a growing trend among states to accept and embrace minority-specific rights. Admittedly, the picture is more nuanced since these standards are carefully crafted to leave states considerable discretion, and several states – also in Europe – still strongly oppose minority-specific rights.9 In this respect, it is crucially important to recognize the centrality of

8 Respectively: the 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities and the 1995 Framework Convention for the Protection of National Minorities (n. 1). 9 Belgium, Greece, Iceland and Luxembourg have signed but not ratified the FCNM, and France, Turkey, Andorra and Monaco have not even signed the convention: www​.coe​.int/​en/​web/​minorities/​etats​ -partie, accessed 1 December 2021.

88  Research handbook on minority politics in the European Union the interpretation of the respective standards, developments in this respect and the implications for the reach, strength and relative importance of general and minority-specific fundamental rights (Henrard 2008, p. 91). In terms of the EU, it is common knowledge that the EU did not start off as an organization that was concerned with fundamental rights. The founding treaties did not pay attention to fundamental rights. In line with the principle of attributed competencies (the principle of conferral, Article 5(2) of the Treaty on European Union, or TEU), the two narrow prohibitions of discrimination, namely on grounds of nationality (of one of the member states) and gender (Treaty establishing the European Community, Articles 12, 14) were aimed at the realization of the common market. In this respect, it has been highlighted that the EU’s market integration model informed the social objectives and the European social policy developments (Bell 2002, pp. 7–12; Poiares Maduro 2000, p. 330). Admittedly, the CJEU did early on recognize in its jurisprudence that human rights are general principles of EU law that need to be respected by the institutions of the EU and the member states when operating in the sphere of EU law (Alston and Weiler 1999, pp. 9–14; De Burca 2013, p. 168). Eventually, the EU adopted a mainstreaming strategy in relation to human rights, human rights being systematically integrated in all policies (De Schutter 2005, pp. 43–4). As the competence sphere of the EU steadily expanded, and entered terrains where concerns about human rights play a key role, the EU’s human rights policies burgeoned (De Burca 2013, p. 171). Ultimately, in 2000 the EU even adopted its own EU Charter of Fundamental Rights (Peers and Ward 2004), which obtained in 2007 – with the Treaty of Lisbon – a status equivalent to the primary treaties (Article 6, 1 TEU; Douglas-Scott 2011, p. 645). Nevertheless, several commentators have highlighted that when adjudicating human rights claims the CJEU tends to be guided by the market integration model and the related safeguarding of the free movement rights, in the sense that human rights are protected insofar as they are seen to contribute to market integration (De Witte 2009, pp. 206–7; Augenstein 2012–13, pp. 24–6; De Boer 2013, p. 149). This will be a recurring theme in the subsequent analysis of the CJEU judgements. Returning to the selection of relevant case law, the prominent place of the right to equal treatment for persons belonging to minorities, invites a close analysis of case law pertaining to the right to equal treatment on grounds of race/ethnic origin, religion and/or language. Case law in relation to the two directives adopted in 2000, namely the Employment Equality Directive (Directive 2000/78), covering the prohibition of discrimination (inter alia) on grounds of religion in the employment sphere, and the Race Equality Directive (RED; Directive 2000/43), deserves special attention in this respect. The EU Charter of Fundamental Rights furthermore enshrines the freedom to manifest one’s religion (Article 10), which invites scrutiny of restrictions to particular religious manifestations, of special relevance to religious minorities. When reflecting on relevant cases in reference to the EU Charter of Fundamental Rights, Article 22 also merits some attention. The Charter indeed does not have an explicit clause on the rights of persons belonging to minorities. Still, the drafting history of Article 22 of the Charter demonstrates that this provision is considered to provide ‘the constitutional space to be used for protecting minority interests’ (Hölscheidt 2003, pp. 623–4; Toggenburg 2008, p. 95). The CJEU may not have been forthcoming with actually drawing on Article 22 of the Charter to decide cases, but the various arguments before the Court (also from Advocate Generals) confirm that linguistic, religious and cultural diversity qualifies as a fundamental value of the EU (Craufurd-Smith 2014, p. 648). It is exactly this understanding that has spurred the EU institutions and also the CJEU to recognize that domestic measures to protect cultural,

The Court of Justice of the European Union and ‘minorities’  89 religious and/or linguistic diversity are accepted as a legitimate aim to limit the central market freedoms.10 At the same time, the CJEU has been keen to preserve these market freedoms by rather strict proportionality tests, confirming the market integration model.11 From the perspective of linguistic minorities, a range of issues have proven relevant, particularly in relation to EU citizens migrating to or travelling in other EU member states. To some extent, EU citizens can be confronted with national measures aimed at the protection of a national minority language, but to some extent EU citizens speaking the same language as a national minority may want to benefit from the linguistic facilities provided for these minorities. Here, the relevant EU norms pertain to the free movement of persons and services, as well as the prohibition of discrimination on grounds of nationality (Kochenov 2019, p. 219). Relatedly, the spelling of surnames of EU citizens migrating to another EU member state can prove difficult when particular letters are missing in the latter’s alphabet. This could result in a tension between one’s linguistic and ethnic identity on the one hand and a state’s ‘national traditions’ and related sense of sovereignty on the other. Another question that exposes a tension between, on the one hand, the ethnic identity of an EU citizen migrating to another member state, and national traditions of the new EU member state, concerns the determination of the family name of children. Furthermore, in relation to TCNs, some other ‘ethnic identity’ questions have come before the CJEU, such as the extent to which a member state should recognize a particular ‘Islamic institution’ that is unfamiliar in the EU, such as kafala (a specific type of legal guardian system of particular third countries), in view of fundamental rights enshrined in the EU Charter of Fundamental Rights. The preceding reference to national traditions invokes Article 4(2) TEU and the duty it imposes on the EU to respect the national constitutional identities of member states, and related questions of the reach of ‘national constitutional identities’ on the one hand and the implications of EU’s ‘duty to respect’ these traditions on the other. These questions can be roughly subdivided into two categories: to what extent national protection of particular minorities should be accessible to migrating EU citizens, and to what extent a state’s close ties to a particular language/creed/religion/ethos can be allowed to entail the subordination of the ‘others’. The preceding identification of relevant strands of case law of the CJEU will be discussed in four movements. In the first movement, the Court’s case law concerning the protection against invidious discrimination on grounds of race and religion will be analyzed. Secondly, attention shifts to judgements of relevance to the freedom to manifest one’s religion. In the third movement, cases concerning national measures benefiting a particular language and the acceptable implications on mobile EU citizens will be reviewed. Last but not least, a range of judgements are evaluated that provide insights on the extent to which the CJEU is ready to protect the distinct identity and own way of life of particular minority groups, also in relation to matters that concern the national constitutional identity of member states.

See several examples of case law analysis infra. See particularly infra on linguistic rights and diversity.

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90  Research handbook on minority politics in the European Union

PROTECTION AGAINST INVIDIOUS DISCRIMINATION When the Treaty of Amsterdam expanded the grounds of differentiation for which the EU legislator has legislative competence beyond gender and nationality to also include (inter alia) race and religion (now Article 19 TFEU), expectations were high about the potential for a more robust minority protection that would be forthcoming at EU level (Toggenburg 2001b, p. 231). When by 2000 two new equality directives were adopted, one focusing on protection against racial discrimination (the RED) and one focusing on equal treatment in employment on several other grounds including religion (the Framework Equality Directive, or FED), these directives seemed to carry considerable promise indeed. Importantly, the directives did set in motion a process of enhanced protection against racial and religious discrimination also in the private sphere: for religion in the employment sphere and for race also in the spheres of education, housing, social security, health care and the provision of goods and services (Article 3 RED). However, subsequently the balance has become more mitigated (Möschel 2019, p. 141). Not only was the national implementation of these directives in numerous member states painstakingly slow and flawed (COM(2014) 2 final), the number of cases concerning discrimination on grounds of race and/or religion have been few, especially when considering the many forms of structural or systemic racial/religious discrimination taking place throughout the EU (COM(2020) 565 final). As will become visible in the subsequent analysis, these judgements certainly contain reasoning and interpretations that favor a robust protection against discrimination on ethnic and/ or religious grounds. At the same time, several critical remarks can be made about ‘missed opportunities’. Protection Against Racial Discrimination As was highlighted elsewhere, the amount of case law concerning the RED has remained unexpectedly low (Belavusau and Henrard 2019b, p. 18). Still, in the two best known judgements, Feryn and CHEZ, the CJEU has certainly grasped the opportunity provided to clarify the interpretation of the RED in a way that significantly contributes to the effective protection against racial discrimination. Other judgements, however, exhibit missed opportunities in this respect, as has been visible in cases on differentiations on the basis of nationality and/or migration status, on restrictions on family reunification and on (strict) integration requirements imposed on immigrants. The first judgement in which the CJEU engages with the substantive aspects of the RED concerns a preliminary ruling regarding a Belgian manufacturer of doors, Feryn NV, one of the directors of which had publicly stated that the firm would not hire Moroccans because customers would not want them as fitters. This case (Feryn 2008) allowed the CJEU to clarify the meaning and reach of the RED in two respects, both enhancing the effective protection against racial discrimination. First of all, the Court underscored that a mere statement in itself can amount to a case of direct racial discrimination, since the statement as such will often strongly dissuade people from applying, thus actually hindering access to jobs (Feryn, par 25). Secondly, and extending this logic, the Court pointed out that such an instance of direct discrimination is not dependent on a victim coming forward who claims to have been rejected on discriminatory grounds. Indeed, the effects of such statements obstruct the emergence of

The Court of Justice of the European Union and ‘minorities’  91 a socially inclusive labour market, even if no person from the excluded group applies and is turned down (Feryn, par 23). Unfortunately, the CJEU does not entirely hold on to its own logic when it argues that the company could still rebut the presumption of racial discrimination, ‘inter alia by showing that the actual recruitment practice of the undertaking does not correspond to those statements’ (Feryn, par 32). However, a speech instance of discrimination cannot be rebutted by proof in terms of practice, as the Court had highlighted itself earlier, since the speech as such is dissuasive and has (ongoing) effects. A second judgement in which the CJEU engaged with the substantive reach of the RED and which has several positive lines of reasoning, each of which contributes to the effective protection against racial discrimination, concerns Roma. In C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (2015), the CJEU gave a preliminary ruling on the practice of a particular electricity company to place electricity meters in Roma districts of a Bulgarian city at 6 or 7 meters height, while in other districts of the same city the meters were installed at 1.7 meters. The complaint in casu is brought by a non-Roma who has a store in the Roma district. While she is not Roma herself, she suffers from the measure concerned and thus challenges it as being discriminatory against Roma. The CJEU in CHEZ accepts that a non-Roma can complain about a racially discriminatory measure against Roma when that measure affects the complainant similarly, because the measure is applied to a district which is predominantly inhabited by Roma (pars 47–8, 56). The Court’s teleological interpretation builds on the notion of discrimination by association which it had construed in the famous Coleman case (2008). In casu, the Court actually acknowledges that some people can be victim of a prohibited discrimination by way of collateral damage. This line of reasoning already announces the Court’s teleological approach, acknowledging the background of systemic discrimination against Roma, and shows the Court being alert to the prejudices against and stigmatization of Roma. In this setting of systemic discrimination, it is almost impossible to draw a line between direct and indirect discrimination. The Court thus closely investigates both options of direct and indirect discrimination, while underscoring that the case concerns in any event a prohibited instance of discrimination (CHEZ, par 105). The Court highlights that ‘it is sufficient, in order for there to be direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/43, that ethnic origin determined the decision to impose the treatment’ (CHEZ, par 76). The latter can also be the case when a measure applies to an entire district, the great majority of the inhabitants of which have a particular ethnic origin (CHEZ, par 75). In this way, the Court recognizes in its discussion of this definitional element that direct discrimination is crucially about motivation, intention, and thus about a direct causal link (Maliszewska-Nienartowicz 2014, p. 41). In support of a finding of direct racial discrimination, the Court furthermore highlights the factors that point to the practice’s underlying prejudice against Roma. Firstly, the high electricity meters are only placed in districts that are predominantly inhabited by Roma (CHEZ, par 81). Secondly, the CJEU notes that the firm’s argument that this practice was instigated because Roma citizens are especially responsible for damages and illegal power consumption could indicate that the practice is based on ethnic prejudice and stereotypes (CHEZ, par 82). Thirdly, the Court emphasizes the lack of proof of these allegations about damage, and notes that the firm only relies on ‘generally known facts’ (CHEZ, par 83), again pointing to a practice based on prejudices. Finally, the Court emphasizes the ‘compulsory, widespread and lasting

92  Research handbook on minority politics in the European Union nature of the practice’, which tends to be stigmatizing towards the ‘inhabitants of that district, which is known to be lived in mainly by Bulgarian nationals of Roma origin’ (CHEZ, par 84). In the subsequent evaluation of a possible case of indirect discrimination, the Court acknowledges that a practice introduced to deal with damage and tampering with electricity meters may seem a neutral measure (CHEZ, par 106). However, this practice could result in a particular disadvantage for Roma since ‘that practice developed only in urban districts which, … are inhabited mainly by persons of Roma origin … is liable to affect persons possessing such an ethnic origin in considerably greater proportions’ (CHEZ, par 107). When evaluating the possible justification for the prima facie case of indirect racial discrimination, the Court again guides the national court to a critical approach, inter alia because race/ethnic origin is a suspect ground, triggering strict scrutiny (CHEZ, par 112). Throughout the discussion of the relevant criteria, the Court gives strong indications that there would be no reasonable and objective justification. The Court points to the need for the firm to furnish the national court with concrete proof of damage and tampering with meters by Roma, and with an explanation why the practice is still in force 25 years after it started (CHEZ, pars 116–17). The CJEU also notes that in the fight against damage and tampering, in the meantime other electricity firms have switched to other meters at normal height. As usual, the Court acknowledges that ‘in the context of proceedings concerning a preliminary reference … it is for the referring court to carry out the final assessments’ (CHEZ, par 121). Nevertheless, the CJEU, after taking into account the stigmatizing effect of the measure, the enduring nature of the measure and the importance of having access to one’s own electricity meter, itself actually ‘concludes’ that ‘it seems that it necessarily follows from the taking into account of all the foregoing criteria that the practice at issue cannot be justified within the meaning of Article 2(2)(b) of Directive 2000/43 since the disadvantages caused by the practice appear disproportionate to the objectives pursued’ (CHEZ, par 127). Contrary to the CJEU’s approach in Feryn and CHEZ, in several other judgements the CJEU has missed opportunities to enhance protection against racial discrimination. A striking example concerns the interpretation of Article 3(2) RED which excludes from the scope of application of the RED difference in treatment based on nationality, and differences in treatment related to the provisions and conditions relating to the entry into and residence of TCN in the territory of member states. As Möschel had correctly highlighted, this provision carries the danger that ‘under the cloak of immigration and nationality rules or through claims that the discriminatory treatment is based on nationality rather than race or ethnicity, a range of discriminatory practices can escape the application of the RED’ (Möschel 2019, p. 152). A similar provision in the International Convention on the Elimination of All Forms of Racial Discrimination has been severely curtailed by the supervisory practice of the treaty body (Committee on the Elimination of Racial Discrimination/C [CERD/C]). Article 1, par 3 CERD stipulates that ‘[n]othing in this Convention may be interpreted as affecting in any way the legal provisions of State Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality’. In its General Recommendation 30 concerning discrimination against non-citizens CERD/C had nevertheless stated that ‘(u)nder the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim’ (par 4). Put differently, CERD/C acknowledges that differentiations on the basis of citizenship or immigration

The Court of Justice of the European Union and ‘minorities’  93 status can still amount to prohibited (indirect) racial discrimination when no reasonable and objective justification can be put forward. Until now, the CJEU has not yet taken this route. The restrictive nature of this approach becomes especially visible when a lower national court than the one referring a preliminary question actually concludes that there is an instance of direct racial discrimination, as was the case in Huskic (2017). That case concerned the practice of a credit institution to require a customer whose driving license indicated a country of birth other than a member state of the EU or European Free Trade Association to provide additional identification in the form of a copy of the customer’s passport or residence permit. The CJEU adopted a restrictive approach stipulating that the prohibition of racial discrimination presupposes disadvantage of a particular ethnic group and not a more amorphous group of ‘non-EU citizens’ (Huskic, pars 27–31). Relatedly, the CJEU remarked that ‘a person’s country of birth cannot, in itself, justify a general presumption that the person is a member of a given ethnic group’ (Huskic, par 20). Moreover, the CJEU highlighted that the RED does not cover discrimination on grounds of nationality (Huskic, par 24). Similarly, in Kamberaj, a preliminary ruling concerning the refusal to grant a housing benefit to a long-term resident TCN, the CJEU refused to consider and apply the RED (Kamberaj, pars 48–50). This approach by the CJEU does not augur well for a significant impact of the RED on the interpretation of the Directive on Long-Term Resident TCNs (Möschel 2019, p. 155). Similarly, it has been striking that several cases concerning restrictive measures in terms of family reunification under the Family Reunification Directive (2003) have not been tested against the RED, notwithstanding the xenophobic context in which the national measures concerned had been adopted.12 Last but not least, there has been a noticeable trend in European countries to impose increasingly demanding integration requirements on TCNs. Often these measures are adopted in the context of racist calls to curtail immigration. So far, the CJEU has been critical about these measures to the extent that they would entail disproportionate measures that are actually countering the integration of the TCNs concerned.13 Strikingly, no arguments in terms of indirect racial discrimination have been explored or adjudicated. Protection Against Religious Discrimination A similar mixed picture emerges in relation to the protection against religious discrimination. Traditionally, the CJEU did not have many cases before it touched on religious themes. Prior to the adoption of Directive 2000/78 and the EU Charter of Fundamental Rights in 2000, there was actually only one case, which is de facto situated at the intersection of the freedom of religion and the prohibition of discrimination on grounds of religion. In the 1976 Prais judgement, the CJEU de facto recognized that EU institutions are bound by duties of reasonable accommodation on grounds of religion. The CJEU in casu relied on the freedom of religion being a general principle of EC law to argue that EU institutions should be responsive when candidates for particular positions indicate that they are not available for exams on particular

See inter alia: Case C-540/03 European Parliament v Council of the European Union, [2006] ECR I-5769 par 32; Case C-338/13 Marjan Noorzia v Bundesministerin für Inneres [2014] 2. 13 See inter alia: Case C-153/14 Minister van Buitenlandse Zaken v K and A [2015] EU:​C:​2015:​ 453; Case C-579/13 P and S v Commissie Sociale Zekerheid Breda and College van Burgemeester en Wethouders van de gemeente Amstelveen [2015]EU:​C:​2015:​369. 12

94  Research handbook on minority politics in the European Union days due to religious prescriptions. The Court immediately clarified that this duty to accommodate religion-inspired constraints is not absolute and depends on the applicant informing the institution in a timely fashion.14 In the meantime, Directive 2000/78/EC has generated five cases that deserve some attention from the angle of minority politics. Two cases that have arisen in relation to Directive 2000/78/ EC may not have concerned religious minorities as such. Nevertheless, the underlying theme is one that often implicates religious minorities, namely the tension between the autonomy of religious employers and the rights of individual employees. A third case concerns the identification of public paid holidays in relation to a particular religion, and two further cases focus on the controversy surrounding the wearing of headscarves at work. In Egenberger and IR the CJEU clarified two things that are relevant to gauge the extent to which the CJEU is able and willing to protect religious minorities. The inclusion of Article 17 TFEU’s prescription that the EU respects and does not prejudice the status under national law of churches and religious associations and communities in the member states had raised concerns about its possible ramifications. These concerns were triggered by the European Court of Human Rights (ECtHR) case law where the traditional jurisprudence bracketed a sizable portion of religious matters because they would concern religion–state relations about which there is no European consensus, thus justifying a broad margin of appreciation for states (Berry 2019, pp. 103–27). In its interpretation of Article 17 TFEU the CJEU has not followed that line of jurisprudence (but see infra on Article 10 EU Charter of Fundamental Rights) and has emphasized that Article 17 only exempts the actual rules on the organization of relations between a member state and its churches from compliance with EU (non-discrimination) standards. In both cases the CJEU underscored that a member state cannot exempt the employment-related decisions of religious organizations/employers from the operation of EU law.15 Secondly, the CJEU clarified that religious employers can aim to safeguard their autonomy by imposing their moral codes on their (prospective) employees, as long as the fundamental rights of the individuals concerned are not disproportionately limited. In Egenberger the CJEU scrutinized whether a particular job requirement could amount to a genuine occupational requirement, as one of the few explicit exceptions to the prohibition of religious discrimination (Article 4(2) FED). The Court evaluated carefully whether the link between the religious ethos on the one hand and the envisaged job activities on the other is sufficiently close to warrant the identification of a genuine occupational requirement (Egenberger, par 83). Similarly, in IR the CJEU emphasized that religious employers can only impose those demands of loyalty (and related sanctions) that are proportionate to the function concerned (IR, pars 50–51). Insofar as religious employers would be religious minorities, the ensuing restrictions to their autonomy seem appropriate and justified. Achatzi concerns the identification of religious holidays as officially recognized, paid holidays, an issue which tends to be sensitive for religious minorities as their holidays are seldom thus recognized. The factual setting in Achatzi is unusual in that it concerns a rule in the Austrian labour legislation, which granted three small Christian minority churches Good Friday as a paid public holiday while not extending this to the other religious communities. 14 Case C-130/75 Vivien Prais v Council of the European Communities, [1976] ECR I-1589 paras 16–19. 15 Case C-68/17 IR v JQ [2018] EU:​ C:​ 2018:​ 696 par 48; Case C-414/16 Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.[2018] EU:​C:​2018:​257 pars 56–8.

The Court of Justice of the European Union and ‘minorities’  95 The Court scrutinized this instance of direct discrimination on grounds of religion (par 51) suitably strictly, concluding that the measure did not pass the strict proportionality review that was called for (Achatzi, pars 50–60). In terms of remedy, the Court followed its line of jurisprudence that until the national legislation is suitably adapted, the national courts should level up, so that the measure is maintained for the religious minorities concerned, while being extended to the other religious communities (Achatzi, pars 79–82). This case again shows a line of reasoning of the CJEU that is promising for religious minorities in several respects. Firstly, it provides suitable protection against invidious discrimination on grounds of religion. Secondly, the CJEU accepts special measures towards religious minorities, to enable them to more fully abide by their religious prescripts, as long as these measures respect the EU non-discrimination benchmark. The two cases decided under Directive 2000/78/EC in terms of religious discrimination that undoubtedly have received most attention are the cases concerning headscarves in the employment sphere, Achbita (2016) and Bougnaoui (2017). For each of the cases the CJEU’s argumentation will be critically discussed, indicating flaws and lacunae. In Achbita a female receptionist of a firm was confronted with ‘an unwritten neutrality policy rule that employees would not wear visible signs of their political, philosophical or religious beliefs while at work’ when she wanted to wear a headscarf for religious reasons. Subsequently, the firm also adopted a written rule to this effect, and fired Achbita for not respecting that rule. When this case came before the CJEU through a preliminary reference, the Court first discusses the direct discrimination route, second the indirect discrimination one. The Court gives clear indications that no direct discrimination on grounds of religion took place, since the firm adopted a rule applying to all expressions of convictions, be it political, philosophical or religious. Nevertheless, the fact that the ‘rule’ was made explicit and put in writing after Achbita voiced the wish to wear a headscarf at work does raise questions about the alleged neutrality of the rule (Benedi Lahuerta 2016, p. 348). It was also noted that the rule, however generally formulated, appears to target religious beliefs with particular dress codes (Loenen 2017, pp. 65–6). Unfortunately, the CJEU fails to pick up on these concerns. Turning to the possible route of indirect discrimination, the CJEU acknowledges that the rule put persons adhering to a certain religion at a particular disadvantage (Achbita, par 34). According to the CJEU, Article 16 EU Charter of Fundamental Rights enshrines the freedom to conduct a business. Hence, the desire to project an image of neutrality can be a legitimate aim of a particular measure. Regarding the requirements of appropriateness and proportionality, the CJEU highlights respectively the need for the rule to be ‘genuinely pursued in a consistent and systematic manner’ (Achbita, par 40) and the need to confine the rule to employees who interact with customers (Achbita, par 43). The Court thus indicates that a firm confronted with a request to wear particular visible signs of a religion should try to accommodate employees by giving them a non-customer-facing role (Achbita, par 42). The Court’s reasoning does raise a few critical questions. Even if a certain policy is applied consistently and systematically, should there not be inherent limits to the extent to which companies can limit the enjoyment of fundamental rights, particularly the freedom to manifest one’s religion? Furthermore, can it be considered a ‘solution’ when a group that is vulnerable to discrimination is pushed out of representative positions with customer contact? This reasoning has been correctly criticized for enabling employers to act contrary to EU policies of inclusion and integration (Jolly 2017, p. 303; Vickers 2017, p. 252).

96  Research handbook on minority politics in the European Union In Bougnaoui the CJEU was faced with a more straightforward case because the contestation about the wearing of a headscarf (and the ensuing dismissal when the design engineer refused to stop wearing it) had been triggered by a customer’s wish, particularly concerning the headscarf. The national court asking a preliminary question had proceeded from the understanding that this concerned an instance of direct discrimination, and asked the CJEU whether a customer’s wish could qualify as a ‘genuine and determining occupational requirement’. The CJEU’s response is both promising and disconcerting. The Court’s confirmation that it holds a very narrow understanding of what amounts to a genuine, determining occupational requirement is certainly welcome. The CJEU highlights Recital 23 of Directive 2000/78’s central message that ‘only in very limited circumstances a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement’ (Bougnaoui, par 38) and explicitly rules out an employer’s willingness to take account of particular wishes of a customer (Bougnaoui, par 40). The Court confirms Achbita’s ruling that when a prohibition to wear religious clothing stems from a more general rule, prohibiting all visible signs of any convictions, this needs to be assessed as a case of indirect discrimination. Unfortunately, it merely refers to the criteria that it has outlined in Achbita, without providing further guidance to the national courts on how to assess the proportionality of neutrality policies (Bougnaoui, par 38 32–3). This lack of guidance is particularly problematic in the current setting of rising Islamophobia in Europe (Howard 2018, pp. 71–3) and compromises a proper protection of religious minorities.

THE FREEDOM OF RELIGION As was highlighted above in the discussion of several cases under Directive 2000/78/EC, the CJEU has adopted a promising approach in that it has not used Article 17 TFEU’s prescription to respect national law status of religious communities to leave states by way of baseline considerable leeway (margin of appreciation) in religious matters. Nevertheless, the two headscarf cases triggered critical comments about the Court’s lack of sufficient attention for latent Islamophobia, thus arguably not providing proper protection. The context of latent Islamophobia requires further discussion concerning three CJEU cases on religious slaughter. More disconcertingly, the Court has nevertheless in one of the latter cases confirmed and adopted the ECtHR’s grant of a broad margin of appreciation in religious matters (decisions whether a limitation of the right to manifest religion is necessary) because of the lack of European consensus. In the latter preliminary ruling the CJEU also appears to take a stance in matters of theological doctrine, which are not for Courts to engage in (Tribe 1998, p. 1236). In Liga van Moskeeën (C-426/16, 2018), a preliminary question reached the CJEU on the validity of Regulation No. 1099/2009 in view of its alleged non-compliance with the freedom of religion enshrined in Article 10 EU Charter of Fundamental Rights and Article 13 TFEU. In the period around the Muslim Feast of Sacrifice there is traditionally a peak in demand for ritually slaughtered meat. Before the said regulation the Flemish regional minister used to allow the operation of temporary slaughterhouses to accommodate this peak in demand. As Article 4(4) of the regulation requires that ritual slaughter without stunning ‘at all times’ takes place in an approved slaughterhouse, respecting the technical requirements enumerated in Regulation No. 853/2004, the Flemish regional minister no longer allowed these temporary slaughterhouses (Liga van Moskeeën, pars 17–19). The strict approach of Regulation

The Court of Justice of the European Union and ‘minorities’  97 1099/2009 entailed that several Muslims in the Flemish region were unable to obtain ritually slaughtered meat during the Feast of Sacrifice, resulting in, according to the applicants, a violation of the freedom of religion. The CJEU accepts that the question raised indeed falls into the scope of application of the freedom to manifest one’s religion. However, the combination of a very narrow understanding of what constitutes an interference with the freedom to manifest one’s religion and the adoption of a formal equality approach results in another failure of the Court to acknowledge and factor in its analysis an Islamophobic context. The Court starts by arguing that the regulation merely sets a technical framework within which it actually enables ritual slaughter (ibid., pars 56–9) in the sense that Article 4(4) of the regulation allows ritual slaughter as long as some requirements aimed at animal welfare and food hygiene/human health are met. Furthermore, the regulation applies to any method of slaughter of animals within the EU: it applies ‘in a general and neutral manner to any party that organizes slaughtering of animals and applies irrespective of any connection with a particular religion’ (Liga van Moskeeën, pars 60–61). According to the CJEU, there would not even be an interference with the freedom to manifest one’s religion, while the regulation concerns in a non-discriminatory manner all producers of meat in the EU. The Court’s reasoning is problematic in several respects. Firstly, it is not because a measure is not intended to restrict the freedom of religion that it would not do so. When investigating the proportionality of the restriction concerned, it is striking that the Belgian court itself had indicated that the strict rule in the regulation would seem to go beyond what is required for animal welfare since Belgian temporary slaughterhouses reduce animal suffering and ensure public health sufficiently (Liga van Moskeeën, par 24). Whereas the CJEU in the preliminary ruling procedure normally leaves the application of an EU rule to the facts of the case to the national court, here it takes a firm stance that only in slaughterhouses respecting all technical requirements would it be possible to minimize animal suffering (Liga van Moskeeën, par 65). Secondly, the CJEU tries to minimize the impact of the provision concerned when it highlights that the problem was not inherent in the regulation but confined to a particular region in a particular member state in a very short period of time (Liga van Moskeeën, pars 78–80). However, this line of reasoning glosses over important contextual matters, that arguably should color the (proportionality) assessment. The peak demand for ritually slaughtered meat during the Muslim Feast of Sacrifice is well known to the authorities, both at the level of the EU and the member states. Is the lack of accommodation of this peak demand not at odds with the duty to ensure the effective enjoyment of the freedom to manifest one’s religion, particularly of a vulnerable minority, in relation to one of its most significant religious feasts? Thirdly, the CJEU further seeks to ‘minimize’ the impact of the regulation by the adoption of a formal equality approach, namely emphasizing that the requirement in the regulation ‘applies in a general and neutral manner to any party that organizes slaughtering of animals and applies irrespective of any connection with a particular religion and thereby concerns in a non-discriminatory manner all producers of meat in the EU’ (Liga van Moskeeën, pars 60–61). This formal equality approach fails to capture possible instances of indirect discrimination, when at first sight neutral measures have a disproportionate impact on a particular group without reasonable and objective justification (Tobler 2005). This omission is particularly striking since the CJEU has developed a long and steady line of jurisprudence on indirect discrimination, reflecting a keen understanding of this type of discrimination (Belavusau and Henrard 2019a, p. 617). As the Court does not identify a disproportionate impact in casu, it

98  Research handbook on minority politics in the European Union also avoids having to get into the evaluation of the justification. Arguably, there are numerous pointers that no such reasonable and objective justification would be available: the exercise of a fundamental right was profoundly limited, while both the EU and the national authorities were well aware of the peak in demand and related capacity issues. Also in this instance (like in the case of Achbita), it is important to be aware of indications of Islamophobia playing in the background, and thus of a possible instance of direct discrimination. As the neutral rules on slaughter concerned were not only pushed by animal activists but also by right-wing nationalists, the critical question has been raised whether these stricter slaughter rules should not be considered as bigotry under the guise of animal protection (Howard 2019, p. 804). The regulation of ritual slaughter in Belgium generated another preliminary ruling from the CJEU, in which the CJEU clarified the extent of the discretion left to member states to require reversible stunning in the context of ritual slaughter. In C 336/19, Centraal Israëlitisch Consistorie van België and Others, the CJEU responded to questions from the Belgian Constitutional Court about the interplay of the EU’s commitment towards animal welfare on the one hand and respecting the freedom of religion in the context of (ritual) slaughter on the other. The Court correctly highlights that Regulation 1099/2009 stipulates that animals by way of principle need to be stunned prior to being slaughtered (Article 4(1), par 41) while Article 4(4) does provide for a derogation for ritual slaughter, in the sense that the principle of prior stunning would not apply (par 43). The latter derogation would be aimed at respecting the freedom of religion, enshrined in Article 10 EU Charter of Fundamental Rights (pars 43–4). Article 26, par 1 and par 2(c) of the same regulation do grant – in light of the subsidiarity principle – some leeway to member states to ensure more extensive protection of animals at the time of killing, in particular in relation to religious slaughter (par 45). The CJEU underscores that member states using this leeway still need to respect the freedom of religion as enshrined in Article 10 EU Charter of Fundamental Rights (pars 48–9). Put differently, the case before the CJEU concerns a member state that tried to strike the balance in relation to ritual slaughter more in favor of the protection of animals, without violating the freedom of religion, by making reversible stunning obligatory. The CJEU is willing to identify a limitation with the applicants’ freedom of religion as the obligation to stun animals prior to killing, even when it is reversible, ‘appears to be incompatible with certain Jewish and Islamic religious precepts’ (pars 53–5). The CJEU then recalls that Article 52(3) Charter of Fundamental Rights identifies the European Convention on Human Rights as the minimum threshold of protection for ‘corresponding rights’ (pars 56–7) and goes on to apply the criteria for limitations to the freedom of religion (Article 52(1) Charter), having regard to the relevant ECtHR case law. The CJEU correctly establishes that the limitation concerned is provided by Belgian law (Centraal Israëlitisch Consistorie, par 60), and that the limitation pursues an objective of general interest, as the CJEU case law and Article 13 TFEU identify animal welfare as such (par 63). Unfortunately, in the assessment of ‘respect of the essence of the right’, necessity and proportionality of the limitation, the CJEU engages in some problematic reasoning, thus raising questions about the overall conclusion that a fair balance would have been struck (par 81). Firstly, the CJEU adopts a stance in relation to a theological matter, where it argues that the essence of the freedom of religion would be respected since ‘the interference … is limited to one aspect of the specific ritual act of slaughter, and that act of slaughter is not, by contrast, prohibited as such’ (par 61). This reasoning denies the theological stance of the applicants, and a ‘significant body of adherents to both the Muslim and Jewish faiths that any stunning prior

The Court of Justice of the European Union and ‘minorities’  99 to the killing of the animal would disregard an essential aspect of a necessary religious rite’ (Opinion AG Hogan in C 336/19, par 47). Secondly, the CJEU chooses to follow the regularly criticized line of jurisprudence of the ECtHR that grants states a broad margin of appreciation in ‘matters of general policy, such as the determination of relations between the State and religions’ about which there is no European consensus (par 67). The CJEU highlights that Articles 4 and 26 of the Regulation confirm the lack of consensus on how to approach ritual slaughter, thus ending with a derogation from the duty of prior stunning for ritual slaughter, while allowing a certain flexibility to member states ‘in the interest of the animals and provided that it does not affect the functioning of the internal market’ (par 70). Consequently, member states would have a ‘broad discretion … for the purposes of striking a fair balance between, on the one hand, the protection of the welfare of animals when they are killed and, on the other, respect for the freedom to manifest religion’ (par 71). The Court then concludes that the limitation could be considered ‘necessary’.16 Thirdly, in its assessment of the proportionality requirement the CJEU highlights not only that animal welfare has increasingly been valued in European societies (par 77), but also that (in line with Article 26, par 4 of the regulation) the circulation of meat obtained through ritual slaughter is not prohibited. The Court also returns to the theological argument that reversible stunning would not be so bad because it would still allow the animal to die from bleeding out only (Centraal Israëlitisch Consistorie, par 75). The Court thus purports to decide what the core prescripts of a particular religion are, which is not for courts to engage in. Furthermore, the CJEU’s reasoning seems to pitch the protection of the internal market at a higher level than the freedom of religion, while animal welfare and fundamental rights are considered of equal value. Even if prior stunning is the optimal means of reducing animals’ suffering at the time of killing (par 72), that does not mean that other means of minimizing the impairment of animal welfare are not ‘good enough’, particularly in view of the weight attached to the freedom of religion as fundamental right (par 57). The regulation of ritual slaughter has come a third time before the CJEU in relation to the application of the regulation on organic food labelling, more particularly a contestation before French courts regarding whether or not ritually slaughtered food could obtain the organic food label. As AG Wahl underscores in C-497/17 (OABA 2019), the regulation on organic food labelling does not provide a requirement on stunning, while it contains an exhaustive enumeration of conditions that need to be met in order for meat to be allowed to carry the organic food label (OABA, Opinion of AG Wahl, pars 74–108). Furthermore, the requirement concerning animal welfare does not exclude ritual slaughter, since Regulation 1099/2009 points to two different regimes of animal welfare protection, confirming the possible reconciliation of animal welfare with ritual slaughter (OABA, par 81). This line of reasoning also conforms to the wording of both Article 13 TFEU and Regulation 1009/2009, which highlights that notwithstanding the importance attached to animal welfare, the freedom of religion should not be disproportionately limited in the process. Put differently, these provisions arguably indicate that animal welfare does not trump the freedom of religion, which is after all a fundamental human right (Hehemann 2019, pp. 301–5). Somehow, the CJEU takes a different approach, The argument to link the margin of appreciation to the ‘necessity’ and not (also) to the proportionality requirement is remarkable as the ECtHR has devised the margin of appreciation in relation to the latter. 16

100  Research handbook on minority politics in the European Union namely one that does attach predominant weight to animal welfare, highlighting the importance and weight of the requirement of ‘high animal welfare standards’ for organic production (OABA, pars 36–46) and stunning prior to death (OABA, par 47). The Court argues that because ritual slaughter cannot guarantee that the suffering of animals is kept to a minimum, the organic label should not be accorded when meat is ritually slaughtered (OABA, pars 51–2). Unfortunately, this type of reasoning not only provides a most unfortunate stepping stone ‘to suppress the free exercise of religion under guise of protection of animal welfare’ (Hehemann, 2019, p. 305), but also stigmatizes ritual slaughter. In this case the CJEU can be criticized for more than ignoring the Islamophobic context in which these rules were made: its reasoning runs the risk of further fueling anti-Islam stereotypes. Overall, the CJEU jurisprudence of relevance to religious themes (prohibition of religious discrimination and freedom to manifest one’s religion) includes several promising lines of jurisprudence, clearly indicating that states’ discretion is limited in the sense that states cannot keep the religious sphere out of reach of EU standards. At the same time, the four cases dealing with particular religious manifestations that are linked to Islam do show a CJEU that fails to acknowledge the Islamophobic context in its analysis and consequently fails to properly scrutinize the neutrality of seemingly neutral rules and to identify positive state obligations to counter (hidden) Islamophobia. Furthermore, the CJEU’s uncritical adoption of the ECtHR’s line of jurisprudence granting states a broad margin of appreciation concerning relations between state and religion, and its adoption of particular theological stances, are cause for concern.

LINGUISTIC RIGHTS AND LINGUISTIC MINORITIES When considering linguistic rights, it is important to underscore that language policy has remained a competence of the member states with the EU’s competence in relation to language being limited to cultural or educational competences, and even then restricted to recommendations and incentive measures, towards support of member states’ actions (Articles 6, 167 TFEU).17 Admittedly, Article 22 EU Charter of Fundamental Rights prescribes that ‘The European Union shall respect cultural, religious and linguistic diversity’. Nevertheless, the Charter does not change the balance of competences. It remains remarkable that when having regard to the various articles that require the EU to respect cultural diversity, including the guiding principles mentioned in the explanatory notes to Article 22 EU Charter of Fundamental Rights, the framing of these articles is such that it encompasses not only diversity between member states, but also within (Article 3, 3 TEU and Article 167(4) TFEU). Notwithstanding the fact that language policy remains a typical state competence, member states’ discretion is circumscribed by the common market frame and the institution of EU citizenship, more particularly the centrality of the right to equal treatment of EU citizens. Two types of cases merit further discussion in this respect: cases that clarify the limited extent to which states can impose linguistic requirements for particular positions (possibly obstructing 17 It has been argued that Article 167, par 4 TFEU could function as a mainstreaming clause since it stipulates that ‘The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.’ See also Toggenburg 2001a, p. 216.

The Court of Justice of the European Union and ‘minorities’  101 the freedom of movement of workers) on the one hand, and cases concerning the use of minority languages before national courts on the other. Regarding the former, the need to protect a national language (with a de facto minority status; Shuibhne 2002, pp. 93–4) may make it legitimate to make access to particular jobs dependent on having achieved a certain proficiency in the language. Nevertheless, the CJEU has made clear that the ensuing limitations to free movement rights, and related (indirect) discrimination against migrant EU citizens, are strictly scrutinized, in order to safeguard the fundamental cornerstones of the internal market. Put differently, these measures aimed at protecting a particular linguistic diversity should be suitable and reasonable in relation to the job concerned and should not disproportionately curtail the free movement rights of EU citizens (De Witte 2008, pp. 180–81). The famous Groener judgement (Case C-379/87, 1989) confirmed the CJEU’s acceptance of the national desire to protect a particular language as a legitimate aim to impose linguistic requirements as occupational requirements, restricting the free movement rights, while signaling a strict review of the proportionality of any ensuing linguistic requirements (Shuibhne 2002, pp. 71–103). Groener was a Dutch national who had been teaching in Ireland for several years. In order to become appointed to a permanent lecturing post, she had to pass an oral Irish-language examination, even though she would not have to teach through the medium of Irish. The Irish government claimed that the linguistic requirement was required by the nature of the position,18 related to the constitutional status of the Irish language and the government policies to promote its knowledge and use on the one hand, and teachers’ essential role in creating a supportive environment for the use of the national language also outside formal classes on the other (Shuibhne 2002, p. 83). In Groener the CJEU followed the argument of the Irish government that the requirement for lecturers to have a certain proficiency in the Irish language could be justified by reason of the nature of the post to be filled, and would thus not be discriminatory (par 23). By way of obiter dictum, the Court indicated that ‘the principle of non-discrimination precludes the imposition of any requirement that the linguistic knowledge in question must have been acquired within the national territory’. The latter problem of a discriminatory requirement was exactly at issue in Angonese (Case C-281/98, 2000), concerning the requirement of proficiency in both Italian and German by a private bank in the bilingual region of Bolzano in Italy. While the proficiency as such was not contested, Angonese complained that this proficiency could only be proven by an official certificate issued by a particular examination center in Bolzano. The CJEU confirmed the reasoning it had announced in Groener and held that ‘the fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular by equivalent qualifications obtained in other Member States, must be considered disproportionate’ and thus prohibited by the free movement of workers within the EU (Angonese, pars 44–6). The CJEU thus safeguards the right to substantive equal treatment of migrant EU citizens regarding the evaluation of their linguistic proficiencies. National rules on the use of minority languages before national courts have resulted in several cases before the CJEU. Over time and overall, these cases clarify that rights to use a particular language in any type of judicial proceedings, which a member state grants to its linguistic minorities, must in principle be accessible for nationals of another member state. 18 An exception provided for in Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L 257/2.

102  Research handbook on minority politics in the European Union This implication of the right to equal treatment of EU citizens is regardless of the status of the language in the other member state, the proficiency in other languages of the EU citizen, and whether the EU citizen merely passes through or is actually residing in the member state concerned (Peers 2014). The first case was decided in 1985 in a preliminary ruling from Belgium concerning the use of the German language before a criminal court in the territory of the German-speaking community in Belgium (Case C-137/84 1985). Robert Mutsch was a Luxembourg national, working and residing in the territory concerned. Before the Belgian Court of Appeal, a discussion took place whether it would not be sufficient to work with interpreters and have the case conducted in French. The CJEU underscored that the right to use a certain language in court proceedings qualifies as a social advantage that needs to be enjoyed by migrant workers from another member state under the same conditions as the national workers (par 17). Put differently, if a national of a member state is allowed to use a minority language before (certain) courts, this possibility should also be available for migrant workers of other member states. The underlying principles may be free movement of workers and the right to equal treatment; in the end it concerns the enjoyment of minority-language rights for migrating EU citizens. This equal treatment line of reasoning was further extended in the Bickel–Franz cases (Case C-274/96 1998), to also benefit EU citizens making use of their freedom of movement – as lorry driver driving through and as tourist. Both criminal cases took place in the bilingual Italian-German region of Bolzano in Italy, where Italian nationals resident in that region are entitled to opt for proceedings in German. The defendants also wanted to benefit from this option, as they were Austrian and German nationals respectively. As the defendants were not migrant workers, these joint cases invited the CJEU to reflect on the implications of EU citizenship and the related principle of equal treatment. The CJEU followed the Advocate General’s argument that ‘Criminal proceedings against a Community citizen based on alleged facts which occurred while that citizen exercised his right to free movement come within the scope of application of the Treaty and are therefore subject to the prohibition of discrimination on grounds of nationality’ (par 15). While it may seem far-fetched to accord minority status to people travelling through a country, the Human Rights Committee has taken that position in its General Comment on the general minority rights provision Article 27 ICCPR (International Covenant on Civil and Political Rights).19 The CJEU’s reasoning in Bickel–Franz does provide insights in the extent to which the CJEU allows member states to develop minority language policies. Firstly, the CJEU explicitly holds that the aim of a member state to protect an ethno-cultural minority may constitute a legitimate aim which is unrelated to nationality. Secondly, the CJEU confirms that it will adopt a strict proportionality review in order to protect Community law, in casu the right to equal treatment of EU citizens. In this respect, it follows the Advocate General’s reasoning that ‘the denial of the advantage to visitors from other Member States, is neither a necessary nor an appropriate means of achieving that aim’ (Opinion AG Jacobs in Bickel and Franz, par 40). Finally, in the Rüffer case (Case C-322/13 2014), the CJEU emphasized that the reasoning developed in Bickel–Franz on the possibility – on the basis of EU citizenship and the right to 19 UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities) par 5.2: ‘Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.’

The Court of Justice of the European Union and ‘minorities’  103 equal treatment – of having court proceedings conducted in a minority language on the same level as nationals of the member state concerned is equally applicable to civil proceedings (Rüffer, par 20). Overall, the CJEU’s case law of relevance to linguistic minorities20 reveals that the CJEU does recognize EU member states’ ability to develop linguistic minority regimes, but it remains primarily concerned with safeguarding free movement rights, EU citizenship and the related right to equal treatment. Put differently, EU law mainly acts as a limit on national minority policies, in the sense that the latter need to comply with the community benchmarks of non-discrimination and proportionality. To some extent, the CJEU thus ensures minority linguistic rights of migrant workers and migrant EU citizens in the sense that they can benefit from linguistic minority regimes. Even so, the CJEU’s reasoning clearly reveals that it is not concerned with protecting linguistic identities as such, but rather proceeds from the perspective of the effective enjoyment of free movement rights as cornerstones of the EU.

THE RIGHT TO RESPECT FOR IDENTITY/WAYS OF LIFE AND RELATED CUSTOMS AND THE EU’S DUTY TO RESPECT NATIONAL CONSTITUTIONAL IDENTITIES Several interesting cases of relevance to minorities’ right to respect for their distinct identity can be flagged as also providing insights into minority politics, and the related balancing of interests, before the CJEU. Several of these cases are related to the national identity clause that was added with the Treaty of Maastricht and which implied a limit to the converging trend towards higher levels of integration (Cloots 2015). The formulation of the national identity clause has steadily become more elaborate, and the version in the Lisbon Treaty (Article 4(2) TEU) requires the EU to respect the ‘equality of the Member States’, as well as their national identities ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ (emphasis added).21 20 Admittedly, there are a few cases on the recognition of names and surnames that concern the spelling of names, and thus are also relevant from the perspective of linguistic minorities. These cases are discussed below, together with other cases concerning surnames (the construction of double names, including titles of nobility) in terms of Article 4(2) TEU’s recognition of the EU’s duty to respect the national identities of the member states. 21 Whereas Article 4(2) TEU identifies an EU obligation to respect national constitutional grants of autonomy to particular regions of the Member States, at times the EU’s external actions are circumscribed by the right to self-determinations of peoples. Since the dividing line between ‘minorities’ and ‘peoples’ is everything but clear-cut, it seems relevant to include in a chapter on minority politics at the CJEU a reference to judgements relying on a people’s right to self-determination. The CJEU has pronounced two judgements on the validity of the conclusion of international agreements between the EU and Morocco, to the extent that these agreements would be applicable to the territory of the Western Sahara. The latter territory is on the list of non-self-governing territories (Article 73 UN Charter) to be decolonized in accordance with the right of self-determination, in casu of the indigenous Sahrawi people. Accordingly, the UN has called numerous times on Morocco to transfer powers to the Sahrawi people, and has recognized the national liberalization movement Polisario as the legitimate representative of the Sahrawi people. In the two cases concerned, the CJEU decided that international agreements with Morocco were not legally concluded in so far as they would apply to the territory of the Western Sahara, because this would be incompatible with the right to self-determination of the Sahrawi people, an erga omnes right of international law (Case C-104/16 P Council of the European Union

104  Research handbook on minority politics in the European Union As the following analysis will demonstrate, the constitutional national identity can have religious, linguistic and/or ethnic components. Regarding the religious dimension of national identity, the arguments before the CJEU have centered more around Article 17 TFEU’s proclamation that the ‘EU respects and does not prejudice the status under national law of churches and religious associations and communities in the member states’. Several of the cases on religious themes discussed above have revealed and confirmed that the CJEU’s interpretation of Article 17 TFEU limits its scope and certainly does not provide an exemption from the duty to comply with EU (non-discrimination) norms for all religious matters. Regarding the linguistic component of ‘national identity’, several cases concerning language, linguistic rights and the spelling of surnames22 come to mind. For some of these, reference can be made to preceding analysis; others will be discussed here. Finally, a case concerning the construction of surnames can be related to the ethnic dimension of the national identity of member states, and at the same time the protection of the identity of an ethnic minority with a migrant background. Continuing on the latter line of reasoning, some cases concerning the recognition by a member state of the kafala system can be related to the recognition of the ethnic identity (way of life) of the minority with a particular migrant (TCN) background, which requires the member state concerned to adjust its legal categories and related ‘national ways and traditions’. The duty to protect national constitutional identities is primarily aimed at the protection of state ‘identity’ policies. At times this could be the protection of a national minority protection policy that would require exceptions to some of the fundamental freedoms of the EU. The Groener case, as already discussed above, predates the Maastricht Treaty but is actually the first case where ‘national identity’ arguments were explicitly entertained by the CJEU. A member state can also perceive its measures to protect particular linguistic minorities as an expression of national identity that it cannot be expected to make accessible to all EU citizens at large. The preceding discussion on linguistic rights has clarified that the CJEU is unlikely to follow this line of reasoning: it is willing to accept a national desire to protect a linguistic minority as a legitimate aim that can justify a limitation on free movement rights. At the same time, the CJEU has underscored that it does not accept the exclusion of EU migrant citizens

v Front Polisario, par 92). In Front Polisario, the CJEU considered the validity of the EU–Morocco Association Agreement Association Agreement and in Case C-266/16 Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs the Morocco–EU Fisheries Partnership Agreement. In the former, the CJEU held that the EU–Morocco Association Agreement was not applicable to the territory of Western Sahara (par 92). In the latter, the CJEU concluded that these agreements were not ‘applicable to the waters adjacent to the territory of Western Sahara’ (par 85). The CJEU thus shows itself to be keen to protect the rights of the Sahrawi people, by limiting the validity of EU international agreements with Morocco accordingly. 22 Regarding surnames and the recognition of surnames of another member state, the CJEU has also pronounced on a matter which cannot be linked to questions of ethnic, religious and linguistic identity, more particularly the limitation on references to nobility in surnames. At times a strong focus on equality as national constitutional identity could go hand in hand with prohibitions to have former titles of nobility in one’s surname, also when this affects the recognition of surnames given in other member states. With due regard to Article 4(2) TFEU, the CJEU has accepted that related changes to surnames can constitute an acceptable public policy derogation, justifying the interference with EU free movement rights, insofar as the interference is necessary and proportionate to this legitimate aim. See Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, pars 91–3; Case C-438/14 Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe e Zentraler Juristischer Dienst der Stadt Karlsruhe, par 73.

The Court of Justice of the European Union and ‘minorities’  105 and travelling EU citizens from such linguistic benefits because this exclusion would neither be necessary nor appropriate to achieve that legitimate aim. States could also try to shield (maintain) a policy that (indirectly) sidelines minority language, culture and/or religion, by strengthening the dominant norm. This could be argued in some of the cases concerning the spelling of surnames.23 In Runevič-Vardyn (Case C-391/09, 2011), the CJEU had to pronounce a preliminary ruling concerning the Lithuanian rules for the spelling of names in relation to Polish names, more particularly affecting a Lithuanian national belonging to the Polish minority and a Polish national as visible on their Lithuanian marriage certificate. The certificate did not include the Polish diacritical marks for either name nor the use of ‘W’ for the Lithuanian national. In their case before the Lithuanian courts, the applicants argued that this refusal to spell their names in the Polish way interfered with their EU free movement rights. In its preliminary ruling the CJEU confirmed that the national rules denying a uniform spelling of the surname could constitute a restriction on the free movement rights conferred by Article 21 TFEU (Runevič-Vardyn, pars 15–28, 66–82, notably par 78, 82). The CJEU’s assessment of the justification links back to the Groener case and the argument about the link between national language and national identity and to Article 4(2) TFEU (Runevič-Vardyn, par 84). The national linguistic rules were thus accepted as legitimate objectives that can justify interferences with rights recognized in EU law (ibid., pars 85–7). Whether or not the limitation is justified then depends on the national court’s assessment of the proportionality of the measure concerned. The CJEU does highlight as relevant for the proportionality check the inconsistency in the rules that allowed the ‘W’ for the Polish national’s name in the Lithuanian marriage certificate, but not for the Lithuanian national, which would point to a lack of proportionality (ibid., pars 91–3). Clearly, the Court’s reasoning is not really concerned with the protection of the linguistic identity of minorities, but does imply restrictions on assimilationist norms, insofar as these norms would entail disproportionate interferences with the EU’s free movement rights. Put differently, the protection of linguistic minority rights happens as a ‘collateral benefit’ to the CJEU’s overarching goal of securing the internal market and compliance with EU law more generally. Similarly, and turning to a more ‘ethnic identity dimension’, in Garcia Avello (C-148/02, 2003) the CJEU confirmed the right of Belgian-Spanish dual national minors, who are legally resident in Belgium, to have recognized in Belgium their compound surname in line with the Hispanic tradition. The Court relied in its assessment on the status of EU citizens, and the related prohibition of discrimination on grounds of nationality and free movement rights (ibid., pars 28, 36, 37, 45). To some extent, this case pitches the national tradition (identity) of

At times cases on the spelling of surnames do not contain references to the national identity clause that was enshrined since the Treaty of Maastricht, while the national rules regarding spelling of surnames still can be considered to be aimed at making minority cultures invisible (thus protecting the national identity). Case C-168/91 Christos Konstantinidis v Stadt Altensteig - Standesamt and Landratsamt Calw - Ordnungsamt, [1993] ECR I-1191 is a case on point. That case concerned a Greek national who had established himself in Germany as self-employed and was confronted with a transliteration of his Greek name which was not in line with the Latin transliteration in his passport. The CJEU pointed out that member states are not allowed to transliterate a surname of a national of another member state who makes use of his freedom of establishment when this transliteration distorts its pronunciation and could thus create the risk of confusion with clients. This would amount to a prohibited discrimination on grounds of nationality (par 17). 23

106  Research handbook on minority politics in the European Union Belgium against the national tradition (identity) of Spain. The CJEU’s reasoning confirms that in the end, it focuses on the optimal protection of the internal market, related free movement and residence rights, and the underlying prohibition of discrimination on grounds of nationality. In the process, the minority with a migrant background sees – by way of collateral benefit – its ethnic identity, as related to traditions concerning the passing of the surname through compound surnames, protected. Finally, and also of relevance for the protection of the ethnic identity of minorities with a particular migrant background, is the extent to which the CJEU is ready to oblige member states to accept the consequences of a kafala adoption by an EU citizen (in terms of entry and residence rights of the adoptee). Kafala is an institution under Islamic law which may not establish a formal family tie, but does reflect an undertaking to ensure the welfare, education and overall protection of children who no longer have family to turn to (Assim and Sloth-Nielsen 2014, p. 322). In SM v Entry Clearance Officer, UK Visa Section (Case C-129/18 2019, p. 248), a preliminary ruling of 26 March 2019, the CJEU did refuse to recognize a kafala adoptee as a direct descendant (of an EU citizen, in terms of Directive 2004/38). At the same time, the CJEU alerted the national authorities to their duties in terms of fundamental rights, by highlighting a possibility for the national authorities ‘to facilitate the entry and residence of such a child’ considering their duty to respect family life and to take into account the best interests of the child concerned (ibid., par 73). Indeed, when an in-depth assessment demonstrates that the EU citizen and the child lead a genuine family life and the child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State. (ibid.)

Admittedly, facilitating entry of kafala adoptees in EU member states is not bound to negatively impact EU’s core concern with safeguarding the internal market, while it is in line with the increasing prominence given to fundamental rights in the EU legal order.24

CONCLUSION The preceding analysis of the CJEU’s jurisprudence of relevance to minorities has revealed a rather mixed picture measured against the interrelated benchmarks of equality, identity and participation. Indeed, all of the cases confirm how questions of substantive equal access and equal recognition in terms of particular identity markers can affect minorities’ full and equal participation in society. Notwithstanding the principle of conferral, human rights has increasingly been mainstreamed throughout EU law, not least because the CJEU early on recognized fundamental rights as a general principle of EU law that needs to be respected by EU institutions and 24 The CJEU follows the position taken by the ECtHR, as this Court also held that where the existence of a family tie has been established, contracting states are obliged to enable that tie to be developed and to establish legal safeguards that render possible the child’s integration in his family: ECtHR, Harroudj v France, par 40, 41; Chbihi Loudoudi and Others v Belgium, pars 88, 89.

The Court of Justice of the European Union and ‘minorities’  107 member states when operating in the scope of application of EU law. The case law analyzed here confirms the expanding role of the prohibition of discrimination and human rights in EU law and the positive implications thereof for the protection of persons belonging to minorities. At the same time, the preceding discussion also showed that when adjudicating human rights claims, the CJEU tends to be guided by the market integration model and the related safeguarding of the free movement rights, in the sense that human rights are protected insofar as they are seen to contribute to market integration, or at least do not hinder or constrain the internal market. The former makes the protection of minorities rather a collateral benefit of the strong protection of free movement rights. The latter confirms the CJEU’s willingness to constrain national policy making and the policies and practices of firms in order to protect fundamental rights (of persons belonging to minorities). Even then, the CJEU at times seems too easily swayed by economic concerns and/or the concern to respect the national constitutional identities of the member states. Overall, notwithstanding the several strands of reasoning in the CJEU jurisprudence that are undoubtedly favorable to the protection of minorities, in several respects the CJEU has fallen short of giving proper weight to fundamental rights of persons belonging to minorities. Given the heightened importance of fundamental rights to the EU project, and particularly the recognition that respect for minority rights is a foundational value of the EU, the CJEU is called upon to go the extra mile.

REFERENCES Alston, Philip, and Joseph Weiler, ‘An Ever-Closer Union in Need of a Human Rights Policy: The European Union and Human Rights’ in Philip Alston (ed.), The EU and Human Rights (OUP 1999). Assim, Usang, and Julia Sloth-Nielsen, ‘Islamic Kafalah as an Alternative Care Option for Children Deprived of a Family Environment’ (2014) 14 African Human Rights Law Journal 322. Augenstein, Daniel, ‘Disagreement – Commonality – Autonomy: EU Fundamental Rights in the Internal Market’ (2012–13) 15 Cambridge Yearbook of European Legal Studies 1. Belavusau, Uladzislau, and Kristin Henrard, ‘A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives’ (2019a) 20 German Law Journal 614. Belavusau, Uladzislau, and Kristin Henrard, ‘The Impact of the 2000 Equality Directives on EU Anti-Discrimination Law: Achievements and Pitfalls’ in Uladzislau Belavusau and Kristin Henrard (eds), EU Anti-Discrimination Law Beyond Gender (Hart 2019b). Bell, Mark, Anti-Discrimination Law and the European Union (OUP 2002). Benedi Lahuerta, Sara, ‘Taking EU Equality Law to the Next Level: In Search of Coherence’ (2016) 7(3) European Labour Law Journal 348. Berry, Stephanie E., ‘Avoiding Scrutiny? The Margin of Appreciation and Religious Freedom’ in Jeroen Temperman, T. Jeremy Gunn and Malcolm D. Evans (eds), The European Court of Human Rights and the Freedom of Religion or Belief (Brill 2019). Capotorti, Francesco, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (1979) UN Doc E/CN.4/Sub.2/384/Rev.1. Cloots, Elke, National Identities in EU Law (OUP 2015). Craufurd-Smith, Rachael, ‘Article 22’ in Steve Peers et al. (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014). De Boer, Nik, ‘Fundamental Rights and the EU Internal Market: Just How Fundamental are the EU Treaty Freedoms? A Normative Enquiry Based on John Rawls’ Political Philosophy’ (2013) 9(1) Utrecht Law Review 148. De Burca, Gráinne, ‘After The EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20 Maastricht Journal of European and Comparative Law 168.

108  Research handbook on minority politics in the European Union De Schutter, Olivier, ‘Mainstreaming Human Rights in the European Union’ in Philip Alston and Olivier de Schutter (eds), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Hart 2005). De Witte, Bruno, ‘Balancing of Economic Law and Human Rights by the European Court of Justice’ in Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds), Human Rights in International Investment Law and Arbitration (OUP 2009). De Witte, Bruno, ‘Protection of Linguistic Diversity through Provisions of the EU Charter other than Article 22’ in Xabier Arzoz (ed.), Respecting Linguistic Diversity in the EU (John Benjamins Publishing 2008). Douglas-Scott, Sionaidh, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 645. Eide, Asbjørn, ‘Rights of Indigenous Peoples: Achievements in International Law During the Last Quarter of a Century’ in D.M. Curtin and André Nollkaemper (eds), Netherlands Yearbook of International Law 2006 (CUP 2008). European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A Union of Equality – EU Anti-Racism Action Plan 2020–2025’, 18.9.2020 COM(2020) 565 final. European Commission, ‘Joint Report on the Application of Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin and of Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation’ COM(2014) 2 final. Goldschmidt, Jenny, ‘Reasonable Accommodation in EU Equality Law in a Broader Perspective’ (2007) 8 ERA Forum 39. Griffin, James, On Human Rights (OUP 2008). Hehemann, Lena, ‘Religious Slaughtering and Organic Labels: Œuvre d’assistance aux bêtes d’abattoirs’ (2019) 4(1) European Papers 297. Henrard, Kristin, ‘The Added Value of the Framework Convention for the Protection of National Minorities: The Two Pillars of an Adequate System of Minority Protection Revisited’ in Annelies Verstichel et al. (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Intersentia 2008). Hölscheidt, Sven, ‘Artikel 22’ in Jürgen Meyer (ed.), Kommentar zur Charta der Grundrechte der Europäischen Union (Nomos 2003). Howard, Erica, ‘EU Anti-Discrimination Law: Has the CJEU Stopped Moving Forward?’ (2018) 18(2–3) International Journal of Discrimination and the Law 60. Howard, Erica, ‘Ritual Slaughter and Religious Freedom: Liga van Moskeeën’ (2019) 56(3) Common Market Law Review 803. Jolly, Schona, ‘Religious Discrimination in the Workplace: The ECJ Confronts a Challenge’ (2017) 3 European Human Rights Law Review 308. Kochenov, Dimitry, ‘When Equality Directives Are Not Enough: Taking an Issue with the Missing Minority Rights Policy in the EU’ in Uladzislau Belavusau and Kristin Henrard (eds), EU Anti-Discrimination Law beyond Gender (Hart 2019). Loenen, Titia, ‘In Search of an EU Approach to Headscarf Bans: Where to Go after Achbita and Bougnaoui?’ (2017) 10(2) Review of European Administrative Law 47. Makkonen, Timo, ‘Multiple, Compound and Intersectional Discrimination: Bringing the Experiences of the Most Marginalized to the Fore’ (Åbo Akademi University 2002). Maliszewska-Nienartowicz, Justyna, ‘Direct and Indirect Discrimination in European Union Law: How to Draw a Dividing Line?’ (2014) 3(1) International Journal of Social Sciences 41. Medda-Windischer, Roberta, Old and New Minorities: Reconciling Diversity and Cohesion, A Human Rights Model for Minority Integration (Nomos 2009). Möschel, M, ‘18 Years of the EU Equality Directive: A Mitigated Balance’ (2019) in Uladzislau Belavusau and Kristin Henrard (eds), EU Anti-Discrimination Law beyond Gender (Hart 2019). Ohlin, Jens, ‘Targeting and the Concept of Intent’ (2013) 35 Michigan Journal of International Law 79. Peers, Steve, ‘Minority Languages and Court Proceedings: The Possibilities and Limits of EU Law’ (EU Law Analysis, 31 March 2014), http://​eulawanalysis​.blogspot​.com/​2014/​03/​minority​-languages​-and​ -court​.html, accessed 1 April 2021.

The Court of Justice of the European Union and ‘minorities’  109 Peers, Steve, and Angela Ward (eds), The European Union Charter of Fundamental Rights (Hart 2004). Permanent Court of International Justice, Minority Schools in Albania, AO ser. A/B No. 64 (1935). Poiares Maduro, Miguel, ‘Europe’s Social Self: “The Sickness unto Death”’ in Jo Shaw (ed.), Social Law and Policy in an Evolving European Union (UOP 2000). Robinson, Kali, ‘What Is the Kafala System?’ (Council on Foreign Relations, last updated 23 March 2021), www​.cfr​.org/​backgrounder/​what​-kafala​-system, accessed 2 April 2021. Shuibhne, Niamh, EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights (Kluwer 2002). Tobler, Christa, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination under EU Law (Intersentia 2005). Toggenburg, Gabriel, ‘A Remaining Share or a New Part? The EU’s Role vis-à-vis Minorities after the Enlargement Decade’ in Marc Weller, Deneka Blacklock and Kathrine Nobbs (eds), The Protection of Minorities in the Wider Europe (Palgrave 2008). Toggenburg, Gabriel, ‘The European Union: A Rough Orientation through a Delicate Relationship: The European Union’s Endeavours for its Minorities’ in Snežana Trifunovksa (ed.), European Minorities and Languages (TMC Asser Press 2001a). Toggenburg, Gabriel, ‘The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe’ (2001b) 1(1) European Yearbook of Minority Issues Online 231. Tomuschat, Christian, Human Rights between Idealism and Realism (OUP 2008). Tribe, Laurence, American Constitutional Law (Foundation Press, 1998). Vickers, Lucy, ‘Achbita and Bougnaoui: One Step Forward and Two Steps Back for Religious Diversity in the Workplace’ (2017) 8(3) European Labour Law Journal 232.

International Legislation Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (adopted 18 December 1992) UN GA A/RES/47/135. Framework Convention for the Protection of National Minorities (adopted 1 February 1995, entry into force 1 February 1998) COE ETS 157. International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entry into force 4 January 1969) 660 UNGA 195 (CERD/C). UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities).

European Legislation Charter of Fundamental Rights of the European Union [2012] OJ C 326/02 (CFREU). Consolidated Version of the Treaty Establishing the European Community (2002), OJ C325/33 (EC Treaty). Consolidated Version of the Treaty on European Union [2008] OJ C115/13 (TEU). Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326 (TFEU). Council Directive (EC) 2000/43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180/22 (Race Equality Directive). Council Directive (EC) 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16 (Employment Equality Directive). Council Directive (EC) 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2003] OJ L 16/44. Council Directive (EC) 2003/86 of 22 September 2003 on the right to family reunification [2003] OJ L 251/12. Council Regulation (EC) 1099/2009 of 24 September 2009 on the protection of animals at the time of killing [2009] OJ L 303/1. Regulation (EC) 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin [2004] OJ L 139/55.

110  Research handbook on minority politics in the European Union Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L 257/2.

CJEU Case Law Asma Bougnaoui e Association de défense des droits de l’homme (ADDH) contro Micropole SA (Case C-188/15) EU:​C:​2017:​204. Carlos Garcia Avello v Belgian State (Case C-148/02) EU:​C:​2003:​539, [2003] ECR I-11613. Centraal Israëlitisch Consistorie van België and Others (Case C-336/19). Centrum voor gelijkheid van kansen en voor racismebestrijding (Centre for Equal Opportunities and Combating Racism) v Firma Feryn NV (Case C-54/07) EU:​C:​2008:​397, [2008] ECR I-5187. Chbihi Loudoudi and Others v Belgium App No. 52265/10 (ECtHR, 16 December 2014). CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (Case C-83/14) EU:​C:​2015:​ 480. Christos Konstantinidis v Stadt Altensteig – Standesamt and Landratsamt Calw – Ordnungsamt (Case C-168/91) EU:​C:​1993:​115, [1993] ECR I-1191. Coleman v Attridge Law (Case C-303/06) EU:​C:​2008:​415, [2008] ECR I-5603. Council of the European Union v Front Polisario (Case C-104/16 P) EU:​C:​2016:​973. Cresco Investigation GmbH v Markus Achatzi (Case C-193/17) EU:​C:​2019:​43. Criminal proceedings against Horst Otto Bickel and Ulrich Franz (Case C-274/96) EU:​C:​1998:​563, [1998] ECR I-7637. European Parliament v Council of the European Union (Case C-540/03) EU:​C:​2006:​429, [2006] ECR I-5769. Groener v Minister for Education and the Dublin Vocational Education Committee (Case C-379/87) EU:​ C:​1989:​599, [1989] ECR 3967. Harroudj v France App No. 43631/09 (ECtHR, 4 October 2012). Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (Case C-208/09) EU:​C:​2010:​806, [2010] ECR I-13693. Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case C-11/70) EU:​C:​1970:​114, [1970] ECR 1125. IR v JQ (Case C-68/17) EU:​C:​2018:​696. Jyske Finans A/S v Ligebehandlingsnævnet (Huskic) (Case C-668/15) EU:​C:​2017:​278. Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and others v Vlaams Gewest (Case C-426/16) EU:​C:​2018:​335. Marjan Noorzia v Bundesministerin für Inneres (Case C-338/13) EU:​C:​2014:​2092. Minister van Buitenlandse Zaken v K and A (Case C-153/14) EU:​C:​2015:​453. Ministère public v Robert Heinrich Maria Mutsch (Case C-137/84) EU:​C:​1985:​335, [1985] ECR 2681. Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe e Zentraler Juristischer Dienst der Stadt Karlsruhe (Case C-438/14) EU:​C:​2016:​401. Œuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation, Bionoor SARL, Ecocert France SAS, Institut national de l’origine et de la qualité (INAO) (Case C-497/17) EU:​C:​2019:​137 Opinion of AG Wahl. P and S v Commissie Sociale Zekerheid Breda and College van Burgemeester en Wethouders van de gemeente Amstelveen (Case C-579/13) EU:​C:​2015:​369. Roman Angonese v Cassa di Risparmio di Bolzano SpA (Case C-281/98) EU:​C:​2000:​296, [2000] ECR I-4139. Runevič-Vardyn and Wardyn v Vilniaus miesto savivaldybės administracija and Others (Case C-391/09) EU:​C:​2011:​291, [2011] ECR I-3787. Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (Case C-157/15) EU:​C:​2016:​382 Opinion of AG Kokott. Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) and Others (Case C-571/10) EU:​C:​2012:​233. SM v Entry Clearance Officer, UK Visa Section (Case C-129/18) EU:​C:​2019:​248. Stauder v Ulm (Case C-29/69) EU:​C:​1969:​57, [1969] ECR 419. Ulrike Elfriede Grauel Rüffer v Katerina Pokorná (Case C-322/13) EU:​C:​2014:​189.

The Court of Justice of the European Union and ‘minorities’  111 Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V. (Case C-414/16) EU:​C:​2018:​ 257. Vivien Prais v Council of the European Communities (Case C-130/75) EU:​C:​1976:​142, [1976] ECR I-1589. Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs (Case C-266/16) EU:​C:​2018:​118.

Other Supervisory Practice Committee on the Elimination of Racial Discrimination/C (CERD/C), ‘General Recommendation 30: Discrimination against non-citizens’ (2004) CERD/C/64/Misc.11/rev.3. Council of Europe, ‘Opinion on Possible Groups of Persons to which the Framework Convention for the Protection of National Minorities could be applied in Belgium: adopted by the Venice Commission on its 50th Plenary Meeting’ (2002) CDL-AD(2002)001.

6. European Union law and international minority rights law Norbert Tóth

INTRODUCTION Broadly speaking, the relationship between public international law and European Union (EU) law is the focus of this chapter. More precisely, I examine how norms of international minority rights law (hereinafter: IMRL) affect and influence the law of the EU. The issue of ‘connection’ between these two legal orders is in fact a question of how EU law inter-relates and interacts with international law, since from the aspect of the latter not many questions can be raised. To put it simply, public international law ‘does not really care’ what and how EU law tries to settle this relationship so long as it does not mean an internationally wrongful act (Cassese, 2005; Crawford, 2012; Distefano, 2019).1 Most of the legal problems show up on the side of the law of the European Law in this liaison. The legal nature of minority rights, and whether they are human rights or, rather, special rights, is also under scrutiny in this chapter. Since it plays an inevitably important role in forming the policies and perhaps norms on minority issues, the so-called soft law on minority protection is also studied briefly.

EU LAW IN RELATION TO INTERNATIONAL LAW There are some common features of these two legal orders. Firstly, the EU (including its predecessor organizations) was set up by ‘ordinary’ international treaties, which means the founding treaties of the EU plus some other sources of EU law2 are sources of international law at the same time. Thus, the founding treaties of the EU must meet the requirements of the law of treaties of international law. The main difference from this aspect is the evolution of these two legal orders. While their point of departure was more or less the same, or at least somewhat similar to one another, EU law, logically – due to the fact that the European integration is a process – started to ‘live its own life’ very soon after the establishment of the EU’s predecessors. This meant a move away from its international legal roots by creating a domestic legal body at the same time which is very similar that of national legal orders. For these reasons, EU law can be understood from an international legal point of view as a mixture of features resembling both international and domestic/national law. And since national law

1 The term ‘internationally wrongful act’ refers to an act of either states or international organizations that is contrary to the norms of international law. 2 For instance, the European Convention on Human Rights of 1950, regarding the accession of the EU to it.

112

European Union law and international minority rights law  113 often regulates its relationship with international law, it is obvious that this problem would pop up on the side of EU law after a while (Aspremont and Dopagne, 2008, 373).3 As used to happen during the progress of EU law, the Court of Justice of the European Union (ECJ) (and also its predecessors) played an inevitable role in settling this issue by improving its case law. Therefore, founding treaties as a kind of constitution or, rather, constitution-like international agreements, provide only very limited help in defining the relationship between the two legal orders (Bruhács, 1998, 34). Beyond doubt, the EU in its current form is entitled to enter into negotiations that might lead in the end to the conclusion of international agreements in its own name. Obligations arising out of such agreements bind not only the Union but its Member States as well. Naturally, the EU is allowed to conclude international agreements only when founding treaties allow it to do so. In other words, if the EU has either an exclusive or a shared competence to act in a given field, then it is allowed to draft and conclude international agreements with other international legal subjects (including third states) too. But it also follows that its international legal personality is not unlimited, as compared to the subjectivity of sovereign states, for example. Moreover, there are international norms that are outside the interest of European integration because they relate to areas not covered by the competences of the EU. Founding treaties remain silent on the liaison between this latter group of international norms and the law of the EU. This is why the ECJ needed to do something to handle conflicts between international law on the one hand and the ever-growing circle of EU norms on the other. As early as 1992 in the Poulsen and Diva Navigation case,4 the ECJ (or its predecessor) declared that the ‘European Community must respect international law in the exercise of its powers and that, consequently, [its secondary legislation] must be interpreted, and its scope limited, in the light of the relevant rules of the international law.’5 Six years later, this maxim was affirmed by the Court in the Racke case6 by adding some new elements to it, including the obligation of the European Council (EC) to ‘comply with the rules of customary international law when adopting a regulation.’7 However, after 10 years, in the Kadi I case8 the ECJ said that any measure that is being adopted by virtue of it exercising its powers ‘must be interpreted, and its scope limited, in the light of the relevant rules of international law.’9 This means that the EU’s secondary legislation must meet the obligations and requirements coming from any relevant sources of international law, including first and foremost treaty norms as well as customary international law (CIL).10 Beyond doubt, primary sources of EU law, including above all the founding treaties, are also In essence, this phenomenon is what Aspremont and Dopagne touch on in their article. Case C-286/90 Anklagemindigheden v Poulsen and Diva Navigation [1992] ECLI:​EU:​C:​1992:​ 453. 5 Ibid., para. 9. 6 Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-03655. 7 Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-03655, para. 45. 8 Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi, Al Barakaat International Foundation v Council of the European Union, Commission of the European Communities, United Kingdom of Great Britain and Northern Ireland [2008] ECR I-06351. 9 Ibid., para. 291. 10 Customary international law is the oldest layer of international law as well as one of its major sources. Unlike the vast majority of international agreements, CIL covers non-written norms of international law, practices of states and other subjects of international law that they regard as being obligatory upon themselves. 3 4

114  Research handbook on minority politics in the European Union elements of international law and thus their attitude vis-à-vis other sources of international law is being settled by other tools, like general principles of law11 or special regimes, including the Charter of the United Nations (UN). Regarding the latter, and as in Kadi I, the ECJ also acknowledged that secondary legal acts that implement international obligations in EU law must meet certain criteria, including fundamental rights (Mohay, 2019, 110–14). Based on the judgement in Kadi I, a doctrine of dealing with the collision of EU law and international law has evolved in the Court’s case law that follows a dualistic (Mohay, 2019, 136; Wessel, 2011, 10), constitutionalist (Cygan, 2013) and even isolationist (Govaere, 2009; Londras and Kingston, 2010)12 stance regarding the legal order of the EU in relation to public international law (Lando, 2015, 1034; Mohay, 2019, 115–16; Ziegler, 2015, 10). The ECJ has never declared expressly if it follows a dualist or monist approach in judging the relationship between international law and EU law, and partly for this reason Mohay argues it would be better to distinguish between Völkerrechtsfreundlichkeit13 (Lovric, 2006) and autonomism14 (Lara and Gil, 2008; Moreno-Lax, 2019) in this case instead of using the traditional categories of monism and dualism (Mohay, 2019, 136). Some raise the question of whether Kadi I was a ‘patricide’ (Dubout, 2012),15 but in any case it was definitely a paradigm shift in that regard since the ECJ had elaborated a relatively moderate but monist course regarding the same issue in its previous case law (Mohay, 2019, 119–21). Of course, the ECJ – as was confirmed in Kadi II16 – did not revise the legality of an international legal norm, but only of its implementation in EU law. Interestingly and despite its firmness in elaborating the Kadi doctrine, the ECJ did a 180-degree turn in 2012, by delivering its judgement in the Sólyom case,17 though authors are usually skeptical when it Besides international agreements and customary international law, the general principles of law are another sort of source of international law. Usually, they serve to fill the gaps both in law and in the implementation of norms. General principles of law are principles that can be found in all the legal systems of the world. 12 Though some disagree with a qualification like this. 13 Völkerrechtsfreundlichkeit, literally ‘friendliness to international law,’ is a concept elaborated by German constitutional law scholars and refers to a situation where a legal order does not really prevent international law affecting domestic law. 14 Autonomism is a stance of the ECJ of ‘protecting’ EU law as a separate legal order that was declared as early as 1964 by the judgment in the Costa E.N.E.L. case. 15 The term ‘patricide’ refers to the situation when someone kills his or her own father. In the relationship between public international law and EU law one can argue that in Kadi I, the ECJ ‘denied’ the international legal foundations of EU law. 16 Case C-584/10 Commission and Other v Kadi [2013] ECLI:​EU:​C:​2013:​518, para. 87. 17 Case C‑364/10 Hungary v Slovak Republic [2012] ECLI:​EU:​C:​2012:​630. In its ‘Sólyom ruling’ the ECJ had to decide in an interstate dispute between two EU member states, namely the Slovak Republic on the one hand and Hungary on the other. To put the facts briefly, the then President of Hungary, László Sólyom, was about to inaugurate a statue dedicated to King Stephen I, the first monarch of the medieval Kingdom of Hungary, in a Slovakian town that is inhabited mainly by ethnic Hungarians. The Slovak Government did not want to let the Hungarian politician enter into its territory, and President Sólyom eventually decided not to travel to Slovakia. After this incident the Hungarian Government decided to initiate a proceeding against Slovakia, claiming that the latter infringed EU law by not letting Sólyom travel to Slovakia, for the president as a Hungarian citizen enjoyed the status of EU citizens as well and as such he could have travelled to another EU Member State under the founding treaties, almost without any restrictions. The ECJ eventually turned down the Hungarian application. In the Sólyom case, the New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973 was raised by the Court as a piece of international legislation that 11

European Union law and international minority rights law  115 comes to concluding whether it was a real monist turn or not (Mohay 2019, 129–31), assuming it was rather a ‘context-specific exception’ to the Kadi doctrine.18 The ECJ stated in Sólyom that ‘international law is part of the European Union legal order and is binding on the institutions.’19 Surprisingly, at least after inventing and elaborating the Kadi doctrine, by the ‘Sólyom formula’ the ECJ blurred the boundary between international law and the EU’s legal order, weakening the latter’s autonomy vis-à-vis the former. Now it is clear that the relevant norms of international law are not only a number of norms that should be taken into account when interpreting EU law, but they also form part of the legal body of the EU (Higgins, 2003).20 Albeit another, more ‘integrationist’ approach could also have been justified under Article 21(1) of the Treaty on the Functioning of the EU (hereinafter: TFEU)21 by which Mr. Sólyom’s EU citizenship could have prevailed over the sovereignty of another EU member, the rarely ‘sovereigntist’ Court yet chose another attitude. Moreover, it is also interesting that the ECJ – once it decided to acknowledge that the case fell into the domain of international law – did not dismiss the Hungarian application due to its lack of competence. Instead, it eventually opted for deciding on the merits, thus creating a new approach in relation to the link between public international law and EU law that can be simply put as the ‘Sólyom formula.’ In the next few pages I am going to analyze if the ‘Sólyom formula’ could be used regarding the relationship between IMRL and EU law.

EU LAW AND MINORITY RIGHTS According to the relevant data of the Statistical Office of the European Union (hereinafter: Eurostat) around 448 million people were living in the 27 Member States of the EU on 1

might have importance in interpreting the EU citizens’ right to the freedom of movement between EU Member States. All the EU Member States are parties to the New York Convention; however, this is not the case with the EU, which makes the situation rather interesting. The ECJ made a statement according to which one can conclude that even international agreements of which the EU is not a party might have a relevance in the legal order of the EU. Though it is true that the ECJ referred to both CIL and Article 1 of the New York Convention when justifying the Slovak step to restrict Sólyom’s right to travel to and move freely within the territory of a Member State of the EU, its arguments were rather based on treaty norms than on CIL. The Court found that heads of state ‘[enjoy] a particular status in international relations’ on the basis of CIL norms as well as multilateral agreements, ‘which entails – inter alia – privileges and immunities.’ But in its verdict, the Court refers only to the treaty obligation of providing a special protection by host states in favor of a foreign head of state instead of CIL norms. More explicitly, the reasoning of the ECJ is clearly based on the rules incorporated into the New York Convention of 1973 when accepting the arguments of Slovakia, even though the entire overlap between CIL and treaty norms should have been thoroughly analysed, in my opinion. In addition, Slovakia might have rightly pointed out in its counter-claim that bilateral diplomatic relations between EU members was an issue that did not fall within the sphere of the founding treaties but of the law of diplomatic relations. 18 Harvard Law Review Association, 2013. 19 Case C‑364/10 Hungary v Slovak Republic [2012] ECLI:​EU:​C:​2012:​630, para. 44. 20 Rosalyn Higgins wrote, a decade before the Sólyom ruling, that ‘it has long been established that public international law is part of the legal public order of the European Community.’ 21 ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’

116  Research handbook on minority politics in the European Union January 2020.22 However, the term ‘population’ is now almost uniformly understood by statisticians as referring to the whole population living in a geographically, administratively delimited area at a reference date (typically 1 January).23 This means that this term is not restricted to citizens but includes foreigners as well as stateless persons legally residing in the country concerned. Also, according to Eurostat, 5 percent of the total population of the Member States were not EU citizens in 2019,24 and the number of stateless persons was estimated at half a million,25 so that around 425 million EU citizens currently live in the territory of Member States, while it is also estimated that 9 percent (Pan and Pfeil, 2003; Vizi, 2013, 24) to 10 percent (Spaledakis, 2019) of EU citizens may belong to a national or ethnic minority. The reader might rightly ask: what is the point of listing all these data in a chapter on the relationship between IMRL and EU law? As is well known, there is no definition of ‘national minority’ in either universal or regional treaty norms of international law. To be more precise, there are some bilateral international treaties on protecting minority rights as well that contain definitions or at least some references on the ratione materiae of these documents. Where there is a series of similarly phrased bilateral documents, some elements of a customary international legal definition of national minority can probably be deduced.26 Though this issue is not the subject of this writing, the comparison of the existing and relevant bilateral agreements shows that an individual must be a citizen of the country in which he or she claims to be recognized as a member of a national minority. Perhaps this also suggests that only European citizens may fall under the scope of international minority legislation when speaking of the EU.27 However, EU law provides even less guidance in this regard, although it is true that since the entry into force of the Lisbon Treaty of 2007 on 1 December 2009, much has changed in this sense, for the term ‘minority’ was inserted into the founding treaties, thus bringing the issue up to the level of EU primary law. Two specific provisions should be mentioned here. On the one hand, Article 2 of the Treaty on European Union (hereinafter: TEU), which enumerates the values of the EU, includes a reference to ‘the rights of persons belonging to minorities.’ This article needs some clarification. Firstly, the paragraph in question cites the rights of persons belonging to minorities as part of the value of ‘respect for human rights.’ This approach is broadly in line with those of the relevant international treaties.

Eurostat, ‘EU population in 2020: almost 448 million’ (news release, 10 July 2020), www​.ec​ .europa​.eu/​eurostat/​documents/​2995521/​11081093/​3​-10072020​-AP​-EN​.pdf/​d2f799bf​-4412​-05cc​-a357​ -7b49b93615f1, accessed: 31 May 2021. 23 Eurostat, ‘Glossary: Population figure (Statistics explained),’ www​.ec​.europa​.eu/​eurostat/​statistics​ -explained/​index​.php/​Glossary:​Population​_figure, accessed: 31 May 2021. 24 Eurostat, ‘Non-EU citizens: 5% of the EU population in 2019,’ www​.ec​.europa​.eu/​eurostat/​en/​ web/​products​-eurostat​-news/​-/​ddn​-20200625​-1, accessed: 31 May 2021. 25 European Network on Statelessness, ‘Statelessness in Europe,’ www​ .statelessness​ .eu/​ issues, accessed: 31 May 2021. 26 See footnote 47. 27 In fact, this approach is also underpinned by the relevant case law of the ECJ. In the Bickel and Franz case the right of the applicants (who were Austrian nationals) to use the German language in a criminal procedure in South Tyrol (Italy) on an equal footing with the German-speaking Italian citizens has been acknowledged by the ECJ under the ‘prohibition of discrimination among EU citizens rule’; Case C‑274/96 Horst Otto Bickel and Ulrich Franz [1998] ECLI:​EU:​C:​1998:​563, para. 31. This rule was later extended to civil proceedings by ECJ too in its Rüffer judgement; Case C‑322/13 Ulrike Elfriede Grauel Rüffer v Katerina Pokorná [2014] ECLI:​EU:​C:​2014:​189, para. 27. 22

European Union law and international minority rights law  117

MINORITY RIGHTS AS HUMAN RIGHTS The International Covenant on Civil and Political Rights of 1966 (hereinafter: ICCPR), for example, regulates minority rights (religious, cultural and linguistic rights) in its Article 27 as part of human rights, while the Subcommittee on the Protection of Minorities and the Prevention of Discrimination of the Commission on Human Rights28 has been dealing with the issue since almost the earliest years of the UN. In addition, the Universal Declaration of Human Rights (hereinafter: UDHR), adopted by the United Nations General Assembly (UNGA) in 1948 as one of the building blocks of the International Bill of Human Rights does not include any reference to minority rights, which the General Assembly justified as ‘it is difficult to adopt a uniform solution of this complex and delicate question, which has special aspects in each State in which it arises.’29 For this reason, the UNGA referred the study of the issue to the already mentioned subcommittee of the Commission on Human Rights,30 which eventually resulted in the adoption of the ICCPR including its ‘famous’ Article 27 that later served as a legal basis for the adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities31 by the UNGA in 1992. Interestingly, during the negotiations of the UDHR the Soviet, the Yugoslav and even the Danish delegations submitted various proposals to the drafters, aiming at resolving the problem of minorities, but the majority of the then members of the UN had not supported any of them in 1948. Moreover, it is also clear from the wording of the 1992 Declaration that the protection of persons belonging to minorities is not only part of the wider protection of human rights but also plays a somewhat subordinate role in the event of any conflict between them, for the exercise of the rights of persons belonging to minorities ‘shall not prejudice’32 the enjoyment of human rights. The Framework Convention for the Protection of National Minorities (hereinafter: Framework Convention or FCNM), adopted in the framework of the Council of Europe in 1995, follows a similar approach, stating in Article 1 that ‘[t]he protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.’33 In addition, Article 23 of the same convention states that, in so far as a right or freedom deriving from a principle enshrined in the Framework Convention is corresponding to a provision of that of the European Convention on Human Rights34 or a protocol thereto, it shall be deemed to comply with that provision. Both the Framework Convention and the Council of Europe’s other relevant international treaty of major importance for the protection of minorities, namely the European Charter for Regional or Minority Languages (hereinafter: Language Charter or ECRML), contain a rule which essentially subordinates their provisions to the rights declared in the European Convention on Human Rights.35 One can

The Commission on Human Rights was replaced by the Human Rights Council in 2006. UN GA. Res. 217 (III). International Bill of Human Rights. C. Fate of Minorities. 30 Ibid. 31 Emphasis added. 32 No porte pas atteinte/sin perjudició. 33 Emphasis added. 34 Convention for the Protection of Human Rights and Fundamental Freedoms. 35 See Article 4, paragraph 1 of the Language Charter and Article 22 of the Framework Convention. 28 29

118  Research handbook on minority politics in the European Union come to the conclusion that minority rights are considered as human rights under guardianship in current international law.

MINORITY RIGHTS IN EU LAW: HUMAN RIGHTS AND/OR SPECIAL RIGHTS? In addition to TEU’s Article 2, the provision on non-discrimination of the Charter of Fundamental Rights, which is also part of the primary law of the EU, refers to ‘national minorities’ when it stipulates that belonging to such groups is actually a characteristic, based on which nobody can be discriminated.36 It is worth noting that while TEU mentions ‘minorities,’ the Charter of Fundamental Rights refers to ‘national minorities.’ Since neither ‘minority’ nor ‘national minority’ has any definition in either international (treaty) law (Girasoli, 1995, 110; Tóth, 2018, 189–204)37 or EU law, the relationship between TEU’s Article 2 and Article 21(1) of the Charter of Fundamental Rights is not entirely clear. It seems certain that the term ‘minority’ includes ‘national minority’ (Kardos, 2007, 128; Vizi, 2005, 333), but it is not obvious whether it encompasses other minority groups too, like religious minorities, linguistic minorities, cultural minorities or sexual minorities. Another important question must be raised here: what specific rights shall be understood by the words ‘rights of persons belonging to minorities’? In the absence of relevant secondary EU legislation, two interpretations are possible, in my view. On the one hand, in accordance with Article 21(1) of the Charter of Fundamental Rights, the reference in Article 2 of TEU merely means that belonging to a national minority cannot be a ground for discrimination, and therefore people belonging to such communities are entitled to human rights enumerated in the Charter of Fundamental Rights. In this interpretation, persons belonging to minorities, including those belonging to national minorities, do not have ‘special rights’ under EU law, but they are entitled to enjoy human rights ‘only.’ According to the other possible view, however, there must be some kind of ‘special rights,’ which partly because of the EU acquis and of the relationship between international law and EU law should also be part of the body of EU law. The only question in this regard is: what are the sources of such special minority rights? As has already been said, there is currently no legislation of either primary or secondary EU law that contains a catalogue-like listing of the rights of persons belonging to minorities. In addition, the EU is not a party to any international agreement that could be relevant in this sense. However, it is not the EU’s fault. For instance, only states can be parties to the ICCPR. Although it could be inferred from the relevant Article 48(1) of the ICCPR, which mentions ‘members’ of specialized agencies instead of ‘member states’ as potential parties, that international organizations may also accede to the ICCPR, another paragraph of the same article38 later expressly restricts this possibility to states.39 In addition, all EU Member States are Article 21, paragraph 1 of the Charter of Fundamental Rights of the European Union. Contrary to international treaties, certain elements of a definition on ‘national minorities’ might have already emerged in CIL norms, at least based on the interstate practices of a geographically delimited group of countries. 38 See Article 48, paragraph 3 of the ICCPR: ‘The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article’ (emphasis added). 39 Accordingly, ‘members’ of specialized agencies shall mean ‘Member States,’ and for this reason it is only an interesting fact without any practical relevance in this case that the EU is otherwise a member 36 37

European Union law and international minority rights law  119 parties to the ICCPR, although France made a reservation on Article 27, according to which ‘[I]n the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 is not applicable so far as the Republic is concerned.’40 Prima facie, this reservation suggests the exclusion of Article 27 of the ICCPR as a possible basis on which state practice could be formed within the framework of the EU. This is, however, not the case. Article 2 of the Constitution of the French Republic of 1958 contains only one relevant provision, according to which ‘[T]he language of the Republic shall be French.’41 This means the reservation of France only concerns linguistic rights, while religious and cultural rights of Article 27 of the ICCPR remain intact. Furthermore, the French reservation is only about the status of official languages in the Republic, which means there could be some room even for certain language rights in French law. Of course, and as we have already seen above, Article 27 of the ICCPR cannot be part of EU law as treaty law, though it may provide a basis for creating customary norms (Thornberry, 1991)42 or even becoming EU acquis. Similarly to the ICCPR, neither the Framework Convention nor the Language Charter is accessible to international organizations, and as such the EU is unable to accede them without amendments (Draper, 2005).43 Moreover and unlike the ICCPR, not all Member States are party to these treaties. Only 16 out of 27 EU members have become parties to the Language Charter so far,44 and 23 to the Framework Convention.45 The Framework Convention has been signed but not ratified by three other countries, and Belgium, France and Greece represent the most hard-line position in this regard, not being parties to any of these Council of Europe treaties. For these reasons, these two Council of Europe conventions cannot be parts of EU law as treaty norms either (Vizi, 2013, 186). While their possible customary law-forming character is very similar that of the ICCPR, the reasons why some countries are not really in favor of either the Language Charter or the Framework Convention or both are manifold. Firstly, the number of EU Member States that ratified the Framework Convention correlates with the so-called conditionality policy of the European Union (Vizi, 2017, 51–78). This means that, due to the Copenhagen criteria (see below), since the mid-1990s no new states can be admitted to the EU without undertaking certain legal guarantees to protect the rights of members belonging to national and ethnic minorities. In practice, this entails the obligation to ratify FCNM but not ECRML. Those Member States refusing either of these treaties or both do usually have consti-

of the Food and Agriculture Organization (FAO), being a specialized agency of the UN; FAO website, ‘European Union and FAO,’ www​.fao​.org/​europeanunion/​eu​-in​-action/​en/​, accessed: 31 May 2021. 40 See paragraph 8 of the reservation made by the Republic of France to the ICCPR’s Article 27, UN Treaty Series, www​.treaties​.un​.org/​Pages/​ViewDetails​.aspx​?src​=​TREATY​&​mtdsg​_no​=​IV​-4​&​chapter​=​ 4​&​clang​=​_fr​#EndDec/​, accessed: 31 May 2021. 41 Conseil Constitutionnel, Constitution Article 2(1), www​.conseil​-constitutionnel​.fr/​sites/​default/​ files/​as/​root/​bank​_mm/​constitution/​constitution​.pdf, accessed: 31 May 2021. 42 It seems there is a majoritarian view in academia that the norm in Article 27 of ICCPR is also a norm of CIL. 43 See Articles 18 and 20 of the Language Charter and Article 27 of the Framework Convention; Draper (2005, 593–6). 44 Council of Europe, ‘Chart of signatures and ratifications of Treaty 148,’ www​.coe​.int/​en/​web/​ conventions/​full​-list/​-/​conventions/​treaty/​148/​signatures​?p​_auth​=​bvnvR8Ws, accessed: 31 May 2021. 45 Council of Europe, ‘Chart of signatures and ratifications of Treaty 157,’ www​.coe​.int/​en/​web/​ conventions/​full​-list/​-/​conventions/​treaty/​157/​signatures​?p​_auth​=​6hAr4cje, accessed: 31 May 2021.

120  Research handbook on minority politics in the European Union tutional concerns (Draper, 2005, 605)46 and/or simply fear the possible negative consequences of these instruments on their territorial integrity, and for this reason they deny the existence of national minorities in their territories (Heintze, 2005, 82–3).47 Anyway, both FCNM and ECRML are international treaties that do not contain too many ‘tough’ articles, and nor do their monitoring systems impose a heavy burden upon states. The Language Charter applies a so-called ‘à la carte method,’ which means every ratifying state should undertake at least 35 paragraphs and/or sub-paragraphs from among the many of Part III of its text.48 It follows that states parties to ECRML have different obligations under this treaty. The ratifying countries may make such undertakings on various spheres of life, like education, culture, public administration, media, the judiciary, and so on. In contrast, FCNM contains concrete rights, though phrased in a manner that ‘degrades’ them as well as the provisions of ECRML to soft-law-like norms (see below). Similarly, the monitoring mechanisms of both treaties are relatively weak, for they build upon the so-called ‘reporting system method.’ This means neither the members of such groups nor any states have the right to file a complaint or turn to the judiciary in a case of infringement of any of their provisions. Instead, states parties to these instruments should periodically elaborate reports to demonstrate how they implemented these treaties in the preceding years. Such reports are then examined by committees of independent experts set up by the treaties themselves.49 After a dialogue between the state concerned and the committees, the latter draft a report to inform the Committee of Ministers on their findings on the state under revision. As regards the possible CIL quality of certain rules of the two conventions as a whole, the same can be said of Article 27 of the ICCPR. It is interesting that Vizi, for example, raises another possibility in connection with the two Council of Europe conventions mentioned above. In his view, the Framework Convention may also form part of the constitutional traditions of the Member States and, as such, of the EU law itself (Vizi, 2013, 55). Article 6(3) of TEU recognizes fundamental rights as general principles of the Union legal order. These fundamental rights are guaranteed, on the one hand, by the European Convention on Human Rights (hereinafter: ECHR) and, on the other, by the constitutional traditions common to the Member States. It may also be interpreted from that paragraph that there are two sources of fundamental rights, which constitute general principles of the EU legal order, between which there may be some overlap. Honestly, the probable common constitutional nature of minority rights has not yet been examined or recognized by the ECJ. Though the 2007 Lisbon Treaty

Belgium, for instance made a reservation to FCNM upon signing in which it declared the Framework Convention ‘applies without prejudice to the constitutional provisions […] which currently govern the use of languages.’ Due to constitutional reasons and the fragile balance among its language communities, eventually Belgium did not ratify either of these treaties. 47 More or less this is the situation with France. However, France started the ratification process of ECRML but the Senate rejected the proposed constitutional amendments in 2015 since in its view the Language Charter would have infringed the indivisibility of the state as well as the official status of the French language as prescribed by Articles 1–2 of the 1958 Constitution of the Republic of France; Assemblée Nationale, www​.assemblee​-nationale​.fr/​14/​dossiers/​charte​_europeenne​_langues​_regionales​ .asp, accessed: 24 September 2021. 48 See Article 2, paragraphs 1–2 of the European Charter for Regional or Minority Languages. 49 In the case of ECRML, the Committee of Experts, while for the relevant part of FCNM, the Advisory Committee. 46

European Union law and international minority rights law  121 made a clear reference to the mandatory accession of the EU to the ECHR;50 however, without success so far.51 Simply put, the rights of persons belonging to minorities are fundamental rights (human rights) and, although there is no relevant rule in the ECHR, apart from the rule of non-discrimination of national minorities, the ‘common constitutional traditions of Member States’ may still be their source. The question is of course, what exactly is meant by ‘common constitutional traditions in the Member States’ and whether the rights of national minorities are involved. An explanatory note to the articles of the Treaty establishing a Constitution for Europe (Constitutional Treaty) noted that the significance of the ECHR and of the phrase ‘common constitutional traditions in the Member States’ after the entry into force of the Charter of Fundamental Rights is that further rights may occur and the content of existing ones may change over time (Blanke and Mangiameli, 2013, 333). In addition, the Charter cannot prevent legal changes in interpretation or the corpus iuris as a result of social development. According to this explanatory note, this essentially evolutionary or progressive interpretation of the law corresponds to the ‘classical constitutional doctrine,’ which does not consider a catalog of fundamental rights declared in a law to be exhaustive, as courts may identify the existence of new fundamental rights in response to social change (Blanke and Mangiameli, 2013, 334). Those who disagree with this approach emphasize that an evolutionary interpretation based on Article 6(3) TEU could undermine the Charter of Fundamental Rights and limit the will of the state to amend it (Blanke and Mangiameli, 2013, 334). It is difficult to do justice to this issue, as both the founding treaties of the EU and the Charter of Fundamental Rights itself are ‘of dual nature.’ On the one hand, the two founding treaties constitute international treaties, and in fact the Charter of Fundamental Rights is in a similar situation, although its status is less clear in this respect,52 and, as such, they reflect the will of Member States. An important attribute of states is their sovereignty over the population living in their territory. One presumes in case of doubt they intended to limit their sovereignty only to the minimum possible; that is, in this case, a restrictive interpretation of international treaties. However, the founding treaties as well as the Charter of Fundamental Rights do also have a constitutional character. This also means evolutive or progressive treaty interpretation is not uncommon provided it does not entail legislation. In a legal situation like this, the ECJ may identify a newly emerging fundamental right or a previously unknown side of an existing fundamental right in its capacity as a quasi-constitutional court or based on the case law of the European Court of Human Rights or the ‘common constitutional traditions of the Member States’ much like the way humanity could first see the other side of the Moon, invisible from

See Article 6, paragraph 2 of TEU. Even though the Accession Agreement of the EU to the ECHR had been finalised by April 2013, the ECJ made it clear in its relevant opinion that the draft Accession Agreement was incompatible with EU law. The institutions of the EU together with the Council of Europe have been holding negotiations on the possible legal solutions since then. See: Avis 2/13 – Adhésion de l’Union à la CEDH. ECLI:​EU:​ C:​2014:​2454. 52 The Charter of Fundamental Rights of the EU is not an international treaty by definition, but it acts as such in practice due to the Lisbon Treaty that amended the founding treaties and put the Charter on the level of EU primary law. 50 51

122  Research handbook on minority politics in the European Union Earth.53 As fundamental rights/human rights encircle the very essence of being human as legal guarantees, there will always be unexplored areas of this human quality that can be explored through social development or change, as technical progress opens up new levels of knowledge for us. It is also in line with this that the practical importance of ‘common constitutional traditions of Member States’ has declined significantly since the entry into force of the Charter of Fundamental Rights, though they have not ceased to exist. Regarding the rights of persons belonging to national minorities, only a thorough comparison of the domestic legal regimes could clarify if there are rights that are reflected in the common constitutional traditions of the Member States (Blanke and Mangiameli, 2013, 126).54 The relationship between the concept of a ‘common constitutional tradition’ and customary (regional) international law could also be examined, as domestic law, such as the constitution or other constitution-like norms, can serve as evidence of both (general) practice (usus) of states and their legal convictions (opinion iuris), being the conditions for the formation of CIL. It can be assumed that there is some interface between common constitutional traditions and regional European customary law. However, there is a clear difference between the two legal phenomena for in the case of ‘common constitutional traditions’ the human rights or specific perceptions of each EU Member State must appear in domestic law, while this is not necessary for the establishment of a customary norm. Furthermore, in the case of the latter, it does not matter at which level of the internal legal hierarchy the given norm appears. It is conceivable that, for example, in the case of rights to use different languages, a ‘common constitutional tradition in the Member States’ relevant not only to foreigners but also to national minorities could be identified. As is widely known, the EC at its Copenhagen summit in 1993 set the criteria for accessing the EU, which have ultimately been referred to simply as the ‘Copenhagen criteria.’ Interestingly, the system of accession requirements – at least as they were phrased in the original document of the EC – is not about individual rights, but about ‘the protection of and respect for minorities’55 as preconditions for candidate countries. Minority protection aspects since then have been included in the relevant chapters of accession negotiations as part of the EU acquis (Vizi, 2001).56 A comparative analysis of the enlargement documents of the last 30 years seems to underscore that in addition to the non-discrimination provisions of EU law, the European Commission requires the acceptance of the Framework Convention and if possible the Language Charter from the candidate countries. For example, a report screening the Croatian legislation in 2007 on ‘Justice and Fundamental Rights’ (Chapter 23) found that ‘[minority rights] include the right of persons belonging to national minorities to

53 One can see only the near side of the Moon from Earth for the Moon rotates around its axis at the same pace as it orbits the Earth. For these reasons, the so-called far side of the Moon was more or less unknown to humankind until the commencement of space activity. 54 For example the ‘democratic principle’ is widely understood as being deduced from the ‘common constitutional traditions’ of Member States. Similarly, the ‘the principle of the effective judicial protection of individuals’ rights under EU law’ is also a ‘general principle of EU law stemming from the constitutional traditions common to the Member States’ according to the relevant case law of the ECJ; Case C‑791/19 Commission v Poland [2021] ECLI:​EU:​C:​2021:​596, para. 52. 55 Emphasis added. 56 Before the Lisbon Treaty they were known as acquis communautaire. It is interesting, however, that it took some decades until the Framework Convention, for instance, could emerge to the level of EU acquis.

European Union law and international minority rights law  123 non-discrimination, the right to association, the right of assembly, freedom of expression, freedom of religion, the right to use languages and effective participation in public affairs.’57 However, the screening report focusing on Montenegro mentioned only the non-discrimination provision of the Charter of Fundamental Rights in this context.58 See Chapter 9 in this volume for more.

SOFT-LAW-TYPE SOURCES OF INTERNATIONAL MINORITY RIGHTS LAW AND THE EU International minority rights law does not really encompass many international treaties or other norms of international law. That is why it is important to briefly mention the possible role of soft-law documents having relevance in this field (Distefano, 2019, 295–6).59 Many international organizations including first and foremost the UN, the Council of Europe or the Organization for Security and Cooperation in Europe (OSCE) are actively engaging in creating, adopting and addressing minority-rights-relevant documents, albeit they are not formally binding. Even if these materials are not incorporated in either primary or secondary EU legislation, they can influence the policies of the EU. Recommendations made by the High Commissioner on National Minorities, for instance, are sometimes referenced in the resolutions and other documents of the European Parliament.60 This is also true regarding the Council of Europe’s decisions and resolutions61 as well as the UNGA’s resolutions.62 In other words, soft-law ‘norms’ of international minority rights law are able to influence the actions of EU institutions, and by doing so they have the capacity to form ‘hard law’ norms of the EU, after a while.

CONCLUSIONS The EU is not a party to any of the relevant treaties of IMRL, as we could see in the foregoing pages, mainly due to two reasons. Firstly, and strictly speaking, the EU has no competence of any kind to make secondary legislation on that matter for it is not entitled to do so under the founding treaties. Besides, treaties that deal with minority rights are available only to states Screening Report – Croatia, Chapter 23: Judiciary and fundamental rights, 27 June 2007, 3. Screening Report – Montenegro, Chapter 23: Judiciary and fundamental rights, MD 281/12 12.11.12, 2. 59 The term ‘soft law’ might imply a wide range of phenomena. However, documents, instruments, recommendations and decisions not formally binding states are understood here as such. 60 See, for instance, the preamble of P9_TA(2021)0313 Commission’s 2020 Rule of law report European Parliament resolution of 24 June 2021 on the Commission’s 2020 Rule of Law Report (2021/2025(INI)) or the preamble of P9_TA(2020)0251 The establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights European Parliament resolution of 7 October 2020 on the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (2020/2072(INI)). 61 See, for instance, the preamble of P8_TA(2018)0447 Minimum standards for minorities in the EU, European Parliament resolution of 13 November 2018 on minimum standards for minorities in the EU (2018/2036(INI)). 62 Ibid. 57 58

124  Research handbook on minority politics in the European Union and not international organizations at this time. General international law – to which customary norms, the other major source of international law, belong – is part of EU law without almost any restrictions but the lack of competence, as the relevant ECJ case law suggests. Concerning treaty law, however, by declaring the ‘Sólyom formula’ the ECJ made it possible for formally non-binding international treaties to influence EU law under certain circumstances. It is also probable to distill the requirements of invoking that formula. In the Sólyom case the ECJ referred to an international treaty that all the EU Member States were parties to at the material time, though the EU itself is not allowed to be a party to the given treaty. Another issue in Sólyom was that the case touched on an article of one of the founding treaties of the EU under which the organization had the competence to elaborate secondary legislation. As regards IMRL, this requirement is not fulfilled entirely by the primary sources of EU law, including first and foremost the founding treaties, because the EU has no competence to elaborate legal acts on minority rights. Although it is also true that there are some minority-rights-related legal and legislative acts currently in force, one need only mention the so-called anti-discrimination directive,63 among others, that is framed by the non-discrimination articles of the founding treaties.64 In the case of minorities, only one relevant international treaty meets the criteria of the Sólyom formula. The ICCPR has been ratified by each EU country and even if there are no specific articles that empower the EU to create secondary legislation in that area, under Article 2 TEU, which enumerates the values of the Union, as well as Article 6, paragraph 3, of the same treaty, which refers to the ‘common constitutional traditions of members states,’ the ECJ could invoke the rights in the ICCPR, including its Article 27, as well when dealing with minority-related cases. The reservation of France to Article 27 of the ICCPR only excludes the issue of state official languages from language rights and does not touch cultural and religious rights of minorities as mentioned in the Article cited. This means, in my opinion, that Article 27 of the ICCPR as well as its other articles containing human rights are part of EU law both as ‘general principles of the Union’s law’ and by means of the ‘Sólyom formula.’ As relating to the other rights incorporated in the ICCPR, the Covenant is applicable so long as the EU’s own human rights framework does not provide a higher level of protection. The only question in relation to the ICCPR in this situation is if its monitoring mechanism’s case law should also be taken into account or not when interpreting an EU legal act in light of the ICCPR. I suppose that if the ‘common constitutional traditions’ nature of the ICCPR is taken into account, then the Human Rights Committee’s relevant cases must also be kept in mind as every EU member is a party to the ICCPR’s Optional Protocol65 that allows the Human Rights Committee to consider individual complaints. Probably, the 1992 Declaration could also be considered as a quasi-authentic interpretation of Article 27 of the ICCPR. On the other hand, neither the Framework Convention of 1995 nor the Language Charter of 1992 can be regarded as part of common constitutional traditions nor fall under the scope of the ‘Sólyom formula’ since not all the EU members are parties to these treaties. Certainly, they can be taken into account as EU

63 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 64 See Article 2 of TEU or Articles 10 and 19, paragraph 1, of TFEU, for instance. 65 UN Treaty Series, Optional Protocol to the International Covenant on Civil and Political Rights, https://​treaties​.un​.org/​Pages/​ViewDetails​.aspx​?src​=​TREATY​&​mtdsg​_no​=​IV​-5​&​chapter​=​4, accessed: 31 May 2021.

European Union law and international minority rights law  125 acquis, but this is a genuine legal institution or technique of EU law instead of being a tool of public international law and as such does not come under the scope of this chapter.

REFERENCES Aspremont, Jean d’, and Frédéric Dopagne, ‘KADI: The ECJ’s Reminder of the Elementary Divide between Legal Orders’ (2008) 5 International Organization Law Review, 2, 373. Blanke, Hermann-Josef, and Stelio Mangiameli (eds), The Treaty on European Union (TEU): A Commentary (Springer Verlag, 2013). Bruhács, János, Nemzetközi jog I. Általános rész [International Law I: General Issues] (Dialóg-Campus Kiadó, 1998) 34. Cassese, Antonio, International Law (Oxford University Press, 2005) 187–97. Crawford, James, Brownlie’s Principles of Public International Law, Eighth Edition (Oxford University Press, 2012) 539–63. Cygan, Adam, ‘Citizenship of the European Union’ (April 2013) 62 International and Comparative Law Quarterly, 2, 493. Distefano, Giovanni, Fundamentals of Public International Law: A Sketch of the International Legal Order (Brill-Nijhoff, 2019). Draper, Matthew, ‘Articles 27–32’ in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, 2005) 593–6. Dubout, Edouard, ‘La relativité de la distinction des normes du droit de l’Union Européenne et du droit international’ in Laurence Burgorgue-Larsen et al. (eds), Les interactions normatives droit de l’Union Européenne et droit international (Éditions Pedone, 2012) 17. Girasoli, Nicola, National Minorities: Who Are They? (Akadémiai Kiadó, 1995) 110. Govaere, Inge, ‘The Importance of International Developments in the Case-law of the European Court of Justice: Kadi and the Autonomy of the EC Legal Order’ (2009) 1 Research Papers in Law, 5. Harvard Law Review Association, ‘European Court of Justice Holds that the Slovak Republic Did Not Violate EU Law in Banning the President of Hungary from Entering Its Territory. Case C-364/10, Hungary v Slovak Republic, 2012 ECJ EUR-Lex LEXIS 2465 (Oct. 16, 2012)’ (June 2013) 126 Harvard Law Review 8. Heintze, Hans-Joachim, ‘Article 1’ in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, 2005) 82–3. Higgins, Rosalyn, ‘The ICJ, the ECJ, and the Integrity of International Law’ (January 2003) 52 International and Comparative Law Quarterly 1, 6. Kardos, Gábor, Kisebbségek, konfliktusok és garanciák [Minorities, Conflicts and Guarantees] (Gondolat, 2007) 128. Lando, Massimo, ‘Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court’ (November 2015) 78 Modern Law Review, 6, 1034. Lara, Eladio Arroyo, and Luis V. Pérez Gil, ‘La relación formal y material del derecho comunitario con el derecho internacional público’ (May 2008) 25 Anales de la Facultad de Derecho, 33. Londras, Fiona de, and Suzanne Kingston, ‘Rights, Security, and Conflicting International Obligations: Exploring Inter-Jurisdictional Judicial Dialogues in Europe’ (Spring 2010) 58 American Journal of Comparative Law, 2, 406. Lovric, Daniel, ‘A Constitution Friendly to International Law: Germany and its Völkerrechtsfreundlichkeit’ (2006) 25 Australian Year Book of International Law, www5​.austlii​.edu​.au/​au/​journals/​AUYrBk IntLaw/2006/4.html, accessed 31 May 2021. Mohay, Ágoston, A nemzetközi jog érvényesülése az uniós jogban [The Implementation of International Law in the EU’s Legal Order] (PTE ÁJK Európa Központ, 2019). Moreno-Lax, Violeta, ‘The Axiological Emancipation of a (Non-)Principle: Autonomy, International Law and the EU Legal Order’ in Inge Govaere and Sacha Garben (eds), The Interface Between EU and International Law: Contemporary Reflections (Hart Publishing, 2019) 45–6.

126  Research handbook on minority politics in the European Union Pan, Christoph, and Beate S. Pfeil (eds), National Minorities in Europe (Ethnos, 2003). Spaledakis, Daphne, ‘Minorities Still Lack a Strong Voice in New European Parliament’ (Reuters, 12 June 2019), www​.reuters​.com/​article/​us​-eu​-jobs​-minorities​-idUSKCN1TD28X, accessed 31 May 2021. Thornberry, Patrick, International Law and the Rights of Minorities (OUP Clarendon Press, 1991) 219–23. Tóth, Norbert, ‘A “nemzeti kisebbség” fogalmi elemei a nemzetközi szokásjogban: a szokásjogi norma azonosításának lehetősége’ [Elements of a definition of national minorities in Customary International Law: the prospects of identifying the relevant customary norms] in Béli Gábor et al. (eds), Emlékkötet Herczegh Géza születésének 90. évfordulója alkalmából [Volume in Memory of the 90th Birth Anniversary of Géza Herczegh] (Publikon, 2018) 189–204. Vizi, Balázs, ‘European Integration and Minority Rights Conditionality Policy’ in Balázs Vizi, Norbert Tóth and Edgár Dobos (eds), Beyond International Conditionality: Local Variations of Minority Representation in Central and South-Eastern Europe (Nomos, 2017) 51–78. Vizi, Balázs, Európai kaleidoszkóp. Az Európai Unió és a kisebbségek [European Kaleidoscope: The Relationship between the European Union and the Minorities] (L’Harmattan, 2013). Vizi, Balázs, ‘Az Európai Unió és a kisebbségi nyelvek’ [The European Union and the minorities’ languages] in Kántor Zoltán and Majtényi Balázs (eds), Szöveggyűjtemény a nemzeti kisebbségekről [A Textbook on National Minorities] (Rejtjel Kiadó, 2005) 333. Vizi, Balázs, ‘Az Európai Unió és a kisebbségek jogai’ [The rights of minorities and the European Union] (2001) 2 Kisebbségkutatás 11, https://​epa​.oszk​.hu/​00400/​00462/​00010/​6​.htm, accessed 31 May 2021. Wessel, Ramses A., ‘Reconsidering the Relationship between International and EU Law: Towards a Content-Based Approach?’ in Enzo Cannizzaro, Paolo Palchetti and Ramses A. Wessel (eds), International Law as Law of the European Union (Martinus Nijhoff, 2011) 10. Ziegler, Katja, ‘The Relationship between EU Law and International Law’ (2015) University of Leicester School of Law Research Paper 15-04, 10.

PART II THE POLITICS OF DECISION-MAKING AND POLICY-MAKING

7. The European Parliament, the Council and the European Council Noémi Nagy and Balázs Vizi

INTRODUCTION As the European integration developed during recent decades, so did the different institutional competencies and institutional roles. In the European Union’s (EU’s) particularly complex institutional structure, the European Parliament (EP) and the Council of the European Union (Council) can be considered the most important legislative bodies. As the law-making competencies of the EP have been continuously expanded in the founding treaties, there are scholars who argue that the Council and the EP can be seen as functioning as a bicameral legislative body (Farrel and Héritier, 2004). Others, however, underline that during the joint legislative procedure the Council even today plays a dominant role over the EP (Hagemann and Høyland, 2010). In any case, it is true that the EP, which was established as a purely political body, has gained strong legitimacy since it is directly elected and over recent decades has remarkably strengthened its institutional position. Since the Lisbon Treaty entered into force, in most cases the EP and the Council jointly exercise legislative functions and there are only a few policy areas where the Council can take decisions autonomously, following consultations with the EP. In the ordinary legislative procedure, the EP and the Council act together and even in the special legislative procedure the EP will be consulted. The EP cannot initiate a legislative procedure on its own but may ask the European Commission (EC) to submit any appropriate proposal on matters on which it considers that a Union act is required (see Arts. 223–5 of the Treaty on the Functioning of the European Union; TFEU). Based on this institutional setting, this chapter focuses on how the two legislative bodies, the EP and the Council, as well as the European Council, deal with minority issues. The evolution of the EU was reflected also in its varying interest in minority issues. When it comes to the approach of the EU towards the protection of its minorities, Toggenburg (2009) identifies three phases since 1979: (i) the idealistic phase between 1979 and 1993, (ii) the enlargement phase between 1993 and 2004/2007 (the accession of Bulgaria and Romania in 2007 is often seen as the extension of the ‘big bang’ enlargement of 2004) and (iii) the internalization phase since the adoption of the Lisbon Treaty. This periodization was mainly designed to describe the EP’s developing approach towards minority issues, but it may be helpful for understanding the Council’s changing positions as well. The first phase can be linked to the direct election of the EP, and in this period the EP was a solitary actor as neither the EC nor the Council showed any interest in minority issues. In this period legislative initiatives dominated the EP, aimed at creating supranational legal protection for minority rights. The second period is defined by the enlargement process, since after the inclusion of minority protection in the EU membership criteria at the Copenhagen summit in 1993, the EP dedicated more attention to the situation of minorities in candidate states. The third phase, following the accession of Central and Eastern European (CEE) states and the adoption of the Lisbon Treaty (including 128

The European Parliament, the Council and the European Council  129 for the first time reference to minority rights as well), is characterized by new endeavours to establish clear legal protection of minority rights within the EU.

THE EUROPEAN PARLIAMENT Among the major institutions of the EU, the EP has been the most active in addressing minority issues. Neither the EC nor the Council have shown interest in opening their agenda for questions directly affecting minorities in the EU. Certainly, as the EP has never been an autonomous decision-making body within the EU, in law-making procedures it has to work closely with the Council. This co-decision-making procedure entails that for any legal act a consensus needs to be reached between the EP and the Council; i.e., the member states. This institutional-procedural structure explains clearly why the EP has not been successful in translating its progressive position on minority rights into EU legislation. As mentioned above, among the major institutions of the EU (and its predecessors), the EP has been consistent in demonstrating interest in minority issues and today is still the most active EU institution in this field. Members of the EP (MEPs) are elected directly in each member state, and the number of MEPs is roughly proportionate to the population of member states. MEPs are organized by political affiliation and not by nationality; political groups are formed after each EP election. After the latest (2019) elections, there are seven political groups in the EP. From a legislative perspective the EP works in committees, preparing legislation; and in plenary session, passing legislation, in most cases by the majority of its members (Corbett, Jacobs and Shackleton 2011, 157–78). The EP is the political forum par excellence among the EU institutions where all politically sensitive, delicate issues may surface and may be debated that otherwise are not backed by the consensus of member states or go beyond the legislative competencies of the EU. Since the direct election of the members of the EP was introduced in 1979, its political legitimacy is more solid. Some member states, like Italy or Belgium, apply preferential measures for minority parties, and minority MEPs are also elected in member states where sizeable minority communities live (Manzinger 2020, 10). Indeed since 1979 there have always been active MEPs who have ardently attempted to promote minority rights protection either in the plenum or in committees. Such issues mostly arise in the Committees on Petitions (PETI) and Civil Liberties, Justice, and Home Affairs (LIBE), but also in those of Culture and Education (CULT) or Legal Affairs (JURI), and obviously within the so-called Minority Intergroup, the semi-formal cooperation of MEPs overarching the different political groups (cf. Manzinger 2020, 14–19). In the past 40 years the EP has adopted various resolutions on the issue, and we may distinguish three periods in this regard: the first period (1979–93, before the adoption of the Maastricht Treaty and before the Eastern enlargement started) was marked by ambitious initiatives to adopt a supranational legal instrument for the protection of minority rights; the second period (1993–2004/2007) was characterized by the effects of the enlargement process and the third (from 2004/2007) may be identified by the normative approach reflecting the new elements of the Lisbon Treaty. However, this periodization is somehow arbitrary as the overlap between these periods shows that the different phases do not really have a clear closing date, since the enlargement process is still ongoing and the idea for legal protection of minorities under EU law is also still present in the EP. To use Toggenburg’s term, the first, idealistic period starts from the first direct election of the EP and lasts until June 1993, the adoption

130  Research handbook on minority politics in the European Union of the EU-accession criteria (the so-called Copenhagen criteria) by the European Council (Toggenburg 2009, 163). The first initiatives in the EP were ‘idealistic’ as they were aimed at creating a coherent supranational system of minority protection in the EU, while EU member states have never shown any political interest in legislating on minority issues within the EU. The First EP Initiatives and Resolutions on Minority Rights During the first two legislative periods (1979–84, 1984–89) the protection of minority cultures and languages was in focus. Within the EP the Committee on Legal Affairs and the Committee on Culture were the forums where such initiatives first appeared. One of the first ambitious initiatives came from the South Tyrolean MEP Joachim Dalsass in the Committee on Legal Affairs, regarding the adoption of a Charter of Minority Rights, the German Alfons Goppel being the designated rapporteur of the proposal, but it was never voted upon. In 1988 MEP Count Stauffenberg submitted a proposal draft for a ‘Charter of the Rights of Ethnic Minorities’.1 The draft was very ambitious: it envisaged that group rights could be invoked before the European Court of Justice, and even included a special mechanism for the recognition of minorities.2 The report underlined the need to adopt a legal charter on the matter.3 However, due to forthcoming EP elections, the EP never discussed the report (Toggenburg 2009, 164). After the Council of Europe’s European Charter for Regional or Minority Languages (ECRML) was adopted in 1998, the EP focused on promoting the implementation of this instead of elaborating its own legally binding, comprehensive normative document on the protection of minority languages. The Committee on Culture adopted a more pragmatic approach in the 1980s: it focused on the preservation and support of minority languages. This approach emerged from the reports submitted by the Italian MEP Gaetano Arfé, based on which the EP adopted two important resolutions focusing on the cultural value of regional, minority or ‘lesser-used’ languages in the EU. In 1981, in its first resolution on the topic,4 the EP called on the national governments and regional and local authorities to allow and promote the teaching of regional languages and cultures in official curricula at all levels of education, from nursery school to university; to grant opportunities for regional languages in the local radio and television; and to ensure that individuals are allowed to use their own language in public life and social affairs, in their dealings with official bodies and in the courts. Moreover, the EP called on the EC to review all Community legislation which discriminates against minority languages.5 In the following resolution on the matter, the EP – ‘considering that some 30 million Community citizens have as their mother tongue a regional language or a lesser-used language’ – once again called on

P.E. 156.208. It suggested that 100 persons belonging to a minority group could take action against member states who failed to recognize the minority group in question. 3 It ought to be mentioned that the report talked exclusively about ethnic minorities in the plural, never referring to the legal term of ‘persons belonging to minorities’, thus suggesting a rather permissive approach to the group rights of minorities. 4 Resolution on a Community Charter of Regional Languages and Cultures and on a Charter of Rights of Ethnic Minorities OJ No. C 287, 9 November 1981, p. 106. Adopted by Parliament on 16 October 1981 on the basis of the so-called ‘Arfé report’ prepared by the rapporteur, Gaetano Arfé. 5 Ibid., paras 4–6. 1 2

The European Parliament, the Council and the European Council  131 the EC to take practical measures for the enhancement of opportunities for the use of minority and regional languages.6 A few years later (in 1987), based on the report prepared by MEP Willy Kuijpers, the EP adopted a new resolution7 reinforcing its previous proposals for the member states and the EC. The EP also included new recommendations to member states for extending language use in the mass media, and in the different areas of cultural, economic and social life alike. It recommended that authorities should officially recognize surnames and place names in regional or minority languages, and it emphasized that appropriate measures had to be taken to provide for the use of the regional and minority languages in public services (postal service, etc.), consumer information and product labelling, and on road and other public signs and street names.8 (Later on, very similar provisions appeared in the Council of Europe Framework Convention for the Protection of National Minorities (FCNM), adopted in 1995.) The most important initiative of the Kuijpers resolution was that it recommended the adoption of separate financing in the EU budget (at least 1 million European Currency Units) for actions favouring minority languages. The resolution called on the EC to grant official consultative status to the European Bureau for Lesser Used Languages (EBLUL), a non-governmental organization observing the situation of minority languages in EU member states, partly financed by EC sources.9 In 1994, the EP adopted another resolution in favour of the protection of minority and regional languages, based on the Killilea report.10 The 1994 resolution underlined that the member states should recognize their linguistic minorities and provide the basic conditions for preserving and maintaining these languages. Such legal acts should ‘at least cover the use and encouragement of such languages and cultures in the spheres of education, justice and public administration, the media, toponomics and other sectors of public and cultural life.’11 The resolution also called on the member states to sign and ratify the Council of Europe ECRML and to allocate financial sources for the national offices of the EBLUL. The ‘Enlargement Impetus’ Even if the EP played a minor role in the process, the EU’s Eastern enlargement influenced significantly how minority issues were addressed in the EP. In 1993, at the Copenhagen summit the European Council adopted the political, legal and economic criteria that needed to be fulfilled by CEE states for the accession to the EU. These conditions, solidified also at the Madrid summit in 1995, included, inter alia, the requirement of stable democracy, the rule of law, protection of human rights and ‘respect for and protection of minorities’. This accession

6 Resolution on Measures in Favour of Linguistic and Cultural Minorities, adopted by the Parliament on 11 February 1983, OJ C 068, 14 March 1983, p. 103. 7 Resolution on the Languages and Cultures of the Regional and Ethnic Minorities in the European Community, Resolution adopted on the basis of the report presented by Willy Kuijpers, adopted by the EP on 30 October 1987. OJ 1987 C 318, p. 160. 8 Ibid. 9 After more than 25 years of existence, due to the changes of the financial circumstances, EBLUL ceased its activities and was closed in March 2010. 10 Resolution on Linguistic Minorities in the European Community, OJ 1994 C 61, p. 110. Mark Killilea, an Irish MEP, was the rapporteur and he built largely on the recent experiences of the Council of Europe ECRML in his report. 11 Ibid., para. 4.

132  Research handbook on minority politics in the European Union conditionality was new as compared to previous enlargements since for the first time it not only formulated strictly political criteria for aspiring candidate states, but the reference to the protection of minorities was an absolutely new element.12 Especially in light of the violent break-up of socialist Yugoslavia, EU member states wanted to promote the protection of minorities in potential candidate states of the CEE region in order to avoid ethnic conflicts. Minority rights, similar to other accession criteria, are being monitored by the EC in the enlargement process that has a dominant position among EU institutions in evaluating candidate states’ progress towards accession. There are three major steps for any state willing to join the EU, all requiring the EU Council’s unanimous decision: granting candidate-state status, starting formal accession negotiations and, finally, adopting the accession treaty granting membership. But the negotiations are led by the EC, which every year issues a regular report on each candidate state’s progress in meeting the accession criteria and on the actual state of accession negotiations. The EP discusses the EC’s progress reports and usually adopts specific resolutions on them. Even if EP resolutions on EC reports on candidate states are not legally binding, they have an important political role, strengthening the concerns on the situation of minorities formulated by the EC.13 The EP has legal competencies on the accession process when it needs to vote on association agreements and on treaties of accession. Before a country formally applies for membership, the EU typically signs an association agreement (also called a ‘European agreement’) with the state, which helps to formalize relations and supports the country’s endeavours to start the formal accession process. Minority protection requirements are also mentioned in the association agreements, usually in the preamble and not in the legally binding regulations. The EP has never vetoed any of these treaties, but in its resolutions on association or accession of a country it has often formulated more specific requirements on minority rights than the EC did. Indeed, the process of enlargement shed light on the difficulty of drawing a line between rights protection and policy-making towards minorities (Sasse 2004, 63–5). The EC focused much more on requiring political commitments from candidate states, while the EP resolutions sometimes also formulated clear requests for legislative changes. For example, when the EP voted on the accession of Romania, it stressed explicitly the importance of adopting a new law on minority rights as well as the respect for cultural self-government that was not mentioned in the EC’s report.14 The experiences of the CEE enlargement were also reflected in the renewed approach of the EP for promoting a more comprehensive EU policy on protecting linguistic diversity. In 2001 the EP adopted a resolution concluding the European Year of Languages in 2001,15 urging the EC to propose measures ‘to promote linguistic diversity and language learning’, including financial support for the promotion of regional and lesser-used languages. The 2001 See more on this in Chapter 6 of this volume. See, for example, the Resolution on the comprehensive monitoring report of the European Commission on the state of preparedness for EU membership of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (COM(2003) 675 – C5-0532/2003 – 2003/2201(INI)), adopted on 11 March 2004, P5_TA(2004)0180. 14 Resolution on the accession of Romania to the European Union, adopted by the Parliament on 30 November 2006, P6_TA(2006)0512, and European Commission Monitoring Report on Romania, Brussels, 16/05/2006, SEC (2006) 596. 15 Resolution on Regional and Lesser Used European Languages, adopted by the Parliament on 13 December 2001, B-5 0770. 12 13

The European Parliament, the Council and the European Council  133 resolution also called on the EC and the Council to ‘require candidate countries to respect regional or minority languages and cultures’. It implicitly referred also to the problematic ‘double standard’ (see Henrard 2010, Nagy 2012) when highlighting that ‘the European Union has a responsibility to support the member and candidate countries in developing their cultures and protecting linguistic diversity within their borders’.16 In a subsequent resolution, based on the report prepared by Michl Ebner in the Committee on Culture, the EP called on the EC to provide ‘scientifically based criteria for a definition of a minority or regional language’ for the EU programs on linguistic diversity.17 The 2003 resolution recommended setting up a European Agency on Linguistic Diversity and Language Learning and a multi-year program on linguistic diversity and language learning, dedicating separate funds for regional and lesser-used languages. The EP also reflected on the enlargement experience when it urged the EC to work more closely with the Council of Europe on the implementation of the ECRML and the FCNM. The EP also recommended to the Intergovernmental Conference – which was working on the reform of EU treaties in light of the enlargement – that it extend Art. 13 (today Art. 19 TFEU) to the prohibition of discrimination based on language and include a new article on the promotion of linguistic diversity (including regional or minority languages) by fostering closer cooperation among member states in this field.18 The Post-Enlargement Period: Diverse Considerations It should be noted that the geographical expansion of the EU not only influenced the EP’s approach to minorities, but many new MEPs (elected in the member states that joined the EU after 2004) have become very active in promoting minority issues in the EP.19 The first EP that was elected after the 2004 enlargement made enhanced efforts to provide a comprehensive normative framework for the protection of minorities within the enlarged EU. On behalf of the LIBE, MEP Claude Moraes was the rapporteur of the draft resolution on the ‘protection of minorities and anti-discrimination policies in an enlarged Europe’.20 The resolution adopted based on the Moraes report called attention to the fact that following the accession of ten countries, the enlarged EU was more diverse than ever before, and pointed out the inconsistency between the minority protection criteria of accession and the lack of any internal EU standard Ibid., para. 6. Resolution with recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity (2003/2057(INI)). Official Journal 2004 C 76 E, 374. 18 ‘The Intergovernmental Conference should […] ensure that the following new Article 151a is inserted in the EC Treaty: “The Community shall, within its spheres of competence, respect and promote linguistic diversity in Europe, including regional or minority languages as an expression of that diversity, by encouraging cooperation between Member States and utilising other appropriate instruments in the furtherance of this objective.”’ (Para. 24.) 19 Not only MEPs having a minority background; for example, MEPs from Hungary proved to be particularly vocal in this field, drafting reports for plenary resolutions, and also in the works of the Minority Intergroup. Since 2004 one of the co-chairs of the intergroup has been Hungarian (cf. Manzinger 2020). 20 The final resolution was adopted by the plenary session on 8 June 2005; Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe (2005/2008(INI)), P6_TA(2005)0228. 16 17

134  Research handbook on minority politics in the European Union on minority rights. The resolution recommended adopting a definition of minorities based on the definition of the Council of Europe Parliamentary Assembly Resolution 1201(1993).21 The EP acknowledged that there cannot be a single solution for all minorities in the EU, but ‘some common and minimum objectives for public authorities in the EU’ should be developed, taking into account both member states’ experiences and international instruments on minority rights. The 2005 resolution was innovative also because it listed all the EU Treaty articles that it considered potentially relevant for taking action for the protection of minorities in the EU.22 The EP also called attention to the specific situation of certain minority groups, formulating separate recommendations for the Roma, immigrants, linguistic and traditional ethnic minorities, and stateless persons as well. For the first time the EP acknowledged that the Roma minority is the largest minority group in the EU after the enlargement and it ‘needs special protection’. This statement echoed the concerns of the EP expressed earlier in a resolution on the situation of the Roma, calling attention to the specific social, economic difficulties of the Roma all over Europe and the need to stand against discrimination and anti-Gypsyism threatening them.23 The EP actively supported the adoption of a European strategy for the Roma,24

The Council of Europe PA 1201(1993) resolution defines national minorities as ‘groups of persons in a state who: reside on the territory of that state, maintain longstanding, firm and lasting ties with that state, display distinctive ethnic, cultural, religious or linguistic characteristics, are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state, are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their tradition, their religion or their language’. 22 The list was as follows: (a) Article 13 on anti-discrimination policy; using this legal basis, which is the most far reaching as regards the protection of minorities, the Union could, on the basis of its experience, develop the following initiatives that have already been implemented and strengthen various articles of the FCNM, such as Article 3(1), Article 4(2) and (3) and Articles 6 and 8 thereof, (b) Article 18 TEC, which deals with freedom of movement and the right of residence, could serve as a strong basis for facilitating the movement of people belonging to minorities, thereby avoiding their isolation, the creation of new “ghettos” or forced assimilation, (c) Articles 49, 95 and 151 TEC could provide a strong foundation in the Union for safeguarding the principles enshrined in Article 9 of the FCNM, such as freedom of expression or the right not to be discriminated against in access to the media, (d) Articles 65 TEC and 31 TEU, which deal with judicial cooperation and assistance and cover ground similar to Article 10(3) of the FCNM, are of the utmost importance for any member of a minority seeking assistance, whether in civil or criminal proceedings, (e) Article 62 TEC, which deals with migration policy, which remains incomplete six years after the entry into force of the Treaty of Amsterdam (consideration must be given to the need for legal migrants to be integrated into society), (f) Points (g), (h), (i) and (j) of Article 137(1), which deal with the employment of third-country nationals, the integration of persons excluded from the job market and combating social exclusion, would be a strong basis for new initiatives focusing on minorities, (g) Article 149 TEC on improving access to education could contribute, through furthering the integration of minorities into society, as provided for in Article 12 and 14 of the FCNM, (h) Articles 151 and 163 TEC, which deal with culture and research, could be of importance for developing common programmes for minorities in these areas (as provided for in Article 12 of the FCNM). (Para. 49.) 23 Resolution on the situation of Roma in the European Union, adopted by the European Parliament on 28 April 2005 P6_TA(2005)0151. 24 Resolution on a European Strategy on the Roma, adopted by the European Parliament on 31 January 2008. Official Journal C 68 E, 21.3.2009, p. 31. 21

The European Parliament, the Council and the European Council  135 and expressed its concern about the restrictions introduced by some member states on the free movement of people of Roma origin, mainly affecting those Roma moving from Romania to France, Italy and Spain after Romania’s accession to the EU.25 This sustained interest of the EP towards the Roma was clearly motivated by the accession of CEE states. Before 2004 the situation of the Roma in the EU scarcely appeared in any EP resolution;26 much more attention was paid to their rights and living conditions in the candidate states (Vermeersch and Ram 2009, 68). After 2004 the number of EP resolutions related to the Roma’s specific social situation increased significantly.27 The EP was also active in supporting the adoption and implementation of the EU Roma Strategy Framework (Vizi 2011, 126–7). Nevertheless, the relevant EP resolutions, just like the framework strategy presented by the EC, tend to focus on ‘Roma integration’ and much less, if any, attention is paid to ‘classic minority rights’, such as the preservation and strengthening of Roma languages and cultures.28 In the meantime, the EP has continued to follow the situation of the Roma in the candidate states, especially arguing for more policy actions aimed at fighting discrimination and solving housing and healthcare issues in line with EU Roma strategy objectives.29 Besides reflecting the challenges of EU enlargement on minority issues, the EP continued to demonstrate interest in the protection of minority cultures and languages. As a matter of fact, the respect for cultural diversity indeed resonates with the primary concern of the EP on the protection of minority languages; i.e., linguistic diversity characterizing the EU.30 What seems to be important here is the open approach applied; i.e., the lack of specific legal regulations on the matter leaves considerable flexibility for any future development of EU law and policies, eventually also favouring minorities. In its resolution adopted in 2009, the EP emphasized that within the context of promoting language learning and multilingualism within the EU, such activities and policies shall extend also to regional and minority languages.31

Resolution on the situation of Roma and on freedom of movement in the European Union, adopted by the European Parliament on 9 September 2010, P7_TA(2010)0312. 26 Among the few exceptions are the concerns regarding the housing of Roma in Italy and Greece in the Resolution on the situation concerning basic rights in the European Union (2001), adopted by the European Parliament on 15 January 2003, P5_TA(2003)0012. Also, Roma women are mentioned in the Resolution on the situation of women from minority groups in the European Union, adopted by the European Parliament on 9 March 2004, P5_TA(2004)0153. 27 Among others see Resolution on the social situation of the Roma and their improved access to the labour market in the EU, adopted by the European Parliament on 11 March 2009. P6_TA(2009)0117; and Resolution on the situation of Roma women in the European Union, adopted by the European Parliament on 1 June 2006, P6_TA(2006)0244. 28 See, for example, Resolution on the EU strategy on Roma inclusion, adopted by the European Parliament on 9 March 2011, P7_TA(2011)0092, para. 4.; Resolution on the implementation of National Roma Integration Strategies: combating negative attitudes towards people with Romani background in Europe, adopted by the European Parliament on 17 September 2020, P9_TA(2020)0229, paras 30–40. 29 Resolution on the 2019–2020 Commission reports on Serbia, adopted by the European Parliament on 25 March 2021, P9_TA(2021)011, paras 49, 62; and Resolution on the 2019–2020 Commission Reports on Albania, adopted by the European Parliament on 25 March 2021, P9_TA(2021)0112, paras 34, 56. 30 Resolution on Endangered European Languages and Linguistic Diversity, adopted by the European Parliament on 11 September 2013, P7_TA(2013)0350. 31 Resolution on Multilingualism: an asset for Europe and a shared commitment, adopted by the European Parliament on 24 March 2009, P6_TA(2009)0162, para. 26. 25

136  Research handbook on minority politics in the European Union During the past decade, concerns on minority rights even made their way to the general human rights approach of the EP. Thanks to the efforts of MEP József Nagy (a member of the Hungarian community in Slovakia) as rapporteur of a report on the situation of fundamental rights in the EU in 2015, for the first time since 1993 – when the EP started to debate a yearly report on fundamental rights – the 2016 resolution dedicated a separate chapter (paras 96–104) to the rights of national minorities.32 Even if this practice of a separate chapter was not solidified, minority rights regularly appear in the reports on fundamental rights in the EU. In a similar way the EP continuously pays attention to the situation of minorities outside the EU, as reflected in the annual reports on human rights and democracy in the world.33 Even if the EC’s approach is consistent in denying any EU legislative competence on minority rights,34 the EP remains coherent with its idealistic approach when it promotes EU-wide minority protection standards. In 2018 the EP adopted two important resolutions in this direction: one focusing on anti-discrimination measures35 and another on the minimum standards for minorities in the EU.36 In the first resolution, the EP called on the EC and the Council to revise the Racial Equality Directive and the Equal Treatment in Employment Directive before the end of the legislative term in 2019 (it did not happen). It also called on member states to sign and ratify the two Council of Europe treaties, the FCNM and ECRML as well as Protocol No. 12 of the European Convention on Human Rights (para. 14). The EP stressed that the ‘the protection of national minorities and the prohibition of discrimination on grounds of language and membership of a national minority are enshrined in the Treaties and the EUCFR [EU Charter of Fundamental Rights]’ (para. 8). The resolution underlined the need for a more enhanced protection of minority languages and called on the EC to take measures against language discrimination (paras 16–18). Two interesting elements of this resolution reveal that the concept of ‘minority’ is flexibly used: it ‘stresses that the situation and legal status of non-citizens permanently resident in Member States needs to be addressed’ (para. 12) and it dedicates specific recommendations for the protection of LGBTI persons (paras 19–21). The second resolution, adopted by the EP in November 2018, was motivated partly by the successful launch of the Minority SafePack citizens’ initiative by the Federal Union of European Nationalities (Bieber and Bieber 2021, 201). This resolution focuses on national and ethnic minorities and recommends that, with respect to the principles of subsidiarity, proportionality and non-discrimination, a definition of a ‘national minority’ should be based on the definition laid down in Recommendation 1201 of the Parliamentary Assembly of the Council of Europe (1993). It encourages the EC to set up an organ at EU level for the recognition and protection of minorities (para. 12). At the same time, it indicates the need to protect all national or ethnic, religious and linguistic minorities, regardless of the definition, and stresses that any

Resolution on the situation of fundamental rights in the European Union in 2015, adopted by the European Parliament on 13 December 2016, P8_TA(2016)0485. 33 The latest report was adopted in 2021; Resolution on human rights and democracy in the world and the European Union’s policy on the matter – annual report 2019, adopted by the European Parliament on 20 January 2021 P9_TA(2021)0014. 34 Communication from the Commission on the European Citizens’ Initiative Minority SafePack – one million signatures for diversity in Europe, C(2021)171, 15/01/2021. 35 Resolution on protection and non-discrimination with regard to minorities in the EU Member States, adopted by the European Parliament on 7 February 2018, P8_TA(2018)0032. 36 Resolution on minimum standards for minorities in the EU, adopted by the European Parliament on 13 November 2018, P8_TA(2018)0447. 32

The European Parliament, the Council and the European Council  137 definition should be applied in a flexible manner, as de facto inclusion of beneficiaries under the protection of minority rights often forms part of an evolutionary process that may eventually lead to formal recognition. Most of the EP’s recommendations are based on the FCNM and the ECRML, and the EP calls on the EU to accede to, and the member states to ratify, the two treaties (para. 18). The resolution even calls for a legislative proposal on the minimum standards for the protection of minorities in the EU, while acknowledging the respect for subsidiarity and proportionality (para. 10). The resolution has a strong focus on linguistic, cultural and educational rights of minorities, but it also stresses the importance of the recognition of indigenous peoples’ rights (para. 19) and calls attention to the special needs of stateless Roma (para. 16). However, as Henrard noted, while the resolution is aimed at setting ‘minimum standards’ for minorities, it strikingly avoids references to religious minorities and religious diversity (Henrard 2021, 9). As a conclusion, the resolution contains a call for the EC to draw up a common framework of EU minimum standards for the protection of minorities. This framework could consist of at least three instruments: ● the guidelines reflecting good practices within the member states; ● an EC recommendation, taking into consideration existing national measures, subsidiarity and proportionality; ● a legislative proposal for a directive on minimum standards for minorities in the EU, including clear benchmarks and sanctions. Beyond its own initiatives, the EP consistently supported the Minority SafePack initiative, also adopting a resolution on the matter in 2020.37 Even after the EC rejected the successful citizens’ initiative and refused to take any action, the Committee on Culture and Education organized a debate. Finally, the EP may also decide to hold a plenary debate and to adopt a resolution in support of a citizens’ initiative.38 The Minority Intergroup In the work of the EP committees, political groups play a decisive role. Since 2004 there have been 20 standing committees in the EP that prepare the plenary sessions and draw up, amend and adopt legislative proposals and own-initiative reports. Since the MEPs are organized by political affiliation, political groups are determining the political agenda. In this structure party politics dominates the work of the EP, but – unlike in many national parliaments – MEPs have an independent mandate,39 so there may be issues that are personally important for an MEP but not that important for the political group he or she belongs to. This raises the need for cross-partisan cooperation, and parliamentary intergroups are the semi-formal institutional structure for that (Corbett, Jacobs and Shackleton 2011, 208–18).

Resolution on the European Citizens’ Initiative – Minority SafePack, adopted by the European Parliament on 17 December 2020, P9_TA(2020)0370. 38 See the Committee debate held on 24 February 2021 at https://​multimedia​.europarl​.europa​.eu/​en/​ webstreaming/​committee​-on​-culture​-and​-education​_20210224​-0900​-COMMITTEE​-CULT. 39 As the Rules of Procedure of the European Parliament state: ‘Members shall exercise their mandate freely and independently, shall not be bound by any instructions and shall not receive a binding mandate’; Rule 2, www​.europarl​.europa​.eu/​doceo/​document/​RULES​-9​-2021​-09​-13​_EN​.pdf. 37

138  Research handbook on minority politics in the European Union The main features of intergroups can be summarized with the following keywords: (i) informal structure, (ii) cross-partisan nature, (iii) topic-oriented work and (iv) interface with civil society (Dutoit 2016). Regarding their structure, an important advantage of intergroups (compared to parliamentary committees, for example) is that they are structurally flexible: it is possible to merge, dissolve or create new intergroups quite easily. Intergroups automatically dissolve at the end of each term, and at the beginning of the new parliamentary term each intergroup has to be re-established. In 1983 the Intergroup on Minority Issues was one of the first intergroups that was formed in the EP, and – under different names – it has been active ever since, as it has been continuously re-established at the beginning of each parliamentary term. Since MEPs are directly elected, there have always been many of them with a minority background, and many MEPs of majority origin are also interested in minority issues (especially when they are representatives of a kin state). The intergroup (today named the Intergroup for Traditional Minorities, National Communities and Languages) has an important role in promoting minority rights and minority cultures in the EP, initiating resolutions on minority rights, maintaining contacts with other international actors (Organization for Security and Co-operation in Europe [OSCE] High Commissioner on National Minorities, Council of Europe bodies, etc.) and giving a forum to minority claims (Gál, Hicks and Eplényi 2011, 16–23). The first intergroup focused on languages and minority cultures, while after 2004 it extended the topics covered and moved to a broader area of minority protection. It should be noted, however, that the intergroup’s main focus of interest is traditional minorities: it rarely deals with the Roma, and migration/migrants have never been on its agenda. A quantitative analysis shows that while most issues on the intergroup’s agenda are related to general minority questions, its members effectively promote their national interests and the intergroup dedicates special attention to minorities that its members represent (Brucker 2019, 171–3). Analysing its work, the Minority Intergroup seems to be successful in building cross-party bridges for promoting minority issues: for each term around 40–60 MEPs from four to five political groups participate in its work. While it is an informal forum, the intergroup proves to be effective in raising public awareness on specific minority-related issues, by adopting joint declarations, holding hearings, preparing initiatives for the plenary, etc. (see also Brucker 2019).

THE EUROPEAN COUNCIL Comprised of the heads of state or government of member states, the European Council defines the EU’s overall political direction and long-term priorities, traditionally by adopting conclusions during quarterly summits which identify matters of concern and actions to take. The issue of minorities has been usually considered as part of the EU’s policy agenda and thus regularly appears at the meetings of the European Council, although with varying level of importance. Applying Toggenburg’s typology to distinguish periods in the EU’s approach towards the protection of minorities, we are going to look at the European Council conclusions adopted between 1975 (the establishment of the European Council) and 1992, between 1993 and 2003, and between 2004 and 2021. As for the first period, while this can be seen as idealistic and ambitious in the case of the EP, at this stage the European Council showed only marginal interest towards the minority issue. Out of the 48 conclusions adopted in this period, only seven made any reference to

The European Parliament, the Council and the European Council  139 minorities,40 with the first conclusion adopted as late as 1989. These documents discussed minority rights in Central and Eastern Europe, the Soviet Union (after 1991: Russia and the Commonwealth of Independent States) and the Maghreb countries, in the context of external relations and political cooperation with the Conference on Security and Cooperation in Europe (CSCE). The ‘better protection of minorities’ was mentioned – along with, inter alia, the respect for the rule of law and human rights – as an important element of the ‘balanced development’ of these countries and the ‘human dimension’ of democracy. As the 1991 Luxembourg Presidency Conclusions put it, [t]he protection of minorities is ensured in the first place by the effective establishment of democracy. The European Council recalls the fundamental nature of the principle of non-discrimination. It stresses the need to protect human rights whether or not the persons concerned belong to minorities. The European Council reiterates the importance of respecting the cultural identity as well as rights enjoyed by members of minorities which such persons should be able to exercise in common with other members of their group. Respect of this principle will favour political, social and economic development.41

Certainly, the most fruitful period in the European Council’s activities in terms of minority rights was the Eastern enlargement between 1993 and 2003, when more than half of the conclusions (20 out of 38) referred to the problems of national minorities. Starting with the Copenhagen Presidency Conclusions in 1993,42 the European Council made it very clear that ‘[t]he Union is open only to countries which uphold basic values such as […] respect for minorities’.43 It was no secret that the primary motive of this commitment was ‘to contribute to stability by preventing tension and potential conflicts in Europe’.44 Minority protection in this period developed in the framework of the EU’s Common Foreign and Security Policy, and became a central element of the Stability Pact (establishing and reinforcing peace and security in the Balkans). Notwithstanding the dominating security approach, respect for the rights of minorities occasionally appeared in other contexts, too: as part of the diversity narrative,45 as

40 European Council: Presidency Conclusions, Madrid, 26–27 June 1989; Dublin, 28 April 1990; Dublin, 24–25 June 1990; Luxembourg, 28–29 June 1991; Maastricht, 11 December 1991; Lisbon, 26–27 June 1992; Edinburg, 11–12 December 1992. All conclusions of the European Council are available at www​.consilium​.europa​.eu/​en/​european​-council/​conclusions/​. 41 European Council: Presidency Conclusions, Luxembourg, 28–29 June 1991, p. 26. It is important to note that this was the first time when the European Council – if only implicitly – mentioned minority rights as human rights. 42 ‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union’; European Council: Conclusions of the Presidency, Copenhagen, 21–22 June 1993, p. 13 (emphasis added). 43 European Council: Presidency Conclusions, Laeken, 14–15 December 2001, p. 20. 44 European Council: Presidency Conclusions, Brussels, 10–11 December 1993, p. 24. 45 ‘The diversity of cultures, languages, religions, traditions and origins must become a source of enrichment and a unifying factor, and cease to be a cause of tension and rivalries’; ibid., p. 28.

140  Research handbook on minority politics in the European Union a fundamental European value,46 as an element of a comprehensive approach to migration,47 and in the framework of employment and social cohesion.48 The third phase in the EU’s approach towards minority protection – the period after 2004, and especially after 2007 – was characterized above in this paper as a normative approach reflecting the new elements of the Lisbon Treaty. Whereas this holds true for the EP, the European Council has continued to look at minority issues through the lens of foreign and security policy, in the context of external relations. As enlargement negotiations with Turkey, Bulgaria, Romania and the countries of the Western Balkans proceeded, presidency conclusions recalled that ‘the guiding principles which applied to the accession negotiations with the ten new Member States continue to apply to [the candidate states], which are part of the same inclusive and irreversible enlargement process’, including the 1993 Copenhagen criteria on the protection of minorities.49 Apart from issues within the potential EU candidates, only a few instances of minority rights violations caught the attention of the European Council. All of these took place outside the borders of the Union, namely in Egypt, Syria, Iraq, Ukraine and, most recently, China.50

THE COUNCIL OF THE EUROPEAN UNION The Council – composed of the ministers of member states, according to the policy area to be discussed – is responsible for coordinating member states’ policies in specific fields. As an essential EU decision-maker, it adopts legislative acts binding on the member states – in most cases together with the EP through the ordinary legislative procedure; thus it could be a key actor in developing a common EU minority policy. Given the lack of a special legal basis – and mainly, political will – it has not become one. Minority issues surface only remotely on the Council’s agenda. Since the Council defines and implements EU foreign and security policy on the basis of guidelines set by the European Council, the rights of minorities often appear in Council decisions in the context of enlargement and other areas of external actions.51 The EU is traditionally concerned about the situation of human rights in the world, of which minority rights are considered to be an integral part. The Council decisions (and the EP resolutions) adopted on the basis of the annual human rights reports prepared by the EU External Action Service since European Council: Presidency Conclusions, Berlin, 24–25 March 1999, p. 10. European Council: Presidency Conclusions, Tampere, 15–16 October 1999, p. 2. 48 European Council: Presidency Conclusions, Lisbon, 23–24 March 2000, p. 6.; Santa Maria de Feira, 19–20 June 2000, p. 4.; Nice, 7–9 December 2000, p. 15. 49 European Council: Presidency Conclusions, Brussels, 17–18 June 2004, 10679/2/04 REV 2, p. 5. Cf. Brussels, 16–17 December 2004, ST 16238 2004 REV 1, p. 15; Brussels, 16–17 June 2005, ST 10255 2005 REV 1, pp. 11–12, 34–5; Brussels, 15–16 December 2005, ST 15914 2005 REV 1, p. 7; Brussels, 15–16 June 2006, ST 10633 2006 REV 1, pp. 19–21; Brussels, 14–15 December 2006, ST 16879 2006 REV 1, p. 3; Brussels, 14 December 2007, ST 16616 2007 REV 1, p. 20; Brussels, 19–20 June 2008, ST 11018 2008 REV 1, pp. 15–16; Brussels, 9 December 2011, ST 139 2011 REV 1, p. 5. 50 European Council: Presidency Conclusions, Brussels, 23 October 2011, ST 52 2011 REV 1, p. 10; Brussels, 13–14 December 2012, ST 205 2012 INIT, p. 12; Brussels, 20–21 March 2014, ST 7 2014 REV 1, p. 13; Brussels, 30 August 2014 (special meeting), p. 5; Brussels, 23–24 October 2014, p. 14; Brussels, 1–2 October 2020 (special meeting), p. 9. 51 See more on this in chapters 9 and 18 of this volume. 46 47

The European Parliament, the Council and the European Council  141 200952 always reflect on this fact: ‘The protection of national or ethnic, religious and linguistic minorities is a fundamental principle of international human rights law and the EU founding treaties.’53 Beyond declarations and principled statements, however, minority issues rarely take up much space in these documents, and when they do, they concern situations outside Europe. The 2019 report, for example, focused on the Rohingyas in Myanmar and Bangladesh, and the Uyghurs in China and Tibet,54 whereas the latest report referred to the new EU Roma Strategic Framework, which promotes Roma equality, inclusion and participation in the EU’s external action.55 Other areas where the Council adopted legislation possibly relevant for minorities include linguistic diversity, the integration of the Roma and non-discrimination policy – all of these are discussed in separate chapters of this book. As for minority languages,56 it suffices to note here that most of the relevant Council documents established programs and projects relevant for language teaching or multilingualism in general, and none of them provided any rights for minorities.57 For example, in 2019 the Council adopted a recommendation on teaching and learning of languages within the EU, but apart from stating the obvious – ‘[m]ore than half of the Member States officially recognise regional or minority languages within their borders for legal or administrative purposes’ – it did not make any recommendations concerning the teaching and learning of these languages.58 The only exception concerns minority speakers of Spain (and before Brexit, those of the United Kingdom), who may send the Council communications written in a language other than those referred to in Regulation No. 1/1958 (that is, other than official EU languages). This possibility is based on administrative arrangements concluded between the Council and the respective government,59 based on Council conclusions of 13 June 2005.60 These arrangements also allow the representative of Spain to make speeches at Council meetings in a constitutionally recognized minority language of Spain. Furthermore, the government of Spain may make certified translations into these languages

52 https://​eeas​.europa​.eu/​topics/​human​-rights​-democracy/​8437/​eu​-annual​-reports​-human​-rights​-and​ -democratisation​_en. 53 Council of the European Union: EU Annual Report on Human Rights and Democracy in the World 2019, 8580/20 (15 June 2020), p.  88, at https://​data​.consilium​.europa​.eu/​doc/​document/​ST​-8580​-2020​ -INIT/​en/​pdf. 54 Ibid., p. 87. 55 EU Annual Report on Human Rights and Democracy in the World 2020, p. 38, at https://​eeas​ .europa​.eu/​sites/​default/​files/​eeas​_annual​_report​_humanity​_2021​_web​.pdf. 56 See more on this in Chapter 11 of this volume. 57 For example, Council resolution of 31 March 1995 on improving and diversifying language learning and teaching within the education systems of the European Union, Council conclusions of 12 June 1995 on linguistic diversity and multilingualism in the European Union, Decision of the European Parliament and the Council of the European Union of 8 June 2000 on the European Year of Languages, and Council resolution of 14 February 2002 on the promotion of linguistic diversity and language learning in the framework of the implementation of the objectives of the European Year of Languages (2002/C 50/01). 58 Council Recommendation of 22 May 2019 on a comprehensive approach to the teaching and learning of languages (2019/C 189/03). 59 Administrative arrangement between the Kingdom of Spain and the Council of the European Union (2006/C 40/02). 60 Council conclusions of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union (2005/C 148/01C 148).

142  Research handbook on minority politics in the European Union of acts of the EU adopted in codecision, as published in the Official Journal of the European Union, and forward them to the General Secretariat of the Council by electronic means.

CONCLUSIONS Although there are identifiable and distinguishable periods in the attitude of major EU organs towards the protection of minorities, a few clear patterns have persisted during the decades. One of these is the relatively minor weight of the minority issue among EU priorities as compared to other aspects of rule of law and democracy. More specifically, although human rights have become increasingly important on the political agenda and in the legislation of the EU, as well as an expressed value on which the Union is founded, the rights of persons belonging to minorities – as part of universal human rights – have received much less attention. Secondly, the EP remains the one and only EU institution with a genuine and lasting commitment to minority rights. In turn, the European Council and the Council have only ever taken the minority issue seriously when there has been a real chance that it will affect the safety, stability and future of the European integration – that is, during the phases of enlargement. Thirdly, the protection of minorities remains rather an external than an internal concern for the leading EU organs, and therefore the infamous factor of a ‘double standard’ is still present, discrediting the motivations of the EU for minority protection. Fourthly, along with the changes of priorities and associated issues (the integration of the Roma, cultural and linguistic diversity, non-discrimination, etc.), the EP has maintained its original idealistic – at some points even unrealistic – attitude towards the protection and promotion of minority rights. In the many resolutions and other (legally non-binding) documents of the EP and its various committees, including the Minority Intergroup, minority rights appear as a value worth cherishing. Backed up with the security narrative and the human rights agenda, the value-oriented approach is an unavoidable basis on which the EU can build a strong supranational system of minority protection – if it would ever want to. Finally, in the absence of its own unified and coherent framework of minority rights, the EU organs rely on the standards of other intergovernmental organizations, mainly those of the Council of Europe and the OSCE. While international cooperation and the active promotion of these standards among EU member states are welcome efforts, they cannot replace the development of the EU’s own system of protection – at least if it indeed wants to take its own motto, ‘Unity in diversity’, seriously.

REFERENCES Bieber, Florian, and Roland Bieber, Negotiating Unity and Diversity in the European Union. (Palgrave, 2021). Brucker, Balázs, Az Európai Parlament és a kisebbségi érdekérvényesítés a Nemzeti Kisebbségügyi Intergroup tevékenységének tükrében (2004–2016). PhD dissertation (Pécs, PTE, 2019). Corbett, Richard, Francis Jacobs and Michael Shackleton, The European Parliament (Harper, 2011). Dutoit, Laurent, ‘The international role of the European Parliament’s Intergroup’. Hague Journal of Diplomacy 11 [2016], 182–95. Farrell, Henri, and Adrienne Héritier, ‘Interorganizational negotiation and interorganizational power in shared decision-making: Early agreements under codecision and their impact on the European Parliament and Council’. 10 Comparative Political Studies 37 [2004], 1184–212.

The European Parliament, the Council and the European Council  143 Gál, Kinga, Davyth Hicks and Kata Eplényi (eds), Traditional Minorities, National Comunities and Languages: The Issues Raised in the European Parliament’s Intergroup, 2009–2011 (Kinga Gál, 2011). Hagemann, Sara, and Bjørn Høyland, ‘Bicameral politics in the European Union’. 4 Journal of Common Market Studies [2010], 811–33. Henrard, Kristin, ‘The EU, Double Standards and Minority Protection: A Double Redefinition and Future Prospects’. In Kirstin Henrard (ed.), Double Standards Pertaining to Minority Protection (Brill, 2010), 19–70. Henrard, Kristin, ‘EU law’s half-hearted protection of religious minorities: minority specific rights and freedom of religion for all’. 12/10 Religions [2021], 830. https://​doi​.org/​10​.3390/​rel12100830. Manzinger, Krisztián, ‘The question of national minorities in the European Parliament between 2014 and 2019: a Hungarian perspective’. 1/3 Hungarian Journal of Minority Studies [2020], 7–30. https://​ bgazrt​.hu/​wp​-content/​uploads/​2020/​11/​3​.Manzinger​.pdf. Nagy, Noémi, ‘Double Standard in a Peripheral Policy of the European Union: The Issue of Minority Protection’. In György, Andrássy, Jyrki Kakönen and Noémi Nagy (eds), European Peripheries: Studia Europaea 2012 – Jurisprudentia et Practica (University of Pécs, Faculty of Law, Centre for European Studies, 2012), 159–73. Sasse, Gwendolyn, ‘Minority Rights and EU Enlargement: Normative Overstretch or Effective Conditionality?’ In Gabriel Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (EURAC-OSI/LGI, 2004), 59–84. Toggenburg, Gabriel N., ‘The EU’s Attitude vis-à-vis Minorities: A Play in Three Parts and an Open End’. In Csaba Tabajdi (ed.), Pro Minoritate Europae (EP, 2009), 162–205. Vermeersch, Peter, and Melanie H. Ram, ‘The Roma’. In Bernd Rechel (ed.), Minority Rights in Central and Eastern Europe (Routledge, 2009), 61–73. Vizi, Balázs, ‘The Hungarian Presidency of the Council of the European Union: Focus on the Neighbourhood and on a European Roma Strategy’. 10/1 Journal on Ethnopolitics and Minority Issues in Europe [2011], 123–34.

8. The European Commission and minority rights Tawhida Ahmed

INTRODUCTION The need to critically analyse the role of the European Commission in the European Union’s (EU’s) engagement with minority rights is important. Besides the setting of key directions of the EU by the Council of the EU and the adjudication of law by the European Court of Justice, the Commission has a significant role in the direction of the EU (see, for example, Nugent, 2000; Nugent and Rhinard, 2016; Egeberg, 2019). This is because of its powers, as set out in Article 17 Treaty on European Union (TEU): to initiate legislation in most matters, ‘promote the general interests of the Union and take appropriate initiatives to that end’, and manage EU programmes and budgets and exercise executive, coordinating and management functions, given to it in the EU Treaties. With these powers, the Commission can shape EU action towards minority rights. There is no specific EU legal instrument on minority rights, nor an explicit legislative competence to introduce minority rights legislation per se (despite calls to introduce competence provisions: see De Schutter, 2006, 2007; Van Bossuyt, 2007a, 2007b). However, there are more than 50 legislative provisions which refer to the term ‘national minorities’ in EU law (Toggenburg, 2018, 364) and the Commission could interpret these diverse competences ‘expansively’ to make best use of them. This chapter argues that although the Commission does engage with minority rights at times, the ‘quantity’ is low compared to the possibilities presented by the legal powers, and that the actions also are not ‘quality’ acts of effective engagement. Not capitalising on these powers that the Commission has might be regarded as particularly problematic since the EU has expressly declared minority rights as a value of the EU, in Treaty law. The Commission’s weak performance adds substance to the long-held criticism of the EU as lacking credibility in the field of human rights, and may also be perceived to be a voluntary unwillingness by the Commission to support minority-related issues. To illustrate these points, the next section outlines what an expansive approach might mean for minority rights. The third and fourth sections assess this in the external and internal dimensions of the EU. The section headed ‘The reflection on the EU and the role of the European Commission in minority rights’ assesses what this tells us about the role of the Commission in furthering (or otherwise) the human rights and minority protection image of the EU, before the chapter concludes in the sixth section.

MINORITY RIGHTS PROTECTION: AN EXPANSIVE APPROACH An expansive (as opposed to a narrow or select) approach in this chapter does not refer to acts outside of legal parameters, an approach we may find with the European Court of Human Rights (Dothan, 2014). Rather, even with a narrower approach, there are three suggested ways in which the Commission could capitalise on its legal powers: (i) focusing on the full spectrum 144

The European Commission and minority rights  145 of minority rights where permitted, (ii) engaging in minority rights as broadly as legal powers allow and (iii) applying these consistently across case studies and states. As regards the first element of the full spectrum of rights, law can either directly concern minorities (e.g., non-discrimination on grounds of race, ethnicity or religion, as well as other human rights) or can have minority dimensions (e.g., education, culture or language spheres). In established international minority rights instruments, minority rights are numerous. First, because they include general human rights protection (non-discrimination, the right to life, freedom of expression, or family life), which can be applied to take into account ‘minority’ dimensions. For instance, health rights might take into account data on COVID-19 which suggests that persons from minorities are more affected by the virus than non-minorities (Public Health England, 2020), and the right to education might recognise religious distinctions. Minority rights are numerous also because they include minority-specific rights, which aim to preserve the identity of minority groups. The Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) serves as a benchmark for the EU. It encompasses a whole host of actions for authorities, including on equality and non-discrimination; culture, language, identity; non-assimilation; free assembly, association, thought, conscience and religion; access to media; inclusive curriculums and minority education institutions; as well as participation in the economic, social, cultural and political life of society. To have a comprehensive, and not a selective approach, to minority rights, the Commission would (within the legal limits of EU competences) demonstrate consideration for the diverse range of the rights found across human rights and minority protection instruments. The second element of an expansive approach to minority protection would see the Commission exercising powers as broadly as legal competences allow, instead of narrowly. Thus, in non-discrimination, the Commission cannot bind EU member states to substantive equality, but it can promote it, and thereby follow the European Court of Justice’s current practice of a ‘blended formal substantive’ approach (De Vos, 2020); or in education, whilst member states cannot be required to teach minority languages, the Commission could encourage it through soft law. According to Dothan (2014, 510), there are three methods of Treaty interpretation: the textual (based on the text), the subjective (based on the intent of the authors) and the teleological (based on the purpose of the legislation). The Vienna Convention on the Law of Treaties favours a textual approach, but in light of the context and purpose of a provision (Article 31(1)). Dothan argues that most international adjudicators have exercised an expansive approach in their role as legal interpreters. The Commission could take a similar expansive approach, and this would be in line with the spirit of relevant Treaty provisions, as discussed below. The third element of an expansive approach to minority rights requires the Commission to act on issues, states or groups consistently. The heavier human rights burdens on external states, as opposed to EU member states, has long been criticised (Williams, 2004, 6–9; Abrisketa et al., 2015; Hachez and Marx, 2020) as contributing to ‘incoherence’ and ‘inconsistencies’ and ‘irony’ in EU human rights (Williams, 2004). A selective approach to (minority) rights protection damages the reputation of the EU as a protector of rights. The third and final component of an ‘expansive’ approach is therefore an integral part of this wider debate on the EU’s credibility as a human rights organisation. This credibility is thrown into further doubt in the issue of minority rights because – as discussed further in ‘The reflection on the EU and the role of the European Commission in minority rights’ below – a narrow approach

146  Research handbook on minority politics in the European Union by the Commission could arguably be voluntary, given that EU legal powers would permit the Commission to act more broadly.

THE EUROPEAN COMMISSION’S ENGAGEMENT WITH MINORITY RIGHTS: EXTERNAL DIMENSIONS The European Commission represents the EU in external relations, and it is here that minority rights first significantly entered onto the EU’s radar, across the 1990s and 2000s, in EU enlargement policy.1 Some attention is given to this early period because it sets trends for the Commission’s actions which have been hard to shake off, even some 30 years later. The Beginnings: EU Enlargement The European Commission’s first noteworthy engagement with minority rights came in 1993. Newly independent states of Eastern Europe and surroundings had ambitions to join the EU, and the EU showed awareness of the need to stabilise the majority–minority relations in these states as a pre-condition of their membership, as set out in the Copenhagen European Council Presidency Conclusions of 21–22 June 1993 – the ‘Copenhagen Criteria’. Thirteen Eastern and South-Eastern states joined the EU between 2004 to 2013, and negotiations are ongoing with the Western Balkan states of Albania, Bosnia, Kosovo, Montenegro, North Macedonia and Serbia, and have been long-standing with Turkey. However, there have been flaws in the Commission’s practices of assessing candidate states’ minority protection (see, for example, Rechel, 2008), many of which link to the lack of an expansive approach. The Commission exercises double standards. This was firstly argued to be through stricter application of minority rights to acceding states in the EU’s external domain than to existing states in its internal domain (De Witte, 2002; Hillion, 2004–05; Sasse, 2004) and to newly acceded states, whose successful membership resulted in the leverage of the Commission being thereafter weakened (Brosig 2010; Ibryamova, 2013, 350). This indicated that minority rights were for export only (Toth, 1997, 527; De Witte, 2002, 139). Double standards were secondly claimed due to differences in applying minority rights standards between groups, issues or candidate states. The Commission focused mainly on the situation of Roma in most of the candidate countries (Janse, 2019, 55), and the Russian minorities in Estonia and Latvia (ibid.), ignoring or giving reduced attention to other sizeable minorities, such as Hungarians in Romania and Slovakia and Turks in Bulgaria (Hughes and Sasse, 2003, 14). Latvia was admitted as an EU member state, despite not ratifying the FCNM (Topidi, 2012, 86) as other states had done. Slovakia was deemed to provide minority protection because it permitted the use of minority languages in official communication, even though it did not require officials to be competent in those languages (Brosig, 2010, 398). In addition, the Commission erred in judging Estonia as meeting linguistic rights, when it was in breach of the FCNM (Brosig, 2010, 399). Guy comments, in relation to Roma, ‘[i]n the end, no applicants were refused [admission], even though there was no evidence that the situation of their Romani citizens had significantly improved’ (2009, 34). EU funding was also ineffective in



1

See also Chapter 9 in this volume.

The European Commission and minority rights  147 bringing about improvements to minority rights in candidate states, for reasons such as aims being too ambitious for the timeframes, inadequacy of strategies and a lack of pilot assessments to determine proper needs, as opposed to ad hoc allocation of funding (Guy, 2009, 31). This chaotic and ineffective start to the Commission’s performance on minority rights has not been rectified in recent years of enlargement. This is despite the Copenhagen Criteria and the protection of minorities in enlargement becoming primary law, with Articles 2 and 49 TEU, and relevant enlargement documents referring to the need to improved conditions for minorities (European Parliament, 2013, 62). A European Parliament (EP) study assessed that ‘[p]rogress is often attested in cases in which requested legislation, strategies or action plans have been adopted. Only rarely, progress or setback is documented by statistics or numbers’ (ibid.). The expertise of the Commission to reach some of these conclusions is also queried, because there have been only rare references to the work of international bodies (ibid.). The Commission’s implementation of the legal importance given to the value of minority rights is, therefore, weak. Further, unjustifiable differential treatment of states still continues. When comparing Croatia, Serbia and Kosovo, ‘it is striking that only the European Partnership with Kosovo deals with this subject outside the dedicated chapter on human and minority rights’ (European Parliament, 2013, 60). There are also problems with the enlargement process on a more macro scale. This has particularly been the case with Bulgaria’s veto of the opening of accession negotiations with North Macedonia in December 2020, conditional upon the latter acknowledging its roots as Bulgarian, and denying that a Macedonian language or ethnicity existed (Fouéré, 2021). The Commission has been unable to broker the nationalist and minority disputes in this example. France also vetoed the opening of negotiations with North Macedonia and Albania in October 2019, conditional on reforming the enlargement process2 so that states were more ready and aligned with EU values when they entered the EU. Other Aspects of External Relations Aside from enlargement policy, which developed a specific minority rights angle, Article 21 TEU universally requires the EU to conduct its external relations in line with the human rights values of the EU, and the details are set out in the EU Strategic Framework on Human Rights and Democracy (Council of the EU, 2012). The Strategic Framework mentions the ‘fight against discrimination in all its forms’, including discrimination on grounds of race or ethnicity as one of the EU’s priorities. EU Action Plans pursuing this strategy declare minority rights as a goal of the EU (Council of the EU, 2015). However, this commitment to minority rights has not translated effectively into practice. For example, in trade policy, trade agreements have human rights clauses and refer to ethnic minorities (Lechner, 2018). Minorities are also mentioned in impact assessment guidelines (European Commission, 2015). However, there are inconsistencies between trade agreements (Hachez and Marx, 2020, 369ff). The activation of human rights clauses has been rare,3 and has never been based on minority protection. Likewise, development policy reflects a tension between minority rights on paper and its acti-

The reform came in 2020, and requires progress on the ‘cluster’ of the rule of law, economic rights and public administrative reform to be made before other chapters are opened (European Commission, 2020a). 3 So far only activated as regards African, Caribbean and Pacific (ACP) countries, and sanctions did not involve lifting of trade preferences (Hachez and Marx, 2020, 371). In addition, the general preference 2

148  Research handbook on minority politics in the European Union vation in practice, because minority rights receives varying importance across different states and regions (Abrisketa et al., 2015, 57), and is also not acted upon. Similarly, the EU’s neighbourhood policy4 declares human rights and minority protection as a policy priority, but the related Action Plans give no more than a nominal place to minority rights in very vague terms. In addition, the Commission treats states inconsistently, and it is only in relation to Ukraine that it has inserted more explicit concrete recommendations (European Parliament, 2012, 74). A final mention can be made of the area of freedom, security and justice. The Stockholm Programme of 2010 (European Council, 2010) included human rights within its remit, and the Action Plan requires that ‘[m]easures to tackle discrimination, racism, anti-Semitism, xenophobia and homophobia must be vigorously pursued’ (European Commission, 2010, para 2(3)). Both the Stockholm Programme and the Action Plan emphasise action on Roma (Abrisketa et al., 2015, 95). However, there is a clear gap regarding emphasis on the protection of other groups. The EU’s general poor performance with human rights externally has fuelled the continuing criticisms of the EU’s credibility in human rights more widely.5 This section demonstrated that the European Commission’s approach in the external relations of the EU is not expansive. In enlargement policy, the Commission does not focus on the full spectrum of minority rights or interpret these broadly, it does not use its powers to the fullest, and it does not apply its powers consistently as between groups/issues or states. This is a vast wasted opportunity to use what was a direct inclusion of a minority rights yardstick in the powers given to the Commission. Other aspects of external relations fare worse, in that there is barely a minority rights dimension practised effectively, if at all, even though documents have interpreted human rights in Article 21 TEU to include minority rights.

THE COMMISSION’S ENGAGEMENT WITH MINORITY RIGHTS: INTERNAL DIMENSIONS For a number of years, the EU’s enlargement process was the primary basis for the Commission’s engagement with minority rights. However, further opportunities arose as EU law evolved (Toggenburg, 2004; Topidi, 2010; Ahmed, 2011). Unfortunately, many of these opportunities have been largely neglected by the Commission, so that whilst there may at times seem to be a number of initiatives that concern minority communities, these do not take advantage of the legal powers the EU has in terms of quantity or quality of actions, and have not been expansive in several regards.

system has been withdrawn in the cases of labour rights violation in Belarus and Burma. However, this is not consistent; for instance, Pakistan did not face a similar fate (Abrisketa et al., 2015, 62). 4 To the south: Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine, Syria and Tunisia, and to the east: Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. Russia takes part in Cross-Border Cooperation activities under the EU’s neighbourhood policy (ENP) and is not a part of the ENP as such. 5 See more below in the section headed ‘The reflection on the EU and the role of the European Commission in minority rights’.

The European Commission and minority rights  149 The Legal Framework The Treaty of Lisbon made minority rights an explicit feature of the EU. It is a founding value in Article 2 TEU, it is a legally binding part of enlargement policy in Article 49 TEU, and Article 3 TEU requires the Union to promote its values, and respect its cultural and linguistic diversity and its cultural heritage, and sets peace as an aim of the EU. Respect for culture and languages is found in other Treaty provisions, such as Article 55(2) TEU, which provides for the translation of the EU Treaties into languages which are official in either whole of partial areas of a member state.6 It has traditionally been argued that value provisions (such as Articles 2 and 3 TEU), although influential in legal interpretation (e.g., Bredimas, 1978), and taken into account by the European Commission in implementing Union policies (European Commission, 2021a, 1), are non-binding (Casa Fleischhandel v BALM (215/88) [1989] E.C.R. 2789 at 31; Lasok and Millet, 2004, 386; Arnull, 2006). However, academics have argued that Article 2 values are legally binding (Scheppele et al., 2021, and references therein, such as Hillion, 2016; Kochenov and Pech, 2016; Pech et al., 2016, 200; see also Piris, 2010; Scheppele, 2016), and must be more than non-binding assertions, because they are given weight by Article 7 TEU, which permits investigation of, and political action against, states for breaches of Article 2 values. The European Commission is given power to initiate the Article 7 process and make recommendations to the EU institutions.7 Article 258 Treaty on the Functioning of the EU (TFEU) also enables the Commission to take infringement action against member states for breaches of EU law.8 Beyond values of the EU, anti-discrimination is a long-standing norm of EU law and includes legal competence in Article 19 TFEU to act on racial, ethnic and religious discrimination. The two Article 19 Directives are Article 2000/43 on race and ethnic origin and Directive 2000/78 prohibiting religious discrimination in employment,9 and of course further legislation can be introduced. Anti-discrimination is to be mainstreamed across the EU’s policies, under Article 10 TFEU, and this requires the EU to ‘actively combat’ (European Union Agency for Fundamental Rights, 2011) rather than merely avoid discrimination. The EU Charter on Fundamental Rights (EUCFR) also prohibits discrimination, under Article 21, including on grounds of race, religion and membership of a national minority. Although Charter provisions do not constitute legal bases for the introduction of legislation on national minorities (unlike with race, ethnicity and religion under Article 19 TFEU), nonetheless Article 51 EUCFR binds the Commission as an EU institution, and the member states, within the scope of EU law. The EUCFR also requires respect for linguistic and cultural diversity, in Article 22. In other aspects of the legal framework, the EU respects, as ‘general principles’ of EU law, any minority-related rights and principles arising from the constitutional traditions of member states and the ECHR, under Article 6 TEU. In addition, minority rights would be relevant in

Declaration 16 to the Treaty of Lisbon confirms that the purpose of Article 55(2) s to contribute to the fulfilment of diversity in Article 3 TEU. 7 For analysis of Article 7, see Closa (2020), Bonelli (2021), Kochenov (2021). 8 For recent analysis, see Bogdanowicz and Schmidt (2018). 9 Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22; Directive 2000/78 prohibiting discrimination on grounds of religion, belief, disability, age or sexual orientation in the field of employment [2000] OJ L303/16. 6

150  Research handbook on minority politics in the European Union policy areas such as education, social exclusion, employment, culture and regional policies.10 Article 4(2) TEU commands respect for member states’ local government structures, and Article 11 TEU requires the EU to liaise with civil society and representative associations and provides the right to EU citizens to submit proposals for law to the Commission (the European Citizens’ Initiative). The progressive introduction of such provisions over the past 50 years has created numerous avenues for the Commission to engage with, and enforce, rights and values relevant to minorities. The European Commission has key roles in this bundle of provisions, whether as legislator, enforcer or implementor. The next section assesses whether the Commission’s performance on these powers is expansive. The Commission’s Actions in Practice Anti-discrimination When considering the types of issues that the Commission has been engaged in across the years, it is clear that the Commission does not act on the full spectrum of minority rights, as outlined in ‘Minority rights protection: an expansive approach’ above, but has focused on anti-discrimination, and within that, bias towards the topics of race and ethnicity, over religion, or membership of a national minority explicitly. The Commission has recently adopted the Anti-Racism Action Plan 2020 (European Commission, 2020b), setting out strategies for stamping out racism, raising the voices of minority groups and working with multiple actors to better address racism. The Commission set itself the task to review current law and recommend improvements.11 The Commission also held its first anti-racism summit in 2021.12 Other initiatives include the Commission’s High Level Group on combating racism, which supports the EU and member states.13 This group has adopted the Code of Conduct to fight illegal hate speech online, and platforms (e.g., Facebook, Twitter and Instagram) are to review notifications of hate speech within 24 hours and remove or disable the content.14 The most visible attention has been paid by the Commission to one group: Roma. DG Justice and Fundamental Rights has a separate category of policies devoted specifically to Roma. Most importantly, there is a Roma-specific Open Method of Co-ordination (OMC), under the EU Framework for National Roma Integration Strategies, which commenced in 2011. This focuses on setting goals, reviewing and making recommendations on state performance on integrating Roma in education, employment, housing and healthcare (European Commission, 2020c). The Framework has been extended to beyond 2030 (European Commission, 2020c, 9), and expands its scope to issues such as anti-Gypsyism, the collection of disaggregated data and equality, the drafting of more specific measurable national targets and tackling intersectional discrimination. The European Council’s 2021 Recommendation also recognises the need to tackle structural discrimination against Roma (Council of the EU, 2021). Roma

Articles 6 and 9 TFEU; Title IX Employment; Title X Social Policy; Title XI European Social Fund; Title VII Education; Title VIII Culture; Title XVIII Economic, Social and Territorial Cohesion. 11 See for instance, a review of the anti-discrimination legislation: European Commission (2021). 12 www​.antiracism​-eusummit2021​.eu/​. 13 https://​ec​.europa​.eu/​newsroom/​just/​item​-detail​.cfm​?item​_id​=​51025. 14 https://​ec​.europa​.eu/​info/​policies/​justice​-and​-fundamental​-rights/​combatting​-discrimination/​ racism​-and​-xenophobia/​eu​-code​-conduct​-countering​-illegal​-hate​-speech​-online​_en. 10

The European Commission and minority rights  151 are the focus of the Commission through Roma Summits, Roma Platforms and national Roma contact points, and the Commission issued Article 258 infringement proceedings against three member states for school segregation of Roma.15 The Commission’s initiatives on Roma are a good example of the Commission trying to work towards fulfilling the legal powers it has under EU law, in terms of specific action to address discrimination against members of one minority group (Article 19 TFEU). Not all minority groups receive the same regard from the Commission. The Commission’s actions towards Roma are often justified on the basis of Roma being the largest and most deprived minority in Europe. However, legal powers upon which the Commission acts do not limit Commission action to this. The Commission could also develop defined strategies to promote integration and improvement for Black or Asian communities in the UK, or the Asian, Turkish, sub-Saharan or African communities in Germany, France and Spain, as well as Hungarians in Slovakia and Romania, and Russians in Lithuania and Latvia. This is not to suggest that the Commission should be criticised for not developing defined policies for each and every group, but the current focus is not at all expansive and is very selective. The Commission’s selectivity continues in that limited attention is also given to religious discrimination. Whilst there has been some focused action on tackling anti-Semitism since 2019,16 and anti-Muslim hatred since 2015,17 it is weaker than for race, and there is inequality between the approach to the different religious groups. For instance, the anti-Semitism working group will adopt an EU strategy, whilst the Coordinator for combating anti-Muslim hatred has been involved in workshops and events thus far, but with no proposed tangible outcome at policy level. The EU’s competence on anti-discrimination would certainly permit the Commission to do more for religion. It could, for instance, address the issue through the development of national strategies. It could also take up the duty to mainstream non-discrimination on grounds of religion across EU policies. However, the Commission has only recently begun to outline a formal mainstreaming approach, with the establishment in 2019 of the Equality Task Force (European Commission, 2021a). Having outlined the point of selectivity by the Commission, with particular bias towards Roma, the Commission’s commitment to Roma should not be over-exaggerated, as its efforts have not been regarded as successful.18 The Commission’s support has been primarily one of integration of Roma into society, with neglect for immediate action to protect Roma in the face of serious breaches of their rights by EU member states, and no coverage for institutional discrimination. This demonstrates a narrow approach to Roma by the Commission. The Commission failed to act effectively in relation to France and Italy from 2008 onwards, when both states took restrictive measures towards Roma, expelling them from the state

Czech Republic, Hungary and Slovakia. Including through the Commission’s establishment of a working group to support member states in developing effective strategies for combating anti-Semitism: https://​ec​.europa​.eu/​info/​policies/​justice​ -and​-fundamental​-rights/​combatting​-discrimination/​racism​-and​-xenophobia/​combating​-antisemitism/​ working​-group​-combating​-antisemitism​_en. 17 With the establishment of a Coordinator for the combating of anti-Muslim hatred: https://​ec​.europa​ .eu/​info/​policies/​justice​-and​-fundamental​-rights/​combatting​-discrimination/​racism​-and​-xenophobia/​ combating​-anti​-muslim​-hatred​_en. 18 The Commission itself acknowledges limited progress in healthcare and employment, and worsening progress in other areas, such as an increase in school segregation (European Commission, 2020c, 2); see also a review of the National Roma Integration Strategies in European Roma Policy Coalition (2012). 15 16

152  Research handbook on minority politics in the European Union (Severance, 2010; Martin, 2013), or issuing decrees to fingerprint them and practicing discriminatory housing policies (Amnesty International, 2018). In both Italy and France, Roma suffered violence and deaths. The Commission issued an initial notification to France, without follow-up action, simply engaging in a ‘brief war of words’ (O’Nions 2011, 366), and failed to act against Italy despite investigating years of documented abuse (Nielsen, 2018), as criticised by Amnesty International (2018). In both cases, the Commission could have more actively and promptly engaged Article 7 TEU or Article 258 TFEU processes for infringements of EU law and values. In addition, any outputs from Roma Summits and the Roma Platforms are not legally binding and do not have follow-up mechanisms, which could effectively make a difference to Roma on the ground. Roma initiatives developed and led by the Commission feature a ‘lack of transparency, weak methodology behind the discussions (non-independent research based debates) and the risks of inconsistency in action by the Commission’ (European Roma Policy Coalition, 2012, 69) as well as a high degree of uncertainty as to how, if at all, they contribute to monitoring or assisting member states’ implementation of EU duties (ibid.). To follow on from the above, enforcement is perhaps the greatest weakness in the Commission’s performance on minorities and whether such performance is expansive. The Commission generally does not use enforcement mechanisms fully, if at all; see, for instance, its failure to utilise Article 258 in relation to the poor treatment of refugees in Greece. Effective enforcement is also hindered by a lack of apparatus to address structural and institutional discrimination, which results in systematic discrimination against persons from minority groups. Article 258 TFEU is primarily geared towards the identification of individual instances of breaches and is not suitable for effectively addressing systematic problems.19 Without taking a more expansive approach, the Commission cannot make any significant impact on addressing continuous and far-reaching breaches of EU law by member states. This can be seen particularly in the case of Hungary, which has discriminated against women, Roma and sexual minorities, and with Poland and the erosion of the independence of the judiciary (Amnesty International 2020, 2021; Scheppele et al., 2021, 90). To summarise, the field of anti-discrimination has been steadily populated in terms of Commission initiatives. However, there is not an expansive application of the Commission’s powers. There is selectivity towards race or ethnicity and Roma, over other grounds of discrimination, or other groups. Furthermore, the failures of enforcement at points when serious risks are occurring on the ground for minorities in member states has prevented the Commission being taken seriously as a protector of EU values in human and minority rights. In addition, there has been no overall mainstreaming of anti-discrimination in EU law and policy. Outside of discrimination: diversity initiatives The attention given by the Commission to the issue of discrimination, and its particular focus on race and Roma, is not mirrored outside of discrimination; for instance, in respect of ethnic, racial, cultural and linguistic diversity, which have been highlighted as important European values in Articles 2 and 3 TEU, and are referred to in Articles 21 and 22 EUCFR. This is an element of selectivity already practised by the Commission in the attention it gives to various aspects of its powers. The Commission’s approach has not been to develop initiatives which, albeit through soft law measures, encourage the member states to better respect the diversity 19 On the argument that Article 258 can be useful for systemic breaches of the (values provisions of the) EU Treaty, see Scheppele et al. (2021).

The European Commission and minority rights  153 of its population systematically and consistently. Instead, it has been to hold events or provide funds to celebrate cultures and languages, which is a much more indirect means of achieving this aim.20 In addition, the EU’s social inclusion strategy since the Lisbon European Council of 2000 has targeted minorities, although not in significant measure (Cianetti, 2018). A celebration-of-diversity approach potentially encourages an environment of awareness and respect for diversity, but has had little impact on the ground. It is also a limited reading of EU legal powers on diversity, as well on mainstreaming duties under Article 10 TFEU.21 More effective measures are those which, for instance, use an OMC approach to encourage better respect for diversity within member states or which support states to remove obstacles to the provision of resources. Other examples could involve the Commission explicitly ring-fencing funding for minorities or undertaking impact assessments to ensure that EU law and policy respects diversity and does not harm it. A set of suggestions to enhance the impact of the EU on minorities were recently recommended to the Commission in a European Citizens’ Initiative. The full set of proposals in the Minority SafePack Initiative (MSPI) is worth outlining here:22 ● A Council Recommendation to enhance cultural and linguistic diversity, including protecting the use of minority languages in public spaces, as well as in media and commerce. ● Amend funding programme rules in education, culture and media, so as to be more inclusive of minority languages and cultures. ● A Regulation to establish a European Language Diversity Centre. ● Special attention to be paid to national and linguistic minorities in regional development funds. ● Amend the Horizon Europe Programme financial instrument to allow the financing of research into strengthening the situation of national and linguistic minorities. ● A proposal to strengthen the rights of stateless persons. ● A proposal to allow events of major importance for society to be viewed in mother tongues, as well as to remove further obstacles to cross-border transmission of services. ● A single market for copyright, to remove the obstacle of license barriers. ● Amend the EU Regulations on state aid to exempt activities that support minorities. ● New legislation to ensure concerns of minorities are taken into consideration in the election of the EP. ● Revision of the existing Council directives on the subject of equal treatment, including for national minorities. The Commission objected to the initiative at two crucial points. First, it rejected the registration of the entire initiative because it contained some proposals which it could not accept: the last two proposals required new legislation on national minorities specifically, which fell outside of EU competences. The EU Court, however, required the Commission to sever the proposal

See SMiLE (2002). The European Commission (2003) verifies that the mainstream education, training and cultural programmes are open to minority languages (European Commission, 2021b, 6). See Linguistic Diversity in the European Union: The Case of Regional and Minority Languages (2018; https://​op​.europa​.eu/​en/​publication​-detail/​-/​publication/​371430cc​-f2c1​-11e8​-9982​-01aa75ed71a1). 21 Article 10 requires the mainstreaming of non-discrimination on grounds of race, ethnicity or religion, and indirectly also includes the cultural and linguistic traits of persons belonging to these groups. 22 For commentary, see, for example, Tarnok (2017), Toggenburg (2018), Willis (2021). 20

154  Research handbook on minority politics in the European Union and register 9 out of the 11 initial parts.23 The revised initiative received overwhelming support at the EP, before returning to the Commission in January 2021. However, at this second point the Commission, in its response (European Commission, 2021b), rejected absolutely the initiation of any legislation to implement any parts of the proposal. The Commission outlined that, in addition to the initiatives which recognise cultural and linguistic diversity as important in the EU, there were other ways in which it already met the proposed measures in the submitted initiative. It pointed to forums for dialogue with the cultural sector (e.g., Voices for Culture) which have already specifically considered culture, and the inclusion of minorities, and refugees and migrants (European Commission 2021b, 4). The Commission also noted that the Council has recommended that an expert group review the issue of linguistic diversity and translation of European works (European Council, 2018a; European Commission, 2021b, 4). The Commission has issued a guidance note for the structural funds to ensure respect for the Charter, which includes non-discrimination (European Commission, 2016), and recounts that structural funds already undertake projects which support, for instance, Roma (European Commission, 2021b, 10). The Commission indicated that it is implementing other relevant Council Recommendations24 and that the Horizon funding scheme has funded projects relating to minorities and can continue to do so (European Commission, 2021b, 10–11). Finally, the Commission also emphasised the desire to avoid competing with the work of the Council of Europe on minorities. The Commission neglected to provide a detailed or convincing analysis in its response document of how its proposed actions would effectively implement the aims of the MSPI. According to the Commission, existing law and the Commission’s actions already meet the aims of the MSPI, or can easily do so in the future through the provision of further guidance notes, instead of adopting new measures (European Commission, 2021b). However, all existing Commission initiatives (apart from the Roma-specific ones) mention minorities within a broader objective (e.g., education and teaching, or innovative research in Horizon 2020). However, guidance notes are weaker than amending the rules of funding programmes to explicitly cover minorities and/or ring-fence funds for this purpose, and minority projects are unlikely to frequently win grants within a general approach. No action that the Commission currently takes in fact addresses the proposals of the MSPI, or only does so minimally. For instance, there are not targeted actions towards minority diversity (bar ad hoc examples) or actions such as removing barriers to copyright or state aid25 in current practices. Furthermore, nothing the Commission does currently or plans to do will provide equal rights to stateless persons: the Commission indicating that it would instead continue to treat such persons as third-country nationals (and therefore with reduced rights), but work to ensure their better integration in society (European Commission, 2021b, 12–13). It is the case therefore that the 23 General Court, judgment of 3 February 2017, case T-646/13, Minority SafePack v Commission ECLI:​EU:​T:​2017:​59. The Commission registered the proposal, having omitted proposals 10 and 11 of the list outlined above in this chapter. See European Commission (2017). 24 For instance, European Council (2018b); European Council (2019), which makes a reference to minority languages; European Commission (2020d), which includes reference to minority languages; and the European Commission (2020c) and European Commission (2020e) (currently under examination by the Council). 25 The Commission stating instead that there were sufficient opportunities in place already for projects funded by states for minorities to not be considered state aid (European Commission, 2021b, 17–18).

The European Commission and minority rights  155 Commission’s insistence that its current or planned actions will cover the aims of the MSPI is exaggerated.26 These are clear examples of the many ways in which the Commission takes a restrictive, and not expansive, approach to its legal powers which can affect minorities. To summarise this section, outside of anti-discrimination, the Commission’s regard for minority rights is more limited than under the former policy area. The MSPI offered numerous ways in which the Commission could take a more expansive approach to its powers, which would have met EU Treaty aims on diversity. Outside of anti-discrimination, the Commission’s efforts are reduced primarily to providing some funds, and programmes to celebrate diversity. This is a restrictive approach, and does not encompass a wide spectrum of minority rights or use the full powers of the Commission. Full use of powers would require the Commission to ensure that EU law and activities did not negatively impact linguistic and cultural diversity, as a standard utilisation of Article 22 EUCFR.

THE REFLECTION ON THE EU AND THE ROLE OF THE EUROPEAN COMMISSION IN MINORITY RIGHTS The discussion so far illustrates that, overall, the different parts of the Commission’s actions put together do not make for an expansive contribution to minority rights. The Commission’s expressed view is that it already acts on minority rights, and is willing to act further (European Commission, 2021b). However these are modest attempts and modest promises, when compared to the parameters of available legal bases. As well as raising doubts in relation to the Commission’s genuine embracement of minority rights as a value of the EU, the Commission’s performance adds to the criticism of the EU as a poor actor in the field of human rights. De Búrca – writing post-Lisbon and thus applicable to the legal framework as it still stands today – argues that the EU’s human rights framework, despite the changes made through the Lisbon Treaty, still suffers from major weaknesses (De Búrca, 2011; see also Douglas-Scott, 2011). Not only are there still double standards between external and internal states (De Búrca, 2011, 685, 687), but member states also dispute the EU’s role in human rights, as shown by their reaction to EU intervention,27 and the EU has a restricted role in scrutinising and enforcing human rights in member states, as shown by the terms of Article 51 EUCFR (which applies only to member states in implementing EU law) and Article 7 TEU (in relation to which the EU Fundamental Rights Agency is not given powers to collect data on member states).28 This overall sense of an actor which is not credible in human rights applies well in the case of minority rights, because the Commission, as shown by its response to the MSPI, is resistant to developing EU policies which would have a more defined minority rights angle, and which could be done without transgressing substantive legal powers. There could be numerous reasons for the Commission not taking a more expansive approach to the topic of minorities in the EU, but, as indicated by this chapter, a lack of powers would not seem to be the predominant reason. The Commission has traditionally been viewed as the

For recent developments in the case of the MSPI, see Chapter 2 in this volume. For example, France’s reactions to the EU in relation to Roma expulsions and Hungary’s criticism of the EU in relation to its introduction of media legislation. See De Búrca (2011, 674). 28 The Agency is also restricted to reporting on member states in relation to their implementation of EU law, and not in relation to internal human rights more generally (De Búrca, 2011, 674–6). 26 27

156  Research handbook on minority politics in the European Union integrationist body of the EU,29 and as integration slowed in comparison to the early years of the EU (when the core of the single market was being established) there were suggestions that there had been a decline in the agenda-setting, legislative and executive powers of the European Commission (Nugent and Rhinard, 2016). Factors that may affect the Commission’s role in any given policy area include the extent of power of the European Council (ibid.), and its powers to block or slow down integration; increasing powers given to the EP as legislature; the more rigorous accountability of the Commission to the EP; and, in addition, processes such as the OMC, which provide power to the member states regarding implementation. However, not all agree that the Commission has lost such powers, and some argue that critiques over-exaggerate the small changes that have been made to the Commission’s role in the EU (Nugent and Rhinard, 2016; see also Viterriti, 2010). As regards the topic of this chapter – minority rights – the lack of progression by the Commission does not appear to concern a decline in power of the three main functions of the Commission in relation to the powers already integrated within the Treaty. The EP’s legislative role with the Commission, for instance, is unlikely to fiercely challenge the Commission on the integration of minority issues, because the Parliament is usually pro-integrationist (and pro-minorities), and is likely to support the Commission’s position vis-à-vis the less integrationist institution: the Council.30 For instance, this would be the case with respect to the proposals of the MSPI which received overwhelming support at the EP, and therefore this could specifically include legal provisions in relation to state aid, copyright, media and stateless persons.31 Other likely measures are predominantly within the management and powers of the Commission, such as the use of Article 258 TFEU, or initiatives to promote diversity, or introduce soft law initiatives, such as OMC processes. Whilst the OMC does provide implementation powers to the member states, the Commission still has a useful role in data evaluation, agenda-setting and monitoring, which can encourage progress in member states’ positions. Moreover, the Commission is not hindered in making progress in areas where legislation is adequate for action, such as in anti-discrimination law, or as regards the integration of human and minority rights in external relations, because the necessary powers have already been adopted in legislation. Thus, the Commission is not restrained from attempting to take action for fear of outright obstruction in several areas. Instances where the Commission may face more difficulty include the use of Article 7 TEU, which, given the dominating role of the European Council, may prevent the Commission from even proposing action in the first place. Overall, however, the lack of an expansive approach to minority rights in the EU by the Commission appears to concern the actions of the Commission to perform implementation in both quantity and quality terms, across the three markers for expansiveness that this chapter is based upon. Given the absence of formal restraints to a more expansive approach, as just described, it may be argued that a more select approach has been a voluntary choice on the part of the Commission and this bolsters concerns around the EU taking seriously its founding values of human rights and minority protection.

29 For discussion, see Pierson (1996), Constantin (2013); cf. Hooge (2002) for a study showing that the Commission officials are not all pro-integrationist. 30 Which can in fact bolster any chances of the Commission securing necessary legislative changes (Hooge, 2002, 10). 31 Hooge’s study (2002) finds this to be the case with respect to the adoption of two Directives in EU asylum law.

The European Commission and minority rights  157 This situation fits within narratives around the inability of the EU to become a human rights organisation, when economics lie at its heart, and even post legal developments in Treaty law, that ‘the transformation of the EU from internal market to a human rights organisation cannot be achieved merely by the assertion of some new, majestic sounding treaty provisions declaring the EU’s values’ (Douglas-Scott, 2011, 679). To believe that such a transformation has occurred is a myth (Smismans, 2010, cited in Douglas-Scott, 2011, 679), as is the belief that it can occur without more profound shifts in what the core of the EU is. This is evident in minority rights in the EU, where there are tensions in its legal status given to it within Article 2 versus the limited competences to follow through on the Article 2 claim, as well as the restricted – and not expansive – implementation of the available law. The treatment of minority rights (and specifically its implementation by the European Commission) is not surprising, given similar failures by the EU to live up to recent pressing human rights concerns in the EU (even where it had legal powers to act), including the treatment of migrants following the so-called ‘Mediterranean migrants crisis’, and the protection of democracy and the rule of law in the rise of the right-wing crisis in Hungary, Poland, Italy and Greece. In short, the European Commission’s lack of expansive implementation of minority rights in the EU might be a reflection of its understanding that the EU project itself does not yet expect to take this (as well as other) human rights issue(s) seriously as a core part of its existence.32

CONCLUSION This chapter has argued that the European Commission does not act on powers relevant to minority rights expansively, by encompassing a wide spectrum of minority rights; using its powers to the fullest; and being consistent between groups or states. The Commission has instead applied its powers in a more select fashion (focusing mainly on non-discrimination, and within that favouring race over religion, and Roma), not utilising its powers expansively (not explicitly or distinctly drawing out minority issues, not developing mainstreaming or utilising enforcement mechanisms), and not treating issues, groups or states in a consistent manner (emphasising Roma over other groups or issues). The Commission’s actions are not systematic, are low in quantity terms and are also poor in quality terms. An approach based on inconsistencies between and within external and internal domains, select development of non-discrimination and celebration of diversity has not utilised expansively the legal powers available to the Commission. The Commission has rejected new measures and initiatives in areas which are relevant to minorities, as outlined in the MSPI. Given that EU legal powers are available for the Commission to do more than it has so far, then the Commission’s restrictive approach might indicate a voluntary resistance on its part and calls into question the image of the EU as an organisation founded upon the values of human rights and minority protection.

32 For a clear discussion of the contradictions in the EU’s human rights values and practices, see Smismans (2010), p. 54 onwards.

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The European Commission and minority rights  159 Douglas-Scott, S. (2011), ‘The European Union and human rights after the Treaty of Lisbon’, 11/4 Human Rights Law Review, 645–82. Egeberg, M. (2019), ‘The European Commission’ in M. Cini and N. Pérez-Solórzano Borragán (eds), European Union Politics (Oxford: Oxford University Press). European Commission (2003), Communication on ‘Promoting Language Learning and Linguistic Diversity: An Action Plan 2004–2006’, COM (2003), 449. European Commission (2010), Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Delivering an Area of Freedom, Security and Justice for Europe’s Citizens – Action Plan Implementing the Stockholm Programme, COM(2010) 171 final. European Commission (2015), Directorate-General for Trade, Guidelines on the Analysis of Human Rights Impacts in Impact Assessments for Trade-Related Policy Initiatives, https://​trade​.ec​.europa​.eu/​ doclib/​docs/​2015/​july/​tradoc​_153591​.pdf. European Commission (2016), Commission Notice: Guidance on Ensuring the Respect for the Charter of Fundamental Rights of the European Union when Implementing the European Structural and Investment Funds (‘ESI Funds’), C/2016/4384, OJ C 269, 23.7.2016. European Commission (2017), Commission Decision (EU) 2017/652 of 29 March 2017 on the Proposed Citizens’ Initiative Entitled ‘Minority SafePack – One Million Signatures for Diversity in Europe’ (notified under document C(2017) 2200 final). European Commission (2020a), Enhancing the Accession Process: A Credible EU Perspective for the Western Balkans. Brussels, 5.2.2020 COM(2020) 57 final: https://​ec​.europa​.eu/​neighbourhood​ -enlargement/​sites/​near/​files/​en​largementm​ethodology​_en​.pdf. European Commission (2020b), A Union of Equality: EU Action Plan Against Racism 2020–2025, https://​ec​.europa​.eu/​info/​sites/​info/​files/​a​_union​_of​_equality​_eu​_action​_plan​_against​_racism​_2020​_​ -2025​_en​.pdf. European Commission (2020c), Communication from the Commission to the European Parliament and the Council: A Union of Equality – EU Roma Strategic Framework for Equality, Inclusion and Participation for 2020–2030, COM(2020) 620 final, https://​ec​.europa​.eu/​info/​sites/​info/​files/​union​ _of​_equality​_eu​_roma​_strategic​_framework​_for​_equality​_inclusion​_and​_participation​_en​.pdf. European Commission (2020d), Communication on Achieving the European Education Area by 2025 (adopted in September 2020). European Commission (2020e), Proposal for a Council Recommendation on Roma Equality, Inclusion and Participation, COM/2020/621 final. European Commission (2021a), Report from the Commission to the European Parliament and the Council on the Application of Council Directive 2000/43/EC Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin (‘the Racial Equality Directive’) and of Council Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupation (‘the Employment Equality Directive’) COM (2021) 139 final. European Commission (2021b) Communication from the Commission on the European Citizens’ Initiative ‘Minority SafePack – One Million Signatures for Diversity in Europe’, COM(2021) 171 final. European Council (2010), The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens (2010/C 115/01). (Stockholm Programme), Title 7 ‘Europe in a Globalised World – The External Dimension of Freedom, Security and Justice’. European Council (2018a), Council Conclusions on the Work Plan for Culture 2019–2022 2018/C 460/10. European Council (2018b), Recommendation (2018/C 195/01) on Promoting Common Values, Inclusive Education and the European Dimension of Teaching (adopted May 2018). European Council (2019), Recommendation (2019/C 189/03) on a Comprehensive Approach to the Teaching and Learning of Languages (adopted May 2019), which Makes a Reference to Minority Languages. European Parliament, DG for External Policies of the EU, Bieber, F., Nindler, R., Benedek, W., et al. (2013), Mainstreaming Human and Minority Rights in the EU Enlargement with the Western Balkans (Luxembourg: European Parliament Publications Office).

160  Research handbook on minority politics in the European Union European Roma Policy Coalition (2012), Analysis of the National Roma Integration Strategies, www​ .ergonetwork​.org/​media/​userfiles/​media/​Final​%20ERPC​%20Analysis​%2021​%2003​%2012​_FINAL​ .pdf. European Union Agency for Fundamental Rights (2011), Respect for and Protection of Persons Belonging to Minorities 2008–2010 (Vienna: EU FRA). Fouéré, E. (2021), ‘The EU’s enlargement agenda is no longer fit for purpose’, CEPS, www​.ceps​.eu/​the​ -eus​-enlargement​-agenda​-is​-no​-longer​-fit​-for​-purpose/​. Guy, W. (2009), ‘EU Initiatives on Roma: Limitations and Way Forward’ in N. Sigona and N. Trehan (eds), Romani Politics in Contemporary Europe: Poverty, Ethnic Mobilisation and the Neoliberal Order (London: Palgrave Macmillan). Hachez, N., and Marx, A. (2020), ‘EU Trade Policy and Human Rights’ in J. Wouters, M. Nowak, A.-L. Chane and N. Hachez (eds), The European Union and Human Rights: Law and Policy (Oxford: Oxford University Press). Hillion, C. (2004–2005), ‘Enlargement of the European Union: The discrepancy between membership obligations and accession conditions as regards the protection of minorities’, 27(2) Fordham International Law Journal, 715. Hillion, C. (2016), ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’, in C. Closa and D. Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge: Cambridge University Press). Hooge, L. (2002), The European Commission and the Integration of Europe: Images of Governance (Cambridge: Cambridge University Press). Hughes, J., and Sasse, G. (2003), ‘Monitoring the monitors: EU enlargement conditionality and minority protection in the CEECs’, 4(1) Journal of Ethnopolitics and Minority Issues in Europe, 1–37. Ibryamova, N. (2013), ‘European Union political conditionality and minority rights: Compliance in Bulgaria and Romania’, 17/3 International Journal of Human Rights, 350–67. Janse, R. (2019), ‘Is the European Commission a credible guardian of the values? A revisionist account of the Copenhagen political criteria during the Big Bang Enlargement’, 17(1) International Journal of Constitutional Law, 43–65. Kochenov, D. (2021), ‘Article 7: A Commentary on a Much Talked-About “Dead” Provision’ in A. von Bogdandy, P. Bogdanowicz, I. Canor, C. Grabenwarter, M. Taborowski and M. Schmidt (eds), Defending Checks and Balances in the EU Member States (Cham: Springer). Kochenov, D., and L. Pech (2016), ‘Better late than never? On the European Commission’s Rule of Law Framework and its first activation’, 54 Journal of Common Market Studies, 1062. Lasok, K., and T. Millet (2004), Judicial Control in the EU (Richmond: Richmond Law and Tax). Lechner, L. (2018), The European Union’s Inclusion of Non-Trade-Issues in Preferential Trade Agreements, http://​respect​.eui​.eu/​wp​-content/​uploads/​sites/​6/​2019/​05/​eu​_ntis​_ptas​.pdf. Martin, M. (2013), Expulsion of Roma: The French Government’s Broken Promise, State Watch, www​ .statewatch​.org/​analyses/​no​-222​-france​-roma​-expulsion​.pdf. Nielsen, I. (27 July 2018), ‘EU Commission skirts Italy sanctions on Roma evictions’, EUobserver, https://​euobserver​.com/​justice/​142482. Nugent, N. (ed.) (2000), At the Heart of the Union: Studies of the European Commission (London: Palgrave Macmillan). Nugent, N., and M. Rhinard (2016), ‘Is the European Commission really in decline?’, 54(5) Journal of Common Market Studies, 1199–215. O’Nions, H. (2011), ‘Roma expulsions and discrimination: The elephant in Brussels’, 13/14 European Journal of Migration and Law, 361–88. Pech, L., et al. (2016), An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights: Annex I (EPRS Study), PE 579.328. Pierson, P. (1996), ‘The path to European integration: A historical institutionalist analysis’, 29(2) Comparative Political Studies, 123–63. Piris, J.-C. (2010), The Lisbon Treaty (Cambridge: Cambridge University Press). Public Health England (2020), Disparities in the Risk and Outcomes of Covid-19, https://​assets​.publishing​ .service​.gov​.uk/​government/​uploads/​system/​uploads/​attachment​_data/​file/​908434/​Disparities​_in​_the​ _risk​_and​_outcomes​_of​_COVID​_August​_2020​_update​.pdf.

The European Commission and minority rights  161 Rechel, B. (2008), ‘What has limited the EU’s impact on minority rights in accession countries?’, 22(1) East European Politics and Societies: and Cultures, 171–91. Sasse, G. (2004), ‘EU Enlargement: Normative Overstretch or Effective Conditionality?’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union (Budapest: OSI). Scheppele, K.L. (2016), ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Actions’ in C. Closa and D. Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge: Cambridge University Press). Scheppele, K.L., D. Kochenov and B. Grabowska-Moroz (2021), ‘EU values are law, after all: Enforcing EU values through systemic infringement actions by the European Commission and the Member States of the European Union’, 39 Yearbook of European Law, 3–121. Severance, K. (21 October 2010), ‘France’s expulsion of Roma migrants: A test case for Europe’, Migration Policy Institute, www​.migrationpolicy​.org/​article/​frances​-expulsion​-roma​-migrants​-test​ -case​-europe. SMiLE (2002), Final Report: Support for Minority Languages in Europe. www​.ecmi​.de/​fileadmin/​ downloads/​Smile​_report​_2002​_Final​.pdf. Smismans, S. (2010), ‘The European Union’s fundamental rights myth’, 38/1 JCMS, 45–66. Tárnok, B. (2017), ‘European minorities win a battle in Luxembourg: The judgement of the General Court in the case Minority SafePack European Citizens’ Initiative’, 16(1) Journal on Ethnopolitics and Minority Issues in Europe, 79–94. Toggenburg, G.N. (ed.) (2004), Minority Protection and the Enlarged European Union (Budapest: OSI). Toggenburg, G.N. (2018), ‘The European Union and the Protection of Minorities: New Dynamism Via the European Citizen Initiative?’, 3–4 European Journal of Minority Studies, 362–91. Topidi, K. (2010), EU Law, Minorities and Enlargement (Cambridge: Intersentia). Topidi, K. (2012), ‘Minority Issues in Europe and the EU Experience to Enlargement to Central and Eastern Europe’, in 5th Warsaw Seminar on Human Rights (Warsaw: Kontrast), 85–95. Toth, A.G. (1997), ‘The European Union and human rights: The way forward’, 34(3) CMLREv, 491–529. Van Bossuyt, A. (2007a), ‘Fit for purpose or faulty design? Analysis of the jurisprudence of the European Court of Hunan Rights and the European Court of Justice on the legal protection of minorities’, 1 Journal on EthnoPolitics and Minority Issues in Europe, 1–20. Van Bossuyt, A. (2007b), ‘Is there an effective European legal framework for the protection of minority languages? The European Union and the Council of Europe screened’, 32/6 ELR, 860–77. Viterriti, A. (2010), An Independent Norms Entrepreneur, The European Commission and Asylum Policy, LSE Migration Studies Unit Working Paper 2010/03, www​.lse​.ac​.uk/​government/​Assets/​ Documents/​pdf/​research​-groups/​msu/​WP​-2010​-03​.pdf. Williams, A. (2004), EU Human Rights Policies: A Study in Irony (Oxford: Oxford University Press). Willis, C. (2021), ‘The Minority SafePack Initiative and universal basic income: A combination to address minority issues in the European Union?’, 28(4) International Journal on Minority and Group Rights, 575–604.

9. Enlargement and minority politics: the unravelling of the EU’s transformative power? Tove H. Malloy

INTRODUCTION Minority politics reached the top of the European Union (EU) agenda with the initiation of the fifth enlargement process in 1993. As Europe was experiencing a major rise in state- and nation-building in the new democracies in Eastern Europe after the end of the Cold War, comparable only to the end of World War I, the EU had concerns for peace and security similar to those of the founders of the League of Nations. There was a feeling that cleavages along ethnic lines could impact on the peace still under construction. In the years prior to 1993, the European Community (EC) had incorporated human rights and the principle of equality into the legal framework, but minority rights had not been prominent on the agenda. The processes for the fifth and the following enlargements thus became the most elaborate exercise dealing with minority issues in the history of the Union, and remain so until today. For this reason, these enlargement processes have received considerable attention from scholars of minority issues and minority protection. The motivation for enlargement of the then 12-member Union was to reunite the European continent and consolidate the peace by bringing the former Soviet Bloc countries closest to the EU borders into the Union. Since minority issues had by and large been suppressed or co-opted in the Soviet Union, the 12 EU member states were concerned about separatism and irredentism. The security concerns were not only expressed by the EU; other international institutions, such as the Conference on Security and Co-operation in Europe (CSCE) and the Council of Europe, had begun adopting policies on de-securitization and minority protection. As a result, the fifth enlargement policies adopted in Copenhagen in 1993, which included a number of legal and political conditions on democratization and the rule of law, also included a requirement to protect minorities. Enlargement of the EU is based on a unanimous decision among the member states in the Council of the EU and endorsed by the European Council. The Council of the EU is empowered to take such decisions through Article 49 of the Treaty on European Union (TEU).1

1 Article 49: ‘Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements’ (TEU 2016).

162

Enlargement and minority politics  163 Included in the European Council endorsement are the EU’s conditions for good government, basically legal, political, economic and social aspects of democratic government. Once an invitation is issued and accepted, the candidate country will undergo evaluation according to the conditions and criteria set by the European Council. The evaluation process is carried out by the European Commission. If a country meets all the criteria, an accession agreement is negotiated stipulating the timeframe and plan for negotiations of a number of relevant thematic issues divided into so-called chapters. Once all the chapters of such an agreement have been successfully agreed upon, the negotiations are considered finished and the country is usually deemed ready to enter the Union. The countries that entered the EU with the fifth, sixth and seventh enlargements were, with the exception of one, all countries with a history of minority issues and cleavages along ethno-cultural lines.2 So are the countries of the next waves of enlargement, although these processes have yet to be defined and given a timeframe.3 The history of ethno-cultural cleavages was, therefore, the main reason for the EU’s concerns for peace and security and for including a criterion on minority protection in the 1993 policy. Early on, scholars of minority protection expressed concern with the approach chosen, especially with the targets of the conditions. First, it soon became clear that the conditions were meant for the new member states only, and second, there were no competences in the EU legal framework to support the minority protection norms stipulated. Scholars questioned not only this tenuous approach but also the projected goals. While the approach was deemed hypocritical, as it exhibited ‘double standards’ in requiring one set of rules for new member states and another for existing member states (De Witte, 2000), the aim of successfully securing or improving minority rights protection in the new member states was questioned by scholars of statecraft in transition countries. They argued that there were no guarantees that candidate governments would in fact implement the adopted standards once the contract of membership was signed (Schimmelfennig and Seidelmeier, 2005). Thus, while legal scholars criticized the lack of competences in so far that the acquis communautaire did not include any minority protection standards, political scientists questioned the overt aim of Europeanizing central administrations of applicant and candidate countries into compliance. They felt that the divergent systems in place, which often carried strong legacies of authoritarian public management, would prevent a smooth transition to EU standards. This chapter will examine the enlargement politics and policies with regard to minority protection as debated by scholars of EU law, international relations and statecraft. First, a brief discussion of the historical background to the 1993 decision in the European Council will describe the developments that steered the EU towards enlargements and conditionality, including a perhaps misunderstood foreign policy approach. Next, the detailed monitoring and assessment system of reporting on applicant states’ progress towards democracy and the rule of law will be described through the lens of the scholarly critique of not only the processes but also the conceptual choice of conditionality. This will involve investigating the degree of 2 Malta, the smallest applicant state, is one of the few countries in the world with a rather homogenous population. 3 Enlargement waves: (1) 1973: Denmark, Ireland and the United Kingdom; (2) 1981: Greece; (3) 1986: Spain and Portugal; (4) 1995: Austria, Finland and Sweden; (5) 2004: Czechia, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia; (6) 2007: Bulgaria and Romania; (7) 2013: Croatia; (8) Albania, Bosnia and Hercegovina, Montenegro, North Macedonia, Turkey and Serbia are currently negotiating with the EU; (9) Moldova and Ukraine were invited in 2022 after this volume was finalized. Iceland made an application in 2009, but negotiations are on hold.

164  Research handbook on minority politics in the European Union consistency and equality implemented by the European Commission in the review of applicant countries’ compliance with minority protection standards. Next in focus will be the analytical tools. Since many scholars have viewed the aim of compliance through conditionality as problematic, a major section will endeavour to outline the many nuances and views of theoretical approaches that best explain the process of enlargement and impact on candidate countries as well as internally within the EU. Notions of transformative power and integration will be discussed. Prior to the concluding remarks, a short section will recap the status of enlargement since 1993. This will show the uneven and unequal approach that EU enlargement policies have triggered. In concluding, it will, therefore, be questioned whether the EU enlargement policies with regard to ethno-cultural policy and minority protection are a sincere aim to create a peaceful and united Europe.

TOWARDS A CONDITIONALITY POLICY The reasons for the EU’s conditionality on compliance with minority protection should be found both in Europe’s 20th-century problematic history of minority issues and in the developments in some of the applicant countries in the early 1990s. The resurgence of ethnic sentiments, and what some scholars called the ‘icebox effect’ according to which these sentiments became unfrozen and were allowed to enter the ideological void left by the disappearance of Communism (Liebich, 1998), had alarmed the EU to such an extent that it had convened a peace conference in The Hague in 1991 to discuss first and foremost how to deal with the situation in the disintegrating Yugoslavia. As the situation escalated, France initiated the process that would lead to the Copenhagen Criteria in 1993 and the adoption of the Pact of Stability for Europe in 1995. Spurred on by a speech by the French Prime Minister, Édouard Balladur, deploring the EU and Europe’s inability to deal with the crises in the former Yugoslavia (Benoit-Rohmer and Hardeman, 1994), the Council of the EU had no choice but to address minority protection in its conditionality policy. The Copenhagen Criteria were mainly conditions on economic and financial co-operation, but one half of a sentence referred to norms and standards requiring that ‘the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’ prior to membership.4 The conditions were strengthened by the European Council in Madrid in 1995 and operationalized by the European Council in Luxembourg in 1997. Importantly, the Criteria were proposed and adopted as part of the EU’s new Common Foreign and Security Policy (CFSP) and as a Joint Action regarding the potential of unrest in the applicant countries that had experienced ethno-cultural cleavages in the past. Thus, the foreign policy approach of earlier years was retained for the EU’s policy on enlargement, even though it should be clear that enlargement means expansion, augmenta-

The full paragraph reads: ‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.’ Presidency Conclusions, Copenhagen European Council – 21–22 June 1993, Section 7. Relations with the Countries of Central and Eastern Europe, Sub-section A. The Associated Countries. 4

Enlargement and minority politics  165 tion, broadening or addition. This section will trace the sentiments and policies leading up to the conditionality policy with regard to ethno-cultural policies and minority protection. The need to see enlargement as a foreign policy was heavily influenced by events and actions in the international community. The CSCE had convened a major peace conference in Paris in 1990 which resulted in the adoption of the so-called Paris Charter, or Charter of Paris for a New Europe, by most European countries, including the USSR as well as Canada and the United States (CSCE, 1990a). The Charter eventually became the founding document for the CSCE’s successor, the Organisation for Security and Co-operation in Europe (OSCE). Also in 1990, the CSCE issued very strong guidelines on national minority protection at a meeting in Copenhagen. The Concluding Document of the meeting included elaborate suggestions on the rights of national minorities in its chapters 30–38 (CSCE, 1990b). The CSCE and its successor the OSCE cannot issue legally binding directives, but the OSCE continues to hold a strong influence on European minority politics. Concerns with minority issues at its borders had also brought the EC/EU to establish the so-called Badinter Committee in 1991, or the Arbitration Commission of the Conference on Yugoslavia, entrusted with the task to provide legal advice to the EC/EU and its member states. The Committee developed a doctrine on self-determination and minority rights through its 15 opinions delivered between 1991 and 1993 (Pellet, 1992; De Witte, 2000). At the same time, the Council of Europe was very active promoting minority rights and minority language protection. The European Charter on Regional or Minority Languages (ECRML) was adopted in 1992, and discussions on an additional protocol on minority rights to the European Convention on Human Rights (ECHR) were ongoing. These were eventually rejected and the proposal transformed into the European Framework Convention for the Protection of National Minorities (FCNM) adopted in 1995. These external developments and Balladur’s speech influenced EU decision-makers, and perhaps induced them to see minority protection only as an external or international phenomenon. The EU’s focus on norms and human rights standards started in 1977. The Joint Declaration on fundamental rights signed in 1977 by the presidents of the European Parliament (EP), the Council and the European Commission declared in Section 1 that they attach prime importance to ‘the protection of fundamental rights, as derived in particular from the constitutions of the Member States and the European Convention for the Protection of Human Rights Fundamental Freedoms’. They further declared in Section 2 that ‘[i]n the exercise of their powers and in the pursuit of the aims of the European Communities they respect and will continue to respect these rights’. This may have provided the impetus for the EP to pursue its minority rights agenda. In the 1980s, the EP became the main defender of minority rights, as it issued several resolutions on language rights (1981, 1983, 1987)5 and a report proposing a charter for the rights of ethnic groups (Alber, 1993). Some have also argued that it influenced the inclusion of human rights criteria in Spain’s accession negotiations prior to its 1986 membership (Marktler, 2006, 345). An official reference to human rights was included in the preamble to the Single European Act of 1986. The 1989 Lomé IV agreement with developing countries in Africa included for the first time a reference to human rights in foreign policy agreements, apparently due to a concern with human rights violations in Uganda (Toggenburg, 2000). With the exception of the Single European Act, none of these references to human rights were legally binding on the member states.



5

See also Chapter 7 in this volume.

166  Research handbook on minority politics in the European Union The first reference to minority protection in the history of the EC/EU Council was in the Declaration on Human Rights included in the Presidency’s Conclusions of the 1991 Luxembourg European Council. The Declaration is found in Annex V of the Conclusions and forms part of the declarations on foreign policy: The protection of minorities is ensured in the first place by the effective establishment of democracy. The European Council recalls the fundamental nature of the principle of non-discrimination. It stresses the need to protect human rights whether or not the persons concerned belong to minorities. The European Council reiterates the importance of respecting the cultural identity as well as rights enjoyed by members of minorities which such persons should be able to exercise in common with other members of their group. Respect of this principle will favour political, social and economic development.

However, by the time the European Council was preparing to meet in 1993, the TEU, as amended by the Maastricht Treaty in 1992, did not go beyond the commitments to fundamental rights included in the preamble of the European Single Act.6 In particular the acquis communautaire instrument introduced by Article B of the Maastricht Treaty did not include a reference to minority rights or minority protection. Thus, neither the timid attempts by the EP at expanding the EC’s internal approach from fundamental rights to minority rights in the 1980s, nor the paragraph in the 1991 Luxembourg Declaration had influenced the decision-makers in the Council to include minority protection in the acquis communautaire. It was, therefore, clear that not only in politics but also in policy, minority protection was considered a concern relevant only to the external affairs of the EU. The true colours of double standards became clear with the adoption of the Amsterdam Treaty in 1997. On the one hand, the Treaty transposed the Copenhagen Criteria into primary law with the exception of the one on minority protection (Toggenburg, 2000). On the other hand, Article 13 of the Treaty expanded the notion of non-discrimination to include membership of a number of social groups, including ethnic minorities. The aim of this provision was to enhance social rights within the Union, but it exhibited double standards as it was clearly a provision meant for newcomers. This ‘chronological decalage’ or discrepancy between the reference to ethnic minorities internally in terms of immigrant groups in the Amsterdam Treaty and externally in terms of national minorities in the Copenhagen Criteria was so unconcealed, according to Bruno de Witte, that he had to ask: ‘is there a blatant double standard in the respect for minorities?’ (De Witte, 2000, 8). It is on this basis that the legitimacy of the acquis communautaire became discredited as the core reference instrument guiding the conditions for accession during the negotiations of the fifth and following enlargements. Subsequent law-making did not change anything. On the basis of Article 13 of the Amsterdam Treaty, the EU adopted two anti-discrimination directives in 2000.7 Both are directives aimed at abating discrimination in access to social rights. While the Charter of Fundamental Rights of the EU, also adopted in 2000, did refer to national minorities in its non-discrimination clause Article 21, it did not go so far that experts would deem it a repeal of the double standards judgement (Toggenburg, 2000). During the period of accession negotiations for the fifth enlargement wave from March 1998 until the final approval during the European Council in Brussels in 2004, the EU remained agnostic on minority protection 6 7



Article F of the Maastricht Treaty is basically a copy of the 1977 Declaration. See also Chapter 3 in this volume.

Enlargement and minority politics  167 and avoided any further standards that could have reversed the double standard approach (De Witte, 2000). The division between foreign policy and internal matters remained sharp even though enlargement policies were devised for countries that would eventually be subject to internal rules.

ENLARGEMENT POLICY AND PROCEDURES Consensus and unanimous decisions on enlargement have been taken in each case since the first in 1972, which set the stage for welcoming Denmark, Ireland and the United Kingdom in 1973. A country desiring to become a member submits an application to the Council of the EU. Article 49 TEU defines the procedure of accession, while Article 2 defines the general conditions (EU, 2016). The specific conditions of admission are established by the European Council before each enlargement process, but the 1993 Copenhagen Criteria remain the core principles. These were eventually enshrined in EU law in Article 2. The three Copenhagen Criteria that applicant countries must fulfil are: 1. Stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (italics mine); 2. A functioning market economy and the ability to cope with competitive pressure and market forces within the EU; 3. Ability to take on the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law (the ‘acquis’), and adherence to the aims of political, economic and monetary union. (European Council, 1993)

The first criterion – and the only condition stipulating minority protection – constitutes the political conditions, the second the economic conditions, while the third criterion is of a legal and institutional nature. The Criteria were very vague and initially left candidate countries’ governments perplexed as to how the process would unfold (Hillion, 2003; Kochenov, 2004). It took several additional policy decisions to clarify the process and set it in motion. This section will examine the policy-making process within the EU and set the stage for the academic debates that ensued as the fifth and following enlargement waves took place. For EU accession negotiations to be launched, an applicant country must satisfy the first criterion. For accession all criteria had to be satisfied. The 1995 European Council in Madrid furthermore added that candidate countries must be able to apply EU law and must be able to ensure that the EU law transposed into national legislation is implemented effectively through appropriate administrative and judicial structures. The 1997 European Council in Luxembourg elaborated the process in terms of specific objectives and milestones. The Luxembourg meeting also established the European Conference, whose purpose was to bring together the member states and the applicant countries in a forum that shared a common commitment to peace, security and good neighbourliness, respect for other countries’ sovereignty, the principles upon which the European Union is founded, the integrity and inviolability of external borders and the principles of international law and a commitment to the settlement of territorial disputes by peaceful means, in particular through the jurisdiction of the International Court of Justice in the Hague. (European Council, 1997)

168  Research handbook on minority politics in the European Union In other words, the EU’s conditionality combines a number of European Council decisions enshrined in the acquis communautaire with external norms and standards promulgated by international institutions, such as the United Nations (UN), the OSCE and the Council of Europe. The influence of international norms and standards was further emphasized in the EU’s Agenda 2000 ‘For a stronger and wider Union’ in which the Commission made clear references to the Council of Europe standards enshrined in the FCNM and in the Parliamentary Assembly’s Recommendation 1201 (European Commission, 2000). While the former safeguards individual minority rights, the latter recommended collective rights to be recognized (Council of Europe, 1993). Collective rights may have deterred some of the candidate governments, as Recommendation 1201 was not implemented across the board. The FCNM, on the other hand, became a benchmark instrument used by the Commission in the monitoring of compliance with the Copenhagen Criteria on minority protection. The process from applicant over candidate status to accession status begins and ends with the European Commission. First, the Commission assesses whether a country is eligible to become a candidate country according to the Copenhagen Criteria. This so-called ‘goodness of fit’ is detailed in the Commission’s Opinions, which are sent to the Council of the EU for approval. Subsequently, the European Council will endorse the decision allowing the Commission to enter into an accession partnership with the applicant country, thus transforming it to the status of candidate country. The Accession Partnership agreement not only defines the process and the mandate of the accession negotiations with each candidate country; it also mobilizes pre-accession aid in terms of financial resources, such as the PHARE (Poland and Hungary Assistance for the Restructuring of the Economy) programme and the successor IPA (Instrument for Pre-Accession Assistance) programme. In addition, some EU programmes (e.g., education, training and research) will be open to partnership countries, enabling them to familiarize themselves with the Union’s policies and working methods. Such participation is determined case by case with each partnership country making a steadily increasing financial contribution of its own. Accession negotiations take place between ministers and ambassadors of the EU governments and the candidate countries in intergovernmental conferences. The process of negotiations is divided into the 35 policy areas or chapters included in the acquis communautaire.8 Before negotiations actually take place, the Commission screens each policy area and presents its findings to the member states in the form of a screening report. The conclusion of this report is the Commission’s recommendation to either open negotiations directly or to require that certain specific conditions should be met first. Moreover, the candidate countries must submit

Current list of chapters: 1: Free movement of goods; 2: Freedom of movement for workers; 3: Right of establishment and freedom to provide services; 4: Free movement of capital; 5: Public procurement; 6: Company law; 7: Intellectual property law; 8: Competition policy; 9: Financial services; 10: Information society and media; 11: Agriculture and rural development; 12: Food safety, veterinary and phytosanitary policy; 13: Fisheries; 14: Transport policy; 15: Energy; 16: Taxation; 17: Economic and monetary policy; 18: Statistics; 19: Social policy and employment; 20: Enterprise and industrial policy; 21: Trans-European networks; 22: Regional policy and coordination of structural instruments; 23: Judiciary and fundamental rights; 24: Justice, freedom and security; 25: Science and research; 26: Education and culture; 27: Environment; 28: Consumer and health protection; 29: Customs union; 30: External relations; 31: Foreign, security and defence policy; 32: Financial control; 33: Financial and budgetary provisions; 34: Institutions; 35: Other issues. 8

Enlargement and minority politics  169 their positions, and the EU must adopt a common position. For most policy areas the EU will set closing benchmarks which need to be met by the candidate countries before negotiations in the policy field concerned can be closed. The Commission also informs the Council of the EU and the EP throughout the process, in particular by means of the annual enlargement packages composed of a horizontal strategy paper in the form of a communication on enlargement policy and country reports. These documents are discussed in the EP, which submits its observations in resolutions adopted by the Plenary. Candidate countries also draw up annual national programmes in which they assess their own progress in implementing the different chapters of the acquis communautaire. Minority protection may be discussed during negotiations on all chapters. Originally, there were 30 chapters for the fifth enlargement wave. The number is now 35. Of the current list, chapters 23, 24 and 26 cover the policy areas that relate most directly to minority protection. Chapter 23 on judiciary and fundamental rights aims to maintain and develop the Union as an area of freedom, security and justice. It was introduced in 2005 before the negotiations with Croatia and Turkey began. Originally, Chapter 23 addressed consumers and health protection and Chapter 24 co-operation in the field of justice and home affairs. With the need to focus much stronger on the rule of law, these two chapters were reorganized, and the area of consumers and health became Chapter 28. The current Chapter 23 stipulates that the establishment of an independent and efficient judiciary is of paramount importance, and impartiality, integrity and a high standard of adjudication by the courts are essential for safeguarding the rule of law. It further requires that candidate countries commit to eliminating external influences over the judiciary and to devoting adequate financial resources and training. Moreover, legal guarantees for fair trial procedures must be in place, and candidate governments must fight corruption effectively, as it represents a threat to the stability of democratic institutions and the rule of law. A solid legal framework and reliable institutions are required to underpin a coherent policy of prevention and deterrence of corruption. Finally, candidate countries must ensure respect for fundamental rights and EU citizens’ rights, as guaranteed by the acquis communautaire and by the Charter of Fundamental Rights. Chapter 24 on justice, freedom and security focuses on issues such as border control, visas, external migration, asylum, police co-operation, the fight against organized crime and against terrorism, co-operation in the field of drugs, customs co-operation and judicial co-operation in criminal and civil matters. A strong and well-integrated administrative capacity within the law enforcement agencies, including a professional, reliable and efficient police force, is seen as the key to fulfilling this chapter’s requirements. The Schengen co-operation is also addressed in this chapter. In a sense, chapters 23 and 24 complement each other, as they both address the aspect of rule of law. These two chapters are always opened first and closed last. Chapter 26 on education and culture establishes that the areas of education, training, youth and culture are primarily the competence of individual member states, but a co-operation framework on education and training policies aims to converge national policies and the attainment of shared objectives. However, with regard to cultural diversity, candidate countries will have to uphold the principles enshrined in Article 151 of the EC Treaty and ensure that their international commitments allow for preserving and promoting cultural diversity. Thus, European international standards on minority protection would have to be observed, including the standards promoted by the UN, the Council of Europe and the OSCE.

170  Research handbook on minority politics in the European Union Each year during negotiations, the Commission issues a regular report of each candidate country’s periodic progress. Specifically, with regard to minority protection, a checklist of topics was developed, which the negotiators should examine (Sasse, 2009). These included: ● ● ● ● ● ● ● ● ● ●

Ratification and implementation of the FCNM; Situation of Roma, Russian speakers and other minorities; Citizenship legislation; Rate of naturalization; Stateless children; Non-citizens’ passports; Active policies to integrate minorities; Language legislation and language training programmes; Professional restrictions; and Minority rights ombudsman (if relevant).

Once all policy areas have been negotiated and the chapters closed, an accession treaty is drawn up and submitted to the approval procedure. This entails approval by the three main EU institutions, the Council of the EU, the Commission and the EP, signatures and ratifications by the candidate country as well as each member state. The Accession Treaty (AT) cements the candidate countries’ memberships of the EU. It contains the detailed terms and conditions of membership, all transitional arrangements and deadlines, as well as details of financial arrangements and any safeguard clauses. Once the AT is signed, the candidate country becomes an accession state. This means it is expected to become a full EU member on the date laid down in the AT, providing it has been ratified by all member states. In the interim, accession states benefit from special arrangements, such as being able to comment on draft EU proposals, communications, recommendations or initiatives, and ‘active observer status’ on EU bodies and agencies. With regard to the Western Balkans, a special approach was established. The EU’s relations with the Western Balkan countries takes place within a framework known as the Stabilisation and Association Process (SAP) launched in June 1999 and strengthened at the Thessaloniki Summit in June 2003. The Thessaloniki European Council reaffirmed the European perspective for the Western Balkan countries from the 2000 European Council in Santa Maria da Feira, where possible integration of these countries into the European political and economic mainstream was proclaimed as a future target. In the 2003 Presidential Conclusions’ annex titled ‘The Thessaloniki Agenda for the Western Balkans: Moving towards European Integration’, the EU set out its agenda with the region (Marktler, 2006). While the SAP had taken over elements of the accession process, it stopped short of offering candidate status soon after application the way the fifth, sixth and seventh enlargement processes did. The SAP has three aims: ● Stabilizing the countries politically and encouraging their swift transition to a market economy; ● Promoting regional co-operation; and ● Eventual membership of the EU. The process is supposed to help the countries concerned build their capacity to adopt and implement EU law, as well as European and international standards. It is based on an

Enlargement and minority politics  171 ever-closer partnership, with the EU offering a mixture of trade concessions, economic and financial assistance for reconstruction, development and stabilization, and is governed by Stabilisation and Association Agreements (SAA). These are far-reaching contractual relationships with the EU, entailing mutual rights and obligations. Thus, the idea is that each country moves step by step towards candidate status as it fulfils its commitments in the SAA and the aims of the SAP. As with the earlier enlargement process, the Commission assesses progress made in annual progress reports. The EU’s enlargement approach is continuously refined and new measures are introduced with each enlargement wave. Thus, in addition to the Thessaloniki Agenda, the EU adopted a revised strategy for enlargement in 2006. The revised Enlargement Strategy had the main aim of improving on the methodology of the monitoring process, especially with regard to conditionality, but, according to Hillion (2010), it was rather more the objective to give the EU and individual member states more control. There had been a sense among member states that the fifth and sixth enlargement negotiation processes had not delivered as hoped on conditionality, and the process needed to be more rigorous. Specifically, there was concern that candidate countries were ill-prepared and public disenchantment was emerging (Hillion, 2010, 18). As a result, conditionality was officially enhanced in the pre-accession negotiation process, allowing the EU to set individual benchmarks for candidate countries. However, the background to the measure was to put stronger emphasis on the EU and its member states’ ability to absorb the new members. This had been addressed in the 1993 Copenhagen European Council and following European Councils, but it had not been codified in EU law like the three Copenhagen Criteria. The view in 2006 was that the EU needed an emergency-brake-type function, thus essentially adopting a fourth Copenhagen criterion (Hillion, 2010, 26). This latter instrument would be applied if it was estimated that institutional reform within the EU was necessary. Moreover, the revision also changed the procedure of the application stage. Whereas earlier the Commission automatically prepared its opinions, the new procedure allowed for the Council of the EU to request that opinions were prepared, basically giving member states the first final go-ahead on an application. In a sense, this revised enlargement policy constituted an expansion of the EU and its member states’ power to slow down or even reverse accession negotiations.

LEGITIMACY OF POLICY AND PROCEDURES The policy and procedures for the fifth and following enlargement processes have been intensively criticized by scholars of minority issues and European integration. Critics point out the Commission’s rigid and weak methodology in the monitoring of progress regarding minority protection policies (Hughes and Sasse, 2003; Sasse, 2009) as well as the uneven and differentiated approach to evaluation of government action on minority protection (Kochenov, 2007). Specifically, there seems consensus that the Commission had decided to monitor only two specific minority groups, which it considered more problematic than other minorities (Hughes and Sasse, 2003; Kochenov, 2007). This, combined with the critique of conditionality exposing double standards in the intent of the member states (De Witte, 2000), raises questions not only of the legitimacy of the policy and its proper implementation but also of the credibility of the commitment of the member states towards candidate countries (Hillion, 2010). On the other hand, it has also been argued that imposing conditionality is considered a strong tool in

172  Research handbook on minority politics in the European Union achieving compliance in terms of domestic minority protection policies, and the alternative of normative pressure without incentives has proven ineffective (Kelley, 2004). This section will focus on some of the main arguments provided by key scholars of minority issues as the EU began implementing its enlargement policies. One criticism of the EU’s approach to monitoring the progress in the candidate countries with regard to legislative development and capacity to meet obligations of membership focused on the Commission’s design and development of the progress reports. This criticism was based on a political science perspective to assessing the Commission’s monitoring. According to James Hughes and Gwendolyn Sasse, the first problem with the monitoring reports was that they were formulaic in structure in order to allow for cross-country comparison (2003, 14). With regard to minority protection, this is a tall order given that the situation is very different from country to country. Next, they observed that even though all the candidate countries had significant minority populations, the reports consistently only discussed the Russian speakers in Estonia and Latvia and the Roma communities in Central Europe. Although the Hungarians outside Hungary and the Turks in Bulgaria also get mentioned, much less attention was given to these minorities. Hughes and Sasse also noted that there was a considerable preference for discussing compliance with the acquis communautaire, which does not include provisions on minority protection. This, they argued, resulted in the reports lacking clear benchmarks against which to measure progress; instead, the Commission referred ambiguously to international standards or European standards. Hughes and Sasse argue, therefore, that this would indicate that there was a greater interest in monitoring legal and economic progress than the political criteria of minority protection (2003, 14). Hughes and Sasse furthermore criticized the lack of original EU sources of data in the reports. The reports presented mainly pre-existing data originating from international organizations, non-governmental organizations and the candidate countries. The data was based on quantitative indicators of minority protection, such as number of new citizenships granted, number of educational institutions providing minority education, and media programmes in minority languages (Hughes and Sasse, 2003, 15). As such, monitoring became a ticking-off exercise based on a quantitative evaluation of regulatory output, rather than an in-depth qualitative assessment of how effectively entrenched the imported norms were. The most damning criticism was that the Commission had an overt aim of producing a ‘cumulative success story’ in the reports (Hughes and Sasse, 2003, 15). Particularly for the Luxembourg group, Hughes and Sasse found that positive developments in minority protection policies were presented, often without sources, even though previous reports had not specified any problem in these areas. This means that the reports did not systematically assess the structure and operation of institutions and policies dealing with minority issues. According to Hughes and Sasse, this type of ‘ad hocism’ resulted in a lack of continuity and coherence in the monitoring of progress (2003, 16). Overall, Hughes and Sasse found that the focus on policies rather than implementation and impact was problematic, and that conditionality was not clearly and temporally correlated with the emergence of new political strategies on minority protection (2003, 30). From a purely legal perspective, criticism of the Commission’s methodological approach was even more unforgiving. As noted above, the progress reports consistently discussed the Russian speakers in Estonia and Latvia and the Roma communities in Central and Eastern Europe while paying much less attention to other minority groups. In fact, according to Dimitry Kochenov (2005, 2007), the Commission overtly divided the candidate countries with considerable minority populations in two groups. Group one included Bulgaria, Czechia,

Enlargement and minority politics  173 Hungary, Romania and Slovakia, while group two covered Estonia and Latvia. With regard to group one, the Commission focused mainly on the Roma communities in these countries, albeit it also discussed other smaller national minorities, whereas for the second group, the Commission concentrated its monitoring on the Russian-speaking minority. While the focus of the monitoring was on non-discrimination, there was, according to Kochenov, a tendency to accept the existing policies and disregard discrimination (2007, 15). In fact, the rather overt assimilation policies in Estonia and Latvia were tolerated in the reports, even as it was becoming clear that such policies could lead to exclusion and emigration of Russian-speaking minorities. This ‘dualism’, as Kochenov called it, had ramifications not only for the minority groups implicated but also for the legitimacy of conditionality (2007). Kochenov further argued that the differentiation in the approach to monitoring was not only ‘on its face contradictory to the spirit of inclusion and tolerance promoted by the Commission in the first group’, but it was also ‘in clear contradiction with the pre-accession principle of conditionality that consisted in the objective assessment of all the candidate countries’ progress based on the same criteria for all’ (2007, 15). To illustrate the divergence in approaches, he offers a list of aspects that he found concerning: • Structural approach to minority rights assessment; • Naming the minorities concerned; • Different approach to the link between belonging to a given minority and the citizenship of a country in question; • Different approaches to minority education in the two groups of countries; • Different approaches to non-discrimination in the two groups of countries; • Different approaches to minority self-government in the two groups of countries; • Different approaches to the political rights enjoyed by minorities in the two groups of countries. (2007, 16)

Based on his analysis of these points, Kochenov concluded that with regard to group one, the Commission was clearly ‘on the side of the minorities’, while with regard to group two, it was ‘on the side of the candidate countries’ (2007, 36). As a result, this approach did not produce a fair assessment of all the candidate countries with minority populations. Rather, inconsistency in the Commission’s approach led to dual standards and ultimately to an unsustainable approach, which, according to Kochenov, was in fact a ‘resounding failure’ (2007, 249). Notwithstanding the shortcomings of manipulative methodology and dualism with regard to minority protection, the fifth and sixth enlargements were unanimously approved in the Council of the EU and endorsed by the European Council. The unity ended with the revised policy in the 2006 Enlargement Strategy. The processes of Croatia and Albania’s negotiations as well as recently North Macedonia have been interrupted by bilateral disputes between member states and candidate countries. Some of these are discussed in ‘From a united front to a fracturing facade’ below, but the risk of bilateral disputes was identified by Hillion in 2010. He explains that an instrumentalization of enlargement processes by individual member states takes place not just due to a craving for control, but also as a result of a willingness to use the processes for domestic political gains. According to Hillion, enlargement is being hijacked by some member states using their relative power vis-à-vis applicants to settle bilateral issues to their advantage. He terms this the ‘creeping nationalisation’ of the enlargement policy that has resulted in processes congested by legal and political hurdles (2010, 7). This, he argues, not only questions the credibility of member states’

174  Research handbook on minority politics in the European Union commitments towards current and future candidates but also the effectiveness of the policy’s transformative power.

TRANSFORMATIVE POWER AND INTEGRATION PROCESSES Transformative power was identified early in the fifth enlargement process as a phenomenon that would make conditionality and integration a success. Scholars of minority protection soon focused on the degree, scope and functionality of the transformative power of enlargement policies on domestic policy-making. One of the first to analyze the notion of transformative power was Heather Grabbe (2006), who examined in the timeframe of 1989–2004 how the EU used its conditions for membership to influence the policy choices made by candidate countries. Grabbe argued that the EU had potentially enormous influence on public policy in candidate countries, even though its influence in Central and Eastern Europe did not fulfil this potential because of the inconsistency and lack of precision in the Union’s membership criteria. However, she expanded the concept of conditionality by arguing that beyond the attraction of membership, the EU also had specific routes through which it could influence political and policy choices. These included gate-keeping, benchmarking, models, money and advice. The power of transformation through conditionality measures was thus and is a multifaceted function. This section will examine first some of the arguments of the EU’s transformative power followed by a discussion of different theoretical approaches to assessing the EU’s integration capacity. Judith Kelley, who studied the conditionality of not only the EU but also of the Council of Europe and the CSCE/OSCE, saw transformative power as a two-pronged phenomenon. She argued (2004) that it is important to distinguish between membership conditionality and normative pressure. Whereas normative pressure occurs when an institution advises a government on the direction a policy should take, offering no reward other than the approbation of the institution, conditionality involves explicitly linking the change advocated to an incentive, a particular benefit provided by the institution, such as membership (Kelley, 2004, 3). Kelley conceded that domestic opposition posed greater obstacles to normative pressure than it did to membership conditionality. When European institutions used only normative pressure, governments rarely changed their behaviour. Normative pressure alone failed to build a sufficient coalition for policy change when the domestic opposition was strong. In those cases where normative pressure influenced ethnic policy without the added use of conditionality, the domestic opposition was usually low, and the effect was only moderate. Thus, according to Kelley, ‘as domestic opposition to concessions on ethnic policy grew, membership conditionality was not only increasingly necessary to change behavior, but it was also surprisingly effective’ because it forced domestic policy-makers to compromise (2004, 4). Ian Manners was rather more optimistic about normative pressure. Four years prior to Kelley’s analysis, he argued that Europe, as an increasingly united region, was able to exert normative pressure by seeking to ‘normalize’ new values into external societies (2000). Like Kelley’s, Manners’ view was also an international relations perspective but rather more theoretical. He argued that military might as the main measurement of power was no longer valid, and Europe had transformed itself into a soft-power region promoting normative ideals and values, such as human rights. Manners thus believed that ‘normative power Europe’ was on the way to ‘export’ its values through new means (2000, 38). He argued for six methods

Enlargement and minority politics  175 of what he called ‘norm diffusion’ by which Europe and the EU were transferring norms to Eastern Europe and non-European countries (2000, 244–5). These were: ● Contagion through the unintentional diffusion of ideas from the EU to other political actors; ● Informational diffusion in terms of strategic communications, such as new policy initiatives by the EU, and declaratory communications, such as initiatives from the presidency of the EU or the president of the European Commission; ● Procedural diffusion, such as the institutionalization of a relationship between the EU and a candidate country; ● Transference diffusion in terms of financial rewards through the exchanges of goods, trade, aid or technical assistance with candidate countries, such as the PHARE and TACIS (Technical Assistance to the Commonwealth of Independent States) programmes with the enlargement countries; ● Overt diffusion in terms of, or as a result of, the physical presence of the EU in candidate countries, including the role of Commission delegations and member states’ embassies as well as visits by the troika of foreign ministers, the president of the Commission, or monitoring missions; and ● Cultural filter diffusion in terms of the impact of international norms and political learning in candidate countries leading to learning, adaptation or rejection of norms through the interplay between the construction of knowledge and the creation of social and political identity by the subjects of norm diffusion. Although Manners discussed these phenomena as European normative powers, he accredited much of these processes to the EU, as the EU had become a hybrid polity with the ability to exert such powers over its adversaries as well as partners. Manners continued to fine-tune his ‘normative power Europe’ theory and develop it specifically with regard to the normative ethics on which the EU is built. Normative ethics refers to a cluster of philosophical theories about moral behaviour, or how one ought to act, also called deontological ethics (Alexander and Moore, 2021). According to Manners, the EU is able to exert its normative power because it ‘promotes a series of normative principles that are generally acknowledged within the UN system’ (2008, 46). The principles that are compatible with the international system include ● ● ● ● ● ● ● ● ●

Sustainable peace; Social freedom; Consensual democracy; Associative human rights; Supranational rule of law; Inclusive equality; Social solidarity; Sustainable development; and Good governance.

According to Manners, these principles are transformative through a set of three procedural ethics. First, living by example, by which the EU shows normative coherence and consistency in its policies (Manners, 2008, 56). Second, being reasonable, by which the EU engages in

176  Research handbook on minority politics in the European Union dialogue and transparent patterns of communication when implementing enlargement policies (2008, 58). Third, doing least harm, by which the EU considers reflexively the impact of its policies on external partners (2008, 59). These principles and ethics, Manners notes, are included in the EU’s objectives as laid out in the Treaty of Lisbon (Article 2 with regard to principles, and 10 with regard to foreign policy). If the EU follows these ethics, its normative power will be transformative. Unlike Kelley, Manners does not specifically address ethno-cultural policy and conditionality. His focus remains the EU’s foreign policy in terms of world politics, and as noted earlier, it is rather theoretical. Seen with the lens of ethno-cultural policy and minority protection, it could be questioned whether it was not too optimistic given the fact that minority rights were not part of the acquis communautaire and thus could hardly be seen as part of the EU’s normative ethics. Scholars of ethno-cultural policy and minority protection have preferred to place the impact of the theoretical approach of enlargement in the broader discussion of Europeanization. Although ‘Europeanization’ is used generally today as synonymous with EU enlargement and the EU’s effect on the new member states, that is not its original meaning. In fact, Europeanization is not a new phenomenon, and it has several meanings depending on the scientific perspective. Historians have used the term to describe the effect of colonization on countries and regions outside Europe. On this view, it refers to the export of European political institutions, political practice and the European way of life beyond the European continent mainly through coercion (Featherstone, 2003; Olsen, 2003). More precisely, this could be called ‘Westernization’ or ‘modernization’ (Bieber and Bieber, 2021a). According to Florian Bieber, this ‘civilising mission’ was often superficial in the Balkans and Turkey; it was more like an emulation of statehood, even though Western constitutions and institutions functioned as ‘blueprints’ for the new states. Thus, by 1989 the transfer dynamics of Westernization was not new in the Balkans. Cultural anthropologists and social scientists have use Europeanization to refer to the reshaping of identities in a manner which relativizes national identities (Harmsen and Wilson, 2000, 17). By this they mean the transnational diffusion of everyday habits, ideas, traditions and cultural practices (Sittermann, 2006, 3). Peter Mair has called this ‘informal Europeanization’ as it often results in cross-cultural convergence (2004, 342). Political scientists have obviously preferred a political notion of Europeanization, including the one used in enlargement debates. They refer to Europeanization in the sense of the institutionalization of co-operation across the European continent; i.e., the development of a polity and policies as well as the adaptation at the national level to EU institutions and rules. Among political scientists, the notion of Europeanization East has also been used when specifically discussing the fifth and sixth enlargement waves (Schimmelfennig and Seidelmeier, 2005). However, some have argued that this perspective of Europeanization should more correctly be called ‘EU-isation’ (Wallace, 2000; Radaelli, 2003, 27). According to Claudio Radaelli, this phenomenon encompasses processes of (a) construction (b) diffusion and (c) institutionalization of formal and informal rules, procedures, policy paradigms, styles, “ways of doing things” and shared beliefs and norms which are first defined and consolidated in the making of EU public policy and politics and then incorporated in the logic of domestic discourse, identities, political structures and public policies. (Radaelli, 2003, 30)

Moreover, it goes two ways: towards Brussels, and from Brussels to the individual member states. That is the vertical process. It also goes horizontal within the state; that is, internal and domestic processes favouring or not favouring EU integration (Radaelli, 2003, 41). Overall,

Enlargement and minority politics  177 the notion of EU-isation ‘captures the whole life-cycle of public policy, with possible feedback effects between the national level and the EU, focusing on processes rather than outcomes’ (Saurugger and Radaelli, 2008, 213). In other words, processes that are rather more complex than the theoretical approach of normative ethics. As enlargement enfolded, scholars have agreed that the power of transformation eventually will work both outwards and inwards, meaning towards the candidate countries as well as within the EU institutional setup. For instance, Hillion (2010) argued that the intention with the fourth Copenhagen Criteria and the 2006 Enlargement Policy was fueled by the fear that the EU’s internal institutional framework would not be able to integrate the new member states. The 1993 Copenhagen European Council had insisted that any enlargement was to be decided taking account of the EU’s capacity to absorb new members while maintaining the momentum of internal integration. The member states specifically made it clear that institutional reform would be required for the EU to enlarge to Central and East European countries. The notion of ‘absorption capacity’ was thus introduced as a functional measure of the EU’s ability to welcome new members without jeopardizing its integration process (Hillion, 2010, 26). The constitutive elements of absorption capacity have been debated among scholars but remain ambiguous. Essentially, it is determined by the development of the EU’s policies and institutions combined with the transformation of applicant countries into well-prepared members. Moreover, the absorption capacity must comply with the political and policy objectives established by the Treaties. In other words, the enlargement policy, which started out as a foreign policy, and was hailed as the most successful EU foreign policy, eventually proved as much an internal policy. It became clear that a conditionality policy works both ways. The two-way of conditionality is now fully recognized among scholars as the integration capacity of the EU. According to Tanja Börzel et al. (2017, 1), ‘integration capacity refers to the ability of the EU to prepare non-members for membership (external integration capacity) and to preserve its functioning and cohesion once they join (internal integration capacity)’. Drawing on a large-scale research project, Börzel and her colleagues argue that the EU’s integration capacity has in fact been strong.9 Due to the efforts of domestic policy-makers and administrations in the candidate countries empowered and supported by the EU’s effective accession conditionality and assistance, the new member states entered the EU as increasingly competitive market economies. Moreover, they argue that conditionality had a positive impact on democracy, governance capacity and economic transformation in the new member states, while pre-accession assistance contributed to cushioning the shock of integrating transition economies into the EU’s market. They also found that conditionality transformed domestic institution surprisingly well, showing a post-accession record of compliance with EU law. Finally, they argued that eastern enlargement has not had any systematic negative effects on the legislative capacity of the EU or its legal system. In fact, the speed of decision-making increased and has not led to a deterioration of compliance, nor has it delayed implementation of EU law. Nevertheless, as opposed to the effect of non-discrimination policies on anti-discrimination legislation, compliance in terms of minority protection seems to get less positive evaluation. As noted, compliance was difficult to measure as the acquis communautaire did not include minority protection. Instead, the EU relied on referring to international norms and standards as 9 The MAXCAP project was an EU-funded research project. For further information, please consult www​.maxcap​-project​.eu.

178  Research handbook on minority politics in the European Union promulgated by the Council of Europe and the CSCE/OSCE. Given that the candidate countries had only recently become members of these organizations or were not yet members, they were in the early stages of adopting human and minority rights standards when enlargement began in 1993. Moreover, the international norms and standards developed by these international organizations were not always clear and concise, thus leaving candidate countries room for arbitrary implementation. Lack of capacity and competencies also created, if not willingly, gaps in implementation. The resulting divergence between the norms envisaged by the EU and the ones that actually emerged in the candidate countries resulted in poor implementation of the first Copenhagen Criterion. Scholars refer to this as a kind of ‘misfit’, meaning that the alignment to international norms is not achieved as expected (Knill and Lenschow, 1998; Börzel and Risse, 2000; Cortell and Davis, 2000; Brosig, 2010). Malte Brosig has argued that the misfit should be interpreted as the degree of norm resonance within candidate and acceding countries depending on local circumstances, such as perceptions about culture and ethnicity and historical legacies. In other words, he advocated that qualitative knowledge and holistic approaches to measuring compliance on minority protection should be introduced. This would improve the understanding of the integration capacity of candidate countries. The need to take a more holistic approach has also driven scholars to focus more intensely on the domestic political situation in candidate countries. Like Brosig, Schimmelfennig and Seidelmeier proposed to measure integration capacity, or what they called rule adoption, in terms of various degrees of ‘implementation and enforcement of rules, rather than simply the legal transposition of rules’ (2004, 11). This, they argued, is feasible if one studies and measures indirect anticipatory domestically driven adaptation of all aspects of the institutionalization of EU rules in candidate countries. Schimmelfennig and Seidelmeier (2005) proposed three methods of analysis of integration capacity models, or explanatory models and mechanisms of rule adoption, as they call them. First, the external incentives model, which is based on conditionality, a logic of consequences and bargaining, and depends on rewards without punishment. Usually, there is both direct bargaining with the EU and internal processes empowering domestic actors to see the cost-benefit of rule adaptation based on conditions, rewards, credibility and cost. Schimmelfennig and Seidelmeier surmised that the likelihood of rule adoption increases, if rules are set as conditions for rewards and are more determinate, and it will increase with ‘the size and speed of rewards’ (2005, 20). They also argued that ‘the likelihood of rule adoption increases with the creditability of conditional threats and promises’ (2004, 24), while it is likely to decrease with ‘the number of veto players incurring net adoption costs from compliance’ (2004, 26). Thus, this model of conditionality ‘will be most effective if rules and conditions are determinate, conditional rewards are certain, high, and quickly disbursed, threats to withhold the reward are credible, adoption costs are small and veto players are few’ (2004, 26–7). The second model proposed by Schimmelfennig and Seidelmeier, the social learning model, follows a logic of appropriateness of EU rules and indirect persuasion and depends on legitimacy, identity and resonance. To be legitimate, a rule must be clear and coherent and accepted by the member states; the EU must engage in dialogue with applicant and candidate countries to develop ownership equally; and the rule must be in line with other available options (the UN, the USA). If the candidate country elite identifies with the EU states as a group of aspiration, it is more likely to adopt rules. Like Brosig, they also argued that resonance between the conditional rules and domestic rules will also improve the likelihood of success in rule adoption. This model is very discursive as opposed to the bargaining of the previous model.

Enlargement and minority politics  179 The third model, the lesson-drawing model, provides remedies needed for domestic development and depends on domestic dissatisfaction with the status quo, usually exemplified through policy dissatisfaction. This model requires active epistemic communities to argue for the best fit as well as a degree of transferability of rules. With these components in the process there is likely to be an impetus for learning from abroad. Hence, conditionality is not the defining factor in rule adoption, but rather the belief that rule adoption can solve domestic problems. Schimmelfennig and Seidelmeier’s analysis shows that there is no doubt that the power of transformation through conditionality measures is a very complex process of European integration, which warrants sophisticated analytical tools. In a sense, they take us into the machine room of enlargement by breaking the processes down to aspects of politics, public administration, state- and nation-building, domestic power relations, and much more. They show us that ‘the process of alignment’ (2005, 2) with EU norms and standards depends on both direct and indirect stimulus. Space does not allow for a thorough examination of the impact of enlargement on ethno-cultural policies and minority protection in each candidate and accession country. Each country and each region had and has different starting points that influence, if not dictate, the developments during the processes of enlargement. Geo-politics as well as the fourth Copenhagen Criterion have had profound influence on the processes. The next section provides a short recap of the timeframes and key issues of enlargement waves.

FROM A UNITED FRONT TO A FRACTURING FACADE The initiation of the so-called ‘big bang’ of enlargement began at the 1997 Luxembourg European Council when the EU issued invitations to accession negotiations to Cyprus, Czechia, Estonia, Hungary, Poland and Slovenia, which came to be known as the Luxembourg Group. Two years later, at the 1999 Helsinki European Council, the EU issued invitations to Bulgaria, Latvia, Lithuania, Malta, Slovakia and Turkey, which became known as the Helsinki Group. At the 2002 Copenhagen European Council, it was announced that negotiations with Cyprus, Czechia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia were finalized, and these countries would become members as of 1 May 2004. Among these candidate countries, Cyprus was problematic due to the division of the island since 1974. Intensive negotiations with the UN as mediator took place until the very last weeks before accession to the EU, but a solution was not achieved due to the negative referendum in the Republic of Cyprus. Thus, Cyprus entered the EU as a divided territory although the entire territory of the island is considered a member of the EU. Estonia and Latvia were subject to high scrutiny with regard to the citizenship rights of the Russian-speaking minorities, as discussed earlier. According to the Council of Europe’s monitoring of minority protection, Latvia has improved its legal framework on this since accession, albeit not to the full satisfaction of international monitors and experts (Morris, 2003; Van Elsuwege, 2004), whereas Estonia is still considered in breach of minority rights, including both citizenship rights and language rights (Smith, 2003; Van Elsuwege, 2004). Estonia has also been reproached for a 1993 law on non-territorial autonomy, which appeared to have deliberately excluded the Russian-speaking minority as beneficiary (Poleschchuk, 2015). During negotiations Hungary was called upon to amend a 2001 law on compatriots living outside Hungary, the so-called Status Law, as the law was considered extraterritorial in reach (Deets, 2008).

180  Research handbook on minority politics in the European Union Bulgaria, Croatia and Romania were not deemed ready for membership in 2002, but at the European Council in June 2004 in Brussels, Croatia was invited to negotiations. Croatia was the first to experience the 2006 revised conditionality allowing additional benchmarks. Due to a non-resolved border dispute between Slovenia and Croatia, Slovenia put restraint on the process in 2009, and for ten months the negotiations were stalled until Slovenia agreed to international arbitration in the border dispute. Croatia also experienced intensive scrutiny regarding minority protection, as the regulations on national minority councils adopted prior to its application were not implemented adequately (Rose, 2005; Glüpker, 2013; Hillion, 2013; Petričušić, 2013; Berberi, 2017). With the European Council in December 2004 in Brussels, it was announced that Bulgaria and Romania would become members as of 1 January 2007 while Turkey would be invited to begin negotiations. At the European Council in December 2011 in Brussels, Croatia was invited to become a member as of 1 July 2013. At the time of writing, no invitation has been issued to Turkey. Negotiations with Turkey began in 2005 but have been stalled since 2016. In Luxembourg in 1997, the European Council had adopted a strategy for Turkey aimed at assisting it towards accession on certain conditions. The Strategy promoted further development of the 1963 Ankara Agreement, which was a treaty signed by Turkey and the then European Economic Community (EEC) aimed at creating a customs union to help secure Turkey’s full membership in the EEC. The 1997 Strategy set out to intensify the Customs Union, and implement financial co-operation, harmonization of laws and adoption of the EU acquis communautaire, as well as participation, to be decided case by case, in certain programmes and agencies. The European Council furthermore underlined that strengthening Turkey’s links with the EU would depend on alignment of human rights standards and practices in force in the EU; respect for and protection of minorities; the establishment of satisfactory and stable relations between Greece and Turkey; the settlement of disputes, in particular by legal process, including the International Court of Justice; and support for negotiations under the aegis of the UN on a political settlement in Cyprus on the basis of the relevant UN Security Council Resolutions. While Turkey started down a good path on ethno-cultural policies, including improving the rights of the Kurdish minority to mother-tongue education (Toktaý, 2006; Yilmaz, 2011; Börzel and Soyaltin, 2012; Cengiz and Hoffmann, 2012), the ascent of Recep Erdoğan to presidential power in 2014 and his increasingly illiberal policies have contributed to the current strained relationship between the EU and Turkey. The process of the eighth and following undefined enlargements has seen intensified application of both the Fourth Copenhagen Criterion and the heightened scrutiny with regard to the rule of law introduced with the revision of chapters 23 and 24. The process began in 2004 when North Macedonia as the Former Yugoslav Republic of Macedonia (FYROM) applied for membership just after ratifying the SAA. In December 2005, it was granted candidate status. Since October 2009, the Commission has repeatedly recommended opening accession negotiations with North Macedonia. In 2015 and 2016, the recommendation was made conditional on the continued implementation of a number of reforms. However, a main obstacle to progress in the process was the fact that Greece blocked it due to the so-called name issue. Greece maintained that the name Macedonia could only refer to the northern Greek region of Macedonia. The issue was not solved until 2018, when Greece and FYROM agreed that FYROM would change its name to the Republic of North Macedonia, which took effect in 2019. In May 2019, the Commission again recommended opening accession negotiations with North Macedonia. In March 2020, it was finally decided to open accession negotiations with

Enlargement and minority politics  181 North Macedonia in July 2020. However, at the time of writing, negotiations have been put on hold due to Bulgaria refusing to approve the opening of the mandatory kick-off intergovernmental conference. Bulgaria’s restraint on the North Macedonia process is due to the slow progress on the implementation of a 2017 Friendship Treaty between the two countries. It also claims that North Macedonia is supporting or tolerating hate speech and minority claims towards Bulgaria. According to the Commission’s 2020 report, North Macedonia needs to improve the capacities of the institutions dealing with ethno-cultural policies, and specifically with regard to the Roma communities; stronger efforts at improving their social conditions and eliminating racism against them are needed. In 2008, Montenegro applied to become member of the EU, and in 2010, the Commission issued a favourable opinion on Montenegro’s application. The Commission identified seven key priorities that would need to be addressed for negotiations to begin. In December 2011, the European Council launched the accession process with a view to open negotiations in June 2012. After eight years of accession negotiations all 33 screened chapters have been opened, of which three have been closed provisionally. In its 2020 progress report, the Commission pointed out remaining issues with regard to ethno-cultural policies and minority protection. Especially, protection and the rights of Roma communities and the Egyptian minority were in focus. In June 2013, the European Council decided to open accession negotiations with Serbia, and in December 2013, the Council adopted the negotiating framework. While there were also bilateral issues with Romania over the Vlach minority in Serbia hampering the pre-accession period, the negotiations started in January 2014, and so far Serbia has opened 18 chapters and provisionally closed two chapters. The Commission’s 2020 progress report addresses a number of issues related to national minorities, including Roma communities. However, the defining issue of Serbia’s accession is clearly the Kosovo issue. The EU-facilitated dialogue between Belgrade and Pristina, which is aimed at concluding a fully comprehensive and legally binding agreement between Serbia and Kosovo, has been a stop-and-go process, and the Commission’s 2020 report indicates clear frustrations with the lack of progress. Albania experienced the 2006 revised conditionality even before becoming a candidate country when Germany stalled the initial request for the Commission’s opinion due to domestic legislative procedures in Germany. Eventually, Germany agreed to request the opinion, and Albania was promised candidate status in October 2012, subject to completion of key measures in the areas of judicial and public administration reform and revision of the parliamentary rules of procedures. These conditions were met in June 2014 when Albania was awarded candidate status. In April 2018, the Commission issued an unconditional recommendation to open accession negotiations. In its June 2018 Conclusions, the European Council set out the path towards opening accession negotiations in June 2019, depending on progress made in key areas such as the judiciary, fight against corruption and organized crime, intelligence services and public administration. The Commission reiterated the recommendation to open accession talks in the Enlargement Package adopted in May 2019. In March 2020 the European Council endorsed the decision to open accession negotiations with Albania, and in July 2020 the draft negotiating framework was presented. The Commission’s 2020 progress report points out a number of minority issues that need to be addressed, in particular planned legislation that has yet to be adopted. As of the time of writing, the intergovernmental conference with Albania has yet to be launched.

182  Research handbook on minority politics in the European Union Bosnia and Herzegovina and Kosovo are considered so-called ‘potential’ candidate countries. Bosnia and Herzegovina ratified the SAA on 1 June 2015 and applied for EU membership in February 2016. The Commission adopted its Opinion in May 2019, identifying 14 key priorities for the country to fulfil prior to receiving the invitation to open accession negotiations. The Opinion constitutes a comprehensive roadmap for deep reforms in the areas of democracy/functionality, the rule of law, fundamental rights and public administration reform. In December 2019, the European Council endorsed the Opinion. Kosovo ratified its SAA on 1 April 2016. An opinion has yet to be presented and is clearly depending on the progress made in the EU-facilitated dialogue process between Kosovo and Serbia that started on 19 October 2012. The united front with regard to conditionality seen with the fifth and sixth enlargement waves has clearly disappeared since 2006 (Nechev et al., 2021). Bilateral issues between member states, on the one side, and candidate and potential candidate countries in the Balkans, on the other, have rendered the Council of the EU inoperative in the next enlargement waves (Wunsch et al., 2019). Unlike the Baltic countries, which qualified for accession in spite of ethno-cultural policies excluding a high number of Russian speakers from citizenship due to language restrictions, the Balkan countries have seen heightened scrutiny not only due to minor border disputes or bilateralism but also due to powerful EU member states like France questioning rule adoption (Dimitrov et al., 2019). Moreover, while Cyprus (and before that Ireland) was able to accede as a divided territory, Serbia has seen intense diplomacy and scrutiny due to its territorial dispute with Kosovo (International Crisis Group, 2021). Clearly, there is not consistency in the approaches that the EU has implemented. Furthermore, in spite of the revision of chapters 23 and 24, it is striking that the current disputes do not relate to ethno-cultural policies and minority protection. The Bulgarian accusation regarding North Macedonia’s claims on minority protection is hardly a compliance issue but rather more a reverse conditionality issue. Thus, the noble aim of promoting democracy and the rule of law, including protecting minorities, has been replaced by national interests in sovereignty-related issues. This development in EU enlargement appears to have not only made minority protection a non-story but has also fractured the unity of the Union.

CONCLUSIONS This chapter started by questioning whether EU enlargement policies with regard to ethno-cultural policy and minority rights protection are in fact adopted with the sincere aim to create a peaceful and united Europe. The aim of peace was indeed urgent in 1993 when the Copenhagen Criteria were hammered out and introduced. War and ethnic cleansing took place in the EU’s neighbourhood in the Balkans, and multilateral organizations were taking the lead in promoting minority protection on this background. Thus, the use of conditionality as an instrument to secure the peace seemed logical. It was a good indication that there was a sincere but determined objective. However, it soon became clear that the targets of conditionality were outside the EU, and the double moral and standards of the fifth and sixth enlargements were soon discovered and criticized by experts of ethno-cultural policy and minority protection. Moreover, some target countries were treated differently than others. In spite of this, there was generally unity in the Council of the EU during the 2004 and 2007 enlargements. The unity began to splinter with the seventh enlargement. The 2013 accession of Croatia was delayed,

Enlargement and minority politics  183 and it has become even more visible during the current negotiations with the Balkan candidate countries. It would appear, therefore, that the early momentum that developed the conditionality policies of the fifth and sixth enlargements in the 1990s has given way to stronger language from the European Commission on implementation of minority rights, on the one hand, and inter-state disputes rather than unity for peace, on the other. The question is whether disunity may mean that peace is at risk. Monitoring of ethno-cultural policies and minority protection remain a staple of the negotiations for the eighth and following enlargements. The monitoring follows somewhat the same approach and methods as the previous processes with intensified monitoring of the rule of law and fundamental rights. The Copenhagen Criteria are still the core of conditionality. But whereas the first three Criteria were the main objectives early on, the fourth Criterion has been given more attention among member states since 2006. The need to control enlargement in order to ensure internal capacity to absorb new members has allowed national sovereignty issues to come to the fore. Sovereignty-related issues regarding borders and bilateral co-operation have resulted in a slowdown in enlargement negotiations. While ethno-cultural policies and minority protection may have been deliberately de-politicized in the fifth and sixth enlargement processes, sovereignty issues have been re-politicized in the following ones. This is not conducive to peace and could well lead to new disenchantment, tensions and conflicts. Hence, the impetus of EU transformative power may soon be yesterday’s prophecy. Without a united EU, normative ethics may not earn support in all member states. Moreover, without a united and strong EU, conditionality will lose its authority and legitimacy. If so, a new approach to studying minority politics and EU enlargement may be necessary – one that takes a much broader perspective of EU politics than transformative power, compliance, integration capacity, and logics of consequences and appropriateness. It may have to take into account the impact on minority protection of the re-politicization of national politics in EU politics. History has shown that minority protection needs a multilateral umbrella to shield it against encroachment by nationalist governments. EU conditionality has been one of the strongest mechanisms in this regard in the 21st century. The rise of nationalistic sovereignty seen in the current enlargement processes could well weaken conditionality on minority protection and thus unravel the EU’s transformative power. If so, one could rightfully ask whether the incentive to eliminate ethno-cultural cleavages inherited from the 20th century may be imperilled.

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10. The democratization efforts Petra Lea Láncos

INTRODUCTION This chapter provides an overview of the scholarly discourse and main findings on key topics surrounding democratization efforts at the supranational level, and a critical analysis of academic literature on the European Union’s (EU’s) credentials in minority rights protection. Thus, the chapter seeks to bring together scholarly investigations at the cross-section of EU democracy research and inquiries into EU minority rights protection doctrine, standards and practice. In particular, it introduces critical approaches to the merits and minority rights performance of the instruments employed to engage union citizens and stakeholders, shedding light also on the perceived detrimental effects of EU participatory democracy on minority interests. An interdisciplinary area of inquiry, democracy research is conducted by legal scholars and historians as well as researchers of international relations, political science and sociology. Their research methods typically include statistical research relying on Eurobarometer data or individually compiled datasets, interviews, fieldwork, doctrinal work and archival research. In my digest of academic approaches to EU democratization and minority rights, I draw upon scholarly findings from these various scientific disciplines and modes of research. In what follows, I introduce the scholarly discourse and the emerging concepts of EU democracy research structured in a thematic way, with an attempt to highlight linkages between the key areas of research and findings. Next, I focus on the use, merits and critique of instruments developed in the process of democratizing the EU. Finally, I discuss research on the EU’s stance towards minority rights, the opportunities for minority interest representation and the shortcomings of EU participatory democracy instruments in promoting minority interests. I close the chapter with conclusions and an outlook on contemporary and future topics of EU democracy research, with a particular focus on its intersection with minority rights protection.

AREAS OF INQUIRY AND MAIN FINDINGS OF EU DEMOCRACY RESEARCH The Era of the Permissive Consensus Early research into supranational integration did not concern itself with problems of democracy; indeed, the question of legitimacy and representation did not arise. The concomitant assumption of ‘permissive consensus’ (Lindbergh and Scheingold 1970) portrayed European integration as ‘largely an elite affair that was, however, not in danger of being faced with widespread and focused popular opposition’ (Hurrelmann 2007, p. 352). Wallace and Smith describe this system as premised on an ‘enlightened administration on behalf of uninformed publics, in cooperation with affected interests and subject to the approval of national govern190

The democratization efforts  191 ments’ (1995, p. 143). Citizens of the member states were understood to be generally uninterested in, but supportive of, European politics. Indeed, the economic ‘output’ of integration was considered to be a sufficient source of (indirect) legitimacy for integration coupled with the tacit support from the member states’ electorates (Schimmelfennig 1996). As the neofunctionalist authors noted at the time, ‘[t]he idea is that increasing affluence stoked by new technology and more aggressive business practices nurture a more benign environment, sublimating social cleavage in an increasingly successful quest for material goods and dissolving political conflict in a consensus of apathy’ (Lindbergh and Scheingold 1970, pp. 268–9). The idea of permissive consensus was very much in line with the functionalist idea of integration. As Wallace and Smith observed, ‘Monnet’s strategy was of elite-led gradualism, with the expectation that popular consent would slowly follow that lead’ (Wallace and Smith 1995, p. 140). In fact, the assumption of permissive consensus also protected the budding integration from close democratic scrutiny (De Búrca 1996). Established in the image of ordinary international organizations, however, the European Communities, and in particular the European Economic Community (EEC), became the framework of intense integration and burgeoning legal development. By the 1990s the European Communities had arrived at an institutional and political maturity that triggered pertinent questions about their federal nature, representation, democracy and legitimacy. Inquiries into the Federal Nature of the European Communities With the incremental transfers of competences to the EEC, the Community quickly outgrew the institutional and procedural confines of traditional international organizations. Changes to the institutional and decision-making system of the EEC increasingly rendered the system similar to a federal entity. Already Monnet’s Memoirs spoke of a ‘genuinely federal balance of institutions’, deeming them ‘healthy and productive’ (Monnet 1978, p. 380). Martinico (2016) traced the origins of the comparative language employed by scholars emphasizing the ‘federal’ and ‘supranational’ traits of the European Communities. As early as 1968 Hay wrote of the ‘federalizing features’ of Community law and the ‘federal-minded practice’ of the European Court of Justice (Hay 1968, pp. 524, 541). This novel perspective on European law and polity led authors ‘to study the strong connection between the notions of federalism and integration seen as “twin concepts”’ (Martinico 2016, p. 49), yielding such heavily quoted works as Integration through Law: Europe and the American Federal Experience (Cappelletti et al. 1986) and ‘The Transformation of Europe’ (Weiler 1991). Several authors referred to the fact that the institutional system of the EU seems to reflect that of a federal state (Friedrich 1969, Dosenrode 2003, Gravier 2011). Sidjanski noted that ‘[by] assuring the double representation of the member states and peoples of the Union, the afore-mentioned [double representation] testifies to the evolution of the European Community [EC] towards a federal system’ (Sidjanski 2001, p. 40). Indeed, this federal nature seemed to be underlined by a European Commission acting as a quasi-government, a Council representing the individual members states as a supranational senate and a European Parliament (EP) serving as a European congress (Fossum 2015). This state-centric approach to a form of regional integration fuelled increasing interest and investigations into supranational democracy. Accordingly, as Schmitter observed, ‘[t]he one place on earth where the issue of democratization and federalism will be most clearly and unavoidably conjoined is in the future evolution of the Euro-polity’ (2004, p. 19). Meanwhile, the institutional ‘mirroring’

192  Research handbook on minority politics in the European Union of the federal state did little to improve the EU’s democratic credentials, leading to scholarly inquiries into the democracy deficit of the EU. Research into the Democracy Deficit of the EU According to Marks, ‘European integration is a polity-creating process in which authority and policy-making influence are shared across multiple levels of government – subnational, national and supranational’ (Hooghe and Marks 2001, p. 2), resulting in a system of multi-level governance. This new framework of governance has consequences for the understanding of democracy as well. A perceived democracy deficit (also referred to as democratic deficit) of the Communities was attributed to several factors characterizing the institutional and political backdrop of European integration in the post-Maastricht era. One such factor identified by scholars was the ‘distance’ between union citizens and the EU (Bogdandy 2004a). In this system of ‘multilevel governance’, the link between European decision-makers and member state citizens is weak, with union citizens having the impression they have no means of influencing European politics. A prominent pillar of this line of arguments is the German constitutional concept of ‘chain of legitimacy’, which requires an uninterrupted link between constituents, decision-makers and decisions (Bogdandy 2004b, Eriksen and Fossum 2012). Yet ‘in an age of multilevel governance, the flow of legitimacy runs, or is expected to run, through channels that are long, winding and hardly retraceable’ (Nullmeier and Pritzlaff 2010, p. 1), rendering the link between union citizens and EU legislation indirect. Follesdal and Hix drew attention to a further factor of the democracy deficit, namely the dominance of the executive in the European polity. They noted that Council ministers and government appointees in the Commission are much more isolated from national parliamentary scrutiny and control than are national cabinet ministers or bureaucrats in the domestic policy-making process. As a result, governments can effectively ignore their parliaments when making decisions in Brussels. Hence, European integration has meant a decrease in the power of national parliaments and an increase in the power of executives. (2006, p. 535)

In addition, Eriksen highlights problems of political accountability, noting that ‘processes of denationalization have left those accountable with little control over many factors affecting peoples’ lives, and those who have the decisive power are beyond democratic reach’ (2005, p. 341). Not only were the national parliaments of the member states considered to be losing power with the transfer of competences to the Communities and accelerating supranational legislation, but national oppositions were completely absent in Community domains of power: only political majorities in government got to delegate Commission members and were represented in the Council. Meanwhile, instead of the traditional political rivalry of government and opposition as is customary in democratic states, the Communities saw political enmity between the Council and the EP in their struggle for power (Bellamy 2010). The EP elected by member state constituents, albeit a source of direct legitimacy for European integration, has not played an equal role in the supranational decision-making process until the Lisbon amendments. Consequently, numerous scholars considered the parliamentarization of the EU to be the solution to overcoming the democracy deficit (Bogdandy 2004b). Calls for parliamentarization were answered by the masters of the treaties by strengthening the EP as co-legislator (Schimmelfennig 1996) and reinforcing its position in controlling the executive (Judge and

The democratization efforts  193 Earnshaw 2002), as well as giving national parliaments a role to play in the preliminary subsidiarity control of European legislation (Fossum 2015). A further problem believed to exacerbate the democracy deficit of the European integration project was its lack of transparency, characterized by the Council’s secretive ‘backroom dealings’ (Benhabib and Eich 2019, p. 563), national governments’ gate-keeping of information flows between the domestic and the international levels (Risse 1996, p. 55; Bauer and Börzel 2010) and ‘two-level games’ (Putnam 1988), where, ‘at the European level, a government may turn its weakness, in terms of being dependent on domestic pressures, into strength by blackmailing its European negotiating partners’ (Kohler-Koch 1996, p. 368). Owing to the multi-layered nature of the intertwined national and European polity, gate-keeping and the remoteness of EU affairs, union citizens are still unfamiliar with the EU’s ‘political procedures and fundamental logic’ (Bogdandy 2004a, p. 60), leaving constituents uninformed and uninterested in European affairs. Problems of transparency as a condition for political or legal accountability, among others, were met with union citizens’ access-to-documents rights, the setting up of a European Ombudsman and the publicness of certain EU institutions’ procedures (Kostadinova 2015). The issue of transparency ties into the problem of a lack of a European public sphere. According to this approach, a viable supranational democracy presupposes that citizens have access to the necessary information and opportunity for political debate to make informed political choices and influence decision-makers. In fact, efforts to construct a veritable EU public sphere have failed (Kohler-Koch 2007), with national political agendas continuing to drive the EU electorate’s choices in EP elections (rendering them ‘second-order elections’) as well as influencing the perception of EU policies and the Union in general (Reif 1984, Bellamy and Warleigh 2001, Schmitt and Toygür 2016). Eriksen (2005) observed that the lack of a common identity and interests coupled with the diversity of national languages and cultures stand in the way of a ‘viable European public sphere’ (p. 343), in particular, since mediating structures such as European parties, civil society organizations and media are weak or lacking. To develop a viable European public sphere and enhance transparency, Weiler advocates for placing the entire EU decision-making process on the internet (‘Lexcalibur’) (Weiler 1991). Malkopoulou argues that introducing compulsory voting in European Parliamentary elections would both boost citizen participation in EU politics and at the same time raise political engagement ‘from the narrow national context and elevate them into a European public sphere’ (Malkopoulou 2009, p. 12). Problems of the European Demos, European Identity and Union Citizenship While the above deficiencies are amenable to correction through gradual steps of democratization, some scholars remained sceptical that such ad hoc institutional trouble-shooting would be capable of yielding a viable European democracy without treating the underlying problem, namely the lack of a ‘European demos’. The demos is the framework within which a veritable democracy flourishes, the foundation of a common identity to articulate common concerns and interests, and to come together under the representation of parties, advocacy groups, etc. (‘mobilization’) (Kohli 2000). The notion of a ‘European identity’ had already been introduced into the public discourse in the 1970s by the Copenhagen Declaration on European Identity (1973), yet it was in the nineties and the millennium that it gained real traction. Two

194  Research handbook on minority politics in the European Union main approaches ensued: essentialists denying the feasibility of building meaningful transnational identities and constructivists advocating for a European identity. Essentialists are of the view that peoples develop organically as an ethnic or cultural group and are characterized by a high degree of homogeneity (Brand 2004). Linguistic diversity, the lack of a common identity and the distance between member state citizens and the EU renders the emergence of a European demos near impossible (Grimm 1995). An important marker in this debate was the Maastricht-Urteil of the Bundesverfassungsgericht (German Federal Constitutional Court), which declared that the Treaty on European Union (TEU) did not establish a state based on a European people; it is much rather a union of states instead, legitimized by the member states’ ‘relatively homogenous’ Staatsvölker, each bound together spiritually, socially and politically (BVerGE 89, 155). By contrast, constructivists (Checkel and Katzenstein 2009) claim that ‘identities are constructed and mediated constantly, and they require acceptance both within and from without’ (Mayer and Palmowski 2004, p. 577) and as such are not impervious to change. Therefore, the gradual development of a European identity bringing together a European demos is feasible (Lindahl 2000). Herrmann and Brewer argue that identities are not exclusive; in fact, people hold multiple individual ‘nested’ identities of concentric circles (local, national, European identities), ‘cross-cutting’ identities (e.g., religious, professional identities) and separate identities (e.g., work life vs private life identity), resulting in multiple identities, multiple memberships in identity groups and multiple loyalties as well (2004, p. 8). European identity may thus be another layer of identity, complementing national identity and other individual memberships and loyalties. In the constructivist reading, this additional identity may be forged through a common constitutional status of member state citizens and mutual discourse organized by the media, political groups and civil society organizations – an approach neatly tying back to the need for a European public sphere. Wherein would the root of such a common European identity lie? Approaches range from a commitment to shared values (Weiler 1998, Mayer and Palmowski 2004), through common history or culture (Kohli 2000), ‘managed mutual recognition’ (Nicolaïdis 2007, p. 18) and a ‘patriotism of rights’ (Costa 2004, p. 220) to the embeddedness of European identity in national identity (Risse 2005). Numerous authors reject the idea of a single European demos and advocate for a ‘demoicracy’ (Van Parijs 1997), the co-existence of multiple demoi instead. Accordingly, Nicolaïdis claims that ‘[s]cholars and actors alike must resist the pull of “oneness” – be it one people, one state, one voice on the world stage, or indeed one story – to concentrate instead on drawing strength from the accommodation of differences’ (2012, p. 274). Thus, the idea of European demoicracy combines the recognition of the popular sovereignty of states peoples as well as the integration of member states’ nationals (Cheneval and Schimmelfennig 2012). Hurrelmann, for his part, criticizes proposed models of demoicracy, citing statistical evidence of union citizens’ lack of ‘cognitive skills and affective motivations needed to navigate demoi-cracy’s complex institutional structure’, which may further exacerbate participatory inequalities in the European polity (2014, p. 33). As far as the common constitutional status of member state nationals is concerned, authors refer to the fact that the introduction of union citizenship by the Maastricht Treaty is an attempt at developing a European demos and identity in an effort to overcome the Union’s lack of political legitimacy (Bellamy and Warleigh 2001, Koenig 2007). Based on empirical research, Welge (2014) expands that union citizenship enhances the subjective legitimacy of the system, increasing satisfaction with EU democracy by granting access to national political systems. At

The democratization efforts  195 the same time, criticism of union citizenship as a solution to enhance supranational legitimacy abounds in scholarly literature. De Búrca draws attention to the destructive potential inherent in union citizenship, claiming that [i]n the search for ways of enhancing the legitimacy of the EU and of addressing the loss of public support for its institutions and policies, the danger of concession to the self-protective and less altruistic side of popular sentiment, as expressed, for example, in strong nationalistic and xenophobic movements, is very real. (1996, p. 59)

This fear of stoking nationalist sentiments undermining the political integration project resulted in the careful wording of Article 20 of the Treaty on the Functioning of the EU (TFEU) referring to union citizenship as additional to, and not replacing, national citizenship. Weiler refers to this ‘decoupling of nationality from citizenship’ (1999, p. 344) as a mere political product in the ‘bread and circus’ vision of integration, hardly offering more than member state nationals had already enjoyed earlier (Weiler 1998). Follesdal goes so far as to say: ‘Union Citizenship appears to offer too little, too late. As citizenship goes, Union Citizenship has an anaemic content, and its future function remains unclear and contested, beyond the explicit claim that it shall complement rather than replace national citizenship’ (2001, p. 314). Weiler also criticizes union citizenship as conferring purely rights and no duties on the individual. Yet Kochenov contends that even on the member state level, citizens’ duties are receding, since ‘classical citizenship duties’ centring on punishing difference, upholding the status quo through sex and race discrimination, and crushing individuality were gradually done away with and have no role to play, much less in a supranational polity (Kochenov 2014a, p. 483). In response, Bellamy argues that the ‘de-dutification’ of citizenship is misguided, since civic duties created the circumstances for exercising and enforcing rights. Therefore, ‘a view of EU citizenship can be given that is light on duties and emphasises freedom of choice, but that choice account does not remove any obligations to particular Member States’ (Bellamy 2015, p. 565); i.e., citizenship duties remain but in this multi-level construct are owed to the nation, not the EU. In his liberal intergovernmentalism approach, Moravcsik argued that the EC is but ‘an international regime for policy co-ordination, the substantive and institutional development of which may be explained through the sequential analysis of national preference formation and intergovernmental strategic interaction’ (1993, p. 480). In his view, since the EU is not a superstate, but largely an economic enterprise of the member states, with serious inbuilt checks and balances, it must not conform to ideals of democracy, and as such, ‘concern about the EU’s “democratic deficit” is misplaced’ (Moravcsik 2002, p. 1). Even so, sufficient participation and democratic accountability in the EU is secured through the political scrutiny exercised by the EP and indirect accountability through the election of national governments making up the Council of Ministers. Moravcsik further argues that the EU proceeds transparently, with processes and actors involved in policy- and law-making that exclude opportunities for building information monopolies or pushing through legislation. Where the EU is indeed non-democratic or non-participatory are ‘counter-majoritarian’ specific areas, justified by the need for efficiency and expertise, as well as the necessity to exclude political pressure (e.g., justice, diplomacy, trade-policy, drug authorization); i.e., areas that are typically counter-majoritarian in the national political arena as well. Finally, national constituencies’ lack of European identity and their apathy towards EU issues will frustrate all efforts at expanding political participation (Moravcsik 2002).

196  Research handbook on minority politics in the European Union Similarly, Majone denies the saliency of the ‘democratic deficit’, claiming that as long as member states’ citizens are in favour of preserving national sovereignty over building a European superstate, the main focus of evaluating the EU should be its performance in delivering efficiency through regulation. He explains that ‘the important issue for democratic theory is to specify which tasks may be legitimately delegated to [EU regulatory] institutions insulated from the political process’ (Majone 1998, p. 28). Not forgetting that efficiency-oriented policies are legitimated by their results, explorations into the supranational system’s legitimacy should concentrate on output rather than majoritarian standards of democracy (Majone 1998). EU Democratization of Applicant and Partner Countries As a sought-after economic and political grouping with global influence and an important trading partner, the EC and later the EU has had a strong pull on European countries aspiring for candidate status and third states eager to access the internal market or receive development aid. This put the EU in a unique position to further democratization efforts and promote open political systems (Grabbe 2001) through democratic and human rights conditionality policies. Building on the concept of ‘reinforcement by reward’ (Schimmelfennig et al. 2003), such processes may move ‘through a series of stages involving policy orientation towards Brussels, the formalisation of links (notably with an Association agreement), various pre-negotiation consultation procedures and, then finally, negotiations for entry’ (Pridham 2002, p. 205). These stages involve measures such as benchmarking, monitoring, institutional and legislative model-setting, financial and technical assistance, advice and twinning (Grabbe 2001). Democratic conditionality, as applied to candidate countries, was criticized on several points. De Ridder and Kochenov claim that standards were both low and unclear, resulting in ‘sending random and ad hoc demands around asking the candidate countries to comply with the unknown’ (2011, p. 597). Another important criticism was the ‘double standard’ applied by the EU towards, in particular, candidate countries in the specific area of minority rights protection: while minority rights protection formed an integral part of the 1993 Copenhagen Criteria for accession countries, the same requirement was only enshrined in EU primary law with the Lisbon Treaty (Berberi 2017).

EU DEMOCRACY AND MINORITY RIGHTS PROTECTION RESEARCH The EU’s Double Standard in Minority Rights Protection The EU seemed adamant about stabilizing neighbouring countries and accession states through democratization efforts and neutralizing security concerns by prescribing minority rights protection requirements (Sasse 2006). To prevent ‘importing’ kin-states’ and home-states’ minority-related disputes and conflicts, the EU made Central and Eastern European states’ accession dependent on the candidate countries’ progress in minority rights monitoring, settling contentions and showing good will through, for example, bilateral agreements (e.g., the Romanian–Hungarian Agreement and the Slovak–Hungarian Agreement of 2003) (Vizi 2019). Yet the EU did not have its own system of minority rights standards and was left

The democratization efforts  197 to refer to norms set out by the Organization for Security and Co-operation in Europe, the Council of Europe or the United Nations (UN) in its dealings with accession states (Sasse 2005a, Galbreath and McEvoy 2012). Nor were the monitoring processes followed by the EU bodies consistent, leading to ‘ad hocism’ in the assessment of candidate countries’ minority rights performance (Sasse 2004). Indeed, Galbreath and McEvoy criticized the EU ‘minority rights regime’ for ‘not asking how it can improve the role of minorities in Europe, but instead, how it can reduce the likelihood of regional instability’, by trying to ‘“satisfice” rather than maximize the role of minorities in European political communities’ and by pushing ‘protection over empowerment as a solution to the “minorities” problem in Europe’ (2012, p. 268). While the EU’s efforts at reinforcing minority protection systems in candidate countries showed a mixed picture, Sasse describes its overall impact as ‘having a “lock-in effect” and reinforcing domestic trends’ (2005a, p. 687). As Hillion forecast in 2003: ‘acute minority issues are likely to remain in the new member states, or indeed to appear upon accession, and these issues will become Union problems’ (2003, p. 731). Galbreath and McEvoy noted that some accession states, occupied both with democratization and building the nation state, were reluctant to address minority issues (Sasse 2005a, Galbreath and McEvoy 2012). In addition, as Tesser (2003) pointed out, EU conditionality did not guarantee that elites’ and in particular citizens’ prejudices towards minorities subsided; indeed, minority-related political conflicts often erupted following accession (e.g., Hungarian dual citizenship, Ganczer 2014; the Estonian Bronze Soldier crisis, Schulze 2010). Meanwhile, the minority rights approach of existing member states ranged ‘from elaborate constitutional and legal means for minority protection and political participation to constitutional unitarism and the outright denial that national minorities exist. [In fact], minority rights have never been an internal EU political priority’ (Sasse 2005b, p. 5). Member states were not held to any standards, notwithstanding existing ethnic segregation and the political instrumentalization of minority issues in their jurisdictions. Thus, the EU has long been accused of a double standard when it comes to the protection of minorities, with the supranational organization failing to live up to its own expectations when it comes to policing its member states (Johns 2003, Moravcsik and Vachudova 2003, Ram 2003, Rechel 2008, Csergő et al. 2018). Today, the existence, concept and rights of minorities remain contentious issues among some member states, impeding efforts to make headway in the supranational protection of minority rights. As Wakelin observes, while all member states have ratified the different global human rights instruments, this does not apply to minority rights documents. Indeed, member states have made wide-ranging reservations and declarations to Article 27 of the International Covenant on Civil and Political Rights, reflecting ‘the lack of coherence in minority rights among the member states’ (Wakelin 2017, p. 240), and not all member states have ratified the Framework Convention for the Protection of National Minorities or the European Charter for Regional or Minority Languages (Benedikter 2008). These discrepancies notwithstanding, ‘regarding its members, the EU does not reopen the Pandora’s box of territorial claims of non-territorialized peoples or of statespeoples over territory inhabited by members of their nation outside their national borders’ (Cheneval and Schimmelfennig 2012, p. 343). While the issue of double standards in minority rights received strong academic interest prior to the accession of Central and Eastern European states, this has drastically declined, with attention shifting to the post-accession compliance of these states (Wakelin 2017).

198  Research handbook on minority politics in the European Union The Value of Respect for Rights of Persons belonging to Minorities EU legislation has long addressed violations to the rights of persons belonging to minorities through anti-discrimination rules. As Brusis noted, ‘the EU is perceived as promoting both antidiscrimination and minority protection objectives, but the extent to which anti-discrimination policies may achieve or replace sufficient minority protection is not clear’ (2003, p. 2). While the prohibition of discrimination based on nationality was employed as a legislative fig-leaf to cover gaps in EU minority rights protection, it was only capable of providing remedy in cases where those who had suffered discrimination belonged to a minority whose kin-state was one of the member states (Tóth 2006a, Láncos 2012). Discrimination against members of other minorities was thus left unsolved (Brusis 2003). The anti-discrimination directives adopted by the Union legislator in 2000 were meant to fill this lacuna (Bilgin 2019), prescribing prohibitions on discrimination based on race or ethnic origin in a wide range of sectors spanning employment and education to social and health services,1 and a ban on discrimination based on protected characteristics, such as religion or belief, disability, age or sexual orientation in the areas of employment and training.2 Meanwhile, stateless and linguistic minorities, for example, were not captured by EU anti-discrimination legislation (Cheneval and Schimmelfennig 2012). On the eve of the EU accession of Central and Eastern European states, Hillion argued ‘that the question of minority rights could find its way onto the EU internal policy agenda not only as a concern of various new member states, but also as an unintended consequence of the pre-accession conditionality established by the Union in this regard’ (2003, p. 718). First signs of a minority rights turn of the Union were encapsulated in Article 2 TEU introduced by the Lisbon Treaty, declaring that the Union is founded on, among other things, the value of respect for human rights, including the rights of persons belonging to minorities. Although it was the first provision expressly mentioning minorities, Article 2 TEU did little to improve the situation of minorities. One and a half decades on, the substance of this value is still unclear (Toggenburg 2008). Any possible rights or obligations stemming therefrom are moderated by that fact that Article 2 TEU negates the ‘collective approach’ to minority rights through the long-winded wording of ‘rights of persons belonging to minorities’ (cf. Galbreath and McEvoy 2012). Furthermore, the justiciability of the provision is questionable at best, with the Commission declaring it will not launch infringement proceedings based on Article 2 TEU alone. The anti-discrimination provision of the Charter of Fundamental Rights, Article 21 expressly refers to language and national minorities, yet it is silent on the definition of the term ‘minority’ or ‘national minority’. Thus, even if we were to define the scope of Article 2 TEU to merely encompass national, ethnic, linguistic, racial and immigrant minorities, the term ‘minority’ under Article 21 of the Charter is even more restricted in its personal scope (Varga 2018). While all conceptualizations of the term ‘minority’ under EU law fail (Bilgin 2019), the patchwork of EU primary law and secondary law sources seems to cover and afford protection against discrimination based on those characteristics that typically define minorities. Hence, 1 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180/22–26. 2 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16–22.

The democratization efforts  199 there seem to be successive legislative efforts to extend the supranational protection of minority rights. However, as Hillion points out, since Article 19 TFEU merely authorizes the EU legislator to harmonize member states’ laws to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, EU law cannot provide for a complete protection of all minorities (Hillion 2003; Kochenov 2014b). As Kochenov contends, summarizing the balance of EU minority rights protection, the status of a “value” is insufficient to provide the Union with a solid legal basis in all the areas of law and policy where intervention on behalf of minorities is needed. […] [I]n the absence of an explicit legal mandate, the Union is not empowered to act. […] Consequently, while minority protection may be a “value”, EU law currently lacks any explicit minority protection policy, or even a definition of a minority. […] Lacking any general approach to diversity, the cause of minority protection is sporadic and full of gaps. (2014b, pp. 79–80)

Meanwhile, Kochenov also critically observes that general principles of Union law related to non-discrimination coupled with free movement rules leads to situations where member states are forced to adapt existing national minority protection rules, limiting member states’ leeway in affording broader protection through special minority rights, such as affirmative action. In fact, this leads to a reduced or less efficient protection of minority rights (2014b, p. 88). The Institutional Representation of Minorities in the EU The deficits of EU minority protection notwithstanding, the EU may provide institutional representation and a political platform for minorities to participate in the supranational democratic process. As Smith (2002) explains, the ‘triadic nexus’ suggested by Brubaker centring on the relationship between the minority, the host state and the minority’s kin-state is now expanded to a ‘quadratic nexus’, which brings with it both opportunities and difficulties in promoting minority interests. As Manzinger (2020) points out, most EU institutions shy away from addressing minority issues, with the clear exception of the EP. Research into the adequacy of the EU institutional framework to further minority issues shows that, for example, certain minority representatives supported by strong constituencies were capable of joining the EP as MEPs (Members of the European Parliament). Vizi draws attention to the fact that the applicable election rules and the number of seats allocated to the different member states’ MEPs stand in the way of most minorities to gain European Parliamentary representation, tilting the scale towards the representation of the largest, best mobilized groups (Vizi 2015, p. 137; Ram 2003; Vizi 2018; Manzinger 2020). As Waterbury explains, the EP provides a supranational, Europewide platform in which minority members can articulate claims, call attention to rights violations and educate EU institutions about the situations faced by minority groups. Minority representatives can find potential allies, seek redress of their grievances and attempt to pressure their own states and influence EU policy. (Waterbury 2016, p. 391)

Of relevance within the EP is the European Free Alliance established in 1981 and recognized as a European political party in 2004. The party claims to gather representatives from nationalist, regionalist and autonomist parties, representing stateless nations, emerging new states, regions and traditional minorities in Europe. The European Free Alliance does not only restrict its political focus to ‘traditional’ European minorities, but also supports the self-determination

200  Research handbook on minority politics in the European Union of peoples and minorities outside the EU. A further important platform was the Minority Intergroup of the EP, established in 1983 and renamed the Intergroup for Traditional Minorities, National Communities and Languages. This intergroup comprises MEPs from different political groups, dedicated to the protection of minorities, providing them with an opportunity for informal cooperation, and adopting recommendations and resolutions (Vizi 2015), as well as securing financial support for language communities (Varga 2018). Finally, the work of these political groupings and other, cross-party forms of cooperation may trickle down to the plenary of the EP itself, considered to be the most minority-friendly institution of the EU (Csergő et al.). The EP regularly adopts resolutions on minority issues, such as its resolution of 17 December 2020 on the European Citizens’ Initiative ‘Minority SafePack – One Million Signatures for Diversity in Europe’ (MSI; 2020/2846(RSP)). A further opportunity for representing and articulating minority interests is the consultative body of the Union legislators, the Committee of the Regions. This body, established to eliminate the ‘blind spot’ of European integration, namely the territorial sub-units of the member states, allows for a so-called ‘third level’ integration through cross-border cooperation and representation of territorial interests on the supranational level (Bullmann 1996) with the ambition to compensate regions for increasing competence loss resulting from the transfer of powers in the course of integration (Börzel 2002). The Committee of the Regions may thus be a platform for lobbying and interest representation, as far as territorialized minorities are concerned (Malloy 2005a, Vizi 2015). These supranational platforms notwithstanding, Vizi concludes that only a few regional minorities can make use of the new opportunities introduced by Union policies. Since the EU has only recognized minorities and minority rights on a very general level, only those minority regions are capable of taking advantage of the new opportunities for funding and representation to boost their political influence, which enjoy a robust constitutional autonomy within their state. (2015, p. 140)

Individual Rights Beyond opportunities for supranational interest representation, certain individual rights guaranteed under EU law may also be instrumental in indirectly protecting and promoting minority rights and interests. Thus, while not minority rights per se, these rights allow for the exercise and enforcement of several rights enshrined in minority rights treaties, including the right to equality before the law, non-discrimination, minority broadcasting, the use of minority languages, the right to maintain contact with the kin-state, etc. (cf. Toggenburg 2018). Union citizenship reinforces the position of member states’ citizens in their dealings in and with other member states, allowing for, among other things, easier access for persons belonging to a minority to their kin-state in cases where it is a member state of the EU. Members of minorities may freely enter, work and reside in such kin-states, re-establishing or deepening contact with the community. Meanwhile, member states’ ethnic, linguistic and religious communities are also facilitated in reinforcing ties with minorities in other member states through cultural or economic cooperation. Member states extending their national citizenship to members of kin-minorities effectively extended the scope of union citizenship also to citizens of third states, establishing the necessary link for fostering cultural, economic and social relations with the kin-state and other EU member states (Küpper 2010). In the case of minorities, however, rights ensuing from union citizen status have the propensity to solve one issue while

The democratization efforts  201 exacerbating another. While they are essential in securing stable relations with kin-states, having to rely on them obfuscates the problems of minorities, giving the false impression that minority concerns have been addressed. As far as third countries are concerned, the Eastern enlargement took place under the Schengen Regime’s shadow. Though a symbol of the better European integration in terms of both free movement and security, its possible effects on eastern EU member states have raised concerns. Discourses on the pros and cons of rigid border control, obtaining visas and entry restrictions for non-EU nationals have greatly influenced kinstate and kin–minority relations, external and internal affairs of affected states or communities, as well as anti-European sentiments. (Tóth 2006b, p. 18)

To mitigate arising problems, the Local Border Traffic Regulation3 was passed under the Schengen regime, which allows for the adoption of arrangements with states outside the EU as a major instrument for keeping contact with members of minorities living in non-EU countries (Böttger 2006, Molnár 2013). Local border traffic rules provide exceptions to the obligation of crossing the external border exclusively at authorized crossing points and during fixed opening hours for those resident in the border area and holding a local border traffic permit. Article 3 of the Regulation expressly defines local border traffic as the regular crossing of the EU’s external borders by rightholders ‘for social, cultural or substantiated economic reasons, or for family reasons’. Democracy as a Vehicle of the Inclusion of Minorities In view of the scarce and slanted avenues for representation, supranational tools available for the bottom-up promotion of minority rights deserve particular attention. While not minority-specific tools per se, instruments for citizen participation may be particularly fruitful in promoting minority interests. Indeed, minorities have sought to harness democratic tools and processes, such as the European Citizens’ Initiative (ECI) and the Open Method of Co-ordination (OMC). Hoch-Jovanovic explains: ‘National minorities have started to make their own discoveries of new opportunities offered by Europe and to experiment with new forms of governance, as they seek to advance their own interests and to gain new legitimacy for minority claims’ (2014, p. 7). These supranational means of democratic participation may alleviate vulnerability to the state and move interest representation to the European level, shedding light on the situation of minorities in the member states and benefitting from synergies and the advantage of scale in cross-border cooperation (Hoch-Jovanovic 2014). With the aim of bringing the Union closer to its citizens, the ECI4 was introduced in 2011. This promising instrument of participatory democracy was meant to enable cross-border cooperation among union citizens to propose putting issues on the legislative agenda of the European Commission. After successfully registering their initiative for the Commission to propose legislation in an area that falls within the EU’s competence, organizers must collect at least one million signatures from at least seven member states. Some minority organizations Regulation (EC) No. 1931/2006 of the EP and the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the member states and amending the provisions of the Schengen Convention [2006] OJ L 405/1–22. 4 Regulation (EU) No. 211/2011 of the EP and of the Council of 16 February 2011 on the citizens' initiative [2011] OJ L 65/1-22. 3

202  Research handbook on minority politics in the European Union hoped that the ECI would provide an opportunity for them to join forces in promoting minority rights (Toggenburg 2018). Two important ECIs were submitted to the European Commission in 2013 on minority-related matters: the Federal Union of European Minorities (FUEN) launched the MSI, while the Sekler National Council submitted the ECI ‘Cohesion Policy for the Equality of the Regions and the Sustainability of the Regional Cultures’. The MSI calls upon the EU to adopt legal acts in the areas of education, culture, regional policy, equality and the media to improve the protection of persons belonging to national and linguistic minorities and to strengthen cultural and linguistic diversity in the Union. The Commission refused to register the initiative, stating that it is inadmissible since it falls outside the framework of powers under which it is entitled to submit a proposal for a legal act of the EU. The organizers of the ECI challenged the Commission’s decision5 before the Court of Justice of the EU alleging an infringement by the Commission of the obligation to state reasons as per Article 296 TFEU. In T-646/136 the General Court found that owing to the Commission’s failure to state reasons in its decision, the organisers were not, in any event, placed in a position to be able to identify those of the proposals set out in the annex to the proposed ECI which, according to that institution, fell outside the framework of its powers, […] or to know the reasons which led to that assessment and, therefore, were prevented from challenging the merits of that assessment, just as the Court is prevented from exercising its review of the legality of the Commission’s assessment. Moreover, failing any complete statement of reasons, the possible introduction of a new proposed ECI, taking into account the Commission’s objections on the admissibility of certain proposals, would be seriously compromised, as would also be the achievement of the objectives, referred to in recital 2 of Regulation No 211/2011, of encouraging participation by citizens in democratic life and of making the EU more accessible.7

As early as 2005, Malloy referred a possible shift towards the mobilization of national minority regions (NMRs), noting that where European states have traditionally acted according to the logic of the centralized state, they may now be faced with sub-state actors pushing for a greater role for NMRs in Europe, both on their state government and on European institutions. If these national minorities show particularly strong abilities to mobilize politically, drawing on long-term histories and self-identification as sub-state identities, it would seem that whether empowered or disempowered, they may become a force for EU policy makers to contend with. (Malloy 2005a, 41)

Indeed, 2013 saw the Sekler National Council submit an ECI to the Commission, with the ambition of maintaining the specific ethnic, cultural, religious and linguistic profile of regions within the framework of EU cohesion policy, sustaining regional cultural diversity and ensuring the economic development of NMRs. As Tárnok observes, the initiative was ‘born out of frustration; the assistance that was expected after the EU accession from the EU institutions to strengthen the regions fell short’ of what was anticipated, with minority regions feeling they lost out on EU accession (Varga and Tárnok 2018, p. 68). The Commission refused to

Commission Decision C(2013) 5969 final of 13 September 2013. Case T-646/83 Minority SafePack – One Million Signatures for Diversity in Europe v Commission [2017] ECLI:​EU:​T:​2017:​59. 7 Case T-646/83 Minority SafePack – One Million Signatures for Diversity in Europe v Commission [2017] ECLI:​EU:​T:​2017:​59, para 29. 5 6

The democratization efforts  203 register the initiative, a decision8 that was challenged by the organizers on the grounds that the initiative does not fall manifestly outside the Commission’s powers to submit a proposal for an EU legal act. In its judgment the General Court stated that none of the provisions of EU law ‘aiming to prevent discrimination, inter alia, the provisions based on membership of a national minority, could, within the framework of EU cohesion policy, allow the Commission to propose a legal act of the Union the purpose and content of which would have corresponded to those of the proposed act’. Furthermore, the General Court concluded that ‘the applicants have not shown that the specific ethnic, cultural, religious or linguistic characteristics of the national minority regions could be regarded as a serious and permanent demographic handicap’ within the meaning of the Treaty.9 Analysing multiple ECIs, Tárnok notes that the success of ECIs depend on well-organized civil society organizations coming together in a well-funded European network bridging the divide between the member state and the supranational level by raising awareness and organizing signature collection concentrated on one or two member states (Tárnok 2020a). Indeed, bringing ECIs to fruition is a herculean task: Organ and Toggenburg draw attention to the fact that only a small fraction of ECIs have proven to be successful in gathering the necessary number of signatures (Organ 2014; Toggenburg 2018). And even where the initiative is ‘successful’, ‘the greater the degree of control that remains in the hands of the existing bureaucracy, the greater the potential for citizen participation to be ignored or to fail to instigate meaningful change’ (Organ 2014, p. 425). Tárnok critically observes that ECIs have yet to bring the Union closer to its citizens: there is nothing to force the Commission to comply, even partially, with the proposals made by successful initiatives after gathering the support over one million EU citizens. By not taking any action in case of three ECIs successfully gathering the necessary signatures, the Commission, in contrast to the aim of the ECI, would just further widen the gap between EU citizens and institutions instead of closing it. (Tárnok 2020b, pp. 10–11)

Nevertheless, the relevant literature concludes that both minority-related ECIs were instrumental in orienting the reform and future development of this tool of democratic participation (Toggenburg 2018). Karatzia (2017) contends that these judgments rendered in relation to these initiatives were important milestones in clarifying the legal background of the ECI. Furthermore, as Tárnok points out, the MSI ‘is already of historic importance in terms of minority advocacy. The organizers successfully gathered over one million statements of support, and thus, citizens have forced the Commission to address the issue of the protection of autochthonous minorities’ (Tárnok 2020b, p. 9). While it is incapable of directly triggering concrete EU measures in the service of minorities, the ECI at least has the potential to put and keep minority issues on the European agenda, fuelling the debate on the role of the EU in the protection of minorities.10 Meanwhile, other forms of cooperation within the EU, such as dialogue with stakeholders, consultations and the instrument of the OMC, can serve as a basis for engagement with minority issues, albeit more often than not wrapped up in the non-obtrusive areas of social or employment policy. The Lisbon Strategy of the new millennium institutionalized the OMC as

Commission Decision C(2013) 4975 final. Case T‑529/13 Izsák and Dabis v Commission [2016] ECLI:​EU:​T:​2016:​282, paras 84–5. 10 For recent developments, see Chapter 2 in this volume. 8 9

204  Research handbook on minority politics in the European Union a novel governance tool to achieve convergence through benchmarking and peer review on a voluntary basis. Member states, without fear of sanctions or the involvement of the Union legislator, have the opportunity to exchange best practices and benefit from mutual learning and mobilize actors across all levels of government in this process. The OMC may be a useful tool to balance varying interests and positions in cases where Union competence is weak yet diversity across member states is great, such as the issue of minority protection. The social OMC is particularly appropriate for shedding light on the various aspects of social exclusion that minorities are exposed to, such as homelessness, unemployment, precarious employment or early-school leaving (Toggenburg and McLaughlin 2012). OMCs fit squarely into the rising trend of applying ‘minority indicators’; i.e., cultural indicators for measuring social integration to inform policy-making and gauge the effectiveness of cohesion policies (Malloy 2007). The output of OMCs are not only adjusted national policies but also documents such as the 2002 Joint Report on Social Inclusion or the 2010 Handbook on Integration for Policy-Makers and Practitioners. As far as the contribution of the OMC towards promoting minority interests is concerned, Malloy (2005b) critically observes that while the process was capable of revealing the level of social exclusion endured by minorities, little has been done to examine the factors resulting in social exclusion and to set targets to promote equality. It is worth adding that OMCs, similarly to the opportunities offered by union citizenship, have the potential to obfuscate minority issues as social issues at large. Yet as Varga notes, ‘the role of the OMC should not be underestimated. […] The OMC is a subtle penetration into areas of competence outside of Community competence’ (2018, p. 270).

CONCLUSION AND OUTLOOK European integration as a federal polity beyond the state has drawn and continues to draw considerable scholarly attention. In particular, a strong scientific interest surrounded the existence, factors and nature of the EU’s democracy deficit with an intense academic debate unfolding among the ranks of both legal scholars and political scientists fomenting further research through the elaboration of core concepts of EU constitutional law. In addition, certain ideas developed in EU democracy research have successfully found their way into the institutional and procedural toolbox of the EU, such as the ECI or the subsidiarity scrutiny of EU legislation by national parliaments. Meanwhile, research centring on EU minority rights protection has gained impetus around the period of the Eastern enlargement, throwing light on the double standard applied by the Union to candidate countries’ and the member states’ records in minority rights protection. Analyses show that while union citizenship and democratic participatory tools of the EU may be harnessed by minorities with some success, the EU legal framework for the protection of minority rights is patchy and opportunities for promoting minority-specific interests are scarce. Available processes favour large minorities and those capable of building strong and stable networks, while smaller, less organized minorities fall short of opportunities on the supranational level. While the EU could be a promising framework for promoting minority rights and interests by empowering minority stakeholders to take ownership of a European minority rights agenda, more visibility of stakeholder engagement is necessary (including but not limited to the EP as the traditional ally of minorities). More importantly, the obfuscation of

The democratization efforts  205 minority issues as social or employment policy matters must be abandoned, to enable a viable debate and engagement at EU level with minority concerns. New research should focus on the role of e-democracy in developing a European public sphere and increasing democratic participation of union citizens. Enhancing e-democracy tools (e.g., ECIs, online public consultation) can reduce costs of participation, promote citizen engagement and facilitate cross-border organization, thereby particularly benefitting minorities.

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PART III THE POLITICS OF DIVERSITY

11. Linguistic diversity and language rights Jose Ramón Intxaurbe Vitorica and Eduardo Ruiz Vieytez

MINORITY LANGUAGES IN THE EUROPEAN UNION Linguistic diversity has been a part of European life for centuries and continues to be one of its hallmarks. Different types of languages also coexist within the different European Union (EU) member states, which makes them a key object of attention for both law and politics. The languages currently spoken in the EU can be classified according to different criteria. From a sociopolitical point of view, a number of languages can be identified that the states recognise as official in the whole of their territory, which are therefore state or national languages. These coincide with the 24 current official languages of the EU, except for Luxembourgish, which does not have official status in the Union, even though it is recognised as one of the three official languages of Luxembourg (it is considered to be a separate language from Standard German). Despite this exception, it seems clear that the fundamental requirement for languages to have official recognition in the EU is their official status within their member states. This implies that the official status of a language in the EU does not depend on the number of European citizens who use a certain language, but on its status as a state language. This explains why the Catalan language, despite having significantly more speakers than other state languages such as Slovenian, Finnish and Maltese, is not an official EU language (as those are). According to the legal criteria applied to the languages spoken in their territory, European states can be classified according to different models, which determine which languages are considered to have minority status. The 27 EU countries can be grouped according to the following linguistic models (Ruiz Vieytez, 2009: 236): 1. Official multilingualism, with two (in the case of Luxembourg, three) official languages in the whole country: Finland, Malta, Cyprus, Luxembourg and Ireland. 2. Territorialised official multilingualism, with several languages that are the sole official language in certain areas of the state’s territory: Belgium. 3. Asymmetric official multilingualism, where there is an official state language in the whole country, and additional official languages in politically autonomous areas: Denmark (although the Faroe Islands and Greenland are not part of the EU), Italy and Spain. 4. Limited official monolingualism, where there is a single official language for the entire state, but some minority languages enjoy official status at the local level or a certain degree of protection, including some specific rights for speakers: Austria, Croatia, Czech Republic, Estonia, Germany, Hungary, Poland, Portugal, Romania, Slovakia, Slovenia, Sweden and the Netherlands. 5. Official monolingualism, with a single official language for the entire country and no official status for or recognition accorded to minority languages: France, Greece, Bulgaria, Lithuania and Latvia. 211

212  Research handbook on minority politics in the European Union In addition to the official languages of the 27 EU member states, there are many minority languages that have been spoken on the European continent for centuries. A broad range of languages can be included in this conceptualisation, which in turn could be grouped into seven different categories. The first group is made up of the languages spoken by national minorities in a state different from the one in which they are the majority. In turn, these may be EU official languages (German in the Italian region of South Tyrol, Slovenian in southern Austria, Hungarian in southern Slovakia and Romania, and Polish in south-eastern Lithuania) or languages that are not official in the EU but have official status in other nearby states (Turkish in Bulgaria, Russian in Lithuania and Latvia). The second group of minority languages are those languages spoken in stateless nations by peoples or communities with a certain degree of political articulation, such as Basque and Catalan in Spain and France, Corsican and Breton in France, Sardinian in Italy, the Saami languages in Sweden and Finland, and Frisian in the Netherlands. The third category is made up of politically or socially weak languages, typical of smaller communities or with a lower level of political articulation, such as the Ladin language in Italy, Sorbian in Germany, Livonian in Latvia, Occitan in France and Italy, and the Mirandese language in Portugal. There is a fourth group of languages that is close to this category and is not always recognised. These languages do not enjoy separate administrative status and their existence as independent languages is sometimes disputed, such as Ruthenian in Poland, Aragonese and Fala in Spain, Provençal in France and Italy, and Arvanitic in Greece. The fifth group covers non-territorial languages, traditionally spoken by minorities that do not have a given territory as a place of reference, because they have been traditionally nomadic or lived in dispersed settlements, such as the Roma and the Yiddish languages. The sixth group is made up of foreign or immigrant languages, spoken in Europe as a consequence of more or less recent processes of immigration and settlement of people from other continents. These languages may be official languages of third countries at the same time or may be minority languages in all the countries where they are spoken. They have very different sociolinguistic and political situations and include Mandarin Chinese, Arabic, Berber and Kurdish. Finally, the seventh category is that of sign languages, used by deaf people in their different variants. Linguistic diversity and language policies of the EU remain issues open to different debates, and a relevant literature exists in this respect (Nic Shuibhne 2002; Van Els 2006; Arzoz 2008; Kraus 2008; Williams and Williams 2016; De Witte 2018a, 2018b). It is currently estimated that there are more than 60 regional or indigenous minority languages in the EU, which are spoken by some 40 million people.1 Minority languages in the EU are faced with numerous problems. As they are unofficial languages or have only partially official status, they are socially and politically perceived as second-class languages and have less social prestige. This in turn has a strong impact on their transmission and survival within their own communities, while their status is eroded in the eyes of the majority population. Given that they are lesser known or are used in diglossic situations, they exist in environments of unbalanced bilingualism, which perpetuates the domination of state languages that enjoy much greater institutional and social support. At the same time, the actions that are sometimes taken to foster or protect



1

https://​europa​.eu/​european​-union/​about​-eu/​eu​-languages​_en.

Linguistic diversity and language rights  213 certain minority languages in some countries result in a certain degree of rejection by the majority of the population, who perceive them as being given privileged or discriminatory treatment compared to speakers of majority languages. All of this suggests that specific protection policies would be advisable, insofar as minority languages are not only part of the European cultural heritage, but also a factor linked to the free development of personality and respect for several basic human rights.

LANGUAGE MANAGEMENT, POLICIES AND RIGHTS: REGULATIONS AND DEBATES Topics and Debates Unlike the situation with religion, language remains necessary in exercising many public functions (Patten 2003: 296). This means that most states today have legal regulations and active policies on languages. The most important decision that a state can adopt in this area is granting a language ‘official’ status, which entails a legitimation and institutionalisation process (May 2012: 161). Minority languages, which are usually defined in contrast to official languages, are excluded from this process. This is due to the dominant trend that continues to conceive of political spaces as being monolingual (Kochenov and De Varennes 2014: 56). Most European states only have one official language; this means that a very small percentage of European languages have official status in some state (Romaine 2002: 1; May 2012: 5), which undoubtedly poses a threat to linguistic diversity (Kontra 1999: 284; Kymlicka and Patten 2003: 10). The importance of language policies is not only derived from the communicative function of languages. For most people and their communities, language is today an essential element of their own identity (Hogan-Brun and Wolff 2003: 3; Patten 2003: 313). Many social conflicts (Kontra 1999: 281) as well as personal and collective traumas derive from the sociopolitical treatment of languages, which shows that the relationships between languages are also power games and potentially involve discrimination (May 2012: 4). Today there is an obvious relationship between languages, national identity and the respective state, which has been studied from different perspectives (Spolsky 2003; Judt and Lacorne 2004; Kamusella 2009). The relationships between languages and the law, and between languages and politics, are particularly complex. On the one hand, this is because it is very difficult to define the various linguistic situations in legal or political terms. On the other hand, this is caused by the certainly limited effectiveness of public policies on linguistic dynamics. The regulation of linguistic phenomena through norms or policies raises numerous problems. The first of these is the difficulty in classifying linguistic facts and dynamics into categories. It is complicated to provide an actual definition of a language, particularly regarding its separation from being a dialect or a linguistic variety. Ultimately, languages are often standardised dialects or linguistic varieties that have become established by the existence of a specific political community (May 2003: 128; Nic Craith 2003: 61). In the same way, it is sometimes difficult to determine the specific a person’s language or their membership of one or more specific linguistic groups (Kontra 1999: 285). The same difficulty lies in describing other very important elements of language policies, such as standardisation on the basis of different dialect varieties (such as in Romansh, Basque and Ladin,) the recognition of sign languages as separate languages, official

214  Research handbook on minority politics in the European Union glossonyms that sometimes give rise to political controversies (as in the case of Catalan and Valencian), and the adoption of spellings or alphabets recognised as valid for writing certain languages. Both law and politics have a limited capacity to influence sociolinguistic dynamics. It is true that law and politics can intervene in linguistic situations, and even modify or create them (May 2012: 160), while they also have the capacity to display a symbolic value on them that changes how a certain language is regarded by the relevant community (Willemyns 1992: 3–16). However, linguistic processes are usually impacted more by social and economic circumstances (Hogan-Brun and Wolff 2003: 5). The direct sanctions that derive from legal coercion often have less effect on linguistic dynamics than social sanctions such as loss of social prestige, difficulty in engaging in profitable business or employment, and lack of academic success. When certain languages are given official status in all or part of the territory of a state, this is usually reflected in constitutional rules. Although granting official status to a language does not have identical meaning in all European countries, in general terms it is understood to automatically trigger the right to use the official language in communications with public institutions. Certain international or domestic regulations may extend this right to use other languages within significant public functions. In turn, official languages operate not only as a right but also as an obligation, as requirements for access to other rights or public functions, or for access to nationality and residence in European states. This regulatory requirement has grown in recent decades and is practically always focused on competence in the official languages and not in the European minority languages (Extra, Spotti and Van Avermaet 2009; Van Oers, Ersboll and Kostakopoulou 2010). One of the main pending debates is concerned with establishing whether there are linguistic rights as such, or even linguistic human rights (Skutnabb-Kangas and Phillipson 1995); whether they correspond to specific rights or are elements of generic rights; or whether they should be understood either as individual or collective rights. On many occasions, language is an essential element for the exercise or enjoyment of certain civil or political rights, beyond their official consideration. Thus, the language issue is usually recognised as a basic right of those charged with an offence and brought to court, and within the scope of freedom of expression (Ballantyne case2). Similarly, language is often regarded as one of the grounds on which discrimination is prohibited under international treaties and European constitutions (Ruiz Vieytez 2020). Nevertheless, it is doubtful whether other linguistic rights can be considered to be generally recognised. Sometimes it is argued that linguistic rights for minorities and their members exist, but the truth is that these rights are only expressly recognised in very specific articles of human rights treaties, in individual European treaties on minorities and in some of the individual EU member states’ constitutions. In fact, the content of the right of people belonging to linguistic minorities to use their own language is not always entirely clear. In some European countries, the implementation of the European Charter for Regional or Minority Languages (hereinafter ECRML) (or, alternatively, of the Framework Convention for the Protection of National Minorities – hereinafter FCNM – and the Oslo Recommendations regarding the Linguistic

2 United Nations Human Rights Committee, case Ballantyne, Davidson and McIntyre v Canada (communications 359/1989 and 385/1989), 31 March 1993, CCPR/C/47/D/359/1989.

Linguistic diversity and language rights  215 Rights of National Minorities3) has served to develop linguistic protection standards for minority languages and their speakers, but benefiting only the languages considered as being ‘native’ and not the recently ‘immigrated’ languages. International Rules and Regulations on Languages From the perspective of public international law, in principle, states have full sovereignty when determining which languages are official in their territory. While in practice certain limits on state power could have been established on the grounds of human rights protection under international law,4 these limits have not been expressly included in any international rules or principles, and very few language-related provisions have been incorporated into international legal instruments. International human rights treaties normally include clauses prohibiting discrimination on grounds of language; two of them include a generic reference to the rights of persons belonging to linguistic minorities (Article 27 of the International Covenant on Civil and Political Rights and Article 30 of the Convention on the Rights of the Child). In addition, two specific treaties stand out within the realm of the Council of Europe, namely the ECRML (Grin 2003; Woehrling 2005; Nogueira, Ruiz Vieytez and Urrutia 2012) and the FCNM. There are also other international soft-law documents that deal with the language issue and the situation of linguistic minorities. Specifically, the Oslo Recommendations Regarding the Linguistic Rights of National Minorities, and the United Nations (UN) Declaration of the Rights of Persons Belonging to National or Ethnic, Linguistic or Religious Minorities. Unofficial documents notably include the so-called Universal Declaration of Linguistic Rights, approved in 1996, and the 2016 Protocol to Ensure Language Rights. Regarding the main European treaties on the matter, the FCNM has been ratified by 23 of the 27 EU states; the four states that are not part of it are France, Belgium, Greece and Luxembourg. The ECRML has been ratified by 16 of the 27 member states of the EU: Sweden, Finland, the Netherlands, Denmark, Luxembourg, Germany, Spain, Austria, Slovenia, Croatia, the Czech Republic, Slovakia, Poland, Hungary, Romania and Cyprus. France, Italy and Malta have signed it, but are among those that have not ratified it. As far as EU comparative constitutional law is concerned, most of the 27 member states have language-related provisions in their constitutions. Only two countries, the Netherlands and Denmark, do not have any direct references to the linguistic fact in their constitutions, and another two, Germany and Sweden, only refer to language as a ground on which discrimination is unlawful. Twenty of the 27 EU states have made an explicit statement about an official language, most of them in their constitution (Ruiz Vieytez 2009). However, constitutional provisions do not include the content of official status, which implies that similar legal categories have varying meanings in different countries (Henrard 2003: 40).5 This also applies to other

3 Adopted in February 1998 by a group of experts meeting in Oslo under the auspices of the Organization for Security and Co-operation in Europe High Commissioner on National Minorities. 4 Vid. United Nations Human Rights Committee: case J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v Namibia, Communication No. 760/1997, UN Doc. CCPR/ C/69/D/760/1997, decision of 6 September 2000. European Court of Human Rights, case Cyprus v Turkey (2001) (No. 25781/94), judgment of 10 May 2001. 5 According to the Spanish Constitutional Court, ‘a language is official, regardless of its situation or importance as a social phenomenon, when it is recognised by the public authorities as a normal means

216  Research handbook on minority politics in the European Union concepts used in different countries such as minority language, own language, equal treatment of languages, preferred language and other similar categories. In addition to granting languages official status, the constitutions of the EU member states also include other provisions relating to languages. These include clauses prohibiting linguistic discrimination, the recognition of specific linguistic rights, rules for the institutional use of languages, rules concerning the corpus of a given language, clauses for language promotion and protection, rules concerning the distribution of jurisdictional powers and rules of language requirements for access to specific legal functions, professions or statuses. Specific linguistic rights have been recognised for linguistic minorities in the constitutions of Estonia, Latvia, Lithuania, the Czech Republic, Romania, Poland, Hungary, Slovenia, Croatia and Bulgaria, including the right to freely use their own language, the right to preserve their linguistic identity, the right to be educated in their own language and the right to use their own language in communications with certain institutions.

EU LANGUAGE POLICIES Legal Framework There are few direct regulations on the linguistic fact in the EU. This reflects the complexity of its internal political articulation as an inter-state organisation. Within the primary legal framework, Article 2 of the Treaty on European Union (TEU) includes a general reference to the rights of persons belonging to minorities, and Article 3 refers specifically to languages by stating that the Union shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. The Treaty on the Functioning of the European Union (TFEU) states that the ‘Union action shall be aimed at developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States’, respecting cultural and linguistic diversity (Article 165). Likewise, the Charter of Fundamental Rights of the European Union provides that the Union shall ‘respect cultural, religious and linguistic diversity’ (Article 22) and establishes the prohibition of all discrimination on language grounds (Article 21). The first regulations of the official languages of the European Economic Community (EEC) were enacted in 1958. The languages that were given official status in the EU were as those which were official in the various states when they joined the Union, with the sole exception of Irish Gaelic. In 1958 French, German, Italian and Dutch were designated as official languages of the EEC. In 1973, English and Danish were added to the list. In the 1980s, Greek (1981), Portuguese (1986) and Spanish (1986) also became official languages. In 1995, Finnish and Swedish were incorporated into the list. With the 2004 enlargement, Czech, Estonian, Latvian, Lithuanian, Slovak, Polish, Hungarian, Maltese and Slovenian were also designated official languages of the Union. Three years later, Romanian, Bulgarian and Irish Gaelic were added. Finally, the Croatian language was incorporated in 2013, thus reaching a total of 24 official

of communication in and among themselves, and in their relationship with private individuals, with full legal force and effect’: Constitutional Court Judgment 82/1986, 26 June, Point of Law 2.

Linguistic diversity and language rights  217 languages. The departure of the United Kingdom from the Union has not meant that English ceases to be an official language, as it is official in two other member states (Kelly 2018). For a language to be given official status by the EU, the government of a member state must expressly request it and the request must be unanimously approved by the Council. Article 24 of the TFEU clarifies the implicit nature of the official status of these languages, as it states that every citizen of the Union may write to any of the EU institutions or bodies in any of the official languages and have an answer in the same language. However, while this framework provides formal equality of all these official languages, English has de facto gained indisputable pre-eminence within EU institutions (the de facto ‘all-English’ regime: Oustinoff 2008), This non-formal rule is only excepted by the consideration (also implicit) of German, French and English as ‘working languages’ and by the loyalty that the Court of Justice of the European Union (CJEU) has shown to French as a procedural and working language from its inception (Barbier 2018: 344). Therefore, whereas EU regulatory production largely takes place in English, judgments are produced in French. However, the current pre-eminence of English over the other official languages has become indisputable. In addition to the official languages of the Union, there is a notion of the language of communication with citizens. It has lower status than official languages, but it allows European citizens to use a certain language in writing to address the European Commission, the European Parliament, the Council, the European Ombudsman, the Committee of the Regions and the European Economic Social Committee (EESC), and to receive a reply in the same language. Some official EU publications and documents are also translated into these languages. The recognition of the languages of communication with citizens derives from bilateral agreements between the European institutions and a member state, in accordance with the Council Conclusions of 13 June 2005 on the use of other official languages by EU bodies and institutions. This status can be enjoyed by languages that are only official in part of the territory of a state, which is the one that pays the expenses involved. At present, Catalan, Galician and Basque have this status. In sum, EU treaties do not grant powers to the institutions to regulate the use of languages, except for the internal functioning of these EU institutions. The primary legal framework has not contemplated the need to regulate a language policy for this purpose. However, at the same time, EU law, whose main objective is creating an area without internal borders with free movement of goods, people, services and capital, can have an impact on the linguistic situation in the Union. In this sense, linguistic diversity, frequently recognised at a discourse level as a strength within the EU, can be an obstacle to the creation of the common market. The CJEU has sometimes had to deal with this apparent paradox, in a balancing act between the legitimacy of state policies for the protection of certain languages and the possible impact on EU freedoms and, in particular, on the free movement of workers (CJEU Judgment of 28 November 1989, Groener, case C-379/87, Rec. P. 3967, paragraph 19). The CJEU has tried to redress the balance by recently opening the door for certain language policies to be understood as ‘imperative reasons of general interest of the Union’, which can therefore prevail over free movement (Urrutia Libarona 2009). Institutional Framework As noted above, language policies are not exclusively the remit of the EU, as the authorities of the member states have the power to make decisions and implement actions, based on the

218  Research handbook on minority politics in the European Union principle of subsidiarity. According to the principle of proximity contained in Article 10.3 TEU, decisions must be taken as openly and as closely as possible to the citizen. Therefore, the EU acts when the objectives of a given action, due to its scale or effects, cannot be optimally achieved by the member states (Article 5.3 TEU). This implies that the range of EU actions in this area is aimed at preserving European cultural diversity in the form of research funding, by bolstering transnational networks and platforms, and by promoting projects and programmes for multilingual education (Pasikowska-Schnass 2016: 9). Within the EU institutions, the European Parliament has initiated different initiatives for the longest period of time and by making the most varied pronouncements since the beginning of the 1980s. Since then, on several occasions it has specifically addressed regional and minority language issues within the EU. Although these Resolutions are not legally binding, it can be concluded that they have had some impact on concrete actions taken to support minority languages. The first two Resolutions were adopted in 19816 and 1983,7 respectively. They were promoted by the parliamentarian Gaetano Arfé and laid the foundations for the approach to policies on minority languages in the EU, as highlighted by Vizi (2012: 150 ff.) and Piccoli (2011: 23 ff.). The first of these advocated the inclusion of regional languages as curricular subjects at all educational levels, and the use of these languages in local media, in communication with the public administration and in the courts of justice. The main effect of this Resolution was the creation of the EBLUL (European Bureau for Lesser Used Languages), a non-governmental organisation responsible for monitoring the situation of minority languages in EU member states. It was as a result of the second Resolution that the European Commission provided funding for the protection and promotion of European regional and minority languages. This funding was known as the Action Line for the Promotion and Safeguard of Minority and Regional Languages and Culture and was in force for 18 years. According to European Parliament sources, around 3 million euros were invested in that period to help create a series of networks and facilitate the sharing of experiences and best practices (Pasikowska-Schnass 2016: 9). Funding was discontinued in the year 2000 due to a judgment by the CJEU, since it was considered that the European Commission lacked jurisdiction to commit funding under that budget heading due to lack of a legal basis to do so.8 In 1987, the European Parliament issued the ‘Resolution on the languages and cultures of regional and ethnic minorities’, popularly known as the Kuijpers Resolution. The Resolution regretted that, so far, the Commission had not put forward any proposals to implement the Resolutions which dealt comprehensively with the problems of ethnic, linguistic and cultural minorities in the Community.9 While the tone and recommendations of this new Resolution left a bittersweet taste due to all the work that still remained to be done to foster minority languages, it can be speculated that this text set the scene for a formulation that was be included European Parliament, Committee on Culture and Education (EP Committee) (1981) Resolution on a Community Charter of regional languages and cultures and on a charter of rights of ethnic minorities. 1981/10/16, Official Journal of the European Communities (OJEC) C 287, 9.11.1981, p. 106. 7 European Parliament (1983) Resolution on measures in favour of minority languages and cultures. 1983/02/11, OJEC, No C 68/103, 14.3.83. 8 CJEU, case C-106/96, of 12 May 1998, United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities. 9 European Parliament (1987) Resolution on the languages and cultures of regional and ethnic minorities in the European Community. 1987/10/30 OJEC, No C 318, 30.11.1987, pp. 160–64. 6

Linguistic diversity and language rights  219 in Article 126 of the reform of the TEU undertaken in Maastricht in 1992: ‘The Community will contribute to the development of […] the organisation of the educational system, as well as its cultural and linguistic diversity.’ The Arfé Resolutions and the Kuijpers Resolution launched Mercator Education, put in place by the European Commission in 1987. It is currently called the Mercator European Research Center on Multilingualism and Language Learning and is one of the three institutions that currently make up the Mercator Network, which will be referred to in the next section. The Council of Europe also approved the ECRML in 1992.10 Although by then there was an initiative within the EU to draw up a ‘Charter for the Rights of Ethnic Minorities’, the approval of the ECRML by the Council of Europe led to the abandonment of this initiative in order to implement the existing one. The 199411 Resolution, submitted by Mark Killiea, supported the ECRML, and urged the member states to sign it and support the work of the EBLUL. This went beyond in the provisions in the Charter and involved agreements to implement cross-border institutions aimed at protecting common minority cultures and languages in several member states. As noted above, 16 out of the 27 member states have signed and ratified the ECRML. The European Year of Languages12 was established in 2001 with several objectives, including raising awareness about the richness of linguistic diversity in the EU and the value that it represents in terms of civilisation and culture, promoting multilingualism and fostering intercultural understanding by raising awareness of the advantages of knowing different languages. At the end of the European Year of Languages, the European Parliament adopted a Resolution with recommendations, among which it urged the Commission to evaluate the results of the initiative, to fund programmes to encourage the use of lesser-used languages and to implement effective respect for Article 22 of the European Charter of Fundamental Rights.13 The European Council also assessed the European Year of Languages and issued a Resolution to invite member states to implement measures to promote multilingualism in education, since a diverse offering for learning neighbouring languages, whether national or regional, would serve to foster cooperation and mobility in Europe.14 In 2003, on the occasion of the imminent eastwards enlargement of the EU, the European Parliament called on the Commission to create a European Agency for Linguistic Diversity and Language Learning. In addition, it requested that specific measures be introduced to help promote a multilingual Europe by creating a language-friendly environment, a network to facilitate linguistic diversity that includes regional and minority European languages, among other objectives. Specifically, the creation of a multi-annual programme on linguistic diversity (including regional, minority and sign languages) and language learning was proposed. Other

Council of Europe. European Charter for Regional or Minority Languages. Done at Strasbourg on 5 November 1992; https://​states​.coe​.int/​en/​web/​european​-charter​-regional​-or​-minority​-languages. 11 European Parliament (1994) Resolution on linguistic and cultural minorities in the European Community. 1994/02/09, OJEC, No C 61, 29.2.1994, pp. 110–13. 12 Decision 1934/2000/EC of the European Parliament and of the Council, of 17 July 2000, establishing the European Year of Languages 2001. 13 European Parliament (2001), Resolution on regional and lesser-used European languages. 13 December 2001. OJEC C177, 2002/07/25. 14 Council Resolution of 14 February 2002 on the promotion of linguistic diversity and language learning in the framework of the implementation of the objectives of the European Year of Languages 2001. 14 February 2002. OJEC 2/02/2002, C 50, pp. 1–2. 10

220  Research handbook on minority politics in the European Union measures suggested that the Commission should promote the use of minority languages in universities through the Socrates15 programme. The conclusions reached by the Council on 13 June 2005 contained an agreement that Union citizens will be permitted to address EU institutions in languages other than those that have official status, as long as those languages have official status (either throughout the territory or part of it) under the constitution of a member state or their use is authorised by law.16 These are the languages of communication between citizens and EU institutions that were referred to earlier. For the Council, this was an important factor in order to strengthen the identification of citizens with the political project of the EU. In practice, in order to put this measure into practice, the member state in question must not only prove to be willing to accept this measure and cover any costs involved, but must also be authorised by the Council under an administrative agreement. The Commission’s detailed action plan for 2004–0617 was structured around three areas: extending the benefits of lifelong language learning to all citizens, improving language teaching and creating a more language-friendly environment. To achieve these objectives, a series of specific short-term measures were proposed to support the actions of local, regional and national authorities. It was proposed that these measures would be funded by relying on resources from existing community programmes and activities. For example, measures were put forward to promote lifelong language learning that would be focused on starting the study of both the mother tongue and two other languages at an early age. These actions should continue in secondary education, vocational training and higher education, as well as in educational programmes aimed at adults or people with special needs. Actions were also proposed for the ongoing training of teachers and the creation of favourable environments for language learning. Taking as a starting point the Communication from the Commission, of 18 September, 2008, entitled Multilingualism: An Asset for Europe and a Shared Commitment,18 the objective of which was to ‘raise awareness of the value and opportunities of the EU’s linguistic diversity and encourage the removal of obstacles to intercultural dialogue’, the European Parliament adopted a Resolution with the same title in 2009.19 In this Resolution the Parliament reaffirmed the idea that it is essential to safeguard multilingualism in countries or regions where two or more official languages coexist, and highlighted the need for full linguistic intelligibility to be ensured in member states with more than one official language, especially with respect to European Parliament (2003), Resolution with recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity (2003/2057 (INI)). 4 September 2003. OJEU C76 E, p. 374. 16 Council of the European Union (2005) 2667th Council Meeting General Affairs and External Relations, Luxembourg, 13 June 2005. 9499/05 (Presse 131). https://​states​.consilium​.europa​.eu/​ueDocs/​ cms​_Data/​docs/​pressdata/​en/​gena/​85437​.pdf​#page​=​14/​. 17 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions – Promoting Language Learning and Linguistic Diversity: An Action Plan 2004–2006, Brussels, 24.07.2003 COM (2003) 0449 final. 18 Commission of the European Communities (2008) Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Multilingualism: An Advantage for Europe and a Shared Commitment. 18 September 2008 (COM (2008) 0566). 19 European Parliament (2009) Resolution on Multilingualism: an asset for Europe and a shared commitment (2008/2225 (INI)) 24 March 2009. OJEU C117E, p. 59. 15

Linguistic diversity and language rights  221 the elderly and in the justice, health, administration and employment sectors. The Parliament regretted that the requests made to the Commission contained in the Resolution issued in 2003 had not yet been carried out and took the opportunity to encourage the learning of minority languages, as well as their inclusion in school programmes. In 2013 the European Parliament adopted the report presented by the MEP (Member of the European Parliament) François Alfonsi by 645 votes in favour. As a consequence, the Resolution on endangered European languages and linguistic diversity in the European Union20 was adopted. This urged consideration of the fact that the Lisbon treaty strengthened the objective of safeguarding and promoting the cultural and linguistic heritage of the EU in all its aspects. The Resolution also warned about the lack, in its opinion, of specific attention to languages in danger of disappearance by the European Commission’s multilingualism policy. In fact, it provided some worrying pieces of data: in the previous two multi-annual financial frameworks (2000–2007 and 2007–13), European funding for these languages had undergone substantial cuts, which increased their difficulties. For this reason, it requested that the Commission and the governments and regional authorities of the member states establish programmes to promote tolerance towards linguistic or ethnic communities under threat of disappearing; and, in particular, the Parliament urged the Commission to propose policy measures within the scope of its powers for the protection of languages threatened with disappearance. In this context, planning and support was specifically requested for the preservation of endangered languages and linguistic diversity using EU financial instruments within the 2014–20 period. The Council, in the conclusions of the meeting held in Brussels on 20 May 2014,21 called on member states to take measures to promote multilingualism, especially the learning of two languages in addition to the mother tongue from an early age, exploring the potential of innovative approaches to acquiring language skills. The Council also encouraged the member states to explore the potential of the Erasmus+ programme to achieve these goals. With regard to sign languages and the people who use them, on 23 November 2016 the European Parliament adopted a Resolution that stressed that deaf, deafblind and hard-of-hearing people, as full citizens, have inalienable dignity. Therefore, they are entitled to actions focused on their equal treatment and on facilitating an independent, autonomous life, with full participation in society.22 The Resolution also highlighted the importance of implementing measures to address the need for qualified and professional sign language interpreters. The right of sign language users to access the same information and communication as everyone else is proclaimed through sign language interpretation, subtitles, voice recognition or even alternative forms of communication, including interpretation of oral languages. It was also noted that, even if accessibility measures are implemented for deaf, deafblind or hard-of-hearing people in the areas of employment, education and training, on certain occasions the joint implementation of reasonable accommodation practices may be necessary at the request of an individual.

20 European Parliament (2013) Resolution on endangered European languages and linguistic diversity in the European Union (2013/2007 (INI) 11 September 2013, OJEU C93, p. 52. 21 Council of the European Union (2014) Conclusions on multilingualism and the development of language competences. Education, Youth, Culture and Sport Council meeting Brussels, 20 May 2014. 22 European Parliament (2016) Resolution on sign languages and professional sign language interpreters. 23 November 2016. 2016/2952 (RSP) OJEU C 224, 27.6.2018, pp. 68–74.

222  Research handbook on minority politics in the European Union The right to use minority languages and to the protection of European linguistic diversity reappeared in the European Parliament Resolution of 7 February 2018 on protection and non-discrimination with regard to minorities in the EU member states.23 It reiterated the recommendations made in previous Resolutions in relation to communities where there was more than one official language, to ensure that linguistic rights are respected, without limiting the rights of one language to favour those of another language, in accordance with the constitutional provisions of each member state. At the same time, the Commission was also asked to strengthen the promotion of the teaching and use of regional and minority languages as a possible way of tackling linguistic discrimination within the Union. The issue of linguistic equality in the digital age was addressed in the Resolution of 11 September 2018.24 The European Parliament regretted the growing technological gap between the official, co-official and unofficial languages in the EU, depending on the resources available. Responsibility for this deficit was attributed to the absence of adequate policies, and the Parliament recalled that more than 20 European languages were in danger of digital extinction. Therefore, it considered that the EU institutions have a duty to promote and respect the linguistic diversity of the European continent. The Resolution of the European Parliament of 13 November 2018 included wide-ranging rights for minorities, by establishing the minimum standards required for the protection of minorities.25 In general, the Commission and the member states were encouraged to implement communication measures in order to combat all forms of discrimination, hate speech, hate crime and social exclusion directed against minorities in Europe, while urging the full implementation of the Racial Equality Directive, so that people belonging to minority groups can fully exercise their rights. The Resolution emphasises that language is an essential aspect of the cultural identity and human rights of minorities, and is expressly focused on linguistic rights. In order to ensure that linguistic rights are fulfilled, the Commission and the member states are encouraged to allow the use of minority languages in interactions with public authorities, at national, regional and local level, removing any obstacles that may exist, and based on the principle of proportionality, particularly in internet access and in translation and/ or subtitling. Likewise, the Parliament encouraged the elimination of legal obstacles that may prevent the access of persons who use minority languages to a wide spectrum of professional activities, especially if these are in the administration of justice. The Resolution also contemplated measures in the field of cultural rights and educational rights, where it was requested that students belonging to minority groups are not placed outside the curriculum and conventional educational institutions, as an excuse to endorse the segregation of students on grounds of identity issues.

European Parliament (2018) Resolution on protection and non-discrimination with regard to minorities in the EU Member States. 7 February 2018. 2017/2937(RSP) OJEU C 463, 21.12.2018, pp. 21–5. 24 European Parliament (2018) Resolution on language equality in the digital age. 11 September 2018 (2018/2028 (INI)) OJEU C433 12/23/2019, pp. 42–9. 25 European Parliament (2018) Resolution on minimum standards for minorities in the EU. 13 November 2018 (2018/2036 (INI)). 23

Linguistic diversity and language rights  223 Policies and Programmes The regulatory framework and the Resolutions issued by EU institutions have resulted in specific policies and periodic programmes that have sought to implement the proposed objectives. Without seeking to be exhaustive, the most important of these policies and programmes will be described briefly below. They have been selected for the practical or symbolic impact they have had on the visibility and protection of the European heritage of linguistic diversity. Until 2010 the non-governmental organisation EBLUL worked to promote languages and linguistic diversity. Its activities were aimed at putting in contact and establishing cooperation networks between the communities of speakers of lesser-used languages. It was supported in this work by the Commission and the Council of Europe, as well as by various regional organisations. The ELEN (European Language Equality Network) was created after the EBLUL was discontinued. This was also a non-governmental non-profit organisation, whose objectives were focused on the promotion and protection of lesser-used European languages. Its objectives are to promote and protect European lesser-used languages, work towards linguistic equality for these languages, and multilingualism, under the broader framework of human rights, and to be a voice for the speakers of these languages.26 One of ELEN’s action pillars is monitoring regulatory projects that may affect regional and minority languages, in order to take part in the deliberation of legislative processes and defend their interests. This is usually done by submitting amendments to European Parliament reports, providing input to Commission proposals, and working closely with members of the European Parliament. As ELEN’s objectives coincide with those of the EU with regard to the protection of linguistic minorities, different programmes have been established to monitor the use of regional languages throughout the EU. They seek to compile data on cases of linguistic discrimination and deliver training seminars on the rights of linguistic minorities and their funding opportunities within the EU. As mentioned above, after the Arfé and Kuijpers Resolutions were approved, the Commission launched this institution, which later became the Mercator European Research Centre on Multilingualism and Language Learning. Its objectives are the acquisition and inventory, research and study, dissemination and application of knowledge in the field of language learning at school, at home and through cultural participation. While its work is mostly focused on the regional and minority languages in Europe, immigrant languages and smaller state and regional languages are also topics of study.27 Mercator is a regular research collaborator with one of the Council of Europe’s institutions, the European Centre for Modern Languages (ECML). They engage in research on languages and the objective is to promote language learning and teaching, encouraging member states to implement effective language-learning policies by fostering dialogue and the exchange of good practices, supporting learning networks and research projects.28 As a consequence of the action plan for the 2004–06 period, the Commission was committed to implementing the European Indicator of Language Competence.29 The objective of

This definition is contained on the institution’s website: https://​elen​.ngo/​information/​. https://​states​.mercator​-research​.eu/​en/​about/​about​-mercator​-research​-centre/​. 28 https://​states​.ecml​.at/​Aboutus/​AboutUs​-Overview/​tabid/​172/​language/​en​-GB/​Default​.aspx. 29 Commission of the European Communities (2005) Communication from the Commission to the European Parliament and the Council – The European Indicator of Language Competence, Brussels, 1.8.2005 COM (2005) 356 final. 26 27

224  Research handbook on minority politics in the European Union the indicator is to measure the language skills that each member state possesses globally. The indicator works by recording the capacities of the sample obtained, taking the six levels of the Common European Framework of Reference for Languages scales used by the Council of Europe as a reference.30 In addition to the linguistic skills measured by the indicator, the contextualisation of the data is also taken into account, since linguistic competences often lie both on factors inherent to the educational system and on factors that are unrelated to it. Consequently, contextual information is completed with questionnaires addressed to teachers and students. The Creative Europe Programme is the Commission’s umbrella programme for the support of the cultural and audio-visual sectors. Within the cultural sub-programme, a programme is offered for the translation and promotion of literary works in the markets that make up the EU.31 In March 2019 the European Parliament adopted a legislative Resolution that contained a proposal for a new Creative Europe Programme for the period 2021–27. The general objectives of this programme include ‘to promote European cooperation on cultural, artistic and linguistic diversity and, including through enhancing the role of artists and cultural operators, the quality of European cultural and artistic production, and of the common tangible and intangible European cultural heritage’.32 Its Media section includes a specific action, namely providing ‘support to the circulation of, and multilingual access to, cultural television content online and offline, including through subtitling, in order to promote the richness and diversity of European cultural heritage, contemporary creations and languages’. Along with the policies and bodies that have been described, there are also generally well-known action programmes that in some cases have sought to promote and defend European linguistic diversity and in others, indirectly, have exerted an important influence. Next, some of those programmes are outlined. Again, the list is not intended to be exhaustive. Erasmus+ is a programme funded by the EU which began in 1987. It offers students the opportunity to study or stay in another country for a period lasting from two months up to a maximum of 12. Improving language teaching/learning and promoting the wide European linguistic and cultural diversity are part of its educational objectives. As specified in the Erasmus+ 2020 programme guide, the lack of language skills is one of the main barriers to participation in European educational programmes. The actions implemented to provide linguistic support are aimed at making mobility more efficient and improving learning.33 Another of the programme’s objectives lies in achieving equality and inclusion for participants. It seeks to prevent putting anyone at a disadvantage due to cultural differences, whether refugees or immigrants, people belonging to ethnic or national minorities, or people who require linguistic adaptation or have cultural inclusion difficulties.34

30 Council of Europe (2001) Common European Framework of Reference for Languages: Learning, Teaching, Assessment; Cambridge University Press. 31 https://​ec​.europa​.eu/​programmes/​creative​-europe/​node/​174​_en. 32 European Parliament (2019) European Parliament legislative resolution of 28 March 2019 on the proposal for a regulation of the European Parliament and of the Council establishing the Creative Europe programme (2021 to 2027) and repealing Regulation (EU) No 1295/2013 (COM (2018) 0366 – C8-0237/2018 – 2018/0190 (COD)), available at https://​states​.europarl​.europa​.eu/​doceo/​document/​TA​-8​ -2019​-0323​_EN​.pdf. 33 European Commission (2020) Erasmus+ Programme Guide, Version 2 (26 February 2020), p. 9. 34 Ibid., p. 10.

Linguistic diversity and language rights  225 The mission of the Directorate-General for Translation is to translate the texts of the European Commission into the 24 official languages of the EU, as well as into other languages when necessary. The written documents with which it works include laws, policy papers, reports and correspondence. It also advises the different departments of the Commission on linguistic issues and the management of web pages in several languages. This office is therefore important when it comes to publicising the policies of the European Commission, insofar as it encourages citizens to be aware of its work. The European Council held in Barcelona in 2002 established the ‘Mother tongue + 2’ objective, which was to provide European citizens with the opportunity to acquire skills and knowledge in two foreign languages, in addition to their mother tongue. In this way, following the recommendations contained in the 1995 White Paper on Teaching and Learning,35 the European Commission launched this project in 1998 with the aim of implementing innovative ways of learning languages.36 The European Language Label aims to recognise local, regional and national projects that have found creative ways to improve language teaching, motivate students and make efficient use of the different existing resources to diversify the linguistic offer. The positive effects of the European Year of Languages (2001) encouraged the EU and the Council of Europe to hold the European Day of Languages on an annual basis, every 26 September. Among its objectives are the promotion of European linguistic and cultural diversity in order to increase multilingualism and intercultural communication as a value to protect, enhance and highlight the importance of language, and to promote its learning, both inside and outside of school. It is for all these reasons that the various initiatives have been set up.37 The EU also collaborates with the ECML of the Council of Europe within this initiative. The objectives of the ECML are to promote excellence and innovation in language teaching to help European citizens learn different languages more efficiently. The Juvenes Traslatore is a contest held annually since 2007 that is open to secondary schools located in any EU member state, which may present a team of two to five participants of up to 17 years of age. Since 2019, the contest has been held online, using digital media. The source language and the target language of the translations must be official languages of the EU. Since 2007, the European Parliament has given an award to commercial films that shed light on the most important issues in the European public debate. In 2012, the initiative Lux Film Days was launched, with the aim of transcending the geographical and linguistic borders of the EU, creating a European public sphere. The three finalist films are subtitled into each of the 24 official languages of the EU and are screened throughout the member states in festivals, cultural centres and shopping venues.

European Commission (1995) White Paper on Education and Training – Teaching and Learning – Towards the Learning Society. COM (95) 590 final, 29 November 1995. 36 European Commission (2011) European Language Label: Empowering People. Luxembourg: Publications Office of the European Union, p. 4. 37 https://​edl​.ecml​.at/​Home/​tabid/​1455/​language/​en​-GB/​Default​.aspx. 35

226  Research handbook on minority politics in the European Union

FUTURE CHALLENGES AND DEBATES There is no single reason to protect and promote minority languages in the EU, which results in a lack of a consistent policy on these languages. Indeed, minority languages are sometimes considered part of the European cultural heritage and therefore deserving of protection, from a conservationist point of view or merely as cultural objects (Mowbray 2012: 150). At other times, however, the protection of minority languages is sought as a factor that brings stabilisation and cohesion, with the aim of avoiding political tensions or conflicts within the European continent. In other discourses, the protection of minority languages revolves around a project of peaceful social coexistence or the promotion of more competitive societies, whereby the language skills of citizens are linked to the protection of their health or better access to the international labour market. Finally, on a few occasions the protection of minority languages is defended on account of protecting the human rights of their speakers, as a substantial element of their dignity and the free development of their personality. This plurality of reasons shows a certain inconsistency and hesitancy in European policies in relation to minority languages. EU policies on minority languages reflect the Union’s main motto: ‘United in diversity’. In accordance with this motto, the EU defends the promotion of diversity while seeking elements of cohesion and integration. All official documents extol diversity (including linguistic diversity) as a remarkable value to be fostered, but it strongly contrasts with the actual policies that are applied in the matter (Barbier 2018: 333–4). Indeed, the well-known European motto is clearly mediated by the intergovernmental or inter-state character of the EU itself, which places state realities at the forefront of diversity, and leaves the traditional linguistic diversity of each of the member states in the background. This situation is reflected in Figure 11.1, in which the two principles mentioned (promotion of diversity and integration) intersect with the two combined institutional spheres, that of the EU itself as a whole and that of its 27 member states.

Source: Authors.

Figure 11.1

Promotion of diversity and integration in the EU and in its member states

Figure 11.1 reflects the fact that the official state languages, which are the official languages of the EU, continue to be the main beneficiaries from the EU policies. The English language has become the de facto lingua franca within the Union as well, which means that, from

Linguistic diversity and language rights  227 a non-formal, non-institutionalised perspective, it is the language that has become most strengthened as the basis of European integration, relegating the use of other European languages in the operation of numerous sectoral policies. For their part, regional or minority languages barely benefit from the existing partial policies and dispersed, piecemeal measures. They are not official languages of the Union, despite the fact that some of them have a much higher number of speakers than some state languages. Their health depends on specific contexts and on the existence of some level of their own political power within their respective states. It can also be argued that immigrant languages receive little attention from European politics, even though they are spoken by a growing number of citizens or inhabitants of the Union. The pre-eminence of some languages over others and, in particular, the growing dominance of English as the global and EU lingua franca often triggers debates about so-called linguistic justice (De Schutter 2007). This tries to compensate for the current ‘linguistic imperialism’ (Phillipson 2003) through measures such as the establishment of ‘language taxes’ for English-speaking countries, the prohibition of dubbing audio-visual materials for general consumption, and the reinforcement of the territorial principle in language regulations (Castiglione and Longman 2007: 226–47, Van Parijs 2011), all of which is now quite far from the current political reality. However, the need to seek greater linguistic justice also derives from the maintenance of nation-states and the widespread idea that they should be considered as being mainly monolingual (Kraus 2018: 93). This can also be seen in the approaches of the sensitised doctrine on the issue when it forgets non-state languages in its demand for diversity (Barbier 2018: 335). This is the same principle on which the fundamental language policies of the EU are also based, its definition of official languages and its understanding of internal linguistic diversity. While current international law does not yet offer solutions to the structural nature of the disadvantages faced by many minority linguistic communities (Mowbray 2012: 202–5), the debate on language justice is also relevant within the Union and can help its policies to become more active and egalitarian with regard to the many unofficial languages spoken within it.

REFERENCES Arzoz Santisteban, Xabier (ed.), Respecting Linguistic Diversity in the European Union (Amsterdam: John Benjamins, 2008). Barbier, Jean-Claude, ‘European Integration and the Variety of Languages: An Awkward Co-Existence’ in Peter A. Kraus and François Grin (eds), The Politics of Multilingualism: Europeanisation, Globalisation and Linguistic Governance (Amsterdam: John Benjamins , 2018), 331–57. Castiglione, Dario, and Chris Longman (eds), The Language Question in Europe and Diverse Societies: Political, Legal and Social Perspectives (Oxford: Hart Publishing, 2007). De Schutter, Helder, ‘Language Policy and Political Philosophy: On the Emerging Linguistic Justice Debate’, 31/1 Language Problems and Language Planning [2007] 1–23. De Witte, Bruno, ‘Language Rights and the Work of the European Union’, in Iryna Ulasiuk, Laurentiu Hadirca and William Romans (eds), Language Policy and Conflict Prevention (Leiden: Brill Nijhoff, 2018a), 221–30. De Witte, Bruno, ‘Market Integration and Cultural Diversity in EU Law’ in Valentina Vadi and Bruno de Witte (eds), Culture and International Economic Law (Abingdon: Routledge, 2018b), 193–207. Extra, Guus, Massimiliano Spotti and Piet Van Avermaet (eds), Language Testing, Migration, and Citizenship: Cross-National Perspectives on Integration Regimes (New York: Continuum International, 2009).

228  Research handbook on minority politics in the European Union Grin, François, Language Policy Evaluation and the European Charter for Regional or Minority Languages (New York: Palgrave, 2003). Henrard, Kristin, ‘Devising an Adequate System of Minority Protection in the Area of Language Rights’ in Gabrielle Hogan-Brun and Stefan Wolff (eds), Minority Languages in Europe: Frameworks, Status, Prospects (New York: Palgrave Macmillan, 2003), 37–55. Hogan-Brun, Gabrielle, and Stefan Wolff, ‘Minority Languages in Europe: An Introduction to the Current Debate’ in Gabrielle Hogan-Brun and Stefan Wolff (eds), Minority Languages in Europe: Frameworks, Status, Prospects (New York: Palgrave Macmillan, 2003), 3–15. Judt, Tony, and Denis Lacorne (eds), Language, Nation and State (New York: Palgrave Macmillan, 2004). Kamusella, Tomasz, The Politics of Language and Nationalism in Modern Central Europe. (New York: Palgrave Macmillan, 2009). Kelly, Michael (ed.), Languages after Brexit: How the UK Speaks to the World (Palgrave Macmillan, 2018). Kochenov, Dimitry, and Fernand de Varennes, ‘Language and Law’ in Francis Hult and David Johnson (eds), Research Methods in Language Policy and Planning (Oxford: Wiley-Blackwell, 2014), 56–66. Kontra, Miklos, ‘Some Reflections on the Nature of Language and its Regulation’, 6/2 International Journal on Minority and Group Rights [1999] 281–8. Kraus, Peter A., A Union of Diversity: Language, Identity and Policy-Building in Europe (Cambridge: Cambridge University Press, 2008). Kraus, Peter A., ‘From Glossophagic Hegemony to Multilingual Pluralism? Re-Assessing the Policies of Linguistic Identity in Europe’ in Peter A. Kraus and François Grin (eds), The Politics of Multilingualism: Europeanisation, Globalisation and Linguistic Governance (Amsterdam: John Benjamins, 2018), 89–109. Kymlicka, Will, and Alan Patten, ‘Language Rights and Political Theory: Context, Issues, and Approaches’ in Will Kymlicka and Alan Patten (eds), Language Rights and Political Theory (Oxford: Oxford University Press, 2003), 1–51. May, Stephen, ‘Misconceiving Minority Language Rights: Implications for Liberal Political Theory’ in Will Kymlicka and Alan Patten (eds), Language Rights and Political Theory (Oxford: Oxford University Press, 2003), 123–52. May, Stephen, Language and Minority Rights: Ethnicity, Nationalism and the Politics of Language (New York: Routledge, 2012). Mowbray, Jacqueline, Linguistic Justice: International Law and Language Policy (Oxford: Oxford University Press, 2012). Nic Craith, M., ‘Facilitating or Generating Linguistic Diversity: The European Charter for Regional or Minority Languages’ in Gabrielle Hogan-Brun and Stefan Wolff (eds), Minority Languages in Europe: Frameworks, Status, Prospects (New York: Palgrave Macmillan, 2003), 56–72. Nic Shuibhne, Niamh, EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights (The Hague: Kluwer Law International, 2002). Nogueira, Alba, Eduardo Ruiz Vieytez and Iñigo Urrutia Libarona (eds), Shaping Language Rights: Commentary on the European Charter for Regional or Minority Languages in Light of the Committee of Experts’ Evaluation (Strasbourg: Council of Europe Publishing, 2012). Oustinoff, Michaël, ‘Le tout-à-l’anglais est-il inévitable?’ 51 Hermés. Lépreuve de la diversité Culturelle [2008] 79–83. Pasikowska-Schnass, Magdalena, Regional and Minority Languages in the European Union: Briefing (Brussels: European Parliamentary Research Service, 2016). https://​states​.europarl​.europa​.eu/​EPRS/​ EPRS​-Briefing​-589794​-Regional​-minority​-languages​-EU​-FINAL​.pdf. Patten, Alan, ‘What Kind of Bilingualism?’ in Will Kymlicka and Alan Patten (eds), Language Rights and Political Theory (Oxford: Oxford University Press, 2003), 296–321. Phillipson, Robert, English-Only Europe? Challenging Language Policy (London: Routledge, 2003). Piccoli, Lorenzo, ‘The European Union and Minority Languages: Evolution, Achievements and Contradictions in the Light of the Treaty of Lisbon’, 1 Interdisciplinary Political Studies [2011] 20–30. Romaine, Suzanne, ‘The Impact of Language Policy on Endangered Language’, 4/2 UNESCO International Journal on Multicultural Societies [2002].

Linguistic diversity and language rights  229 Ruiz Vieytez, Eduardo, ‘Constitutions, Languages, Definitions and the European Charter for Regional or Minority Languages’, 51 Llengua i Dret [2009] 227–53. Ruiz Vieytez, Eduardo, ‘Cláusulas antidiscriminatorias states motivos de discriminación en las constituciones europeas’, 107 Revista de Derecho Político [2020] 41–69. Skutnabb-Kangas, Tove, and Robert Philipson (eds), Linguistic Human Rights: Overcoming Linguistic Discrimination (Berlin: Mouton de Gruyter, 1995). Spolsky, Bernard, Language Policy (Cambridge: Cambridge University Press, 2003). Urrutia Libarona, Iñigo, ‘Defensa states promoción de las lenguas oficiales como razón imperiosa de interés general de la Unión Europea a la luz de la Jurisprudencia del TJCE’. 83 Revista Vasca de Administración Pública [2009] 227–64. Van Els, Theo, ‘The European Union, its Institutions and its Languages: Some Language Political Observations’ in Richard B. Baldauf and Robert B. Kaplan (eds), Language Planning and Policy in Europe, Vol. 2 (Clevedon: Multilingual Matters, 2006), 202–56. Van Oers, Ricky, Eva Ersboll and Dora Kostakopoulou (eds), A Redefinition of Belonging? Language and Integration Tests in Europe (Leiden: Brill, 2010). Van Parijs, Philippe, Linguistic Justice for Europe and for the World (Oxford: Oxford University Press, 2011). Vizi, Balázs, ‘Minority Languages and Multilingualism in Europe and in the European Union’, 29 European Studies [2012] 135–57. Willemyns, Roland, ‘Linguistic Legislation and Prestige Shift’ in Ulrich Ammon and Marlis Hellinger (eds), Status Change of Languages (Berlin: Walter de Gruyter, 1992), 3–16. Williams, Glyn, and Williams, Gruffudd, Language, Hegemony and the European Union: Re-Examining ‘Unity in Diversity’ (Palgrave Macmillan, 2016). Woehrling, Jean Marie, The European Charter for Regional or Minority Languages (Strasbourg: Council of Europe, 2005).

12. The cultural policy of the European Union1 Miklós Király

INTRODUCTION Concept of Culture Speaking of culture, it is worth noting by way of introduction that its use as a generic term is particularly associated with continental Europe. In Great Britain and the United States, however, it is more common to speak separately of the arts, the media, education or the sciences. Nevertheless, it is justified to use the term ‘culture’ comprehensively, with several possible meanings. The literature traditionally distinguishes between high culture, embodied by outstanding works of art, science and individual intellectual creativity, and culture in the broad, anthropological sense of the word. In this sense culture includes the common judgements, ways of thinking and values a society has framed, and the activities customarily based on these, the physical environment, the styles and modes of life that have evolved over generations. It creates common symbols and contributes to the preservation and re-creation of the fabric of society. Not Only Within the Remit of the Member States As originally conceived, the establishment and operation of a European Economic Community (EEC) would not have affected culture, at least directly. As the EEC Treaty laid down the legal foundations of an economic type of integration in 1957, it was assumed that it would have no direct bearing on the world of culture. It would not influence the cultures which define the particular characteristics of the individual member states and their regions, or indeed of the day-to-day life of their citizens. These initial expectations – which in hindsight may seem naïve – disappeared, as it became quite clear that European Union (EU) law would shape not only the broadly conceived economic laws of the member states, but other areas as well, which even the most die-hard integrationists would not have thought of (De Witte 1990, 192–210, 196–7, 204–5; Littoz-Monnet 2007, 20–35; Steyger 1997, 3; Weatherill 2000, 240). In several of its decisions, the European Court of Justice made it abundantly obvious that culture and cultural relations were not to be deemed as a ‘domaine réservé’, an area falling within the scope of only the member states (De Witte 1990, 203–4). In addition, as a result of and as a counterbalance to this more-or-less-spontaneous process, a specific cultural policy of the EU has emerged, whose aims and means were defined by the Treaty Establishing the European Community (EC Treaty) and now by its successor, the Treaty on the Functioning of the European Union (TFEU). This chapter is a revised and amended version of an earlier paper by the author, published in Király, Miklós, Unity and Diversity: The Cultural Effects of the Law of the European Union (Budapest: Eötvös University Press, 2011), pp. 243–62. 1

230

The cultural policy of the European Union  231 Regional Initiatives Before going into the details of this cultural policy, it should be noted that the European Community was not the first to formulate a common cultural policy for the continent. We must first mention regional and bilateral cooperation agreements, such as the Nordic Council, the Hispanidad, the Francophonie, the German Language Area, the De Nederlandse Taalunie promoting the Dutch language, and Franco-German relations. Though motivated by compelling cultural aspirations, these forms of cooperation naturally vary both in intensity and organisational background (De Witte 1990, 199–200). They thus differ from one another just as much as the various cultural policies of the individual member states of the EU do, which have characteristic aims and employ means particular to each one of them.2 The Role of the Council of Europe We must also touch on the role of the Council of Europe. Article 1 (b) of the Statute of the organisation explicitly refers to culture as one of its areas of action. As early as 1954, its member states signed the European Cultural Convention.3 The fundamental objectives of this document are formulated in Articles 1–5, binding the signatory states to safeguard and to promote the common cultural heritage of Europe and the study of the languages, history and civilisation of the signatories; as well as to taking concerted action to promote cultural activities at the European level. The parties also agreed to facilitate the movement and exchange of persons and objects of cultural value, and to take steps to safeguard and provide reasonable access to the common cultural heritage of Europe. Despite declaring the common aims of cooperation, the Council of Europe does not have an actual cultural policy as such; it is rather a forum for inter-governmental cooperation. However, a variegated system of institutions was established under the aegis of the Council of Europe, including the Council for Cultural Cooperation or the Council of Europe Conference of Ministers Responsible for Cultural Affairs4 (De Witte 1990, 196). The member states of the Council of Europe have adopted several non-binding – in other words, soft-law – resolutions and declarations, as well as initiating numerous programmes on issues such as intercultural dialogue, conflict prevention, cultural policy and diversity, culture, creativity and youth.5

An example is France, where the state is responsible for several cultural institutions, the running and support of which is the responsibility of the ministries. In Germany and Austria, the various territories and cities have a prominent role. In the United Kingdom, only the most important institutions are in public ownership; private initiative has a significant function, while funding is provided through independent councils. See Banús (2003, p. 195). 3 European Cultural Convention/Convention culturelle européenne, European Treaty Series, no. 18. Strasbourg Council of Europe, 1990. 4 See also the Standing Conference of Ministers of Education for discussion of the complex institutional set-up. 5 For the cultural activities and programmes of the Council of Europe, see its homepage: https://​ www​.coe​.int/​en/​web/​culture​-and​-heritage/​cultural​-heritage. 2

232  Research handbook on minority politics in the European Union The Council of Europe and the European Community/Union ‘The relations between the European Community and the Council of Europe in the cultural sector,’ writes De Witte, ‘have evolved from mutual ignorance and duplication of efforts to a situation of diffuse rivalry’6 (1990, 203). As far as the initial steps of Brussels are concerned, it should be noted that the European Community and its institutions had adopted legislation touching on culture and even cultural programmes long before the Maastricht amendment to the EC Treaty which officially established the cultural policy of the Community and defined its areas of activity in cultural affairs. The same process took place here as in, for example, environmental and consumer protection: the secondary sources of Community law came well before the modification of the founding treaty. The First Steps As early as 1974, the European Parliament adopted a resolution on ‘the protection of European cultural heritage’7 (Woods 2003, 124) and later passed other resolutions on culture, such as the establishment of the European Youth Orchestra (Woods 2003, 124).8 The Council of Ministers, or, to be more precise, the cultural ministers of the member states, cautiously contributed to this process by initiatives such as the European City of Culture (later the European Capital of Culture) or through support for the translation of the most significant works of European literature. Since the 1980s, the cultural ministers of the member states have regularly met in the framework of the Council. Nevertheless, their initiatives have had a limited scope only (Woods 2003, 123–4). This holds true when we take into account those pieces of legislation that, though implementing economic freedoms, have far-reaching cultural ramifications, such as the Television without Frontiers Directive.9 These acts relied on Article 95 (100/A) of the EC Treaty on legal harmonisation, and Article 133 (113) regulating Community commercial policy in an international context.10 As additional legal grounds, Article 308 (235) EC, now Article 352 TFEU, the well-known flexibility provision, could also be brought into play, which enabled a limited increase of competence in the interest of the functioning of the common market. Indirectly, the jurisprudence of the European Court of Justice also supported this course of action by consequently affirming the fundamental economic freedoms in areas with a cultural bearing.11 In 1992, however, the European Commission issued a Communication on the new cultural aspirations of

6 A good example is the parallel regulation of cross-border television broadcasting by both organisations. 7 OJ C 62, 30.5.1974, p. 5; quoted by Von der Groeben, Thiesing and Ehlermann (1957, p. 3). 8 OJ (1976) C-79/8. 9 Council Directive 89/552/EEC of 3 October 1989 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of Broadcasting Activities. 10 Now Articles 114 and 207 TFEU. 11 ‘Die europäische Kulturpolitik entwickelte sich im wesentlichen aus einer konsequenten Anwendung der Grundfreiheiten des Vertrags heraus auf Gebiete mit kulturellen Bezug. Wegweisend für diese Entwicklung war die Anwendung des Freizügigkeitsrechts im Bildungsbereich, der erst durch die Rechtsprechung des EuGH ermöglicht wurde. In vergleichbarer Weise wurde die Dienstleistungsfreiheit vom EuGH im Rundfunkbereich konsequent angewandt, dessen Rechtsprechung verschiedentlich die Grundlage rechtlicher Maßnahmen bildete.’ Handbuch des Europäischen Rechts, I A 59, p. 5.

The cultural policy of the European Union  233 the Community,12 which was later approved by the cultural ministers of the member states.13 The amendment of the EC Treaty was imminent at this time, and the proposal of the Commission to institutionalise the cultural policy of the European Community was already well known.

FUNDAMENTAL PROVISIONS The Provisions of the TEU and TFEU on Cultural Policy According to the last sentence of Article 3, paragraph 3 of the Treaty on European Union (TEU), the Union shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. Article 6 (c) of the TFEU refers to culture as an area of supporting powers – where the Union ‘shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States’. Moreover, the TFEU has a separate title on culture, which is but a single, though lengthy Article, numbered 167.14 It reads: 1. The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. 2. Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas: • improvement of the knowledge and dissemination of the culture and history of the European peoples, • conservation and safeguarding of cultural heritage of European significance, • non-commercial cultural exchanges, • artistic and literary creation, including in the audiovisual sector. 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe. 4. The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures. 5. In order to contribute to the achievement of the objectives referred to in this Article: • the European Parliament and the Council acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States, • the Council, on a proposal from the Commission, shall adopt recommendations.

Moreover, according to Article 107 para. 3 (d) TFEU, state ‘aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Union to an extent that is contrary to the common interest’ may be considered to be compatible Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee – new prospects for community cultural action, COM/92/149 final. 13 Conclusions of the Ministers of Culture meeting within the Council of 12 November 1992 on guidelines for Community cultural action, OJ C 336, 19.12.1992, pp. 1–2; quoted by Handbuch des Europäischen Rechts, I A 59, p. 4. 14 Previously Article 151 (128) of the EC Treaty, which was exported to the TFEU with slight amendments. 12

234  Research handbook on minority politics in the European Union with the internal market. Experience in recent years has shown that the European Commission is flexible in this area. Here, the Commission has tended to interpret the concept of undertakings and the effect on trade between member states in a restrictive way, thereby widening the scope of permissible cultural aid (Papp 2021, 272–3). The title on culture did not define the notion of culture (Woods 2003, 125). According to commentators (such as Craufurd Smith 2004, pp. 279–80), the activities mentioned in Article 167 TFEU do not constitute an outline of the notion of culture. EU Community law is not the only legislation to be vexed by the difficulties in defining culture. Any definition which listed what constitute cultural activities would sooner or later become too restrictive, leaving no room for future development. Nor would a definition simply deeming culture to be a non-economic activity do. Cultural activities have significant economic aspects. Nevertheless, two inferences can be drawn from EU law. On the one hand, culture within the system of the TFEU does not include education and vocational training, these being regulated by other provisions.15 However, the two areas are obviously related: education can be one of the means of the dialogue and mutual understanding between cultures (Banús 2003, 192); it is even the same directorate-general and agency16 within the Commission that is responsible for educational and cultural affairs. On the other hand, EU institutions, as seen in secondary legal sources and the various programmes, have a practical approach to the world of culture, not necessarily limiting it to the world of high culture.17 Actually, the various institutions of the Union seem to apply different notions of culture in the various (legal) areas. Complex Aims Even at first reading it is clear that Article 167 TFEU and its predecessor were conceived with a multiplicity of aims. The EU evidently aspired to contribute to the flowering of the cultures of the member states, respecting their national and regional diversity;18 at the same time, it also sought to give prominence to the common European cultural heritage. This duality is of course far from being accidental (Steyger 1997, 87–8); indeed, it is the very heart of European development, ‘coherent plurality’ or ‘unity in diversity’, that is being shaped into a conscious cultural policy. Apparently, this also implies that the formulation of a cultural policy must take into account both what is common to and what separates the traditions of the various peoples of Europe, and it is not at all easy to find this kind of balance in practice (Woods 2003, 126). This dual aim requires a dynamic balance, meaning that, from time to time, the emphasis shifts in one direction or another. This is all the more true as not only is culture difficult to define, but it is equally tricky to pin down the ‘flowering’ of the cultures of the member states or the ‘common cultural heritage’ (Banús 2003, 197; Woods 2003, 125), as the literature has often Articles 149–50 (126–7) of the EC Treaty. Directorate-General (EAC) Education, Youth, Sport and Culture and Executive Agency (EACEA) Education, Audiovisual and Culture. 17 Handbuch des Europäischen Rechts, I A 59, pp. 9–10. 18 It is outstandingly important that Article 151 EC Treaty, now Article 167 TFEU, deems not only national but also regional cultural diversity as a value to be protected. The literature interprets this broadly to include linguistic and ethnic minorities too. ‘Lokale Gruppierungen sind darunter ebenso zu verstehen wie sprachliche und ethnische Minderheiten wobei kulturelle Zusammenhänge maßgeblich sind und nicht die Zuordnung zu einer politischen Untereinheit des jeweiligen Mitgliedstaats.’ Handbuch des Europäischen Rechts, I A 59, p. 27. 15 16

The cultural policy of the European Union  235 pointed out. Moreover, if we intend to trace the value bases of European identity, it is worth pointing out that ‘though certain values can be said to be common, each county or social group has its own particular values, and the importance attributed to the same value may vary from country to country and group to group’ (Rezsőházy 2006, VII). As often as not, a value community therefore implies not sameness and homogeneity, but a summary of the related traits of characteristic, individual phenomena. European Cultural Heritage The TFEU made no attempt at circumscribing or assembling the inventory of the common cultural heritage.19 Though an international treaty is not the place for this type of exercise, the obvious sources of this culture, such as the Greek and Roman roots, and the Christian and Jewish religious and cultural tradition, could easily have been mentioned, having had a definitive role in shaping the features of European identity. It would require a special interpretative effort to establish whether ‘heritage’ means revealing and supporting only past aspects of the common culture or whether common, new developments also fall with the scope of such an endeavour. In the latter case, it would be quite possible to formulate an innovative EU cultural policy consciously building the identity of Europe and the European citizen, which is not ruled out in the literature on the area20 (Woods 2003, 109–10). Nevertheless, the TFEU had no intention of establishing a cultural community in the sense of the German ‘Kulturgemeinschaft’ or a single European cultural area, and went out of its way not to mention the expression ‘European culture’. In other words, it left cultural policy primarily to the member states (Handbuch des Europäischen Rechts, I A 59, 12, 25 and 28); the EU has only supporting competencies. The Decision on a European Year of Cultural Heritage (2018)21 has further elaborated the concept and the role of the EU. The Decision operates in a very broad context, as it is obvious from paragraph 1 of its preamble: ‘The ideals, principles and values embedded in Europe’s cultural heritage constitute a shared source of remembrance, understanding, identity, dialogue, cohesion and creativity for Europe.’ This approach is even better demonstrated by paragraph 7, according to which cultural heritage encompasses a broad spectrum of resources inherited from the past in all forms and aspects – tangible, intangible and digital (born digital and digitised), including monuments, sites, landscapes, skills, practices, knowledge and expressions of human creativity, as well as collections conserved and managed by public and private bodies such as museums, libraries and archives. Cultural heritage also includes film heritage. These statements are qualified by the reference to Article 3 (3) TEU, which emphasises that the Union is to respect its rich cultural and linguistic diversity, and ensure that Europe’s cultural heritage is safeguarded and enhanced – taking into account that the EU has only a supporting and supplementing role in this respect. The protection of cultural and linguistic diversity is

On the roots of the notion of cultural heritage and its relation to cultural property see Francioni (2013). 20 ‘Die Förderung der europäischen kulturellen Identität im Sinne einer Innovativen Kulturpolitik ist schließlich nicht erst eine Hervorbringung des Artikels 128.’ Handbuch des Europäischen Rechts, I A 59, p. 28. 21 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018). 19

236  Research handbook on minority politics in the European Union not interconnected with the status and future of ethnic minorities, although the relationship is obvious. This issue was simply not addressed by the Decision, although diversity does exist on a subnational level too. The general objectives of the European Year were to encourage and support the efforts to protect, safeguard, reuse, enhance, valorise and promote Europe’s cultural heritage – based on the cooperation between the Union, the member states and regional and local authorities and stakeholders.22 Another major project is Europeana, under which thousands of institutions have made digitised cultural heritage collections available on a common web-portal,23 with substantial financial support from the EU. The aim of this mobilisation of cultural heritage is to bolster European identity (Capurro and Plets 2021, 163). Creating and Limiting Scopes Another duality lies in the fact that Article 167 TFEU simultaneously provided for and limited the exercise of scope. The member states recognised that the cultural activity of the Union could not be founded for long on Article 95 (100/A) of the EC Treaty, conferring the power of internal-market legislation, or on the flexibility provision of Article 308 (235), which extended that power, and thus they had to create an explicit scope for this area, too. They did so to extricate culture from the orbit of economic regulation.24 However, Article 167 TFEU is also cautious and restrictive because it authorises the Council to adopt only incentive measures, excluding the harmonisation of the laws, regulations and administrative procedures of the member states; the Union as legislator cannot therefore take the place of the member states in this area – all it can do is support them. Indeed, this attitude is characteristic of the regulation of other so-called ‘flanking policies’ the Treaty of Maastricht (1992) originally institutionalised in respect of education and vocational training. It must nonetheless be emphasised that the exclusion of legal harmonisation in the name of cultural policy did not mean that Union institutions could not adopt measures that significantly influence culture in order to facilitate the establishment and functioning of the internal market pursuant to Article 114 TFEU.25 The rejection of legal harmonisation in this area meant that the ability of the European Court of Justice to enforce the fundamental economic freedoms (the ‘Grundfreiheitenkontrolle’) or to strictly apply EU competition law with its possible cultural consequences was even less diminished (De Witte 1990, 198). Taking Cultural Aspects into Account Article 167, paragraph 4 of the TFEU could be relied on for protection against the unwanted cultural effects of legal harmonisation serving economic purposes, as it states that ‘the Union shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures’. Cultural aspects being

Article 2. The ‘financial envelope’ for the implementation of the Decision was €8 million. www​.europeana​.eu/​en. 24 ‘Perhaps in the light of the changes from Maastricht, we might seek to recharacterise the EC’s policy or identify a turning point following which Member States cultural concerns are given full weight and further, that the EC itself recognises a cultural policy that is not driven by economic concerns’ (Woods 2003, 125). 25 Previously Article 95 (100/A) EC Treaty. 22 23

The cultural policy of the European Union  237 taken into account in the framework of other activities and policies of the Union has yet to be seen, however. Moreover, if we compare the various provisions of the TFEU, the efficacy of the prescription seems to be called into doubt. While the provisions on the fundamental economic freedoms and EU competition policy stipulated austere obligations for member states, often using terms such as ‘prohibited’,26 Article 167, paragraph 4 TFEU is far less resolute: the Union had merely to ‘take cultural aspects into account’, which hardly implied any clear and accountable obligation.27 The reference to culture would have had much more force had Article 167 TFEU declared, for instance, that ‘it shall be prohibited to adopt measures for the harmonisation of the laws, regulations and administrative procedures of the member states if they jeopardise the cultural diversity of Europe’. Adopting such a rule would require a wholly different approach, which would appreciate not only the unity of the European market, but also the cultural diversity of Europe, and perhaps even recognise the economic value inherent in such heterogeneity: difference being one of the bases of development, renewal, the capacity to innovate, flexible adaptation and competition. And that cultural diversity is something more important than the uniformisation required by 19th- and 20th-century industrial mass production. As a recent United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention has declared: ‘cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations’.28 If the aspects of cultural diversity and economic efficiency had the same linguistic and normative force in the founding Treaties of the Union, European legislators and the European Court of Justice would have the power to deliberate the merits of these matters, establishing the delicate balance between the competing points of view from act to act, case to case. The proposed solution would not be without precedent since the chapter on Common Commercial Policy of the TFEU declares that the Council is to act unanimously ‘in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity’.29 In practice, however, the Council of Ministers and the European Parliament have only occasionally made reference to the provision in Article 167 TFEU or its predecessor30 (Woods 2003, 127). The European Court of Justice, however, has never deemed it justified to enforce the interests of cultural diversity or general cultural aspects in the face of the interests of the single market,31 whether it is deliberating on the particular interests of the book trade32 or

See, for example, Articles 25, 28–9 or 81. ‘Welches die “kulturellen Aspekte” sind, denen die Gemeinschaft Rechnung zu tragen hat, ergibt sich aus Absatz 4 nicht.’ Handbuch des Europäischen Rechts, I A 59, p. 32 (emphasis added). 28 The preamble of the UNESCO Convention on the protection and promotion of the diversity of cultural expressions (2005). 29 Article 207, paragraph 4 (a) TFEU (emphasis added). 30 For instance, Council Resolution of 12 February 2001 on the application of national fixed book-price systems. OJ C 073, 06.03.2001, p. 5. 31 The literature clearly acknowledges this theoretical possibility, naturally under the condition that the provision is not relied on for abuse, as a means of nation-state cultural protectionism. ‘Maßnahmen nationaler Kulturpolitik, die sonst in Widerspruch zu Einzelbestimmungen des Vertrags stünden, sind daraufhin überprüfen, ob sie nicht gemäß Artikel 128. Absatz 4 gemeinschaftsrechtlich zulässig sind.’ Handbuch des Europäischen Rechts, I A 59, p. 33. 32 Case C-9/99, Échirolles Distribution SA v Association du Dauphiné and Others, ECR (2000), p. I-8207. 26 27

238  Research handbook on minority politics in the European Union the definition of official languages of the Office for Harmonisation in the Internal Market.33 Moreover, it seems to be much easier to restrict the cultural policies of the member states through the means of economic integration than through the formulation and enforcement of an EU cultural policy (De Witte 1990, 198). The Council also seemed to be not quite satisfied with this state of affairs at the beginning of the new century. At least it adopted a special resolution on the horizontal aspects of culture and its relations to other Community actions34 (Weatherill, 2000, 250–51). The preamble of the resolution essentially repeated the provisions of Article 151, paragraph 4 EC, and then went on to declare that extra effort ought to be made in order to include culture in other sectors with the aim of ‘placing culture at the heart of European integration’. Accordingly, it invited the member states and the Commission to enhance the synergies between cultural and non-cultural areas, and to provide for this in the preparation of non-cultural actions and policies of the Community from the outset. Compared to Article 151 EC Treaty, the TFEU rejects the previous requirement of unanimity when declaring in Article 167, paragraph 5 on culture that: ‘the European Parliament and the Council acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures’ in the field of culture35 – however, ‘excluding any harmonisation of the laws of the member states’. We may add that despite the abandonment of the requirement of unanimity in decision-making, which was an important development, the formal mandate of the Union regarding cultural policy remains limited, since according to Article 6 (c) TFEU the Union shall have competence in the field of culture only to carry out actions to support, coordinate or supplement actions of the member states. The UNESCO Convention on Cultural Diversity It is encouraging that the European Community acceded to the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Schorlemer 2017) on 18 December 2006. In its proposal supporting accession to the Convention,36 the European Commission emphasised that the EU had long recognised the dual nature – cultural and economic – of cultural goods and services, and that Article 151, paragraph 4 of the EC Treaty (now Article 167 TFEU) requires the Union to take cultural aspects into account in its overall action. The Convention is meant to strengthen this aspiration – at an international level. Furthermore, the European Commission has adopted a far more elaborate and complex approach to the issue of cultural diversity in its proposal than earlier, elucidating it as follows:

See the judgments in cases T-120/99, Christina Kik v Office for Harmonisation in the Internal Market (Trade Marks and Designs), 20 June 2001, and C-361/01 P, between the same parties, 9 September 2003. 34 Council Resolution of 26 May 2003 on the horizontal aspects of culture: increasing synergies with other sectors and Community actions and exchanging good practices in relation to the social and economic dimensions of culture. OJ C 13, 11.06.2003, pp. 1–2. This was preceded by a Council resolution of 20 January 1997 which called for the integration of cultural aspects into Community actions (OJ C 36, 5.2.1997, pp. 4–5). 35 Emphasis added. 36 Proposal for a Council decision for the ratification of the Convention by the European Community, COM (2005) 678 final, Brussels, 21.12. 2005. 33

The cultural policy of the European Union  239 The conditions for preserving and promoting cultural diversity in Europe and the world depend not only on economic conditions, but also on a multitude of other structural factors. The size of markets, the presence (or not) of linguistic minorities, territories with less widely spoken languages, links with national or regional identities, the material or non-material nature of traditions and cultural heritage, and historical links with other countries are also elements which influence the conditions for cultural expression, culture consumption and cultural exchanges.37

The Commission document also refers to the fact that although globalisation can offer new opportunities for cultural dialogue and exchange, it can also pose a threat to cultures in a weaker condition, as well as generating homogenizing phenomena, which are most likely to jeopardise cultural diversity. We may add: these risks may be encountered in the case of European integration too (Király 2010, 189–206). An Economic Approach Article 151 (128) EC – later Article 167 TFEU – has provided sufficient legal grounds for adopting incentive measures, mostly action programmes and programmes, serving the cultural policy of the EU (Mádl 1995, 98–9; Handbuch des Europäischen Rechts, I A 59, 20–23). In the 1990s, this EC Article was the backdrop to the start of such initiatives as the Ariane,38 the Kaleidoscope39 and the Raphael40 programmes (Bernard 2002, 209). It was also on the basis of this Article 151 EC that the comprehensive Culture Programme was established to replace these programmes at the turn of the millennium,41 and that the Community action programme to promote bodies active at European level in the field of culture was started in 2004.42 Nevertheless, the fundamentally economic ethos of the Community often had sway over the application of Article 151 EC. The most characteristic example of this, which was often strongly criticised by the legal literature, was the Council Decision made on the protection of linguistic diversity.43 To quote only the most controversial section of the related judgment of the European Court of Justice,44 ‘languages are not a cultural element in the context of the decision’, and the Decision was ‘of an industrial nature’, and thus cultural policy could not

COM (2005) 678 final, p. 2. Decision 2085/97/EC of the European Parliament and of the Council of 6 October 1997 establishing a programme of support, including translation, in the field of books and reading (Ariane), OJ L 291, 24.10.1997, p. 26–34. 39 Decision 719/96/EC of the European Parliament and of the Council of 29 March 1996 establishing a programme to support artistic and cultural activities having a European dimension (Kaleidoscope), OJ L 099, 20.04.1996, pp. 20–26. 40 Decision 2228/97/EC of the European Parliament and of the Council of 13 October 1997 establishing a Community action programme in the field of cultural heritage (Raphael), OJ L 305, 8.11.1997, pp. 31–41. 41 Decision 508/2000/EC of the European Parliament and of the Council of 14 February 2000 establishing the Culture 2000 Programme, OJ L 063, 10.03.2000, pp. 1–9. 42 Decision 792/2004/EC of the European Parliament and of the Council of 21 April 2004, OJ L 138, 30.4.2004, pp. 40–49. 43 Council Decision 96/664/EC of 21 November 1996 on the adoption of a multiannual programme to promote the linguistic diversity of the Community in the information society. OJ L 306, 28.11.1996, pp. 40–48. 44 Case C-42/97 European Parliament v Council of the European Union. ECR (1999), p. I-869. ECLI:​EU:​C:​1999:​81. 37 38

240  Research handbook on minority politics in the European Union have been relied on even as an additional legal basis when adopting the decision. Equally debatable was the contention of the Court that the marginalisation of small languages ‘is not a risk of a specifically cultural nature’. True, concedes the judgment, it ‘may be understood as the loss of an element of cultural heritage, but also as the cause of a difference of treatment between economic operators in the Community, who enjoy greater or lesser advantages depending on whether or not the language they use is widespread’.45 Though more justified than the judgment quoted, the MEDIA programmes for supporting the distribution of films and audiovisual works46 (Bernard 2002, 209) were not altogether reassuring in that they only invoke the chapter on industrial policy of the EC Treaty47 as their legal basis in spite of the obvious cultural aspects of this characteristic area being supported (Bernard 2002, 210). The Decision on the programme MEDIA 2007 brought about some changes in this respect,48 since it was not only based on industrial policy but also referred to vocational training policy49 and declared that the support for the audiovisual sector took into account Article 151 of the EC Treaty on culture.

ACTION PROGRAMMES AND OTHER SOURCES The First Generation In the foregoing, we already mentioned the first generation of cultural programmes established on the basis of Article 151 (128) of the EC Treaty, namely Ariane, Kaleidoscope and Raphael.50 The Ariane Programme provided grants for the translation and distribution of literary works and works on the history of the European peoples; Kaleidoscope supported artistic and cultural activities with a European dimension, while the Raphael Programme sought to promote cooperation between the member states in the area of conserving, protecting and developing European cultural heritage. There is no need or space to discuss the particulars of these projects, all the more so as they have expired. However, their common features can illuminate the first decades of cultural policies of the Union, especially with regard to the so-called ‘European dimension’ and the emphasis on cooperation between member states. The need for this is also evidenced by terms such as ‘network’, ‘cross-border character’, 45 Point 50 of the judgment. For a critical discussions of the ruling, see Bernard (2002, pp. 209–10) and Woods (2003, p. 126). 46 Council Decision 95/563/EC of 10 July 1995 on the implementation of a programme encouraging the development and distribution of European audiovisual works (Media II-Development and distribution) 1996–2000, OJ L 321, 30.12.1995, p. 25. This holds also for the MEDIA Plus programme adopted in 2000. See Council Decision 2000/821/EC of 20 December 2000 on the implementation of a programme to encourage the development, distribution and promotion of European audiovisual works (MEDIA Plus – Development, Distribution and Promotion) (2001–2005). OJ L 336, 30.12.2000, pp. 82–91. 47 Article 157 (130) of the EC Treaty. 48 Proposal for a Decision of the European Parliament and the Council Concerning the implementation of a programme of support for the European audiovisual sector (MEDIA 2007), COM (2004) 0470 final, Brussels, 14.7.2004. The European Parliament and the Council adopted the new programme by Decision 1718/2006/EC. OJ L 327, 24.11.2006, pp. 12–29. 49 Article 150 paragraph 4 of the EC Treaty. 50 See above.

The cultural policy of the European Union  241 ‘transnational projects’, ‘large-scale European projects’, or ‘spread of cultures’, familiar to anyone who has ever applied for EU funding. This meant that a cultural programme involving a single member state was eligible for funding only in exceptional cases. Applications had to pledge intercultural dialogue, permeation and interpenetration, the best guarantee of which was that the institutions of at least three member states participated in the enterprise. The Commission report on the implementation of the three first-generation programmes stated: ‘It should be merely noted that, for obvious practical reasons, priority was given to those which were easiest to verify (the involvement of partners from three countries).’51 It justified this by the fact that member states tended anyway to support national or bilateral cooperation projects. It is of course only reasonable that an integration of several member states should require an international character when funding programmes; this may however tilt the balance of the values provided for by Article 151 (128) of the EC Treaty, now Article 167 TFEU, national and regional diversity and common European heritage, in favour of the latter.52 It could be brought up against this practice that the demonstration of similarities behind cultural diversity need not be necessarily required of applications because the common features of European culture are manifest in its wholeness and historicity. From this point of view, support for preserving, for example, a national memorial park in a member state or the wine-press houses north of Lake Balaton in Hungary would have perfectly fit in with the cultural policy of the Union.53 In contrast to the attitude of the European Commission, the Committee of the Regions has called attention to the values of locality and local communities in assessing the cultural policy of the Union.54 European Capital of Culture The European Capital of Culture initiative is meant both to enhance local and regional identity and to promote European integration, and has had Community-level legal backing since 1999.55 In the meantime it has become a kind of flagship programme of the EU (Xuereb 2018, 42–3). However, here again the primary condition of legibility was a cultural project of European dimensions, based principally on cultural cooperation, which highlighted the shared European artistic and stylistic movements, involved the citizens of other member states, and

Commission Report to the European Parliament, the Council and the Committee of the Regions – Report on the implementation of the Community programmes Kaleidoscope, Ariane and Raphael. COM (2004) 033 final, Brussels 23.1.2004, point 3.3.2. 52 In this respect, Hungary is in a somewhat peculiar situation, as, for obvious historical reasons, the borders of Hungarian culture do not coincide with its current national borders. It would therefore not cause particular difficulty to assemble an application on, for example, the work of the eminent 16th-century Hungarian poet Bálint Balassi involving institutions of at least three member states. 53 Rachael Craufurd Smith formulated a similar criticism – ‘Nevertheless, Community political considerations appear to influencing the kind of projects that are being funded, possibly to the detriment of authentic, yet smaller-scale initiatives’ – in her ‘Article 151 and European Identity’ in: Craufurd Smith (2004, p. 296). 54 Committee of the Regions, Opinion of 13 March 1998 on ‘Culture and cultural differences and their significance for the future of Europe’. COM 7/004, quoted by Craufurd Smith (2004, p. 295). 55 Decision 1419/1999/EC of the European Parliament and of the Council of 25 May 1999 establishing a Community action for the European Capital of Culture event for the years 2005–19. Earlier on, the programme was based on a resolution of the cultural ministers of European Community (OJ C 153, 22.6.1985, p. 2). 51

242  Research handbook on minority politics in the European Union promoted intercultural dialogue.56 This endeavour was, on the one hand, only natural, but emphasising ‘Europeanness’ was appropriate as long as local, regional and national identity was not infringed. A productive dialogue between cultures is conditional on the respect for and knowledge of the culture of the other party and the general recognition of cultural diversity. The extraordinary importance attached to intercultural dialogue was again attested to by the decision of the European Parliament and the Council to establish the European Year of Intercultural Dialogue (2008).57 In 2006, however, another decision was passed by the European Parliament and the Council establishing a Community action for the European Capital of Culture event for the years 2007–19.58 The basic goal became to highlight the richness and diversity of European cultures and the features they share, as well as to promote greater mutual understanding between European citizens. The cultural programme was subdivided into two categories, ‘the European Dimension’ and ‘City and Citizens’. As regards ‘the European Dimension’, the programme included the promotion of cooperation between cultural operators, artists and cities from the relevant member states and other member states in any cultural sector as well as highlighting the richness of cultural diversity in Europe and bringing the common aspects of European cultures to the fore. It is worth noting that the concept of cultural diversity was not expressly mentioned in its predecessor, passed in 1999. This was definitely a new development. The issue of diversity, which was raised only once in the previous Decision passed in 2006, became a central theme by 2014 in the Decision dealing with establishing a Union action for the European Capitals of Culture for the years 2020–33.59 The term ‘diversity’ appears a dozen time in its text. The Decision expressly refers in its preamble to the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which entered into force on 18 March 2007, and to the value of cultural diversity at local, national and international levels. The general objectives of the EU action are: to safeguard and promote the diversity of cultures in Europe and to highlight the common features they share, as well as to increase citizens’ sense of belonging to a common cultural area and to foster the contribution of culture to the long-term development of cities in accordance with their respective strategies and priorities. The programme is based on six pillars;60 the European dimension is only one of them: as regards the ‘European dimension’ category, the following factors shall be assessed: (a) the scope and quality of activities promoting the cultural diversity of Europe, intercultural dialogue and greater mutual understanding between European citizens;

See Article 3 of the Decision. Decision 1983/2006/EC, OJ L 412, 30.12.2006, p. 44. 58 Decision 1622/2006/EC of the European Parliament and of the Council of 24 October 2006 Establishing A Community Action for The European Capital of Culture Event for The Years 2007 to 2019. 59 Decision 445/2014/EU of the European Parliament and of the Council of 16 April 2014 Establishing a Union Action for the European Capitals of Culture for the Years 2020 to 2033 and Repealing Decision 1622/2006/EC. 60 Article 5: ‘The criteria for the assessment of applications (“the criteria”) shall be divided into the categories “contribution to the long-term strategy”, “European dimension”, “cultural and artistic content”, “capacity to deliver”, “outreach” and “management”.’ 56 57

The cultural policy of the European Union  243 (b) the scope and quality of activities highlighting the common aspects of European cultures, heritage and history, as well as European integration and current European themes; (c) the scope and quality of activities featuring European artists, cooperation with operators or cities in different countries, including, where appropriate, cities holding the title, and transnational partnerships; (d) the strategy to attract the interest of a broad European and international public.

One can claim that points (a) and (b) try to strike a fair balance between diversity of cultures and common aspects of European cultures. However, there is still no reference in the string of above-cited decisions to the issue of minorities, although their existence is definitely related to cultural diversity. The Culture Programmes The Culture 2000 programme took the place of the three first-generation programmes,61 continued their objectives and sought to give a unified guidance on Community participation in the area of culture, thereby improving the efficiency of integration. The introduction to the Decision establishing the programme emphasised that culture is ‘an essential element of European integration’ and ‘both an economic factor and a factor in social integration’.62 Just as in Article 151 of the EC Treaty, one single paragraph outlined the contribution to the flowering of the cultures of the member states, the respect to their national and regional diversity, and the special attention to be devoted to safeguarding small cultures and less widely spoken languages. While affirming a common cultural heritage, this very passage, quoting the well-known phrase of the preamble to the EC Treaty, mentions the responsibility ‘for creating an ever-closer union among the peoples of Europe’.63 In so doing, the Decision formulates a new objective, one not known by Article 151 EC, the commitment ‘to working towards the development of a cultural area common to the European people’.64 This effort was manifest in the support of cooperation between creative artists, cultural operators, private and public promoters, and the activities of the cultural networks, in order to attain objectives such as: cultural dialogue; the transnational dissemination of culture and the movement of artists, creators and other cultural operators and professionals and their works; the highlighting of cultural diversity; and the development of new forms of cultural expression. The objectives also included sharing and highlighting the common cultural heritage, the fostering of intercultural dialogue, explicit recognition of culture as an economic factor, and the improvement of access to and participation in culture in the EU for as many citizens as possible.65 The Annex of the Decision stated that the Community supported initiatives in which institutions of at least three, sometimes five, member states participate, but a cultural event should have had a clear and significant European or international reach.66 From 2000–2006, Decision 508/2000/EC. The programme was meant to run between 2000 and 2004, but was extended for another two years. The terms and conditions of participation were defined by the Commission in its annual calls for proposals. 62 See points 1–2 of the preamble of the Decision. 63 See point 6 of the preamble of the Decision. 64 See point 7 of the preamble and Article 1 of the Decision. 65 See Article 1 of the Decision. 66 ‘These events, substantial in scale and scope, should strike a significant chord with the people of Europe and help to increase their sense of belonging to the same community as well as making them 61

244  Research handbook on minority politics in the European Union Culture 2000 had co-funded more than 1500 cultural cooperation projects in the form of festivals, international exhibitions, tours, etc.67 The third-generation Culture Programme (2007–2013), which replaced Culture 2000, continued this attitude.68 It promised support for three fundamental objectives: the transnational mobility of cultural players, the transnational circulation of artistic and cultural works and products, and the dialogue and cultural exchanges. According to its Annex, each supported project must involve at least six operators from six different countries, or must be a special action, substantial in scale and scope, striking a significant chord with the peoples of Europe. The Programme also offered support for organisations working, analysing and informing on European cultural cooperation. The MEDIA 2007 programme also had a definite cultural political aspect in so far as the Decision establishing it declared that ‘the European audiovisual sector had a key role to play in the emergence of European citizenship because it is one of the principal vectors for conveying the Union’s common and shared fundamental social and cultural values to Europeans and especially young people’.69 The aim of European identity-building was clear. The European Community provided for both comprehensive horizontal programmes and sector-specific initiatives. Electronic media and film enjoyed particular attention. The previous actions included: the MEDIA Plus programme, the predecessor of MEDIA 2007 already mentioned, which encouraged the development, distribution and promotion of European audiovisual works;70 the Council resolution on the deposit of cinematographic works in the EU;71 and the recommendation of the European Parliament and Council on the protection of European film heritage.72 The Council resolution on interactive media content in Europe73 also deserves mention as it emphasised the importance of representing the cultural and linguistic diversity of Europe in such media, and that European enterprises should have a fair share of this market. The economic importance of the media programmes were attested to by the several proceedings initiated before the Court of First Instance and the European Court of Justice concerning the denial of support for distributing films or the eligibility of applicants.74 Naturally, the subject of these lawsuits had little to do with the cultural policy aims of the Community and their assessment. aware of the cultural diversity of the Member States, as well as intercultural and international dialogue.’ Point I.3 of the Annex of the Decision. 67 Commission staff working document – Accompanying document to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a European agenda for culture in a globalizing world – Inventory of Community actions in the field of culture (COM(2007) 242 final) /* SEC/2007/0570 */, p. 3. 68 The new Culture Programme is established by the Decision 1855/2006/EC of the European Parliament and of the Council, OJ L 372, 27.12. 2006, and is amended by Decision 1352/2008/EC of the European Parliament and of the Council. 69 Decision 1718/2006/EC of the European Parliament and of the Council of 15 November 2006 concerning the implementation of a programme of support for the European audiovisual sector (MEDIA 2007), OJ L 327, 24.11.2006, p. 12. 70 Council Decision 2000/821/EC of 20 December 2000 on the implementation of a programme to encourage the development, distribution and promotion of European audiovisual works (MEDIA Plus – Development, Distribution and Promotion) (2001–2005). OJ L 336, 30.12.2000, pp. 82–91. 71 Council Resolution of 24 November 2003. OJ C 295, 5.12.2003, pp. 5–6. 72 OJ L 323, 9.12.2005, pp. 57–61. 73 OJ C 13, 18.1.2003, pp. 8–9. 74 For instance, cases C-164/98, DIR International Film Srl and Others v Commission of the European Communities, ECR (2000), p. I-447; T-233/00, Scanbox Entertainment A/S v Commission of

The cultural policy of the European Union  245 The interest of the Community was not limited to the media, the Council having adopted resolutions on the cooperation of museums75 and the archives of the member states, which stressed ‘the importance of archives for the understanding of the history and culture of Europe’.76 These, however, were not thorough-going programmes offering financial support; more than anything, they are enactments of calls to the member states and the Commission. The priorities of the EU regarding cultural policy were fine-tuned in a Resolution on a European Agenda for Culture in 2007.77 The strategic objectives were centred upon promoting cultural diversity, intercultural dialogue, creativity and culture as vital elements in the Union’s international relations. The actions should have had ‘a real European added value’. Regarding the working methods, the dialogue with the cultural sector was an obvious requirement and the Open Method of Coordination (OMC) as a flexible and non-binding framework for cooperation was established. As a part of the OMC it was a special goal to minimise the financial and administrative burden upon different actors. The OMC can be described as a specific means of creating effective working relationships, ensuring mutual exchanges of information among the EU and the member states and stakeholders where the EU has only supplementing and supporting competences.78 For 2008–10 the priority actions targeted the following areas: mobility of artists; access to culture; promoting cultural heritage; developing data, statistics and methodologies in the cultural sector and improving their comparability; supporting cultural and creative industries, in particular those of small and medium-sized enterprises; and promoting and implementing the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. In 2013 a new, comprehensive EU Regulation was passed, merging the fields of cultural policy and media and establishing the Creative Europe Programme (2014 to 2020).79 Similarly to the latest Decision on European Capitals of Culture, analysed previously, cultural and linguistic diversity became the focal point of this new law.80 As Calligaro rightly detects and describes this general shift in the literature: ‘Diversity became pivotal to EU discourse to the point that is now often conceived as a further European value’ (2014, 79). The general objectives of the Programme were: to safeguard, develop and promote European cultural and linguistic diversity and to promote Europe’s cultural heritage: to strengthen the competitiveness of the European cultural and creative sectors, in particular of the audiovisual sector, with a view to promoting smart, sustainable and inclusive growth.81 Accordingly, the programme the European Communities, ECR (2002), p. II-3937; and T-333/00, Rougemarine SARL v Commission of the European Communities, ECR (2002), p. II-2983. 75 Council Resolution of 24 November 2003 on cooperation between cultural institutions in the field of museums. OJ C 295, 5.12.2003, pp. 1–2. 76 OJ C 113, 13.5.2003, p. 2. 77 Resolution of the Council of 16 November 2007 on a European Agenda for Culture. OJ 29.11.2007, C 287 p. 1. 78 Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018). The document provides several examples of the OMC. 79 Regulation (EU) 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe Programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC. The programme was built on and brought together the former Culture, MEDIA and MEDIA Mundus Programmes (2007–13). 80 Article 3. 81 Article 3.

246  Research handbook on minority politics in the European Union consisted of a MEDIA sub-programme, a culture sub-programme and a cross-sectoral strand.82 The importance of the audiovisual sector has been well represented by the fact that the ‘financial envelope’ had to be allocated as follows: at least 56 per cent for the MEDIA sub-programme, at least 31 per cent for the culture sub-programme and a maximum of 13 per cent for the cross-sectoral strand.83 The 2014–16 budget of the MEDIA sub-programme neared €327 million. In the same period, the total spending on the activities within the Culture sub-programme amounted to almost €179 million, with the biggest share in the budget occupied by support for cooperation projects (64.3 per cent of total spending within the Culture sub-programme), followed by networks and platforms (accounting together for 21.7 per cent of the spending) (Zygierewicz 2018, 15 and 21). The adjective ‘transnational’ was very often used to describe the characteristics of the supported activities thorough the Regulation: ‘transnational circulation and mobility’, ‘transnational co-operation’, ‘transnational character of actions’ or ‘transnational marketing, branding, distribution and exhibition of audiovisual works’. The requirement of ‘European added value’ remained a standard element of the Regulation, which can be ensured inter alia through the transnational character of actions and the development and promotion of transnational cooperation between cultural and creative players.84 The plans of the Commission on culture and the Creative Europe Programme were summarised in 2018, by a Communication published under the title A New European Agenda for Culture.85 It has an even broader, holistic approach, fostering more synergies than the former EU sources related to cultural policy. It includes three strategic objectives, with social, economic and external dimensions. The social dimension aims to harness the power of culture and cultural diversity for social cohesion and well-being. The economic dimension supports culture-based creativity in education and innovation, and for jobs and growth. The external dimension is devoted to strengthening international cultural relations.86 The aspects of the digital age enjoy a pivotal role as well. Although cultural diversity and diversity of European cultural expressions are still reflected, parallel with the strengthening of European identity, however, somewhat less emphasis has been put on diversity issues than in the Creative Europe Programme. Cultural policy is rather presented by the Commission as an effective tool of social engineering and an area of significant economic impact. The problems related to (ethnic) minorities are not specifically addressed in the document; the issue of languages is raised in the context of culture as an ideal means of communicating across language barriers and bringing people together, including newly arrived refugees and migrants. Interestingly

Article 6. Article 24. Actually, the support for the European film and audiovisual industries celebrated its 30th anniversary in 2021. Since 1991 the different MEDIA programmes have invested over €2.6 billion in the film and audiovisual industries to support the development, promotion and distribution of European works within Europe and beyond. See https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​ ip​_21​_104. 84 Article 5. 85 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, A New European Agenda for Culture, (SWD(2018) 167 final), COM(2018) 267 final. 86 In more detail: Council Conclusions on an EU strategic approach to international cultural relations and a framework for action. OJ 2019. C 192 pp. 6–10. 82 83

The cultural policy of the European Union  247 enough, the previously often-emphasised requirement of ‘European added value’ did not return in this document, which might signal a policy change. The broad social policy targets are echoed by the recent documents, like in the 2019–2022 Work Plan for Culture.87 According to this document it is important, for example, to acknowledge and tackle the disparities caused by a gender gap in the cultural and creative sectors through targeted policy measures. The 2019–2022 Work Plan for Culture recognises that gender equality is a pillar of cultural diversity, and culture has a key role to play in challenging stereotypes and promoting societal change. Gender equality is one of the priorities of the Work Plan, together with sustainability in cultural heritage, social cohesion and well-being, and an ecosystem supporting artists, cultural and creative professionals and European content and international cultural relations.

THE CHARACTERISTICS OF EU CULTURAL POLICY A Means of Integration In conclusion, we are justified in asserting that the individual elements of European cultural diversity in their own right seldom have the opportunity of being granted Union support, unless they appear in a broader European palette – in a more comprehensive framework. The formulation of the common area of culture as an objective and the insistence on intercultural dialogue and European cultural networks demonstrate that the Union regards cultural policy as a means to further integration, just like the other policies regulated by the TFEU.88 It should be noted, however, that although it is a valid and justified aim to promote the mobility of the cultural actors of the member states, the fact that cultural programmes increasingly focus on it suggests to the commentator that EU cultural policy has been infiltrated by patterns for running the single market where ensuring the free movement of persons and goods is certainly a necessity. This phenomenon involves the risk that proper appreciation of the essential, specific elements of a culture is lost in the cultural policy itself. European Added Value That it is not a misrepresentation to see a means of integration in the cultural policy of the Community has been already affirmed by the Council resolution of 2002 on European added value and mobility of persons and circulation of works in the cultural sector.89 When it comes to added value as ‘a basic and decisive concept’, it is generally understood as the synergy effects which emerge from European cooperation and which constitute a distinctive European dimension in addition to member-state-level actions and policies in the field of culture. Council Conclusions on the Work Plan for Culture 2019–2022, OJ C 460, 21.12.2018, pp. 12–25. A classic example is competition policy, which, apart from its usual function, has been afforded the role of promoting economic integration, complementing the aims of the provisions on the free movement of goods, persons, services and capital. 89 OJ C 13, 18.1.2003, pp. 5–7. A precedent of the resolution is Council Resolution of 25 June 2002 on a new work plan on European cooperation in the field of culture. OJ C 162, 6.6.2002, pp. 5–7. The aim of the mobility of persons and European cooperation obviously drove such Community educational programmes as Socrates, Leonardo da Vinci or Tempus. 87 88

248  Research handbook on minority politics in the European Union According to the resolution, European added value is characterised by the cumulative presence of several factors. The following types of action fall within its scope: actions that have a clear multilateral character; actions that encourage cooperation between member states; actions with objectives and effects that are better achieved at Community level than at member state level; actions that address, reach and benefit primarily citizens in Europe, and also enhance mutual knowledge of cultures; as well as actions that aim at being sustainable and at constituting a long-term contribution to the development of cooperation, integration and cultures in Europe.90 The resolution also declared that European added value is an overall condition for Community cultural action. If we put this declaration and Article 151 (128) of the EC Treaty, now Article 167 TFEU, side by side, the shift in emphasis becomes obviously clear: from among the objectives enshrined by Article 151 (128), the Community no doubt prefers – as aims in their own right, as deserving support of themselves – the cooperation of member states, the common cultural heritage and indeed the building of European identity over national and regional diversity and particularity. It thus runs the grave risk that, by the enforced building of European identity,91 it will not only disrupt the balance of the aims provided by the Treaties, but also it will increase rather than decrease the sense of alienation from integration objectives in certain social groups. Attaching the aim of integration to cultural policy (Craufurd Smith 2004, 294) might very well backfire; instead of the ‘spill-over’ effects of ensuring continuous support, ‘spill-back’ effects might arise (Balázs, 2001, 264–5). If we jump over some decades and analyse the Creative Europe Programme (2014 to 2020), on one hand we can trace the durability of the goal of creating European added value. According to its preamble, it is necessary to ensure the European added value of all actions and activities carried out within the programme.92 Moreover, a separate Article (Article 5) is devoted to the rules on European added value, emphasising that ‘the Programme shall support actions and activities with a European added value in the cultural and creative sectors’. On the other hand, one has to admit that this requirement has already been put into a different, better-balanced conceptual context than in former EU programmes, taking into account the above-detected key role of cultural diversity in the new regulation. However, some inherent aspects of cultural diversity are still not tackled, especially the problem of ethnic minorities, which is regularly neglected. Unfortunately, the silence on the issue of national minorities is hardly a coincidence, given the Commission’s decision to reject the Minority SafePack European Citizens’ Initiative, despite its widespread political support (Nagy 2021, 3). The natural gravity of the Union, the half-century aim of ‘ever-closer union’, the permeation of culture by economic integration and other policies, the self-movement of a supranational system of institutions,93 the international composition of decision-making bodies, all pointed toward a cultural policy with an integration end. However, as a result of the changes of the last See points 2,7 and 8 of the resolution. As early as 1975, the Tindemans Report (Bull. CE, suppl. 1/76) defined European identity as a condition of political integration: ‘Europe cannot proceed to a greater degree of political integration without the underlying structure of a unifying European identity.’ Quoted by Banús (2003, 196). However, European identity is a changeable concept, continuously shaped by dialogue and debate. See Bernard (2002, p. 243, also referring to the opinions of Joseph H.H. Weiler and Jo Shaw). 92 Preamble point (27) of Regulation (EU) No 1295/2013. 93 For the self-movement of European institutions, see Bernard (2002, p. 10): ‘Policy, in this context, is the reflection not so much of bargaining between the political principals through their agents but rather the culture and values of the network itself.’ For further details, see pp. 147–56. 90 91

The cultural policy of the European Union  249 decade, by now the identity-building function of the EU cultural policy has become less manifest, and the different cultural programmes follow a much more comprehensive set of goals. The support for unity and the protection of diversity reach a fuller harmony in the cultural policy of the Union.

REFERENCES Balázs, Péter, Európai egyesülés és modernizáció [European Integration and Modernisation] (Budapest: Osiris Kiadó, 2001). Banús, Enrique, ‘The European Union: A Space for Intercultural Dialogue (Introductory Report)’, in Intercultural Dialogue – Dialogue Interculturel: Brussels, 20 and 21 March, 2002 (Luxembourg: Office for Official Publications of the European Communities, 2003), 188–201. Bernard, Nick, Multilevel Governance in the European Union (The Hague: Kluwer Law International, 2002). Calligaro, Oriane, ‘From “European cultural heritage” to “cultural diversity”?’ 45 Politique européenne [2014], 60–85. Capurro, Carlotta, and Gertjan Plets, ‘Europeana, EDM, and the Europeanisation of Cultural Heritage Institutions’, 6/2 Digital Culture and Society [2021], 163–90. Craufurd Smith, Rachael (ed.), Culture and European Union Law (Oxford: Oxford University Press, 2004). De Witte, Bruno, ‘Cultural Linkages’ in William Wallace (ed.), The Dynamics of European Integration (London: Pinter Publishers, 1990), 192–210. Francioni, Francesco, ‘Cultural Heritage’ in Max Planck Encyclopedia of Public International Law (February 2013). Király, Miklós, ‘Cultural Dimension of International Economic Law’, in Simona Beretta and Roberto Zoboli (eds), Global Governance in a Plural World (Milan: Vita e Pensiero, 2010), 189–206. Littoz-Monnet, Annabelle, The European Union and Culture: Between Economic Regulation and European Cultural Policy (Manchester: Manchester University Press, 2007). Mádl, Ferenc, Az Európai örökség útjain [On the Roads of European Heritage] (Budapest: Atheneum Nyomda Rt., 1995). Nagy, Csongor István, ‘Questions of Integrity: The Commission’s “Founding Values” Policy and Ethnic Minorities’, https://​verfassungsblog​.de/​questions​-of​-integrity/​, 6 December 2021, 1–6. Papp, Mónika, ‘Kulturális célú támogatások az EU támogatási jogában’ (Cultural aid in EU state aid law) in Réka Somssich (ed.), Ratio et Mensura, Studia M. Király Dedicata, Ünnepi tanulmányok Király Miklós 60. születésnapja alkalmából. ELTE (Budapest: Eötvös Kiadó. Eötvös Loránd Tudományegyetem, 2021), 257–73. Rezsőházy, Rudolf, ‘Európai identitásunk alapjai’ [The Foundations of our European Identity] (Edited version of the inaugural lecture at the Hungarian Academy of Sciences, November 2005). 6/2 Heti Válasz [2006], supplement, vi–viii. Schorlemer, Sabine von, ‘Cultural Diversity’ in Max Planck Encyclopedia of Public International Law (May 2017). Steyger, Elies, National Traditions and European Community Law (Aldershot: Dartmouth, 1997). Von der Groeben, Hans, Jochen Thiesing and Claus-Dieter Ehlermann, Handbuch des Europäischen Rechts. Systematische Sammlung mit Erläuterungen (Baden-Baden: Nomos, 1957). Weatherill, Stephen, ‘Finding Closer Co-Operation in the Field of Culture’ in Gráinne De Búrca and Joanne Scott (eds), Constitutional Change in the EU: From Uniformity to Flexibility? (Oxford: Hartland, 2000), 237–57. Woods, Lorna, ‘Culture and the European Union’ in Martijn van Empel (ed.), From Paris to Nice: Fifty Years of Legal Integration in Europe (The Hague: Kluwer Law International, 2003), 109–29. Xuereb, Karsten, ‘The Impact of the European Union on Cultural Policy in Malta’. XXIV(82) Croatian International Relations Review [2018], 38–61. Zygierewicz, Anna, Creative Europe Programme (2014–2020), European Implementation Assessment (Update) (Brussels: European Parliamentary Research Service, Ex-Post Evaluation Unit, 2018).

13. European Union Roma policy: under construction Melanie H. Ram

THE EMERGENCE OF ROMA AS AN EU ISSUE Who are the Roma? Today often proclaimed to be the European Union’s (EU’s) largest minority, numbering an estimated six million across current EU member states (and more beyond) (Council of Europe, 2012), scholarship about Roma has grown significantly in the last several decades alongside the EU’s attention to their plight. The very question of who to classify as ‘Roma’ is often a necessary starting point for this research as well as for policymaking and remains itself a subject of scholarly debate. This is a debate that the EU has sought to address (or avoid) by using Roma as an ‘umbrella’ term encompassing a variety of different groups, sometimes defined as having ‘similar cultural characteristics’ (European Commission 2011) and most recently defined (somewhat confusingly) as ‘a wide range of different people of Romani origin’ as well as other groups (European Commission 2020). Roma have lived in different parts of Europe for hundreds of years, have identified as and been designated by various ethnonyms (including, commonly, Gypsies), and have been subject to different degrees of discrimination, persecution, and integration. Scholarly views vary on how to identify Roma, whether as a historical diaspora with common origins, a separate ‘ethnic’ group, or a group with a common lifestyle or culture (Vermeersch 2006, 13–17). Tremlett (2014) argues that scholars and policymakers should take care not to ‘group’ Roma too much at all or focus entirely on ethnicity or any other single characteristic, and instead recognize their ‘super-diversity’ (for example in language, religion, ethnicity, nationality, gender, class, and experiences) in their everyday lives. While this debate may not on the surface appear to be a policy issue, indeed it has implications for the design and implementation of policy, including who represents this diverse population in national and international fora, who is subject to any special benefits granted to or legislation applied to them, how they are counted and how their situation is assessed, who is involved in policy discussions, and how the impact of policy interventions is monitored and measured. Some would go so far as to argue that failure to take into account Roma identity is one of the critical factors explaining the failure of EU Roma policy (Rostas 2019). Determining exactly who is the target of Roma policies has been dealt with differently at the EU level and in each member state. Since Roma (or Gypsies, Travellers, etc.) have lived in Europe since medieval times, they have long been a subject of study in various academic fields. They were hardly mentioned in any European Community documents, however, prior to the 1990s. With the fall of the Berlin Wall in 1989, the expressed desire of countries in Central and Eastern Europe (CEE) to ‘rejoin Europe,’ and the massive societal changes that consequently took place in these countries, the various peoples that have come to be called ‘Roma’ by the international community were 250

European Union Roma policy  251 catapulted ‘from the sidelines to the headlines’ (Ram and Holyoke 2003). With news headlines recounting violence, discrimination, segregation, and poverty contributing to a growing awareness of their situation, Roma began to garner prolonged attention of various international bodies, including the EU (Ram 2010, 198). So also began a series of scholarly inquiries and data collection to define and describe this population’s experiences in their countries’ economic, social, and political transformations; to develop European-level policies to address uncovered deficiencies, inequalities, and their repercussions; and to evaluate these policies. It was during this time that the term ‘Roma’ (used previously, for example, by the International Romani Union) came to be adopted as the accepted international exonym to replace the commonly used ‘Gypsies’ (with its pejorative connotations). Today, more than any other European population, Roma are ‘a minority of pan-European concern and attention’ (Vermeersch and Ram 2009, 61). Scholarship on the EU’s policies regarding Roma has unfolded as a series of debates and mostly qualitative analyses and case studies on why the EU has developed various policies, whether and how the EU influenced domestic policies and institutions regarding Roma in both member and prospective states, who has influenced these policies, how the Roma have mobilized or otherwise been involved, whether the EU’s role has been a positive and effective one, how EU policies should be designed, and the shortcomings of each iteration of EU involvement. The Appearance of Roma on the EU’s Agenda Since the EU has historically left the issues of minority rights and human rights primarily to other international organizations like the Council of Europe, an initial question of scholarly research was why the EU developed policies regarding this particular minority. Concern about the treatment of minorities in countries that wished to join emerged early on in the EU enlargement process, but Roma were far from the focus of concern. The EU was most intent on ensuring regional stability and avoiding border disputes between CEE countries and therefore focused on friendship treaties between CEE countries and the treatment of minorities with neighboring kin states (e.g., Hungarians in Romania and Slovakia) (Ram 2001, 86; Topidi 2003, 4; Vermeersch 2003b, 9). Roma as a ‘national minority’ in need of protection did not garner significant EU attention until the mid-1990s (Vermeersch 2002, 86). Migration As to why Roma appeared on the EU’s radar, migration is the first and most prominent explanation. Roma have lived in both Western and Eastern Europe for centuries, and their movement from one country to another – whether due to discrimination, persecution, or opportunity – was not a new phenomenon; nor was post-Cold War migration unique to Roma or necessarily in greater numbers than their compatriots (Matras 2000, 34). Nonetheless, the large number of Roma who visibly migrated to West European countries in the early 1990s made the lives of Roma in CEE ‘an international issue’ (Barany 2002a, 242). Many Roma fled wars in the former Yugoslavia; some were disadvantaged by changing citizenship laws in the breakup of their home countries; others faced violence, discrimination, and/or economic hardship (Matras 2000; Crowe, 2003, 87–90). Regardless of why they migrated, the ‘preoccupation with the westward mobility of Roma’ in the early 1990s and EU countries’ perception of this as a ‘threat’ instigated the discussion and adoption of new polices to limit this movement and prevent Roma from CEE from taking up residence in the EU (Sigona and Trehan 2009, 8).

252  Research handbook on minority politics in the European Union The EU’s policies regarding Roma thus were intertwined early on with member states’ objectives to prevent Romani asylum seekers from entering or remaining in their countries; minority rights or human rights of Roma migrants was not of paramount concern (Ram 2010, 206). EU candidate countries’ measures to improve the situation of Roma were likewise initiated in response to the migration-generated demands from EU members and sometimes lasted as long as the threat of visa restrictions being imposed on their citizens persisted (Sobotka 2003, 96–7). This was not only ineffective migration policy given that the ‘pull factors’ drawing Roma to Western Europe remained in place, but it also contributed to a view of Roma as unwanted foreigners even in their home countries (Sobotka 2003, 107, 103). It also supported a vicious cycle of discrimination and violence that continues today. Matras (2000) recounts how persecution or hostilities in their home countries (and other factors) – paired with lack of confidence in government institutions – led Roma to seek asylum (traveling in large family groups) in West European countries, with asylum being their only legal option for migration. Thanks to asylum processes in many ways rigged against them, Roma rarely succeeded in obtaining asylum, many were left with no or limited benefits or legal opportunities to work, and some engaged in petty theft or begging on the streets, in turn causing increased contempt by already prejudiced local populations, and ultimately leading to an environment of violence and hostility in the West that mirrored that in the East (Matras 2000, 40–41). Aggressive EU government actions against Roma in places like Italy and France, including collective expulsions, with tacit (and sometimes active) endorsement from the EU (see, for example, Ram 2014a), helped to reinforce anti-Roma prejudices and stigmatization across Europe – in old and new member states alike (O’Nions 2011, 381; Woodcock 2007). With this less than auspicious start to addressing the real social and economic hardships of many Roma across Europe, the work of embedding Roma inclusion in EU policy later on stood on shaky foundations that would be difficult to overcome. Human/minority rights In the early 1990s (not to mention historically and subsequently), Roma were subject to violent attacks and discrimination – both in their home countries and where they sought asylum. This was one factor contributing to Romani migration and consequently EU policy, though scholars have interpreted the EU’s interest in human rights in different ways. Castle-Kanĕrová (2003) suggests the EU downplayed initial concerns about human rights in CEE countries in order to be able to reject Romani asylum seekers from these countries; Roma were instead depicted as economic migrants in search of social benefits and without valid claims for asylum. Topidi (2003, 12) also notes the paradox of declaring all ten accession countries to be ‘safe countries of origin’ from which all asylum applications would automatically be rejected despite continually noting these countries’ deficiencies in protecting the human rights of their Romani populations. Others argue that the EU’s attention to human rights of Roma was a direct result of Roma seeking asylum, even if restricting asylum negated the very principle of protecting human rights (see, for example, Sobotka 2003, 112). It was thought that by improving the situation of Roma in their home countries, including tackling discrimination, Roma might be less likely to migrate – and those who did would have fewer grounds for seeking asylum (Matras 2000, 47; Ram 2010, 209, 213). While some scholars saw the EU as resistant to adopting shared standards of human rights (e.g., Vermeersch 2002, 89), others noted that the EU’s evolution on human rights since the early 1990s provided an important foundation for addressing the situa-

European Union Roma policy  253 tion of Roma (Ram 2010, 207–8). According to Guglielmo and Waters (2005), Roma slowly moved from being seen as migrants to be being acknowledged as a minority. With the help of non-governmental organizations (NGOs), activists, and various international organizations, Roma also for the first time came to be seen as a ‘European minority,’ one which the EU has some responsibility to protect (Van Baar 2011, 156, 157). Advocacy While migration and human rights violations brought Europe’s Roma to the attention of EU officials, specific EU policy responses regarding Roma evolved in large part due to the advocacy of Romani and pro-Roma non-governmental organizations. The EU accession process provided Roma and advocates for minority rights with new tools and fora in which to make claims at home and internationally (Csergő and Regelmann 2017, 218; Guglielmo 2004, 48; Ram 2003, 39; Ram 2010, 208) and many were supported with EU funds (Ram 2003, 39). With relatively few Roma in the 1990s being politically active or becoming elected leaders in their countries (see Vermeersch 2001), and even fewer with the interest and access to advocate at the international level, this mantle was initially taken up largely by international NGOs advocating on behalf of Roma at the EU (Ram 2010). Ram (2010) argued that the EU’s ‘policy shift’ regarding Roma could be explained by three intertwining factors: (1) the EU’s concerns about stemming illegal migration (‘interests’), (2) the development of EU human rights norms, and (3) international NGO advocacy. Over time, more and more activists turned to the EU for supranational policymaking regarding Roma in hopes of eliciting national reforms (Ram 2007, 494).

EU CONDITIONALITY TO IMPROVE THE SITUATION OF ROMA The EU’s initial approach to improving the situation of Roma in Europe was to require candidate countries in CEE to improve their situation as a precondition of membership. This began with the 1993 ‘Copenhagen criteria’ requirement to demonstrate ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’ (European Council 1993). Scholarship on EU conditionality regarding Roma has debated its effectiveness in engendering reforms, identified specific shortcomings of the approach, and highlighted the double standards in EU expectations of old versus new member states. The general conclusion of research on the EU’s initial foray into policymaking regarding Roma – i.e., its membership requirements and monitoring of candidate states – is that it was effective at and quite possibly essential in putting and keeping the issue on the agenda of CEE states but ineffective at bringing about substantive change in the lives of most Roma (see, for example, Vermeersch and Ram 2009). Roma Overlooked (at First) Roma did not feature prominently in the EU’s conditionalities until the late 1990s. Aside from not being the most prominent EU concern regarding CEE countries or minorities and the EU’s limited competence in this area, the EU lacked knowledge on the Roma’s situation, as is evident from the minimal, vague, and weak statements in its early evaluations of candidate countries (Ram 2010, 198–9). Moreover, most Roma in CEE had little interest or ability

254  Research handbook on minority politics in the European Union regarding lobbying the EU directly (Ram 2010, 201); nor did they have a common domestic political agenda or political party to represent their interests or a kin state to lobby for them at the European level (Barany 2002b; Ram 2001, 86). Some Roma activists were also reluctant to utilize EU membership conditions as a basis to protest their government’s policies as they did not want to be seen as hindering their country’s accession to the EU (Vermeersch 2006, 200). Nonetheless, this noticeably changed over time and Roma garnered a much more detailed and insistent focus in EU statements and reports (as well as funding) by the end of the decade (Ram 2010, 198–9; Vermeersch and Ram 2009, 68–9). Hughes and Sasse (2003, 16) find Roma (along with Russophone minorities) to be the most prominently addressed minority in the European Commission’s Regular Reports. EU ‘Requirements’ an Essential Trigger (with Limitations) Some scholars argue that EU requirements or expectations regarding Roma had an essential impact on candidate countries’ policies (without which there would have been little if any change) (see, for example, Barany 2002a, 281; Ram 2003). Sigona and Trehan (2009, 11) emphasize that EU enlargement in a variety of ways ‘has profoundly affected the trajectory of Romani politics.’ Many studies examined the EU’s influence on debates, policies, and practices in specific countries, and most find that policies or specific decisions that would affect Roma were changed as a result of EU conditionality, sometimes despite significant domestic resistance (see, for example, Ram 2003, Rechel 2008, Spirova and Budd 2008, Topidi 2003, Vermeersch 2003b). They also identified a whole host of limitations to this impact, including vague and inconsistent EU demands, double standards and poor EU models, specific interests of EU member states and candidate countries (particularly tied to migration in the case of Roma), persistent racist public attitudes, the tools (or lack of tools) available to particular minorities (e.g., strong minority political parties and kin states), the political party in power, the degree of EU interest and pressure on the particular issue at hand, and the lack of EU attention to implementation and enforcement (Ram 2003, 46–51; Topidi 2003; Vermeersch 2003b). Lack of Implementation While the EU substantially involved itself on the issue of Roma in CEE countries over the course of the accession process, scholars tend to agree that any positive impact of EU conditionality on the daily lives of most Roma was minimal (see, for example, Hughes and Sasse 2003, 26). Despite the continued reporting of violations of human rights of Roma, the formal adoption of institutions and procedures was favored over actually ending such violations (Hughes and Sasse 2003, 15; Van Baar 2011, 188). At most, this led to small ‘localized improvements while leaving the bulk of the problems untouched’ (Guy 2009, 38, cited in Van Baar 2011, 188). Hughes and Sasse (2003, 17) observe that ‘EU and candidate countries sometimes appear to be jointly acting out a charade on Roma policy’ in a bid to adopt non-existent ‘European standards’ with lip service filling in for ‘significant progress.’ Guglielmo (2004, 42, 43) finds that while European Commission expectations had an ‘immediate and significant’ positive impact, for example on the development of legislation to protect minorities and specific policies for Roma, the policies adopted are vague and have little political or public support for their implementation, ‘even from Roma communities.’ She highlights the

European Union Roma policy  255 importance of multi-level monitoring and evaluation to ensure that actions go beyond formal compliance to make a meaningful difference.1 While most of the literature exploring EU conditionality and Roma examines CEE countries’ policies or practices, some scholars have used the limited statistical available data to assess the impact ‘on the ground.’ For example, Spirova and Budd (2008) examined United Nations Development Programme survey data from 1997–2004 in the Czech Republic, Hungary, Bulgaria, and Romania and found improvements in poverty rates, unemployment, and education among Roma in all four, with more improvements among the countries that had just gained EU membership; they note, however, that the socio-economic situation of Roma remained much worse for Roma than for the majority in all cases (Spirova and Budd 2008, 98). Ram used data on the socio-economic situation (unemployment, education, housing, and health) of Roma several years after Romania and Bulgaria joined the EU and reports problems in almost all of these sectors in all EU countries surveyed, but ‘countries never subject to the EU’s conditions on Roma [i.e., old EU member states] fared worst or among the worst on many of these issues’ (2012b, 426). Surveys also suggested the persistence of ‘widespread discrimination and intolerance against Roma’ in both old and new EU members, but a better situation in some new members like Romania and Bulgaria than in many old EU members (Ram 2012b, 429). Many scholars have noted that the EU did not appear to be too concerned about the superficial adoption of policies. Despite its repeated criticism of the situation of Roma in CEE, these countries were admitted to the EU without having made significant improvements. As Guy (2009, 34) states, it is unlikely their membership was ever seriously as risk on this basis alone. In his study of three Central European countries, Vermeersch (2006, 197) suggests that only in Slovakia did it become a possible sticking point. It should be acknowledged that the legislation–implementation gap was not unique to Roma or to minority politics. From the beginning of the accession process, an elite-driven quick adoption of harmonized legislation was favored over building up broad public support and ensuring adopted policies would or could be effectively implemented (see Ram 2002). Moreover, the EU generally is less equipped to deal with policy implementation (which depends on member states) than with policy generation (Laffan 1997). Nonetheless, one might argue that the most controversial reforms that were made to satisfy the EU were the least likely to have permanent traction. Double Standards One of the major impediments to effective EU conditionality regarding Roma was the seeming hypocrisy of the EU asking countries that wished to join to adopt policies or practices that current EU member states did not adopt or uphold themselves. Examining the impact of minority policies on the situation of Roma in both old and new member states, Guglielmo (2004, 37) emphasizes that many of the same problems regarding Roma were present in both, but only new members were subject to the Copenhagen criteria, thus ‘creating an immediate double standard’ (see also Hughes and Sasse 2003, 13). Besides being hypocritical, this was also counter-productive to EU objectives. Whether they supported or opposed minority protections, government officials and activists in candidate countries could find EU examples to 1 At the time, Guglielmo led EUMAP (the European Union Accession Monitoring Program), which did exactly this with its Monitoring the EU Accession Process reports.

256  Research handbook on minority politics in the European Union support their stance, while any clear standards to apply were nowhere to be found (Ram 2001, 87). Thus, EU demands for changes within prospective CEE member states led to calls for EU members to make similar changes. As Johns argued, West European countries ‘should face the same recommendations as those put to the states of Eastern Europe’ (2003, 695) or – as Cashman (2008) puts it – ‘put [their] own house in order first.’ The EU was seen in the Czech Republic, for example, as ‘quick to criticise and unwilling to practise what it preaches’ (Cashman 2008, 203). These repeated critiques eventually bore fruit with convergence around EU-wide guidelines. As CEE countries began to gain EU membership, Guglielmo concludes her chapter ‘Roma and Muslims in an Enlarging EU’ on this hopeful note: At the outset of the enlargement project, the EU set out to transform post-communist Central and Eastern Europe through an infusion of not only economic assistance and investment, but of its common values—democracy, human rights, rule of law, and respect for and protection of minorities. In the process, it has created a higher standard for itself and growing consciousness of and commitment to the need for self-transformation in order to better exemplify the union of values it aspires to become. (Guglielmo, 2004, 57)

EU LAW: THE 2000 RACIAL EQUALITY DIRECTIVE AND ROMA The first step towards enforceable standards on the treatment of ethnic minorities applying to all EU members was the adoption of the 2000 Racial Equality Directive (2000/43/EC of 29 June 2000), which provided new opportunities for achieving equal protection under the law for Roma. The Directive prohibits discrimination on the basis of race or ethnic origin in employment, social security, healthcare, education, and access to housing and other public goods and services. It also required member states to have a designated body to promote equal treatment, assist victims of discrimination, and conduct independent surveys and reports on the issue. Its adoption was hailed as a significant achievement and for many years after could be considered ‘the centerpiece of EU action’ for addressing the situation of Roma, even though Roma were not its specific target and ethnicity was only one of the grounds on which anti-discrimination rules were adopted by the EU (Ram 2007, 494). The Directive was accompanied by a six-year Action Program to raise awareness and support the fight against discrimination and a call for proposals to support a European-level NGO to represent and defend the rights of Roma (Ram 2007, 497). Scholars studying the EU and Roma took up the task to examine how this Directive was implemented in different countries, how it affected Roma, and how it was used in both local and international courts, including the European Court of Human Rights. Those who study EU law generally found the Directive to be a blunt instrument in addressing the problems faced by Roma, especially as it is geared towards addressing individual victims of discrimination rather than discrimination against Roma as a group. It did lead to new laws and institutions in member states and a number of important landmark cases regarding Roma in national and international courts, many brought by the European Roma Rights Centre (Ram 2007, 505–9), but it also exposed a number of shortcomings. For example, Lahuerta examines the first substantive Court of Justice of the European Union case addressing discrimination against Roma, appearing no less than 15 years after the Directive entered into force, and argues that ‘individual litigation is not entirely appropriate to address systemic discrimination based on prejudices against a whole group’ (2016, 814). Judicial mechanisms

European Union Roma policy  257 are also needed that would enable collective cases to be brought on behalf of vulnerable groups like Roma (Dawson and Muir 2011; Lahuerta 2016). In her book on national and international legal minority protections and Roma, O’Nions uses the cases of citizenship and education to similarly argue that ‘the individualist emphasis of [existing] human rights instruments can be clearly seen to fail the Roma of Europe’ (2007, 97). She calls for an approach that complements human rights law and ‘emphasises the importance of cultural identity and autonomy in addition to the prevention of discrimination and promotion of equality’ (O’Nions 2007, 279). Besides calling for collective legal mechanisms or rights to address the specific situation of Roma, scholars and activists have called for requiring positive (affirmative) action; i.e., specific measures addressing Roma, which are allowed but not required under the Directive (see, for example, EU Network of Independent Experts on Fundamental Rights 2003, 179; Ram 2007, 508). O’Nions argues that ‘it is doubtful whether substantive equality can be realised in the case of the Roma in the absence of a positive duty on states to remedy past disadvantage and entrenched, discriminatory perceptions’ (2007, 90). Overall, while legal measures provided an added tool to support equality, the correction of discrimination through litigation, especially for Roma, has proven to be a slow and insufficient process, generally relies on NGOs to take up cases, leaves many discriminatory acts unchallenged, and remains reliant on changing norms (Kostadinova 2006; Ram 2015, 473–5).

EU ‘SOFT LAW’ AND THE FRAMEWORK FOR NATIONAL ROMA INTEGRATION STRATEGIES Despite fears or expectations that the EU would ‘substantially decommission’ much of its minority protection work after EU enlargement (see, for example, Hughes and Sasse 2003, 28), much of the attention to Roma continued as before because the precipitating factors (EU funds, EU law, NGO advocacy and monitoring, and Roma migrants) had not substantially changed (Ram 2012a). Advocates for Roma had long pushed for the EU to adopt a Roma-specific policy that went beyond pre-conditions for membership, encompassed all EU members (not just candidate countries), and was more targeted to the specific situation of Roma than the Race Directive. The 2011 adoption of an EU Framework for National Roma Integration Strategies up to 2020 (hereafter EU Framework) was thus noted as a historic achievement (Ram 2012a, 1197; Rostas 2019, 231). It did not, however, meet all of the expectations of activists, who ‘preferred an EU-wide strategy on Roma coordinated by the Commission and implemented in cooperation with member states’ (Rostas 2019, 159). The EU Framework builds on the 2005–15 Decade of Roma Inclusion and the Roma Education Fund, both launched at a 2003 conference on Roma organized by the World Bank and cosponsored with the Open Society Institute and the European Commission. The Decade prioritized employment, education, health, and housing, and participating states created National Action Plans to address the Decade goals. The EU Framework focused on the same four priority areas and asked all EU member states to design (or update) national Roma inclusion strategies by the end of 2011. The Framework – proposed by the Commission and endorsed by the European Council – was the culmination of a series of decisions by different bodies of the EU since 2004, including the adoption and endorsement of the Common Basic Principles on Roma Inclusion (Council of the European Union 2009) that emerged from the

258  Research handbook on minority politics in the European Union first meeting of the integrated European Platform for Roma Inclusion co-organized by the Commission and the Presidency of the European Council (Ram 2012a, 1196–200). The European Commission’s self-evaluation concluded that the Framework’s effectiveness has been ‘limited’ overall, though with ‘significant differences across areas and countries’ (2018, 4). Some small improvements were achieved (e.g., reduction in early school-leaving and greater participation in early childhood education), while there was no progress or even a worsened situation in others (e.g., no improvement in access to employment and increased segregation in education). In its latest Fundamental Rights report, the EU’s Fundamental Rights Agency (FRA) chapter ‘Roma Equality and Inclusion’ explains that ‘ten years of efforts at EU, international, national and local levels appear to have resulted in little tangible change’ (FRA 2020, 83). Scholarly work examining EU policy and Roma since the Framework’s adoption has been mostly in the form of critiques or explanations for this lack of progress and recommendations for the future. Most of these serve as longstanding critiques of EU policy or approaches regarding Roma, many also acknowledged by the Commission in its self-evaluations of the Framework, and they are likely to remain valid despite the European Commission’s adoption of a new strategy in 2020 and its partial response to a number of the criticisms. Diffuse Responsibility While many activists and some scholars have long called for the EU to take a larger role regarding treatment of Roma populations in its member states, the EU has also been criticized for doing just that. Even before the Framework was adopted, scholars noted that CEE governments were more than eager to ‘shift responsibility’ and ‘Europeanize’ their ‘Roma problem’ following EU enlargement (Ram 2012b, 430–31; Vermeersch 2002, 97; Vermeersch 2003a, 894–5). The late Romanian Roma activist Nicolae Gheorghe (2010) expressed his concern about this as Romania was set to adopt a new Roma strategy: ‘I think this is a bad idea because it will enable the Romanian authorities to shirk their responsibilities towards their fellow Romanian citizens by “Europeanising” the problem, in other words passing the problem onto the EU institutions and other member states.’ Kovats (2012), who at the time of writing also served as an adviser on Roma issues to the EU’s Commissioner for Employment, Social Affairs and Inclusion, explains that the European Commission was reluctant to ‘Europeanize’ Roma policy and seemingly absolve national governments of their primary responsibility, especially as the EU does not have enforcement power on social policy. Thus, he says, the Commission developed ‘a framework for national policies,’ ‘not an EU Roma policy.’ In this way, it can fund and rhetorically support good policies, while ‘it lacks the moral, legal or political authority to compel a state and society that is not yet willing to take the necessary steps to ensure that their Roma citizens enjoy equality of opportunity in every respect’ (Kovats 2012). Rorke agrees that ‘while there is no doubt that the European Commission could do more, the Commission is entirely correct in its insistence that the primary responsibility lies with national governments’ (2013, 10). When responsibility is shared, often no one is held responsible and accountable.

European Union Roma policy  259 Weak ‘Soft Law’ and Open Method of Coordination While some scholars and activists have argued the EU should be less involved on Roma policy and attention should be refocused on the obligations of member states, others argue that the EU should do more to enforce state action. Mirga-Kruszelnicka, in a report for the Open Society Foundations, argues that – while the adoption of the EU Framework was an important achievement and ‘the key driver forcing national governments to act,’ its non-binding nature has been its most serious limitation as states are not required to adopt specific measures or take any specific actions (2017, 7–8). Iusmen similarly critiques the soft law nature of the Framework, noting that ‘intentions’ of member states are prioritized over results, while there are no enforceable requirements for effective implementation of plans (2018, 434). While writing long before this strategy was adopted, Kostadinova similarly criticizes the soft law nature of the EU’s measures regarding Roma: ‘Instead of placing any legal obligations on its member states to ensure substantive equality, the EU has put forward policy recommendations and guidelines’ (2006, 6). Insufficient Attention to Discrimination and Antigypsyism There has long been a debate among scholars and activists alike about whether socio-economic living conditions or systematic discrimination is the root cause of the problems Roma face in Europe today, and which of these should be the focus of policymakers, or what the right balance is between addressing the two interrelated issues. Individual NGOs and international organizations have often chosen to focus on one or the other, depending in part on their own area of expertise. McGarry (2012) notes the EU’s dilemma in establishing a strategy that addresses both socio-economic issues (economic injustices or ‘redistribution’) and recognition of Roma as a group needing targeted attention (due to discrimination or ‘cultural injustice’). Rostas (2019) advocates for a broader framing around social justice and equality; equity would be an even better objective (Popova 2015, 5). When the EU began to pay attention to Roma (up until the late 1990s or early 2000s), civil and political rights – as emphasized by international NGOs and the Copenhagen criteria – were privileged above attention to socio-economic inequalities (Guy 2009, 29; Sigona and Trehan 2009, 8). Indeed, when the World Bank began to address Roma in its work in the early 2000s, after collecting data on the socio-economic situation of Roma in CEE, it aimed to add new perspectives and solutions (fitting its own poverty-eradication mandate) to an issue that had primarily been viewed through a human rights lens (Ram 2017). The EU’s 2011 Roma Framework then built on the experience of the World Bank’s Decade of Roma Inclusion and also sought to complement its own Racial Equality Directive with attention to socio-economic issues, having determined that ‘non-discrimination alone is not sufficient to combat the social exclusion of Roma’ (European Commission 2011, 3). Since then, many have called on the EU to refocus its Roma policy on discrimination, going beyond the Race Directive with specific measures to address systematic discrimination against Roma and antigypsyism (e.g., Gergely 2013, Iusmen 2018, Mirga-Kruszelnicka 2017, Rostas 2019). This is also the position taken by the European Roma Policy Coalition (ERPC), an EU-level coalition of Roma and pro-Roma NGOs, which argued for making the elimination of antigypsyism the core focus of the EU’s Roma policy (Fernández Díez and Sánchez-Rubio 2013).

260  Research handbook on minority politics in the European Union As defined by the Council of Europe’s European Commission against Racism and Intolerance (ECRI) (2011), ‘antigypsyism is a specific form of racism, an ideology founded on racial superiority, a form of dehumanisation and institutional racism nurtured by historical discrimination, which is expressed, among others, by violence, hate speech, exploitation, stigmatisation and the most blatant kind of discrimination.’2 Attacking antigypsism thus means addressing the ‘entrenched attitudes and prejudices of the majority population’ (Iusmen 2018, 435). Many have argued that without doing so, all other policies are likely to fail. The problems Roma face have sometimes been represented as their own fault due to cultural differences, thereby absolving majority communities of any responsibility (Vermeersch 2006, 200). A number of scholars have become convinced it is the majority communities that must change in order for the situation of Roma to substantively improve. While the EU has been successful in engendering formal compliance with its rules and guidelines, ‘human rights principles are not likely to be given anything more than lip service unless corresponding changes in contextual attitudes, behaviors, social norms, and political culture take place’ (Guglielmo 2004, 55). Given the ‘hostility towards Roma at all levels of society,’ enforcing the law as well as changing social norms will be essential to achieving Roma inclusion (O’Nions 2015, 107). ‘Government efforts will never be fully effective or wholeheartedly instituted until public attitudes have changed – not only in Central and Eastern Europe, but in the older Member States as well’ (Ram 2012b, 429; see also Ram 2014b). Or as Romanian human rights activist Valeriu Nicolae states, ‘Real inclusion will happen only when majorities stop expecting Roma leaders to solve what is a majority problem: European anti-Gypsyism’ (2012). Increasing the number of Roma in elected office and electing non-Roma who support Roma rights are also dependent on changing the political discourse and producing more positive attitudes towards Roma among majority populations (Nicolae 2012, Vermeersch 2001). Gergely provides a long list of measures that could be taken by member states to address antigypsyism (2013, 49–50). Too Much Targeted Attention Leads to Racialized Politics The debate on whether to address discrimination or socio-economic conditions is also tied to a larger, longstanding debate about targeting or mainstreaming. Should Roma be singled out with special policies, programs, and recognition, or should policies that address Roma be mainstreamed in various policy areas without reinforcing the idea that Roma are uniquely different from others with similar circumstances? The EU Framework answered calls for designing a policy that specifically addresses Roma. Explaining the ‘need for a targeted approach,’ the Commission states it is necessary to ‘ensure that national, regional and local integration policies focus on Roma in a clear and specific way, and address the needs of Roma with explicit measures to prevent and compensate for disadvantages they face’ (European Commission 2011, 4, emphasis in original). A number of scholars and some activists have criticized this approach for heightening stigmatization of Roma. First of all, special policies, even if intended to support inclusion, often have the opposite effect as Roma are seen (and depicted in the press and public discourse) as being given special privileges not available to others (Marushiakova and Popov 2015, 27; For a more thorough explanation from the Alliance against Antigypsyism, a coalition of organizations and individuals (including the ERGO Network), see Antigypsyism: A Reference Paper, July 2016, https://​ergonetwork​.org/​wp​-content/​uploads/​2017/​05/​Antigypsyism​-reference​-paper​.pdf. 2

European Union Roma policy  261 Ram 2014b, 35; Vermeersch 2012, 1197–8, Woodcock 2007, 505–14). Even forced relocation of Roma to segregated housing projects built with EU funds on the outskirts of town has been viewed by majority populations as ‘special privileges’ given only to Roma due to EU requirements (Woodcock 2007, 511–13). Since ‘special policies’ for Roma reinforce the idea that Roma are different from the general population, segregation or exclusion also becomes a logical government response (Marushiakova and Popov 2015, 25). McGarry states that ‘Roma require a policy intervention which simultaneously treats Roma the same as other EU citizens whilst also [recognizing] their difference’ (2012, 128). Van Baar and Vermeersch go beyond this, emphasizing the need for new ‘operational representations’ of Roma that break out of the limited views of Roma being in need of recognition (minority rights) or redistribution (development) policies; policymaking based on ‘thin’ representations of Roma as either ‘risky’ or ‘at risk’ is likely to only further their marginalization (2017, 122). Limited mobilization around Romani identity can also be partly explained by this ‘“stigmatized” identity’ (Vermeersch 2003a, 899). Rather than being seen as a group with an ethnic identity to be valued, they are characterized as a ‘social problem’ to be fixed with special programs and projects (Woodcock 2007) and a ‘burden on society’ (Rostas 2019, 163). Racism against Roma has also come to be seen as ‘normal’ across Europe (McGarry 2017; Ram 2014b, 36). Roma are ‘otherized’ in the press as a shared deviant population of foreign origin and culture, as opposed to the majority ‘European’ population (Woodcock 2007). By framing Roma as a group with problems that need to be addressed, some scholars argue that the EU’s Framework and other targeted programs and initiatives have racialized ‘the Roma’ and further contributed to some of the very problems that then need to be addressed. As Surdu and Kovats (2015) argue, a self-perpetuating cycle has been established whereby numerous programs and studies to address problems faced by Roma beget new knowledge and identification of problems to be addressed (through a special policy), reinforcing the idea of Roma as a distinct group with problems. This in turn contributes to further hostility towards Roma by disconnecting them from other citizens and helps create the very problems that then need to be addressed. Marushiakova and Popov explain this vicious cycle as a ‘Catch-22’; whatever special measures are adopted in this context ‘will only exacerbate the problems’ (2015, 28, 29). When the EU makes new inclusionary demands on member states, they are also unlikely to have any substantive effect because inclusionary responses will be incorporated into the existing exclusionary environment that ‘will not erase – and sometimes triggers – exclusionary actions and attitudes’ (Ram 2014b, 18–19, 32). Celebrate the positive and reinforce a positive ethnic identity; mainstream other policies Rövid (2011) discusses various dilemmas for making a European policy regarding Roma, including whether a human rights-based approach (supporting non-discrimination and inclusion) can be sufficient for Roma, what minority rights to protect for a diverse group if group-differentiated rights are needed, and how to recognize and differentiate Roma without further marginalizing them. Based on a review of government approaches under socialism, Marushiakova and Popov (2015) argue that a mainstreaming approach is necessary for a successful European policy. Roma do not need special policies to include them; they just need to be treated the same as other EU citizens. An explicit approach can, however, be effectively used in the realm of Roma culture (language, music, arts, etc.), supporting Roma identity without reinforcing marginality (Marushiakova and Popov 2015). On this point, McGarry (2012)

262  Research handbook on minority politics in the European Union similarly argues that economic inequality requires equal opportunity, but cultural inequality requires recognition and differentiation to achieve equal outcomes. Kovats (2020) argues for the promotion of ‘civic equality’ over ‘ethnic empowerment,’ stating that Roma identity needs to be depoliticized. The EU Framework’s recognition of Roma as a ‘transnational ethnic minority,’ he says, has done nothing to improve their socio-economic conditions. In studying Roma school segregation, O’Nions also argues for ‘an equality mainstreaming approach which brings Roma and non-Roma together’ (2015, 112). Policies must also be framed in a way that they are seen to benefit the country’s population as a whole and ‘encourages other social groups to accept the Roma as equal partners and co-citizens’ (Vermeersch 2012, 1209). Even poverty should be reframed as an inequality or social justice issue rather than a lack of ability, integration, or qualifications of Roma (Rostas 2019, 234). ‘Seeing’ Roma in new ways culturally, socially, and politically will help break down current frames and policies that tend to reinforce negative stereotypes (Van Baar and Vermeersch 2017). Need to Identify Target Group, Recognize Ethnicity and Diversity, and Gather Data to Monitor Progress A number of scholars criticize the EU’s continued use of the umbrella term ‘Roma’ and/ or the failure to clearly identify the target group of the Roma Framework (see, for example, Marushiakova and Popov 2015, Popova 2015, Rostas 2020). Noting the changing definitions of Roma by European organizations and the problems with encompassing very different groups (including the mostly sedentary Roma in CEE and West European groups with a nomadic tradition) under the same overarching Framework, Marushiakova and Popov argue it is difficult to have an effective policy without knowing who it is for; it also may be impossible to have an effective and coherent policy that covers such diverse groups ‘united only by an umbrella term’ (2015, 24; see also Rostas 2020, Rövid 2011). The EU leaves the definition and target group open to interpretation for each member state, but this has clear implications for policymaking. It allows member states to include or exclude whomever they wish, to create the same or different policies for different groups, and to report results without any clear validity or reliability. While international organizations including the EU have played an important role in generating some data regarding Roma to inform policymaking (Ram 2015), Rostas explains well why reliable national data collection at all levels is essential in order to set policy objectives and determine if they have been met; defining the target group is also essential to gathering this data (2019, 221–31). He indicates a variety of ways this can be done and holds that European institutions should propose a methodology to be used by all member states that includes how to identify who the policies will address and how to collect sensitive ethnic data. Recognizing ethnic identity would be a part of this (Rostas 2019). This needs to go hand in hand with an effective monitoring and evaluation process (see also Iusmen 2018, Popova 2015). Gathering data for effective policy design should also stem from an actual needs assessment, followed by targets, benchmarks with timelines, and an implementation and monitoring plan (Popova 2015). Brüggemann and Friedman note that similar issues with measurements and indicators were identified in monitoring and evaluation of the Decade of Roma Inclusion but not taken into account in the design of the EU Framework (2017, 4–5).

European Union Roma policy  263 Better Consultation, Participation, and Empowerment of Roma Needed Both the European Platform’s Principles on Roma Inclusion and the EU Framework state the necessity of Roma participation at all levels and in all steps of the policy process. Nonetheless, the actual participation of Roma has been criticized as insufficient. This is an ongoing critique of such processes and many of the same issues with participation were recognized in the Decade of Roma Inclusion, despite its own attempts to bring many Roma into discussions (Brüggemann and Friedman 2017, 3–4). As McGarry and Agarin explain (2014), participation is envisioned in a variety of ways in the Framework, but it does not move Roma high enough on their three levels of participation – from mere ‘presence’ to ‘voice’ to empowerment and ‘influence’ in order to have a meaningful impact on the policies that affect them. Who participates? The EU and NGOs have an interdependent relationship in the development of EU policy as the EU needs information regarding the situation of Roma and legitimacy and national support for its decisions, while NGOs have come to rely on the EU for funding, advocacy tools in the form of norms and EU policies, and other inputs (Ram 2011). The EU’s ‘preference for having a single, easily accessible interlocutor (or umbrella group) to clearly articulate the interests of a diverse and fragmented “community”,’ however, has sometimes engendered competition among Roma NGOs and resulted in ‘policy prescriptions that are not necessarily connected to local interests or concerns’ (Ram 2011, 235). As Nirenberg’s study of the European Roma and Travellers Forum (ERTF) attests, establishing collective, representative advocacy at the international level is not an easy task, yet ‘European-level policymakers concerned with Roma need some way of speaking with a large, diverse assembly of Roma community organizers and aspiring leaders’ (2009, 113). At the national level, governments often involve NGOs to the extent required (Ram 2011, 228). Advisory bodies have provided a vehicle for some Roma to make their opinions known to their governments. Yet, these bodies tend to have insufficient power and resources and those who participate in them do not have a clear mandate to represent ‘the Roma.’ As Klípa (2012) suggests, those who might contribute most to solving the problems of social exclusion of Roma are those who are the most excluded – but these individuals do not typically become Romani ‘representatives’ in advisory bodies. Moreover, decision-makers will be logically drawn to those who provide straightforward, professionally-packaged, quick solutions to fundamental problems, and ‘ordinarily, no one asks … how many Romani people share his opinion’ (Klípa 2012). In some cases, individuals may be coopted as Roma representatives to endorse a government’s position and gain community support for it (see, for example, Daniele 2011). Dependence of Roma NGO activists on top-down support from external donors has also dampened community-based grassroots collective action that might be garnered with more membership-based organizations, reduced trust in them, and increased competition among them (Rostas 2009). Roma need to be seen as real stakeholders and agents of social change in the design of policies that are supposed to help them, rather than as beneficiaries (Popova 2015, Rostas 2019). Concerns about ‘token’ representation remain, but even well-intentioned efforts at participation should be reframed as grassroots community development efforts with the Romani community identifying its own priorities. Rostas calls for deliberative methods and power-sharing arrangements to ensure the interests of all Roma groups and other marginalized

264  Research handbook on minority politics in the European Union groups are heard at the local level; the EU should also provide ‘clear rules and procedures’ for agreeing on proposed government actions (2019, 246, 166). Acton, Ryder, and Rostas also recognize the ideal of deliberation centered upon forms of inclusive community development and funding of community organizers to serve as community partners ‘to help shape institutional change’ (2013, 12), though they appear to settle on Roma NGOs as a necessary substitute (see also Rostas 2019, 244). Community dialogue and locally driven solutions, for example in education, would be better able to foster community support for government actions than any international prescriptions can, and may well be an essential element of successful desegregation policies (Ryder, Rostas, and Taba, 2014). What interests? Who is consulted also determines what interests are represented. For example, McGarry uses the activities, statements, and publications of ‘formal organizations which lobby or speak on their behalf’ to identify Roma’s ‘shared interests, which are inextricably linked to their ethnic group identity’ (2010, 142). In Romania, for example, he says these are the socio-economic interests found in national Roma inclusion strategies: education, health, employment, and housing, as well as political participation (McGarry 2010, 85). On the other hand, Trehan argues that the ‘NGOization of human rights’ led to a focus on ‘Roma rights’ promoted by international NGOs, neglecting core socio-economic concerns of Romani communities, while Roma voices ‘from below’ were not heard (2009, 56, 61, 63). Long-established (often non-Roma) NGOs that are more skilled at working with external partners and EU funding processes also benefited more from EU funds (Ram 2011, 235). Moreover, without a strong (or any) membership base, Romani NGOs are likely significantly influenced by donor interests, including those of international NGOs like the Open Society Foundations (Gheorghe 2013, 79–80; Nirenberg 2009, 100). The role of civil society will likely remain critical to ensuring effective policy prescriptions at the local, national, and international levels, especially with the relative absence of elected Roma to represent Roma views in their states or communities. There is a risk, however, of such organizations being seen as a substitute for ‘elected Romani representation’ (Vermeersch 2001). Enabling more Roma to gain elected positions, whether in Roma or non-Roma political parties, would help both in the design of policies affecting Roma and to combat racism, so that Roma might be seen ‘as an integral part of the population of the countries in which they live, both as ordinary citizens and contributors to the policy-making process’ (Vermeersch 2001). More Local Government and Non-Roma Involvement Needed Guy importantly points to the necessity of both local Roma involvement and non-Roma support at every step of any initiatives (2009, 43). As he explains, public support is needed so that local authorities do not ‘resist or sabotage’ policies handed down from national authorities. At the same time, appropriate centralized policies are needed to ensure the interests of minorities are represented in local deliberative mechanisms (Ryder 2015). Community-based initiatives working with local officials and civil society are also needed to promote dialogue, reduce antigypsyism, and build support for Roma inclusion, and EU bodies can facilitate this (Rorke 2013).

European Union Roma policy  265 The key for success is at the local and regional level. There lies the need for genuine dialogue, to improve relations, to overcoming prejudice, to enhance mutual trust, to put an end to segregation at school, to forced evictions and to spatial segregation … There lies the need for Roma to be involved, to be consulted and to participate fully in the process on an equal footing with the authorities and the rest of the public. (Gergely 2013, 52)

More Attention to Education Needed Education was not prioritized in many national strategies, but some argue it is crucial for achieving all other outcomes and needs to be given more attention (Brüggemann and Friedman 2017; O’Nions 2015, 103; Popova 2015). Even with the Framework’s too-low objective of Roma completing primary school, Friedman predicted it would likely have limited impact given that few countries (and mainly those with smaller Romani populations) made changes to their policy approaches after its adoption (2014, 18). As in other areas, a common EU template could have provided better guidance than general minimum guidelines wherein certain measures (e.g., links with Roma communities) are over-relied on versus measures that require government actions like supporting teacher competencies (Friedman 2014, 16–17). Education should also go hand in hand with attacking discriminatory attitudes as educating children in an environment where they feel (or are) socially excluded will not be successful.

NEW DIRECTIONS FOR RESEARCH As outlined above, academic research on the EU and Roma has followed the EU’s evolution in the construction of a policy, from its inception in response to Romani migrants and pending EU enlargement to a framework to guide national strategies that continues on in a new iteration today. Some scholarship has also gone hand in hand with advocacy as Roma activists become scholars and vice versa, many scholars cycle in and out of policy advisory and NGO roles, and other scholars examine and incorporate the voices of those ‘on the ground.’ The research covered here by no means encompasses the vast amount of literature produced in the past three decades about Roma. With a diverse population of different groups in more than two dozen countries in the EU (and beyond) who have faced a variety of issues studied in a wide range of academic disciplines and responded to with policy, advocacy, and programs from numerous NGOs and international organizations (with many insufficient responses to study), the literature is vast and impossible to encapsulate. Moreover, much of the literature examines specific local or national policies or programs in a single country and only indirectly addresses EU policy. There may very well be lessons learned and relevant findings from research that does not make its way to informing EU policy or politics or the study of minority politics. This leads to some possible directions for future research and knowledge-gathering. First, more cross-national studies and cross-disciplinary discussions may help to inform policy. Van Baar (2020, 171–2) calls for diversifying ‘the scholarly lenses through which we study Roma and their realities’ to break out of an ethnic-only or Roma-only perspective and analyze their situation comparatively with a variety of other minority and majority groups including migrants, Muslims, women, youth, and the working poor. Related to this, comparable EU policies (for example, on discrimination against other groups or education or employment of other marginalized populations) can be studied comparatively. Second, the EU’s approach to Roma (or specific aspects of it or issues it has addressed) can be compared and contrasted to various

266  Research handbook on minority politics in the European Union other international organizations that are also working on Roma issues. Third, more analyses of effective interventions or approaches that can be scaled up in one country or applied to other environments need to be undertaken or shared more widely. With few exceptions, the academic literature is a critique of policymaking and emphasizes what needs to change. While the urgency to raise concerns about policy and practice is real and has real-life consequences, the acknowledgment and analysis of successes that can be learned from or built upon is equally important. Fourth, there should be more attention to successful ways to reduce prejudice and ethnic discrimination, including analyses of the effectiveness of awareness-raising efforts by international organizations and national or local governments. Finally, as more data becomes available, more quantitative research may become possible and this can better inform national and EU policy.

REFERENCES Acton, Thomas, Andrew Ryder and Iulius Rostas, ‘Empowerment and the European Framework for National Roma Integration Strategies,’ Roma Rights [2013] 11–13. Barany, Zoltan, The East European Gypsies: Regime Change, Marginality, and Ethnopolitics (Cambridge: Cambridge University Press, 2002a). Barany, Zoltan, ‘Ethnic Mobilization without Prerequisites: The East European Gypsies,’ World Politics 54 [2002b] 277–307. Brüggemann, Christian, and Eben Friedman, ‘The Decade of Roma Inclusion: Origins, Actors, and Legacies,’ European Education 49 [2017] 1–9. Cashman, Laura, ‘“Put Your Own House in Order First”: Local Perceptions of EU Influence on Romani Integration Policies in the Czech Republic,’ Journal of Contemporary European Research 4/3 [2008] 193–208. Castle-Kanĕrová, Mit’a, ‘Round and Round the Roundabout: Czech Roma and the Vicious Circle of Asylum-seeking,’ Nationalities Papers 31/1 [2003] 13–25. Council of Europe, ‘Estimates of Roma Population in European Countries,’ 2 July 2012 update, http://​ hub​.coe​.int/​web/​coe​-portal/​roma/​. Council of the European Union, ‘Council Conclusions on Inclusion of the Roma,’ Luxembourg [2009], available at www​.consilium​.europa​.eu/​uedocs/​cms​_data/​docs/​pressdata/​en/​lsa/​108377​.pdf. Crowe, David M., ‘The International and Historical Dimensions of Romani Migration in Central and Eastern Europe’, Nationalities Papers 31/1 [2003] 81–94. Csergő, Zsuzsa, and Ada-Charlotte Regelmann, ‘Europeanization and Minority Political Action in Central and Eastern Europe’, Problems of Post-Communism 64/5 [2017] 215–18. Daniele, Ulderico, ‘“Nomads” in the Eternal City: Local Policies and Roma Participation in the “Emergency” Era,’ Géocarrefour 86/1 [2011] 15–24. Dawson, Mark, and Elise Muir, ‘Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma’, 48/3 Common Market Law Review [2011] 751–75. EU Network of Independent Experts on Fundamental Rights, ‘Report on the Situation of Fundamental Rights in the European Union and its Member States in 2002’ (2003), http://​ec​.europa​.eu/​justice​ _home/​cfr​_cdf/​doc/​rapport​_2002​_en​.pdf. European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No. 13 on Combating AntiGypsyism and Discrimination against Roma adopted on 24 June 2011 and amended on 1 Dec. 2020, CRI(2011)37rev, https://​rm​.coe​.int/​ecri​-general​-policy​-recommendation​-no​ -13​-on​-combating​-anti​-gypsyism​-an/​16808b5aee. European Commission, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions (5 April 2011).

European Union Roma policy  267 European Commission, ‘Report on the Evaluation of the EU Framework for National Roma Integration Strategies up to 2020.’ COM(2018) 785 final, 4 Dec. European Commission, ‘A Union of Equality: EU Roma Strategic Framework for Equality, Inclusion, and Participation.’ Communication from the Commission to the European Parliament and the Council. COM(2020) 620 final, 7 Oct. European Council, ‘Conclusions of the Presidency, Copenhagen, 21–22 June 1993,’ DOC SN 180/93, 13. Fernández Díez, Carolina, and Sánchez-Rubio, Belén, ‘ERPC’s Assessment of National Roma Integration Strategies: 2012 Report and Recent Developments,’ in Roma Rights 2013: National Roma Integration Strategies – What Next?, edition of Roma Rights: Journal of the European Roma Rights Centre [December 2013] 15–21. FRA (European Union Agency for Fundamental Rights) Fundamental Rights Report: 2020 (Luxembourg: Publications Office of the European Union). Friedman, Eben, Education in Member State Submissions Under the EU Framework for National Roma Integration Strategies, ECMI Working Paper #73 [2014], available at www​.ecmi​.de/​publications/​ ecmi-research-papers/73-education-in-member-state-submissions-under-the-eu-framework-for-natio nal-roma-integration-strategies. Gergely, Dezideriu, ‘Fighting Discrimination and Promoting Equality in the Context of the Roma Inclusion Policies in Europe,’ in Roma Rights 2013: National Roma Integration Strategies – What Next?, edition of Roma Rights: Journal of the European Roma Rights Centre [December 2013] 45–52. Gheorghe, Nicolae, ‘Romania is Shirking its Roma Responsibilities,’ The Guardian, 3 November 2010, www​.theguardian​.com/​commentisfree/​2010/​nov/​03/​romania​-shirking​-roma​-responsibilities. Gheorghe, Nicolae, ‘Choices to Be Made and Prices to Be Paid: Potential Roles and Consequences in Roma Activism and Policy-Making’ in Will Guy (ed.), From Victimhood to Citizenship: The Path of Roma Integration (Budapest: Kossuth Kiadó, 2013), 40–97. Guglielmo, Rachel, ‘Human Rights in the Accession Process: Roma and Muslims in an Enlarging EU’ in Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (Budapest: OSI/LGI, 2004), 37–58. Guglielmo, Rachel, and Timothy William Waters, ‘Migrating Towards Minority Status: Shifting European Policy Towards Roma,’ 43/4 Journal of Common Market Studies [2005] 763–86. Guy, Will, ‘EU Initiatives on Roma: Limitations and Ways Forward’ in Nando Sigona and Nidhi Trehan (eds), Romani Politics in Contemporary Europe: Poverty, Ethnic Mobilization and the Neoliberal Order (New York: Palgrave, 2009). Hughes, James, and Gwendolyn Sasse, ‘Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEECs,’ 1 Journal on Ethnopolitics and Minority Issues in Europe [2003] 1–37. Iusmen, Ingi, ‘“Non multa, sed multum”: EU Roma Policy and the Challenges of Roma Inclusion,’ 40/4 Journal of European Integration [2018] 427–41. Johns, Michael, ‘“Do as I Say, Not as I Do”: The European Union, Eastern Europe and Minority Rights,’ 17/4 East European Politics and Societies [2003] 682–99. Klípa, Ondřej, ‘Commentary: How Should Romani Representatives be Appointed?’ ROMEA, 29 October 2012, www​.romea​.cz. Kostadinova, Galina, Substantive Equality, Positive Action and Roma Rights in the European Union (London: Minority Rights Group International, 2006). Kovats, Martin, ‘The EU’s Roma Role,’ Open Democracy, 11 May 2012, www​.opendemocracy​.net/​ martin​-kovats/​eus​-roma​-role. Kovats, Martin, ‘Roma Integration: Civic Equality or Ethnic Empowerment?’ Progressive Post, 23 July 2020, https://​progressivepost​.eu/​spotlights/​roma​-integration​-civic​-equality​-or​-ethnic​-empowerment. Laffan, Brigid, ‘From Policy Entrepreneur to Policy Manager: The Challenge Facing the European Commission,’ 4/3 Journal of European Public Policy [1997] 422–38. Lahuerta, Sara Benedi, ‘Ethnic Discrimination, Discrimination by Association and the Roma Community: Chez,’ 53/3 Common Market Law Review [2016] 797–817. Marushiakova, Elena, and Vesselin Popov, ‘European Policies for Social Inclusion of Roma: Catch 22?’ 3/5 Social Inclusion [2015] 19–31.

268  Research handbook on minority politics in the European Union Matras, Yaron, ‘Romani Migrations in the Post-Communist Era: Their Historical and Political Significance,’ 13/2 Cambridge Review of International Affairs [2000] 32–50, DOI: 10.1080/0955757000 8400297. McGarry, Aidan, Who Speaks for Roma? Political Representation of a Transnational Minority Community (London: Continuum, 2010). McGarry, Aidan, ‘The Dilemma of the European Union’s Roma Policy,’ 32/1 Critical Social Policy [2012] 126–36. McGarry, Aidan, Romaphobia: The Last Acceptable Form of Racism (London: Zed Books, 2017). McGarry, Aidan, and Timofey Agarin, ‘Unpacking the Roma Participation Puzzle: Presence, Voice and Influence,’ 40/12 Journal of Ethnic and Migration Studies [2014] 1972–90. Mirga-Kruszelnicka, Anna, Revisiting the EU Roma Framework: Assessing the European Dimension for the Post-2020 Future (Open Society Foundations, March 2017), available at www​.op​ensocietyf​ oundations​.org/​publications/​revisiting​-eu​-roma​-framework​-assessing​-european​-dimension​-post​-2020​ -future. Nicolae, Valeriu, ‘Roma Inclusion: Up to the Majority’, Eurozine, 24 February 2012, www​.eurozine​ .com/​roma​-inclusion​-up​-to​-the​-majority/​. Nirenberg, Jud, ‘Romani Political Mobilization from the First International Romani Union Congress to the European Roma, Sinti and Travellers Forum,’ in Nando Sigona and Nidhi Trehan (eds), Romani Politics in Contemporary Europe: Poverty, Ethnic Mobilization, and the Neoliberal Order (Palgrave Macmillan, 2009), 94–115. O’Nions, Helen, Minority Rights Protection in International Law: The Roma of Europe (Aldershot: Ashgate, 2007). O’Nions, Helen, ‘Roma Expulsions and Discrimination: The Elephant in Brussels,’ 13 European Journal of Migration and Law [2011] 361–88. O’Nions, Helen, ‘Narratives of Social Inclusion in the Context of Roma School Segregation,’ 3/5 Social Inclusion [2015] 103–14. Popova, Zora, ‘Roma’ Policy Making: Key Challenges & Possible Solutions, ECMI Brief #34, January 2015, available at www​.ecmi​.de/​publications/​issue​-briefs/​roma​-policy​-making​-key​-challenges​-and​ -possible​-solutions. Ram, Melanie H., ‘Minority Relations in Multiethnic Societies: Assessing the European Union Factor in Romania,’ 1/2 Romanian Journal of Society and Politics, special issue, ‘Romania and the European Union’ [November 2001] 63–90. Ram, Melanie H., ‘Built by Association: Legislating for the West in EU Candidate States’ in David Phinnemore and Peter Siani-Davies (eds), South-Eastern Europe, the Stability Pact and EU Enlargement (Cluj: European Studies Foundation Publishing House, 2002), 130–55. Ram, Melanie H., ‘Democratization through European Integration: The Case of Minority Rights in the Czech Republic and Romania,’ 38 Studies in Comparative International Development [2003] 28–56. Ram, Melanie H., ‘Anti-Discrimination Policy and the Roma: Assessing the Impact of EU Enlargement,’ 3 Croatian Yearbook of European Law and Policy [2007] 491–514. Ram, Melanie H., ‘Interests, Norms, and Advocacy: Explaining the Emergence of the Roma onto the EU’s Agenda,’ 9/2 Ethnopolitics [June 2010] 197–217. Ram, Melanie H., ‘Roma Advocacy and EU Conditionality: Not One without the Other?,’ 9/2 Comparative European Politics [March 2011] 217–41. Ram, Melanie H., ‘Legacies of EU Conditionality: Explaining Post-Accession Adherence to Pre-Accession Rules on Roma,’ 64/7 Europe-Asia Studies [2012a] 1191–218. Ram, Melanie H., ‘Lost in Transition? Europeanization and the Roma,’ 364 L’Europe en Formation [2012b] 417–34. Ram, Melanie H., ‘European Integration, Migration and Representation: The Case of Roma in France,’ 13/3 Ethnopolitics [2014a] 203–24. Ram, Melanie H., ‘Europeanized Hypocrisy: Roma Inclusion and Exclusion in Central and Eastern Europe,’ 13/3 Journal on Ethnopolitics and Minority Issues in Europe [2014b] 15–44. Ram, Melanie H., ‘International Policy and Roma Education in Europe: Essential Inputs or Centralized Distractions?’ 61/4 Alberta Journal of Educational Research [2015] 465–83.

European Union Roma policy  269 Ram, Melanie H., ‘International Organization Autonomy and Issue Emergence: The World Bank’s Roma Inclusion Agenda,’ 23/4 Global Governance: A Review of Multilateralism and International Organizations [2017] 565–82. Ram, Melanie H., and Thomas T. Holyoke, ‘From the Sidelines to the Headlines: How the Roma Gained a “Voice” in European Politics.’ Paper presented at the Annual Meeting of the American Political Science Association, Philadelphia, Pennsylvania, 2003. Rechel, Bernd, ‘What Has Limited the EU’s Impact on Minority Rights in Accession Countries?’ 22/1 East European Politics and Societies [2008] 171–91. Rorke, Bernard, ‘What Future for the EU Framework? What Prospects for Roma Inclusion?’ in Roma Rights 2013: National Roma Integration Strategies – What Next?, edition of Roma Rights: Journal of the European Roma Rights Centre [December 2013] 5–10. Rostas, Iulius, ‘The Romani Movement in Romania: Institutionalization and (De)mobilization in Romani Politics’ in Nando Sigona and Nidhi Trehan (eds), Romani Politics in Contemporary Europe: Poverty, Ethnic Mobilization and the Neoliberal Order (Basingstoke: Palgrave Macmillan, 2009). Rostas, Iulius, A Task for Sisyphus: Why Europe’s Roma Policies Fail (Budapest: Central European University Press, 2019). Rostas, Iulius, ‘EU Roma Framework: Listening First! The Post 2020 EU Roma Policy: How to Avoid Future Failures,’ Progressive Post, 23 July 2020, www​.progressivepost​.eu/​debates/​next​-social/​eu​ -roma​-framework​-listening​-first​-the​-post​-2020​-eu​-roma​-policy​-how​-to​-avoid​-future​-failures. Rövid, Márton, ‘One-Size-Fits-All-Roma? On the Normative Dilemmas of the Emerging European Roma Policy,’ 21/2 Romani Studies [2011] 1–22. Ryder, Andrew Richard, ‘Gypsies and Travellers: A big or Divided Society?’ 43/1 Policy & Politics [2015] 101–17. Ryder, Andrew Richard, Iulius Rostas and Marius Taba, ‘Nothing about Us without Us: The Role of Inclusive Community Development in School Desegregation for Roma Communities,’ 17/4 Race, Ethnicity and Education [2014] 518–39. Sigona, Nando, and Nidhi Trehan, ‘Introduction: Romani Politics in Neoliberal Europe’ in Nando Sigona and Nidhi Trehan (eds), Romani Politics in Contemporary Europe: Poverty, Ethnic Mobilization and the Neoliberal Order (Basingstoke: Palgrave Macmillan, 2009). Sobotka, Eva, ‘Romani Migration in the 1990s: Perspectives on Dynamic, Interpretation and Policy,’ 13/2 Romani Studies [2003] 79–121. Spirova, Maria, and Darlene Budd, ‘The EU Accession Process and the Roma Minorities in New and Soon-to-be Member States’, 6 Comparative European Politics [2008] 81–101. Surdu, Mihai, and Martin Kovats, ‘Roma Identity as an Expert-Political Construction,’ 3/5 Social Inclusion [2015] 5–18. Topidi, Kyriaki, ‘The Limits of EU Conditionality: Minority Rights in Slovakia,’ 4/1 JEMIE [2003] 1–37. Trehan, Nidhi, ‘The Romani Subaltern within Neoliberal European Civil Society: NGOization of Human Rights and Silent Voices’ in Nando Sigona and Nidhi Trehan (eds), Romani Politics in Contemporary Europe: Poverty, Ethnic Mobilization and the Neoliberal Order (Basingstoke: Palgrave Macmillan, 2009) 51–71. Tremlett, Annabel, ‘Making a Difference without Creating a Difference: Super-diversity as a New Direction for Research on Roma Minorities,’ 14/6 Ethnicities [2014] 830–48. Van Baar, Huub J.M., The European Roma: Minority Representation, Memory, and the Limits of Transnational Governmentality (Dissertation, Faculty of Humanities, University of Leuven, 2011). Van Baar, Huub J.M., ‘Governing the Roma, Bordering Europe: Europeanization, Securitization, and Differential Inclusion’ in Huub J.M. van Baar and Angéla Kóczé (eds), The Roma and Their Struggle for Identity in Contemporary Europe (New York: Berghahn Books, 2020), 153–78. Van Baar, Huub J.M., and Peter Vermeersch, ‘The Limits of Operational Representations: Ways of Seeing Roma beyond the Recognition-Redistribution Paradigm,’ 3/4 Intersections: East European Journal of Society and Politics [2017] 120–39. Vermeersch, Peter, ‘The Roma in Domestic and International Politics: An Emerging Voice?’ European Roma Rights Centre, 7 November 2001, www​.errc​.org/​cikk​.php​?cikk​=​1274. Vermeersch, Peter, ‘Ethnic Mobilisation and the Political Conditionality of European Union Accession: The Case of the Roma in Slovakia,’ 28/1 Journal of Ethnic and Migration Studies [2002] 83–101.

270  Research handbook on minority politics in the European Union Vermeersch, Peter, ‘Ethnic Minority Identity and Movement Politics: The Case of the Roma in the Czech Republic and Slovakia,’ 26/5 Ethnic and Racial Studies [2003a] 879–901. Vermeersch, Peter, ‘EU Enlargement and Minority Rights Policies in Central Europe: Explaining Policy Shifts in the Czech Republic, Hungary and Poland.’ 1 JEMIE [2003b] 1–32. Vermeersch, Peter, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe (New York: Berghahn Books, 2006). Vermeersch, Peter, ‘Reframing the Roma: EU Initiatives and the Politics of Reinterpretation,’ 38/8 Journal of Ethnic and Migration Studies [2012] 1195–212. Vermeersch, Peter, and Melanie H. Ram, ‘The Roma’ in Bernd Rechel (ed.), Minority Rights in Central and Eastern Europe (New York: Routledge, 2009), 61–73. Woodcock, Shannon, ‘Romania and EUrope: Roma, Rroma and Ţigani as Sites for the Contestation of Ethno-National Identities,’ 41/5 Patterns of Prejudice [2007] 493–515.

PART IV THE POLITICS OF COHESION

14. European Union regional policy and national minorities Tamara Hoch

INTRODUCTION Over the past two decades, minority studies started to claim that we should look beyond the protection paradigms as the key method to ensure the rights of national minority groups.1 Research shifted towards claiming that minority rights can be fulfilled through means other than legal protection (Palermo and Woelk, 2003/04; Ahmed, 2010; Malloy, 2013). One influential example is the so-called ‘law of diversity’, which proposed a shift beyond protection towards empowerment of national minorities (Guella et al., 2013: 2), by emphasising the importance of self-empowerment, participation and cooperation. Characteristic of this approach in a nutshell is that protection of minorities needs to be considered as a ‘transversal and shared objective to be realised by different actors and instruments in a combined approach’ (Palermo and Woelk, 2003/04: 7). Although a coherent approach needs to ensure that distinct identities and minority characteristics are safeguarded and allowed to flourish, national minorities also make claims that are important for entire (and majority) populations, and their claims are changing as much as social reality changes in Europe. National minority demands include access to a ‘good life’ (Malloy, 2010b) and the right to participate in the management of regional affairs (Malloy, 2011: 52); the right to effective participation in public life (Marko, 2008); the right to economic and social cohesion (Veenman, 2003/04); the right to cooperate across boundaries and with the minority’s kin-state (Klatt and Kühl, 2006/07); and the right to participate in cultural activities that stimulate diversity and heritage preservation (Ahmed and Hervey, 2003/04). But national minorities have also demonstrated an increased interest in participation in politics across different levels, not least a growing interest in the European level (McGarry and Keating, 2006). With this, several new concepts have accompanied minority studies through the past decades. Not only are national minorities concerned with protection, recognition and anti-discrimination legislation, but there is also a general will to be considered as equal citizens, to help develop their own territory, to become more visible. This trend has not been overseen by scholar work. Many studies consider the development and apply new approaches and mechanisms to the study of national minorities. Some recent approaches have suggested that national minority groups should not be viewed as mere objects or recipients of legal standards, but also as subjects of standards and policies (Malloy, 2013) by allowing national minorities to affect the pace of the policy that applies to them and to have a say in the drafting of the policy, in negotiation and in its implementation. One of the key distinctions between protection and the latter set of approaches is that in the former, states are often assumed to be the primary agents of implementation and the end of the ‘protection approach’ is signalled by assessing the degree of improvement in the enjoyment of rights by the minority subjects themselves (ibid.).

1

‘National minority group’ will be the term used in this chapter due to its relevance in Europe.

272

European Union regional policy and national minorities  273 Approaches such as empowerment suggest that individuals and groups can become agents of change, thus advocating the use of bottom-up strategies. Despite the consensus that minority rights in a European Union (EU) context are far from satisfactory and that the EU institutions need to develop clearer mechanisms and a rights portfolio regarding various minority groups, the EU has installed a context and political setting which constitutes a set of new possibilities for minorities.

THE RELEVANCE OF EUROPEAN-LEVEL POLICIES FOR MINORITY GROUPS: FROM PROTECTION TO PRESERVATION AND PROMOTION ASPECTS A couple of decades ago, EU regional policy would have not been considered as a relevant development for national minorities in minority studies. But EU politics have evolved, and they have deeper impact and reach many more domestic policy fields. There is hardly any policy field at the national level that has remained untouched by the EU and its deep political commitment across the EU member states. This has resulted in several domestic rearrangements, the setting-up of institutions across different levels, detailed but highly cross-cutting policymaking, the introduction and reworking of legal documents, and treaties and cooperative agreements, as well as the birth of numerous creative arrangements such as specialised networks, new cooperative structures, etc. With all this novelty and complex layers of politics, actors and institutions, the EU institutions have not managed to reach consensus on what a portfolio of minority rights could look like. However, this does not mean that the EU’s politics and its policies leave European minority populations untouched, even if minorities as such are not the key objects of many different policy aims. There is a set of policies that have proved relevant for minorities, improved their visibility and helped to promote their lifestyles. For example, EU language and culture policy (Article 167 of the Treaty on the Functioning of the European Union; TFEU) are defined around commitments made by the EU to respect cultural and linguistic diversity,2 while EU education policy (Article 165 TFEU) reaffirms the role of cultural and linguistic diversity as an important aspect of education, for which the EU should take supportive and promotional measures. The diversity rhetoric appears in the EU treaty under a number of policy areas (Article 3.3 of the Treaty on European Union, or TEU; 165.1 TFEU; 167.1 TFEU; 207.4 TFEU) and has been loaded with more detailed goals. By making use of the subsidiary basis (Article 5.3 TEU), the implementation of the diversity principle in the area of culture, for instance, has required the EU to ‘support and supplement the member states’ in their actions to fulfil the objectives of the policy (Topidi, 2010: 98). The resources which function in this way are aimed at supplementing particular policy areas without superseding domestic competences and without entailing harmonisation of domestic law. Instead of passing legislation which harmonises domestic legislation, the EU can pass binding acts in these areas, such as political ideas, soft law in form of guidance on best practice, monitoring or other legal incentive measures (Craig and De Búrca, 2011: 86). Of relevance to national minority groups, the above forms of regulation are most common in the fields of culture and language, and financial incentives are provided for regional development (Toggenburg, 2008: 2 See Article 3 (3) TEU; 167 TFEU; and Article 22, Charter of Fundamental Rights of the European Union.

274  Research handbook on minority politics in the European Union 100; Ahmed, 2010: 278). This category of soft law rests on a number of different mechanisms, such as recommendations, Commission opinions, policy guidelines, action plans and EU resolutions, but also recommendations by other international organs. Although this style of policy regulation and implementation is sometimes argued to be a loose form of governance due to the lack of clear prescriptions on implementation, it also instigates a new readiness relevant for national minority groups as it contributes to keeping the issue alive and can generate both direct and indirect pressure on member states. In sum, although there is a lack of a clear EU minority policy, members of minorities can benefit from several policy fields as an opportunity to fulfil aspects other than protection. What is enabled through EU policies is rather supportive of the preservation and promotion of culture, language and lifestyles and of enabling political participation at different levels and visibility in the minority’s own region. This chapter looks at the EU regional policy and how this can help to strengthen and support the promotion of national minority groups and their identities within the territories in which the groups are residing. For such promotion and increased visibility of a certain minority, its culture and language within a given region, aspects of social and economic integration are important, which in turn requires increased access to participation and ways to have the minorities’ voice heard across various levels, not least at the regional level. The key objectives of EU regional policy are to help develop economic and social cohesion, for which the policy drafters have identified that there is a need to reduce gaps between the different levels of development in various European regions (Article 174 TFEU). For that to be achieved, spreading greater growth and competitiveness need to be aimed at through the many projects. In order to achieve this goal and contribute to improvements in different regions, a financial agenda was established and introduced for specific programmes and projects for many regions and towns, often asking for as much regional and local involvement as possible. National minorities are often residing in well-defined regions with which they identify and for which their interest in regional or local affairs is most often very strong. Aspects of participation are, however, not only addressed by the EU and the regional policy. The Council of Europe has also increasingly demonstrated an interest in establishing a set of standards which could promote and facilitate the participation of national minorities. Articles 15 and 17 of the Framework Convention for the Protection of National Minorities (FCNM) are both devoted to the principle of participation. While Article 15 is concerned with aspects creating necessary conditions that would make it easier for national minorities to participate in matters affecting them, Article 17 sets out the right for networking across borders and across regions as well as internationally. EU regional policy, the right to participation (FCNM) and the right to cross-border cooperation highlight objectives which are relevant for the promotion of national minority groups and their identities. By promoting ideals on participation and cooperation and by introducing formal rules which encourage involvement of national minority groups in, for instance, the management of regional affairs, better ground for promoting the existence and functions of national minority groups within minority-inhabited territories is established. Figure 14.1 illustrates the plethora of norms, principles and policies that are relevant for national minorities within the current European context. As aforementioned and as will be further discussed in this chapter, one needs to look across several policy areas within the EU frameworks and the institutional setting in order to understand the ways in which the EU touches upon the issue of national minorities. At the same time, one also needs to acknowledge the shifting trend in minority studies, which is no longer only about ensuring protection

European Union regional policy and national minorities  275

Source: Hoch-Jovanovic (2014).

Figure 14.1

EU frameworks and protection, preservation and promotion of minorities

through legal principles, but there is also a growing need to provide necessary conditions for other aspects, such as promotion and participation and to ensure that national minorities have equal access to democratic institutions as other European citizens.

REGIONAL POLICY: A SUPPORT FOR PROMOTION AND PARTICIPATION OF MINORITY POPULATIONS? EU regional policy has its origins in the Treaty of Rome that founded the European Economic Community in 1957. And although this policy field has grown and developed since then, the fundamental aims remain at the core of the policy, namely to reduce disparities between regions through different economic assistance programmes (Articles 174–8 TEU). Since the introduction of the regional policy, there have been thousands of periodic initiatives, budgetary develop-

276  Research handbook on minority politics in the European Union ments, the setting-up of institutions to monitor the implementation of the policy and its results, and the setting-up of agencies to assess forms of governance. In all, regional policy has become not only one of EU’s larger policy fields but also a highly relevant aspect across many politics levels and led to changes in the many levels. It has given rise to new forms of viewing regions and planning, and also changes in who can participate and have a say in regional development. The legal basis and authority that the EU holds in the area of regional development is well established within EU treaties. Article 3 TEU declares that the EU shall ‘promote territorial cohesion’ among the member states as one of the key objectives of the Union. This objective is furnished with a list of objectives for the fulfilment of EU regional policy, the form of governance to be used and a financial scheme for its implementation. Article 174 TFEU specifies that the EU has the competence to strengthen the economic and social cohesion of the EU, with particular attention given to ‘reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions’. In general, the policy aims at making regions more equal, which may positively affect minorities living in poorer or peripheral regions. Article 175 TEU reads that ‘member states shall conduct their economic policies in coordination with one another in order to attain the aim of reducing regional disparities’. Similarly, the formulation and implementation of EU policies and actions, including the implementation of the internal market, shall take into account the objectives set out in Article 174 and shall contribute to their achievement. This general policy objective is funded through Structural Funds, the European Agricultural Guidance and Guarantee Fund, the Guidance Section, the European Social Fund, the European Regional Development Fund, the European Investment Bank and the other existing financial instruments. Nearly a third of the entire EU budget is provided on a periodic basis, directly related to the achievement of certain regional policy objectives. The chief aims of the overall funding can be sorted into: (1) promoting the development and structural adjustment of regions whose development is lagging behind, (2) encouraging economic and social conversion of areas facing structural difficulties and (3) the modernisation of policies and systems of education, training and employment (Psychogiopolou, 2006). Possibilities for the promotion of minority groups and their identities through regional development can be linked to the practical consequences stemming from EU regional development policy and the economic assistance attached to this policy domain in Articles 174–8 of the TFEU. This includes action which aims to produce better education output, increased employability, encourage industrial growth and social development of regions (Ahmed, 2011: 104). EU regional development policies are implemented through periodic initiatives and funded through budgetary schemes. Within the bulk of the regional policy is also the idea that regional policy does not necessarily need to run through the logic of the centralised state; instead it incorporates subsequent levels for implementation and management of regional questions. Basically, when contrasted with exclusive national control over regional matters and distribution of funds, many arrangements emanating from European-initiated programmes on local or territorial cooperation require that certain decision-making mechanisms are facilitated and devolved to regional levels (Batt and Amato, 1998). This is relevant for minority groups living in fixed regions and clustered territories, especially where they constitute a large part of the population. Some of the minority-relevant gains which emerge with EU-induced regional policy are especially reflected in the support which can be used to promote minorities to engage in the management of regional development. This can help to ensure cultural survival but also the possibility of promoting cultural traits of regions, which often only minority

European Union regional policy and national minorities  277 members are thoroughly aware of. As such, allowing national minorities to join the management of regional development, or to have a say in it, and to cooperate across borders with their kin-state, can contribute to the promoting of a given national minority in a given region. This policy innovation is highly central for the issue of promotion of national minority groups and their cultural traits in specific regions, enabling minorities to participate in the management of regional affairs (Malloy, 2011: 52). Another aspect of promotion addressed by European integration and recent norms and rules is the right to cooperate across state boundaries. As such, regional development policies and cross-border cooperation can add support to activities that stimulate promotion, as promotion of national minorities and their identities is intrinsically linked to abilities to steer developments through participation.

EU REGIONAL POLICY AND CHANGED FORM OF GOVERNANCE EU regional policy also often encourages an alternative form of governance for the sake of more effective implementation and achievement the policy’s goals. While the policy aims at reducing disparities between Europe’s regions, a central object for many minority groups, such goals require forms of implementation through the spread of governance, across different political levels and through the involvement of various political actors. Some studies have pointed to this automatic development linked to EU regional policy as representing potential opportunities for national minorities across European regions to become part of development strategies (McGarry and Keating, 2006: 10). Next to facilitated access to resources in terms of funds for European regions in an attempt to reduce disparities between regions, the regional policy has sometimes called upon the development of new activities which can facilitate political and societal participation of minorities. The politics of regional integration can as such help to ascertain the role and visibility of minority groups in minority-inhabited regions, despite the fact that the EU treaty content on regional policy does not relate to minorities per se (Ahmed, 2011: 104). Malloy has suggested that EU regional policy, for instance, addresses issues which are at the core of minority rights in Europe, namely the right to participate in the management of regional affairs and the right to cooperate across boundaries (2011: 52). As the EU provides new instruments and principles for socio-economic integration through regional development policies, it is also likely to contribute to the promotion of minority participation, supporting the cultivation of identities and cultures. That is, socio-economic integration and the participation that it requires can help to make regions, or the homelands of minorities, more attuned to the visibility of the minority culture in the region. This can help to ensure that new forms for cultivating minority cultures, languages and other traditions are in place for future generations, in particular through new forms of cooperation in relation to European regional policy implementation and cross-border cooperation. Initially, multilevel governance was used to describe EU policy and implementation processes, by acknowledging the involvement of multiple actors at different levels. More precisely, it was the implementation of EU regional and cohesion policy which anchored and made multilevel governance a central part in EU studies (Marks et al., 1996). Early on it was argued that the policy objectives of EU cohesion and regional policies could best be achieved through the multiplication of actors, rather than through two-level interaction (Warleigh,

278  Research handbook on minority politics in the European Union 2006: 79). Similarly, it also posits the need for different cooperative and networking capacities across several levels, in which multiple actors are necessary in order to implement the policy emanating from the European level (Aalberts, 2006). With this, new emphasis was attached to subnational actors within EU policymaking. From these approaches, the so-called partnership principle developed, which according to Marks and colleagues stems from the practical consequences associated with implementing EU cohesion policy and cooperation between various actors that this required. The partnership principle highlighted the way by which multiple actors may participate in one given policy area, and as such attain new roles due to the interdependent relations which ensued (Marks et al., 1996). At the same time, Marks et al. also argued that the resultant partnership caused a so-called ‘melding of power’ (ibid.). this means that power started to be delegated upwards or downwards, opening up and providing a solution to better policy implementation. New actors become moulded into such paradigms, either voluntarily or through prescribed rules. Bache et al. (2020) observed an evolution of new participation patterns based on the idea of partnership in traditionally centralised states in Europe, arguing that this was partly a consequence of EU policymaking and the policy styles advanced by the EU. For national minority groups, the contribution of multilevel governance lies in its ability to compensate actors for their lack of domestic participation and the possibilities it offers to act in new arenas by also providing opportunities for empowerment. Research linking multilevel governance and subregions has described multilevel structures as more attuned to national minority groups that normally lack formal and official power structures domestically (Malloy, 2005), given that the dispersal of power and nested governance can constitute a challenge to traditional nation-state politics and full sovereignty over people (McGarry and Keating, 2006). The emergence of European rules and norms onto the regional level is relevant as many national minority groups possess (strong) regional affiliations which often take precedent over the national, so multilevel governance can build on a different consciousness rooted in ethnicity and nationality. National minorities are often complex political entities which are split between regional, national and external dimensions (Brubaker, 1996). This also strikes at the heart of ongoing changes during times of European integration and is associated with territorial reorganisation and the application of new forms of governance as alternative policymaking and implementation mechanisms. Similarly, the multilevel character of policymaking and the non-hierarchical governance of many policy lines in Europe may contribute to making minorities more than mere objects of legal standards, but rather actors that produce their own changes when acting and using Europe. As such, multilevel governance is here understood to be facilitating a context in which new alternatives for mobilisation and empowerment can be tested or experimented with. The way in which multilevel governance has been identified as relevant for collective groups and group influence (Hooghe and Marks, 2001: 126) by offering different political opportunity structures (Ladrech, 2010) is another way in which it is relevant to national minorities in Europe. This also links to the suggestion that Europe establishes a setting which helps to alter opportunity structures for groups previously subjected to the doctrinal basis of the traditional state and state politics (Keating, 2006). For example, policy areas that are important to minority communities have seen a transfer to their jurisdictional authority, going some way towards meeting the aspirations of minority nationalists for greater control over their collective life (Danspeckgruber, 2002). In principle, this can take place either through the use of these channels to place demands on domestic legislation, which requires

European Union regional policy and national minorities  279 reconfigurations of shared authority, or by rethinking how to share that authority between levels. Similarly, the multilevel character of Europe can also contribute to new spaces for independent action among minority groups, which can motivate mobilisation and networking among subnational actors (Della Porta and Caiani, 2009). Others have argued that there is a new level of accommodation of minority questions occurring throughout the European polity (Keating, 2006: 24). Besides access to material resources and network formation, European multilevel governance structures can also offer a space for cultural and ideational functions to develop. For instance, regionalist movements often consider European integration a roof, or even a home, within which to assert ‘regional/national identities’, which might have been undervalued or trapped inside existing national states (Laffan, 1996: 90; Keating, 2006). As such, multilevel governance is not only about structural rearrangements, but it also touches upon important ideational factors as a result of multilevel participation. By providing an arena for interaction and enabling access to new levels and spaces, some policy areas can create a much more dynamic field for interaction. In all, it is an arena in which it is possible for many actors to not only exercise influence upon policymaking, but also to be influenced by this as they engage in new practices on new terms. The issue of usages of Europe thus links to the multilevel character of the current European environment, by corresponding to useful sets of practices enabling national minority groups to act in different ways and develop new roles as they engage in new practices.

EU REGIONAL POLICY AND ITS PROGRAMMES IN MINORITY-INHABITED REGIONS Research has demonstrated that minorities do become active participants in EU-initiated programmes, such as those that aim at economic development in border regions (Hoch-Jovanovic, 2014; Malloy et al., 2007: 26–7). Changes in minority-inhabited regions in the direction of more autonomous practices and increased political activity have also been linked to EU regional policy and structural strategies (Anagnostou and Triandafyllidou, 2007). As such, a thorough effort on the part of EU institutions on the regulation of regional development policies can provide support to activities that stimulate promotion of minority groups by informing new forms of mobilisation among subnational groups. This can also help to fulfil one of the original ideas of the EU’s regional policy, to ‘reduce disparities between the levels of development of various regions and the backwardness of the least favoured regions’ (Article 174 TFEU). It is also the idea to provide subsidies for poorer and peripheral regions which scholars consider one of the key advantages for minority groups belonging to the EU (McGarry and Keating, 2006). With periodic enlargement rounds, and problems relating to the growth in regional disparities across all EU member states, the scope of regional policy became an even greater concern to the EU. This not only culminated in a shift in regional policy, but it also contributed to a systematic division between numerous EU funds concerned with specific regional sectors and objectives. It is in line with this evolution and specification of the funding opportunities that the EU marks relevant approaches which can be used by minority groups to not only develop their own regions according to their own needs, but also to promote their identities and cultures once engaged in development strategies. The aim of attaining economic and social cohesion within the EU relates to the importance of connecting European regions and stimulating interregional cooperation where, for instance,

280  Research handbook on minority politics in the European Union the European Social Fund supports action in the areas of economic inclusion, social inclusion and integration of disadvantaged people. Similarly, by focusing specifically on the reduction of imbalances between regions, the European Regional Development Fund finances the objectives of territorial cooperation for which it has established the INTERREG initiative with a particular focus on fostering interregional cooperation. The INTERREG constitutes primarily cross-border, transnational and interregional cooperation, with a particular emphasis on the integration of remote European regions. Although the INTERREG does not make any explicit reference to minorities, it does highlight some content which could be relevant for historical minorities living in fixed regions. For example, cross-border and transnational cooperation can help to supply minorities with cultural contacts and material goods from their kin-state, supporting the promotion of their cultural traits. Similarly, by backing up the right to participation in the management of regional affairs and the right to engage in cross-border and transnational cooperation, initiatives like the INTERREG also help to activate and promote minority group participation. Some empirical research on the role of EU regional policy on national minority groups has already concluded that EU regional policy is relevant for minorities, not only in terms of financial opportunities, but also for identification (Hoch-Jovanovic, 2014; Malloy 2011). Such research has identified INTERREG programmes in particular as important programs, especially when it involves cross-border activities. This particular aspect is identified as a very important resource for members of minorities, if not the most useful development stemming from the EU (Hoch-Jovanovic, 2014). The participation in such initiatives has inspired a rethinking of different minorities’ roles and participation in local and regional activities. A well-researched region which helps to illustrate this is the South Danish region, South Jutland and the northern part of Germany, known as South Schleswig, an area often referred to as a successful ‘minority model’ and a role model for other minority-inhabited regions in Europe. This area is inhabited by a German minority on the northern and Danish part of the region, while a Danish minority inhabits the southern and German part of the region. Even if the rights of each minority are ensured through the Bonn-Copenhagen declarations dating back to 1955, both minorities have demonstrated strong interest in EU politics and in participation in various projects stemming from EU policies. The German minority in Denmark has, for example, assisted in the construction of a European-informed regional politics by supplying important knowledge on the region and by identifying new opportunities for projects (Malloy, 2011: 37). Having demonstrated an interest in closer contact with Germany ever since the 1920s (Klatt, 2005: 142–3), the German minority demonstrated a strong attraction to the politics of European integration, regional politics and the promotion of cross-border activities that this entailed. With the intensification of cross-border activities since the early 1990s, a need for the management of this movement also became increasingly necessary. This also required competent actors and bodies to manage such developments. It is alongside this development that the German minority acquired a relevant role as a contributor through its own competences. So far, minority actors have accumulated active roles on discussion platforms, commissions and representation offices responsible for regional politics, cross-border cooperation and development in general (Malloy, 2011: 38). For example, members of the minority were part of the 2007–13 INTERREG Commission and they are elected members of the Euroregion assembly of Sønderjylland-Schleswig (ibid.). On such platforms, minority members cooperate with public authorities and local governments on questions related to the region. Although the minority is not the founder of such forums and bodies, it is provided with a voice and

European Union regional policy and national minorities  281 contributes to their functioning. With this experience, members of the minority can become aware that they are needed in forums that are discussing regional and local matters, for their possession of the necessary knowledge on, for instance, language, regional infrastructure and intercultural competence, and their experience of cross-border dialogue. The example of the German minority above helps to illustrate this very well, as its members were included in such developments. Some research has concluded that the inclusion of minority members in regional planning and cross-border activities is a very logical decision because minorities know the systems of both countries well, and they know what is good and what is not good on both sides of the border, which is a strength (Hoch-Jovanovic, 2014). In this vein, EU regional policy has been a highly relevant development of the minorities to explore their own activism in the regions where they live. For example, cross-border cooperation has often needed the setting-up of special bodies and specific actors to manage such bodies, and very often, by including member of minorities in such bodies important knowledge is introduced to the entire process (ibid.). Such a process of inclusion and participation of minorities in EU-related projects has proven to be a success, especially as minorities often consider themselves to be more engaged and involved, but also have a stronger interest in cross-border cooperation functioning well (ibid.). Malloy made a study (2010a) about the specific link between EU regional policy and one of the implementation principles set out by the Advisory Committee of the FCNM in order to implement the article on participation of the FCNM, namely Article 15.3 The second method of implementing Article 15 referred to: Involving these persons in the preparation, implementation and assessment of national and regional development plans and programmes likely to affect them. (Explanatory Report, FCNM Article 15)

For the above article to be successfully implemented, national minorities would have to be part of political participation and in constant dialogue with the various political levels. This was the first time that an international convention devoted a full article to the participation of minorities, by also providing steps on how best to implement the principles, as laid down in the Explanatory Report, guiding the implementation on how best to implement each FCNM article. Another relevant principle which was introduced by the FCNM was free cross-border cooperation for minorities, as stipulated in Article 174 of the FCNM. The article deals specifically with the rights for minorities to network across borders, interregionally as well as internationally, and that nobody should interfere in such activities (Article 17, FCNM). This principle is of high relevance for national minorities, considering that many of them do reside in border regions and share a strong interest in free cooperation across borders and especially with their kin-states.

Article 15 of the FCNM: ‘The Parties shall create the conditions necessary for effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.’ 4 Article 17 of the FCNM: ‘1. The Parties undertake not to interfere with the rights of persons belonging to national minorities to establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in other States, in particular those with whom they share an ethnic, cultural, linguistic or religious identity, or a common cultural heritage. 2. The Parties undertake not to interfere with the right of persons belonging to national minorities to participate in activities of non-governmental organisations, both at the national and international levels.’ 3

282  Research handbook on minority politics in the European Union Furthermore, Malloy assessed the second ‘method’ introduced in the Explanatory Report by linking it to the EU’s Lisbon Strategy, originally introduced in 2000 at the European Council in Lisbon, which set out a number of steps that would make the EU the most competitive and dynamic knowledge-based economy in the world. With the overall aim to raise employment rates across the EU, increase woman’s employment, establish knowledge-based and sustainable economic growth, and modernise the social protection in EU member states, the EU adopted specific implementation programmes that would help it to achieve the mentioned goals.5 For example, the EU developed programmes such as Employment Guidelines and the Open Method of Coordination, both including mechanisms on how to empower ethnic groups and immigrant populations, which has a legal basis in Article 13 TEU, namely the inclusion of minorities in EU programmes aimed at achieving employment goals (see Malloy, 2010b). However, national minorities have demonstrated participative and cooperative behaviours even prior to the rights and programmes developed by the EU. As noted by Keating in 1998, territories are becoming redefined through EU integration, not least from central nation-state levels down to regions, becoming indirectly forced to reassess their functions, such as by developing new mechanisms to deal with the broader changes at the global and interregional levels (1998: 73). Such developments can make national minorities influential in regional affairs, not least as they can possess important knowledge on what is best for the region they inhabit, an asset that has become established over time, and intertwined with cultural and linguistic traditions, closely attached to the specific region. In all, programmes and incentives such as those introduced by the Lisbon Strategy are relevant for regions and as such also for national minorities residing in territorially well-defined regions. Not only do they enable financial opportunities, but such incentives can also empower national minorities by requiring their input into implementation processes and as such supporting the minority participation. The above does not mean that European integration contributes to the emergence of special knowledge to different minorities, but European integration can help to reinforce it and to make it a useful tool for ongoing policy implementation stemming from European-level politics. Although the exact role played by the wider process of European integration and more specifically by EU regional policy is difficult to separate from other forces in the domestic context, it has been understood by some minorities as a contribution to a new frame and inspiration for regional development (Hoch-Jovanovic, 2014). Some research has noted that such development has helped to place minorities as well as minority politics in a different light, one in which agendas are adjusted to European rhetoric and a need to be active in order to sustain the regional development (ibid.). In this vein, minority members can begin to take their own initiatives, by thinking beyond the border, and to develop services by making use of the borderless environment. This process of minorities’ participation and involvement in regional affairs not only has the tendency to increase the visibility of minority cultures and languages in a specific region but can also contribute to the formation of actorness among minorities. Another relevant example of how EU regional policy can inspire changes in regional planning and the distribution of regional funds has been observed in Romania, which has

5 The Lisbon Strategy objectives were to: (1) establish an inclusive, dynamic and knowledge-based economy; (2) produce accelerated and sustained economic growth; (3) restore employment as the key objective of economic and social policy, and reduce unemployment to the levels already achieved by the best-performing countries; and (4) modernize our social protection systems.

European Union regional policy and national minorities  283 inspired members of one of the political parties representing the Hungarians in Romania6 to propose new measures for a regionalisation reform, which included new territorial divisions. The minority political party engaged in the development of a new plan which was guided by the ‘principles of subsidiarity’, but also aimed at improving the chances of (Hungarian) minority-inhabited territories to qualify for EU funds and to manage those resources on their own (Hoch-Jovanovic, 2014). This is an example of how European-level policies can provide new inspiration and guiding lines for political action of minority political parties, but also inspire changes in the political agenda of minorities’ political parties. Linked to the EU-made subsidiarity principle, some minority political parties can grow an interest to try to affect European-level national minority norms and rights, by proposing changes in European-level approaches to national minority issues. Participation in the Federal Union of European Nationalities (FUEN) and especially the activism around the Minority SafePack Initiative7 involved many different minorities’ political parties across Europe, but the Hungarian minority from Romania has a strong presence, not least in the very drafting of the SafePack in the early phase. Not only did this moment encourage the spread of participation, cooperation and innovative ideas, but it also helped to illustrate that political activity no longer remains within the regional and national realm but has begun to move beyond the national borders. In all, EU regional policy and cross-border rules have become important elements and can serve as a resource which can help various minorities to (re)define their own political action. As observed in empirical research, participatory roles have been accumulated by minorities in some regions and especially in ongoing drafting of regional policy, planning and execution (Hoch-Jovanovic, 2014; Malloy, 2011). Minorities residing on the territory of another country and sharing a direct border with its kin-state can automatically be inspired to become more active in cross-border affairs and help to develop functional cross-border cooperation. Such developments can help to increase the minority’s access to important processes, confirm the minority’s role in regional affairs and also serve as help to promote cooperation with the minority’s kin-state. Besides the interest in drawing benefits from European-level rules in order to increase the visibility in regional affairs and access to political processes, European-level norms can be used in order to legitimise the acquired position of a minority in the region where it lives. Another initiative at the EU level which can help to address the promotion of minority groups and their activities is rooted in the EU’s attempts to standardise cross-border cooperation by providing it with a legal basis. In 2006, the EU created the European Grouping of Territorial Cooperation (EGTC) with the aim of facilitating and promoting horizontally spread territorial cooperation among European regions (Regulation 1082/2006).8 Based on Article 175 TFEU, cross-border, transnational and interregional cooperation is provided with a legal basis with the EGTC (Article 1 EGTC). With the aim of strengthening European social and economic cohesion, the EGTC supports the reduction of barriers to territorial cooperation. Likewise, this legal framework with a basis in the treaties of the EU also encourages development of horizontal cooperation by incorporating regional and local authorities into the process, bringing the policy implementation process beyond the scope of state-level actors. Democratic Alliance of Hungarians in Romania (DAHR): www​.dahr​.ro/​. More details of the Minority SafePack Initiative are provided in Chapter 3, among others, of this volume. 8 See further Chapter 15 in this volume. 6 7

284  Research handbook on minority politics in the European Union Some scholars have argued that instruments like the EGTC are relevant for minority-inhabited regions, and especially for minorities living in border regions (Klatt and Kühl, 2006/07). Such instruments may have the unintentional effect of enhancing minority participation in regional and cross-border affairs; for example, as observed in the German and Danish border region, where regional policy has warranted attention on increased minority participation in not only regional matters, but also in minority politics (Malloy, 2011). Through changes in territorial structures, the many processes of EU policymaking contribute to the establishment of new spaces and platforms for networking and interaction among actors other than state and governmental officials and, as such, provide an important insight into how a national minority can be promoted by formalising cross-border cooperation between a minority and its kin-state.

THE FCNM AND THE EU: FUTURE DUO TO ENSURE MINORITY PARTICIPATION? Cooperation between the Council of Europe and the EU in the field of national minority rights emerged primarily with the broader concretisation of national minority rights in the early 1990s. Another important reason for their cooperation was the lack of minority rights in EU frameworks when such rights became needed for the purpose of recent EU enlargement rounds. Since the early 1990s, the EU has been slowly integrating Council of Europe principles into its own work. For example, as the drafting of the Copenhagen Criteria drew inspiration from the FCNM, the EU also demanded that the accession countries ratify the FCNM and the European Convention on Human Rights before qualifying for EU membership (see Sasse et al., 2004). Similarly, the FCNM served as an important benchmark to the European Commission as it evaluated the enlargement progress of the accession states. The referencing of the FCNM in the Commission reports has also helped to establish new understandings on minority rights in the EU. Although the EU legal basis pertaining to national minority groups has developed since the early 1990s, and especially since the Lisbon Treaty reforms and the Charter of Fundamental Rights, the FCNM provides several aspects which do not appear anywhere in the EU frameworks. Still, the Council of Europe has played a central role in advancing the idea of national minorities’ participation as a democratic principle by devoting two FCNM articles to this aspect as a special right to be granted by convention. But it has also set out specific links to EU regional policy. Article 15, for example, indicates that all parties shall create necessary conditions for effective participation of persons belonging to national minorities and especially in public affairs and areas that are affecting them. One of the measures regarding how to achieve these goals is that parties should work towards including minorities in the preparation, implementation and assessment of the development strategies (Explanatory Report, FCNM, Article 15). Although there are four specific measures on how to implement Article 15, the above-mentioned is where we can find a clearest link and relevance for the EU regional policy, and especially by involving the groups not only in preparation of development plans and programs, but also in the implementation and assessment of projects that are aimed at them. FCNM’s Article 17 makes another relevant link to the EU regional policy due to the right to cooperate across borders. The EU has worked strongly for the removal of borders, and as seen above through the EGTC, it has introduced specific measures on how to promote this.

European Union regional policy and national minorities  285 When taking together the Council of Europe’s principles on participation as provided by the FCNM and the EU regional policy, which is rather about providing economic assistance and establishing various development programmes that require minorities’ involvement, there is a solid basis to build on. While the Council of Europe can be viewed as the standard-setter through established principles and a monitoring process, the EU can be viewed as the implementor of those principles through the action-oriented programmes and projects. EU frameworks establish new initiatives which are supportive of several aspects of preservation and promotion, given the cultural, linguistic and regional development undertakings. The EU can supplement Council of Europe principles through bigger budgets, something which the Council of Europe cannot offer in the same way. The Council of Europe, on the other hand, can help to fill parts of the legal vacuum in EU law pertaining to national minority groups, namely through the existence of benchmarks on human rights and special national minority rights. This cooperation supports the shifting idea of moving beyond protection as a key paradigm in minority rights by installing the potential to strengthen and empower national minorities through the joint structures in Europe today. And as seen above, parts of EU regional policy, such as the programmes stemming from the Lisbon Strategy, could turn into functional mechanisms on how best to implement Articles 15 and 17 of the FCNM, not least as all the programmes aimed at improving employment rates touch upon regions where national minorities are residing and often sharing important knowledge relevant for the different phases of preparation, implementation and assessment of national and regional development plans.

CONCLUSION EU regional policy and the different programmes that help to implement this policy constitute a relevant area for minorities to explore further. This chapter has illustrated some of the opportunities the EU regional policy has helped to install, its legal basis and some empirical examples from existing research. Even if further research is needed to draw some concrete conclusions on the precise relevance EU regional policy on minorities and their lives, one can trace some tendencies which are not necessarily supporting ideas of protection and minority rights per se, but rather the promotion of minorities’ visibility in regions, as well as encouraging varied forms of participation. Members of minorities have been invited to take part in the drafting and implementation of some programmes that have been established to implement EU regional policy. Of relevance here is that this process requires a different bottom-up dynamic among the minorities, their daily practices and their acts as members of minorities; rethinking of political strategies; reorganisation within the minorities; and being innovative and creative. EU regional policy is therefore well placed for exploring bottom-up dynamics further and considering minorities as actors. Such an approach can help to explore a neglected field: to consider minorities as actors that make change happen, but that are in turn also transformed themselves through their activities. Focusing on actorness formation among minorities can be done by applying tools from political sociology, such as ‘usages of Europe’ (Jacquot and Woll, 2003, 2010). Being a bottom-up and actor-centred approach, the usages-of-Europe concept champions that analyses need to start at the level of actions of individuals and how they interpret their context within which they act (ibid.). We should recast focus to the agents and their activities and engagement with Europe and everything that comes with the changing political structures. One can speak of there being an ongoing actorness formation among

286  Research handbook on minority politics in the European Union minority groups which is supported by the increased opportunity to experiment with many European frameworks. The European-level multilevel political system and its policymaking is perhaps unique to the formation of experimentation among informal actors, something that national minority groups can also draw benefits from. However, even if minorities sometimes use Europe under uncertain conditions and through experimentation, they can contribute to unforeseen interaction and network formation among national minority groups as they are trying out new strategies. In other words, what matters here is what happens to the actorness of those actively experimenting with European-level rules and norms. This is facilitated by the fact that many European frameworks are uncertain, not always providing clear definitions of their intentions, yet they do provide openings for minority groups to participate in the implementation. It has become a bit of an ‘it is what you make of it’ situation with the realisation that changes do not occur without minority groups’ own activity. Several uncertainties have been discerned among European-level norms and rules pertaining to national minority rights. For example, Article 2 TEU, which stipulates that minority protection is a common value of the EU, does not provide any legal guarantees. The diversity principle is also vague, lacking clear parameters. Regional policies do not necessarily address national minority groups per se. Council of Europe instruments issue recommendations to states, expecting them to be implemented, but without making them enforceable upon domestic legislation and policy. This reality of European-level norms and rules has given an impetus for increased experimentation and creativity among national minority groups, and EU regional policy is undoubtedly a part of this landscape that minority groups are exploring and using for their own claims.

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European Union regional policy and national minorities  287 European Union, Treaty of Lisbon. Signed 13 December 2007, entered into force 1 December 2009. OJ C 306, 17.12.2007. Guella, Flavio, Simone Penasa and Jens Woelk, From Protection to Empowerment through Participation: The Case of Trentino – A Laboratory for Small Groups. Paper prepared for the ECPR Joint Sessions of Workshops, Mainz, Germany, 11–16 March 2013. Hoch-Jovanovich, Tamara, Reinventing National Minority Rights through European Integration: From Top-Down to Bottom-Up Europeanisation. PhD diss. (Roskilde University, 2014). Hooghe, Liesbet, and Gary Marks, Multi-Level Governance and European Integration (Oxford: Rowman and Littlefield, 2001). Jacquot, Sophie, and Cornelia Woll, ‘Usage of European Integration: Europeanisation from a Sociological Perspective’. 7/12 European Integration Online Papers [2003]. Jacquot, Sophie, and Cornelia Woll, ‘Using Europe: Strategic Action in Multi-Level Politics’. 8/1 Comparative European Politics [2010] 110–26. Keating, Michael, The New Regionalism in Western Europe: Territorial Restructuring and Political Change (Cheltenham and Lyme, NH: Edward Elgar Publishing, 1998). Keating, Michael, ‘Europe, the State and the Nation’ in John McGarry and Michael Keating (eds), European Integration and the Nationalities Question (London: Routledge, 2006). Klatt, Martin, ‘The Danish-German Border Region as an Example for Integration in the European Context’ in Jørgen Kühl and Marc Weller (eds), Minority Policy in Action: The Bonn-Copenhagen Declarations in a European Context 1955–2005 (Aabenraa: Institute for Border Region Studies, 2005). Klatt, Martin, and Jørgen Kühl, ‘National Minorities and Cross-Border Cooperation between Hungary and Croatia: A Case-study of Baranya/Hungary and Osiječko-Baranjska County/Croatia’. 6 European Yearbook of Minority Issues [2006/07]. Ladrech, Robert, Europeanisation and National Politics (Basingstoke: Palgrave Macmillan, 2010). Laffan, Brigid, ‘The Politics of Identity and Political Order in Europe’. 34/1 Journal of Common Market Studies [1996]. Malloy, Tove H., National Minority Rights in Europe (Oxford: Oxford University Press, 2005). Malloy, Tove H., ‘Creating Spaces for Politics? The Role of National Minorities in Building Capacity of Cross-Border Regions’. 20/3 Regional and Federal Studies [2010a] 295–314. Malloy, Tove H., ‘Convergence in European Policy Making: What Do Article 15 (FCNM) and the EU Regional Policy Have in Common?’ ECMI Issue Brief, No. 23 (Flensburg: ECMI, 2010b). Malloy, Tove H., ‘National Minorities in the 21st Century Europe: New Discourses, New Narratives?’ ECMI Issue Brief, No. 24 (Flensburg: ECMI, 2010c). Malloy, Tove H., ‘Minority Rights and the Dynamics of Europeanisation: Convergence in the Regional Governance of the Danish-German Border Region or What One Preaches, the Other Practices’ in István Horváth and Márton Tonk (eds), Minority Politics within the Europe of Regions (Cluj Napoca: Scientia Publishing House, 2011). Malloy, Tove H., National Minorities between Protection and Empowerment: Towards a Theory of Empowerment. Paper prepared for the ECPR Joint Sessions of Workshops, Mainz, Germany, March 11–16, 2013. Malloy, Tove H., et al., Competence Analysis: National Minorities as a Standortfaktor in the German-Danish Border Region – Working with Each Other, for Each Other (Bolzano: EURAC, 2007). Marko, Joseph, ‘Constitutional Recognition of Ethnic Difference: Towards an Emerging European Minimum Standard?’ in Annelies Verstichel, André Alen, Bruno De Witte and Paul Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Antwerp: Intersentia, 2008). Marks, Gary, Liesbet Hooghe and Kermit Blank, ‘European Integration from the 1980s: State Centric v. Multi-Level Governance’. 34/4 Journal of Common Market Studies [1996] 341–78. McGarry, John, and Michael Keating, European Integration and the Nationalities Question (London: Routledge, 2006). Palermo, Francesco, and Jens Woelk, ‘From Minority Protection to a Law of Diversity? Reflections on the Evolutions of Minority Rights’. 3 European Yearbook of Minority Issues [2003/04].

288  Research handbook on minority politics in the European Union Psychogiopolou, Evangelia, Minorities and the EU: Human Rights, Regional Development and Beyond. EU Policy Paper prepared for the EUROREG project funded by the European Commission, 6th Framework Programme, Priority 7: Citizens and Governance in Knowledge Based Society, 2006. Sasse, Gwendolyn, James Hughes and Claire E. Gordon, Europeanization and Regionalization in the EU’s Enlargement to Central and Eastern Europe: The Myth of Conditionality (Basingstoke: Palgrave Macmillan, 2004). Toggenburg, Gabriel N., ‘The Protection of Minorities at the EU-level: A Tightrope Walk between (Ethnic) Diversity and (Territorial) Subsidiarity’ in Emma Lantschner, Joseph Marko and Antonija Petričušić (eds), European Integration and its Effects on Minority Protection in South Eastern Europe (Baden-Baden: Nomos, 2008). Topidi, Kyriaki, EU Law, Minorities and Enlargement (Antwerp: Intersentia, 2010). Veenman, Justus‚ ‘Social Cohesion, Social Integration and Labour Market Exclusion’. 3 European Yearbook of Minority Issues [2003/04]. Warleigh, Alex, ‘Conceptual Combinations: Multilevel Governance and Policy Networks’ in Michelle Cini and Angela K. Bourne (eds), European Union Studies (Basingstoke: Palgrave Macmillan, 2006).

15. Between dynamic practice and normative limits: minorities and debordering processes in the European Union Alice Engl

INTRODUCTION Europe has a high density of state borders. By area, Europe is the smallest continent after Australia, but it encompasses almost as many states as the largest continents: Asia and Africa. Most of today’s European state borders were drawn in the last 100 years, marking European borderlands as places of historical fluctuations and transition. Many European borderlands have historical connections and legacies. Sometimes their names and designations bear witness to this common history – for instance, Northern Schleswig in Denmark and Southern Schleswig in Germany, which had formed the Duchy of Schleswig; North Tyrol in Austria and South Tyrol in Italy, which had been part of the County of Tyrol; or the Northern Basque Country in France and the Southern Basque Country in Spain. As Scott notes in a recent volume on border studies, ‘the power of borders emerges not only from their institutional and legal nature but also from their symbolic and identity-forming significance’ (Scott 2020, 5), which is why it is crucial to understand the meanings of political borders. The meaning of political borders depends a great deal on how and by whom they are experienced and used (Scott 2020, 8). Over the past 40 years, the function of political borders and the role of regions has changed, and the European Union (EU) has been a major catalyst in these changes. While classically political borders mark state sovereignty and define where law and power change hands (Kaplan 2000), the EU has rendered EU internal state borders fluid and permeable by pooling sovereignty and by challenging the dividing and exclusionary role of political borders (Brunet-Jailly 2005). At the same time, transnational regimes such as the EU have eroded the distinction between domestic and foreign affairs and have drawn regions into international relations (Keating 1999). Both these processes of debordering – that is, porous political borders and foreign engagement of regions – are crucial for minority groups and stateless nations because they open up new arenas and allies for action (Waterbury 2017). Such alliances can be formed horizontally at the substate level or vertically if state authorities are involved. This chapter takes a closer look at such debordering processes and cross-border alliances with a specific focus on paradiplomacy and cross-border cooperation as well as kin-state activism. Paradiplomacy and kin-state activism are diverse phenomena that involve different actors and aims. The straightforward relationship between kin-state activism and minority issues differs from the very general notion of regional empowerment and foreign engagement that we see in substate diplomacy. But what both have in common is the element of crossing political borders between states. And this debordering or border-crossing effect influences the political meaning of borders and makes both processes relevant for minorities. 289

290  Research handbook on minority politics in the European Union Recently, we have seen political borders regain exclusionary and security functions, illustrated by the closure of state borders in 2015 and 2020. These closures clash with the complex sets of cross-border substate relationships that have evolved and are very critical for minorities and stateless nations in borderlands. This tension between debordering and rebordering demands a more nuanced and multifaceted understanding of the EU’s impact on debordering processes. Scrutinizing and understanding what borders represent and how they are used enables us to better understand how state and substate actors are navigating the current territorial order and which debordering strategies they apply. This chapter aims to enhance this understanding by giving a comprehensive overview of EU-related debordering processes in minority contexts and by discussing them in view of current border- and minority-related challenges. It starts with an outline of paradiplomacy and kin-state activism as debordering strategies in minority contexts, and depicts current problems and the limits of these processes. To trace how borders are used in practice in minority contexts, the chapter then presents empirical examples from European borderlands. This empirical section combines insights from case studies on kin-state activism and cross-border cooperation and adds some fresh data on the European Grouping of Territorial Cooperation (EGTC), a tool that the EU launched to enhance cross-border cooperation. The point here is not to judge whether one of these debordering processes is better than any other or more suitable for minority protection and accommodation of their claims, but to understand how borders are used and what meanings political borders can reveal. This enables us to discuss the limits and the potential of the EU in these debordering processes and to reflect on the direction the EU can move in. In doing so, one encounters a dynamic practice on the ground that contrasts with a rather narrow normative framework. Considering political backlashes that affect debordering processes, as expressed by rhetoric and measures that stress the exclusionary and barrier function of borders, the EU would do well to reconsider the normative basis for its cohesion and border policies by addressing the meaning of political borders with a view to its culturally and ethnically diverse borderlands.

DEBORDERING STRATEGIES IN MINORITY CONTEXTS: PARADIPLOMACY AND KIN-STATE ACTIVISM Paradiplomacy and kin-state activism are different political strategies. Paradiplomacy – and substate cross-border cooperation as a specific form of this – involves regional actions aimed externally for general purposes such as interest representation or regional empowerment and development. Kin-state activism is a state action aimed externally and is targeted at a specific kin-minority group in a neighbouring state. While these differences will be further elaborated in this section, both strategies are important for minorities and stateless nations and have in common the element of crossing political borders. Borderlands are special areas due to their peripherality when considering their position within a state and their status as a transit area when considering their proximity to other states. The border and what it represents is strongly present in daily life, whereas ties to the state centre might be weaker (Kaplan 2000). Moreover, borderland identities are situated ‘at the juncture of several large and small national, state and local identities’ (Kaplan 2000, 45). These multiple and overlapping layers deriving from the peripheral identity on the one hand,

Between dynamic practice and normative limits  291 and specific cultural identities stemming from blurred political borders and cultural boundaries on the other hand, make borderlands special sites of action to and from the external world. One such type of action is paradiplomacy, or substate diplomacy.1 This refers to all types of international actions taken by substate units (Keating 1999). Very common are partnerships among substate governments in different states. These can be either general, multipurpose types of associations or partnerships with a narrower geographical or sectoral focus (Keating 1999). A frequent type of paradiplomacy is cross-border cooperation. Through the lens of paradiplomacy, cross-border cooperation can be defined as formal or informal collaboration between contiguous substate authorities across state borders that serves economic, political, social or cultural benefits (Perkmann 2003; Medeiros 2018, 70) and that is aimed at easing and using the political border for cooperation purposes. Among the different models of cross-border cooperation, the term ‘Euroregion’ is often used to generally denominate networks and institutions of cooperation between substate authorities from different states. These networks and institutions have different legal and organizational designs and can be informal or based on private or public law. Since the adoption of the EGTC as an EU legal instrument for cross-border cooperation in 2006, some of these institutions and networks have organized themselves as EGTCs.2 Recently established Euroregions tend to prefer the EGTC as the legal framework for institutionalizing their cooperation (Noferini et al. 2019). Nevertheless, the term ‘Euroregion’ still prevails to designate cross-border spaces for social, cultural, economic and political exchanges. Though the socio-economic goals, in particular, suggest a strong functional logic in cross-border cooperation and substate diplomacy, Keating stresses in his seminal work the underlying political aspects: Paradiplomacy is not the same as conventional state diplomacy, which is about pursuing a defined state interest in the international arena. It is more functionally specific and targeted, often opportunistic and experimental. There is certainly a strong functional logic to the activity, and we have noted how it has expanded with globalization and the need for regions to operate in the global market. Yet it is not functionally determined, and political considerations play the main role in deciding on strategy and initiatives. (1999, 11)

While international activities can be strategic for any type of region, border regions – and especially border regions with minority communities – are particularly inclined to consider political questions when engaging in such actions. Paradiplomacy and cross-border cooperation allow border regions to take advantage of their geographical position at the margins of the respective states. They can turn this position into opportunities and develop political strategies to increase flows of people, goods, services and capital. At the same time, paradiplomacy can serve as an instrument to promote regional identity and autonomy, as in, for example, the cases of Catalonia and South Tyrol. Catalonia and the Basque Country in Spain were the most active Spanish substate authorities towards international action in the 1990s (Segura 2017). Likewise, South Tyrol in Italy was very active in internationalizing the conflict over its autonomous status in the 1960s and engaging in cross-border cooperation with its neighbouring

I use the terms ‘paradiplomacy’ and ‘substate diplomacy’ interchangeably. The 81st EGTC Euregio Connect was founded on 1 October 2021 at the border between Italy and Austria. 1 2

292  Research handbook on minority politics in the European Union entities since the 1990s (Engl and Zwilling 2008; Lantschner 2008). Paradiplomacy can enable regions to express and foster their specific and autonomous identity (Lecours 2008). Regions with their own language or culture also seek resources and support in the international arena, especially where their own state government is unsympathetic or the homeland of the language is in another state. … Those with nationalist aspirations seek recognition and legitimacy as something more than mere regions. […] External projection may also serve by a reverse effect to help nation-building at home, by showing local leaders in international contexts. (Keating 1999, 5)

Similarly, cross-border linguistic and cultural ties can be major assets and drivers for substate cross-border cooperation, rendering borderlands with regional and minority cultures particular landscapes for cross-border relations (Brunet-Jailly 2005, Klatt 2017, McCall and Itçaina 2017, Engl 2020). On the other hand, such ties can be the reason why substate diplomacy clashes with the central government. Central decision makers may perceive their ‘monopoly on foreign policy and national identity’ (Cantir 2020, 59) as challenged by international activities by substate units that have ‘a separate identity from the rest of the country’ (Cantir 2020, 59). This potential competition also applies to less conflict-prone activities involving local and regional cross-border cooperation because socio-economic goals and symbolic meanings are blurred (Cornago 2010). Cross-border cooperation on the part of Spanish autonomous communities and Italian autonomous regions and provinces has been emblematic of such conflicts with the central state (Bourne 2003, Engl and Zwilling 2008, Segura 2017). European integration, among other factors, such as decentralization processes in many European states, has normalized substate diplomacy and established a favourable political context for substate mobilization (Cornago 2010). As a consequence, tensions around paradiplomacy have also been reduced in regions with minority identities, as will be illustrated by empirical examples in the next section. Yet, the European normalization of substate diplomacy encounters limits, which are further discussed below. Beneath substate action, borders are also catalysts of state action. When it comes to minorities, the incongruence between political borders and cultural boundaries is a significant driver of state action, in particular if a state border cuts through a cultural and linguistic community and divides it into a majority or constituent people in one state (the kin-state) and a minority in another state (kin-minority). Kin-state governments have developed strategies to increase, mobilize and institutionalize ties with external kin. These strategies are referred to as kin-state activism (Liebich 2019). Especially (but not only) in Central and Eastern Europe, cultural boundaries and political borders are very blurred and have strong historical legacies, leading to complex intergroup and state–minority relations (Brubaker 1996, Harris 2018, Liebich 2019). Kin-state relations and kin-state activism are a sensitive form of international relations because a sovereign state relates to a substate group in another sovereign state and perceives the territory and conditions in which this substate group lives as its legitimate concern (Klatt 2017, Harris 2018). Actions of kin-states vary in their intensity and purpose. They range from political, social, cultural and economic support for kin-groups to expanding external citizenship and voting rights to kin-minorities living in neighbouring states (Waterbury 2017, Harris 2018; Udrea and Smith 2021). While pursuing cross-border ties with co-ethnics beyond a border is a legitimate policy aim; the very different types of kin-state action create room for a lively academic debate about the aims, impacts and limits of kin-state activism. While some scholars point to the argument that a kin-state can complement the home-state’s duties of recognizing and protecting minority

Between dynamic practice and normative limits  293 identities (Udrea 2014), others argue that kin-state activism may be potentially dangerous and conflictual because it can frustrate neighbouring governments, leading to the securitization of kin-minorities and the destabilization of regional relations (Liebich 2019). While empirical findings support both arguments, this different assessment underlines the fact that the profusion of and controversy about kin-state activism raise ethical and normative dilemmas concerning how this political practice should be assessed and handled (Vasilev 2019). Such normative dilemmas as well as political backlashes place significant limits on the EU’s border policies. A crucial condition for easing the role of political borders in minority contexts is the function of borders as loci for cooperation and opportunities for political and cultural exchange. Conversely, strategies to ease borders, such as substate cross-border cooperation, are very vulnerable if the underlying function of a border changes. While scholars already stressed the limits of debordering due to the persistent divisionary function of even physically open political borders (McCall 2013, Balogh and Pete 2018, Liebich 2019), we have witnessed further ruptures in the function of borders as places of cooperation. In recent years, political rhetoric and political measures that stress the exclusionary role of political borders and their function as security barriers have increased. Concrete measures to restore borders as security devices and as physical barriers were implemented in the so-called migration crisis after 2015 and even more drastically during the Covid-19 pandemic in spring 2020 (Bellamy, Lacey and Nicolaïdis 2017; Evrard, Nienaber and Sommaribas 2020; Klatt 2020; Bieber and Bieber 2021). At the same time, rising nationalism and Euroscepticism in EU Member States are pushing for a hardening of political borders, both within the EU and towards its external sphere, and are thus seeding the ground for a potential return to rigid state borders (Bellamy et al. 2017, Harris 2018). The EU itself has enhanced the political and symbolic significance of borders as a battleground of European security due to its external border policies regarding migration and asylum seekers (Scott 2018). Such a security-related border policy backs Eurosceptic and nationalist political leaders in their politicization of open state and European borders and their portrayal of border politics as national-identity politics. Bellamy et al. signalled that ‘the legitimacy and sustainability of the European boundary regime is currently being called into question like never before by an unusual confluence of internal and external pressures’ (Bellamy et al. 2017, 9). This push for reconstituted state borders could fundamentally change the nature of the EU as a political community, shifting its path from integration through cooperation towards border conflict and coercion (McCall 2013, Scott 2018) with potential negative impacts for minorities and sensitive border contexts. This illustrates how fragile and reversible the EU’s debordering policies are, especially in view of mitigating minority issues and minority–state tensions (Bieber and Bieber 2021). Political pressures for rebordering encounter the weak normative foundations of the EU’s border policies when it comes to minority questions. The EU has not developed a common European normative framework for minority–kin-state relations, and, moreover, its normative foundation for substate diplomacy and cooperation is narrow. While the EU has strong impacts on the status of state borders, in particular through the Schengen system, it remains weak when handling the potential negative impacts of its border policies. The Schengen border regime makes certain EU borders more rigid and thus has strong impacts on interstate relations and minorities affected by such rigid borders (McCall 2013, Bieber and Bieber 2021). Especially in Central and Eastern Europe, with its complex landscape of minorities and kin-states, new Schengen borders and EU external borders have been catalysts for kin-state engagement, often leading to tense interstate relations (Galbreath

294  Research handbook on minority politics in the European Union and McEvoy 2010, Liebich 2019, Waterbury 2008). The EU has been criticized for lacking clear norms for kin-state–minority relations and underestimating the political dynamics caused by these uncertainties in the relationship between states and minority communities (Waterbury 2008). Likewise, the EU’s framing of substate diplomacy and cross-border cooperation neglects political dynamics. The political stabilization and reconciliation of border regions through substate cross-border cooperation is a beneficial by-product of economic development, but it is neither an explicit goal nor a normative foundation of EU cohesion policy (McCall 2013, Wassenberg 2017). While these policies have impacts on the position of minorities, they are not a deliberate policy to mitigate minority issues (Bieber and Bieber 2021). In addition, certain cross-border programmes face the Schengen divide, which discourages mobility and therefore also intercultural contact and communication (McCall 2013). Overall, these debordering processes are still trapped in a nation-state paradigm, and the EU has not yet succeeded in underpinning its debordering policies in a sustainable way.

WHAT PRACTICE ON THE GROUND TELLS US: EMPIRICAL EXAMPLES FROM EUROPEAN BORDERLANDS While the normative framing of EU debordering is predominantly functional and rather neglects political and symbolic meanings and implications, we can observe very broad practices on the ground. The literature on political borders and minorities in Europe documents the fact that the EU plays a significant role in debordering processes in minority and regional identity contexts. In what follows, I provide a summary of the main cases that have been studied, scrutinizing how the EU influenced border dynamics and the use of borders. Aligned with the basic structure of this chapter, I differentiate again between substate diplomacy and cross-border cooperation on the one hand and kin-state activism on the other hand as the two main venues for debordering. Substate Diplomacy and Cross-Border Cooperation Scholars have widely discussed whether the EU has empowered regions as actors. Although there is no single or simple answer to this, it can be justifiably said that the EU changed the opportunity structures for regions and that whether and how those opportunity structures are exploited depends on various factors (Bache and Jones 2000). With regard to substate diplomacy and cross-border cooperation, the state context has often limited the opportunities for substate authorities and minority communities to establish external relations. Here, legal and political obstacles play a key role. Legal obstacles are often based on the different constitutional statuses and administrative powers of different border regions, whereas political obstacles are often rooted in the gatekeeper role of states or the lack of political backing for cooperation in the border regions themselves. In particular, regions with diverse cultural and linguistic backgrounds have had difficulties establishing formal cross-border relations. In often antagonistic situations, the actions of substate authorities have been impeded by the gatekeeper role of the states. This has happened, for example, in the Danish–German and the Austrian–Italian borderlands, where state authorities have rejected the institutionalization of cross-border cooperation as a Euroregion (Markusse 2004, Engl and

Between dynamic practice and normative limits  295 Zwilling 2008, Klatt 2017). Also, the Spanish and French states impeded the efforts of substate authorities to engage in cross-border relations (Letamendia 1997) and started a legal proceeding against the Basque government concerning its competencies in cross-border cooperation (Bourne 2003, McCall and Itçaina 2017). In a similar state-centred and nationalist reading, the Italian government initiated a legal proceeding against the establishment of a regional representative office in Brussels in 1995, which had been launched by regional authorities and trade chambers from the Italian autonomous provinces of Trento and South Tyrol and the Austrian province of Tyrol (Engl and Zwilling 2008). State authorities have viewed substate cross-border cooperation with suspicion and even hostility (Letamendia 1997). Within the European architecture, however, substate cross-border cooperation has been undergoing major quantitative and qualitative changes since the beginning of the 1990s (Wassenberg 2017). Not only did the decentralization of laws in several Western European states (such as France and Italy) play a crucial role, but the EU itself started to promote regional cross-border cooperation to make the European Single Market a reality, to enhance economic growth and to reduce regional disparities. Over the past 30 years, substate cross-border cooperation has gone from being a marginal issue in European integration to a major strand and goal of EU cohesion policy. Furthermore, it has witnessed a gradual extension of its tools (Harguindéguy and Hayward 2014, Engl 2014, Evrard and Engl 2018). The tools that the EU provides to push and facilitate substate cross-border cooperation gradually expanded and increased in both aim and substance. The EU started to promote cross-border cooperation with financial means under the Interreg Programme in 1990. In the 1990s, scholars stated that the EU’s regional policies gave ‘a new lease of life to regions, some of which are … historical minority nations such as Catalonia, the Basque Country, Scotland and Wales (Letamendia 1997, 25). Since then, the possibilities and tools to engage in external cooperation have been substantially expanded. The EU’s financial support was complemented in 2006 with legal-institutional support for cross-border cooperation through the creation of the EGTC as a European tool for institutionalizing cross-border cooperation (Engl 2014). Overall, the EU has significantly empowered borderlands. It has normalized substate diplomacy and cooperation (Cornago 2010) and established a cooperative framework for these debordering processes, providing fertile ground for territorial cooperation and institutional innovation (De Sousa 2013, Engl 2016, Ulrich 2020, Medeiros 2020). This also has effects on minorities (Engl 2020, Bieber and Bieber 2021), as the following selection of European borderlands demonstrates. EU-sponsored cross-border cooperation leads to regional empowerment, including in regions with distinct cultural and minority identities. This can be seen in, for example, the Italian borderlands as well as the French–Spanish borderlands. In both cases, the states involved overcame their reluctance towards substate cross-border collaboration mainly in the context of the single market programme and EU structural funds (Letamendia 1997, Bourne 2003, Engl 2011, McCall and Itçaina 2017). In the case of the Basque territory, an increase in substate cross-border cooperation pressured French authorities to give some institutional leeway to regional Basque structures (Letamendia 1997). This empowerment for cross-border cooperation paved the way for the institutionalization of cross-border cooperation structures. While some substate authorities already enjoyed the rights and possibilities to engage in institutionalized cross-border cooperation structures, especially due to their constitutional and administrative status – such as the German-speaking community in the Belgian borderland, which participates in the Meuse–Rhine Euroregion – many

296  Research handbook on minority politics in the European Union institutionalization processes that involve minority regions were driven by the EU’s boost for substate cross-border cooperation. This can be observed in, for example, the German–Danish borderland (Klatt 2017), the Basque borderland (Bourne 2003, Bray and Keating 2013, McCall and Itçaina 2017), the Catalan borderland (Engl 2016), the Austrian–Italian borderland (Engl and Mitterhofer 2015, Engl 2016) and the Hungarian–Slovakian borderland (Engl 2016, Balogh and Pete 2018). In the Basque borderland, cross-border cooperation helped to increase the ties between the traditional Basque provinces on both sides of the French–Spanish border through the creation of new cross-border governance structures (such as the Bidasoa-Txingudi Cross-border Consortium established between three Spanish and French municipalities), but also through easier interaction between Basques on both sides of the border in economic and cultural pursuits (Bourne 2003, Durà et al. 2018). In the Austrian–Italian borderland, the EU EGTC tool helped considerably to institutionalize cross-border political relations. Political leaders of the German-speaking minority in South Tyrol had wanted to institutionalize their cross-border political ties since the 1990s. However, there was no legal framework that suited their political objectives of formal cross-border cooperation. The launch of the EU EGTC tool created a critical moment to relaunch their plans and to create the EGTC European Region Tyrol–South Tyrol–Trentino (Engl 2016). A major goal of cross-border cooperation is the fostering of socio-economic development, which also affects minority areas and minority actors in the respective region. Peripheric areas can become central places for hinterlands located in another state, as in, for example, the Italian–Slovenian borderland, the Hungarian–Slovenian borderland or the Hungarian– Romanian borderland (Kaplan 2000, Engl 2020). Minority associations or representatives become important actors for regional development, such as in the Danish–German borderland, the Italian–Austrian borderland or the French–Spanish borderland (Malloy 2010, Engl and Mitterhofer 2015, McCall and Itçaina 2017). While boosting and maintaining socio-economic development is a general aim of substate policies, cross-border cooperation can be a strategic asset for peripheral border areas with minority populations that are economically less developed and often neglected by state-designed economic development plans. In the Hungarian– Slovenian border area, the Muraba EGTC aims to prevent the emigration of young people from the area, explicitly referring to members of national minorities, by creating and disseminating alternative employment opportunities, as well as implementing related education and practical training (Engl 2020). Economic development is also an issue in the Hungarian–Slovakian borderland, where the Hungarian-dominated regions of southern Slovakia feel disadvantaged compared with other parts of the country. EU-supported cross-border cooperation can counterbalance such domestic economic disparities by increasing the accessibility of a border area from the other side of the border and by formalizing cross-border cooperation structures with the help of the EGTC tool, as has been the case in the borderland around Štúrovo and Esztergom (Engl 2016, Balogh and Pete 2018). Moreover, cross-border cooperation often deals with identity issues that are relevant for minority populations, such as language, culture and historical memories. Numerous cross-border cooperation institutions and projects are aimed at valorizing and strengthening regional and minority languages. EGTCs at the French–Spanish border promote the Basque, Catalan and Occitan regional languages, both by recognizing them as working languages within their institutionalized cooperation and through common projects to valorize these languages (Engl 2014, 2020). This mobilization should partly compensate for the shortfall in the legal status of these languages on the French side (Bray and Keating 2013) and provides

Between dynamic practice and normative limits  297 opportunities for language activists to become advisors to policymakers (McCall and Itçaina 2017). We also find EU-supported cross-border cooperation targeting minority languages in Central and Eastern Europe. The Muraba EGTC at the Hungarian–Slovenian border aims to promote and support bilingual education and training, explicitly referring to the minority communities in the area and the preservation of their language and culture (Engl 2020). In the Italian–Slovenian borderland, public actors and minority actors from both sides of the border work together on an Interreg project to valorize and enhance the linguistic and cultural heritage of the minorities in this borderland.3 In such minority contexts, borders are moreover often loci of historical memories. EU-supported cross-border cooperation sometimes also deals with such memories. Examples can be found in the Danish–German borderland, the Hungarian–Slovakian borderland and the Austrian–Italian borderland. In the Danish–German borderland, an Interreg project dedicated to the 150th anniversary of the Battle of Dybbøl aimed to demonstrate Danish–German reconciliation and joint collaboration for the development of the cross-border region (Klatt 2017). The Abaúj-Abaújban EGTC at the Hungarian–Slovakian border initiated a Historical Memorials project to showcase historical cultural relations in the border area and to raise awareness of shared history in the cross-border territory (Engl 2020). In the Austria–Italian borderland, the EGTC European Region Tyrol–South Tyrol–Trentino supports the project Historegio, which involves cooperation between historians from the three Euregio universities to conduct research on various aspects of the common history of historical Tyrol.4 These processes and activities demonstrate that EU-supported cross-border cooperation, while initially stressing economic and functional considerations, also has significant political and cultural implications that tackle historical legacies and the political meaning of borders. Although such cross-border cooperation can be used to affirm cross-border ethnonational identities (Bray and Keating 2013, McCall and Itçaina 2017), many of these EU-driven cross-border interactions spark a more diverse multilingual and multicultural environment (Markusse 2011, Engl 2020) rooted in local regional identities based around the common experience of the border (Kaplan 2000, Harris 2018). Furthermore, these examples show that the EU EGTC tool has become an important and vivid instrument for cross-border cooperation in minority contexts.5 A comparison between the geographic location of EGTCs6 and the geographic mapping of minorities7 reveals that many EGTCs overlap geographically with minority settlement



For further information on this project, see www​.ita​-slo​.eu/​it/​primis. For further information, see www​.europaregion​.info/​de/​historegio​.asp. 5 Cross-border cooperation is a very diverse process that can be organized along formal and informal channels. Therefore, apart from the EGTC tool, there are numerous other ways to cooperate – and forms of cooperation – across a border. Due to the aim of this chapter, the focus here is on the EGTC tool. 6 The geographic location of an EGTC is determined by identifying the EGTC members and their geographical location. 7 Minority settlement areas are determined according to the cartographic reproductions in Pan, Pfeil and Videsott (2018). In the methodological section of this book, the authors apply an inclusive definition of the term ‘minority’ that includes national and autochthonous minorities, and stateless groups such as the Basques and the Catalans, as well as groups with a state-constituent status such as the Flemings and Walloons in Belgium. The graphic and cartographic representations in their book face some limitations and do not necessarily indicate compact settlement structures. Although this may lead to a degree of 3



4

298  Research handbook on minority politics in the European Union areas. In fact, 84 per cent of the EGTCs that existed by mid-2020 (63 of 75 EGTCs) included a member located in an area with a distinct cultural or minority identity. Though this means neither that these EGTCs were established because of the minority communities nor that the minorities play a key role in the EGTCs’ cooperation, it demonstrates the use of the border for cooperation purposes and illustrates the multi-ethnic and multicultural context in which many EGTCs operate. Figure 15.1 gives an overview of the distribution of cross-border EGTCs that include a member located in a minority settlement area along European borders.8

Note: Interregional EGTCs (i.e., EGTCs composed of non-adjacent authorities) and EGTCs that are being closed or dissolved are not included in the figure. Source: Created by the author.

Figure 15.1

Geographic distribution of cross-border EGTCs with a member located in a minority settlement area

imprecision when mapping the minority situation in the EGTCs, this should not be relevant for the overall picture provided in this chapter. 8 The figure refers to functioning cross-border EGTCs that had been created by the end of 2020. This means that interregional EGTCs (i.e., EGTCs established between non-adjacent authorities) and EGTCs that are being closed or dissolved have been removed. EGTCs that have been created since the beginning of 2021 were not covered in this study. This leads to a total of 54 functioning cross-border EGTCs that include members that are located in a minority settlement area.

Between dynamic practice and normative limits  299 Table 15.1

Classification of the minority situation in cross-border EGTCs with a member located in a minority settlement area

1. One-sided

2. One-sided multiple

3. Two-sided

19

5

15

(a) kin-state

(b) no

(a) kin-state

kin-state 7

12

(b) no

(a) kin-state

kin-state 2

3

4. Two-sided multiple 15

(b) no

(a) kin-state

kin-state 11

4

(b) no kin-state

8

7

Source: Created by the author.

These EGTCs display diverse minority situations that can roughly be divided into four categories, illustrated in Table 15.1. The first category is a one-sided minority situation. This means that we find one minority settlement area within the geographic scope of the EGTC and that this area is located on one side of the state border in that EGTC. The second category, one-sided multiple, applies to EGTCs that have multiple minority settlement areas on one side of the respective state border, which fall into the EGTCs’ geographic scope due to its members. The third category, a two-sided minority situation, applies if the geographic scope of an EGTC includes a minority settlement area on both sides of the respective state border within that EGTC. The fourth category, a two-sided multiple minority situation, applies if there are minority settlement areas on both sides of the respective state border within the EGTC and at least one of them is multiple with more than one minority. As Table 15.1 shows, most of the cross-border EGTCs that include a member located in a minority settlement area have a one-sided minority situation (19). However, there are also considerable numbers of EGTCs with a two-sided and a two-sided multiple minority situation (15 each). Twenty-eight cross-border EGTCs display a kin-state–kin-minority connection (1.a, 2.a, 3.a, 4.a), whereas 26 cross-border EGTCs do not have such a connection (1.b, 2.b, 3.b, 4.b). Most of the EGTCs with a kin-state–kin-minority connection are situated in Central and Eastern Europe: in the Hungarian borderlands, the Slovakian borderlands, and the Czech and Polish borderlands as well as the Italian–Austrian and Italian–Slovenian borderlands. EGTCs with a one-sided minority situation and a kin-state connection (Group 1.a) have the most exclusionary partnership arrangements, as six out of the seven EGTCs in this category establish an exclusive partnership between local authorities with a minority community and local authorities of the respective kin-state. Five of them are situated at the Hungarian– Slovakian border, and one is located at the Italian–Slovenian border. However, the table also demonstrates that 21 EGTCs with a kin-state dimension are embedded in multiple and two-sided minority situations, suggesting a more inclusive, as well as culturally and ethnically diverse, context. The EGTCs without a kin-state dimension are mostly located in Western Europe at the Portuguese, Spanish and French borders, where many minority groups do not have a kin-state, and at the Italian–Austrian border. This confirms earlier findings that cross-border cooperation in minority areas often builds on commonly used legal instruments, such as the EGTC. As has already been noted, numerous EGTCs are located along Hungary’s borders. They mainly focus on issues of interest for Hungarian minorities in neighbouring countries and aim to improve regional development and to intensify the connection between Hungary and Hungarian communities abroad (ECMI Report 2016, Balogh and Pete 2018, Scott 2020). Hungary takes a systematic approach to supporting EGTCs, which is in line with its policy of nation-building beyond its borders and its constitution-

300  Research handbook on minority politics in the European Union ally enshrined and politically promoted engagement to support its kin-minorities (Harris 2018, Scott 2020), which will be further assessed in the next section (for a study on structural conditions for the creation of EGTCs in Eastern and Central Europe, see Telle and Svensson 2020). However, we likewise note that many EGTCs operate in multi-ethnic and multicultural contexts. Most of the EGTCs establish multilingual and multicultural institutional environments of cooperation. Only 4 per cent of the 75 EGTCs that existed by mid-2020 were monolingual (i.e., one working language specified in the statute), whereas 96 per cent of the EGTCs are bilingual or multilingual (i.e., two or more working languages specified in the statute) (Engl 2020). These bilingual and multilingual EGTCs cover many regions with strong linguistic and cultural identities and minority populations, such as Catalonia, the Basque Country and Galicia in Spain; South Tyrol and Friuli-Venezia Giulia in Italy; southern Slovakia; and western and eastern Slovenia. The constant monitoring of the EGTCs by the European Committee of the Regions shows that the language and culture policy fields are key issues of cooperation in many EGTCs.9 According to the 2017 and 2018 EGTC Monitoring Reports, culture and sports activities are the second-most-popular EGTC activities, while education and training follow in fourth and fifth place, respectively (CoR 2017, 120; CoR 2018, 116). Overall, EGTCs create a dynamic situation in the European borderlands, which is particularly relevant for borderlands with minorities and tense border issues. Authorities use the border to create common cross-border institutions and to develop cross-border cooperation strategies that either have a specific purpose or serve multipurpose cooperation goals. EGTCs are EU-driven cross-border legal institutions that apply elements of multilevel and diversity governance because they are at the intersection between different states, different local and regional authorities and different cultural and identity boundaries. Furthermore, EGTCs have an inherent bilateral and multilateral element because each prospective EGTC member must notify the respective state authorities of its intention to participate in an EGTC and send that Member State a copy of the proposed EGTC convention and statutes. Within six months of receiving such a notification, the Member State must decide whether or not to approve participation in the EGTC. The Member States where the proposed EGTCs will have their registered offices have to give their approval for the EGTCs’ establishment, whereas other Member States can also approve an EGTC by not raising any objection within those six months. Finally, studies show that most EGTCs have resources and instruments for collective action that they are capable of managing. Over 70 per cent of the EGTCs have a stable collective financial arrangement provided by members’ funding, and almost 80 per cent of the EGTCs are operated by their own staff (Evrard and Engl 2018). This collectivization of resources and actions on a cross-border scale may provide opportunities to accommodate complex claims for control over territory and provide new means for the expression of identities and allegiances. Kin-State Activism While some of the EU founding members included minorities with an external kin-state, such as the Danish minority in Germany and the German-speaking minority in Italy, most The Committee’s EGTC Monitoring Reports provide an insight into the EGTCs’ activities in the language and culture policy areas, albeit with some limits because culture is grouped with sports, and language is incorporated into education and training (CoR 2017, 2018). 9

Between dynamic practice and normative limits  301 recent kin-state activism has been observed in Eastern Europe during and in the wake of the EU’s eastern enlargement. The process of acceding to the EU and the Schengen area created particular political dynamics in this complex landscape of ethnic minorities, kin-states and resident states (Liebich 2019). The Schengen border and EU external borders are rigid borders towards non-Schengen and external states. This has major effects on minorities, as it disadvantages minority communities that have to cross an external EU border or a Schengen border to maintain cross-border contacts with their kin-state, such as Hungarians in Serbia and Ukraine or Croats in Bosnia and Herzegovina and Serbia (Waterbury 2008, McCall 2013, Bieber and Bieber 2021). These more rigid borders have encouraged kin-states to grant special privileges for co-ethnics abroad through benefit or status laws and through non-resident citizenship and voting rights for external kin-groups (Liebich 2019, Bieber and Bieber 2021; Udrea and Smith 2021). While many Central and Eastern European states, such as Slovenia, Croatia, Poland and Romania, adopted citizenship and status laws or similar institutions and legal measures for their kin-minorities, the present chapter focuses on the example of Hungary. A large amount of literature on the Hungarian example documents the complex relationship between domestic factors, factors in the resident state of the minorities and EU integration that explain why Hungarian communities abroad are prominent in Hungary’s domestic politics and bilateral relations. This gives insights into processes that are also relevant for other kin-states’ experiences and kin-state policy instruments. Moreover, Hungary is the most active state in promoting EGTCs at its borders, and this case therefore fits into the previous section on cross-border cooperation. While this chapter focuses on EU and border-related issues, these cannot be isolated from other factors at play, which is why they are touched on here briefly. Hungary has strong collective national narratives, especially regarding the perception of injustice resulting from past territorial losses in the Treaty of Trianon (Scott 2018, Liebich 2019). Moreover, the Hungarian Constitution enshrines a commitment to Hungary’s external kin, stating Hungary’s responsibility for the preservation and development of Hungarian communities abroad (Liebich 2019). Based on these factors, the Hungarian government developed extensive institutional ties to its kin-groups already in the 1990s, establishing, for example, the Government Office for Hungarians Abroad, the Hungarian Standing Conference and the World Congress of Hungarians (Waterbury 2008, Liebich 2019). Finally, party ideology and party politics also play an important role. Scholars largely agree that Hungary’s activism has become more pronounced and persistent since the right-wing Fidesz government came to power. This government shifted kin-state policy from identity recognition and support for Hungarian culture abroad to explicit trans-sovereign nation-building that is not limited to the formal borders of the Hungarian state (Waterbury 2008, Udrea 2017, Scott 2018, Liebich 2019). These domestic issues intersect with external issues. These concern nationalist policies and minority protection policies in the resident states of Hungarian minorities, such as Slovakia and Romania (Galbreath and McEvoy 2010, Harris 2018), and EU policies about borders and minorities (Waterbury 2008, Bieber and Bieber 2021). Interestingly, scholars have noted that Hungarian kin-state activism has increased despite the fact that its bordering states have significantly improved the accommodation of their minority groups (Galbreath and McEvoy 2010, Udrea 2014). This suggests that Hungary is pushing its kin-state activism in part regardless of the status and the rights of its kin-minorities abroad (Udrea 2014), whereas domestic factors and border perceptions seem to play a more important role.

302  Research handbook on minority politics in the European Union The perception of the Schengen border as a burden has fuelled the ideological positions of the Fidesz–MPP government (Waterbury 2008, Liebich 2019). When joining the EU, the Eastern European states became the new eastern border of the EU and the Schengen regime, which raised symbolic and practical concerns. As Waterbury notes: The hierarchical nature of the EU-broadening process drew yet another line between those post-communist countries worthy of membership and those not yet deemed worthy. … The biggest practical concern on both sides of the border about Schengen was that it would enforce hard borders and a hierarchical system of opportunities separating Hungary from many of its co-ethnics. Schengen also meant that some ethnic Hungarians—such as those in Slovakia—would enjoy a privileged status within the EU, whereas others would face numerous barriers just to enter the Union temporarily. (2008, 224)

Thus, being part of the Schengen regime had significant implications for Hungary’s engagement with Hungarian communities abroad (Liebich 2019). It threatened the vision of a unified cultural nation and the practical interaction between the Hungarian government and the representatives of Hungarian minorities in neighbouring states and thus also the ability of Hungarian state elites to control transborder relations (Waterbury 2008). Furthermore, scholars have criticized the fact that European actors and institutions, on the other hand, established norms that lacked clarity in relation to minority rights and minority– kin-state relations (Waterbury 2008). Hungarian political leaders have perceived a lack of active support from the EU for Hungary’s concerns related to Hungarian minorities. ‘There was some uncertainty about what constituted European norms in terms of kin-state polities; and second, based on previous experience and the coming imposition of Schengen borders, existing European norms on minority rights protection lacked resonance and legitimacy with domestic actors’ (Waterbury 2008, 227). This combination of domestic factors, a negative perception of the EU’s effect on borders and the lack of EU policies to counterbalance these tensions resulted in unilateral actions by the Hungarian government in favour of Hungarian minorities abroad that antagonized Hungary’s neighbouring states. Both the 2001 Act on Hungarians Living in Neighbouring Countries (the so-called Status Law) and the 2010 amendment to the Hungarian Citizenship Act providing for a fast-track citizenship procedure and non-resident voting rights for Hungarians living in neighbouring states were not secured with bilateral agreements with the affected states, resulting in unilateral processes of debordering (Scott 2018). While this debordering can reduce the rigidity of borders, it can also fuel minority–majority tensions in the states where the minorities reside. The ‘unilateral use of borders as a political resource’ can backfire (Scott 2018, 14), putting a strain on interethnic relations and increasing perceptions of Hungarian minorities as a security risk (Liebich 2019). Furthermore, it has stratified the Hungarian minorities by creating different tiers and reoriented their political attention and resources away from the home state towards the kin-state (Waterbury 2017). This creates a sort of alienated situation in which the minorities direct their attention to Budapest, while their daily life is still bound to their home state and, more importantly, to the region where they live. As Liebich concludes: If the goals of Hungary’s engagement are to unify the transborder Hungarian nation and to improve the situation of Hungarian minorities in neighboring states, the evidence suggests that Hungary’s kin-state activism is backfiring on both fronts. The consequences of granting non-resident citizenship to Hungarians abroad and Hungary’s involvement in minority politics in neighboring states demon-

Between dynamic practice and normative limits  303 strate that kin-state activism can be more harmful than helpful to external kin, and more divisive than unifying. (2019, 678)

Overall, kin-state activism can arise from a rationale that perceives state borders as a burden. Furthermore, actions are often exclusively and unilaterally framed at the state level and not well anchored in the very local context of the border area, especially if the major drivers for kin-state activism are rooted in domestic factors in the kin-state. The Limits and the Potential of the EU in these Debordering Processes Debordering processes in the EU reveal different effects and potentials for further developments with regard to minorities. While kin-state activism has an immediate connection with minority issues, it often reveals rather narrow and exclusionary approaches. There is no doubt that kin-state support can be crucial to enhancing the status and the rights of minorities. The debordering effect of kin-state activism is, however, rather exclusionary for two reasons. First, it concerns only those minority communities that have a kin-state, and second, these policies are often unilaterally designed between the kin-state and the kin-minority. In particular, if kin-state policies follow rather state-driven interests, they may not be tailored to the specific local needs of minority groups in border regions. Moreover, the EU essentially does not have an approach to kin-state activism, as it has not adopted any specific normative guidelines on these issues. By contrast, substate diplomacy and cross-border cooperation are not specifically tailored to minorities. However, they draw a rather dynamic and broad picture of debordering processes that are relevant for minority communities. These processes include all types of minorities in border regions and tackle both regional development and identity issues. Furthermore, they are predominantly designed by regional and local partners at the substate level and can thus result in a local form of cross-border multilateralism. The EU has created favourable conditions for these debordering processes and has adopted specific policies to further enhance them, such as the Interreg programmes and the EGTC tool. EU debordering policies create opportunities for local political activism and for the development of the organizational capacities of borderland communities in general and minority communities in particular. They can enhance local political clout (Brunet-Jailly 2005) and enable structurally heterogeneous entities to cooperate in some efficient and stable ways despite their huge institutional differences (Cornago 2010). These debordering policies are locally and regionally rooted and prioritize local expertise, including minorities’ cross-cultural knowledge and social capital (Malloy 2010). Thus, they are appropriate strategies for dealing with problems arising from socio-economic peripherality and ethnonational complexity (McCall and Itçaina 2017), particularly in contested borderlands, where regional identity may be a strong category of perception and political activity (Harris 2018). They can convert the perception of minorities as troublemakers, which is likely to create intrastate conflicts, into a perception of minorities as actors for regional cross-border development (Malloy 2010). Overall, we can observe that EU policies have also triggered border-related mobilization in troubled borderlands with strong historical legacies to use borders to develop strategies and institutions. This kind of debordering expands the political space in which minority political actors can make claims and pursue their interests; it enhances their opportunities to build

304  Research handbook on minority politics in the European Union alliances outside their domestic political space and increases the mobilizational resources that support their political goals (Waterbury 2017). However, substate diplomacy and cross-border cooperation also face political setbacks and structural limits that emerge from both the state and the substate levels as well as from the European level. Political setbacks at the state and the regional level come from the lack of political and financial support for cross-border cooperation (see, for example, Klatt 2017, 250–51, for the Danish–German borderland), whereas structural limits are often rooted in legal and administrative obstacles for cross-border cooperation. At the European level, the normative foundation for EU policies that support cross-border cooperation remains rather narrow. The main rationale behind these policies is rooted in the reduction of economic disparities and the enhancement of economic, social and territorial cohesion. This predominantly functional socio-economic logic neglects the fact that cooperation on the ground is also relevant in areas of political and normative concern, such as ethnic conflict and cultural diversity. The normative framework does not acknowledge the role of cross-border cooperation for diversity governance and reconciliation.10 Cross-border cooperation is, however, essential to mediation and reconciliation, especially in situations of blurred state borders and cultural boundaries, because it opens up ‘the territorial cage of the state to enable the development of inter-communal relations and intercultural dialogue with those on the other side of the border’ (McCall 2013, 198). Although reconciliation is a fundamental goal of European integration, the role of substate cross-border cooperation in view of this goal has never been normatively framed or explicitly prioritized.11

CONCLUSION Mitigating the role of political borders remains a crucial aim of minority communities and kin-states. What borders represent and what effect they reveal can influence how actors mobilize across and use political borders. A border’s effect and meaning can influence whether political leaders seek cooperative ties that are coordinated among the affected regions and states (multilateralism) or whether they opt for ties in disharmony with the affected regions and states (unilateralism). The EU has invested considerable efforts to establish its internal borders as loci for cooperation. Minorities that live in Europe’s borderlands have taken advantage of this regional empowerment. EU-supported cross-border cooperation has helped them to institutionalize cross-border cooperation structures, to pursue socio-economic development and to deal with identity issues that are relevant for minority populations, such as language, culture and historical memories. Moreover, the EU EGTC tool establishes multilingual and multicultural institutional environments of cooperation. Many EGTCs have members that are located in minority settlement areas, and language and culture are among the most important policy fields that EGTCs engage with. EGTCs have an inherent bilateral and multilateral

The only case in the EU where cross-border cooperation has an explicit link to conflict mediation is the Irish borderland (McCall and Itçaina 2017). 11 Recent initiatives by minority representatives to reconcile minority claims to enhance their regional identity and capacity with the logic of EU structural policy – for example, the Minority SafePack Initiative (www​.minority​-safepack​.eu/​) – have not been successful. 10

Between dynamic practice and normative limits  305 element and collectivized resources and thus can accommodate complex claims for control over territory and provide new means for the expression of identities and allegiances. However, EU-driven debordering processes also have some considerable limits from the perspective of minorities. First, the EU’s normative framework for cross-border cooperation neglects the cultural and linguistic diversity of borderlands stemming from minority communities and local identities. It also disregards the related political and cultural significance of borders. Second, debordering processes are vulnerable to the resecuritization of borders pushed by nationalist agendas and moments of crisis. This can in turn reduce the capacity to implement cross-border cooperation in the form of sustainable debordering. While moments of crisis crystallize the weaknesses of the EU border regime, they can also provide pressure and opportunities to acknowledge and enhance the political role of border regions and the resilience of debordering achievements and processes. The EU has considerable potential to push for European solutions at its internal and external borders and to enhance local and regional multilateralism. The EU’s support for border regions is a dynamic policy field. Back in the 1990s, it softened centralist traditions in France, Italy and Spain that had historically granted very limited room for external activities on the part of substate entities. By now France has become one of the most active states in support of further EU tools to facilitate substate cross-border cooperation, along with Luxembourg (Engl and Evrard 2020). Moreover, the EU has long refused to develop legal tools to promote cross-border cooperation, arguing that it lacked the competence to do so. The adoption of the EGTC tool in 2006 was a major turning point, resulting from problem pressure, lobbying and political entrepreneurial skills that paved the way for this instrument (Engl 2014, Evrard and Engl 2018). Today, EU tools for cross-border cooperation get increasing attention within the EU’s cohesion policy and beyond. Past reforms have witnessed a continuous extension of aims and tools, and this trend is likely to continue in the next funding periods (Engl and Evrard, 2020). Institutions and networks of regions and border regions, such as the Committee of the Regions, the Association of European Border Regions and the Mission Opérationnelle Transfrontalière continue their lobbying efforts at the European level and seek to use the Covid-19 pandemic and its effect on borders to enhance and push their claims with regard to border regions and debordering processes. They demand that the pioneering role of border regions for cooperation in Europe be further acknowledged and that substate cross-border cooperation be politically anchored as a forward-looking process that secures Europe for future generations. More concretely, the Committee of the Regions backs proposals for further tools to facilitate cross-border cooperation, such as the European Cross-Border Mechanism (Engl and Evrard 2020), and elaborates a long-term vision on the future of cross-border cooperation and how border regions should be part of the next-generation EU. Ultimately, these initiatives are about strengthening a normative framework that recognizes the political role of border regions and their cooperation. Such a discussion on the normative framework can create an opportunity for representatives from border regions and minorities to push for a role for border regions that goes beyond the primarily functional logic of cohesion policy. They could seize this opportunity to lobby for a normative framework that considers the special features of border regions as cultural transit zones, that addresses their particular local and regional identities and that acknowledges their role in diversity governance. Acknowledging the special identities in border regions can provide an opportunity to overcome the EU’s paradoxical approach to minorities whereby the protection of minorities is

306  Research handbook on minority politics in the European Union a fundamental value of the Union but at the same time an area perceived as not lying within the scope of its competencies (Constantin, 2017). Political decisions not only arise from rational choices and power relations but are made within ambiguous and contingent processes, where functional linkages and problem pressures are at play, which can also be exploited by less powerful political entrepreneurs. A crisis often starts a discussion on basic principles. A fundamental discussion on the EU’s basic principles of cross-border cooperation can be an opportunity to push for a normative acknowledgment of the role border regions and their cross-border ties in diversity governance and reconciliation or, in other words, to acknowledge not just the functional logic but also the political and intercultural logic, with an explicit reference to the minorities in European borderlands.

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Between dynamic practice and normative limits  307 Engl, Alice, ‘Die Nutzung neuer Instrumente europarechtlicher Zusammenarbeit für eine engere Kooperation zwischen Nord- und Südtirol’, in Peter Hilpold, Walter Steinmair and Christoph Perathoner (eds), Rechtsvergleichung an der Sprachgrenze (Peter Lang 2011) 115–56. Engl, Alice, Zusammenhalt und Vielfalt in Europas Grenzregionen. Der Europäische Verbund für territoriale Zusammenarbeit in normativer und praktischer Dimension (Nomos 2014). Engl, Alice, ‘Bridging Borders through Institution-Building: The EGTC as a Facilitator of Institutional Integration in Cross-Border Regions’ (2016) 26:2 Regional & Federal Studies 143–69. Engl, Alice, ‘Europe’s Culturally Diverse Borderscapes: The EGTC from the Perspective of Minority Studies’, in Gyula Ocskay (ed.), 15 Years of the EGTCs: Lessons Learnt and Future Perspectives (Central European Service for Cross-border Initiatives 2020) 197–218. Engl, Alice, and Estelle Evrard, ‘Agenda-Setting Dynamics in the Post-2020 Cohesion Policy Reform: The Pathway towards the European Cross-Border Mechanism as Possible Policy Change’ (2020) 42:7 Journal of European Integration 917–35. Engl, Alice, and Johanna Mitterhofer, ‘Bridging National and Ethnic Borders: The European Grouping of Territorial Cooperation as a Space for Minorities’ (2015) 12 European Yearbook of Minority Issues 5–32. Engl, Alice, and Carlin Zwilling, ‘Cross-Border Cooperation between Historical Legacies and New Horizons’, in Jens Woelk, Joseph Marko and Francesco Palermo (eds), Tolerance through Law: Self Governance and Group Rights in South Tyrol (Brill 2008) 161–76. Evrard, Estelle, and Alice Engl, ‘Taking Stock of the European Grouping of Territorial Cooperation (EGTC): From Policy Formulation to Policy Implementation’, in Eduardo Medeiros (ed.), European Territorial Cooperation: Theoretical and Empirical Approaches to the Process and Impacts of Cross-Border and Transnational Cooperation in Europe (Springer 2018) 209–27. Evrard, Estelle, Birte Nienaber and Adolfo Sommaribas, ‘The Temporary Reintroduction of Border Controls Inside the Schengen Area: Towards a Spatial Perspective’ (2020) 35:3 Journal of Borderlands Studies 369–83 (published online 2018). Galbreath, David J., and Joanne McEvoy, ‘European Integration and the Geopolitics of National Minorities’ (2010) 9:3–4 Ethnopolitics 357–77. Harguindéguy, Jean-Baptiste, and Katy Hayward, ‘The Institutionalization of the European Internal Cross-Border Co-operation Policy: A First Appraisal’ (2014) 22:1 European Planning Studies 184–203. Harris, Erika, ‘Identity, Territory and Self-Determination in Transborder Regions of Eastern and Central Europe’, in Jacint Jordana, Michael Keating, Axel Marx and Jan Wouters (eds), Changing Borders in Europe: Exploring the Dynamics of Integration, Differentiation and Self-Determination in the European Union (Routledge 2018) 110–27. Kaplan, David H., ‘Conflict and Compromise Among Borderland Identities in Northern Italy’ (2000) 91:1 Tijdschrift voor economische en sociale geografie 44–60. Keating, Michael, ‘Regions and International Affairs: Motives, Opportunities and Strategies’, in Francisco Aldecoa and Michael Keating (eds), Paradiplomacy in Action: The Foreign Relations of Subnational Governments (Frank Cass 1999) 1–16. Klatt, Martin, ‘Minorities as Secondary Foreign Policy Agents in Peacebuilding and Reconciliation? The Case of Denmark and Germany’ (2017) 27:3 Regional & Federal Studies 239–59. Klatt, Martin, ‘The So-Called 2015 Migration Crisis and Euroscepticism in Border Regions: Facing Re-Bordering Trends in the Danish–German Borderlands’ (2020) 25:3 Geopolitics 567–86 (published online 2018). Lantschner, Emma, ‘History of the South Tyrol Conflict and its Settlement’, in Jens Woelk, Joseph Marko and Francesco Palermo (eds), Tolerance through Law: Self Governance and Group Rights in South Tyrol (Brill 2008) 3–15. Lecours, André, ‘Political Issues of Paradiplomacy: Lessons from the Developed World’ (2008) Clingendael Institute, Netherlands Institute of International Relations. Letamendia, Francisco, ‘Basque Nationalism and Cross-Border Co-Operation between the Southern and Northern Basque Countries’ (1997) 7:2 Regional & Federal Studies 25–41. Liebich, Alexandra, ‘The “Boomerang Effect” of Kin-State Activism: Crossborder Ties and the Securitization of Kin Minorities’ (2019) 34:5 Journal of Borderlands Studies 665–84.

308  Research handbook on minority politics in the European Union Malloy, Tove H., ‘Creating New Spaces for Politics? The Role of National Minorities in Building Capacity of Cross-Border Regions’ (2010) 20:3 Regional & Federal Studies 335–51. Markusse, Jan, ‘Transborder Regional Alliances in Europe: Chances for Ethnic Euroregions?’ (2004) 9:3 Geopolitics 649–73. Markusse, Jan, ‘National Minorities in European Border Regions’, in Doris Wastl-Walter (ed.), The Ashgate Research Companion to Border Studies (Ashgate 2011) 351–71. McCall, Cathal, ‘European Union Cross-Border Cooperation and Conflict Amelioration’ (2013) 17:2 Space and Polity 197–216. McCall, Cathal, and Xabier Itçaina, ‘Secondary Foreign Policy Activities in Third Sector Cross-Border Cooperation as Conflict Transformation in the European Union: The Cases of the Basque and Irish Borderscapes’ (2017) 27:3 Regional & Federal Studies 261–81. Medeiros, Eduardo, ‘The Role of European Territorial Cooperation (ETC) in EU Cohesion Policy’, in Eduardo Medeiros (ed.), European Territorial Cooperation: Theoretical and Empirical Approaches to the Process and Impacts of Cross-Border and Transnational Cooperation in Europe (Springer 2018) 69–93. Medeiros, Eduardo, ‘The EGTC as a Tool for Cross-Border Multi-Level Governance’, in Gyula Ocskay (ed.), 15 Years of the EGTCs: Lessons Learnt and Future Perspectives (Central European Service for Cross-border Initiatives 2020) 145–68. Noferini, Andrea, Matteo Berzi, Francesco Camonita and Antoni Durà, ‘Cross-Border Cooperation in the EU: Euroregions amid Multilevel Governance and Reterritorialization’ (2019) 28:1 European Planning Studies 35–56. Pan, Christoph, Beate Sybille Pfeil and Paul Videsott, National Minorities in Europe: Handbook of European National Minorities, Volume 1, 2nd edition (Berliner Wissenschaftsverlag 2018). Perkmann, Markus, ‘Cross-Border Regions in Europe: Significance and Drivers of Regional Cross-Border Co-operation’ (2003) 10 European Urban and Regional Studies 153–71. Scott, James W., ‘Hungarian Border Politics as an Anti-Politics of the European Union’ (2018) 25:3 Geopolitics 658–77. Scott, James W., ‘Introduction to a Research Agenda for Border Studies’, in James W. Scott (ed.), A Research Agenda for Border Studies (Edward Elgar Publishing 2020) 3–24. Segura, Caterina García, ‘Sub-State Diplomacy: Catalonia’s External Action amidst the Quest for State Sovereignty’ (2017) 22:2 International Negotiation 344–73. Telle, Stefan, and Sara Svensson, ‘An Organizational Ecology Approach to EGTC Creation in East Central Europe’ (2020) 30:1 Regional & Federal Studies 47–71. Udrea, Andreea, ‘A Kin-State’s Responsibility: Cultural Identity, Recognition, and the Hungarian Status Law’ (2014) 14:2 Ethnicities 324–46. Udrea, Andreea, ‘The Kin-State Policies of Hungary, Romania, and Serbia in 2015: An Increasingly Centred Approach on Extraterritorial Citizenship’ (2017) 14 European Yearbook of Minority Issues 216–30. Udrea, Andreea, and David Smith, ‘Minority Protection and Kin-State Engagement: Karta Polaka in Comparative Perspective’ (2021) 20:1 Ethnopolitics 67–82. Ulrich, Peter, ‘The EGTC, Transformative and Innovative Governance and National Boundaries’, in Gyula Ocskay (ed.), 15 Years of the EGTCs: Lessons Learnt and Future Perspectives (Central European Service for Cross-border Initiatives 2020) 169–95. Vasilev, George, ‘The Ethics of Kin State Activism: A Cosmopolitan Defense’ (2019) 33:4 Ethics & International Affairs 395–410. Wassenberg, Birte, ‘Secondary Foreign Policy as a Peace-Building Tool: A European Model? The Contribution of Cross-Border Cooperation to Reconciliation and Stability in Europe’ (2017) 27:3 Regional & Federal Studies 219–37. Waterbury, Myra A., ‘Uncertain Norms, Unintended Consequences: The Effects of European Union Integration on Kin-State Politics in Eastern Europe’ (2008) 7:2–3 Ethnopolitics (formerly Global Review of Ethnopolitics) 217–38. Waterbury, Myra A., ‘National Minorities in an Era of Externalization’ (2017) 64:5 Problems of Post-Communism 228–41.

16. Special territories in the European Union Maria Ackrén

INTRODUCTION The European integration has been going on for a long time since the establishment of the European Economic Community (EEC) in 1957. The Treaties of Rome were signed by France, Germany, Italy, Belgium, the Netherlands and Luxemburg. With the extension of the EEC and later the establishment of the European Union (EU) in 1993 as we know it today according to structure and function, several more countries have become members, which also means that several more regions have become part of the Union. Some of these regions are territorial autonomies or regions with special status within the countries where they are situated. This has led to the establishment of the Committee of the Regions for regions integrated within the main territory of the Member State and special status for former colonies as Overseas Countries and Territories (OCTs). Other categories are the ‘African, Caribbean and Pacific States’ (ACPs)1 and the Outermost Regions. The ACP countries are all independent sovereign states but have entered specific cooperation within the development policy with the EU. The Outermost Regions are integrated regions within their respective metropolitan states. These regions have been former colonies and are part of the EU on equal footing with other European regions on the European continent. The OCTs are a group of regions, which are in between the latter categories. They are not sovereign states and not just colonies, as in the past. These regions have reached some degree of autonomous status within the countries of which they are part (Gad et al., 2011: 15–16). There are also territorial autonomies, which have been able to become subjects of specific protocols in relation to the Member State’s application to the EU. One such example is the Åland Islands. The legal statuses regarding these special regions (OCTs, Outermost Regions and others) have an atypical position vis-à-vis EU law. According to lawyers, we can distinguish three statuses in relation to EU law: the Outermost Regions, the OCTs and a plethora of ad hoc arrangements, which do not fall into the other two categories but can be classed as a group of sui generis territories. The notion of ‘EU law of the Overseas’ has therefore been introduced (Kochenov, 2012). The idea of regional cooperation and regional integration is not a new idea within the EU framework. It has been the core of EU integration since the European Regional Development Fund was established in 1975 (Borrás-Alomar et al., 1994). The EU has had a special relationship with its OCTs since the original signing of the Treaty of Rome in 1957 to promote their economic and social development and to bring them closer to the EU (Sutton, 2012: 79–80). As the EU has grown into a political and economic organization so has its complex structure and function. The special territories enhance this complexity and at the same time show some flexibility within the EU legislative system.



1

For further on the ACP, see Chapter 20 in this volume.

309

310  Research handbook on minority politics in the European Union The special regions are a diverse group of regions, which represent various cultural and ethnic characteristics different from the majority population of the states they belong to. For instance, in the Caribbean and Pacific island regions we find a lot of diverse ethnic and cultural groups speaking different languages. The mixed populations that are located in these island regions become part of the EU policy, even though the EU might not acknowledge this to be part of minority politics per se, but it falls under ‘the Unity in Diversity’ slogan. The slogan is from 2000 and functions as a motto for the EU (EU’s motto, n.d.). The most detailed policies around minority issues are found in the 1992 European Charter on Regional and Minority Languages and the 1995 Framework Convention for the Protection of National Minorities. However, these two documents are treaties under the auspices of the Council of Europe and not of the EU. Some of the EU Member States have signed these documents, so in a way these become indirectly part of the EU policy as part of the Member States’ policies. The EU framework affects the regions in many areas, not least because it is local and regional authorities which implement two-thirds of all legislation coming from Brussels (Stephan, 2010: 10). The regions do have different channels through which they participate in European governance. One channel of participation is through the national governance of the Member State. Another channel is through the Committee of the Regions. A third form is through organizations and network structures within and outside the formal structures of the EU institutions, mostly focused on business and trade. Some regions also have their own offices placed in Brussels. Other ways of participation are through lobbying the Members of the European Parliament and through access to the Commission (Stephan, 2010: 27). This chapter will map and discuss regions with special status and their relationships towards the EU. It will not be an exhaustive list, but it will give the reader an insight into how complex the EU framework is and how far the flexibility within EU law goes. What kind of relationships do these territories have with the EU? How are these relationships structured and organized? Who has the decision-making power in matters related to the regions? How are EU laws or regulations implemented in the regions? The first section will shed light on the Outermost Regions that constitute regions which are members of the EU but might enjoy some exemptions from EU law. The second section will focus on the OCTs, which all constitute former colonies but have reached some degree of autonomy within the countries of which they are part. The third section will look at the ad hoc arrangements or the sui generis territories and their relationships with the EU. The fourth section will take on a comparative approach while the last section will offer some concluding remarks.

OUTERMOST REGIONS The Outermost Regions are scattered in the Caribbean Sea (Guadeloupe, Martinique, Saint Barthélemy, Saint Martin), in the Atlantic (the Canary Islands, Madeira and the Azores) and the Indian Ocean (Réunion), and also include French Guiana, lying in South America (Lőrincz, 2011). The Outermost Regions have economic dependence on a small number of products or single-product markets. These regions also have some natural resources that contribute to Europe as a whole (such as tropical fruits, vegetables, sugar and other products). The EU can claim wider territorial waters, for instance for fishery purposes, leading to an exclusive economic zone of 25 million square kilometers (Lőrincz, 2011).

Special territories in the European Union  311 The concept of Outermost Regions was first introduced in the Treaty of Amsterdam in 1997. It was reinforced by the Treaty of Lisbon, which recognizes the special nature of the Outermost Regions and the need for specific action to foster their development, because of their insularity, remoteness, small size, topography and climate, and economic dependence on one or a few products. The inhabitants of the regions can enjoy the same opportunities as those in the EU, since they are an integral part of the EU. All the rights and duties are therefore applicable to the Outermost Regions. The European Council can adopt by unanimity, and upon consultation with the European Commission, a decision to modify the status of a country or a Danish, French, or Dutch territory (OCT). Until the end of 2011, for example, Saint Barthélemy was an EU Outermost Region, but in 2012 it became an OCT. The opposite happened in 2014 with Mayotte, which was an OCT and by Council Decision became an Outermost Region. The Treaty of Lisbon introduced a mechanism in relation to the Outermost Regions so that the list of those regions can be adapted without a treaty modification. This is regulated in Article 355 of the Treaty of Lisbon (Lőrincz, 2011). The Outermost Regions have a dual challenge in relation to the EU. On the one hand, the membership of the EU gives them access to the Single European Market, but on the other hand, they are geographically distanced from the EU or their metropolitan state, which gives them relationships with usually poorer countries with which they might have more commonalities, in relation to economic, historic, and cultural ties (Lőrincz, 2011). In this way, these regions might have a hard time developing and becoming attractive partners for the Single European Market. Within EU law the starting assumption is that the EU acquis applies in full unless the contrary is stated (Kochenov, 2011a). Articles 349 and 355 of the Treaty on the Functioning of the European Union (TFEU) are currently regulating the Outermost Regions. The Outermost Regions do have special economic and tax measures imposed indirectly and differently from the rest of the Union. There are also some specific procurement schemes with price subsidy mechanisms for certain consumer goods. These are specified in various EU programs (Consolidated Version of the Treaty of the European Union, 2012, 2016; Valente, 2015). Most of the Outermost Regions fall into Objective 1 status for EU regional funds; i.e., they are amongst the least wealthy regions with their gross domestic product at 75 per cent or less of the EU average (Valente, 2015). This is why the interest of the regions in receiving subsidies is high in an EU context. The Outermost Regions are protecting the sea routes of Europe and defending its external borders from foreign attacks. This is part of the Union’s Common Security and Defence Policy (CSDP), including military and civilian missions and operations abroad. In terms of global importance, the EU has a presence in the heart of the Indian Ocean, the Caribbean and South America. This gives the EU opportunities to use some of the regions for certain high-tech activities, such as the European Space Agency in French Guiana and the Astrophysics Institute in the Canary Islands. Furthermore, the EU can use the territorial waters surrounding the Outermost Regions as marine laboratories, which can be used for food security, combatting climate change, energy development and biotechnology (Valente, 2015). As can be seen from Table 16.1, the regions belong to Portugal, France and Spain, with most of them being of French origin. They are all quite small in both area and population, but there are also some diversities amongst them. French Guiana is the only landlocked region situated in South America, and has the largest territory, while all other regions constitute islands. The Canary Islands, belonging to Spain, have the largest population. Regarding the population and ethnic composition, these islands follow their metropolitan states. There are some mixed

France

France

Saint Barthélemy*

Saint Martin

Caribbean

Caribbean

Indian Ocean

Caribbean

Caribbean

Ponta Delgada

Marigot

Gustavia

Saint-Denis

Fort-de-France

Funchal

Cayenne

Pointe-à-Pitre

Las Palmas

54

25

2,512

1,128

802

83,846

1,628

7,447

2,322

(sq km)

Surface area

32,556 (2020)

7,122 (2020)

859,959 (2020)

358,749 (2020)

254,368 (2018)

290,691 (2020)

376,879 (2020)

(2018)

2,108,121

243,862 (2018)

Population

other Protestant

European, mixed Spanish

Roman Catholic and

African, Indian,

Roman Catholic

French (official),

European, mixed

Roman Catholic

Roman Catholic

Roman Catholic

Roman Catholic

Roman Catholic

Roman Catholic

Roman Catholic

Religion

English, Dutch,

African, Asian and

French (official) and

mixed

European, African,

African

African and mixed

Portuguese

Indian, European

Mixed African and

European

Mixed African and

Spanish

Portuguese

Ethnicity

English

French

French

Portuguese

French

French

Spanish

Portuguese

Language

Note: Saint Barthélemy has changed its status to an OCT since 2012. Sources: Kochenov (2011b: 439), https://​en​.populationdata​.net/​countries/​azores/​, https://​en​.populationdata​.net/​countries/​canary​-islands/​, https://​en​.populationdata​.net/​ countries/​guadeloupe/​, https://​en​.populationdata​.net/​countries/​french​-guiana/​, https://​en​.populationdata​.net/​countries/​madeira/​, https://​en​.populationdata​.net/​countries/​ martinique/​, https://​en​.populationdata​.net/​countries/​reunion/​, www​.cia​.gov/​library/​publications/​the​-world​-factbook/​geos/​print​_tb​.html, www​.cia​.gov/​library/​publications/​the​ -world​-factbook/​geos/​print​_rn​.html, accessed 27 October 2020.

France

Réunion

Atlantic

Portugal

France

Madeira

France

French Guiana

Martinique

South America

France

Guadeloupe

Atlantic

Atlantic

Portugal

Spain

Azores

Canary Islands

Location

Member State

Outermost Region

Capital

The Outermost Regions of the EU

Table 16.1

312  Research handbook on minority politics in the European Union

Special territories in the European Union  313 populations, because of African and East Indian descent, especially in the Caribbean islands, but the language and religion are the official languages and religions of their metropolitan counterparts. Since all these regions are part of the EU, they are also part of the Euro zone and are seen as domestic regions within the country of which they are part. Below, the Portuguese regions of the Azores and Madeira are discussed briefly. Azores and Madeira The Portuguese islands of the Azores and Madeira are identified as autonomous areas with their own legislative competencies within the Portuguese constitution. Several sections of the constitution are devoted to the island regions; for example, Article 5, which defines Portugal’s territory as being made up of the European mainland and the Azores and Madeira. Both autonomous regions have full legislative, executive and jurisdictional powers, and both are members of the EU (Ackrén, 2017b: 238–9). Besides the Portuguese constitution, the two autonomous regions are regulated through statutes. The regions’ legal framework is based on these statutes regulating the exercise of self-government as well as their rights, powers and duties. The statutes can be further elaborated and improved by the regional assemblies (Ackrén, 2017b: 238–9). Both regions have the right to participate in negotiations of international treaties and agreements that directly concern them. They also have the right to cooperate with foreign regional bodies and participate in international organizations with the purpose of improving inter-regional cooperation and dialogue; however, this participation usually takes place within the Portuguese delegations on the state level, where representatives from the Azores and Madeira are members. They may, on their own initiative or at the request of authorities that exercise sovereign power, express opinions on issues that fall under the autonomy’s responsibility and concern regarding the autonomous region. This is also linked to the relationship with the EU (Ackrén, 2017b: 240). Within the EU framework the Azores and Madeira participate within the delegation of Portugal, the diplomatic mission or the representation of the Portuguese state. The regions are integrated into the Portuguese delegation. The regions are regarded as Outermost Regions because of their geographical and economic specificities, which include their difficult topography, small size, insularity, remoteness, different climate and economic dependency on a small number of products. The islands take advantage of several EU programmes. The regions have two representatives (one from each region) in the Committee of the Regions (Ackrén, 2017b: 244–5). The Committee of the Regions is an advisory board within the EU, where the regions are consulted by the Commission, the Council of Europe or the European Parliament in legislation on matters related to local and regional administration, such as health, education, employment, social policy, economic and social cohesion, transport, energy and climate change. The Committee of the Regions drafts opinions on legislative proposals and sends the opinions to the relevant EU institutions. The Committee of the Regions can also issue opinions on its own initiative.

OVERSEAS COUNTRIES AND TERRITORIES The OCT status has existed since the establishment of the EEC in 1957. This category was originally referred to as a remnant of European colonialism, entitling the regions to EU aid

314  Research handbook on minority politics in the European Union and benefits (Hannibal et al., 2013: 77). The decolonizing process transformed many OCTs into independent sovereign states, which led to their subsequent withdrawal from the OCT grouping. These newly independent states instead became associated with the EEC under development agreements for the ACPs (Hannibal et al., 2013: 79). The OCTs have received the same privileges regarding development assistance and trade agreements as the ACPs on a later date. In 1991, a reform was adopted regarding the relationship between the OCTs and the EU. The Council adopted an association decision by which the OCTs became included in a partnership with the Commission and the metropolitan Member State. This is a tripartite relationship with the EU, meaning that negotiations take place between the OCTs, their Member States and the Commission (Hannibal et al., 2013: 80). The tripartite meetings focus on the programming and implementation of the regional and territorial allocations financed under the European Development Fund (EDF). The OCT Association (OCTA) was established in 2002. The first step towards this organization was taken in 2000 when some of the OCTs met for the first time on their own initiative to coordinate positions on a new draft association decision. All communication between the OCTs and the EU before 2001 went through the metropolitan state, while the new adopted association decision created a forum on three levels with independent OCT participation: the OCT-EU Forum, the tripartite meetings and the Partnership Working Parties. This is still an informal way of dealing with the relationships within the EU since the OCTA decisions are agreed upon through unanimity in the Council (Hannibal et al., 2013: 81). The OCT-EU Forum brings together all OCTs’ governments, the European Commission and representatives of the Member States. Tripartite meetings are held between the Commission, the OCTs and the relevant Member States. The OCT-EU Forum is a high-level instance of political dialogue. It takes place annually and is chaired by the European Commission. For the period of 2020–27, the EU has been allocated €500 million for cooperation with the OCTs on an annual basis. Priority policy areas are in line with the overarching aims of the Commission within the Green Deal, Digital and Sustainable Growth and the OCTs’ own priorities within these fields. Partnership Working Parties are the third form of policy dialogue. These act more as advisory forums and provide for technical discussions on particular areas of policy (Clegg, 2016: 548). The Partnership Working Parties may be convened at the request of the Commission, of a Member State or of an OCT. They provide for technical discussions on matters which are of specific concern to the OCTs and the Member States, complementing the work that is being done in the OCT-EU Forum and/or in the trilateral consultations. Several Partnership Working Parties have been dealing with issues such as the environment, climate change, natural disasters, renewable energy, regional integration, rules of origin and trade, financial services, education and research. The current form of the legislation regulating the OCTs is stated in the Lisbon Treaty in articles 198–204 of the Treaty on the Functioning of the European Union (TFEU). Article 198 states that the Member States agree to associate the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the UK with the EU. Furthermore, the purpose is ‘to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole’. After consultation with the European Commission, the European Council can change the status of the OCTs by unanimous decision. The list of OCTs can also be enlarged by a Council decision. It is accepted that OCTs have a wide-ranging autonomy, covering

Special territories in the European Union  315 sectors such as economic affairs, employment, public health, internal affairs and customs. The OCTs are not part of the Union’s customs territory and are outside the Internal Market. OCT inhabitants hold EU citizenship because they are nationals of the EU Member States to which their countries and territories are constitutionally linked (Hruškovič, 2014). As of 1 February 2020, the OCTs have been reduced from 25 to 13 regions due to the UK’s Brexit. We have now six regions from the Netherlands, six from France and one from Denmark constituting the OCTs. As can be seen from Table 16.2, most of the regions follow the metropolitan powers when it comes to language and religion. However, most of the regions have their own ethnicities due to their geographical location. Even though the metropolitan language might be the official one for most of the territories, other local languages are widely used within the communities. Below, Greenland is described briefly as one example of the OCTs. Greenland Denmark became a member of the EEC in 1973. At the time, Greenland was a county and an integrated part of Denmark, and therefore Greenland also became a member of the EEC, despite the results of a Greenlandic referendum where 70 per cent were against EEC membership (Gad, 2013: 220). After the introduction of home rule in 1979 (Ackrén, 2017a), a referendum was submitted to the population of Greenland in 1982 asking their opinion regarding membership of EEC. The people of Greenland decided for secession from the EEC with a 53 per cent majority. The main reason behind the decision involved the fisheries industry, which would become controlled by Brussels. The subsequent withdrawal negotiations with the EEC led to an agreement whereby Greenland became an OCT. This provided the fisheries industry with the possibility of exporting fishery products to the European market, as well as achieving tax-free access. This meant that the EEC could keep its fishing rights in the Greenlandic Exclusive Economic Zone. In return, Greenland kept the payments from the EEC it had received from the social and structural funds (Gad, 2013: 221). Greenland left the EEC and took the money with it, both in terms of the lump sum of development subsidy, which had been converted to fisheries payments, and the tax-free access to the EU market. Greenland had de facto taken over the competence over fisheries in 1985 from Copenhagen. The European Commission invented ‘paper fish’, which converted fish to cash. However, this was not sustainable, and in the 1990s when the cod fish market collapsed in Greenland, the EU continued to buy the right to fish cod and the Commission pressured the European Court of Auditors and the European Parliament to come up with another solution. In 2006, a solution was found: a joint declaration concerning an EU/Greenland partnership was issued to cover the fisheries agreement and a new partnership agreement with a focus on cooperation regarding minerals, transportation and climate research (Gad, 2013: 224). In the Home Rule Act of 1978 it was stated that the home rule authorities may demand that in countries in which Greenland has special commercial interest, Danish diplomatic missions should attend to such interests. Since 1992, a Greenlandic representative has worked in the Danish diplomatic mission in Brussels and held diplomatic status. Greenland acts on its own at the OCTA meetings, but Danish representatives are involved in the tripartite meetings between the Commission, metropolitan states and the OCTs (Gad, 2013: 224). The core priorities of Greenland within the EU relationship is to keep the cash flow from Brussels and self-government in fisheries intact (Gad, 2013: 227). In 2009, the EU prepared a ban on the

Netherlands

Aruba

Port-auxFrançais

Indian Ocean,

Antarctica

France

French Southern

(9.1%), Dutch (4.3%), other

Carib Indian, European

France

Saint-Pierre and

Miquelon

NL

Saba

and Dependencies

Atlantic

Caribbean

Pacific

Saint-Pierre

The Bottom

Nouméa

242

13

18,575

7,063

2,000

249,000

Roman Catholic (60%), Protestant (30%), other (27.1%), Wallisian, Melanesian-Polynesian dialects

(mostly Roman Catholic)

French (official)

(1%)

Roman Catholic (99%), other

Caucasian (49%), other (widely spoken), Spanish,

Basques and Bretons

Roman Catholic

Afro-Caribbean (49.1%), Dutch (official), English Papiamento

(10%) Futunian (8.2%), other

French (official), 33

Kanak (39.1%), European

other

(Swahili dialect)

beliefs Comorians (58.5%), French, Muslim (97%), Christian

peoples (1.1%), other

French (official), Mahorian

English

France

Mamoudzou

194,000

New Caledonia

Indian Ocean

374

France

Mayotte*

Evangelic Lutheran Danish (7.5%), other Nordic (Protestant), Inuit spiritual

Nuuk

Greenlandic (89.5%),

Arctic

Danish (widely used),

visits from scientists,

Largely uninhabited, but

Catholic (30%), other

Protestant (54%), Roman

fishermen and military staff

French

metropolitan 10%)

(12%), French (local and

Polynesian (official), other

Protestant (3.2%), others

Polynesian (78%), Chinese

Colombian (3%), others

Spanish, other French (official),

Pentecostal (6.6%),

(6%), Dominican (3.6%),

Roman Catholic (72.8%),

Protestant, Jewish

Roman Catholic (82%),

Protestant (4.3%), other

Roman Catholic (75.3%),

(official), English (official),

Dutch (official), Papiamento Curacaoan (75.4%), Dutch

(widely spoken), Spanish

(predominant), English

Dutch (official), Papiamento African descent (95%),

(widely spoken), etc.

(official), Spanish, English

Religion

Greenlandic (official),

56,452

140

26,000

Ethnicity

Dutch (official), Papiamento Aruban (66%), Colombian

Language

Denmark

2,166,086

439,781

4,167

142,180

15,414

90,508

Population

Greenland

Papeete

444

288

180

(sq km)

Surface area

Territories

and Antarctic

Pacific Ocean

France

Willemstad

French Polynesia

Caribbean

NL

Curaçao

Kralendijk

Oranjestad

Capital

NL

Caribbean

Caribbean

Location

Bonaire

(NL)

Member State

The Overseas Countries and Territories of the EU

OCT

Table 16.2

316  Research handbook on minority politics in the European Union

NL

NL

Sint Eustatius

Sint Maarten

Pacific

Caribbean

Caribbean

Location

Mata-Utu

Philipsburg

Oranjestad

Capital

264

34

21

(sq km)

Surface area

15,289

71,000

3,100

Population

Futunian (30.1%), other

Wallisian (58.9%),

Polynesian

(1%)

Roman Catholic (99%), other

(5.2%), other (7.8%), Jamaican (6.6%),

Papiamento, French, other French (official, 10.8%),

Catholic (33.1%), Hindu

Dominican (10.2%), Haitian other

Protestant (41.9%), Roman

Saint Maarten (29.9%),

Canadian (3%), other (5%)

Papiamento (official), Spanish, Creole,

American (14%), American/ Catholic (minority)

English (official), Dutch

Dutch (78%), Latin

Protestant (majority), Roman

Religion

(widely spoken), Spanish,

Ethnicity

Dutch (official), English

Language

Note: *As mentioned earlier, since 2014 Mayotte has changed status to Outermost Region. Sources: Kochenov (2011b: 440–41); CIA World Factbook, www​.cia​.gov/​the​-world​-factbook/​, accessed 30 May 2021.

Islands

Wallis and Futuna France

Member State

OCT

Special territories in the European Union  317

318  Research handbook on minority politics in the European Union import of sealskin. Greenland reacted, and with collaboration from Denmark it was possible to ensure that the ban exempted sealskin harvested by traditional hunters (Gad, 2013: 228). In this way, the EU has acknowledged Inuit and indigenous rights regarding seal hunts. In 2009, Greenland received its enhanced form of self-government, and under the Self-Government Act Greenland can now act on its own within international affairs. Greenland has the right to sign bilateral treaties with other countries and become a member of international organizations, where not just states are members, on its own (Act on Greenland Self-Government). Greenland remains outside the EU, but is associated with the EU according to Article 355 (2) of the TFEU and Annex II TFEU where Greenland is listed as an OCT. OCTs may levy customs duties which meet the needs of their development and industrialization or produce revenues for their budgets. Furthermore, OCTs can apply for the same treatment of their trade as other EU Member States, other OCTs and their metropolitan states. This means that Greenland may, for example, not levy more favorable duties on Denmark than on other Member States (Stephan, 2017: 284–5). Greenland should follow the non-discrimination policy as it is outlined in the EU regarding equal opportunities. Fisheries has been the most problematic issue for Greenland’s relationships with the EU. There is a specific protocol regulating this, Protocol 34. The protocol establishes exemption from customs duties and the absence of quantitative restrictions on fishery imports from Greenland conditional upon satisfactory possibilities for access to Greenland fishing zones granted to the Union. Access to Greenland’s fishing zones has been governed by fishery agreements since 1985. In terms of the administration, the fishery partnership is governed by a Joint Declaration consisting of EU representatives, representatives from the Danish government and representatives of Greenland’s government, and is serving as a forum for monitoring the application of the agreement and ensuring its implementation (Stephan, 2017: 288). The Joint Declaration is a political declaration between the EU, Denmark and Greenland. The Declaration recalls the historical, political, economic and cultural ties between the parties, and accounts for the various aspects of the current relationship. The agreement is related to the Sustainable Fisheries Partnership Agreement signed on 26 March 2021 (Joint Declaration). Greenland’s relationship with the EU is complex. It can be seen as a three-layer association, where the first instance is the association identified in the OCT Decision governing the overall framework. The second layer consists of the Partnership Agreement where cooperation between Greenland, Denmark and the Commission is laid out, most notably in producing Greenland’s Programming Document.2 The third layer consists of the abovementioned fisheries agreement governed by the Joint Declaration (Stephan, 2017: 289).

TERRITORIES SUI GENERIS The sui generis territories constitute the most diverse group of regions within the EU framework. Here we find regions that are members of the EU, with some exemptions, while other regions are outside the EU but have entered into bilateral agreements or other relationships 2 The Programming Document from 2014–20 can be found here: https://​ec​.europa​.eu/​international​ -partnerships/​ s ystem/ ​ f iles/ ​ s igned ​ _ programming ​ _ document​ _ for​ _ sustainable​ _ development​ _ of​ _greenland​_2014​-2020​_colour​.pdf, accessed 31 May 2021. A new Programming Document is under way.

Special territories in the European Union  319 with the EU. These ad hoc arrangements lead to further complexities within the EU and its external relationships. Several sui generis territories appear to be excluded or to limit themselves from the territorial and/or substantive scope of the EU Treaties. They are referred to as sui generis territories to the extent they do not fit within the usual pattern of the associated and dependent territories, as set out in Articles 349 and 355 TFEU. In a sense they are subject to lex specialis that exclude them partially or totally from the scope of applicability of the Treaties (Laulhé Shaelou, 2011: 155). The broad category of these special territories consists of the Åland Islands, the Faroe Islands, Ceuta, Melilla and North Cyprus (Adaoğlu, 2009; Laulhé Shaelou, 2011: 156–7). The regions have some diversities in the cultural and ethnic context in relation to their metropolitan powers. The Åland Islands and the Faroe Islands have their own official languages, Ceuta and Melilla have a mixed population with various religious groupings and North Cyprus is a territory, which is not totally recognized, even though it is within the EU. Below follows a discussion of the Åland Islands, the Faroe Islands, Ceuta, Melilla and North Cyprus to shed light on the diversities between the regions. The Åland Islands During the preparations for Finland’s accession to the EU, Finland paid attention to the autonomy of the Åland Islands and the Islands’ internationally-recognized status and requested special measures to be taken so that the autonomy arrangement would not be adversely affected (Suksi, 2011: 593). Consequently, Finland proposed that exemptions were to be made in relation to the EU. The EU accepted these exemptions. The Åland Islands gave its consent to Finland’s treaty of accession into the European Union in 1994 through an advisory referendum, which was organized on 20 November 1994. The EU referendum had a low turnout of only 49.1 per cent. Of those voting, 73.6 per cent were in favor of EU membership, while 26.4 per cent voted against (Suksi, 2011: 402). The accession treaty includes a special protocol regarding the Åland Islands in terms of derogating from the Treaties regarding the restrictions on the right of domicile (hembygdsrätt), the right to own real estate (hembygdsrätt and jordförvärvsrätt) and the right to establish a business (näringsrätt). Furthermore, the Åland Islands are excluded from the territorial application of EU provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. In this way, the Åland Islands are considered a ‘third country’ in relation to the Union. The protocol takes account of the special status Åland enjoys under international law; i.e., autonomy, demilitarization and neutralization (Stephan, 2010: 29). The protocol is part of the EU acquis and this means that it can only be amended or revoked if all Member States agree (Sjölund, 2016: 10). The autonomy of the Åland Islands is 100 years old, as the territorial autonomy was decided in the League of Nations in 1921. The demilitarization and neutralization of the Åland Islands are made up of several international documents, where the 1856 Convention on the Demilitarization was attached as an appendix to the Paris Peace Treaty in which the parties agreed not to fortify the Islands and not to retain or create any establishment of a military or naval nature. This decision is also called the ‘Åland servitude’. The 1921 Convention on

Spain

Melilla

Mediterranean

North Nicosia

Melilla

Ceuta

Tórshavn

Mariehamn

Capital

Sources: Adaoğlu (2009: 127–48), Kochenov (2011b: 440).

North Cyprus Cyprus

Africa

Spain

Ceuta

Africa

North Atlantic

Faroe Islands Denmark

Location

Baltic Sea

Member State

Examples of territories sui generis

Åland Islands Finland

TSG

Table 16.3

3,355

13.4

18.5

1,399

13,517

km)

326,000

86,465

84,829

48,917

27,700

Surface area (sq Population

Islam, other other

Cypriot Turkish, English

Jewish, Hindu Turks, Greeks, English,

Roman Catholic, Islam,

Turkish (official),

Arabic

Jewish, Hindu

Roman Catholic, Islam,

Church

Evangelic Lutheran

Church

Evangelic Lutheran

Religion

mixed

European, Moroccan,

mixed

Arabic Spanish (official),

European, Moroccan,

Spanish (official),

Danish, other

Scandinavian

other

Faroese (official),

Nordic, European and

Finnish, other

Ethnicity

Swedish (official),

Language

320  Research handbook on minority politics in the European Union

Special territories in the European Union  321 the Non-Fortification and Neutralization of the Åland Islands is the most detailed regarding demilitarization and neutralization of the Islands.3 The division of power between Finland and Åland is regulated in the Act on the Autonomy of Åland, in chapters 4 and 5. Both the Åland Islands and Finland have exclusive legislation competences within their respective areas. This means that Finland cannot take over any area of competence that Åland has, or vice versa (Act on the Autonomy of Åland, 1991; Sjölund, 2016). The link between Åland and Finland is entrusted in one Ålandic MP in the Finnish Parliament, and it is also the strongest link in relation to EU matters. The Åland Islands lack representation in the European Parliament, but they have one civil servant embedded with the Permanent Representation of the Republic of Finland to the EU. This arrangement gives the civil servant diplomatic status, and the servant can attend Coreper (Committee of Permanent Representatives) and Council meetings as an observer (Stephan, 2010: 39). The Åland Islands have a representative in the Committee of the Regions. The candidate is nominated by the Government of Åland and is part of Finland’s delegation (Silverström, 2004: 10). Åland has the right to participate in the preparation of the Finnish position and the work of the Finnish delegation. The question regarding Ålandic competences must be determined in an appropriate procedure within the Finnish government (Stephan, 2010: 46). The Government of Åland has a European Affairs Unit with three employees and is supported by the Ålandic civil servant working within the Permanent Representation of the Republic of Finland to the EU. Åland does not have its own office in Brussels (Stephan, 2010: 47–8). A large amount of legislative power has been transferred to the EU, but at the same time this form of legislative power has also become part of the internal legislative process within the Ålandic authorities. New EU law is directly implemented as soon as it comes into effect within the EU (Suksi, 2005: 266). The relationship between Åland and the EU is primarily based on national law. The Act on the Autonomy of Åland contains a specific chapter (9a) on EU affairs. It defines on a national level the rights and obligations of Åland in relation to the institutions of the EU (Silverström, 2008). The Åland Islands have a very small number of exemptions in comparison to other special territories (such as the Outermost Regions and the Faroe Islands). From the Åland perspective it was important to secure the regional citizenship (the right of domicile, real estate and business). The exemption from the tax harmonization, being a ‘third country’, was to secure the shipping industry, which is vital for the economic viability on the Åland Islands. With this exemption it has been possible for the Åland Islands to keep the tax-free sales aboard the ships between Finland and Sweden. The tax-free sales were abolished within the EU on 30 June 1999 (Ackrén, 2008). The Faroe Islands During the Danish negotiations on becoming a member of the EEC, the population of the Faroe Islands were given the possibility of choosing whether they would join Denmark. There were diverse opinions on whether the Faroe Islands should join, and the Faroese government requested time for considering the alternative. On 25 January 1974, the Faroese Løgtingið (Parliament) unanimously declared that the Faroe Islands wished to remain outside the EEC.



3

For more details about these regimes see Åkermark, Henikoski and Kleemola-Juntunen (2018).

322  Research handbook on minority politics in the European Union This was partly due to the Common Fisheries Policy in the EU. The Islands were anxious about the fact that European trawlers would come and take the entire fishing stock within Faroese waters. The Faroese economy is very dependent on fisheries. Many Faroese also feared that the EEC would endanger Faroese autonomy and its road towards independence. The backdrop being that competencies would have been transferred to the EU from the Faroese authorities in vital areas of internal legislative powers. Instead, the Faroe Islands and the EEC concluded a bilateral agreement on fisheries in 1977 (Ministry of Foreign Affairs, Faroe Islands, 2010). This agreement has been renewed several times, most recently in 2008 (Agreed Record of Conclusions of Fisheries Consultations). The first Free Trade Agreement was reached in 1991 between the Faroe Islands and the EU, and the latest is from 2008 (Adler-Nissen, 2014: 66). The Free Trade Agreement from 2008 applies to products only and thus does not include services, capital or the free movement of persons (Stephan, 2017: 293). The administration for the Agreement is overseen by a Joint Committee, consisting of representatives of the contracting parties and acting in consensus. The Joint Committee has the power to establish its own rules of procedure and act as a conflict-solving mechanism. It repeals and adopts protocols to the Agreement (Stephan, 2017). The Fisheries Agreement essentially regulates the access to the fishing grounds and sets fishing quotas for different species of fish for a given period (Stephan, 2017). The Faroe Islands have had representation in Brussels since 1998. In 2001, the Faroes and the EU completed negotiations on a veterinary protocol and in 2005 the Faroe Islands entered the System of the Pan-European-Mediterranean Cooperation (Efimova and Kuznetsova, 2012: 16). The Faroe Islands are part of the Kingdom of Denmark according to the constitution. However, the home rule system the Faroe Islands have achieved since 1948 gives the Islands extensive self-government. The home rule system transfers political competence and responsibility from the Danish authorities to the Faroese authorities. The home rule authorities therefore administer the areas of competence and legislate in areas that have been transferred from the Danish state. The Faroese authorities also have economic responsibility over these areas (Ministry of Foreign Affairs, Faroe Islands, 2010). International relations are regulated through the Home Rule Act of 1948 and the Foreign Policy Act from 2005. Within the Home Rule Act of 1948 the matters of competence are divided into two groups: joint matters which are underneath the Danish state, and special affairs underneath the Faroese authorities. The Faroese home rule authorities are given some responsibility within international relations that are of vital importance to the Faroe Islands. The Foreign Policy Act from 2005 gives the Faroe Islands possibilities regarding entering bilateral agreements with foreign powers and becoming a member of international organizations which allow entities other than states to become members. However, the Foreign Policy Act does not allow the Faroe Islands to become a member of international organizations where the Kingdom of Denmark is already a member, such as the EU (Ministry of Foreign Affairs, Faroe Islands, 2010). The Faroe Islands are considered a ‘third country’ in relation to the Union. Despite this, the EU plays an important role for the Faroe Islands both as an export market and as a reference for a political future outside the Danish realm in the event of becoming a sovereign state, if that option was to be aimed for. In general, the Faroese Government is considering how to cooperate more closely with the EU without necessarily becoming a member of the Union (Adler-Nissen, 2014: 56–7). Even though the Islands are outside the EU, EU law may still apply to them in areas where Danish laws are still regulating some matters (areas where

Special territories in the European Union  323 Denmark has responsibility). This is related to the joint matters, such as foreign and security policy and monetary policy. However, this only applies if the Faroese authorities accept the laws. The Faroe Islands are under what is sometimes referred to as the ‘Brussels effect’, which goes for all entities wishing to export products to the EU market. The ‘Brussels effect’ means that the Faroe Islands need to follow EU standards on products (Hartmann, 2019). The relationship between the Faroe Islands and the EU is very much based on ad hoc solutions, in both legal and political terms, but also in practice. There is no structural all-encompassing Faroese–EU dialogue. At present the will for and legal possibility of the Faroe Islands becoming a member are lacking, since membership would have to be considered as part of Danish membership of the EU, as the Islands are part of the Kingdom of Denmark. However, various models have been discussed where the Faroe Islands have also seen the option of becoming a European Free Trade Association member or having another agreement with the EU. As of now, bilateral agreements seem to be the result of consultations with the EU. Ceuta and Melilla Ceuta and Melilla are Spanish enclaves situated on the northern coast of Morocco. In 1995, both enclaves became autonomous regions in Spain, and they are responsible for health, education and infrastructure policies. Spain has the sovereign power over international relations, defense and monetary issues. The relations with the EU are regulated through Article 25 of the Act of Spain and Protocol 2 attached to the Act of Accession of Spain. According to Protocol 2,4 Ceuta and Melilla are excluded from the Treaty provisions on the free movement of goods, customs and the EU’s Common Commercial Policy (Adaoğlu, 2009). Furthermore, the EU’s Common Agricultural Policy and Common Fishery Policy should not apply to Ceuta and Melilla (Act of Spain). Although Ceuta and Melilla are not part of the Customs Union, the products originating in these regions and entering the EU are without custom duties (Adaoğlu, 2009). Spanish existence in North Africa dates back to an era dominated by intensive conflict between Christians and Muslims for territorial control. Ceuta and Melilla are the two most important enclaves in Northern Morocco controlled by Spain. Melilla came under Spanish control in 1497, and Ceuta, which had been seized by Portugal in 1415, was transferred to Spain under the Treaty of Lisbon in 1668 (Saddiki, 2010). Morocco has claimed sovereignty over the enclaves since 1956. Morocco has brought the question to the United Nations (UN) Assembly on several occasions in order to put them onto the UN decolonization list. However, these claims have been unsuccessful (Pinos, 2008). The two enclaves of Ceuta and Melilla have been under much debate regarding the building of ‘Fortress Europe’. The Spanish government uses the challenge of irregular immigration as an argument to reinforce the fences that surround the two enclaves. The building of these fences began in the 1990s to prevent irregular immigration from Morocco. The first fences were built during 1993–95. The EU contributed €233 million to the construction of the third razor wire border fence around Ceuta in 2005. At the beginning of 2009, the Spanish govern-

4 Protocol 2, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​?uri​=​CELEX:​11985I/​PRO/​02​&​ from​=​EN, accessed 1 June 2021.

324  Research handbook on minority politics in the European Union ment allocated an extended budget to renovate and strengthen the razor wire fences surrounding Ceuta and Melilla (Saddiki, 2010). The fences are not just a symbol of a border between neighboring states. They are also a symbol of ex-colonizer and ex-colonized countries (Spain and Morocco), and a distinction between two peoples (Spaniards and Moroccans), two regions (Western Europe and Maghreb Arab), two religions (Christianity and Islam) and two continents (Europe and Africa). Territorially, the EU external border is based on the Schengen Agreement that refers to the frontiers between Member and non-Member States. In a strict sense, Ceuta and Melilla represent the de facto border of the southern EU (Saddiki, 2010). There is a daily cross-border flow of thousands of Moroccans who enter the enclaves legally for work and business. Most of these Moroccan citizens are coming from the provinces of Tétouan and Nador. They are allowed to enter the enclaves by showing their passports, without a visa requirement. This indicates a strong transboundary socio-economic linkage between Moroccan and EU citizens within the enclaves (Ferrer-Gallardo, 2008). Northern Cyprus In May 2004, the Republic of Cyprus became a member of the EU. The whole island is part of the EU, even though the northern part of Cyprus is not recognized as its own state by any nation apart from Turkey (Turkish Republic of Northern Cyprus). The application of EU law is suspended in the northern part of Cyprus in line with Protocol 10 of the Accession Treaty of 2003. This suspension does not affect the individual rights of Turkish Cypriots living in Northern Cyprus provided that they are citizens of the Republic of Cyprus. The European Parliament has established a special task force to deal with the consequences of this complex situation (Adaoğlu, 2009). During the accession process of the Republic of Cyprus to become a member of the EU, the Turkish Cypriots were never consulted nor given a chance to negotiate the terms of Protocol 10. In fact, the document never mentions the Turkish Republic of Northern Cyprus, ‘North’ or ‘Northern Cyprus’. Instead, the formulation is stated as related to ‘those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control’ (Protocol 10, 2003). As the EU does not recognize the Turkish Republic of Northern Cyprus nor Turkish Cypriot authorities, the Union cannot apply the acquis in the northern part of the island (Adaoğlu, 2009). Despite the suspension of the acquis, Article 3 of Protocol 10 enables economic relations between the EU and Northern Cyprus. Article 3 states: ‘Nothing in this Protocol shall preclude measures with a view to promoting the economic development of the areas referred to in Article 1’ (Protocol 10, 2003). Financial aid is therefore accepted by the European Council; however, Northern Cyprus is not part of the customs or fiscal territory of the EU. This means that the Turkish Cypriots cannot benefit from the free movement of goods, services and capital (Adaoğlu, 2009). According to Article 4 in Protocol 10 the suspension can be lifted in the event of a settlement between South and North Cyprus. The European Council will then have to decide unanimously upon a proposal from the Commission on the adaptions and terms concerning the accession of Cyprus to the EU with regard to the Turkish Cypriot community (Protocol 10, 2003). From the point of view of current international law, Northern Cyprus is not an autonomous region, is not a recognized independent state and is not under effective control of the Republic

Special territories in the European Union  325 Table 16.4

Summary of the regions in this study

Type of region

Status within the EU

EU law

Special agreements/protocols

Outermost Regions (ORs)

Members

Article 349 and 355 TFEU

EU programs regulate more

The Azores and Madeira (OR)

Members

Article 349 and 355 TFEU

EU programs and Portuguese

OCTs

Non-Members

Articles 198–204 TFEU

Some special agreements and

Greenland (OCT)

Non-Member

Article 355 (2) and Annex II

Partnership Agreement and

TFEU

Fishery Agreement (Protocol

details legislation protocols

34) Territories sui generis

Both Members and

The Åland Islands (sui generis)

Member

The Faroe Islands (sui generis)

Non-Member

Special agreements and

Non-Members

protocols Finland’s accession treaty

Special protocol Free Trade Agreement, the Protocol on Accession into the Market, and the Bilateral Agreement on Fisheries

Ceuta and Melilla

Members

Spain’s accession treaty

North Cyprus

Member

Suspended from EU law

Special protocol

Source: Author.

of Cyprus. Although Turkish Cypriots are citizens of the EU, they cannot benefit fully from the rights coming from EU citizenship. They have no right to participate in EU elections and they are not represented in any of the EU institutions. Northern Cyprus is the only region where the application of EU law is suspended (Adaoğlu, 2009).

A COMPARATIVE OUTLOOK As can be seen from the above sections, the EU’s relations to special territories are quite diverse. Some territories are members within the Union, while others have separate agreements or protocols regulating their relationships with the EU. The core idea seems to be that most of the territories have been able to uphold their own special legislation or have been receiving exemptions from EU law, which accommodate their special conditions or meet their needs. The relationships with the EU seem to be concentrated around issues concerning economic contexts, such as tax exemptions and customs. Other areas are within fisheries or other vital sectors of the special territories. The territories that have been used as examples illustrate a broad picture of how states are operating within the EU in relation to their special regions. Some autonomous regions, such as the Azores and Madeira, are totally integrated parts and members of the EU, while the Åland Islands as a member has been able to receive a special protocol regulating its relationship with the EU. The OCT regions, with Greenland as an example, show that bilateral agreements have been struck between the region and the EU, and this is also valid for the Faroe Islands as a sui generis territory. Neither of the two are a member of the EU. Ceuta and Melilla are important in relation to the EU’s external border towards Africa, and North Cyprus is a special case of suspension under EU law.

326  Research handbook on minority politics in the European Union From a national, state-level perspective the special regions or autonomous regions have been dealt with as usual; i.e., they have been heard, and the distribution of power within the states has been used also in relation to the EU. The diverse levels of governance between the EU, the Member States and the regions have all been at play. Decisions have been made to receive special treatment and special agreements within the states and in relation to the EU. This is also related to the implementation of regulations. It is the regional authorities with legislative powers that implement EU laws in the end. Some laws and regulations might come from the Member State level, but it is up to the region itself to implement these laws and regulations further at the local level. The EU has been flexible towards how to treat the special regions at the request of the Member States, and has also been welcoming regional voices and perspectives. In a way, the EU has played a role as a protector for the regions. Several EU programmes have been used, for instance, to enhance the economic and educational development in vulnerable regions which are located far away from the European continent. This has provided the EU a role as a trustful organization and as a good cooperation partner. The EU market is of vital importance for the special regions. The EU has also been able to take advantage of the wider borders for its own strategic and other purposes; for example, external borders are used for security purposes and wider fishery grounds, or for scientific purposes in combatting climate change. The regions have been able to organize themselves within the EU and build up special relationships between themselves in several different networks, such as the OCTA. Some of the regions can be seen as winners in the relationship with the EU, while others might have been facing more difficulties in their relationship with the Union. The EU is a dynamic, complex organization while also being a flexible system allowing for innovative institutional design. The discourse of the ‘Europe of the regions’ might be more of a reality than just a vision, as this chapter illustrates.

CONCLUSION The Outermost Regions, the OCTs and the sui generis territories (ad hoc arrangements) show a variety of relationships with the EU. The Outermost Regions are integrated parts and members of the EU, and therefore EU primary law (acquis) applies in full unless there are some exemptions that have been established. The exemptions are often related to tax regimes, economic affairs and subsidies for certain products. The Outermost Regions play a role in setting the external borders for the Union as such and are also protecting the sea routes within the EU. The OCTs are a group of regions that historically are linked to the European colonial past. These regions, which today constitute autonomous regions, have been able to establish their own network in the form of the OCTA and have close relationships with the EU in trade and as part of several EU programs. The agreements between the OCTs and the EU are done in tripartite negotiations where the regions, Member States and the Commission take part. All OCTs are non-members of the EU. The sui generis territories constitute the most diverse group of autonomous regions within the EU. Here we find both members and non-members of the EU. The special agreements in the form of protocols and bilateral treaties can be seen as lex specialis in relation to the common EU law. This chapter has given an overview of the three broad categories related to autonomous or special territories; i.e., the Outermost Regions, the OCTs and the sui generis territories

Special territories in the European Union  327 in relation to the EU. A more in-depth study would require a more detailed analysis of each region to be able to draw on specific comparative evidence. This would need further study, which is not possible in a short book chapter. There is still a lack of knowledge of the features and relationships between special, autonomous territories and their metropolitan states, and especially their relationship with the EU. Further avenues could take, for instance, a more economic context into account to enhance the knowledge about the diverse tax regimes and trade agreements that seem to be one of the focus areas where the EU has made exemptions.

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328  Research handbook on minority politics in the European Union Hannibal, Ida, Kristine Holst, Ulrik P. Gad and Rebecca Adler-Nissen, ‘European Union: Facilitating the OCTs in Brussels’ in Rebecca Adler-Nissen and Ulrik Pram Gad (eds), European Integration and Postcolonial Sovereignty Games (London: Routledge, 2013), 77–95. Hartmann, Jacques, ‘The Faroe Islands: Possible Lessons for Scotland in a New Post-Brexit Devolution Settlement’, 44/1 European Law Review [2019] 333–46. Hruškovič, Ivan, ’Legal Aspects of the Association of Overseas Countries and Territories with the European Union’, 5/1 DANUBE: Law and Economics Review [2014] 65–75. Kochenov, Dimitry, ‘The Application of EU Law in the EU’s Overseas Regions, Countries, and Territories after the Entry into Force of the Treaty of Lisbon’, 20/3 Michigan State International Law Review (MSILR) [2012] 669–80. Kochenov, Dimitry, ‘The EU and the Overseas: Outermost Regions, Overseas Countries and Territories Associated with the Union and Territories Sui Generis’, in Dimitry Kochenov (ed.), EU Law of the Overseas (77 European Monographs, Wolters Kluwer Law & Business, 2011a), 3–67. Kochenov, Dimitry (ed.), EU Law of the Overseas (77 European Monographs, Wolters Kluwer Law & Business, 2011b). Laulhé Shaelou, Stéphanie, ‘The Principle of Territorial Exclusion in the EU: SBAs in Cyprus – A Special Case of Sui Generis Territories in the EU’ in Dimitry Kochenov (ed.), EU Law of the Overseas (77 European Monographs, Wolters Kluwer Law & Business, 2011), 153–76. Lőrincz, András, ‘The Importance of the Outermost Regions for Strengthening EU Foreign and Regional Relations’, Conference Paper to International Conference on the EU as a Global Actor 2011, www​ .cvce​.eu, accessed 19 October 2020. Ministry of Foreign Affairs, Faroe Islands (2010), ‘The Faroes and the EU: Possibilities and Challenges in a Future Relationship’, https://​lms​.cdn​.fo/​media/​14223/​gula​-​%C3​%A1liti​%C3​%B0​-​%C3​%A1​ -enskum​.pdf​?s​=​bkCYFWmJVwlTaMo​-CnpzrsldLjI, accessed 3 June 2021. Overseas Countries and Territories, https://​ec​.europa​.eu/​international​-partnerships/​where​-we​-work/​ overseas​-countries​-and​-territories​_en​#header​-5522, accessed 27 May 2021. Pinos, Jaume C., ‘Identity Challenges Affecting the Spanish Enclaves of Ceuta and Melilla’ in Helène Whittaker von Hofsten, Michael Schmidt and Anne Heith (eds), Border Issue – Negotiation (Nordlit 24, 2008), 65–80. Protocol 2, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​?uri​=​CELEX:​11985I/​PRO/​02​&​from​=​ EN, accessed 1 June 2021. https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​ALL/​?uri​=​CELEX​%3A12003T​%2FPRO​ Protocol 10, %2F10, accessed 1 June 2021. Saddiki, Said, Ceuta and Melilla Fences: A EU Multidimensional Border? (CPSA Canada, 2010), www​ .cpsa​-acsp​.ca/​papers​-2010/​Saddiki​.pdf, accessed 3 June 2021. Silverström, Sören, ‘The Competence of Autonomous Entities in the International Arena – With Special Reference to the Åland Islands in the European Union’, 15/2–3 International Journal on Minority and Group Rights (IJMGR) [2008)] 259–71. Silverström, Sören, ‘De rättsliga ramarna för vissa autonomiers och mikrostaters förhållande till Europeiska unionen’, Meddelanden från Ekonomisk-Statsvetenskapliga Fakulteten vid Åbo Akademi, Rättsvetenskapliga institutionen, Ser. A:543 [2004]. Sjölund, Anna-Lena, ‘EU-rätten och behörighetsfördelningen mellan riket Finland och landskapet Åland’, 1 Rapport från Ålands fredsinstitut [2016]. Spiliopoulou Åkermark, Sia, Saila Henikoski and Pirjo Kleemola-Juntunen (eds), Demilitarisation and International Law in Context (New York: Routledge, 2018). Stephan, Sarah, ‘Greenland, the Faroes and Åland in Nordic and European Co-operation: Two Approaches towards Accommodating Autonomies’, 24/3 International Journal on Minority and Group Rights (IJMGR) [2017] 273–301. Stephan, Sarah, ‘Regional Voices in the European Union: Regions with Legislative Power and Multi-Level Governance – Perspectives for the Åland Islands’, Report from the Åland Islands Peace Institute, Nr. 1. [2010], https://​peace​.ax/​publ​-publikation/​no​-1​-2010​-regional​-voices​-in​-the​european-union-regions-with-legislative-power-and-multi-level-governance-perspectives-for-thealand-islands/, accessed 24 June 2022. Suksi, Markku, Sub-State Governance through Territorial Autonomy (Heidelberg: Springer, 2011). Suksi, Markku, Ålands konstitution (Åbo: Åbo Akademis förlag, 2005).

Special territories in the European Union  329 Sutton, Paul, ‘The European Union and the Caribbean Region: Situating the Caribbean Overseas Countries and Territories’, 93 European Review of Latin American and Caribbean Studies [2012] 79–94. Valente, Isabel M.F., ‘The Atlantic Outermost Regions, the Furthest Frontiers of Europe?’, Debater a Europa, 12 January/June [2015] 75–84, https://​impactum​-journals​.uc​.pt/​debatereuropa/​article/​view/​ _12​_4/​2928, accessed 19 October 2020.

International Conventions and Agreements The European Charter on Regional and Minority Languages and the Framework Convention for the Protection of National Minorities, www​.coe​.int/​en/​web/​european​-charter​-regional​-or​-minority​ -languages/​home, accessed 26 May 2021. The Joint Declaration, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​HTML/​?uri​=​OJ:​L:​2021:​175:​ FULL​&​from​=​EN, accessed 31 May 2021.

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17. Problem territories and internal peace: minority nations and ‘internal enlargement’ in the European Union Tove H. Malloy

INTRODUCTION The European Union’s (EU’s)1 approach to ‘internal enlargement’ has never been formulated and remains non-existent, unlike its policies for external enlargement.2 Internal enlargement within the Community is conceptualized as a process whereby ‘the number of member states grows but the territory of the union does not’ (Requejo and Nagel 2019: 150). Member states’ internal affairs are considered a sovereign matter, and any internal territorial conflicts in member states should be resolved by the democratic systems in place. During the history of the Community there have been internal conflicts in a number of member states, and changes to the territorial reaches of member states have also taken place without any official policy emanating from the Community. Disputes arising from differences between so-called minority nations3 and majorities regarding internal affairs still exist in several member states and have at times threatened the peace and security of certain areas of the Community. However, such matters are not considered a Union issue. In fact, member states with persistent internal conflicts have been admitted to the Community without this resulting in official policies for internal conflict management. Moreover, changes to the Community’s constitutional architecture have only focused on external enlargement, in spite of requests by law experts proposing amendments regarding contested territories in member states. Internal enlargement, therefore, remains a theoretical concept on the drawing board. The regulations that rule territorial matters in the EU are found in the Treaty on European Union (TEU) Articles 49 and 50. Article 49 sets out the procedure for ‘conventional’ or external enlargement regarding candidate countries seeking membership. Accession is approved in the European Council by unanimity, and an accession treaty with the incoming member state must be ratified by each member state. Article 50, which was added by the Lisbon Treaty (2007), provides for the withdrawal from the EU by a member state and sets the procedures and obligations applying to both the withdrawing member and the EU institutions. Prior to the Lisbon Treaty there was no provision for exiting the Community, and in the few cases of exit,

1 Where necessary, a differentiation between the varies community formations will be made: ‘European Economic Community’ (EEC) refers to the first constellation of the community from 1958–93. ‘European Communities’ (EC) refers to the constellation in force from 1993–2009, and ‘European Union’ (EU) refers to the current post-2009 constellation. When a generic reference is needed, ‘the Community’ will be used. 2 For a discussion of external enlargement, see Chapter 9 in this volume. 3 Defined as national minorities living compactly in homeland regions and forming strong and cohesive communities perhaps enjoying degrees of political and administrative autonomy.

330

Problem territories and internal peace  331 such as Greenland, ad hoc negotiations arranged the conditions and the Council approved it by unanimity. Thus, withdrawal is always negotiated and there is no provision for automatic excommunication (Douglas-Scott 2014). Article 48 TEU is also mentioned by experts as a potential tool for internal enlargement. Article 48 deals with amendments to the treaties, and an amendment would have to be initiated by a member state, or the Commission, or the European Parliament (EP). It requires the convening of a convention or an inter-governmental conference, which must adopt recommendations on the amendment by unanimity followed by ratification by each member state. Like the concept, applying Article 48 remains a hypothetical scenario. The lack of an official policy for secession of a part of a member state has been lamented, especially by minority nations finding themselves in opposition to their parent state on issues of territorial management. With the economic strengthening of regions of the European Economic Community (EEC) in the 1980s and 1990s as a result of regional development, a movement for more democracy within the Community emerged. Regional actors questioned the centralized decision-making procedures regarding the agenda-setting for regional development and the distribution of funds. In particular, minority nations’ elites realized that central governments are not always supportive of ethno-cultural views, claims, and competencies. Thus, they sought greater influence in Community institutions. The relevance of competencies became more apparent during the financial and economic crises that began in 2008. Minority nations with strong economic outputs or well-functioning welfare systems questioned central governments’ handling of the crises, especially as some governments recentralized in certain policy areas normally devolved to minority regions. Fuelled by latent ethno-cultural divides, some minority nations retorted to separatist rhetoric, thus exposing the thin edge between the EU cohesion aims and the development aims. Recognized and unrecognized independence referenda followed in Scotland and Catalonia, both of which saw the voters rejecting the option of independence (for a good overview, see Bourne 2014). This exposed the dynamics of centripetal and centrifugal forces in the Community – a phenomenon that does not make policy-making easy. The potential of separatist states within the EU is problematic if these expect to remain within the EU once they become independent. In the case of both Scotland and Catalonia this has been the case. Given the lack of an official Community policy on such matters, it has basically become a non-issue in the EU’s minority politics. With the exceptions of a few political reactions, the Community leaders have remained silent on the issue. This silence has not deterred academics from exposing and analysing the topic. Scholars from law and politics as well as international relations have contributed to a number of debates. In lack of Community policies, this chapter will focus mainly on the academic debates. To provide the empirical background to the debates, a short overview of the most salient internal conflicts in the Community – the Basque countries, Corsica, Northern Ireland, and Cyprus – will be discussed first. Next, a brief overview of the Community’s handling of territorial changes and exits will show how ad hoc the approach has been. The main section of the chapter will examine some of the most relevant academic debates on secession and internal enlargement. This will focus on, among other things, ‘remedial secession’ versus ‘negotiated secession,’ public international law (PIL) versus EU law, multilevel cohesion versus regionalism, federations versus confederations, supra-level citizenship rights, and conservative neutrality. In concluding, it is argued that in light of the constraints in the current EU legal framework and the realpolitik of the Council, a policy on internal enlargement is non-existent. The non-politics of the moral

332  Research handbook on minority politics in the European Union recognition of minority nations’ right to internal secession has not, however, deterred scholars from continuing their debates on hypothetical theories of internal enlargement.

THE EU AS INTERNAL CONFLICT MANAGER Unlike the strong criticism of the EEC as external conflict manager in the Balkans in the early 1990s (Gordon and Sasse 2008), there has until recently been much less criticism of the Community as internal conflict manager. The internal conflicts that have posed the greatest threat to the peace and security within the Community territory were the unsettled situations in Northern Ireland, the Basque countries before the ceasefire and settlement with the separatist ETA (Euskadi Ta Askatasuna), and from time to time Corsica. The territorial dispute in Northern Cyprus has not been violent since accession but represents a case of foreign troops on Community soil. South Tyrol (Alto Adige) in Northern Italy had a short, partially violent conflict in the 1960s due to non-implementation of the first Autonomy Statute, but this was resolved in 1972, not through the EEC but with the interference of the United Nations (UN) (see Woelk et al. 2008). None of these territorial disputes have seen Community mediation. Below brief overviews of each dispute are provided. The first regional unrest in the EEC was indirectly influenced by decolonization in Algeria in that Corsican separatists supported Algeria’s war of independence. A considerable number of Corsicans had worked in Algeria before and during the war of independence, and the Corsican départment had openly joined the cause. As the early post-colonial period saw hardships for many Corsicans, and dissatisfaction with the way the central government in Paris governed the island grew, a fertile ground for militant nationalism was laid. Since the founding of the National Liberation Front of Corsica (FLNC) in 1976, violent incidents have occurred from time to time both in Corsica and in mainland France. A ceasefire declared in 2014 has prevailed, although bombings continue to happen occasionally. Legally, Corsica is now divided into two départments, and since 1982 a parliamentary assembly has regulatory but not legislative powers for the entire island. A 2003 referendum in Corsica supported by the French government aimed at increasing autonomy powers was voted down, as it was perceived as disappointing and rather more an administrative exercise than an honest offer of greater autonomy. In 2018, three of the four Corsican members of the French Assembly promoted an amendment to the French Constitution providing greater recognition of the Corsican people and language, hoping that it would lead to new opportunities for greater autonomy (Global Legal Monitor 2018).4 The hope had been ignited by statements made by President Emmanuel Macron shortly after his election. The amendment was not adopted. Throughout France’s membership of the Community, no policy on the conflict in Corsica has been initiated by the Council or other institutions. Corsican separatists are no longer promoting separatism; they do not see independence as feasible. Instead, they see integration with the EU’s multilevel governance structures as a way towards greater autonomy. Like other French regions, Corsica has received and receives structural development funds under the Community’s Regional

The amendment proposed adding a clause to the French Constitution’s Article 72 by which Corsica would achieve constitutional recognition as a distinct community with a distinct culture and a distinct language. See Assemblée Nationale (2018). 4

Problem territories and internal peace  333 Policy. In particular, transportation infrastructure to improve connections to mainland Europe has been in focus. The UK entered the EEC in 1972 with what one might call a hot conflict in its backyard. The conflict between the religious communities in Northern Ireland was of concern to the EEC but it was not until ceasefires in 1994 provided a promising outlook that the European Commission established a task force that would identify how the European Communities (EC) and later the EU could support the emerging peace through practical assistance and programmes. While the aim was to participate in the peace process initiated by the United States, a central objective was to foster post-conflict reconciliation (Bush and Houston 2011; Commission of the European Communities 1997). At the European Council in Essen in 1994, the member states voted to prepare and fund a special programme for peace and reconciliation in Northern Ireland (European Council 1994). The PEACE programme for Northern Ireland was established and has since been funded by grants from the Community’s rolling budgets. It has focused on a number of sectors, including employment, urban and rural regeneration, cross-border development, social inclusion, and industrial development, thus following the structural development programmes implemented across the Community. Notwithstanding its potential success – and the jury is still out on this – observers have noted that ‘the PEACE programme does not replace the hard political-diplomatic initiatives required to navigate safely through that uncertain period of transition from militarised violence to peace. It may support, or reinforce, but it cannot substitute’ (Bush and Houston 2011). Parallel to the support for peace, the Community’s Regional Policy programmes have also been supporting the region with funding and development projects. Like the UK, Spain also entered the EEC with a smouldering conflict in its backyard. The conflict between the Basque National Liberation Movement – a group of Basque organizations led by ETA – and the Spanish government goes back to 1959 and was very active when Spain joined the EEC in 1986. In spite of calls by the EP to get the Council and the European Commission to take appropriate action (European Parliament Press Service 2006), and notwithstanding the hope among Basque nationalists that the Community would initiate a peace programme similar to the Northern Ireland one, it elected not to intervene in the Basque conflict. The nearest it has come to having a policy on this is its official categorization of ETA separatists as terrorists (Council 2001/2009). However, the Basque region has like all Spanish regions profited from, and still profits from, the Community’s Regional Policy. This has assisted the local authorities in upgrading from a heavily industrialized society to a modern technological and service society. Finally, when the island of Cyprus joined the EC in 2004 it was still divided in two, the Turkish-supported region in the north and the Republic of Cyprus in the south. The Treaty of Accession (2003) was signed with the Republic of Cyprus and included a protocol on the suspension of the acquis communautaire in the northern part of the island, which is not under the Republic’s control (Treaty 2003). However, the Community recognizes Turkish Cypriots as EU citizens, and the region is considered a legal part of the Community where EU law is currently suspended.5 Five attempts at peace negotiations by the UN were spearheaded by then Secretary-General Kofi Annan personally, of which the last agreement, the so-called Annan Plan V, resulted in two referenda a few weeks before Cyprus became



5

For a discussion of the Protocol on Northern Cyprus, see Chapter 16 in this volume.

334  Research handbook on minority politics in the European Union a member (Ker-Lindsay 2005), one in each sector. The referenda were uneven. In the Republic of Cyprus, it was rejected by a majority of the population, whereas it was approved with a majority in the northern part of the island. Since then, talks have continued on and off under the auspices of the UN (Ker-Lindsay 2014), but the Community has elected not to initiate peace negotiations (Ker-Lindsay 2007, Richmond 2006). Rather, experts have argued that the fact that Cyprus was admitted with a territorial dispute in its backyard has contributed to a solidification of the conflict (Ker-Lindsay 2007). However, like in the case of the Northern Ireland, the Community has instead focused on post-conflict programmes, and co-operation between Brussels and the authorities in the northern region has been institutionalized through a number of agencies in Northern Cyprus (Kyris 2014). A strong focus on capacity-building of Turkish Cypriot officials and institutions in preparation for a future integration into the Community began during the accession negotiations with the Republic of Cyprus. A Special Representative for Community matters has also been created by the authorities in the northern region. As such, the approach is similar to the Europeanization efforts implemented for the Eastern European countries (Hayward 2004, Kyris 2014). The EU has proposed increasing trade with the northern part, but this has been rejected by the government of the Republic of Cyprus. The Regional Policy is thus not implemented in Northern Cyprus, but cultural heritage in the north is indirectly incorporated in the programmes implemented by the authorities of the Republic of Cyprus (Ministry of Finance of Cyprus 2007).

COHESION VERSUS REGIONALISM Cohesion of the member states and the entire Community territory is a core component of the European peace project and has been an official policy area since 1986. In the beginning, ‘cohesion’ referred to economic and social cohesion. Since 2008, the Cohesion Policy has focused on territorial cohesion, which essentially continues the aim of earlier policies by focusing on, among other things, infrastructure connecting regions and centres to create labour mobility, development co-operation connecting regions across borders, environmental management, and capitalizing on the strengths of each territory (Commission of the European Communities 2008). Indeed, at the adoption of the 2030 Territorial Agenda, the Commissioner for Cohesion and Reforms, Elisa Ferreira, stated that ‘territories matter’ (European Commission 2020). An operational territorial agenda is now adopted for each budget period. However, the notion of ‘territory’ is not defined in the current Agenda. It refers to, among other things, areas such as ‘coastal zones, islands, mountainous areas, inner peripheries, plains, river valleys and lake basins’ (European Commission 2020: para 48). But there seems to be a consensus that territories refer to regions as well as urban centres as the main territorial spaces in focus. With regard to players, the 2030 Agenda refers to ‘sub-national authorities and bodies, including those at local and regional level and their national associations’ (European Commission 2020: para 69). These authorities are encouraged to consider the priorities of the Agenda ‘in their spatial planning and overarching development strategies and policies … In particular they are encouraged to cooperate with neighbouring territories and places facing similar or complementary potential … challenges, and with the actors involved’ (ibid.). Thus, cohesion has many aims, and the regional development within states and across state borders is clearly a part of the peace and unity objectives of the Community.

Problem territories and internal peace  335 Regional development had begun after World War II when European governments had to retool to implement welfare state systems. The modernization of European society created new avenues for politics and increased the importance of regions (Keating 2013). In some countries, such as Germany, Italy, and Spain, the notion of shared sovereignty emerged early and was incorporated into new constitutions, while others, such as France and the UK, had yet to let go of the centralized state. With the rise of the welfare state, regions became richer and more independent in their goals. A ‘new regionalism’ emerged that not only produced a large part of the surplus for the welfare states but also created a diversified approach to societal identity (Keating 1998). Regions rediscovered soft powers in terms of local culture and linguistic identities, which provided new avenues for wealth creation as well as differences in views of politics and public management. When the structural funds started flowing to the capitals of the member states but not directly to the regions in the 1980s, the scene was set for power struggles within member states and within the EEC. The German Länder (federal sub-state region) led the way and sought stronger influence on the decision-making processes in Brussels. There was a general feeling that policies that might not be easy to implement in regions were dictated from above, and funding for regions was divided among member states and disbursed to member states without asking regions for advice. Taking their cue from this development as well as the arguments raised by the German Länder, minority nations with some autonomous powers also joined the ‘rescaling’ development and began to seek influence in earnest on Community policies and politics (Keating 1998, 2013). The centripetal force of cohesion through integration came under attack from centrifugal forces. As leaders of minority regions began to question the functionality of the state as the main player in the Community, a discourse on a ‘Europe of the Regions’ emerged (Keating 1998). The hope was to create a layer of decision-making that corresponded to the regional powers within member states (Bullman 1994; Engel 1993, 1994; Jones and Keating 1995; Keating and Hooghe 1996; Marks 1992; Petschen 1993; Scharpf 1994). Although the Committee of the Regions was established in 1992, it did not satisfy regional and minority leaders, as the architecture was still based on member states and powers were with the member states. For some minority regions the disappointment was big, as they had hoped that the Community could provide the legal and political legitimation for internal enlargement through peaceful means and the option to retain memberships after internal secession. Instead, they found themselves increasingly in conflict with their central governments. The alienation of certain minority regions from the centre of government was further exacerbated by the financial and economic crises that hit in 2008. Centralization and especially austerity measures dictated without consultation did not sit well with regional elites and local governments. For instance, Spain’s consolidation of fiscal policies contributed to reduced income for public spending in the health sector and education in Catalonia (Roca 2018), whereas in Scotland sustained budget cuts ‘pushed austerity down to the level of local government [and] actively reshaped the relationship between central and local government’ (Gray and Barford 2018: 559). In both cases it resulted in a shrinking capacity of local governments to respond to the needs of their citizens for public services. Both regions enjoy degrees of autonomy within a pluri-national state. While Scotland is recognized as a nation in the British union, Catalonia is neither recognized as a nation nor as a national minority in the Spanish

336  Research handbook on minority politics in the European Union federation.6 Catalonia has staged several symbolic and unrecognized referenda since the economic crisis, while Scotland was able to hold an official and recognized referendum in 2014. Catalonia does not wish to leave the EU in a case of independence, whereas a post-Brexit independent Scotland would likely seek membership, as a majority of Scottish voters was in favour of remaining in the EU in the 2016 Brexit referendum. Both minority nations are, therefore, continuing the quest for independence from their respective central state, but only Catalonia is now relevant in the discussion of internal enlargement in this chapter.

THE NON-POLITICS OF INTERNAL ENLARGEMENT The treaties establishing the EC (TEC) and the EU (TEU) do not define the territorial scope of application of the Union with the exception of the special territories defined in Article 299 of the TEC. Most of these are overseas territories not attached contiguously to Europe, but they retain certain community rights and representation (Ziller 2007).7 While policies on these can be adopted by qualified majority in the Council, matters regarding changes to the application of Community law in these territories require unanimity, as was the case with the exit of Greenland from the EEC in 1985. However, in the event that a part of a member state achieves independence, no approval or disapproval is required by the Council. Thus, territorial partition, as in the case of Algeria’s independence from France (1962), and territorial expansion of a member state, as in the case of the unification of Germany (1990),8 is and remains a member state prerogative. Similar to the case of Greenland, departure from Community law was granted in the cases of the French territories of Saint Pierre and Miquelon (1985) and Saint Barthélemy (2012). While these territories have left the Community, they all remain under the territorial and legal jurisdiction of a current EU member state. The legal framework as applied before the adoption of the revised Lisbon Treaty (2007) had not been satisfactory to the Community’s minority nations. During the Constitutional Convention 2002–03, which aimed at drawing up a constitution for the EC, improved status for minority nations was strongly promoted by a few members of the EP from the European Free Alliance (EFA) group (see MacCormick 2004). As the EC was trying to redesign itself before the big enlargement wave from Eastern Europe, the issue of internal enlargement was also raised. In the EFA group there was a strong feeling that minority nations with legislative powers should be afforded a special status within the EC, as the principle of subsidiarity imple6 In 2016, the Spanish government made the following declaration to the Council of Europe: ‘The Government of Spain has the honour to communicate that, following the previous information provided by Spain as contained in the letter of 26 June 2003 addressed to the President of the Advisory Committee of the Framework Convention for the Protection of National Minorities, copy of which was transmitted by the Permanent Representative of Spain to the Secretary General of the Council of Europe on the same date, Spain reiterates that, in line with its constitutional provisions, it has consistently interpreted the Framework Convention in the sense that no national minority exists in its territory. The Framework Convention applies to the Spanish citizens of the “comunidad gitana” (roma, gipsies) although these citizens do not constitute a national minority.’ Available at www​.coe​.int/​en/​web/​conventions/​full​-list​ ?module​=​declarations​-by​-treaty​&​numSte​=​157​&​codeNature​=​0 (accessed 14 February 2022). 7 See further Chapter 16 in this volume. 8 Other contemporary examples of potential future unification or expansion that observers have noted are the emerging politics of a united Ireland and the more hypothetical example of a merger of Romania and Moldova.

Problem territories and internal peace  337 mented with the Maastricht Treaty had not proven effective enough for these regions to have a voice and be heard. Thus, the EFA campaigned on the basis of the notion of self-determination for all peoples of Europe for recognition of minority nations as self-governing ‘partner regions’ and the possibility of ‘internal enlargement’ within the new constitutional structure of the EC, if a member state ‘breaks up’ in two independent territories or accepts secession due to a region seeking independence (ibid.: 337). However, the EFA group was not successful in getting permission to establish a working group to examine these matters. Only one day was set aside in the Convention to discuss possible changes to the EC architecture in favour of minority nations (MacCormick 2004). Eventually, the idea of a constitution was abandoned due to negative referenda on the Lisbon Treaty in France and the Netherlands. The revised Lisbon Treaty of 2007 provided greater consultative powers to the Committee of the Regions and also included a reference to respecting minority rights and cultural diversity.9 But it did not provide for the notion of internal enlargement that minority nations had hoped for. With the adoption of the Lisbon Treaty, a new so-called democratic tool was introduced in Article 11 TEU, the option to organize European Citizens’ Initiatives (ECIs). The ECI gave the general public an option to request that the Commission initiate a legislative proposal, thus putting citizens on the same footing as the EP and the European Council. A proposal requires one million signatures before it can be submitted to the Commission. However, the Commission has the power to reject proposals that do not comply with the legal parameters of the tool. In 2012, Catalonia proposed an ECI in favour of internal enlargement in the event of secession within a member state, and the same year the International Commission for European Citizens, which represented, among others, Scotland’s Independence Convention as well as representatives from Flanders, Catalonia and the Basque region, proposed an ECI that would include the universal right of self-determination in EU treaty law (Bourne, 2014). Both ECIs were unsuccessful.10 Thus, the Commission made it crystal clear from the beginning of the ECI that it was not going to heed separatist sentiments. Political leaders of the Community continued the line of the Constitutional Convention and of the Commission’s rejections of ECIs. From Romani Prodi in 2004 to José Manuel Barroso in 2012, the line had been that any Community territory that decided to become independent would become a third country in respect to the Community and would thus stand outside Community law and the treaty system (Barroso 2012). In 2013, the then President of the European Council, Herman Van Rompuy, expressed a similar view, and in 2014 Commissioner Viviane Reding repeated the view (Douglas-Scott 2014). This approach almost became a mantra, or what Bruno Coppieters has called a ‘strategic culture’ that represents a refusal to engage with internal secession as a ‘democratic choice’ (2010: 255). Nevertheless, as some of the politicians’ remarks were made with reference to the Scottish referendum in 2014, they contributed to intensifying a debate among scholars of Community law that had already begun earlier. The rest of this chapter will focus on some of the main arguments in these debates.



See Chapter 2 in this volume. See also Chapter 8 and Chapter 10 in this volume for other ECI proposals regarding minority politics. 9

10

338  Research handbook on minority politics in the European Union

THEORETICAL PERSPECTIVES AND DEBATES A key topic of debate among legal scholars has been the status of Community law vis-à-vis PIL with regard to internal enlargement through internal secession. Specifically, the debate has focused on whether Community law or PIL should determine the status of minority nations seceding and becoming independent (Connolly 2013; Douglas-Scott 2014). According to PIL, unilateral secession leading to independence is recognized only in those cases where the consequences of secession contribute to remedying denial of basic democratic freedoms and severe human rights abuses (Buchanan 2004; Cassese 1995; Connolly 2013, 72; Hannum 1996). This is called ‘remedial secession.’ However, experts of PIL recognize that an opinion given by the Canadian Supreme Court in Reference re Secession of Québec may present an alternative to remedial secession (Connolly 2013: 74; Douglas-Scott 2014: 20). In the Opinion, the Court stated that in a case of a convincing referendum in favour of secession, this would oblige the Canadian government to outline a process for a ‘negotiated secession.’ A negotiated secession could be legitimized on the basis of the principles of federalism and minority rights as per the Canadian Constitution. Not all PIL experts agree that federalism can allow for a negotiated secession. They refer to Article 34 of the Vienna Convention on the Succession of States in Respect of Treaties (1978), which regulates the status of secession territories and other new state formations (Connolly 2013; Douglas-Scott 2014). According to Article 34, successor states continue to be bound by treaties that were in force in the entire pre-secession state at the date of secession. However, this immediately poses the question of which part of the partitioned territory retains or inherits the right to succession. Such matters of succession have been addressed mainly by the UN and other large international organizations, and the established practice is that ‘a member state retains its membership despite a loss of territory, while a new state established on the former territory of a member state must apply for membership on its own’ (Connolly 2013: 86). Moreover, with regard to retaining membership of an international organization, Article 34 is limited by Article 4 of the same Convention, which provides for the rules of the relevant international organization to take precedent over Article 34. Unless a federation has adopted legal provisions for a sub-federal region’s right to secede, there is no option for a negotiated secession. Since the Community is not a federation, this, therefore, raises another question as to whether it is an international organization in the conventional sense. Most observers today agree that the EU is a sui generis inter-state organization. It is thus difficult to make comparison to other types of inter-state organizations. But for the sake of understanding internal enlargement through negotiated secession, one inter-state example has been highlighted by experts (Bossacoma Busquets 2020). The approach taken by Switzerland and the Canton of Berne in regard to Jura separatism is useful and also helps explain the hypothetical scenario suggested by the Canadian Supreme Court in Reference re Secession of Québec. The case of Jura is based on the premise that the cantons of Switzerland are seen as republics or quasi state-like entities similar to member states of international organizations and the Community.11 The establishment of the Republic and Canton of Jura in 1979 is the example that experts analyse as internal enlargement within a confederal system similar

11 Four cantons of Switzerland use the title ‘republic’ in addition to ‘canton’: Geneva, Jura, Neuchâtel and Ticino.

Problem territories and internal peace  339 to the Community (Requejo and Nagel 2019). Prior to 1979, Jura was a predominantly French-speaking district within the German-speaking Canton of Berne. In addition to the linguistic divide there was also a religious division as the French speakers were mainly Catholics, whereas the German speakers were mainly Protestants. In 1970, the Bernese Constitution was amended, giving the Jura French a right to self-determination via a series of referenda. In 1974, the population of the Jura region with the exception of the German-speaking area of Laufen voted for the establishment of a new canton; in 1975, the population of Laufen voted to remain with the Canton of Berne, while small communities on the borderline had a third referendum to decide sides. This settled the new border between the Canton of Berne and the new Canton of Jura. Finally, in 1978 the entire population of Switzerland had the option to approve or disapprove the establishment of the new canton in a national referendum. With a majority of 82.3 per cent, the new Republic and Canton of Jura was created and established (Reuter 2016). No doubt, the entire process was democratic but also risky, not only for the Canton of Berne but also for Switzerland. Had the national referendum fallen out negative, the seceding districts of Jura would probably have had to secede from the confederation and from Switzerland, or a new internal secession model to accommodate those who voted to leave would have to be conceptualized. Moreover, the separatist feelings have not entirely dissipated in Jura. In 2013, a local referendum in the Canton of Jura and in those Jura districts that had remained in the Canton of Berne was held to determine if the Jura districts of the Canton of Berne should transfer to the Canton of Jura. The outcome was positive for the Canton of Jura but negative in the Jura districts that had voted with Berne in 1975 (Reuter 2016).12 To show the complexity of the issue, one town held yet another referendum in 2018 and decided to leave the Canton of Berne and join the Canton of Jura.13 The date of change is set for 2026. While the example of Jura shows that self-determination is possible down to the lowest level of society,14 it also is evidence that internal enlargement through negotiated secession is no simple matter, as sentiments change over time. Whether negotiated secession could be applied as a tool in the Community – possibly under Article 48 – remains a hypothetical scenario, like in the case of Québec. All scenarios are of course hypothetical, but a coherent political theory of secession could assist the imagination. Rainer Bauböck has recently introduced a ‘level-differentiated’ theory of democratic secession by which he argues that on a multilevel perspective it is possible to frame ‘secession as a change of status or affiliation of a territory within a wider constellation of territorial polities’ (2019: 228). By a ‘constellation of territorial polities,’ Bauböck means the pluri-national state or organization consisting of distinct polities that jointly determine the political status of individuals and the parent state/organization. When one of the polities in such a joint entity decides to seek internal secession, it basically seeks to migrate its status to a new territorial level. This argument rests on the fact that the administration and democracy of the parent state/organization are functioning on several levels (local, regional, national, etc.). According to Bauböck this is similar to the rescaling theory introduced by Michael Keating (2013). A key to both theories is that they consider secession a move within the constellation

The French speakers in the Canton of Berne enjoy minority rights in the areas of culture, sports, and education since 2006 through a special statute. 13 The town of Moutier actually held two referenda, of which the first was declared invalid. 14 The population of Jura in 2020 is estimated at 78,700 (Swiss Federal Statistical Office, December 2020). 12

340  Research handbook on minority politics in the European Union of the parent pluri-national state/organization as opposed to the traditional PIL view of secession whereby a territory exits the constellation and starts afresh as an independent and internationally recognized state. Thus, Bauböck and Keating seem to consider internal enlargement feasible in a sui generis system like the Community. According to Bauböck, to verify whether internal secession within a multilevel polity is legitimate, several tests should be applied. First, a ‘voluntary association’ test will establish whether each polity of the pluri-national constellation has joined it freely and therefore has a free right to leave it (Bauböck 2019: 236). Second, a ‘democratic purpose’ test will clarify if there is a right to remedial secession in the traditional PIL sense of having suffered harm and violations of human rights (ibid.: 237). Finally, there are the ‘recognition’ tests, which establish relations of the seceding territory to (1) its citizens – i.e., does a majority of the population in the seceding territory support secession; (2) its parent state/constellation, establishing whether the parent entity will support secession; (3) its regional affiliate, if applicable, meaning a co-unit with which the seceding territory shares powers; and (4) its fellow member territories – i.e., will the other territories of the constellation support the territory seeking secession. These tests require verification through democratic procedural approaches, such as referenda, and are similar to the procedures applied in the case of Jura. However, according to Bauböck, the example of Jura is not applicable to the Community and the minority nations seeking internal enlargement through negotiated secession. The reason for this is that minority nations within Community member states, seeking secession in a similar manner to the Jura districts, will not be able to pass the four recognition tests because politics in the Council will likely prevent it. Other member states with separatist-prone minority nations will not wish to support it for fear of ramifications for their own territorial integrity. It would seem, therefore, that justifying internal enlargement on the basis of a negotiated secession in a level-differentiated manner is not feasible within the Community as politics trumps procedure. This, therefore, puts the entire theoretical debate in question. Another scholarly perspective on internal enlargement has been the so-called citizenship argument (Douglas-Scott 2014). Again, ambiguity makes the argument fuzzy. According to Article 9 and Article 20 TEU, any person holding citizenship of a Community member state is also a citizen of the Community. The interpretation of this is that the Community citizenship is additional to the state citizenship; i.e., derivative (Douglas-Scott 2014: 17). However, the European Court of Justice (ECJ) has eliminated some of the ambiguity by confirming that member states’ legislation must respect Community law and not deprive citizens of their enjoyment of Community rights.15 This raises the question as to whether citizens of minority regions seeking internal enlargement would be considered Community citizens after secession. If the ECJ’s opinions prevail, citizens of seceding regions would be Community citizens, and the EU institutions would have to take their rights seriously. This argument also rests on the fact that given that the rights of Community citizens are fundamental (human) rights, Community law is no longer only addressing member states but also the people and communities of the Community (Douglas-Scott 2014: 24). As such, this citizenship argument seems to speak to the idea of a level-differentiated approach to internal secession because it overrides the member state’s monopoly on conveying rights. According to Bauböck, citizenship is indeed defined by the multilevel frameworks that exist within the constellations of states or 15 Rottmann v Freistaat Bayern, C-135/08 [2010] ECR I-1449; Gerardo Ruiz Zambrano v Office national de l’emploi, C-34/09 [2011] ECR 1-0000.

Problem territories and internal peace  341 organizations. This means that citizens who are residents of regions with self-government can derive their citizenship not only from the central national state but also from the Community. It requires them to respect the integrity of the national member state as long as it ‘preserves their collective autonomy’ (Bauböck 2019: 235). Thus, if a member state does not respect the autonomy of a minority region, it would be the Community citizenship that protects residents of self-governing regions in cases of disputes over territory. The citizenship argument takes the discussion in a new and different direction. Collective autonomy rights are not individual rights; they are corporate rights assigned to a specific territory, and the residents of that territorial region enjoy the corporate rights jointly and within the specific territory. Thus, in so far that collective autonomy rights cannot be adjudicated as individual rights, the Community citizenship argument does not seem to hold. Moreover, the citizenship argument is still subject to the procedural recognition tests outlined above and approval by the Council, which would likely withhold recognition. As there is no institution that can override the Council, the citizenship argument will succumb to the politics of the Council. The power of the Council in secession matters is thus crystal clear. This is also the view of some scholars holding that recognizing secession within a member state is simply not within the powers of the Council (Kochenov and Brink 2016). The Council is bound by neutrality in member state matters, and it is not within the Community’s constitutional prerogatives to intervene in the resolution of such issues. Intervening would be an ultra vires action, and the Community institutions should not intervene in a national matter (Kochenov and Brink 2016: 2). Moreover, any favourable opinion that the Council might have about a secession issue might be seen as favouritism of one region over others. Neil Walker speaks of ‘conservative neutrality’ as the ethos that ‘tries to avoid taking sides either in individual cases or in terms of general policy towards internal enlargement, but stresses instead the need to cleave to the existing framework of rules and practice as a template of disinterested process’ (2014a: 16). The argument for conservative neutrality is not without controversy, as such a practice could lead to inequal outcomes depending on the constitutional framework of a member state (ibid.: 25). Walker therefore asks whether we have ‘reached the end of the legal road’ with regard to accommodating minority nations within the Community’s legal framework. His conclusion is a cautious ‘yes’ in so far that the present legal framework does not allow the EU to take a directional role (ibid.: 33). But he adds in a footnote that ‘there may still be scope to develop the policy of conservative neutrality in procedural terms’ through the adoption of a new treaty provision that regulates secession and internal enlargement prescribing certain timescales and insisting on referenda (ibid.: 33 n. 109). In essence, this is an Article 48 process that would require a full-scale amendment procedure and recognition that minority nations hold a moral right to secession through certain procedures. Until such sentiments take over the Community ethos, the non-politics of minority nation secession remains in place by the choice of the Council.

TO BE CONTINUED … The discussion in this chapter is barely scratching the surface of a matter that has been making noise in the corridors of Community institutions for years. Fuelled by the centripetal forces of cohesion and integration policies, centrifugal forces emerged in the quest for regional development and peace across borders. These forces have become a headache at the central level of

342  Research handbook on minority politics in the European Union decision-making. The straitjacket of the legal framework in terms of conservative neutrality has not only prevented an open debate on the issue; it has eliminated any room for manoeuvre that the Community might want in the pursuit of peace and security. It has prevented the Community from acting and being active in internal conflicts – former, current, and future ones. It never allowed for an activist agenda in the conflicts in Corsica, the Basque region, Northern Ireland, and Cyprus, while it created anger and wrath in minority nations, such as Scotland and Catalonia, seeking greater autonomy through internal secession and hoping for internal enlargement status. As one observer noted, ‘the nationalist movements in Flanders, Scotland, and Catalonia sit on the borderline between a state-centric international system and an integrating continent’ (Connolly 2013: 100). Notwithstanding the impasse at the legal and political levels, academics have kept the debate open even after Brexit and the change in Scotland’s status vis-à-vis the Community. While most agree that an assessment of secession according to PIL is not the fairest outlook, they run into a closed door when analysing the sui generis legal framework of treaty obligations. Moreover, the political reality within the Council seems to close down the theorizing efforts, as any novel or innovative theory must pass the tests in the Council. Nevertheless, the debate among scholars persists, and the juries are still out on minority nations and internal enlargement. No doubt, this story is to be continued …

REFERENCES Anderson, Paul, and Soeren Keil, ‘Minority Nationalism and the European Union: The Cases of Scotland and Catalonia.’ 379 L’Europe en formation [2016], available at www​.cairn​.info/​revue​-l​-europe​-en​ -formation​-2016​-1​-page​-40​.htm (accessed 14 February 2022). Arrighi, Jean-Thomas, and Dejan Stjepanovic, ‘Introduction: The Rescaling of Territory and Citizenship in Europe.’ 18/3 Ethnopolitics [2019], 219–26. Barroso, José Manuel, ‘Reply to Lord Tugendhat letter of 29 October 2012 regarding the Economic Affairs Committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”’ [2012], available at www​.parliament​.uk/​globalassets/​documents/​lords​-committees/​ economic-affairs/ScottishIndependence/EA68_Scotland_and_the_EU_Barrosos_reply_to_Lord_Tug endhat_101212.pdf (accessed 14 February 2022). Bauböck, Rainer, ‘A Multilevel Theory of Democratic Secession.’ 18/3 Ethnopolitics [2019], 227–46. Bourne, Angela (ed.), The EU and Territorial Politics within Member States: Conflict or Co-Operation? (Leiden: Brill, 2004). Bourne, Angela, ‘Europeanization and Secession: The Cases of Catalonia and Scotland.’ 13/3 Journal on Ethnopolitics and Minority Issues in Europe [2014], 94–120. Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004). Bullman, Udo (ed.), Die Politik der Dritten Ebene. Regionen im Europa der Union (Baden-Baden: Nomos, 1994). Bush, Kenneth, and Kenneth Houston, The Story of Peace: Learning from EU PEACE Funding in Northern Ireland and the Border Region (Coleraine: INCORE/University of Ulster, 2011), available at www​.community​-relations​.org​.uk/​publications/​story​-peace​-learning​-eu​-peace​-funding​-ni​-and​ -border​-region (accessed 14 February 2022). Bossacoma Busquets, Pau, Morality and Legality of Secession: A Theory of National Self-Determination (Cham: Palgrave Macmillan, 2020). Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995). Connolly, Christopher K., ‘Independence in Europe: Secession, Sovereignty, and the European Union.’ 24 Duke Journal of Comparative and International Law [2013], 51–105.

Problem territories and internal peace  343 Coppieters, Bruno, ‘Secessionist Conflict in Europe’ in Don H. Doyle (ed.), Secession as an International Phenomenon (Athens, GA: University of Georgia Press, 2010). De Witte, Bruno, ‘Scotland and the EU: Comment’ in Verfassungsblog.de at https://​verfassungsblog​.de/​ scotland​-eu​-comment​-bruno​-de​-witte​-2/​#comments [2014] (accessed 14 February 2022). Douglas-Scott, Sionaidh, ‘How Easily Could an Independent Scotland Join the EU?’ 46 Oxford Legal Studies Research Paper [2014], available at https://​ssrn​.com/​abstract​=​2462227 (accessed 14 February 2022). Engel, Christian, Regionen in der EG (Bonn: Europa Union Verlag, 1993). Engel, Christian, ‘Regionen im Netzwerk europäischer Politik’ in Udo Bullmann (ed.), Die Politik der Dritten Ebene. Regionen im Europa der Union (Baden-Baden: Nomos, 1994). Global Legal Monitor, ‘France: Bill to Amend Constitution Submitted’ (Library of Congress, 2018), available at www​.loc​.gov/​item/​global​-legal​-monitor/​2018​-06​-19/​france​-bill​-to​-amend​-constitution​ -submitted/​(accessed 14 February 2022). Gordon, Claire, and Gwendolyn Sasse, The European Neighbourhood Policy: Effective Instrument for Conflict Management and Democratic Change in the Union’s Eastern Neighbourhood? MIRICO Report (Bolzano: EURAC Research 2008). Gray, Mia, and Anna Barford, ‘The Depths of the Cuts: The Uneven Geography of Local Government Austerity.’ 11 Cambridge Journal of Regions, Economy and Society [2018], 541–63. Guibernau, M., ‘Secessionism in Catalonia: After Democracy.’ 12/4 Ethnopolitics [2013], 368–93. Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, PA: University of Pennsylvania Press, 1996). Hayward, Katy, ‘Defusing the Conflict in Northern Ireland: Pathways of Influence for the European Union.’ Working Papers Series in EU Border Conflict Studies, No. 2 [2004]. Jenkins, John R.G., Jura Separatism in Switzerland (Oxford: Clarendon Press, 1986). Jones, Barry, and Michael Keating (eds), The European Union and the Regions (Oxford: Oxford University Press, 1995). Keating, Michael, The New Regionalism in Western Europe: Territorial Restructuring and Political Change (Cheltenham, UK and Lyme, NH: Edward Elgar Publishing, 1998). Keating, Michael, ‘The Minority Nations of Spain and European Integration: A New Framework for autonomy?’ 1/1 Journal of Spanish Cultural Studies [2000], 29–42. Keating, Michael, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford: Oxford University Press, 2001). Keating, Michael, ‘Regions and the Convention on the Future of Europe.’ 9/1 South European Society & Politics [2004], 192–207. Keating, Michael, ‘European Integration and the Nationalities Question.’ 32 Politics & Society [2004], 367–88. Keating, Michael, Rescaling the European State: The Making of Territory and the Rise of the Meso (Oxford: Oxford University Press, 2013). Keating, Michael, ‘Is a Theory of Self-determination Possible?’ 18/3 Ethnopolitics [2019], 315–23. Keating, Michael, and Lisbet Hooghe, ‘By-Passing the Nation State? Regions in the EU Policy Process’ in J.J. Richardson (ed.), Policy Making in the European Union (London: Routledge, 1996). Kenealy, Daniel, ‘How Do You Solve a Problem like Scotland? A Proposal Regarding “Internal Enlargement.”’ 36/6 Journal of European Integration [2014], 585–600. Ker-Lindsay, James, EU Accession and UN Peacemaking in Cyprus (New York, NY: Palgrave Macmillan, 2005). Ker-Lindsay, James, ‘The European Union as a Catalyst for Conflict Resolution: Lessons from Cyprus on the Limits of Conditionality.’ Working Papers Series No. 1 (London: Kingston University, 2007). Ker-Lindsay, James, Resolving Cyprus: New Approaches to Conflict Resolution (London: I.B. Tauris, 2014). Ker-Lindsay, James, Hubert Faustmann, and Fiona Mullen, An Island in Europe: The EU and the Transformation of Cyprus (London; I.B. Tauris, 2011). Kochenov, Dimitry, and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality.’ University of Edinburgh School of Law Research Paper 2016/06. Kyris, George, ‘A Model of “Contested” Europeanization: The European Union and the Turkish-Cypriot administration.’ 12/2 Comparative European Politics [2014], 160–83.

344  Research handbook on minority politics in the European Union MacCormick, Neil, ‘The European Constitutional Convention and the Stateless Nations.’ 18/3 International Relations [2004], 331–44. Mancini, Susanna, ‘Rethinking the Boundaries of Democratic Secession: Liberalism, Nationalism, and the Right of Minorities to Self-Determination.’ 6/3–4 International Journal of Constitutional Law [2008] 553–84. Marks, G., ‘Structural Policy of the European Community’ in A. Sbragia (ed.), Euro-Politics: Institutions and Policymaking in the ‘New’ European Community (Washington, DC: Brookings Institute, 1992). Martí, José Luis, ‘Catalonia in Deadlock, and Why That Is a European Problem’ in Verfassungsblog. de at https://​verfassungsblog​.de/​catalonia​-in​-deadlock​-and​-why​-that​-is​-a​-european​-problem/​ [2018] (accessed 14 February 2022). Muro, Diego, and Martijn C. Vlaskamp, ‘How Do Prospects of EU Membership Influence Support for Succession? A Survey Experiment in Catalonia and Scotland.’ 39/6 West European Politics [2016], 1115–38. Petschen, Santiago, La Europa de las Regiones (Barcelona: Generalitat de Catalunya, 1993). Requejo, Feran, and Klaus-Jürgen Nagel, ‘Democracy and Borders: External and Internal Secession in the EU’ in Jacint Jordana, Michael Keating, Axel Marx, and Jan Wouters (eds), Changing Borders in Europe: Exploring the Dynamics of Integration, Differentiation and Self-Determination in the European Union (Routledge, 2019). Reuter, Tina Kempin, ‘The Right to Self-Determination of Ethnic Groups: The Canton of Jura in Switzerland.’ 23 International Journal on Minority and Group Rights [2016], 250–69. Richmond, Oliver P., ‘Shared Sovereignty and the Politics of Peace: Evaluating the EU’s “Catalytic” Framework in the Eastern Mediterranean.’ 82/1 International Affairs [2006], 149–76. Roca, Núria Bosch, ‘Impact of the Economic Crisis on Catalan Government Finances.’ 56 Revista Catalana de Dret Públic [2018], 1–18. Ruiz Vieytez, Eduardo Javier, ‘Minority Nations and Self-Determination: A Proposal for the Regulation of Sovereignty Processes.’ 23 International Journal on Minority and Group Rights [2016], 402–21. Scharpf, F., ‘Community and Autonomy: Multi-Level Policy-Making in the European Union.’ 1/2 Journal of European Public Policy [1994], 219–42. Tierney, Stephen, ‘Reframing Sovereignty? Sub-State National Minorities and Contemporary Challenges to the Nation-State.’ 54 International and Comparative Law Quarterly [2005], 161–83. Walker, Neil, ‘Beyond Secession? Law in the Framing of the National Polity.’ Research Paper Series 2014/51 [2014a], University of Edinburgh School of Law. Walker, Neil, ‘Scotland and the EU: Comment’ in Verfassungsblog.de at https://​verfassungsblog​.de/​ scotland​-eu​-comment​-neil​-walker​-2/​ [2014b] (accessed 14 February 2022). Weiler, Joseph H.H., ‘Catalonian Independence and the European Union.’ 23 European Journal of International Law [2012], 910–12. Weiler, Joseph H.H., ‘Scotland and the EU: Comment’ in Verfassungsblog.de at https://​verfassungsblog​ .de/​scotland​-eu​-comment​-joseph​-h​-h​-weiler​-2/​ [2014] (accessed 14 February 2022). Woelk, Jens, Francesco Palermo, and Joseph Marko (eds), Tolerance through Law: Self-Governance and Group Rights in South Tyrol (Leiden: Martinus Nijhoff, 2008). Ziller, Jacques, ‘The European Union and the Territorial Scope of European Territories.’ 38/1 Victoria University of Wellington Law Review [2007], 51–64.

Official Documents Assemblée Nationale, ‘Projet de Loi Constitutionnelle pour une démocratie plus représentative, responsable et efficace.’ Enregistré à la Présidence de l’Assemblée nationale le 9 mai 2018 – No. 911. Commission of the European Communities, The Special Support Programme for Peace and Reconciliation in Northern Ireland and the Border Counties of Ireland (1995–1999), Brussels, 26.11.1997 COM(97) 642 final. Commission of the European Communities, Green Paper on Territorial Cohesion Turning Territorial Diversity into Strength. Brussels, 6.10.2008 COM(2008) 616. Council of the European Union, ‘Council Common Position 2009/468/CFSP of 15 June 2009 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and

Problem territories and internal peace  345 repealing Common Position 2009/67/CFSP,’ available at https://​eur​-lex​.europa​.eu/​eli/​compos/​2009/​ 468/​oj (accessed 14 February 2022). European Commission, ‘Territorial Agenda 2030’ [2020], available at https://​ec​.europa​.eu/​commission/​ commissioners/2019-2024/ferreira/announcements/informal-meeting-cohesion-ministers-territorialagenda-2030-1-december-2020_en (accessed 14 February 2022). European Commission, ‘Territorial Agenda of the European Union 2020: Towards an Inclusive, Smart and Sustainable Europe of Diverse Regions’ [19 May 2011], available at https://​ec​.europa​.eu/​regional _policy/en/information/publications/communications/2011/territorial-agenda-of-the-european-union2020 (accessed 14 February 2022). European Council, ‘Presidency Conclusions.’ 9–10 December 1994 in Essen, Germany, Section 8. European Court of Justice, Rottmann v Freistaat Bayern, C-135/08 [2010] ECR I-1449. European Court of Justice, Gerardo Ruiz Zambrano v Office national de l’emploi, C-34/09 [2011] ECR 1-0000. European Parliament Press Service, ‘EP Supports Peace Initiative in Basque Country and Expresses Solidarity with Victims’ (EP Directorate for the Media, 2006). Ministry of Finance of Cyprus, Directorate General Growth, Planning Bureau, Strategic Development Plan 2007–2013 (2007), available at www​.dgepcd​.gov​.cy/​dgepcd/​dgepcd​.nsf/​DAC​9DB84689DF​ 1BCC225839​800497B61/​$file/​12​-Strategic​%20Development​%20Plan​%20(2007​-2013)​.pdf (accessed 14 February 2022). Swiss Federal Statistical Office, ‘Ständige und nichtständige Wohnbevölkerung nach institutionellen Gliederungen, Geburtsort und Staatsangehörigkeit,’ bfs.admin.ch (in German). STAT-TAB. 31 December 2020, available at www​.bfs​.admin​.ch/​asset/​de/​px​-x​-0102010000​_104 (accessed 14 February 2022). Treaty between the Member States of the European Union and the Republic of Cyprus, 236 Official Journal of the European Union, 23.09.2003, 955.

PART V THE POLITICS OF EXTERNAL ACTION

18. Minority rights and European Union conditionality in the Western Balkans: from external to internal politics? Maria Dicosola

INTRODUCTION The Western Balkans (WB)1 are a multicultural region in which diverse peoples, nations and national minorities2 share the same territory and the political borders of the States do not always fit with the ethnic boundaries of national groups. Therefore, in this complex area a number of legal instruments are typically employed in order to manage social diversity. In particular, the countries of former Yugoslavia have long been governed under the rule of the multinational state, with a strong emphasis on minority rights, such as the millet system of the Ottoman Empire and the division of the people of the Austro-Hungarian Empire in historical and non-historical nations; however, its attempts to co-exist alongside undemocratic regimes did not prevent inter-ethnic tensions (Missir de Lusignan 1997; Kann 1977). It was in this context that, after the death of Josip Broz Tito, the charismatic leader of the Socialist Federal Republic of Yugoslavia, the dramatic ethnic war of the 1990s broke out in the region (Poulton 1998; Cohen and Warwick 1983). In contrast, Albania has a longer history as a nation-state, starting in 1912, even before the dissolution of the Ottoman Empire. Beginning in 1944, as an effect of the rise of significant nationalism under the regime of Enver Hoxha, minority rights have been completely ignored (Misha 2002). In the 1990s, in the wake of the war in former Yugoslavia and the collapse of the Hoxha regime in Albania, four interconnected processes began to develop in each of the WB states: (i) nation-building, which was particularly problematic with reference to the countries of former Yugoslavia; (ii) democratic transition, as well as (iii) regional stabilisation, driven by a number of supranational actors, including the European Union (EU); and (iv) European integration,3 based on economic and political conditionality. The interconnections among the aforementioned processes have been particularly complex and problematic due to frequent cases of conflict between, on one side, nation-building, and, on the other, democratic

1 The correct meaning of the expression ‘Western Balkans’, introduced in the European Union (EU) in order to refer to those countries of the Balkan Peninsula remaining outside the EU after the 2004 enlargement, is the object of endless discussions. In this chapter I will consider the countries of former Yugoslavia, with the exception of Slovenia, and Albania. 2 The term ‘national minority’, widely employed in minority rights international legal instruments, is best suited in the context of the Western Balkans, where minority groups usually share a mix of ethnic, cultural, linguistic and religious characteristics, distinguishing them from the majority in each state. 3 Croatia has been a member of the EU since 2013, while, at the time of writing, Serbia, Montenegro, the Republic of North Macedonia and Albania are candidate countries. Bosnia and Herzegovina and Kosovo are also potential candidates.

347

348  Research handbook on minority politics in the European Union transition, regional stabilisation and EU integration. Within this context, therefore, in EU conditionality towards the WB minority rights have always been considered crucial. This was not a dramatic change in the attitude of the EU towards neighbour and candidate countries. Indeed, a ‘wide’ European minority rights conditionality – based on a mix of rules and involving different institutions, not only of the EU but also of the Council of Europe and the Organization for Security and Co-operation in Europe (OSCE) – was originally introduced in the enlargement towards the countries of Central and Eastern Europe (CEE), according to the conclusions of the Copenhagen Council in 1993 (Sasse 2005; Schwellnus 2004). However, in the deeply fragmented society of the WB, the role played by minority rights was particularly exceptional. EU conditionality has strongly influenced not only the legislative framework on minority rights but also the constitutional design of the WB states since the end of the 1990s (Lantschner, Marko and Petričušić 2008). Nevertheless, as is argued in this chapter, this region provides a unique example of the weakness of the European approach in the field of minority rights. Specifically, the minority rights framework adopted under the pressure of EU conditionality, with a few relevant exceptions, is subject in general to poor implementation and adverse effects. Among the myriad reasons behind this dual failure, this chapter focuses in particular, on one hand, on the ongoing process of nation-building in the WB – fostering old and new rivalries among the different ethnic groups – and, on the other, on the fragile democratic context where the rules in question are, or should be, implemented. In this complex framework, minority rules are perceived more as externally driven standards that should be formally introduced with the aim of joining the European club than essential tools aiming to manage social diversity and reinforce democracy in its contemporary meaning as the majority rule balanced by the rule of law. It is suggested, therefore, that minority politics in the WB should be widely reconsidered, both at the European and domestic levels, thus providing for a shift from the logic of the implementation of external standards to that of the genuine development of internal democratic values. To this aim, the chapter provides a critical analysis of the strengths and weaknesses of the minority rights standards in EU conditionality, as well as their effects on the constitutional design and the legal framework on national minorities in the WB states, with particular focus on linguistic rights and the right to political participation.

EU CONDITIONALITY AND MINORITY RIGHTS STANDARDS IN THE WESTERN BALKANS Since the beginning of the war of the 1990s, the reaction of the European Communities/EU was that of supporting peace and stability in the WB. To this aim, a neighbourhood policy was established in 1991 based on bilateral cooperation agreements with the newly independent countries. In the light of the failure of this regional approach, the Stabilisation and Association Process (SAP), paving the way for the admission to the EU as the final step of the process of stabilisation and democratisation, was launched in 1999. The rights of minorities – whose protection was included as a condition for the development of both the European policies – were considered crucial for the achievement of their goals. Indeed, a strong interconnection subsequently emerged among minority rights, regional stabilisation and EU integration. In particular, within the neighbourhood policy, strong emphasis was placed on the protection of minority rights after the new states of former Yugoslavia declared independence.

Minority rights and European Union conditionality in the Western Balkans  349 This was evident not only in the 1991 Declaration on Yugoslavia,4 but also in the opinions of the Badinter Commission (Pellet 1992).5 In the former, the member states of the European Communities, when referring to the democratic and human rights standards that were required for the recognition of the new countries as independent states, referred twice to minority rights. In fact, the Declaration not only required the states of former Yugoslavia to accept the guidelines already established with reference to the process of recognition of the new states of Central and Eastern Europe, but also provided that the recognition of the new states was subject to the assurance that they accepted the provisions laid down in the draft convention under consideration by the Conference on Yugoslavia.6 In addition, it was required that the new states renounce any territorial claim and avoid any hostile propaganda against their neighbouring Community states. Accordingly, in the first opinion of the Badinter Commission it was stated that it was a duty of the new states emerging from the process of dissolution of the Socialist Federal Republic of Yugoslavia to have due regard for human and minority rights, particularly with reference to national minorities belonging to the neighbouring states.7 In particular, specific requirements were made with reference to Croatia8 and North Macedonia, where the acceptance of minority rights as provided in the Draft Convention under consideration by the Conference on Yugoslavia was considered a condition for their recognition as independent states.9 The strong commitment towards minorities was confirmed in the Council’s conclusions on guidelines for former Yugoslavia,10 where the protection of minority rights as enshrined in international law was defined as the final goal of EU politics in the WB. From 1997, it was made clear that the protection of minority rights was not only a goal of EU action but also a condition for the future development of neighbourhood politics in the region. Indeed, the Council, in its 1997 Conclusions,11 stated that European financial and technical support for the region was conditional on a strong commitment towards the protection of human and minority rights. The standards to be fulfilled by the involved countries were specified in the annex to the Council Conclusions, stating in particular that the cultural, educational and religious rights Adopted at the Extraordinary EPC (European Political Cooperation) Ministerial Meeting, Brussels, 16 December 1991. 5 The Badinter Commission was an arbitration commission set up during the Peace Conference at The Hague in order to provide legal advice on the stabilisation of the region. 6 Especially Chapter II on human rights and the rights of national or ethnic groups. The International Conference on Former Yugoslavia (ICFY), which was held on 26–27 August 1992 by the United Nations and the European Community, was in charge of the negotiation of peace in the countries of former Yugoslavia. 7 Including, for example, the Serbian minorities in Bosnia and Herzegovina and Croatia. See Opinion n. 2. 8 See Opinion n. 5, where it was stated that Croatia met the conditions for its recognition as an independent state, even though a reservation was made according to which the 1991 Constitutional National Minorities Act had to be supplemented in order to fully satisfy the provisions of the Draft Convention. 9 See Opinion n. 6, referring, at the time, to the ‘Socialist Republic of Macedonia’. Particular commitment to renounce any territorial claims over neighbouring states was required for this country, resulting in the adoption of the I Constitutional Amendment. 10 EU Council’s conclusions on the guidelines for former Yugoslavia, 30 October 1995, Bulletin of the European Union, October 1995, n. 10, Luxembourg, Office for Official Publications of the European Communities. 11 Council’s conclusions on the principle of conditionality governing the development of the EU’s relations with certain countries in south-east Europe, Bulletin EU 4-1997, 29 April 1997. 4

350  Research handbook on minority politics in the European Union of minorities had to be protected, together with linguistic rights. Moreover, strong emphasis was placed on the protection of refugees and displaced persons returning to areas in which they represented a minority before the war. On the basis of the 1997 Council Conclusions, therefore, the rule was established according to which, within the so-called EU Regional Approach, the conclusion of bilateral agreements supporting political and economic cooperation with the newly independent countries of the WB was made conditional on the protection of minority rights. However, the results of this strategy proved to be weak. In particular, minority rights conditionality – based on standards formulated in extremely vague terms and without any monitoring mechanism – was not able to guarantee the stabilisation of the area. It is in the light of this failure that, since 1999, a new policy has been developed, presenting admission to the EU as the final result of the stabilisation and democratisation process (Pippan 2004).12 Accordingly, on the basis of the experience already developed in the context of the first Eastern enlargement, the procedure for the admission of these countries to the EU became detailed, formal and based on the principle of conditionality. Within this framework, a special role was given to minority rights standards. In this new context, the 1999 Stability Pact – later replaced by the Regional Co-operation Council framework – with the aim of establishing and reinforcing peace and security in South-Eastern Europe, supported, similarly to the previous strategies, the adoption of measures aiming to guarantee the multinational and multi-ethnic character of the region through the protection of minority rights. However, the protection of minority rights was considered a standard to be fulfilled in order to join the EU.13 Within the financial measures of the SAP, the Community Assistance for Reconstruction, Development and Stabilisation (CARDS) programme was adopted in December 2000, with the aim of providing a system of financial assistance for the WB, replacing the previous OBNOVA and PHARE programmes, on the basis of a strong economic conditionality. Specifically, in the CARDS regulations, human and minority rights were considered preconditions of eligibility for Community assistance.14 To comply with the minority rights precondition, therefore, sectorial programmes on economic and social development with an impact on minority issues, as well as programmes with a minority focus, have been implemented. Their concrete impact, however, has been limited. Additionally, among the conditionality standards in the Instrument for Pre-Accession Assistance (IPA), which replaced CARDS in 2006, minority rights played a crucial role, in particular within the first and the fourth components of the programme, devoted to transition assistance, institution building and human resources development. Nevertheless, the most relevant shortcomings concerning the low concrete effects of minority rights conditionality were not addressed (Ferrari, Liaquat and Khan 2010, 7–31). Besides the financial and economic measures developed on the basis of the existing cooperation tools, the newly introduced Stabilisation and Association Agreements (SAA) – and the monitoring system opened at their conclusion – soon became the main instruments of EU conditionality. With particular reference to minority rights, the commitment of the Parties

As stated in the Council’s Common Position on the Union’s launching of the Pact: Common Position (CSFP) No. 345/99, preamble, para. 7. This new perspective was confirmed at the European Councils in Lisbon and Santa Maria De Feira in March and June 2000. 13 See in this sense the Council Common Position (CFSP) No. 345/99. 14 Art. 5 CARDS Regulations. 12

Minority rights and European Union conditionality in the Western Balkans  351 towards their protection is considered one of the foundations of the SAA, clearly emerging from all SAA Preambles.15 The formal structure of the annual progress reports also reflects the commitment towards minority rights, when considering that, within the section on political standards, a paragraph deals in particular with them. Strong pressure is thus placed on the adoption of constitutional and legal measures providing for the protection of minority rights. However, the SAA, despite also providing for a country-to-country approach with reference to minority rights (Toggenburg 2008a, 97–9), is not sufficiently clear with reference to the steps to be taken in each state with the aim to comply with the standards of political conditionality. In addition, while mentioned as the basis of the SAP, human rights and the respect and protection of minorities are not considered essential elements of the SAA. Conditionality, therefore, both in the neighbourhood and the enlargement strategies, proved to be a flawed instrument for the improvement of minority rights in the WB. This is due to a number of reasons, including in particular the fact that minority rights conditionality seems to be based more on a set of general and abstract principles than on specific conditions introduced with the aim of finding solutions to the concrete inter-ethnic tensions in each of the states in the region (Gordon, Sasse and Sebastian 2008). Consequently, the standards are not the result of a process of negotiation among EU institutions and the involved countries, but are rather imposed by the Union according to a top-down approach. In addition, the EU, lacking a coherent and complete legal framework on the rights of national minorities, has to borrow the standards and the practice for their implementation from other supranational organisations, including in particular the Council of Europe and the OSCE (Lantschner 2008). This legal lacuna, while expanding the range of institutions involved in minority rights conditionality, has in contrast puzzling effects when considering the problems connected with double standards. In fact, within the institutions involved in the ‘wide’ minority rights conditionality in the WB, the European Commission is supported by a number of different institutions, particularly the Venice Commission and the OSCE High Commissioner on National Minorities, with the effect, at least in theory, of reinforcing the strategy for their protection (Toggenburg 2008b). However, since numerous discrepancies have emerged in the minority rights legal frameworks of the member states – not bound by uniform EU rules – the conditions imposed within the WB, on one hand, are based on abstract rules, and, on the other, are in some cases much more demanding than the legal framework in force in several EU countries (Henrard 2010). Considering these shortcomings, then, there are doubts on the ability of EU conditionality to strengthen the rights of national minorities in the WB, thus transforming external into internal politics (Vizi 2008). In particular, the complex relationship between the commitment to minority rights and internal nationalism seems to have been insufficiently considered, thus leading to problems concerning not only weak implementation but also adverse effects of the EU standards. This assumption will be discussed in the following section through a critical analysis of the evolution of the constitutional design and the legal framework introduced in the WB states with the aim to balance inter-ethnic tensions under the pressure of EU conditionality.

15 See the preambles of the SAA with the former Yugoslav Republic of Macedonia, 26 March 2001; Croatia, 28 January 2005; Albania, 28 April 2009; Montenegro, 29 March 2010; Serbia, 2013; Bosnia and Herzegovina, 30 June 2015; Kosovo, 16 March 2016, all considering ‘the commitment of the Parties to increasing political and economic freedoms as the very basis of this Agreement, as well as their commitment to respect human rights and the rule of law, including the rights of persons belonging to national minorities, and democratic principles through free and fair elections and a multiparty system’.

352  Research handbook on minority politics in the European Union

MINORITY ACCOMMODATION IN THE WESTERN BALKANS BETWEEN NATION-BUILDING AND EU CONDITIONALITY The constitution-building process in the WB has been strongly influenced by nation-building, on one hand, and EU conditionality, on the other, with relevant – albeit often contradictory – effects on minority rights. While, as an effect of EU conditionality, the commitment towards the accommodation of groups and national minorities lies at the core of the constitutional design in almost all the countries concerned, the effective implementation of their rights is usually low or subject to adverse effects, in particular with reference to smaller minorities. As argued, the gap between the formal constitutional and legal frameworks and their effective implementation is mainly due to a deep conflict between minority rights conditionality and the still teeming internal nationalism. Constitutional Design and Minority Accommodation In the WB, even though internal nationalism played a relevant effect in the constitution-building process, the commitment towards the accommodation of groups and minorities, as an effect of EU conditionality, is regularly included among the fundamental constitutional principles. However, in terms of constitutional design, the effects of the interplay of the opposing processes discussed are far from homogeneous. In particular, in the Constitutions of Croatia, Serbia, Montenegro and Albania, references to the idea of the nation, with special emphasis on its objective elements (Smith 2000; Kohn 1994), are clear. In particular, history is considered as the main identification factor of the nation in the 1990 Croatian Constitution16 and the 1998 Albanian Constitution.17 Implicitly, the 2006 Serbian Constitution also refers to the historical foundations of the nation.18 The 2007 Montenegrin Constitution, while not considering history as a factor of national identity, strongly emphasises the principle of sovereignty of the nation-state as well, based on the will of the citizens.19 However, with the aim of identifying a balance between nationalism and the protection of the rights of groups and minorities, in all the countries mentioned the commitment towards national minorities is included among the constitutional principles20 and the basic rules for the protection of their rights are provided not only by the legislation, but also by the Constitution and constitutional laws. According to the constitutional rules, therefore, Croatia, Serbia, Montenegro and Albania can be defined as nation-states in which minority rights possess constitutional relevance, thus being included among the promotional nation-states (Toniatti 1995). In addition, the nationalistic attitude is moderated not only by the strong commitment towards minorities, but also by the relevant influence of EU conditionality in the drafting process of the constitutional provisions providing for their rights. This is evident, for example, The preamble of the Constitution, in fact, called Izvorišneosove (historical foundations), refers to ‘the historical right of the Croatian nation to full sovereignty’ and summarises the main historical facts supporting the determination of the people to found Croatia as a nation-state. 17 Constitution, Preamble, 1st paragraph. 18 Affirming the existence of “the state tradition of the Serbian people”: Preamble, 1st paragraph. 19 Constitution, Preamble, 1st paragraph; Art. 2 cl. 1. 20 Croatian Constitution, Preamble, 2nd paragraph; Serbian Constitution, art. 1; Montenegrin Constitution, Preamble, referring to multiculturalism as one of the basic constitutional principles; Albanian Constitution, Art. 3. 16

Minority rights and European Union conditionality in the Western Balkans  353 in Croatia, where the 2002 Constitutional National Minority Rights Act (CNMRA) was adopted with the aim of restoring the suspended 1991 law on minority rights, as an answer to European requests (Petričušić 2002–03).21 In addition, the 2010 reform of the Preamble of the Constitution, expanding the list of the recognised national minorities, was adopted under the pressure of the Venice Commission.22 In Montenegro, the adoption of a constitution in line with the European minority standards was part of the conditionality package imposed on Montenegro both by the European Council23 and the Council of Europe.24 However, while the first draft of the 2007 Constitution only referred to the protection of the national and cultural heritage of the country in one article,25 the final text, taking into consideration the opinion of the Venice Commission, provided a detailed list of minority rights in articles 79–80. In contrast, in the Constitutions of Bosnia and Herzegovina (BiH), North Macedonia and Kosovo – where only the intervention of the international community was able to stop the hostilities – any reference to the distinction between nation and minorities has been avoided and the commitment towards the accommodation of distinct groups is reinforced through the power-sharing rules of consociational democracy (Bieber and Keil 2009). Moreover, the influence of the international community on the adoption or reform of the constitutional frameworks of those paritarian multinational states (Toniatti 1995) is particularly strong. Notably, the ‘international’ Constitution of BiH (Grewe and Riegner 2011; Pech 2000) was introduced as the 4th Annex to the 1995 Dayton Agreement, which, in providing a peace settlement for the country, introduced an institutional framework establishing a system of ethnic federalism (Keil 2013; Woelk 2012). The territory is divided into two Entities, the Republika Srpska and the Federation of BiH, while all references to the idea of the nation as a whole have been avoided and replaced by the expression ‘people’. In particular, the Serbs, the Croats and the Bosniaks are considered ‘constituent peoples’, 26 all enjoying equal rights.27 In fact, the first federal Parliamentary Chamber – the House of Peoples – is composed of 15 Delegates: five Croats and five Bosniaks, appointed in the Federation, and five Serbs appointed in the Republika Srpska.28 The second Chamber – the House of Representatives – is composed of 42 Members, two-thirds elected from the territory of the Federation and one-third from the territory of the Republika Srpska.29 Additionally, the Presidency consists of three members: one Bosniak and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.30 Accordingly, the composition of

Const. Law n. 155, 19 December 2002. Venice Commission, Draft Opinion on the Amendments of 9 November 2000 and 28 March 2001 to the Constitution of Croatia, CDL (2001) 6. The request, however, has only been partially fulfilled, since the Venice Commission required the list to be deleted instead of simply expanded. 23 Council’s Decision concerning the principles, priorities and conditions, contained in the European Partnership with Montenegro, Brussels, 17 January 2007, 5047/07. 24 Council of Europe, Parliamentary Assembly, Opinion on the Accession of the Republic of Montenegro to the Council of Europe, 12 March 2007, Doc. 11205. 25 Art. 7 draft Constitution. 26 Annex 4, Preamble, last paragraph. 27 The principle of equality of the constituent peoples was introduced by Constitutional Court decision U 5/98, on 1/7/2000. 28 Art. 9.12 Election Law. 29 Art. IV Annex 4; Art. 9.1 Election Law. 30 Art. V Annex 4. 21 22

354  Research handbook on minority politics in the European Union the legislative assemblies of the Entities is designed with the aim of respecting the principle of equality of the constituent peoples. The Constitutions of North Macedonia and Kosovo, while not formally introduced through international agreements, have, however, been strongly influenced, respectively, by the 2001 Ohrid Agreement and the Ahtisaari Plan, both introducing measures supporting the stabilisation of the regions in the wake of the 1990s war. Indeed, the Constitution of North Macedonia – firstly adopted in 1991 in the wake of the collapse of former Yugoslavia – was heavily amended following the adoption of the Ohrid Agreement, removing any reference to the definition of Macedonia as a nation-state and the distinction between nation and ‘nationalities’.31 Thus, the new preamble of the Constitution, which remains in force, makes reference only to the ethnically neutral concept of citizens comprising different peoples.32 In Kosovo,33 the 2008 Constitution, whose contents have clearly been influenced by the Ahtisaari Plan and the interim constitutional charter imposed by the United Nations mission, defines the Republic as a multi-ethnic society composed of Albanians and other communities.34 Accordingly, the law does not define any group in terms of minority, employing the more neutral concept of community.35 While not providing for a federal system, in the Constitutions of Kosovo and North Macedonia there are also rules providing for minority accommodation through territorial autonomy. In fact, according to the 2008 Constitution of Kosovo, incorporating the analogous provisions of the Ahtisaari Plan, the municipalities have been granted the right to local self-governance.36 Besides the general competences of the municipalities, according to the Law on Local Self-Government, Serb municipalities are endowed with ‘enhanced competences’,37 with the aim of creating a multi-ethnic state, particularly strengthening good and equal relations between the Albanian and the Serb communities. However, the asymmetric devolution, as provided by the Constitution, has been welcomed by the municipalities with a Serb majority, while being considered with strong distrust by the Albanian ones (Rossi 2014; Zeqiri, Stephens and Zhou 2010). Accordingly, local self-government is included among the fundamental values of the Republic of North Macedonia38 and the citizens are granted the right to local self-governance.39 As in the case of Kosovo, decentralisation – which was one of the priorities of the Ohrid Agreement – was intended as a tool to accommodate the rights of the different ethnic groups (Lyon 2012). The constitutional design of all the countries of the WB, therefore, has been framed with the aim of finding a balance between nationalism and the rights of groups and minorities. In Provided by the 1991 Constitution of the Republic of Macedonia, Preamble, paragraph 1. Constitution of the Republic of North Macedonia, Amendment IV. 33 Kosovo, whose autonomy from Serbia is still a matter of dispute, was the last country of former Yugoslavia to declare independence, doing so in 2008. 34 Art. 3 Constitution of Kosovo. 35 See the Law on the Promotion and Protection of Rights of Communities and their Members in the Republic of Kosovo, March 13, 2008. 36 Art. 124 Const. 37 Art. 3 Law on Local Self-Government, 2008. 38 Art. 8 Const. 39 Art. 114 Const. However, the effective implementation of decentralisation in Kosovo and North Macedonia is limited by legal constraints, as well as its lack of economic resources: European Charter of Local Self-Government (Monitoring Committee), Recommendation 466, CPL(2021)41-02 final, 22 September 2021. 31 32

Minority rights and European Union conditionality in the Western Balkans  355 this process, the influence of the international community and EU conditionality has been decisive. This is true with reference not only to the countries where supranational involvement was particularly high, thus leading to the de facto imposition of the constitutional charter, as in the case of BiH, but also in countries where the constituent process was merely influenced by supranational actors, such as in the case of North Macedonia. However, the balance is de facto far from perfect, since the effective implementation of the principles is often low and subject to adverse effects, thus leading to further radicalisation of ethnic rivalry and additional forms of discrimination against the most disparaged minorities. This is particularly true with reference to the smaller minorities, who face additional discrimination. The system of ethnic federalism in BiH, not to mention the effects thereof, is the most relevant case, but examples of the tension between large and small minorities can also be provided by the effective implementation of minority rules in North Macedonia and Kosovo. In some cases, the legislative framework implementing the constitutional principles has long been inadequate, such as in Albania, where a framework law on minority rights was only adopted in 2017 under the pressure of EU conditionality (Djordjević 2019).40 But even when the legislation is detailed and complete, the specific measures are often ineffective, which clearly emerges during a comparative analysis of linguistic rights and the right to political participation in the WB. Linguistic Rights of National Minorities In Croatia, Serbia, Montenegro and Albania, only the national language is official. However, in all these countries, with the exception of Albania, the languages of the most relevant minorities can be considered in official use by the Constitution41 or the law.42 The right to use minority languages not only in the private sphere but also with the public administration is widely recognised in all the WB countries, in particular at the local level.43 Linguistic rights are also provided in the field of the media44 and with reference to topographical information.45 Likewise, the right to be educated about and in the minority language is usually guaranteed.46

Law n. 97/2017. Croatian Constitution, Art. 12, Montenegro Const, Art. 13. 42 In Serbia, according to Art. 10 cl. 2 Const., “Official use of other languages and scripts shall be regulated by the law based on the Constitution”. In Montenegro, as provided by Art. 11 Law on Minority Rights, the language of any minority representing at least 5 per cent of the population can be considered as official. The law has been amended following the recommendations of the Committee of Experts of the European Charter for Regional or Minority Languages: AFC/OP/III(2019)001rev. 43 Croatia: Art. 12 CNMRA; Serbia: Art. 3 Law on Official Use of Languages and Scripts; Montenegro: Art. 79 Const.; Albania: Art. 15 cl. 2 Law on the Protection of National Minorities, no. 96/2017; BiH: Art. 12 State Law on National Minorities; North Macedonia: Art. 4 Law on Linguistic Rights. 44 Croatia: Art. 16 CNMRA; Serbia: Art. 68 Law on Broadcasting; Montenegro: Art. 64 cl. 2 n. 6 Law on Electronic Media; Albania: Art. 14 cl. 2–3 Law on the Protection of National Minorities, n. 96/2017; BiH: Art. 5, 16 State Law on National Minorities; Kosovo: Art. 59 cl. 10 Const. 45 Croatia: Art. 14 Constitutional National Minority Rights Act; Serbia: Art. 79 cl. 1; Montenegro: Art. 79 Const.; Albania, Art. 15 cl. 3 Law n. 96/2017; BiH: Art. 12 State Law on National Minorities; Kosovo: Art. 59 cl. 9 Const.; North Macedonia: Art. 40 Law on the Use of Languages. 46 BiH: Art. 14 State Law on National Minorities; Serbia: Law on Primary and Secondary Education; Kosovo, Art. 8 Law n. 02/L-37; Montenegro: Art. 79 Const. and 13 cl. 1 Law on Rights and Freedoms 40 41

356  Research handbook on minority politics in the European Union Nevertheless, a conflict between nationalism and the commitment towards minority rights emerges when considering frequent cases of low enforcement of these rules. In particular, this is due to the lack of political will in Albania (Djordjević and Zaimi 2019),47 Serbia48 and Croatia.49 In the cases of Montenegro and Kosovo, the funds that should be allocated to projects supporting linguistic minority rights are often insufficient.50 Low implementation is frequently an adverse effect of the thresholds that, according to the law, should be met by national minorities to benefit from linguistic rights.51 In some cases, the thresholds are so high that the concrete implementation of the rights is de facto denied to the smallest national minorities, as in the cases of BiH52 and Albania.53 In Montenegro, the reference to a ‘significant share’ of the population belonging to a minority as a condition for the right to have judicial proceedings carried out in minority languages and the right to display topographical indication in the languages of national minorities54 is extremely vague. of Minorities; North Macedonia: Art. 48 cl. 4 Const., Art. 48–51 Law on Languages; Croatia: Art. 11 CNMRA; Albania: Art. 13 Law n. 96/2017. 47 In Albania, minority linguistic rights are weakly enforced because the Council of Ministers has failed to adopt the implementing decisions, as reported in Advisory Committee FCNM (Framework Convention for the Protection of National Minorities), Fourth Opinion on Albania – adopted on 11 October 2018, ACFC/OP/IV(2018)006, par. 125–33. 48 In Serbia, the enforcement of linguistic rights is subject to the recognition of the minority language as one in official use, but several local self-government units have failed to provide for such recognition, as reported in Advisory Committee FCNM, Fourth Opinion on Serbia – adopted on 26 June 2019, ACFC/ OP/IV(2019)001, par. 84–5. 49 Where, in the city of Vukovar, the right to use minority languages with reference to street names and indications on public buildings has been denied to the Serbian minority. Notwithstanding the decision of the Constitutional Court of 2 July 2019, establishing a deadline of October 2019 to adopt the necessary implementing measures, the rule has not been implemented so far. See in this sense Advisory Committee FCNM, Fifth Opinion on Croatia, ACFC/OP/V(2021)2, 27–8. 50 See, with reference to Montenegro, Advisory Committee FCNM, 2019 Opinion, par. 120–28, 140–48, and, with reference to Kosovo, Advisory Committee FCNM, 2017 Opinion, ACFC/OP/ IV(2017)001, par. 71–4. In particular, in Kosovo, the low level of funding has the effect of providing Albanian, among minority languages, with a de facto privileged status in the relations with the public administration. 51 In North Macedonia, according to Art. 1 cl. 2 Law on Languages, any language spoken by at least 20 per cent of the population is considered to be in official use. In Serbia, according to the Law on the Protection of Rights and Freedoms of National Minorities, a language spoken by more than 15 per cent of the total population of a local self-government unit is in official use. In Montenegro, some linguistic rights provided by Art. 79 Const. are recognised provided that the minority represents a ‘significant share’ of the population. In Croatia, the official use of a minority language is recognised provided that a minority represents at least one-third of the population of a local-government unit (Art. 12 CMNRA). In Albania, the official use of minority languages with local authorities and the right to receive information on the electoral process in minority languages are subject to a 20 per cent threshold at the local level (Art. 15 cl. 2–3 Law n. 96/2017). 52 According to the BiH Law on National Minorities, linguistic rights are given to minorities representing the absolute or relative majority at the local level. When this threshold is not met, one-third of the population of a municipality can decide if the use of minority languages within public authorities shall be permitted. However, almost no minority is able to reach this threshold. 53 Where the Law on the Protection of National Minorities provides that linguistic rights are given to minorities representing at least 20 per cent of the population at the local level. However, this threshold is met only in three local-government units, as reported in Advisory Committee FCNM, Fourth Opinion on Albania – adopted on 11 October 2018, ACFC/OP/IV(2018)006. 54 Art. 79 Const.

Minority rights and European Union conditionality in the Western Balkans  357 Subsequently, cases of inconsistencies among the various sources of law implementing the aforementioned rule are frequent, with a negative impact on the effectiveness of the rights.55 However, the most relevant example of non-implementation of linguistic rights due to the thresholds is that of North Macedonia, where, according to Art. 7 Const., as amended by the V Amendment, the official languages are Macedonian and any other language spoken by at least 20 per cent of the population at the municipal level. Accordingly, every community reaching the 20 per cent threshold has a right to education in its own language,56 as well as the right to use its language before the Parliament,57 in other state organs,58 in mass media and in judicial proceedings.59 Nevertheless, since the only group meeting the 20 per cent threshold is the Albanian community, the Macedonian legal system has to be considered de facto more as a bi-national than a multicultural one, with relevant adverse effects against all the smaller non-Albanian communities.60 The adoption of the 2008 Law on the Promotion and Protection of the Rights of the Members of the Communities which are less than 20 per cent in the Population in the Republic of Macedonia did not solve this inconsistency, since its implementation is weak due to the low level of funds devoted to linguistic rights projects.61 This unequal situation has been worsened by the adoption, on 23 January 2019, of the new controversial Law on the Use of Languages.62 Indeed, Art. 1(2) of the act, in establishing that any languages other than Macedonian spoken by at least 20 per cent of the population at the state level are official, explicitly refers to Albanian as an official language. The adoption of the law gave rise to huge concerns both with reference to its political effects and in terms of its compatibility with the Constitution, bringing about not only social tensions but also a contrast between the Parliament and the President of the Republic, who was forced to use his veto power, although this was overridden by the Parliament. Its final approval, with a quick parliamentary procedure, without any form of consultations with the public or the opposition parties, and in the wake of violent public demonstrations,63 had the effect of formalising the bi-national character of North Macedonia, thus confirming the wide distance between the legal 55 For example, Art. 11 of the Law on Minority Rights and Freedoms provides that topographical indications must be displayed in the language of the minorities representing at least 5 per cent of the population of a municipality, while the Law on Local Self Government, at Art. 110, refers to ‘a majority or significant part of the population’. These shortcomings have been subject to negative comments by the Advisory Committee FCNM, in the 2019 Opinion, par. 116–17. 56 Art. 48 cl. 8 Const., as amended by the VIII constitutional amendment. 57 Art. 3 c. 2 Law on Linguistic Rights. 58 Art. 4 Law on Linguistic Rights. 59 Art. 5–6 Law on Linguistic Rights. 60 As observed in the 2012 Resolution of the Committee of Ministers of the Council of Europe: CM/ ResCMN(2012)13 on the implementation of the Framework Convention for the Protection of National Minorities by ‘the former Yugoslav Republic of Macedonia’, 4 July 2012. 61 As reported in the 2012 and 2014 progress reports on FYROM (the Former Yugoslav Republic of Macedonia): European Commission, The Former Yugoslav Republic of Macedonia 2012 Progress Report, Brussels, 10.10.2012, SWD(2012) 332 final; The Former Yugoslav Republic of Macedonia 2014 Progress Report, Brussels, 8.10.2014, SWD(2014) 303 final. 62 Replacing the 2008 law on languages. The English translation of the law provided by the Macedonian authorities is available on the Venice Commission website: CDL-REF(2019)019. 63 The Venice Commission expressed concerns not only about the merits but also the procedure followed in order to adopt the law. See: European Commission for Democracy through Law (Venice Commission), North Macedonia: Opinion on the Law on the Use of Languages, Strasbourg, 9 December 2019, Opinion No. 946/2019, CDL-AD(2019)033.

358  Research handbook on minority politics in the European Union framework on minority rights and its effective implementation in this deeply fragmented – and weakly democratic – country. Despite this, the clash between nationalism and minority rights in the highly divided societies of the WB is even more evident when considering the adverse effects following the implementation of rules aiming at facilitating the protection of linguistic rights, as in the case of Kosovo, where two parallel and separated educational systems, based on the use of the Albanian and the Serbian languages, have been established. In contrast, among the smaller communities, only the Bosniaks and the Turkish have access to specific education programmes. This system, while discriminating against the smaller minorities, contributes to the exacerbation of the sense of segregation and tension among the major groups, namely the Kosovo-Albanian and the Kosovo-Serbian communities.64 In BiH, the so-called ‘two schools under one roof system’ – a measure introduced in the wake of the war, providing for a separated school system for children belonging to different constituent peoples at the state level – has the effect of segregating pupils along ethnic lines. The system, which was declared discriminatory in 2014 by the Supreme Court of BiH,65 has not yet been reformed, despite the complaints from European bodies monitoring minority rights66 and the requests of the Commission to implement the decision as a condition for the development of the accession negotiations.67 The Right to Political Participation of National Minorities In the WB, detailed rules are provided for the protection of minorities’ right to political participation through direct as well as indirect systems. The right to direct political participation is recognised through mechanisms providing minorities with seats in public institutions – including in particular representative assemblies – and a special voice in the adoption of legislation. However, as in the case of linguistic rights, as an effect of the clash between nationalism, on one hand, and the commitment towards the rights of groups and minorities, on the other, their concrete implementation is often low and frequent cases of adverse effects have the paradoxical effect of reinforcing inter-ethnic tensions. One of the most relevant cases of adverse effects depending on the implementation of the rules on political participation is that of BiH, where, as already anticipated, through the system of ethnic federalism the constituent people are provided with equal political rights. However, no rules give any specific right to political participation to persons living in a minority situation, including the ethnic groups not belonging to any constituent people, the so-called ‘Others’, as well as all persons belonging to a constituent people but living in an entity in which that people is not represented. As a result, in BiH, the division of the population in three constituent peoples transformed, de facto, a system based on the equal representation of the different ethnic groups into a system that is detrimental to the rights of the persons living See in this sense Advisory Committee FCNM, 2017 Opinion, ACFC/OP/IV(2017)001, par. 81–96. For a summary of the judgement and a critical analysis of the issue, see the report of the OSCE Mission to BiH, ‘Two schools under one roof’: The Most Visible Example of Discrimination in Education in Bosnia and Herzegovina (2018). 66 Advisory Committee FCNM, Fourth Opinion on Bosnia and Herzegovina – adopted on 9 November 2017, ACFC/OP/IV(2017)007. 67 2019 Commission Opinion on Bosnia and Herzegovina’s application for membership of the European Union, Brussels, 29.5.2019, SWD(2019) 222 final. 64 65

Minority rights and European Union conditionality in the Western Balkans  359 in a minority situation (Dicosola 2016; Marko 2005–06). Even though the European Court of Human Rights has more than once declared that ethnic federalism contradicts, for the reasons explored previously, the European Convention on Human Rights,68 the system has not yet been amended. Reserved seats in the representative assemblies are provided in Kosovo and Croatia. In particular, 20 seats in the Assembly of Kosovo are reserved for members of non-Albanian communities.69 In Croatia, three seats in the Parliament shall be reserved for the representatives of those national minorities accounting for more than 1.5 per cent of the population.70 In Montenegro, a system of reserved seats was provided by articles 22 and 23 of the Law on National Minorities. However, the rule – declared by the Constitutional Court in conflict with the 1991 Constitution, not providing for the rule of positive actions in the field of minority rights71 – has not been re-introduced after the adoption of the 2008 Constitution, which, in contrast, would allow this measure. The right to direct political participation of national minorities in representative assemblies is provided through the exemption from the application of the rules on minimum thresholds in Serbia and Montenegro. In Serbia, according to the so-called ‘natural threshold’, political parties and coalitions representing minorities shall participate in the distribution of mandates even if they do not meet the general 5 per cent threshold for parliamentary representation.72 In Montenegro, Art. 79 Const. provides for the right of national minorities to authentic representation both in Parliament and in the assemblies of the local self-government units where they represent a significant share of the population. After significant debate concerning the meaning of the authentic representation clause, the rule was finally implemented by the 2011 reform of the Electoral Law, adopted after pressure from the European Commission.73 According to the law, the 3 per cent threshold generally established with reference to all political parties should not be considered with reference to the lists representing national minorities. Instead of the 3 per cent threshold, a 0.7 per cent threshold is provided; this can be further decreased with reference to smaller minorities. In particular, Croats shall be admitted to Parliament provided that they achieve at least 0.35 per cent of the total votes (Vuković and Milačić 2017). However, the 0.35 per cent threshold is not extended to other minorities similar in number to the Croats, such as the Roma. Consequently, these are excluded from any political assembly both at the national and local levels. The fact that the rule of double votes in favour of minorities74 – whose implementation might easily result in adverse effects75 – is not provided in any country in the WB should 68 For the first time, the ECtHR declared the system of ethnic federalism in contrast with the ECHR in the case of Sejdić and Finci v Bosnia and Herzegovina, 22 December 2009, Appl. nos. 27996/06 and 34836/06. The decision has been confirmed in the cases of Zornić v Bosnia and Herzegovina, 15 July 2014, Appl. no. 3681/06 and Pilav v Bosnia and Herzegovina, 9 June 2016, Appl. no. 41939/07. 69 Art. 64 Const. 70 Art. 19 CNMRA. 71 Const. Court, decision 17 July 2007. 72 Art. 81 cl. 2 Law on the Elections of Members of the Parliament. 73 See European Commission, Commission Opinion on Montenegro’s application for membership of the European Union, Bruxelles, 9.11. 2010, COM(2010) 670. 74 The rule of minority double votes provides persons belonging to national minorities with the right to elect minority representatives in political assemblies, in addition to the general right to vote. 75 See in this sense: Venice Commission, Draft Report on Dual Voting for Persons Belonging to National Minorities, 4 June 2008.

360  Research handbook on minority politics in the European Union be positively evaluated. Indeed, it was considering the prospective adverse effects of this rule that the Constitutional Court of Croatia declared the reform of Art. 19 CNMRA to be unconstitutional. A case arose from the referral to the Constitutional Court of Art. 1 of the 2010 Constitutional Reform Act, amending art. 19 CNMRA. The provision, establishing a double-vote system in favour of the smallest minorities accounting for less than 1.5 per cent of the national population,76 was adopted with the aim of implementing, at least formally, the recommendations of the European institutions in the context of conditionality.77 Accordingly, in the 2010 report, the European Commission positively evaluated the new measure.78 However, the only group representing more than 1.5 per cent of the population in Croatia at the time was the Serbian minority that was, as a consequence, the only community excluded from enjoying the right mentioned. In this respect, the Court declared Art. 19 CNMRA in contrast with the principle of proportionality, considered as a basic rule not only at the national but also at the European level.79 Special competences in the legislative process are granted to groups and minorities in BiH and Kosovo. In Bosnia, the system of ethnic federalism is completed by the ‘national vital interest veto’,80 as well as by the so-called ‘entity veto’.81 While the national vital interest veto is rarely used, the entity veto is still one of the major reasons behind the never-ending reform process of the entire system of ethnic federalism. This model has been followed in Kosovo, where the Constitution provides for the legislation on vital interests,82 requiring the consent of the majority of the Assembly deputies holding seats reserved or guaranteed for the representatives of communities that are not in the majority for its adoption, amendment or repeal.83 In addition, the President of the Republic has the right to return adopted laws for re-consideration when they consider them to be harmful to one or more communities.84 In North Macedonia, indirect veto powers are provided through the requirement of the majority of the votes of the Representatives attending who belong to communities not in the majority.85 In both Kosovo and North Macedonia, however, veto powers did not lead to the effect of legislative gridlock as in the case of BiH, due to the limited number of subjects where they can find application86 and those countries having more effective unblocking mechanisms.87

Croatian Constitutional Reform Act, Art. 1. The Advisory Committee FCNM frequently demanded reinforcement of the political rights of national minorities in its Reports on Croatia. 78 Commission Staff Working Document, Croatia 2010 Progress Report, Brussels, 9 November 2010, SEC(2010) 1326, in particular p. 6. 79 Constitutional Court of Croatia, 29 July 2011. 80 Art. IV.3.e. Annex 4. 81 Art. IV.3.d. Annex 4. 82 Art. 81 Const. 83 Art. 81 Const. 84 Art. 84 cl. 6 Const. 85 Art. 69 Const., as amended by the X Amendment. 86 In Kosovo, legislation on vital interests includes only the subjects listed in Art. 81 Const. 87 In North Macedonia, in the event of a failure to gain the required majority in Parliament for adoptions affecting minority interests, the question is referred to the Committee for Relations between Communities, which can make decisions by a simple majority, instead of unanimity, as in BiH. 76 77

Minority rights and European Union conditionality in the Western Balkans  361 Among the tools for the protection of the right to indirect political participation, mention should be made of the National Minorities Councils established in all the WB countries.88 Those bodies, composed of the representatives of minority groups, are usually provided with advisory functions and the right to propose the adoption of measures concerning minority rights,89 albeit not endowed with formal powers in the context of the legislative process (Tóth 2017).90 The members of the Councils can either be elected by the persons belonging to national minorities91 or appointed by the bodies belonging to the Executive power.92 In addition, in BiH and North Macedonia the State Council of National Minorities and the Committee for Inter-Community Relations shall be appointed by the Parliament.93 Minority councils may appear prima facie as advanced tools for the protection of minority rights and the solution of inter-ethnic tensions. However, it is not only the extremely limited advisory competences but also the rules for the selection of their members that often make these bodies ineffective. In particular, when their members are appointed by the Executive, their role may be jeopardised by a low level of independence, as in the case of the Committee for National Minorities in Albania,94 while in the case of the Councils on National Minorities in BiH, whose members are appointed by the Parliament, the need to find a political agreement among the different political parties often has the effect of blocking the selection process, thus leaving some seats vacant.95

FINAL REMARKS: WHAT IS THE FUTURE FOR EU CONDITIONALITY AND MINORITY RIGHTS IN THE WESTERN BALKANS? As observed in this chapter, EU conditionality has proven its power to heavily pressure the evolution of minority right rules in the WB. However, advanced legal frameworks are often weakly implemented or are able to produce adverse effects, thus reinforcing conflicting In Croatia – at the local level – the Councils of National Minorities (Art. 24 CNMRA) and – at the national level – the National Minorities Advisory Board (Art. 15 CNMRA); in Serbia, the National Councils of National Minorities (2009 Law on National Councils on National Minorities); in Montenegro, the Council of Minorities (Art. 33 Law on Minority Rights and Freedoms); in Albania, the Committee for National Minorities (Art. 18 Law No. 96/2017); in BiH, the Councils on National Minorities, both at the State and Entity Levels (Art. 21 Law on National Minorities); in North Macedonia, the Committee for Inter-Community Relations (Art. 78 Const., as amended by the XII Amendment); in Kosovo, the Consultative Council for Communities (Art. 60 Const.). 89 Croatia: Art. 31–5(2) CNMRA; Montenegro: Art. 35 Law on Minority Rights and Freedoms; Albania: Art. 19 Law No. 96/2017; BiH: Art. 22 Law on National Minorities; Kosovo: Art. 60 Const. 90 In Serbia, the legislative powers of the Councils of National Minorities were declared unconstitutional in 2014. 91 As in Croatia (Art. 24 CNMRA) and Serbia (Art. 29–111 Law on National Councils on National Minorities). 92 As in Albania (Art. 20 Law No. 96/2017). 93 BiH: Art. 21 Law on National Minorities; North Macedonia: Art. 78 Const., as amended by the XII Amendment. 94 As noted by the Advisory Committee FCNM, Fourth Opinion on Albania – adopted on 11 October 2018, ACFC/OP/IV(2018)006, par. 139. 95 As reported in the Advisory Committee on the Framework Convention for the Protection of National Minorities, Fourth Opinion, par. 130–36. 88

362  Research handbook on minority politics in the European Union nationalisms in an area already deeply fragmented on ethnic lines. Against this background, therefore, it is argued that the external politics of EU conditionality have failed to foster genuine internal politics on minority rights in the WB. The roots of this weakness should be searched for not only in the (lack of) will of national groups and political elites in the WB, but also in the fragility of the EU strategy. In fact, EU minority rights conditionality is often based on particularly high standards, on a bottom-up approach, without any form of negotiation between the EU and the WB countries, in a context that is only formally pluralistic and asymmetric. In particular, despite the high number of actors involved at both the European and national levels, a genuine spirit of loyal cooperation among them is frequently lacking. This explains also why the minority rights framework introduced in the WB under the pressure of EU conditionality is based on similar rules across the region as a whole, despite the fact that the SAP was intended as a country-to-country strategy. In addition, after the adoption of the rules, the focus of both the EU and the domestic actors is more on (formal) implementation than on adjustments, in terms of efficiency and proportionality. In this sense, among the few exceptions, it is worth mentioning only the decision of the Constitutional Court of Croatia that found the rule on the right to double vote in favour of the smallest minorities to be unconstitutional, considering its adverse effects against the Serb minority. It may be suggested, therefore, that the weakness of the EU approach in this context was that of supporting reforms based more on an outdated top-down, paternalistic approach than on a flexible strategy grounded on asymmetry, pluralism and negotiation (Malloy 2004–05; Palermo and Woelk 2003–04). In addition, the weakness of the EU-driven legislation on minority rights in the WB might also be explained in terms of an unclear theoretical relationship between minority rights, democracy and the rule of law, not only in the domestic but also in the European context. Indeed, minority rights are essential elements of contemporary democracies where the majority rule is balanced by the rule of law. However, on one hand, EU minority politics are opaque concerning their relationship between democracy and minority rights – choosing instead to focus on the interconnection with regional stability and security (Nobbs 2008) – while, on the other, the WB countries appear to be interested in complying with the minority rights standards without any real commitment to democratic transition. The effect is often that of fostering the formal adoption of advanced legal frameworks on minority rights in systems where the democratic transition has not been completed (Fruscione 2020; Dzankic, Keil and Kmezić 2019).96 This is even more troubling in the general context of democratic regression that some members of the EU are experiencing, with the theory of illiberal democracy gaining momentum and perhaps also attracting the WB countries, even worsening in the context of the coronavirus emergency (Bieber et al. 2020; Bugarič 2015). Consequently, minority politics both in the WB and in the EU should be subject to a comprehensive process of reform and adaptation within a more coherent theoretical framework based on asymmetry, pluralism and negotiation in the context of a stronger commitment towards democracy.

At the time of writing, both BiH, Kosovo and North Macedonia are weak democracies. Troubling democratic regressions are also ongoing in Albania and Serbia, according to the 2019 Freedom House Democracy Status Map (available at www​.freedomhouse​.org, last accessed 23 December 2020). 96

Minority rights and European Union conditionality in the Western Balkans  363

REFERENCES Bieber, Florian, and Soeren Keil, ‘Power-Sharing Revisited: Lessons Learned in the Balkans’ [2009], RCEEL 337. Bieber, Florian, et al., The Western Balkans in Times of the Global Pandemic (BiEPAG Policy Brief, 2020). Bugarič, Bojan, ‘A Crisis of Constitutional Democracy in Post-Communist Europe: “Lands In-between” Democracy and Authoritarianism’ [2015] I-CON 219. Cohen, Lenard, and Paul Warwick, Political Cohesion in a Fragile Mosaic: The Yugoslav Experience (Westview Press 1983). Dicosola, Maria, ‘Ethnic Federalism and Political Rights of the Others in Bosnia and Herzegovina’, in Ludovica Benedizione and Valentina Scotti (eds), Proceedings of the Conference ‘Twenty Years After Dayton: The Constitutional Transition of Bosnia and Herzegovina’ (Luiss University Press 2016). Djordjević, Ljubica, ‘Commentary: The Law on Protection of National Minorities in the Republic of Albania’ [2019] 18 Journal on Ethnopolitics and Minority Issues in Europe 53. Djordjević, Ljubica, and Zenajda Zaimi, ‘Commentary: The Law on Protection of National Minorities in the Republic of Albania’ [2019] JEMIE 53. Dzankic, Jelena, Soeren Keil and Marko Kmezić (eds), The Europeanisation of the Western Balkans: A Failure of EU Conditionality? (Palgrave Macmillan 2019). Ferrari, Heidrun, Samia Liaquat and Ali Khan, EU Financial Assistance to the Western Balkans: A Minority-Focused Review of CARDS and IPA (Minority Rights Group International 2010). Fruscione, Giorgio, ‘After the Nineties: A Never-Ending Political Transition’, in Giorgio Fruscione (eds), The Balkans: Old, New Instabilities – A European Region Looking for its Place in the World (ISPI/Ledi Publishing 2020). Gordon, Claire, Gwendolyn Sasse and Sofia Sebastian, Specific Report on the EU Policies in the Stabilisation and Association Process (MIRICO: Human and Minority Rights in the Life Cycle of Ethnic Conflicts 2008). Grewe, Constance, and Michael Riegner, ‘Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared’, in Armin von Bogdandy and Rüdiger Wolfrum (eds), Max Plank Yearbook of United Nations Law (Brill 2011). Henrard, Kristin, ‘The EU, Double Standards and Minority Protection: A Double Redefinition and Future Prospects’, in Kristin Henrard (ed.), Double Standards Pertaining to Minority Protection: A Critical and Multi-Dimensional Re-Appraisal (Brill 2010). Kann, Robert Adolf, A History of The Habsburg Empire 1526–1918 (University of California Berkeley 1977). Keil, Soeren, Multinational Federalism in Bosnia and Herzegovina (Ashgate 2013). Kohn, Hans, The Idea of Nationalism: A Study on its Origins and Background (Macmillan 1994). Lantschner, Emma, ‘Emerging European Standards of Minority Protection through Soft Jurisprudence?’, in Emma Lantschner, Joseph Marko and Antonija Petričušić (eds), European Integration and its Effects on Minority Protection in South Eastern Europe (Nomos 2008). Lantschner, Emma, Joseph Marko and Antonija Petričušić (eds), European Integration and its Effects on Minority Protection in South Eastern Europe (Nomos 2008). Lyon, Aisling, ‘Between the Integration and Accommodation of Ethnic Difference: Decentralization in the Republic of Macedonia’ [2012] JEMIE 80. Malloy, Tove H., ‘Towards a New Paradigm of Minority Law-Making: A Rejoinder to Palermo and Woelk’s Law of Diversity’ [2004–05] EYMI 5. Marko, Joseph, ‘“United in Diversity”?: Problems of State- and Nation-Building in Post-Conflict Situations: The Case of Bosnia and Herzegovina’ [2005–06] Vt. L. Rev. 503. Misha, Pirro, ‘Invention of Nationalism: Myths and Amnesia’, in Stephanie Shwandner-Sievers and Bernd J. Fisher (eds), Albanian Identities: Myth and History (Bloomington 2002). Missir de Lusignan, Livio, ‘La multinationalité ottomane (éléments de réflexion)’, in Olivier Aueod, Jean-Denis Mounton and Stéphane Pierré-Caps (eds), L’Etat multinational et l’Europe (Presses Universitaires de Nancy 1997).

364  Research handbook on minority politics in the European Union Nobbs, Katherine, ‘The Effective Protection of Minorities in the Wider Europe: Counterbalancing the Security Track’, in Mark Weller, Denika Blacklock and Katherine Nobbs (eds), The Protection of Minorities in the Wider Europe (Palgrave Macmillan 2008). Palermo, Francesco, and Jens Woelk, ‘From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights’ [2003–04] EYBI 5. Pech, Laurent, ‘La garantie internationale de la Constitution de Bosnie-Herzegovine’ [2000] RFDC 421. Pellet, Alain, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’ [1992] EJIL 178. Petričušić, Antonija, ‘Constitutional Law on the Rights of National Minorities in the Republic of Croatia’ [2002–03] EYMI 607. Pippan, Christian, ‘The Rocky Road to Europe: The EU’s Stabilisation and Association Process for the Western Balkans and the Principle of Conditionality’ [2004] Eur. Foreign Aff. Rev. 219. Poulton, Hugh, ‘Linguistic Minorities in the Balkans (Albania, Greece and the Former Yugoslavia)’, in Cristina Bratt Paulston and Donald Peckham (eds), Linguistic Minorities in Central and Eastern Europe (Multilingual Matters 1998). Rossi, Michael, ‘Ending the Impasse in Kosovo: Partition, Decentralization, or Consociationalism?’ [2014] Nationalities Papers: The Journal of Nationalism and Ethnicity 867. Sasse, Gwendolyn, ‘EU Conditionality and Minority Rights: Translating the Copenhagen Criteria into Policy’ (2005) European University Institute Working Paper 16, 5. Schwellnus, Guido, ‘Looking Back at Ten Years of EU Minority Conditionality vis-à-vis Central and Eastern European Candidate States’ [2004] EYMI 321. Smith, Antony D., The Nation in History: Historiographical Debates about Ethnicity and Nationalism (Cambridge Polity Press 2000). Toggenburg, Gabriel N., ‘A Remaining Share or a New Part? The EU’s Role vis-à-vis Minorities after the Enlargement Decade’, in Mark Weller, Denika Blacklock and Katherine Nobbs (eds), The Protection of Minorities in the Wider Europe (Palgrave Macmillan 2008a). Toggenburg, Gabriel N., ‘The Protection of Minorities at the EU-level: A Tightrope Walk Between (Ethnic) Diversity and (Territorial) Subsidiarity’, in Emma Lantschner, Joseph Marko and Antonija Petričušić (eds), European Integration and its Effects on Minority Protection in South Eastern Europe (Nomos 2008b). Toniatti, Roberto, ‘Minorities and Protected Minorities: Constitutional Models Compared’ in Michael Dunne and Tiziano Bonazzi (eds), Citizenship and Rights in Multicultural Societies (Keele University Press 1995). Tóth, Norbert, ‘A Tool for an Effective Participation in the Decision-Making Process? The Case of the National Councils of National Minorities in Serbia’, in Balázs Vizi, Norbert Tóth and Edgár Dobos (eds), Beyond International Conditionality: Local Variations of Minority Representation on Central and South-Eastern Europe (Nomos 2017). Vizi, Balázs, ‘European Integration and Minority Rights Conditionality Policy’, in Emma Lantschner, Joseph Marko and Antonija Petričušić (eds), European Integration and its Effects on Minority Protection in South Eastern Europe (Nomos 2008). Vuković, Ivan, and Filip Milačić, ‘Minority Representation in Montenegro: Defying Balkan Standards’, in Balázs Vizi, Norbert Tóth and Edgár Dobos (eds), Beyond International Conditionality: Local Variations of Minority Representation on Central and South-Eastern Europe (Nomos 2017). Woelk, Jens, ‘Bosnia-Herzegovina: Trying to Build a Federal State on Paradoxes’, in Michael Burgess and G. Alan Tarr (eds), Constitutional Dynamics in Federal Systems: Sub-National Perspectives (McGill-Queen’s University Press 2012). Zeqiri, Adrian, Virginia Stephens and Mi Zhou, ‘Implementation of the Decentralization Process in Kosovo: Challenges and Perspectives’ [2010] EYMI 659.

19. The ‘near abroad’: the European Union, minority rights and the Eastern neighbourhood Graham Donnelly and Federica Prina

INTRODUCTION Having played only a minimal role in the development of a post-World War II minority rights regime in Europe prior to the adoption of the Copenhagen Criteria of 1993, the accession processes of the former communist states of Central and Eastern Europe between 2004 and 2013 brought minority rights to the forefront of the European Union’s (EU’s) external affairs. The linkage of EU membership with the fulfilment of its minority condition has drawn considerable scholarly attention to the EU’s role in shaping minority governance within its accession candidates. However, whilst the extensive literature on this engagement extends beyond the Central and Eastern European accession cases and now includes, notably, the EU’s relationship with Turkey and the Balkan states, the same cannot be said of the EU’s engagement with its non-accession candidate neighbours in its so-called ‘near abroad’. Whilst the EU continues to assert for itself a role as an advocate and promoter of the rights of minorities in its external affairs outwith the confines of its accession programme, when it comes to the EU’s reform agenda in its relations with its Eastern neighbourhood, minority rights reforms are far from uniformly advocated or promoted by the EU, and significant divergencies in approach are readily identifiable. Focusing on a documentary analysis of the key political, legal and institutional texts framing the EU’s relations with its near abroad, and a literature review of the current scholarship, this chapter critically assesses the EU’s minority condition in its relations with its Eastern neighbourhood. A number of central questions are addressed: (a) do minority rights and protections form part of the EU’s external engagement within its near abroad, (b) to what extent does the EU promote minority issues consistently within its near abroad and (c) to what extent does EU external action in this field mirror its accession-related minority conditionality? This chapter finds that whilst minority rights do feature (albeit to varying degrees) in all of the EU’s key relationships in its near abroad and minority rights have become part of its normative agenda, the EU has largely replicated prior failings in this policy field identified in the scholarship focused on its accession processes. Moreover, where the EU claims to have engaged substantially in minority rights issues in its deepening relationships with certain key neighbours, it has restricted itself to a conceptualisation of minority rights at odds with both its prior practice in accession negotiations as well as in wider, European and international understandings of such rights. The chapter proceeds as follows: first, it provides an overview of the principal EU documents and structures with reference to minority rights. Second, it outlines the main policy areas in different regions of the near abroad, ranging from (relatively) sustained engagement (Moldova, Georgia and Ukraine), to limited engagement (Armenia, Azerbaijan and Belarus), before examining the Russian Federation as a ‘special case’. Third, the chapter illustrates 365

366  Research handbook on minority politics in the European Union a number of instances of practical engagement on the part of the EU, through involvement in selected projects. The conclusions reflect on the ad hoc nature of the EU’s application of minority rights principles, shortcomings in implementation and instances of normative dissonance between the EU and its neighbours.

MINORITY RIGHTS: PRINCIPAL DOCUMENTS AND STRUCTURES Political and Cooperation Agreements The EU insisted upon the inclusion of references to minority rights and protections in its early engagement with Russia and the other ‘Newly Independent States’ (NIS) that emerged from the collapse of the Soviet Union, at or around the same time as it was establishing the Copenhagen Criteria as part of the eastward expansion of the Union in the 1990s and early 2000s. However, whilst the Central and East European accession candidates (CEECs) were bound by the Copenhagen Criteria to ensure that they would respect and protect minorities in order to gain entry to the Union, the NIS, through their respective signatures of individual, bilateral Partnership and Cooperation Agreements (PCAs) with the EU,1 were subject to a far weaker form of EU political pressure, legal obligation and incentive. At the time of the decision to expand the European project to incorporate the CEECs and others, there was a purposeful decision taken at the EU level to exclude successor states of the Soviet Union from EU membership, with the exception of the Baltic states, whose incorporation into the Soviet Union had never been accepted by the countries of Western Europe. The non-Baltic successor states of the Soviet Union were dealt with by the EU through two specific programmes: the Technical Assistance to the Commonwealth of Independent States (TACIS) programme and the abovementioned, bilateral PCAs. Whilst the negotiation of each PCA with the different NIS proceeded at varying speeds, there is a remarkable similarity in the manner in which the EU addressed minority issues in these foundational documents. None of the PCAs signed and ratified contained more than one or two fleeting references to minority rights. However, in keeping with the overarching objective of supporting the consolidation of democracy among the NIS, the general principles which were to underpin the PCAs were generally said to include, as shown here in the Georgian case: Respect for democracy, principles of international law and human rights as defined in particular in the United Nations Charter, the Helsinki Final Act and the Charter of Paris for a New Europe […] underpin the internal and external policies of the Parties and constitute essential elements of partnership and of this Agreement.

This underpinning is replicated in the PCAs for each of the NIS. However, although this formulation does not directly reference minority rights per se, the UN Charter, Helsinki Final Act and Charter of Paris are constituent parts of the post-war international minority rights system, each containing clauses and protections relating to minorities which are to be observed by the



1

Though Belarus’ PCA has never subsequently been ratified by the EU.

The ‘near abroad’  367 various signatories and members.2 Whilst these instruments also include a wide range of other rights and obligations, the protection of minorities is clearly part and parcel of them, offering, in theory at least, a minority rights perspective to the EU’s relations with the NIS from the very outset of formal, legal relations. All of the PCAs, with the notable exception of Russia’s, despite being largely devoted to economic and trade issues, also contained almost identical sections on the priorities for bilateral political dialogue. These mirrored the Georgian example shown here, and the dialogue was supposed to: foresee that the Parties endeavour to cooperate on matters pertaining to the strengthening of stability and security in Europe, the observance of the principles of democracy, and the respect and promotion of human rights, particularly those of persons belonging to minorities [emphasis added] and shall hold consultations, if necessary, on relevant matters.3

Unlike the others, Russia’s PCA contains only a solitary reference to minorities, and that is set out in the tortuous language of the opening preamble, which declared that the parties to the PCA were: CONVINCED of the paramount importance of the rule of law and respect for human rights, particularly those of minorities [emphasis added], the establishment of a multi-party system with free and democratic elections and economic liberalization aimed at setting up a market economy.4

This conviction was replicated in the PCAs for each of Azerbaijan, Armenia, Georgia, Moldova and Ukraine. However, despite this ‘paramount importance’, none of the PCAs negotiated with any of the NIS made any further significant mention of minority issues, regardless of the extent to which such issues were prevalent in the international environment of the day, with the violent breakup of Yugoslavia ongoing throughout the period of the PCA negotiations, not to mention the various post-Soviet ethnic conflicts ongoing among many of the NIS. In general terms, however, most authors writing on EU–post-Soviet relations agree that, for the majority of the period prior to the introduction of the European Neighbourhood Policy (ENP) in the wake of the colour revolutions, the EU was largely disengaged from the region (see, for example, Tangiashvili et al., 2006; Pardo Sierra, 2011; Balfour, 2012; Khuntsaria, 2014). The EU’s initial interactions with the NIS largely respected the US lead in Western UN Charter (1945). It set out at Article 1 the various purposes of the UN, which at sub-section 3 included: ‘To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’; subsequently, the Helsinki Final Act 1975 said in Section VII: ‘The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.’ 3 ‘Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Georgia, of the other part’, 4 August 1999, L205/4, www​.fdfa​.be/​sites/​default/​ files/​atoms/​files/​138​_Agreement​%20in​%20English​.pdf. 4 ‘Agreement on Partnership and Cooperation, establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part’, 28 November 1997, L327/3, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​?uri​=​celex​%3A21997A1128​ %2801​%29. 2

368  Research handbook on minority politics in the European Union relations with post-Soviet states, where issues like Ukrainian nuclear weapons stocks and the post-Chernobyl clean-up operations were deemed paramount (Balfour, 2012: 49–50). Therefore, one of the knock-on effects of this hands-off approach was that, whilst during the decade leading up to the two enlargements of 2004 and 2007 the EU developed a relatively assertive approach to minority rights and protections in accession negotiations on the back of the minority section of the Copenhagen Criteria, in the NIS the EU’s official position on minority rights and protections was not followed through with corresponding action of any note. Whilst there is little to suggest that the inclusion of minority issues in the PCAs led to any concrete developments in the NIS, the EU’s approach to relations with the NIS was not only to engage with them politically through their respective PCAs. As with the CEECs, who were recipients of significant development funding through the PHARE programme, the EU also made funds available to the NIS through the TACIS programme. Technical Assistance to the CIS The TACIS programme provided funding for institutional, administrative and legal reform, to assist the NIS in meeting the goals set out in the PCAs. As with the primary focus of the PCAs, TACIS funding was mainly focused on preparing the NIS for market and economic reform. However, as in the PCAs, there was also scope within TACIS to assist the NIS in the construction of democratic institutions and associated administrative, judicial structures and legislation through the provision of relevant programme funding.5 The funds available for non-economic projects were distributed in macro, micro or ad hoc grants, which were available in one of eight thematic groupings under the heading of ‘the PHARE and TACIS Democracy Programme’, which included one strand which focused specifically on minority rights, equal opportunities and non-discrimination. According to an independent evaluation of the TACIS programme conducted in 1997, the share of programme funding under the macro scheme element of the TACIS (and PHARE) democracy programme was only a small fraction of the total spend, which was dominated by funding for the development of non-governmental organisations (NGOs) (Kaldor et al., 1997: 34). However, it is notable that in that same period, minority-related projects were the third most selected strand in terms of TACIS micro schemes, under the democracy programme (Pentassuglia, 2001: 15).6 It is evident, therefore, that in terms of financial commitment to relations with the NIS as recipient states in the TACIS programme the EU was, at least to a degree, cognisant of the significance of minority issues within the NIS, as illustrated by the inclusion of minority rights and anti-discrimination in its funding priorities. However, despite this, minority-related issues seem only to have secured significant levels of micro funding for schemes valued at under 10,000 ECU. It is clear, therefore, that in connection with its bilateral relations with each of the NIS in the period following independence, the EU was largely switched off not only from meaningful relations with most of them (other than the Russian Federation), but also from any significant

Between its commencement in 1991 and 1996, for example, the EU spent some 2.8 billion ECU under the TACIS programme (though, it should be noted that this was spread over a vast area, which incorporated all former Soviet Republics, including the Russian Federation as well as Mongolia). 6 Though this was a combined calculation from both PHARE and TACIS programmes and there is no way to separate these without recourse to a detailed primary investigation. 5

The ‘near abroad’  369 interest in the field of minority rights and protections beyond the limited statements contained in the PCAs and the arguably frugal distribution of small grants to minority-related projects under the TACIS programme. It would be difficult, indeed, to describe the EU as a significant foreign policy actor in the NIS during this period, let alone as an engaged actor in the field of minority rights and protections. European Neighbourhood Policy Drafted in 2004, the ENP was intended to offer those countries that were not part of the EU’s enlargement ‘pool’ a new model relationship that offered something more substantial than the existing bilateral agreements (i.e., the PCAs), yet something short of accession to the Union. This new creation, whilst not offering a membership perspective to the EU’s neighbours, utilised very similar processes, institutions and techniques, including the offer of incentives (though not the key incentive of accession) and the use of accession-style routine monitoring of reform progress. Such was the similarity of the intentions and mechanisms employed that Sasse (2007) described the process as one of ‘enlargement lite’. The ambition was no less than the creation of what the European Security Strategy of 2003 referred to as a ‘ring of friends’, all of whom, it was hoped, would share a set of common values and all without the political stress and expense of having to absorb hundreds of millions of new EU citizens and dozens of new Member States. It was made clear at the outset by the EU that the ENP should not be regarded as an ‘antechamber’ to accession negotiations (Haukkala, 2011: 56–7). Irrespective of whether or not shared norms existed throughout the stretch of land making up this ‘ring’ between Moscow and Rabat, one of the values which was missing from the founding ENP document was that of respect for and protection of minorities. Given the scale and diversity of the minority-related issues at play in the ENP region and the desire stated by the EU to create a ring of stable and secure friends, this seems like a rather strange omission. At first glance, therefore, the ENP offered little in the way of a raised profile for minority issues from the position offered in the bilateral PCA-based relations that formed the bedrock of the Union’s relations with the NIS from the early independence period onwards. However, despite the lack of a formal opening for interventions in this particular area, the EU made minority rights and protections a feature of the ENP Action Plans and subsequent annual monitoring of each of the European and Caucasian neighbours once bilateral negotiations were underway. The same could not be said, however, for the EU’s relations with Russia and Belarus, who would not form part of the EU’s regional approach to its Eastern neighbourhood (see below). Eastern Partnership Following the Russo-Georgian conflict in 2008, the EU took a renewed interest in the NIS and sought to develop a differentiated approach to its neighbourhood. The Eastern Partnership (EaP) was a joint Polish–Swedish concept, the purpose of which was twofold: firstly, to ensure that the EU’s Eastern neighbours did not stall their reform processes and constitute further threats to regional security, and, secondly, it was also intended to act as a counterweight to the Franco-Spanish creation of the Mediterranean Union, as the focus of EU–North African relations. The resultant EaP framework was intended to create a further, additional layer of engagement, rather than to replace the ENP.

370  Research handbook on minority politics in the European Union Balfour notes, however, the virtual ‘disappearance’ of human rights from the vocabulary in the EaP and also the shifting of democracy and good governance to the multi-lateral frameworks established therein, as evidence of what she describes as a downgrading of these issues for the EU (2012). It is perhaps unsurprising that with this ‘downgrading’ of the position of human rights in the creation of the EaP, the founding document of the EaP (the Prague Joint Declaration of the European Council of 2009) contains no mention of minority rights issues at all. That said, the subsequent Eastern Partnership Roadmap was described in a Joint Communication by the European Council and High Representative as a practical guide to monitoring implementation (by the EU’s partners in the EaP).7 Significantly, this Roadmap included minority issues in the list of common values/principles to be upheld by partners, despite its absence as a priority in the Prague Declaration. The Roadmap called for the [i]mplementation of common values and principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law by [ensuring, inter alia] respect for human rights (abolition of capital punishment, freedom of religion, non-discrimination on the basis of gender, sexual orientation, non-discrimination of minorities).8

What is particularly noteworthy about this formulation is the change in how respect for human rights and minorities are linked. The wording used here represents a departure from the EU’s prior usage, in PCA-, TACIS- and ENP-related documents and the more traditional formula of requiring partner states to respect or ensure human rights, including or particularly those of minorities. This left the question of how minorities specifically are to be catered for an open one. Here, however, there is a clear direction that respect for human rights, when it comes to minorities, is to include (whether or not the intention was to exclude other forms of protection or human rights from this is unclear) protection from non-discrimination. Whilst this may well have been a case of loose or incomplete drafting by the draftspeople at the European External Action Service (EEAS), this may also have marked the beginning of a fundamental change in the way the EU came to view the protection of human rights for minorities in its dealings with the EaP and their respective minority communities. As will become evident below, the creation of anti-discrimination legislation in the EaP was to become the core element of the EU minority agenda in the looming intensification of relations with three of the EaP states most advanced in their relations with the EU. Alongside the creation of a new framework for political relations with its neighbours, the EU also restructured its development or reform funding and, when it came to the EaP states, it replaced the TACIS programme with a new programme directly linked to the ENP.9

Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Eastern Partnership: A Roadmap to the Autumn 2013 Summit, 15 May 2012, JOIN(2012) 13 final, www​.europarl​.europa​.eu/​cmsdata/​219087/​EaP​_joint​ _communication​_eastern​_partnership​_roadmap​_summit2013​_en​.pdf. 8 https:// ​ o p ​ . europa ​ . eu/ ​ e n/ ​ p ublication ​ - detail/ ​ - / ​ p ublication/ ​ 7 41ee135 ​ - a070 ​ - 48f5 ​ - a163 ​ - f373d1 c283e6/language-en. 9 Though Russia, as a non-ENP state, was still included within the funding structures. 7

The ‘near abroad’  371 TACIS Replacement: European Neighbourhood and Partnership Instrument In 2007, the TACIS programme, having run from 1991, was superseded by the newly created European Neighbourhood and Partnership Instrument (ENPI). The ENPI, as the successor to TACIS, contained similar priorities, including the creation of an area of shared values, stability and prosperity, enhanced cooperation and deeper economic and regional integration by covering a wide range of cooperation areas. The ENPI contained three funding priorities, of which one was Good Governance and the Rule of Law. Whilst there was no specific minority-related funding strand in the ENPI, there were a number of channels through which it was possible that funds might be utilised in connection with minority issues, including through the financing of ENP Action Plans (which included reference to minority issues, as will be noted in the following sections), funding for social problems and societal cohesion under the Pilot Regional Development Programme, a focus on regional development and rural poverty (a particular issue for minority communities in each of the NIS), comprehensive institution-building, and, after 2011, the development of enhanced funding opportunities for greater reforms; i.e., the movement to a so-called ‘more (funds) for more (reforms)’ funding model. Initially the ENPI allocated €11.2 billion for the period 2007–13 (with €15.4 billion earmarked for 2014–20). Taking Ukraine as an example, of the €1 billion earmarked in the National Indicative Programme (which regulated the spending of ENPI funding) between 2007 and 2013, 20–30 per cent was earmarked for spending on support for democracy development and good governance (Europeaid, 2013: 48). Estimating the funds from this pot allocated to minority-related projects, however, is simply unfeasible. That said, as will become clear in the sections to follow, funds clearly made their way to minority-related projects in several of the NIS. Alongside the ENPI, the EU also developed a range of thematic funding programmes. Of particular note in this regard is the European Instrument for the Promotion of Democracy and Human Rights (EIDHR). European Instrument for the Promotion of Democracy and Human Rights The EIDHR was established to give the EU a dedicated human rights promotion tool in its external relations, over and above that of the ENPI. The EIDHR initially set out to spend around €150 million a year, in a global programme based on five core objectives. Whilst these policy objectives did not specify minority rights per se as an objective, most of the objectives could at some level extend to minority issues.10 However, despite the absence of any focus on minority issues in the core objectives of the EIDHR, the organisation did provide its own guidance on its treatment of minorities in the document ‘The European Union and the Protection

These include supporting, developing and consolidating democracy in third countries, by enhancing participatory and representative democracy, strengthening the overall democratic cycle, in particular by reinforcing an active role for civil society within this cycle, and the rule of law, and improving the reliability of electoral processes, in particular by means of EU Electoral Observation Missions; enhancing respect for and observance of human rights and fundamental freedoms, as proclaimed in the United Nations Universal Declaration of Human Rights and other international and regional human rights instruments, and strengthening their protection, promotion, implementation and monitoring, mainly through support to relevant civil society organisations, human rights defenders and victims of repression and abuse. 10

372  Research handbook on minority politics in the European Union of the Rights of Persons Belonging to Minorities’.11 Regarding minority issues, the guidance states that the EIDHR aims to combat discrimination while promoting minority communities’ participation in social, economic and political life, and strengthening human rights and democratic political participation. The EIDHR’s priorities here again place the issue of anti-discrimination at the centre of its conceptualisation of minority rights and protections. That said, the EIDHR has approached its remit with a degree of flexibility. Whilst, at first glance, its definition would seem to preclude the EIDHR’s involvement in the wider elements of the international minority rights regime (including language, education, cultural rights, etc.), the EIDHR has actively sought to promote a range of issues. The EIDHR has provided a significant level of funding to projects related to the European Charter for Regional or Minority Languages (ECRML; discussed in detail below). However, whilst funding has trickled down to various minority-related projects and organisations, the creation of the ENP and the EaP foresaw a deepening set of relationships with the EU’s neighbours. This trickling down cannot readily be described as being representative of a specifically enhanced position for minority communities, or for their protection or promotion, in the context of formal EU–NIS relations. There were no specific funding streams established or envisaged for minority issues, unlike under TACIS; no specific reforms envisaged in respect of the myriad minority communities of the EU’s neighbourhood; and, at best, only a general expectation that minorities would be free from discrimination, along with an ad hoc willingness to disburse funds in support of Council of Europe (CoE) joint programming.

THE EU’S DIVERGING REGIONAL APPROACH This section considers the differing policies adopted in various regions of the Eastern neighbourhood. Overall, in Moldova, Georgia and Ukraine there was a deeper engagement on the part of the EU, compared with Azerbaijan, Armenia and Belarus. Russia represents a sui generis case – one characterised by limited leverage from the EU, yet with a need to retain a modicum of engagement due to a degree of EU–Russia interdependence. The countries in question are divided into three main regions in the following sections, although there have been different and evolving circumstances in each country. Deeper Engagement: Moldova, Georgia and Ukraine In the negotiation of the suite of agreements that replaced the PCAs, Moldova, Ukraine and Georgia diverged substantially from the other NIS in their relations with the EU. With deeper engagement, the EU raised the profile of minority issues with the Eastern Partnership 3 (EaP3) to a level previously unseen in its relations with its non-accession Eastern neighbours. A close examination of the substance of the EU’s minority condition during the negotiation of a combination of Association Agreements, visa liberalisation and Deep and Comprehensive Free Trade Areas demonstrates an unusually heavy focus by the EU upon the adoption of anti-discrimination legislation in each of the EaP3. Whilst anti-discrimination already featured in the ENP Action Plans for both Moldova and Ukraine (it was absent from Georgia’s), it was 11 Last accessed in 2017 at www​.eidhr​.eu/​files/​dmfile/​minorities​-guide​_en​.pdf; webpage is no longer active.

The ‘near abroad’  373 not evidently central to the EU’s conceptualisation of what constituted an appropriate minority rights protection regime. Although anti-discrimination could be identified as forming part of the EU’s minority toolkit in its accession- and minority-related conditionality, it could rarely be described as ‘the only show in town’. The ENP Action Plans for Moldova and Ukraine both raised anti-discrimination, albeit somewhat differently in each case. Moldova’s Action Plan (2005) required the government in Chișinău to ‘put in place and implement legislation on anti-discrimination and legislation guaranteeing the rights of minorities, in line with European standards’. In Ukraine’s Action Plan (2005), however, there was no mention of legislative change, only the requirement to ‘continue its internal reforms based on strengthening democracy, rule of law, respect for human rights … respect for the rights of persons belonging to national minorities, non discrimination on grounds of gender, and on political, religious and ethnic grounds’. Although the EU continued to raise the issue of anti-discrimination with both Moldova and Ukraine in the subsequent ENP monitoring process, it provided what can only be described as a cursory, running commentary on the progress of each state towards developing a piece of anti-discrimination legislation, whilst from time to time lamenting the lack of progress in that process. It was only at the beginning of the visa liberalisation (VLAP) process from 2010 onwards that the issue of anti-discrimination became identifiably central to the EU’s minority agenda. Figure 19.1 shows the spike in frequency of EU interventions on anti-discrimination in various key documents during the completion of Association Agreement processes in each of the EaP3. There is a particular prominence given over to anti-discrimination in the visa liberalisation process. Figure 19.2 shows the frequency of the EU’s inclusion of minority-related issues in its key VLAP Action Plans during this period, and the prominence of anti-discrimination in comparison to all other issues is immediately identifiable. Unlike the ENP monitoring which had preceded it, it soon became apparent to policymakers in the EaP3 that the EU was moving away from mere passive monitoring. As the negotiation of the VLAP and Association Agreement processes began, the tone of EU monitoring documents became much more direct and prescriptive than those which preceded them. Unlike most of the other minority issues raised by the EU with the EaP3, actionable recommendations were given by the EU in the VLAP Action Plans. These were remarkably consistent across each state, and in general these focused on the promulgation of a specific piece of anti-discrimination legislation and the EaP3s’ commitment to related international obligations vis-à-vis the recommendations of the various international organisations that monitor state performance in this policy field. Table 19.1 illustrates the detail provided by the EU in these Action Plans as well as a notable focus on the significance attached to the issue of implementation which is notably absent in its engagement on other minority issues. By 2015, each of the EaP3 had enacted a functioning piece of legislation such that the EU’s final VLAP reports on each could confirm satisfaction of the EU’s requirements. However, despite the focus placed on the issue of implementation in the VLAP Action Plans, a familiar failing soon became evident. Whilst the European Parliament’s (EP’s) Directorate-General for External Policies’ analysis of the EU’s impact on minority rights in the South Caucasus identified the adoption of anti-discrimination legislation in Georgia as one of the great successes of EU external action in this field, it highlighted a common theme in EU minority-related ‘conditionality’: a lack of focus on the part of the EU on the issue of implementation (European Parliament, 2014: 26). The EU delegation in Georgia’s own external assessment of its minority

Figure 19.1

EU anti-discrimination interventions: key documents

374  Research handbook on minority politics in the European Union

Figure 19.2

Frequency of inclusion of minority issues in EU–EaP3 documents during VLAP negotiations

Note: AP = Action Plan; PR = Progress Report.

The ‘near abroad’  375

Figure 19.2

(continued)

376  Research handbook on minority politics in the European Union

FUNDAMENTAL RIGHTS: 4.1 Freedom of movement; 4.2 Conditions and procedures for issuance of travel and identity documents; 4.3 Citizens' rights including protection of minorities Freedom of movement PHASE 1 Conditions and procedures for the issue of identity documents.

FUNDAMENTAL RIGHTS: 4.1 Freedom of movement; 4.2 Conditions and procedures for issuance of travel and identity documents; 4.3 Citizens' rights including protection of minorities Freedom of movement PHASE 1 Revision of legal and regulatory framework on registration and de-registration procedures for Ukrainian citizens and legally staying foreigners or stateless persons). PHASE 2

FUNDAMENTAL RIGHTS: 4.1 Freedom of movement;

4.2 Conditions and procedures for issuance of travel

and identity documents; 4.3 Citizens' rights including

protection of minorities Freedom of movement PHASE 1

Consolidation of the regulatory system so as to ensure full

and effective access to travel and ID documentation, without

discrimination, in particular against women, IDPs, people

belonging to minorities and other vulnerable groups. PHASE 2

orientation.

orientation.

vulnerable groups. 4.3 Citizens rights' including protection of minorities PHASE 1 Adoption of comprehensive anti-discrimination legislation, as recommended by UN and Council of Europe monitoring bodies, to ensure effective protection against discrimination.

with disabilities, people belonging to minorities and other vulnerable groups. 4.3 Citizens' rights including protection of minorities PHASE 1 Adoption of a comprehensive anti-discrimination law, as recommended by UN and Council of Europe monitoring bodies, to ensure effective protection against discrimination.

4.3 Citizens' rights including protection of minorities PHASE 1

Adoption of a comprehensive anti-discrimination law, as

recommended by UN and Council of Europe monitoring

bodies, to ensure effective protection against discrimination.

with disabilities, people belonging to minorities and other

of a national minority, property, birth, disability, age or sexual

of a national minority, property, birth, disability, age or sexual

all Moldovan citizens including women, children, people

religion or belief, political or any other opinion, membership

religion or belief, political or any other opinion, membership

all Ukrainian citizens including women, children, people

genetic features, health status (including HIV/AIDS), language,

race, colour, ethnic or social origin, genetic features, language,

etc.

Full effective access to travel and identity documents for

any ground such as sex, race, colour, ethnic or social origin,

of a discriminatory nature, based on any ground such as sex,

as gender, race, colour, ethnic background, sexual orientation,

full, effective access to travel and identity documents for

including measures of a discriminatory nature, based on

is not subject to unjustified restrictions, including measures

measures of a discriminatory nature, based on any ground such

2nd phase (benchmarks for effective implementation):

or stateless persons is not subject to unjustified restrictions,

citizens and legally staying foreigners or stateless persons

individuals is not subject to unjustifiable restrictions, including

Full and effective access to ID without discrimination.

Moldova of Moldovan citizens and legally staying foreigners

that freedom of movement within Ukraine of Ukrainian

Georgian citizens, legally residing foreigners or stateless

PHASE 2 2nd phase (benchmarks for effective implementation): ensuring Ensuring that freedom of movement within the Republic of

BLOCK 4: EXTERNAL RELATIONS AND

BLOCK 4: EXTERNAL RELATIONS AND

Ensuring that freedom of movement within Georgia of

VLAP ACTION PLAN – MOLDOVA 2010

VLAP ACTION PLAN – UKRAINE 2010

BLOCK 4: EXTERNAL RELATIONS AND

Anti-discrimination in EaP3 VLAP Action Plans

VLAP ACTION PLAN – GEORGIA 2013

Table 19.1

The ‘near abroad’  377

VLAP ACTION PLAN – UKRAINE 2010

anti-discrimination policies, protecting minorities and private

policies, protecting minorities and combating hate crimes.

the Council of Europe/ECRI and international human rights

citizenship of the Republic of Moldova. PHASE 2 Effective implementation of legislation and policies on anti-discrimination, implementation of relevant UN and Council of Europe instruments.

PHASE 2 Effective implementation of legislation and policies on anti-discrimination, implementation of relevant UN and Council of Europe instruments.

Effective implementation of legislation and policies on

anti-discrimination, including by ensuring effective legal aid

and the independence of the judiciary; implementation of

Strategy and Action Plan measures to fight against discrimination (including allocation of adequate human and financial resources); general awareness-raising campaigns against racism, xenophobia, anti-semitism and other forms of discrimination; strengthening the responsible bodies for anti-discrimination policy and combating racism, xenophobia and anti-semitism.

discrimination; general awareness-raising campaigns against racism, xenophobia, anti-semitism and other forms of discrimination; strengthening the responsible bodies for anti-discrimination policy and combating racism, xenophobia and anti-semitism. Provision of specific training to law enforcement officials, prosecutors and judges potentially involved in the prosecution

Strategy and Action Plan measures to fight against

discrimination (including allocation of adequate human and

financial resources); general awareness-raising campaigns

against racism, xenophobia and other forms of discrimination;

strengthening the capacities of responsible bodies for

anti-discrimination and combating racism, xenophobia and

other forms of discrimination. of hate crimes.

Effective implementation of the National Human Rights

Effective implementation of the Action Plan on fight against

Effective implementation of the National Human Rights

relevant UK and CoE instruments.

Specify conditions and circumstances for the acquisition of

citizenship. PHASE 2

against discrimination.

Establish fair and transparent conditions for obtaining Georgian

freedom of religion.

policies, protecting minorities and private life and ensuring the

organisations, notably in implementing anti-discrimination

human rights organisations in implementing anti-discrimination

the specific recommendations of UK bodies, OSCE/ODIHR,

and Action Plan; actively pursue in this strategy and action plan OSCE/ODIHR, the Council of Europe/ECRI and international

life and ensuring the freedom of religion. Ratification of relevant UN and CoE instruments in the fight

human rights organisations notably in implementing

Languages. Actively pursue the specific recommendations of UN bodies,

OSCE/ODIHR, the Council of Europe/ECRI and international

Council of Europe on the Charter of Regional and Minority

Adoption of a comprehensive National Human Rights Strategy

Action Plan the specific recommendations of UN bodies,

Plan; actively pursue in the respective National Human Rights

Adoption of a comprehensive National Human Rights Action

on Statelessness and the Standing Recommendations of the

in the fight against discrimination.

VLAP ACTION PLAN – MOLDOVA 2010

against discrimination, taking into account the UN Convention

of relevant UN and Council of Europe instruments in the fight

Signature, ratification and transposition into national legislation Ratification of relevant UN and Council of Europe instruments

VLAP ACTION PLAN – GEORGIA 2013

378  Research handbook on minority politics in the European Union

The ‘near abroad’  379 engagement said of the anti-discrimination law adopted that it ‘leaves much to be desired when it comes to its real effectiveness in eliminating discrimination’ (Gulakova and Khurtsidze 2015: 36). Taking its criticism a step further than the European Parliament, however, it also called on the EU to ‘integrate anti-discrimination efforts, in areas such as legislation and institutional structures, more effectively with minority and indigenous concerns’ (ibid.). Limited Engagement: Armenia, Azerbaijan and Belarus The Georgian, Moldovan and Ukrainian Association Agreements and visa liberalisations represent a high-water mark in EU engagement on minority issues within the EaP and Eastern neighbourhood. In contrast, the paths followed by Armenia and Azerbaijan, and in particular by Belarus, have provided a narrower scope for EU engagement on the issue of minority rights and protections. Azerbaijan and Armenia Following the collapse of the EU–Armenia Association Agreement negotiations in 2013 and the EU’s ‘strategic pause’ in relations resulting from Armenia’s decision to join the Eurasian Union, negotiations to replace the PCA were renewed in December 2015. This led to the creation of a bespoke Comprehensive and Enhanced Partnership Agreement (CEPA) in 2018, in an example of the differentiated approach to the neighbourhood pursued by the EU following the post-Euromaidan crisis in Ukraine and the EU’s perceived failings in the region (Kostanyan and Giragosian, 2017). The CEPA, echoing the Association Agreements with the EaP3, made specific reference to minority rights in the opening preamble, noting that each side were: COMMITTED to further strengthening respect for fundamental freedoms, human rights, including the rights of persons belonging to minorities, democratic principles, the rule of law, and good governance.12

The CEPA went on to include minority rights as one of the several aims for political dialogue between the two sides, as part of a wider aim: to strengthen respect for democratic principles, the rule of law, good governance, and human rights and fundamental freedoms, including media freedom and the rights of persons belonging to minorities, and to contribute to consolidating domestic political reforms.13

In Azerbaijan, relations continue to be based on the 1999 PCA. That said, in 2017, negotiations began on replacing the PCA with a new framework for political relations, trade and cooperation. In 2018, both sides endorsed a set of Joint Partnership Priorities for this new relationship framework. These were based upon existing Eastern Partnership areas of cooperation and included: strengthening institutions and good governance; economic development and market

‘Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part’, 26 January 2018, L23/4, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​ ?uri​=​CELEX​%3A22018A0126​%2801​%29. 13 Ibid. 12

380  Research handbook on minority politics in the European Union opportunities; connectivity, energy efficiency, the environment and climate action; and mobility and people-to-people contacts. Minority rights and protections did not feature in these ‘new’ priorities per se, though the EU stressed that ‘the agenda will reflect the values and principles of the European Neighbourhood Policy, including respect for human rights, democracy, the rule of law, and dialogue with civil society’.14 Despite this absence, the EU has included minority issues in subsequent implementation reporting to some degree. The December 2020 Implementation Report, for example, contained within its commentary on good governance, democracy, rule of law and human rights the finding that: Although Azerbaijani multiculturalism welcomes expressions of cultural identity, increased restrictions on democracy, absence of comprehensive legislation and consultative mechanisms for national minorities have prevented them from fully exercising their rights according to the CoE Advisory Committee on the Framework Convention for the Protection of National Minorities. The protection and promotion of native languages of ethnic minorities is not encouraged or supported by local authorities, except for the Russian and Georgian languages.15

However, the inclusion of minority issues in this section is something of a misnomer, as these issues are raised entirely out of the blue, with neither a basis in the Partnership Priorities or any precedent in preceding annual reporting, which left such matters out entirely. In the EU’s annual reporting on the human rights situation around the world and in individual states between 200916 and 2020, there is no mention of minority issues whatsoever in relation to Azerbaijan and only the most fleeting mention of minority issues in the case of Armenia, where, in the 2011 report, the EU called on Armenia to ensure respect for freedom of religion based on evidence of societal discrimination against those not of the Armenian Orthodox faith. In its ENI/ENPI annual action programme documentation, where the EU sets out its spending priorities for the year, whilst there is specific reference to funding programmes with the aim of improving democracy and human rights in both states, there is no mention at all of minority rights or protections-related spending in either Azerbaijan or Armenia in the years between the creation of the ENPI Annual Action Programmes in 2007 and 2020. An examination of the key documentary evidence framing the relationship between both states and the EU, therefore, demonstrates a clear distinction between the EU’s approach to minority rights in Armenia and Azerbaijan on the one hand and Georgia, Moldova and Ukraine on the other. Whilst minority issues and anti-discrimination in particular feature relatively frequently in annual reporting and political engagement with the EaP3, such issues are all but non-existent in the EU’s ongoing relations with Armenia and Azerbaijan.

14 European Union, External Action Service Press Release, ‘Partnership Priorities between the EU and Azerbaijan reinforce the bilateral agenda’, 11 July 2018, https://​eeas​.europa​.eu/​headquarters/​ headquarters​-homepage/​48244/​partnership​-priorities​-between​-eu​-and​-azerbaijan​-reinforce​-bilateral​ -agenda​_en. 15 European Commission, Joint Staff Working Document, Cooperation Implementation Report on Azerbaijan, 16 December 2020, SWD(2020) 365 final, https://​eeas​.europa​.eu/​sites/​eeas/​files/​azerbaijan​ _cooperation​_implementation​_report​_2020​.pdf. 16 Earliest date available.

The ‘near abroad’  381 Belarus A PCA was concluded with Belarus in 1995, but was never ratified by the EU, given its condemnation of Belarus’ authoritarian style of government. For this reason, Belarus has not been included in the ENP, although it has actively participated in the Eastern Partnership. Violations of civil and political rights have led to EU sanctions on Belarus, alternated with efforts towards further cooperation, when Belarus seemed more amenable to dialogue and to containing authoritarian practices. The EU has reiterated that ‘EU–Belarus relations should be based on common values, especially respect for human rights, democracy and the rule of law.’17 Minority rights made a brief appearance in the EU Council’s 2016 ‘Conclusions on Belarus’, where the Council ‘call[ed] on Belarus to respect the rights of persons belonging to national minorities’. Minority rights were included in a list of human rights concerns (including free and fair elections, the abolition of the death penalty, a civil society and media free to operate without interference) for which the Council would ‘continue to follow closely the situation’.18 The following EU Council’s ‘Conclusions on Belarus’, unsurprisingly, mostly concerned itself with the 9 August 2020 Presidential elections, which it declared neither free not fair.19 The EU Council stated it would scale down bilateral cooperation with the Belarusian authorities: within the Eastern Partnership framework, it would ‘maintain cooperation with Belarus at non-political level, and intensify cooperation with key non-state Belarusian stakeholders’.20 From Common Spaces to Security Concerns: The Russian Federation The EU and Russia created four ‘Common Spaces’ (spheres of cooperation) in 2003, within the framework of the PCA. Russia insisted on ‘Common Spaces’ instead of participating in the ENP: this reflected a desire to be an ‘equal partner’ to the EU – and an ‘assertive neighbour’ (Van Elsuwege 2008: 346) – rather than a ‘junior partner’, although there were no major variations in the arrangements envisaged by the Common Spaces and the ENP Action Plans adopted jointly by the EU and its partners. The source of funding has also been the same fund (the ENPI). The Common Spaces foresaw cooperation in four areas: the economy; freedom, security and justice; external security; and research and education. The establishment of the Common Spaces was agreed by the parties to be ‘on equal footing’, and developed through Road Maps, adopted in 2005 (European Council, 2003, Point 2). Whilst minority rights are not central to Common Spaces or their Road Maps, aspects of minority protection are interwoven in them. Thus, the 2003 Joint Statement refers to the need for ‘genuine reconciliation in Chechnya’, through the restoration of the rule of law and promotion of human rights.21 The Road Map on the Common Space of Freedom, Security and Justice22 states that the principles underlying EU–Russia cooperation in this field encompass ‘respect of human rights, including the rights of persons belonging to minorities’. This Council of the European Union, Council Conclusions on Belarus, 15 February 2016, www​ .consilium​.europa​.eu/​en/​press/​press​-releases/​2016/​02/​15/​fac​-belarus​-conclusions/​pdf. 18 Ibid. 19 Council of the European Union, Council Conclusions on Belarus, 12 October 2020, www​ .consilium​.europa​.eu/​media/​46076/​council​-conclusions​-on​-belarus​.pdf. 20 Ibid. 21 European Council, 2003, Point 21. 22 The Road Map on the Common Space of Freedom, Security and Justice, 2005, https://​russiaeu​ .ru/​userfiles/​file/​road​_map​_on​_the​_common​_space​_of​_freedom​,​_security​_and​_justice​_2005​_english​ 17

382  Research handbook on minority politics in the European Union includes cooperation in the area of asylum policy, and protection of individuals in the territory of EU Member States and Russia ‘against possible threats to their life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group’. The Road Map on the Common Space of External Security relates to cooperation on security issues and crisis management, including regional conflicts. It involves efforts towards promoting cooperation with Russia on the ‘common neighbourhood’ the EU shares with Russia (in particular Moldova and Georgia).23 The Road Map reiterates that ‘The EU and Russia share common values, as defined in the Helsinki Final Act as well as in the PCA […], including respect for democratic principles and human rights, including the rights of persons belonging to minorities.’ The EU and Russia agreed jointly to aim at ‘preventing the spread of practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance’.24 On the international scene, they agreed to enhance cooperation and dialogue on the basis of ‘effective multilateralism’, by supporting the United Nations, the Organization for Security and Co-operation in Europe and the CoE.25 The Road Map on the Common Space of Research and Education, Including Cultural Aspects26 includes as objectives ‘promoting intercultural dialogue and enhancing cooperation with partner neighbouring countries’ and strengthening a European identity ‘on the basis of common values, including […] respect of human rights including the rights of persons belonging to minorities and promotion of cultural and linguistic diversity as a basis of vitality of civil society in Europe without dividing lines’.27 Annexation of Crimea and violations of the rights of Crimean Tatars Relations between Russia and the EU have been highly strained since the 2014 annexation of Crimea and Russian intervention in Eastern Ukraine.28 EU sanctions have been imposed on Russia, with an asset freeze and travel ban on selected individuals and entities. Cooperation was suspended by the European Council in 2014, with the exception of cross-border cooperation and people-to-people contacts. EU financing was also discontinued.29 Russia retaliated with countersanctions on imported goods. The EU has since been following a twin-track .pdf. The Common Space primarily relates to cooperation in the areas of terrorism and organised crime, visa-free travel, migration and asylum policy, judicial reform and the rule of law. 23 European Commission, ‘EU/Russia: The four “Common Spaces”’, MEMO/05/103, 18 March 2005, https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​MEMO​_05​_103. 24 Road Map on the Common Space of External Security, 2005, https://​russiaeu​.ru/​userfiles/​file/​road​ _map​_on​_the​_common​_space​_of​_external​_security​_2005​_english​.pdf. 25 Ibid. 26 Road Map on the Common Space of Research and Education, Including Cultural Aspects, 2005, https://​russiaeu​.ru/​userfiles/​file/​road​_map​_on​_the​_common​_space​_of​_research​_and​_education​_2005​ _english​.pdf. 27 Ibid. 28 Other issues that have complicated EU–Russia relations have been: Russia’s intervention and engagement in the Middle East (intervention in Syria and interference in countries such as Libya), links between the Russian Government and the extreme right and populist nationalist parties and governments in the EU, Russian interference and attempts to influence elections and referenda in the EU, and Russia’s ‘policy of using its energy resources as a political tool’. European Parliament, European Parliament resolution of 12 March 2019 on the state of EU–Russia political relations (2018/2158(INI)), www​.europarl​ .europa​.eu/​doceo/​document/​TA​-8​-2019​-0157​_EN​.html. 29 European Parliament, Fact Sheets of the European Union: Russia, www​.europarl​.europa​.eu/​ factsheets/​en/​sheet/​177/​russia.

The ‘near abroad’  383 approach, with the imposition of sanctions but also attempts to reach diplomatic solutions to the conflict in Eastern Ukraine. With reference to the annexation of Crimea, the ‘Declaration by the High Representative on behalf of the EU on Crimea’ of 18 March 2016 states that: The European Union reiterates that it does not recognise and continues to condemn this violation of international law. […] The EU reaffirms its deep concern at the military build-up and the deterioration of the human rights situation in the Crimean peninsula, including the denial of freedom of expression, freedom of peaceful assembly, freedom of religion and belief, and the persecution of persons belonging to minorities, in particular the Crimean Tatars.30

The Declaration refers to the attempt to ban the Mejlis, a self-governing body of the Crimean Tatars, as ‘a particularly worrying development’.31 The attempt became reality following a decision by the de facto Supreme Court of Crimea of on 26 April 2016, labelling the Mejlis an ‘extremist organisation’ and prohibiting its activities. On the same day, the EU in a statement called the decision ‘a grave attack on the rights of the Crimean Tatars as a whole’, as well as ‘a further very negative escalation in the human rights situation on the Crimean peninsula since its illegal annexation by the Russian Federation in 2014, including as regards the persecution of persons belonging to minorities’.32 The EP has adopted resolutions on Russia’s actions in Ukraine. Besides condemning the annexation of Crimea and the destabilising role played by Russia in Eastern Ukraine, the resolutions have covered minority issues, with an explicit condemnation of violations of the rights of Crimean Tatars. In the 2016 Resolution ‘Crimean Tatars’, the EP echoed the High Representative in condemning the ban of the Mejlis, referring to it as part of ‘the policy of repression and intimidation on the part of the Russian Federation, which is punishing this minority for its loyalty towards the Ukrainian state during the illegal annexation of the peninsula’.33 It added that: prominent members of the Crimean Tatar community are, or risk, being arrested as ‘terrorists’; whereas the abuses against Tatars include abduction, forced disappearance, violence, torture and extrajudicial killings that the de facto authorities have failed to investigate and prosecute, as well as systemic legal problems over property rights and registration.34

In condemning restrictions on freedoms of expression, association and peaceful assembly in Crimea, the EP referred specifically to traditionally commemorative events such as the anniversary of the deportation of the Crimean Tatars by Stalin,35 cultural gatherings of the Crimean Tatars, and the withdrawal of the licence of ATR, the largest Crimean Tatar televi-

‘Declaration by the High Representative on behalf of the EU on Crimea’, 18 March 2016, www​ .consilium​.europa​.eu/​en/​press/​press​-releases/​2016/​03/​18/​hr​-eu​-crimea/​. 31 Ibid. 32 ‘Statement by the Spokesperson on today’s decision of the “Supreme Court” of Crimea to ban Mejlis activities’, 26 April 2016, https://​www​.eeas​.europa​.eu/​node/​2864​_en. 33 European Parliament, European Parliament Resolution of 12 May 2016 on the Crimean Tatars (2016/2692(RSP), www​.europarl​.europa​.eu/​doceo/​document/​TA​-8​-2016​-0218​_EN​.html. 34 Ibid. 35 Other concerns raised related ‘discriminatory policies applied by the so-called authorities’ preventing the return of these properties and resources (following deportation under Stalin), or used as an ‘instrument to buy support’ (ibid.). 30

384  Research handbook on minority politics in the European Union sion channel.36 The EP stated that these measures ‘deprive the Crimean Tatar people of a vital instrument for maintaining their cultural and linguistic identity’.37 Overall, [The EP] calls for the preservation of the historical and traditional multicultural environment of Crimea and for full respect for Ukrainian, Tatar and other minority languages and distinctive cultures; [and] condemns legal pressure on Crimean Tatar cultural and educational organisations, including those dealing with Crimean Tatar children.38

The EP also called on the Russian Federation to investigate cases of torture of prisoners illegally apprehended in Crimea, including the First Deputy Chair of the Mejlis, Ahtem Çiygoz, whilst protesting peacefully against the occupation. Other cases raised by the EU bodies were those of activists Oleg Sentsov and Oleksandr Kolchenko, prosecuted under Russian law despite being Ukrainian citizens outside Russian jurisdiction.39 In a previous resolution, the EP had already condemned the ‘forceful passportisation of Ukrainian citizens’, with the imposition of Russian citizenship on residents of Crimea.40 The EP has also expressed concern on the situation within Russia, including making reference to gross violations of human rights in the North Caucasus, particularly in Chechnya.41 In 2015 the EU condemned ‘the growing atmosphere of hatred directed against opposition activists, human rights defenders, minorities and neighbouring nations’.42 Conflicts in the neighbourhood References to Russia’s actions in the neighbourhood and involvement in protracted conflicts – which have elements of ethnic conflict – are also contained in EP resolutions on EU–Russia relations. In EP resolutions on the state of EU–Russia relations (issued in 2015 and 2019), the EP refers explicitly to Russia’s ‘violation of Georgia’s territorial integrity in 2008’ and the ‘ongoing occupation of the Georgian regions of Abkhazia and Tskhinvali region/South Ossetia’, as well as Russia’s non-fulfilment of its obligations under a 2008 EU-mediated ceasefire agreement.43 The 2018 EP Resolution ‘Georgian occupied territories 10 years after the Russian invasion’44 similarly notes non-compliance with the ceasefire agreement. The EP refers to Russia as ‘an occupying power’ with responsibilities towards the population in the region. The EP denounces the plight of internally displaced persons and refugees as a result Ibid. Also see European Parliament Resolution of 10 June 2015: in expressing concern for restrictions on media freedom, the European Parliament condemned the ban on broadcasting of Ukrainian and Tatar TV channels in Crimea. European Parliament, European Parliament Resolution of 10 June 2015 on the state of EU–Russia relations (2015/2001(INI)), Point 12, www​.europarl​.europa​.eu/​doceo/​document/​ TA​-8​-2015​-0225​_EN​.html. 37 European Parliament, European Parliament Resolution of 12 May 2016 on the Crimean Tatars, Point 7. 38 Ibid., Point 13. 39 Ibid, Point 14. 40 European Parliament, Human rights situation in Crimea, in particular of the Crimean Tatars (2016/2556(RSP)), 4 February 2016, Point 12. 41 European Parliament, State of EU–Russia political relations, 2019, op. cit. 42 European Parliament, State of EU–Russia relations, 2015, op. cit. 43 Ibid. 44 European Parliament, European Parliament resolution of 14 June 2018 on Georgian occupied territories 10 years after the Russian invasion (2018/2741(RSP)), www​.europarl​.europa​.eu/​doceo/​ document/​TA​-8​-2018​-0266​_EN​.html. 36

The ‘near abroad’  385 of ethnic cleansing, as well as violations of human rights, including access to education in the native language in the occupied regions. The resolution contains other references to minority protection, by which the EP [c]ondemns the deliberate destruction of dozens of Georgian villages and Georgian churches in the occupied territories of Abkhazia and Tskhinvali Region/South Ossetia, as well as the deliberate attempt to erase traces of Georgian culture and history in the occupied territories […]; calls on the Russian Federation to end impunity and ethnically motivated crimes in the Georgian territories of Abkhazia and Tskhinvali Region/South Ossetia and to remove any obstacles to ensuring that the perpetrators of the illegal killing of Georgian internally displaced persons […] are brought to justice.

Similarly, Russia was considered to be ‘directly or indirectly party to a number of protracted conflicts’ in other parts of the common neighbourhood (Transnistria and Nagorno-Karabakh), implying ‘serious impediments’ to stability in the countries concerned.45 Moreover, the EP expressed concerns at ‘the doctrine under which [Russia] considers itself to have the right to protect Russian compatriots abroad’; this has led to ‘deliberate actions aimed at destabilising its neighbours through illegal trade embargos or the conclusion of integration treaties with separatist and breakaway regions’.46 The resolutions concede that a constructive relationship between the EU and Russia must be sought in the long run, in the interest of both parties: reciprocal sanctions are harmful to both economies, and the actors face common global challenges (such as climate change and the fight against terrorism and organised crime).47 Crucially, Russia and the EU are also in a condition of interdependency:48 Russia is the EU’s most important external supplier of natural gas and its fourth biggest trading partner; in turn, and even taking into account the post-annexation sanctions, the EU is Russia’s biggest trading partner.49 In light of this, and given that ‘the new division of the continent jeopardises the security of both the EU and Russia’, the 2019 EP Resolution states that ‘communication channels should remain open in spite of the disappointing results’.50 The importance of people-to-people contacts is emphasised, in particular for civil society, human rights defenders, independent media and in education (the Erasmus+ framework). Yet Russia’s annexation of Crimea and violation of the territorial integrity of neighbouring countries mean that, the EP states, there cannot be a return to ‘business as usual’ and Russia can no longer be considered a ‘strategic partner’.51 In fact, the 2016 EU Global Security Strategy describes the management of the

45 European Parliament, State of EU–Russia political relations, 2019, op. cit. Similar language was used in 2015: European Parliament, State of EU–Russia relations, 2015, op. cit. 46 European Parliament, State of EU–Russia relations, 2015, op. cit., Point F. 47 Ibid. 48 This point is made clearly in the 2016 ‘Global Strategy’: ‘Substantial changes in relations between the EU and Russia are premised upon full respect for international law […] At the same time, the EU and Russia are interdependent. We will therefore engage Russia to discuss disagreements and cooperate if and when our interests overlap’ (emphasis added). Shared Vision, Common Action: A Stronger Europe – A Global Strategy for the European Union’s Foreign and Security Policy, June 2016, p. 33, https://​eeas​ .europa​.eu/​archives/​docs/​top​_stories/​pdf/​eugs​_review​_web​.pdf. 49 European Parliament, Fact Sheets of the European Union: Russia, op. cit.; and European Parliament, State of EU–Russia political relations, 2019, op. cit. 50 Ibid. 51 European Parliament, State of EU–Russia relations, 2015, op. cit.

386  Research handbook on minority politics in the European Union relationship with Russia itself as a ‘key strategic challenge’ (emphasis added):52 Russia’s actions are described as having ‘challenged the European security order at its core’.53 The EP stated that the principles of the PCA’s Article 254 were no longer met, and the PCA itself should be reconsidered.55 The EU has set as a precondition for the resumption of cooperation Russia’s adherence to international human rights standards and implementation of the Minsk Agreements (including withdrawal of Russian troops and weapons from Ukraine).56 Indeed, of the five guiding principles of the EU’s policy towards Russia, established in March 2016 by the EU Council, the first is implementation of the Minsk agreement.57 Alongside Russia’s respect for the territorial integrity and sovereignty of Ukraine, there have been demands to end the occupation of Georgian territories.58

EU PRACTICAL ENGAGEMENT ON MINORITY ISSUES Although EU engagement on minority issues throughout the Eastern neighbourhood is largely declarative and limited to its numerous action plans and monitoring reports, there are examples of EU engagement that goes beyond this. Deported Meskhetians Perhaps the most striking example of a very specific minority issue being raised by the EU at this time in the EaP3 is the case of the Deported Meskhetians (DMs).59 In 1999, the Georgian government, as part of its application to join the CoE, undertook to facilitate the repatriation of the DMs who had been exiled from Georgia in 1944 as a ‘suspect people’ (see Trier et al., 2011). Despite this undertaking, there was no action taken by Georgia in this regard until 2007, when Georgia passed a law which it claimed would facilitate such a return.60 However, despite the creation of the 2007 law, only around 6,000 individuals from an estimated eligible DM population of 300,000 expressed a willingness to return under the new procedures, along with their families.

A Global Strategy for the European Union’s Foreign and Security Policy, op cit., p. 33. Ibid. 54 Article 2 states that ‘Respect for democratic principles and human rights as defined in particular in the Helsinki Final Act and the Charter of Paris for a new Europe, underpins the internal and external policies of the Parties and constitutes an essential element of partnership and of this Agreement.’ 55 European Parliament, State of EU–Russia political relations, 2019, op. cit. 56 Ibid., and European Parliament, State of EU–Russia relations, 2015, op. cit. 57 European Council, Council of the EU, Foreign Affairs Council, ‘Main Results: Russia’,14 March 2016, www​.consilium​.europa​.eu/​en/​meetings/​fac/​2016/​03/​14/​. The other guiding principles were: ‘Strengthened relations with the EU’s Eastern Partners and other neighbours, in particular in Central Asia; Strengthening the resilience of the EU (for example energy security, hybrid threats, or strategic communication); Need for selective engagement with Russia on issues of interest to the EU; Need to engage in people-to-people contacts and support Russian civil society’. 58 European Parliament, State of EU–Russia political relations, 2019, op. cit. 59 Or Meskhetian Turks, Muslim Meskhetians, Ahıska and Akhaltsikhe Turks, as they are also variously known. 60 The Law of Georgia ‘On Repatriation of Persons Forcefully Sent into Exile from Georgian SSR by the Former USSR in the 40s of the 20th Century’. 52 53

The ‘near abroad’  387 The procedures created by the Georgian state in the 2007 law were particularly complex and burdensome, and the 2007 law was widely condemned by a range of international monitors at the time.61 For its part, whilst the ENP Action Plan did not mention the DMs’ repatriation as a specific objective for Georgia, the first ENP Progress Report in 2005 made it clear that the EU expected Georgia to live up to the promises made in its CoE accession, noting that Georgia also needed to comply with the commitment made on acceding to the CoE to ensure the repatriation and integration of the Meskhetian population which was deported to Central Asia from Georgia during Stalin’s era.62 The EU did not raise this issue again until after the enactment of the 2007 Law, when it became one of the many critical international voices expressing concern at the clear lack of progress that the law had made in facilitating the return of the DMs. In its 2008 ENP Progress Report, for example, the EU commented that ‘on the repatriation and integration of the Meskhetian population to Georgia, there was no progress reported by the end of 2008’. The report recognised that the law had failed to attract many applicants and also that Georgia was attracting a great deal of criticism from the international community. The EU kept up the critique of the implementation of the law in the following two Progress Reports for 2009 and 2010. In each of these, the EU deepened its criticism, to include criticism of the capacity of the state to facilitate re-integration of those returnees who were able to navigate the process and, also, the lack of any apparent planning from the Georgian government to accomplish this task. In both the 2009 and 2010 Progress Reports the EU adopted language to describe progress that was particularly negative. In the first (for 2009), it stated that ‘the capacity of the Ministry for Refugees and Accommodation to deal efficiently with the applications is a subject of concern and no specific action plan to effectively ensure the repatriation of Meskhetians has yet been developed’.63 In former CoE Human Rights Commissioner Thomas Hammarberg’s (2013) report to the European Commission on the human rights situation on the ground in Georgia (as part of the EU’s information gathering/monitoring during Association Agreement/VLAP negotiations), he noted that ‘although it is natural that the arrival of the returnees may create a degree of tension, no effort should be spared to simplify and swiftly advance the cumbersome bureaucratic proceedings and to accompany returnees with adequate social, economic and cultural integration programs’ (Hammarberg, 2013: 25). However, despite such an authoritative opinion, after the 2010 Progress Report there are no further references to the DMs in the EU’s headline documents. Significantly, there was no reference to DM integration or return whatsoever in the crucial period following the commencement of the VLAP negotiations. Donnelly (2018) describes the EU’s actions in this case as something of an enigma. The EU’s role in bringing about the creation of the repatriation law itself, in the face of considerable state and wider Georgian societal opposition, in combination with the CoE is acknowledged by 61 According to the US State Department’s 2012 human rights report on Georgia (citing the Public Defender’s office), over 90 per cent of the DMs’ applications which were submitted for repatriation were rejected (with no right of appeal) on the basis of an inability to provide sufficient documentary evidence showing a familial link to Georgia: www​.state​.gov/​documents/​organization/​204499​.pdf. 62 Commission of the European Communities, Commission Staff Working Paper, Annex to ‘European Neighbourhood Policy’ Country Report – Georgia, SEC(2005) 288/3, http://​aei​.pitt​.edu/​ 38881/​1/​SEC​_(2005)​_288​_3​.pdf. 63 European Commission, Implementation of the European Neighbourhood Policy in 2009 – Progress Report Georgia, 12 May 2010, SEC(2010) 518 final, http://​aei​.pitt​.edu/​39595/​1/​SEC​_(2010)​ _518​.pdf.

388  Research handbook on minority politics in the European Union both CoE staffers on the ground and by minority rights activists in Georgia. Donnelly confirms that the EU raised the issue with the Georgian government both formally and informally until the law was created. It reinforced pressure from more proximate and more well informed/ experienced international organisations and it prompted and funded Georgian civil society to engage in a process with the goal of facilitating the return of a people who had been dealt a grossly unfair and unjust hand during and after the Soviet era. Without EU involvement, Donnelly argues, it is unlikely that the DMs would have been allowed to return to Georgia at all. However, on the other hand, Donnelly describes the EU’s role here as one beset by a range of familiar failings in this field. The EU’s political pressure was intermittent and lacked consistency. The EU was ‘satisfied’ by paper reforms with extremely limited practical impact on the ground. It raised the issue and dropped it without following the matter up to confirm that the policy had been carried out. Critically, when political tensions with the Russian Federation degenerated in the wake of the 2008 conflict, the EU dropped the DM issue as it was felt to do otherwise was to hand a geopolitical weapon to the Russian Federation. The EU, Linguistic Rights and the European Charter for Regional or Minority Languages If the DMs represent one of the few instances of direct EU engagement on a specific minority community issue within the EaP, the ECRML represents one of the few examples of EU support for the ratification of an international minority rights legal text which goes beyond merely noting a requirement to ratify that text in annual monitoring. ECRLM ratification Whilst the Charter was adopted in 1992, its ratification was not referred to in any of the EaP3’s initial PCAs with the EU (when none of the three states had ratified the Charter). In the case of Georgia, however, the ECRML was raised as an issue by the EU at the outset of the EU’s closer engagement with the country, in 2005, with the publication of the ENP Action Plan. Here the EU called specifically for Georgia to adopt the ECRML. Thereafter, the EU raised the issue of the ECRML on an almost annual basis in its ENP Progress Reports, noting in the 2005–10 and 2012 reports that the ECRML had ‘still not been ratified’. In 2013, the EU also included the adoption and ratification of the ECRML as one of the Georgian VLAP Action Plan’s few concrete legislative requirements under the sub-category of citizens’ rights including protection of minorities. In the first, second and third reports that followed the publication of the Action Plan, the EU noted that Georgia was making preparations to adopt the Charter. Between the first and third report (2013–15) the EU continued to note these preparations, which included the establishment of a high-level government commission in June 2013 responsible for the formulation of policy to allow the Charter to be adopted. Furthermore, the EU confirmed in its first VLAP Implementation Report (2013) that ‘the Commission is working closely with governmental authorities, civil society and minority community groups, and Council of Europe experts’. In 2013, as part of the EU–Georgia Association Agenda which was being negotiated contemporaneously with the VLAP, and which was created to provide the operational framework for the EU–Georgia Association Agreement, the EU repeated its previous exhortation, included in the VLAP Action Plan, that Georgia should ‘[t]ake steps towards signature, ratification and transposition into national legislation of [inter alia] the European Charter for

The ‘near abroad’  389 Regional or Minority Languages’.64 In the second and third VLAP implementation reports, the EU noted that preparatory steps continued to be made by Georgia to ratify the Charter and to create a new language law. In 2015, in the fourth and final Implementation Report before the completion of the process, there was, however, no mention of the Charter at all, despite it not having been ratified and the fact that it had been mentioned in all previous reports. Unlike in Georgia, where the ECRML has neither been signed nor ratified, Moldova signed the ECRML (in 2002), although this has never been ratified. However, the ECRML was not raised by the EU in either the PCA or in the subsequent ENP Action Plan. It was not until 2008 that the issue of the ECRML was noted (without preface or explanation as to why this was suddenly included) in the ENP Progress Report of that year. Despite its authors having never raised the issue previously, the report stated that Moldova had made no progress towards ratification of the ECRML. The EU repeated this comment in the subsequent two Progress Reports, in 2009 and 2010. The ECRML, thereafter, remained un-noted by the EU until 2013, during the VLAP process, where the ECRML was raised as an issue in the fourth Implementation Report, despite it having not been referred to in the VLAP Action Plan. In the fourth report the EU noted that the Moldovan government had established a Working Group to look into the ratification of the document and that the government had undertaken to assess the financial cost of implementation of the Charter. There was no mention of the ECRML in the fifth and final VLAP report and the Charter was not ratified before the visa liberalisation process concluded. The ECRML was not raised in the EU–Moldova Association Agenda as an instrument for ratification, unlike in the Georgian case, though the EU did note the continued lack of implementation in the 2014 ENP Action Plan. In the case of Russia, the EU joined the CoE and the Russian government in funding a large joint programme, ‘Minorities in Russia: Developing Languages, Culture, Media and Civil Society’ (2009–12). The project sought to enhance the preparatory process towards the ratification of the ECRML, which Russia had committed to ratifying upon joining the CoE, but had only signed. During the programme, a Joint Working Group comprising a team of independent Russian and international experts discussed the legal and political aspects of ratification and subsequent implementation. The monitoring process under the ECRML was simulated in pilot regions of Russia. A proposal for a draft instrument of ratification65 was compiled, taking into account the unique linguistic landscape of the Russian Federation – with a very high number of languages, many of which are in a very vulnerable position, spoken across a vast territory.66 The EU maintained a low profile during the project’s implementation, which was primarily managed by the CoE. The objective of ratification was not attained at the end of the project. The Russian government in 2016 stated that the project had, overall, revealed that Russia already had an ‘efficient system of protection and development of national languages’, whilst the ratification of the treaty ‘in the current geopolitical conditions is connected with the aggravate external risks

EU–Georgia Association Agenda Brussels, 14 November 2014 UE-GE 4656/14, https://​data​ .consilium​.europa​.eu/​doc/​document/​ST​-4656​-2014​-INIT/​en/​pdf. 65 Available at https://​rm​.coe​.int/​Co​ERMPublicC​ommonSearc​hServices/​DisplayDCTMContent? documentId=09000016806d4699. 66 Council of Europe, ‘Promoting Ratification of the European Charter for Regional or Minority Languages in Russia’, www​.coe​.int/​en/​web/​european​-charter​-regional​-or​-minority​-languages/​promoting​ -ratification​-in​-russia. 64

390  Research handbook on minority politics in the European Union and requires considerable additional financial and organizational costs in terms of economic sanctions’.67 Thus, whilst the project had sought to identify strategies for ECRML ratification and application, it seemed to have led to the opposite outcome, being used to justify non-ratification. After these disappointing results the EU remained generally disengaged from the dialogue on possible ECRML ratification. Language issues in Ukraine: the 2012 Ukrainian Language Law Unlike Moldova and Georgia, Ukraine ratified the ECRML in 2005, albeit after some considerable delay (it was signed in 1996). Whilst the EU did not have to call upon Ukraine to adopt or ratify it, the EU continued to utilise the ECRML in its ENP and VLAP monitoring as a normative reference point for its comments on minority issues. The first such appearance of the ECRML came in its 2009 ENP report, where the EU called for ‘continuous efforts […] to ensure respect of the rights of persons belonging to national minorities in line with the CoE Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages’.68 The Ukrainian government was at that time undertaking a programme of language reform, culminating in the enactment of the controversial 2012 Language Law that elicited substantial criticism from both the Venice Commission and from segments of Ukrainian politics and civil society. The EU also took an interest in the progression of the language law at around the same time as it was entering into VLAP negotiations with Ukraine (the VLAP Action Plan was created in 2010). The EU’s engagement on this issue over the next several years, through ENP Implementation Reports and VLAP Implementation Reports, contained several strands. In the 2011 ENP Progress report, for instance, the EU called for Ukraine to take steps to modernise its out-of-date minority protection law. The EU also called on Ukraine to adhere to the recommendations of the CoE Committee of Ministers on the application of the ECRML. The EU’s Second VLAP Implementation Report (2012) is particularly noteworthy here, as it goes into some detail as to the kinds of reforms it deemed appropriate in order that Ukraine might comply with these recommendations, specifically stating that: Ukraine should update its national legislation in the field of protection of persons belonging to national minorities, particularly as regards access to culture, education in the mother tongue, use of the mother tongue etc, as well as to strengthen the legislative framework on solving issues related to social adaptation and integration of formerly deported citizens on the territory of the Autonomous Republic of Crimea.69

This represents a rare example of the EU explicitly calling for support for mother-tongue education, which is one of the principal objectives of the ECRML. It is also interesting to note that, whilst the Venice Commission issued warnings to Ukraine about the potentially Fourth Report submitted by the Russian Federation pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, 20 December 2016, ACFC/SR/ IV(2016)006 p.  31, https://​rm​.coe​.int/​16806fd935. 68 European Commission, Implementation of the European Neighbourhood Policy in 2009 – Progress Report Ukraine, 12 May 2010, SEC(2010) 524 final, http://​aei​.pitt​.edu/​39601/​1/​SEC​_(2010)​ _524​.pdf. 69 Second progress report on the implementation by Ukraine of the Action Plan on Visa Liberalisation, Brussels, 9 February 2012, SWD(2012) 10 final, https://​ec​.europa​.eu/​home​-affairs/​sites/​default/​files/​ news/​intro/​docs/​20120209/​ua​_2nd​_pr​_vlap​_swd​_2012​_10​_final​.pdf. 67

The ‘near abroad’  391 destabilising impact of the language law, the EU merely noted that the law had been referred to the Venice Commission and, when the law was enacted, the EU then noted in the 2012 ENP Implementation Report that: [A] new law that allows regional and local bodies to grant regional status to minority languages spoken by at least 10% of the population has mostly consolidated the use of Russian in the official sphere in Eastern and Southern regions and has had some positive impact on people’s right to use other minority languages. The law triggered a wave of protests by opposition parties and citizens who felt that the Ukrainian language was being threatened by the wider use of Russian.70

Subsequently, after the Euromaidan events and the linkage of the initial violence to the attempt by the Verkhovna Rada (the Ukrainian Parliament) to revoke the 2012 Language Law, the EU referred again to the Venice Commission in its 2013 Implementation Report, though when it did, it mentioned only that the Venice Commission had positively assessed the law, whilst acknowledging that it had made several suggestions for improvements. In its Fourth VLAP Implementation Report, the EU cautioned Ukraine that: [T]he Law on the principles of state language policy was adopted in 2012 and remains valid. The Venice Commission assessed in its opinion (No. 651/2011) that it provided for adequate protection of regional or minority languages. Any changes to the law should be in line with international commitments, with special regard to those of the Council of Europe.71

However, this interpretation of the Venice Commission’s assessments of the 2012 Language Law is surprising when compared to the almost dire warnings that were also attached by the Venice Commission to these assessments. Overall, it is clear that the EU does utilise the ECRML in its minority-related agenda in its Eastern neighbourhood, albeit to differing degrees and for different purposes. What is also clear from the above, however, is that there is no consistency of approach across different cases by the EU in terms of its advocacy of the ECRML. This lack of consistency is, ironically, consistent with existing scholarship on EU external engagement on minority issues. In their assessment of the 2004 enlargement, for example, Sasse and Hughes attempted to define a EU ‘vision’ for minority rights in its relations with the CEECs. They could not. In summing up the EU’s regular reporting throughout the enlargement process, they concluded that ‘it is difficult to gauge whether the EU had a script for the CEECs, in the sense of a regime or strategy of measures to be introduced to secure minority protection. The ad hocism of the Reports suggests that there was no EU script’ (Hughes and Sasse, 2003: 21). Eastern Partnership Minorities’ Network The EU’s engagement on minority issues in the EaP has extended beyond financing and support for specific legal reforms into the realm of minority capacity building. Perhaps the 70 European Commission, ENP Country Progress Report 2012 – Ukraine, 20 March 2013, https://​ec​ .europa​.eu/​commission/​presscorner/​detail/​en/​MEMO​_13​_257. 71 European Commission, Fourth Report on the Implementation by Ukraine of the Action Plan on Visa Liberalisation, 27 May 2014, COM(2014) 336 final, https://​ec​.europa​.eu/​home​-affairs/​sites/​ default/​files/​e​-library/​documents/​policies/​international​-affairs/​general/​docs/​fourth​_report​_on​_the​ _implementation​_by​_ukraine​_of​_the​_action​_plan​_on​_visa​_liberalisation​_en​.pdf.

392  Research handbook on minority politics in the European Union most ambitious project of its kind was the Eastern Partnership Minority Network (EaPMN). The EaPMN was established as a network of international and local minority community groups, organisations and advocates open to participants from minority communities and advocacy groups within and working on the countries of the Eastern Partnership. It was established as a three-year pilot project in 2013, funded by the European Commission. The project was led by Minority Rights Group Europe (MRGE) in collaboration with partner NGOs from Georgia, Ukraine and Armenia, including the Analytical Center for Interethnic Cooperation and Consultations (Tbilisi), ECMI (European Center for Minority Issues) Caucasus (Tbilisi), No Borders (Kyiv) and the Analytical Centre on Globalization and Regional Cooperation (Yerevan). The project was established with the stated goal of building the capacity of minority organisations in the region in order to allow them to undertake effective human and minority rights advocacy at the national and European level, in particular by ensuring the full participation of minorities in the Eastern Partnership process.72 This was to be achieved through the provision of training, seminars, information and advocacy campaigns, national monitoring reports and the provision of advice on best practice.73 In the wrap-up session of the EaPMN at the end of the three-year pilot project, the keynote speaker from the EU’s Georgia Delegation, Dr Stephen Stork, emphasized the importance of the inclusion of minority rights in the EaP policy processes, including the consideration of minorities in the objective setting of the various policy documents, such as ENP Action Plans, Visa Liberalization Action Plans and further inclusion of minorities in the EU financial instruments available in EaP countries.74

In its post-project analysis of the pilot project, Minority Rights Group (MRG) emphasised some of the key successes of the project. In summarising the project, MRG noted that ‘the EU embraced these minority representatives and these bonds lasted long after the representatives left Brussels. This impact was evident as the EU organized meetings like this after the project finished.’75 MRG highlighted the leverage possessed by the EU and the impact that this had on EaPMN partners, claiming that ‘the national government is far more willing to work with you if the EU recognizes you as a partner’.76 However, whilst the project itself may have created a number of positive results, the role of the EU was the subject of criticism from the EaPMN participants in the form of the EaPMN’s written response to the European Commission’s consultation on the future of its relations with the ENP.77 Although in calling for the re-evaluation of its relations in the ENP then High Representative Federica Mogherini and the Commission

See Minority Network Eastern Partnership, www​.minorities​-network​.org/​about​-us/​. Ibid. 74 Eastern Partnership Minorities’ Network, ‘Expanding Network: Concluding Conference of the EaPMN’, 15 December 2015, www​.minorities​-network​.org/​expanding​-network​-concluding​-conference​ -of​-the​-eapmn/​. 75 Minority Rights Group International, ‘Building a Network: The Eastern Partnership’, 25 April 2017, https://​minorityrights​.org/​2017/​04/​25/​building​-network​-Eastern​-partnership/​. 76 Ibid. 77 Eastern Partnership Minorities Network, ‘A Response to the European Commission and High Commissioner for External Affairs and Security Policy’s Joint Review of the European Neighbourhood Policy’, 2016, www​.minorities​-network​.org/​resources/​a​-response​-to​-the​-european​-commission​-and​high-commissioner-for-external-affairs-and-security-policys-joint-review-of-the-european-neighbourhood-policy-2/. 72 73

The ‘near abroad’  393 made clear that the Ukraine crisis lay at the heart of the review process, the minority issues which had played such a significant role in that crisis (as stated by EU Member State senior leaders of the day) did not form any significant part of the consultation process. The consultation response offered by the EaPMN addressed this omission, suggesting that: [I]f resolving the (Ukrainian) crisis must be achieved through the recognition of the distinct identities of minorities; if the resolution of the crisis lies, in part, in the creation of a constitutional framework which recognises minority rights (as had been asserted by Messrs Merkel and Hollande …), then it is evident, that if the EU is to take seriously its stated goal of helping to achieve a peaceful, stable neighbourhood, then it must seek to act in this field before crises such as that in Ukraine break out.78

What then followed in the consultation response was a review of the thoughts and views of the Network’s membership and senior management to the questions asked in the review. The results were particularly damning in terms of setting out local actors’ perceptions of the EU’s approach to minority issues. Summarising the responses to a general question about awareness of and feelings about the ENP among Network members, the response noted that: the EU is clearly a major partner for most countries in the Eastern Partnership. However, in terms of minority communities, the EU is a poorly understood actor. Knowledge of the EU in general is limited and knowledge of the ENP and the Eastern Partnership processes are even less well understood … there was a general feeling (among Network members) that the processes to date had proven to be a failure and that they had brought little benefit to minority communities.79

Whilst the consultation response largely reflected negatively on perceptions of the EU among minority community actors in the Network, it was also evident that the EU is still seen, despite any other criticism, as a key funder of minority-rights-related civil society activism and advocacy. The EU was also acknowledged in the response as an organisation with the capacity to positively influence its EaP partners. This was accepted as being made possible through both the EU’s focus on minority issues in political dialogue with EaP states and given its role as a strategic partner for and funder of civil society. Although the report confirmed that it was not uncommon for respondents from among the EaPMN to agree that closer integration with the EU could bring benefits to minority communities, such positive attitudes were effectively nullified by the widespread perception that, whilst the EU may indeed bring up minority issues in the ENP, VLAP and AA processes with its EaP partners, ‘there was a general feeling that the EU’s insertion of minority related issues in its relations with these states was no more than declarative’.80

CONCLUSIONS It is clear from a review of the key political, legal and institutional texts framing the EU’s relations with its near abroad that minority rights have become, over time, part of its stated nor-

Ibid., p. 5. Ibid., p. 12. 80 Ibid., p. 13. 78 79

394  Research handbook on minority politics in the European Union mative agenda. Such a finding accords with a number of works on the EU’s external relations with its wider neighbourhood. Manners, for example, famously referred to minority rights as forming a sub-norm within the EU’s external affairs normative agenda (2002). De Witte and Horvath described minority protection as key to EU–Balkans relations and as a human rights norm that the EU had ‘more or less successfully’ infused into its relations with non-accession candidates (2008: 380). In Michael Smith’s influential paper on the creation of an EU ‘grand strategy’, he referred to minority rights as forming a core element of the EU’s external value projection (2011: 150). More recently, Toggenburg and McLaughlin listed a series of issues raised by the EU with its ENP neighbours which included minority languages and religious intolerance, and presented these as instances of EU influence over neighbours’ minority policies (2015: 276). Marchetti and Tocci noted that the EU takes a proactive stance on minority issues in its Eastern neighbourhood (2015). They suggest that the political aspirations of these neighbours eventually to be accepted into the enlargement process has given the EU greater leeway to insist on minority rights protections. MacFarlane, in his study of international engagement on interethnic governance in Georgia, goes perhaps even further, suggesting that ‘the European Union included minority rights in its early agreements with Georgia and has persisted to the time of writing in its normative embrace of the issue [and] in other words, a wide range of international actors [including the EU] have been significantly preoccupied with the governance of ethnic diversity for a very long time’ (2015: 225). Whilst this chapter confirms that the EU certainly raises minority issues in its relations with each of its Eastern neighbours, the extent to which minority rights can truly be described as forming part of its normative agenda is far from clear. Unlike the EU’s accession process, where a significant literature emerged around the EU’s minority-related conditionality, there is a significant lack of detailed empirical analyses of the impact of the EU in this field in the Eastern Partnership and Russia. Overall, there is an evident variability to the depth of the EU’s engagement that appears linked to the depth of the EU’s broader political engagement with its neighbours. As shown in this chapter, there have been instances of sustained engagement on the part of the EU – for example, in EaP countries, with reference to the adoption of anti-discrimination legislation – yet implementation has been found to be wanting. In other cases, the EU has supported relevant projects financially, yet displayed a detached, lukewarm attitude towards such endeavours and their impact (e.g., initiatives aiming at the ratification of the ECRLM). Some projects appear to have yielded concrete results – such as the adoption of a Repatriation Law for the Return of Deported Meskhetians to Georgia) – but political pressure has been intermittent, with particular issues dropped when more pressing matters emerged (Donnelly 2018: 355). What may account for the EU’s differentiated engagement across regions and countries, and its inconsistent approach to minority-related policy areas? Whilst this matter cannot be examined in depth due to space constraints, a few key considerations follow. It is clear that the EU is not indifferent to minority rights, as it continues to invest resources towards their promotion. Clearly a number of factors influence norm diffusion and its impact: as Björkdahl et al. (2015: 248) note, ‘the movement of norms often is best characterized as a complex, multi-layered and frictional process where the EU and various norm recipients are involved in a give-and-take relationship’. Among the relevant factors we can enumerate: the level of acceptance of the said norms by individual countries; whether the EU’s reform criteria are

The ‘near abroad’  395 perceived as a threat to national security or to the local regime (Stewart 2011);81 the degree of connectedness and concerted action between the EU and other international organisations in promoting a minority agenda (Donnelly 2018); and perception of legitimacy and fairness (or lack of) with regard to the EU’s actions.82 Of crucial importance are also perceptions of the EU itself and the desirability of engagement: in some cases, gravitating towards the EU may be seen as attractive and engendering a range of benefits (as in the case of the EaP); by contrast, Russia has sought to project the image of a distinct, assertive actor (to be treated as an ‘equal partner’). Meanwhile, in the post-Soviet space, the EU and Russia tend to represent two opposing forces, with Russia affecting the outcomes of EU policies. Finally, the absence of conditionality, which distinguishes accession from non-accession countries, can clearly play a critical role in terms of whether the EU may be able to foster significant change in the area of minority rights (see MacFarlane 2015: 259, with reference to Georgia). With regard to the EU’s own inconsistency in promoting minority rights, crucial factors are, inter alia, the broader geopolitical context and security priorities. The mismatch between normative principles and the EU’s actions can be linked to a tendency, noted by Schwellnus (2004) and Pentassuglia (2001) for the EU to focus its attention on minority issues only when these overlap with security concerns. EU interventionism is, then, often triggered by (perceptions of) security threats, which can account, at least partially, for intermitting engagement. The most assertive statements by EU actors have been articulated in instances of egregious violations of international law that have destabilised the region by posing security threats, whilst simultaneously having an adverse impact on minorities. Examples include Russia’s annexation of Crimea, and the ensuing violations of the rights of Crimean Tatars, as well the occupation of Abkhazia and South Ossetia. In fact, the inclusion of minority rights in EU documents and structures with reference to CEECs and the near abroad can be, at least partly, linked to a security-based logic in a region with a history of ethno-political conflict and overt activism by Russia (Donnelly 2018: 18). Regardless of its underlying causes, the EU’s discontinuous engagement can place into question the presence of a genuine normative commitment to minority rights in its external affairs.

REFERENCES Balfour, Rosa, Human Rights and Democracy in EU Foreign Policy: The Cases of Ukraine and Egypt (Routledge, 2012). Björkdahl, Annika, Natalia Chaban, John Leslie and Annick Masselot (eds), Importing EU Norms: Conceptual Framework and Empirical Findings (Springer, 2015). Council of Europe, Venice Commission, Opinion on the Draft Law on Languages in Ukraine, CDL-AD(2011)008, 2011, www​.venice​.coe​.int/​webforms/​documents/​default​.aspx​?pdffile​=​CDL​-AD (2011)008-e. De Witte, Bruno, and Eniko Horvath, ‘The Many Faces of Minority Policy in the EU’, in Kristin Henrard and Robert Dunbar (eds), Synergies in Minority Protection: European and International Law Perspectives (Cambridge University Press, 2008).

MacFarlane (2015: 259) adds that state-minority relations and linguistic rights may be perceived as ‘existential threats to both state security and individual survival’. 82 For example, with reference to enlargement, Hughes and Sasse (2003: 13) note that the pervasive perception of the EU’s double standards – in promoting minority rights among the accession countries compared to existing EU Member States – ‘weakened [the CEECs’] commitment to and compliance’. 81

396  Research handbook on minority politics in the European Union Donnelly, Graham, National Minority Rights and the EU’s Eastern Partnership: A Normative Blind Spot? (PhD thesis, University of Glasgow, 2018). Europeaid, European Neighbourhood Partnership Instrument: 2007–2013 – Overview of Activities and Results, 2013, https://​ec​.europa​.eu/​europeaid/​sites/​devco/​files/​overview​_of​_enpi​_results​_2007​ -2013​_en​_0​.pdf. European Council, Joint Statement: EU–Russia Summit, St. Petersburg, 31 May 2003, 9937/03 (Presse 154), www​.consilium​.europa​.eu/​uedocs/​cms​_data/​docs/​pressdata/​en/​er/​75969​.pdf. European Parliament, Directorate-General for External Policies (Garcés De Los Fayos, Fernando), Minorities in the South Caucasus: New Visibility amid Old Frustrations – In-Depth Analysis, 2014, DG EXPO/B/PolDep/Note/2014_104. Gulakova, Bunafsha, and Nino Khurtsidze, Evaluation of EU Support to the Integration of Minorities in Georgia (ICE and ETI Consulting, Tbilisi, 2015). Hammarberg, Thomas, Georgia in Transition: Report on the Human Rights Dimension – Background, Steps Taken and Remaining Challenges, September 2013, http://​gov​.ge/​files/​38298​_38298​_595238​ _georgia​_in​_transition​-hammarberg1​.pdf. Haukkala, Hiski, ‘The European Union as a Regional Normative Hegemon: The Case of European Neighbourhood Policy’, in Richard G. Whitman (ed.), Normative Power Europe: Empirical and Theoretical Perspectives (Palgrave Macmillan, 2011). Hughes, James, and Gwendolyn Sasse, ‘Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEECs’, 1 Journal of Ethnopolitics and Minority Issues in Europe (2003), www​.ecmi​.de/​fileadmin/​downloads/​publications/​JEMIE/​2003/​nr1/​Focus1​-2003​_Hughes​_Sasse​.pdf. Kaldor, Mary, et al., Final Report: Evaluation of the Phare and Tacis Democracy Programme: 1992–1997 (ISA Consult European Institute, Sussex University GJW Europe, 1997), http://​aei​.pitt​ .edu/​36267/​1/​A2435​.pdf. Khuntsaria, Tamar, External Democracy Promotion in Georgia: The Role of the European Union (Doctoral thesis, Tbilisi State University, 2014). Kostanyan, Hrant, and Richard Giragosian, EU–Armenian Relations: Charting a Fresh Course, CEPS Research Report No. 2017/14, November 2017. MacFarlane, Neil, ‘International Engagement and the Governance of Ethnic Diversity in Georgia’, in Jane Boulden and Will Kymlicka (eds), International Approaches to Governance of Ethnic Diversity (Oxford University Press, 2015). Manners, Ian, ‘Normative Power Europe: A Contradiction in Terms?’ 40(2) Journal of Common Market Studies (2002), 235–58. Marchetti, Raffaele, and Nathalie Tocci, ‘Trapped in the Liberal Peace: The EU’s Approach to Peacebuilding via Civil Society’, in Jane Boulden and Will Kymlicka (eds), International Approaches to Governing Ethnic Diversity (Oxford University Press, 2015). Pardo Sierra, Oscar B., ‘Shaping the Neighbourhood? The EU’s Impact on Georgia’, 63(8) Europe Asia Studies (2011), 1377–98. Pentassuglia, Gaetano, ‘The EU and the Protection of Minorities: The Case of Eastern Europe’, 12(1), European Journal of International Law (2001), 3–38. Sasse, Gwendolyn, ‘Conditionality Lite: The European Neighbourhood Policy and the EU’s Eastern Neighbours’, in Nicola Casarini and Costanza Musu (eds), European Foreign Policy in an Evolving International System: The Road Towards Convergence (Palgrave Macmillan, 2007). Schwellnus, Guido, ‘Looking Back at Ten Years of EU Minority Conditionality’, 4(1) European Yearbook of Minority Issues (2004), 321–40. Stewart, Emma, ‘Mind the Normative Gap? The EU in the South Caucasus’, in Richard G. Whitman (ed.), Normative Power Europe: Empirical and Theoretical Perspectives (Palgrave Macmillan, 2011). Tangiashvili, Nodar, and Mikheil Kobaladze, EU–Georgian Neighbourhood Relations (Central European University, 2006), 5/06, http://​www​.academia​.edu/​503445/​EU​-Georgian​_neighborhood​_relations. Toggenburg, Gabriel N., and Karen McLaughlin, ‘The European Union and Minorities in 2013’, 12(1) European Yearbook of Minority Issues (2015), 255–79. Trier, Tom, George Tarkhan-Mouravi, and Forrest Kilimnik, Meskhetians: Homeward Bound (ECMI Caucasus, 2011).

The ‘near abroad’  397 Van Elsuwege, Peter, ‘The Four Common Spaces: New Impetus to the EU–Russia Strategic Partnership?’, in Alan Dashwood and Marc Maresceau (eds), Law and Practice of EU External Relations (Cambridge University Press, 2008).

20. The European Union and global development cooperation: promoting minority rights? Laia Pau Romaní and Joshua Castellino

INTRODUCTION Global development cooperation has many guises and motivations in theory and practice, and has significant controversies attached to it. The Millennium Promise encapsulated the well-established idea that developed states need to invest in developing states to assist them in overcoming the poverty trap (Sachs, 2005). Others argue that development funding is no more than a minimal return to parts of the world where European action has changed societies while depleting economic and social capital (Moyo, 2009). Still others argue that development funding is both a moral imperative and a pragmatic manner in which to fuel the global economy (Bellavitis et al., 2017). In articulating development as a central concept for ‘policy design and implementation aimed at improving the quality of life of the world population’, Medeiros’s description of development as embracing four main pillars is useful in addressing the European Union’s approach to this phenomenon. The four main pillars he identifies are: (i) global governance, (ii) global wealth, (iii) global resources and (iv) global sustainability (Medeiros, 2021). Yet irrespective of these pillars and what each may seek to achieve, it is the rate of unequal development between regions and countries, across each pillar, especially those that can be attributed to forces promoting ‘globalisation’, that has hastened polarisation and the creation of ‘winners’ and losers’. While this may be seem to be of little import to the foreign policy of the European Union (EU), such unequal development generates reaction chains that eventually impact the EU, by way of conflict, some of which may lead to refugee flows, resource scarcities on a humanitarian scale, impediments to global supply chains that end in the EU, and the costs of uncertainties in the face of instability. As Medeiros writes elsewhere, unequal global development is also the antithesis of the EU’s political agenda, which promotes territorial cohesion in a given territory, another concept that may sit at odds with any activity that could promote ‘minority’ identities (Medeiros, 2016). While unequal development between regions and states, and within states, has been a facet of history, authors like Amin argue that the attempted integration of the entire world into a single capitalistic system of which the EU is a key driver heightened this polarisation (Amin, 2014). Inevitably, unequal development, especially where countries such as those in the EU become wealthier while others become more impoverished, would in normal times set off mass migratory flows as labour seeks a better return. The maintenance of strong boundary regimes, as with the EU at present, effectively curtails this trend (Maswood, 2018), though the impact of this discussion on the internal politics of European states (as elsewhere) has generated significant domestic tensions, including the fuelling of populist politics (Aiginger, 2020, pp. 38–42). Medeiros describes a utopia of what development ought to see as its end goal, especially post-2015 (Gore 2015, pp. 417–32): ‘humankind would have full control of nature, the capacity to use and produce essential resources in a sustainable way, [and] live a healthy and quality 398

The European Union and global development cooperation  399 life in a democratic and safe political environment’ (Medeiros, 2021, p. 2). Against this objective the reality of the challenge is stark: ‘On a crowded planet (around 7.9 billion inhabitants by April 2021) with a rising population … the main challenge is to produce more food and energy and provide fresh and safe water in a sustainable manner while mitigating and adapting to climate change’ (Medeiros, 2021, p. 2). With projections of a world population of 9.7 billion by 2050, in addition to the prospect of a breach of planetary boundaries accompanied by catastrophic loss of biodiversity and climate-related crises, there are significant challenges ahead in combatting state fragilities and mega pollution, with inequality becoming acute as the differences between the haves and have-nots become accentuated (Sachs, 2020). Irrespective of the justifications for development funding, the Sustainable Development Goals (SDGs), which build on the previous Millennium Development Goals, of which the EU is leading sponsor, have added key components and contours to the task through an articulation of Goals, Targets and Indicators. In order to assess the extent to which minority issues feature in the EU’s development thinking, this chapter is divided into three parts. The first brief section will reflect discussions around global development funding and the perspective of the EU as an actor within the sphere. The second section will seek to offer insight into motivations that appear to drive the EU towards such action, interpreted mainly through an examination of existing funding streams, pushes for policy developments and calls for actions in support of capacity-building that are encouraged, funded, monitored and evaluated beyond European borders. This analysis of the theory will be cross-checked and validated against the specific experience of Minority Rights Group International (MRG), a 50-year-old organisation that is the world’s premier civil society organisation (CSO) working on global minority and indigenous issues, which has submitted tenders and implemented EU actions in many parts of the globe. The chapter ends with some tentative conclusions regarding the extent and importance of EU support for minorities as reflected in development funding. The main contribution of the chapter lies in (i) providing an insight into how development thinking impacts the overall EU agenda, (ii) a methodology outlining how this can be assessed against the goal of seeking to protect and promote the rights of minorities and indigenous peoples beyond Europe, and (iii) offering an analysis of how these principles have translated into practice, in a bid to complement the other contributions in this volume.

GLOBAL DEVELOPMENT FUNDING AND THE EU AS AN ACTOR The controversies that attach to global development are worth briefly touching on, since they are germane to understanding whether the EU, when it acts in this space, is seeking to further its own interests through other means or reaching out in the spirit of global cooperation intended by the drafters of the United Nations (UN) Charter in the aftermath of World War Two. The notion that people living in a specific part of a country, a region or the world may be concerned about another section of the country, region or world, traces back many centuries and has been a driving concern of some of the most notable intellectuals in global history, including Ibn Khaldun and Aristotle. Indeed it could be argued that concern for ‘development’ per se is intrinsically linked to concepts that view humanity as a collective, with an emphasis on the need to ‘progress’. In this sense the notion of development is driven significantly by the human empathy that is equally central to the development of the discourse of minority (and indeed human) rights scholarship (Karshenas, 2016, pp. 664–85).

400  Research handbook on minority politics in the European Union The distinction that immediately needs to be acknowledged and made explicit is the line that ought to exist but is sometimes hard to discern with a degree of certainty: between a staged intervention of any kind driven by empathy and the need to do good, and the prospect that such an intervention may be motivated by the need to acquire benefits for the giver, over the stated needs of acting to help the receiver of the intervention (Mills, 2020). In the most recent centuries the spectre and long-lasting impact of European colonisation casts a significant shadow over the concept of development funding, in terms of: (i) the impact and devastation of such colonisation and its legacies; (ii) the units (i.e., mostly post-colonial states) towards which such contemporary funding is directed; and (iii) the objectives such funding seeks to achieve. These issues need to be addressed in any discussion about the EU as an actor in the field, and this brief section will seek to touch upon this. The impact and reach of actions perpetrated by European countries (some within and some now outside the EU) in overseas territories had significant exploitative and devastating impacts on diverse geographies and peoples (Castilla-Beltrán et al., 2018, pp. 66–80). Rather than being episodic (like similar actions perpetrated by others in previous centuries) these impacts became systemic, prolonging their durability beyond European action into the present day. This included, at a basic level, the legitimisation and systematisation of theft, through transfer of lands and territories away from those who ought to have been recognised as legitimate title bearers even by European mores (Castellino, 2020a, p. 20). The imposed property regimes deliberately misunderstood notions of usus and disrupted principles of the collective good in favour of an individualised notion of property ownership (Domínguez and Luoma, 2020, p. 65). This journey has, as a consequence, overseen and legitimised resource extraction for profit that has depleted global biodiversity and left the planet in an existential crisis approaching the breach of its natural boundaries. The process achieved on the back of empire-building was accompanied by the spread of a dominant religion, Christianity, and for some this may have even been a legitimate spur for territorial acquisition. Whether it was Christianity or the more sinister goal of ‘civilisation’, it is clear that commerce came to be a dominant feature in ensuring the subjugation of lands and peoples beyond Europe to European influence (Klerman et al., 2011, pp. 379–409). That the process was clothed in civility on occasion and that it was, at various points in time, accompanied by genuinely progressive Enlightenment Era thinking has often been used as justification to foreclose other legitimate questions about the injustice of colonisation (Carey, 2018). At the macro level these principles translated immediately to the units left behind by the regimes: the ‘independent’ states that came into being post-colonisation that are outcomes of what Lord Salisbury in 1890 deemed to be ‘lines drawn upon maps where no white man’s foot has ever trod’ (Jennings, 1963). The consequence of this line-drawing, placing communities that may have been antagonistic to each other or with very different trajectories into a single unified ‘national’ trajectory, brought strangers into houses, forcing renegotiating of cultural and societal mores at a rapid pace (Castellino, 2008). Throughout history conflicts grew as cultures clashed, and the growth in prominence of religions, especially those that believed their path to spirituality was exclusively the best, offered significant scope for dismissal of competing narratives. When religions were combined with martial might and commercially driven quests for wealth, the exploitation, subjugation and dominance of the Other became the new normal. The ebbs and flows of history track interludes of war and peace, with the depravity of war measured in genocides and massacres while the episodes of peace were characterised by

The European Union and global development cooperation  401 trade and intermixing of cultures generating a wider experience of prosperity despite its unjust distribution across the population. Unlike previous episodes of colonial domination or subjugation, the end of European colonisation was characterised by the spread of the idea of monolithic sovereign independent states, deemed to govern territories attributed to them, usually by the preceding period under colonial rule (Deutsch and Foltz, 1966). This, effectively a privatisation of colonial rule, often privileged the most dominant ethno-religious group or the ones with the best links to the outgoing colonial regimes (Hopkins, 2000, pp. 311–20). The new incumbents slipped into the abdicated seat of power, but were often confronted almost immediately by questions over their legitimacy, the extent to which they could speak with a unified voice for all religions within the emerging entity and the extent to which the rules they would follow would adhere to pre-existing norms and cultures pre-colonial rule. Confronted with the potential chaos that could dismantle colonial structures, the new incumbents were reassured by departing rulers, and the emerging ‘international community’ dominated by these same powers, of their own legitimacy. Thus early post-colonial rulers steered a conservative line to: (i) consolidate existence of the entity as a legitimate state and (ii) focus on questions of ‘development’, understood as a process of addressing entrenched poverty that characterised the depletion and exploitation of local resources to earn profit for ‘entrepreneurs’ in Europe. Development funding became a means by which richer Westernised states ‘assisted’ transition processes, ostensibly on the grounds of the emerging values of the post-World War Two order: the maintenance of peace and security, international cooperation and respect for human rights. Development, explicitly stated among the UN pillars and implied through its institutions, was a key lynchpin to restoring values after the brutalities of World War Two. While erection of a world order designed to ward off World War Three may have been among its founding norms, the UN in its first few decades was deeply engaged in the process of decolonisation, with development funding becoming a means to ensure that entities depleted of their natural resources and traditional structures could be supported as they emerged from colonial rule. This was assisted by UN organisations focussed on such issues (UNCTAD, UNDP, UNICEF and others), but also by exhortation towards wealthier states to ensure the flow of bilateral aid. European countries were often in the vanguard of the movement to provide such aid, for a variety of reasons both explicit and implicit. European countries recently bereft of empire found they still had significant interests within former colonies that needed to be maintained; others may have been motivated by purer motives of seeking to assist in rebuilding. Other European countries, themselves recipients of significant transition funding through the Marshall Plan that enabled Europe to rebuild after the devastation of World War Two, saw this avenue as key to achieving global solidarity. Knox and Marston’s description of development processes is useful as a backdrop to understanding how the EU has sought to act on the development stage. The authors suggest that such actions could, in general terms, take the form of seeking to garner (i) changes in the structure of the region’s economy (for example, a shift from agriculture to manufacturing), (ii) changes in forms of economic organisation within the region (for example, a shift from socialism to free-market capitalism) and/or (iii) changes in the availability and use of technology within the region (Knox and Marston, 2015). The idea of assessing how any of these changes may impact the protection-oriented rights (such as the right to political participation or against the death penalty) and promotion-oriented rights (such as the right to health, or education) is an underexplored area that would require deeper analysis than is possible in this short piece.

402  Research handbook on minority politics in the European Union But any assessment of the EU as a development actor would need to pay heed to the extent to which it can overcome its own contradictions, or as McMichael puts it, the tendency for official development, in advocating green market solutions, [to recycle] the problem as solution—a problem rooted in the geopolitics of an unsustainable global “metabolic rift” and a discourse of global ecology reinforcing international power relations through monetary valuation, and deepening the North’s “ecological debt”. (McMichael, 2009, pp. 247–62)

The ‘development climate’ in the EU, like elsewhere, is itself a market product, with the result that there remains a deep-set tendency to frame development solutions in market terms. Thus even the current ‘Green Deal’ of the EU remains based on market solutions such as carbon trading, emission offsets and biofuels, with the (albeit less strident than before) assumption that the current consumption will endure. McMichael traces the current market ontology to the politics of the security of the global North, which was framed as ‘global ecology’ as early as the Rio Earth Summit of 1992. From his perspective the ‘goal’ (rather than ‘right’) of the global development project has been ‘to sustain energy, capital and commodity flows for purposes of military and political security as the environmental consequences of worldwide industrialization threaten[ed] to destabilize the Northern way of life’ (Saks, 1993, p. 20, cited in McMichael, 2009). This leads to the conclusion that the ‘recycling of the neoliberal market truth, as convenience for the development establishment and its corporate partners, represents a deeply inconvenient truth for humankind and its ecological foundations’ (Saks, 1993, p. 20, cited in McMichael, 2009). Despite these inherent contradictions and challenges, with transnational cooperation driving the process of European integration commencing from the Treaty of Rome via the customs union towards creation of the EU, the latter organisation came to play an important role in external relations of the Member States. As a consequence the EU today is a key actor in the global sphere. With human rights written into the centre of its mandate, its global engagement is necessarily multi-faceted and is reflected in a range of internal and external actions, as diverse as specific country engagements through Country Teams, formal Global Dialogues and other tools explored in the subsequent section.

MAINSTREAMING HUMAN AND MINORITY RIGHTS IN THE EU’S GLOBAL DEVELOPMENT COOPERATION Human rights and more specifically minority rights form an important part of the EU’s external action priorities and objectives, and consequently affect the funding of these. This was immediately germane in the process of the expansion of the Union itself, where minority rights standards, as articulated in the European Commission (EC) Guidelines, formed an important priority in the process of enlargement. The priority was also reflected most clearly in the EU intervention following the dissolution of the Federal Republic of Yugoslavia, with the EC Guidelines being central to recognition of the independent states emerging from that process. Minority rights is of continued strategic importance in its Southern and Eastern Neighbourhood Policies (discussed elsewhere in this volume). It is thus not a surprise to see that minority rights features prominently in decisions made with regard to the development funding disbursed through the various strands of EU policy. The prominence of the general human rights mandate is also visible in the EU’s last two Human Rights Action Plans,

The European Union and global development cooperation  403 2014–20 and 2020–27. Reference is also made in Article 2 of the Treaty on European Union (TEU) which effectively incorporates Article 21 of the Charter of Fundamental Rights, with Article 49 strengthening compliance with the Copenhagen Criteria. With no bespoke minority rights framework, the EU actively subsumes monitoring of minority rights worldwide (Benedek et al., 2012) under its Annual Report on Human Rights and Democracy in the World, published by the European External Action Service (EEAS), which includes a specific section on minority issues. The country reports contained within this document include specific analyses of the human rights context, specific priorities of the EU’s action in situ, highlights of EU funding in that country, and progress made with regional and international human rights protection frameworks. The content of these analyses varies depending on specific socio-political contexts of each country and the EU’s priorities in them as specified within the EU’s country Human Rights Strategies. Many include commentary on the protection of vulnerable groups, with some explicitly citing specific minority communities and indigenous peoples. This drive by the Commission is reflected to some extent by the European Parliament (EP), which takes a political approach to the promotion and protection of minority rights.1 Given the scope for divergence of opinions among Member States in this area, the EP has been active in encouraging the Commission to mainstream minority rights in its measures and actions, especially in its relations with third countries, such as in the context of political and/or human rights dialogues.2 The EP also holds a permanent dialogue with the EEAS, the Council and the Commission on how policy priorities are approached, including addressing whether minority issues are being upheld,3 and in its resolution regarding the annual report on human rights, the EP regularly addresses minority rights issues.4 One method to assess the EU as an actor in support of minority rights is to highlight the organisation’s prioritisation of such rights in its funding streams and calls for action. However, to understand what shapes and sets up the priorities of the EU’s development cooperation investment, it is fundamental to look at where and how resources are allocated. The EU’s 1 See https://​eeas​.europa​.eu/​headquarters/​headquarters​-homepage/​8437/​eu​-annual​-reports​-human​rights-and-democracy_en. 2 For instance, in the EU China Diplomatic and Expert Dialogue in which one of the authors participated, dedicated workshops on minority rights were hosted in Kunming (China) in 2003, designed to assuage suspicion around the content of Article 27 of the International Covenant on Civil & Political Rights. For a more contemporary discussion on this dialogue see Max Roger Taylor, ‘Inside the EU–China Human Rights Dialogue: Assessing the Practical Delivery of the EU’s Normative Power in a Hostile Environment’ Journal of European Integration (2020), https://​doi​.org/​10​.1080/​07036337​.2020​ .1854245. 3 Regulations establishing funding instruments often include notes on this; for example, the European Instrument for Democracy and Human Rights (EIDHR) Regulation includes a Declaration by the European Commission on the strategic dialogue with the European Parliament. The Joint Declaration by the European Parliament, the Council of the European Union and the European Commission concerning funding of horizontal programmes for minorities, as annexed in Regulation (EU) No 231/2014 of the European Parliament (hereinafter the IPA II Regulation) and of the Council of 11 March 2014 establishing an Instrument for Pre-accession Assistance (IPA II), is also relevant. 4 The Committee for External Affairs (AFET) drafts a statement for adoption by Parliament with specific recommendations to guide EU policy, usually voted on during the December plenary session. The 2019 report, for instance, references indigenous peoples. See: www​.europarl​.europa​.eu/​RegData/​ etudes/​ATAG/​2020/​651999/​EPRS​_ATA(2020)651999​_EN​.pdf. For a report that references minority issues considered by the Parliament, see: www​.europarl​.europa​.eu/​doceo/​document/​A​-8​-2017​-0365​_EN​ .pdf.

404  Research handbook on minority politics in the European Union external action funding (assessed here through the lens of the 2014–20 work) operates through a broad context of programs, with three distinguishable types of funding, with instruments and programs within them emphasising a thematic or geographic focus. The three types of funding are: (i) programmes developed under the EU general budget under the auspices of ‘Global Europe’, (ii) the European Development Fund (EDF; not part of the general EU budget but absorbed in 2021, as discussed below) and (iii) individual members’ development funding that is administered by the members themselves. This section will focus on (i) to maintain coherence within the space constraints and reflect the MRG experience, with briefer commentary offered on (ii) to present a wider angle of actions within the scope of such funding, while excluding (iii) entirely as it pertains to members acting in their individual capacity rather than the EU as a whole. Programmes under Global Europe In the Multiannual Financial Framework (MFF) 2014–2020,5 several financing instruments coexist under ‘Global Europe’ (Heading 4),6 most of which expired on 31 December 2020. Each budget line under Heading 4 corresponds to a specific funding instrument, with each funding instrument having its own legal basis, usually through a Regulation adopted by the EP and approved by the Council. Regulations set out the countries and themes to which development funding will be directed while also setting out the rules to do so. Each instrument is composed by thematic and/or geographic programmes, though their purpose varies within the broad objectives of the EU’s external action. The EC and the EEAS draft a multi-year strategy and multiannual indicative programme (MIP) to guide implementation of each programme,7 setting up priorities, objectives, expected results, indicators and internal financial allocation. These are ostensibly developed jointly by EU delegations, partner countries, local authorities and CSOs. Strategies are reviewed and updated half-way through the seven-year period of the MFF.8 Relevant decisions regarding the content of these instruments are taken in the context of the so-called strategic dialogues between the EP and the EC. Once strategies and MIPs are approved, annual action plans and annual work programmes are drafted, outlining the actions to be funded and the grants to be outlined under each programme. The ‘Global Europe’ heading provides an umbrella for the following six main cooperation-development funding instruments of the EU’s external action, which represent 6 per cent of the total EU general budget:9 1. European Instrument for Democracy and Human Rights (EIDHR) 2. Development Cooperation Instrument (DCI) 3. Instrument for Pre-accession Assistance (IPA II)

5 See generally https://​ec​.europa​.eu/​info/​strategy/​eu​-budget/​long​-term​-eu​-budget/​2014​-2020/​fund ing-programmes_en. 6 See generally https://​ec​.europa​.eu/​info/​strategy/​eu​-budget/​long​-term​-eu​-budget/​2014​-2020/​fund ing-programmes/heading-4-global-europe_en. 7 ‘MIP’ is the technical term used for thematic programmes. Geographic programmes are called ‘National Indicative Programmes’ (NIPs) or ‘Regional Indicative Programmes’ (RIPs). 8 European Parliament and Council Regulation (EU) No 236/2014 laying down common rules and procedures for the implementation of the Union's instruments for financing external action [2014] L 77/95, Art 17. 9 Established by (EU) Regulation No. 236/2014.

The European Union and global development cooperation  405 4. European Neighbourhood Instrument (ENI) 5. Instrument Contributing to Stability and Peace (IcSP) 6. Partnership Instrument (PI) The following sub-sections will focus on each of these instruments, drawing out their specificity in protection and promotion of human and minority rights and offering a brief commentary about their efficacy. It should be noted prior to this analysis that there are other instruments under Heading 4 which impact development funding, but will not warrant commentary here due to relevance, coherence and space issues. These include: Instrument for Nuclear Safety Cooperation (INSC);10 macro-financial assistance for restoring sustainable financial situations while encouraging economic adjustment reforms;11 external lending mandate in support of small and medium-sized enterprises in targeted third countries and the development of social and economic infrastructure and support of projects related to climate change;12 guarantee fund for external action;13 European Fund for Sustainable Development;14 Humanitarian Aid Instrument15 to provide relief and protection to victims of natural or man-made disasters outside the EU; Common Foreign and Security Policy; the Instrument for Greenland; and the EU Aid Programme for the Turkish Cypriot community. European Instrument for Democracy and Human Rights As the instrument that funds human rights work, in the framework of the EU’s Development Aid,16 the EIDHR is the main EU funding instrument integrating human rights into the EU’s external action.17 As a consequence, global minority rights work is supported significantly through this action, with the current iteration18 established by Regulation (EU) 235/2014 for 2014–20 (hereinafter the EIDHR Regulation). The aim of the instrument is clearly stated: to promote democracy and human rights in non-EU countries, with a broad range of actions falling within this remit. Unlike more traditional development aid that accrues to government, the EIDHR’s assistance does not need the consent or collaboration of national authorities of the countries where it is provided.19 This characteristic grants the instrument special independence, flexibility and efficiency, especially in addressing human rights issues in hostile environments, politically sensitive issues and/or complex cross-border challenges. Given its worldwide geographic focus, the EIDHR has an overarching role within the EU’s international

Established by Regulation (EURATOM) 237/2014 on promotion of a high level of nuclear safety. Usually adopted as a financial instrument used on a case-by-case basis to help countries that are mainly geographically close to the EU dealing with serious balance-of-payments difficulties. 12 Defined by Decision (EU) 2018/412 amending Decision No 466/2014/EU. 13 Established by Regulation (EC/EURATOM) 480/2009). 14 Established by Regulation (EU) 2017/1601. 15 Established by Council Regulation (EC) No 1257/96. 16 EP and EC Regulation (EU) No 235/2014 establishing EIDHR [2014], L 77/85, Article 1. 17 The instrument references Article 2 and 21 of the TEU, the EU Strategic Framework and Action Plan on Human Rights and Democracy (2014–2020), the EU Guidelines, and Tool-Box: A Rights-Based Approach, encompassing human rights for EU development cooperation and related Conclusions adopted by the Council 19 May 2014. 18 The preceding instrument was the European Initiative for Democracy and Human Rights (2000–06), followed by the 2007–13 EIDHR established by Regulation (EC) No 1889/2006. 19 EP and EC Regulation (EU) No 235/2014, Point (1). 10 11

406  Research handbook on minority politics in the European Union assistance policy: it is drawn upon to support countries where no other EU development cooperation exists, but is also used in a complementary manner when supporting countries that simultaneously benefit from other EU funding instruments. The EIDHR falls under the framework of International Cooperation and Development EU Policy, and has become a prominent instrument of the EU’s foreign policy, with its thematic and worldwide geographical focus. Funds devolved under the EIDHR mainly accrue to CSOs (90 per cent) and international organisations (10 per cent), generally managed by EuropeAid/the Directorate-General for Development and Cooperation (DG DEVCO). In the Multiannual Financial Framework 2014–2020, the EIDHR was allocated €1,332.75 million (0.12 per cent of the MFF) (Dobreva, 2015). With the regulation citing the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities,20 the EIDHR is explicitly designed to support the promotion and protection of minority rights. This is further specified as an exhortation to encourage promotion of ‘the rights of persons belonging to national or ethnic, religious and linguistic minorities’,21 and to: fight against racism, xenophobia and discrimination based on any ground, including sex, race, colour, caste, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, sexual orientation and gender identity.22

The EIDHR is also purported to promote ‘freedom of thought, conscience and religion or belief’ and political pluralism, including through the support of ‘members of marginalised and vulnerable groups’. Thus in comparison with every other EU regulation of funding instruments, this is the one that most directly references minority issues. The general scope contains five core objectives in Annex 1 that support: human rights and human rights defenders (HRD); other EU priorities in line with the EU Strategic Framework and Action Plan on Human Rights and Democracy; democracy; EU Election Observation Missions (EOMs); and key actors and processes, including international and regional human rights instruments and mechanisms, such as the promotion and monitoring of those mechanisms by civil society. 23 This enables the EIDHR to support CSOs and HRD working to promote respect and protection of human rights, fund electoral observation missions and development actions linked to promotion of democracy, and provide direct support to international, regional and local human rights instruments and mechanisms. While the description of the thematic objectives of the EIDHR are rather general,24 in the context of the annual action plans of the instrument, we find actions such as Support Calls for Proposals targeting local civil society through Country-Based Support Schemes (CBSS)25 aimed at local civil society and meant to promote human rights, including the promotion of indigenous peoples’ rights, non-discrimination, and the rights of persons belonging to minorities, of persons with disabilities and of other vulnerable groups.

UN Doc. A/RES/47/135 (3 February 1992). EP and EC Regulation (EU) No 235/2014, Point (vii) of Point (b) of Point (1) of Article (2). 22 Ibid. Point (iv) of Point (b) of Point (1) of Article (2). 23 EP and EC Regulation (EU) No 235/2014, Annex 1. 24 Annex 1 of Regulation (EU) No 235/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for democracy and human rights worldwide (EIDHR). 25 See EIDHR Annual Action Plan for 2014–2020. 20 21

The European Union and global development cooperation  407 As a consequence, a variety of projects funded under this framework have had or are having a direct and/or indirect impact on the rights of minorities. It should be noted that, based on an overall review of the EEAS country human rights year reports, depending on the EU’s human rights priorities in each country and their specific context, work on minority issues may be referred to under the overarching term of ‘vulnerable groups’ and addressed in the context of the promotion of freedom of religion or belief, or under the framework of actions addressing non-discrimination. Illustrative examples include projects in Cameroon (2019), focussed on protection of vulnerable populations living in conflict-affected areas in the northwest and southwest regions (linguistic minorities); and in Eritrea, where three new EIDHR contracts were awarded (€1 million) to strengthen civil society, including the rights of vulnerable groups. MRG, as the leading organisation working within this field, implemented the following EU projects funded under the EIDHR during its last strategic period (2016–20):26 1. Empowering Indigenous Land Rights Defenders to Prevent Climate Change;27 2. Ethnic Minority Defenders: Amplifying the voices of indigenous HRD to advocate for the rights to health and education;28 3. MARC – Turkey (Minorities, Accountability, Rights, Collaboration);29 4. Mobilising Civil Society for Monitoring Equality for Roma People in the Education and Housing Systems in Turkey;30 5. Pour un environment favourable a l’éradication de l’esclavage en Mauritanie;31 6. Pour la Consolidation des Capacités de la Société Civile Tunisienne dans la Lutte Contre les Formes de Discrimination;32 7. Protecting and Promoting the Human Rights of Discriminated Minorities in Egypt;33 8. Safeguarding Tribal Rights in the Context of Extractive Industries in India;34 9. Securing Recognition of Minorities and Indigenous Peoples and Their Rights in Botswana;35 10. Stratégie pur éradiquer esclavage en Mauritanie;36 11. Strengthening Human Rights Defender Organisations Working with Vulnerable Civilians in Iran and Iraq;37 12. Strengthening the Capacity of CSOs, HRDs and Media Houses to Challenge Discrimination Against Historically Marginalised People and Promote Their Human Rights in Rwanda;38

Non-exhaustive list. EIDHR/2018/400-410. 28 EIDHR/2020/414-374. EIDHR–CBSS programme. 29 NEAR-TS/2020/419-945. EIDHR–CBSS, Near Thematic Strategy (ENP). 30 NEAR-TS/2015/369-375. EIDHR–CBSS, Near Thematic Strategy (ENP). 31 EIDHR 2017/383-549. Thematic programme for civil society organisations and human rights, which overlaps directly with the Civil Society Organisations and Local Authorities (CSO-LA) programme of the DCI. 32 NEAR-TS/2017/393-592. EIDHR–CBSS, Near Thematic Strategy (ENP). 33 NEAR-TS/2016/2016/379-930. EIDHR–CBSS, Near Thematic Strategy (ENP). 34 EIDHR/2020/419-923. 35 EuropeAid/136116/L/ACT/BW (EIDHR-CBSS). 36 EIDHR/2019/413-857. Thematic programme for civil society organisations and human rights, overlaps directly with CSO-LA of the DCI. 37 EIDHR/2016/376-911. 38 EIDHR/2018/396-163. EIDHR–CBSS programme. 26 27

408  Research handbook on minority politics in the European Union 13. Supporting Religious Pluralism and Respect for Freedom of Religion or Belief across South Asia.39 Development Cooperation Instrument The DCI is considered the main financial instrument in the EU budget for funding aid to developing countries,40 and the second-largest instrument for funding EU development cooperation,41 after the EDF, which as stated above used to be funded outside the EU budget and therefore out of the scope of this commentary. The DCI was established42 to address several of the EU’s external action objectives, with a key priority being poverty reduction, sustainable development and implementation of the post-2015 development agenda. As a consequence, the instrument is focussed on sustainable economic, social and environmental development; and the promotion of democracy, the rule of law, good governance and respect for human rights. Unlike the EIDHR this instrument falls under the policy framework of cooperation in third countries and international agreements and has both a geographic and thematic focus (for general insight, see Parry and Segantini, 2017). It is structured to cater for three types of programmes: 1. Geographic programmes supporting bilateral and regional cooperation with 47 countries in Latin America, South Asia, North and South East Asia, Central Asia, the Middle East; and ‘other countries’ that exclude beneficiaries of the EDF, ENI and IPA; 2. Thematic programmes, further sub-divided into (i) Global Public Goods and Challenges (GPGC), and (ii) Civil Society Organisations and Local Authorities (CSO-LA); 3. The Pan-African Programme, focussed on Official Development Assistance (ODA) partner countries and international organisations, with a small percentage reserved for CSOs. Like the EIDHR, the DCI is managed by the EEAS, with the support of the Commission through EuropeAid/DG DEVCO. In the Multiannual Financial Framework 2014–2020, the DCI was allocated €19,661.64 million (1.82 per cent of the MFF) (Parry and Segantini, 2017). As the main development funding instrument of the EU budget, the main focus of the DCI, poverty alleviation, requires that in working towards this objective, cooperation should contribute to ‘consolidating and supporting democracy, the rule of law, good governance, human rights and the relevant principles of international law’.43 The protection of human rights is thus among the main general objectives of the instrument. Explicit reference to the protection and promotion of minority and indigenous peoples’ rights is contained mainly under thematic programmes. The thematic area dedicated to human development has included focus on decent work, social justice and culture,44 which enables explicit focus on inclusion and the protection of the rights of persons belonging to disadvantaged and vulnerable groups, including women and girls, persons belonging to minorities, religious minorities, people with disabilities and EIDHR/2018/400-439. The SDGs and Agenda 2030 are specifically referenced to this instrument. 41 The preceding DCI was established by Regulation No 1905/2006 under the previous MFF (2007–13). 42 Regulation (EU) 233/2014. 43 EP and EC Regulation (EU) No 233/2014 establishing a financing instrument for development cooperation for the period 2014–2020 [2014], L 77/44, Point (b) of Point (1) of Article (2). 44 This GPGC is structured in five thematic areas. 39 40

The European Union and global development cooperation  409 indigenous peoples. Activities funded have thus included the promotion of social dialogue, non-discrimination, HRD and inter-cultural dialogue.45 Other activities under the CSO-LA programme (previously known as NSA-LA), were specifically aimed at strengthening civil society and local authorities in partner countries, and included interventions in partner countries in support of vulnerable and marginalised groups through provision of basic services delivered through CSOs and local authorities. Despite its overarching coverage of human rights issues, including minority rights, the DCI has been criticised for insufficient human rights mainstreaming (MacKellar et al., 2017). MRG has implemented the following projects under the DCI: 46 1. Empowering Thai CSOs Representing Marginalised Communities in the Southern Border Provinces;47 2. Enhancing Political and Civil Rights of the Muhammasheen Community in Yemen;48 3. Reporting Effectively on Development, Minorities and Migration.49 Instrument for Pre-accession Assistance IPA II is a funding instrument dedicated to enlargement countries, and is the successor of the IPA programme established for 2007–13, replacing several former pre-accession assistance programmes.50 The instrument helps current and potential candidate countries to cope with political and economic reforms necessary to progressively align to with EU rules, standards, policies and practices en route to EU membership.51 Its major objective lies in harmonising national legislations to implement the acquis communautaire and facilitate accession to the EU. Its main beneficiaries are Western Balkan countries (Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, Serbia, and Kosovo) and Turkey. IPA II is generally managed by the EC through EuropeAid/DG DEVCO and the Directorate-General for European Neighbourhood Policy and Enlargement Negotiations (DG NEAR). In the Multiannual Financial Framework 2014–2020, IPPA II was allocated €11.56 million (1.08 per cent of Heading 4) (Svášek, 2017). We can state that the granting of support under this instrument is clearly linked to the respect of human and minority rights principles. Additionally, IPA II funding of programmes is aimed at enhancing respect for and protection of minorities and the integration of minority concerns as cross-cutting issues in all planned activities.52 The instrument clearly states the rationale for assistance as being to:

EP and EC Regulation (EU) No 233/2014, Part A of Annex II. Non-exhaustive list. 47 DCI-NSAPVD/2015/370-321. DCI CSO-LA thematic programme. 48 DCI-MED/2014/353-019. 49 CSO-LA/2017/388-349. DCI CSO-LA thematic programme. 50 Established by the IPA II Regulation and Regulation (EU) No 447/2014. Preceding instrument the Pre-accession Assistance established by (EU) Regulation No 1085/2006. 51 The instrument references the Copenhagen Criteria and Article 212 of the Treaty on the Functioning of the European Union (TFEU). 52 Joint Declaration by the European Parliament, the Council of the European Union and the European Commission concerning the funding of horizontal programmes for minorities, in the European Parliament and Council Regulation (EU) No 231/2014 establishing an Instrument for Pre-Accession Assistance (IPA II) [2014], L 77/11, Annex III. 45 46

410  Research handbook on minority politics in the European Union pursue … achievement of the […] promotion and protection of human rights and fundamental freedoms, enhanced respect for the rights of persons belonging to minorities, including lesbian, gay, bisexual, transgender and intersex persons, promotion of gender equality, non-discrimination and tolerance, as well as freedom of the media and respect for cultural diversity,53

as well as the ‘promotion of social and economic inclusion, in particular of minorities and vulnerable groups, including persons with disabilities, refugees and displaced persons’.54 This is logical since implementation of the Copenhagen Criteria is also identified as core to this instrument. The ‘teeth’ of the instrument as a tool to promote and protect minorities rights also lie in its monitoring mechanisms, where the establishing regulation states: Progress towards achievement of the specific objectives […] shall be monitored and assessed on the basis of pre-defined, clear, transparent and, where appropriate, country-specific and measurable indicators [that cover] progress in the areas of strengthening democracy, the rule of law and an independent and efficient justice system, [and] respect for human rights, including the rights of persons belonging to minorities and vulnerable groups.55

This is also in line with a thematic priority of this instrument with regard to the functioning of institutions in line with the rule of law, which again explicitly cites minorities: Interventions in this area shall aim at: […] promoting and protecting human rights, rights of persons belonging to minorities—including Roma as well as lesbian, gay, bisexual, transgender and intersex persons—and fundamental freedoms, including freedom of the media.56

IPA II assistance is structured around five policy areas linked to the enlargement strategy, viz. (i) reforms related to institution- and capacity-building; (ii) socio-economic and regional development; (iii) employment, social policies, education, promotion of gender equality, and human resources development; (iv) agriculture and rural development; and (v) regional and territorial cooperation, with (i) and (iii) tending towards the more pertinent for minority protection.57 The setting of the priorities and objectives for the seven-year period of assistance ending 2020 was conducted through strategic planning documents derived from Country Strategy Papers. These allowed for the tailored framing of financial assistance for each beneficiary, captured in Multi-Country Strategy Papers that outlined priorities and conditions for horizontal support to sector policies and reforms.58 The Strategy Papers also enabled the identification of results expected to be achieved by 2020 through the assistance, actions necessary to reach them and indicators showing progress towards the results.59 The identified priorities, translated into detailed actions, were included in annual or multiannual Action Programmes, with IPA II Action Programmes taking the form of Financing Decisions adopted by the EC.60 Protection EP and EC Regulation (EU) No 231/2014, Point (ii) of Point (a) of Article 2(1). Ibid. Point (iv) of Point (a) of Article 2(1). 55 Ibid. Point (ii) of Point (a) of Article 2(2). 56 Ibid. Annex II, Point (b). 57 Overview available at https://​ec​.europa​.eu/​neighbourhood​-enlargement/​instruments/​overview​_en. 58 Overview available at https://​ec​.europa​.eu/​neighbourhood​-enlargement/​instruments/​overview​_en. 59 Neighbourhood and Enlargement Negotiations, Instrument for Pre-Accession Assistance (IPA II) Revised Indicative Strategy for Turkey (2014–2020) (European Commission 2018). 60 Overview available at https://​ec​.europa​.eu/​neighbourhood​-enlargement/​instruments/​overview​_en. 53 54

The European Union and global development cooperation  411 for minority rights is implied in several of the nine priority sectors for funding of IPA II: democracy and governance; the rule of law and human rights; competitiveness and innovation; education, employment and social policies; transport; environment, climate action and energy; and agriculture and rural development.61 The most explicit minority references are identified under the ‘rule of law’ priority. Depending on the country, the strategic papers contain indicators explicitly targeting minorities and/or offering a detailed references to minority issues,62 normally subsumed under the more generic concept of ‘vulnerable or disadvantaged groups’, including children, women, people with disabilities and LGBTQ people – though explicit references are often made to Roma, national minorities63 or sexual minorities,64 depending on the country. Many projects supporting the promotion and protection of minority rights have been funded in the framework of IPA II. In 2019, a number of IPA-funded projects were implemented in Serbia to support anti-discrimination policies and improve the situation of vulnerable persons, including the Roma, refugees and internally displaced persons, to a total value of €30 million, with €3.48 million dedicated to strengthening of protection of human rights and the rights of persons belonging to minorities in the framework of a reginal programme.65 In Kosovo two IPA Civil Society Facility projects were funded to promote (i) fundamental rights of vulnerable and marginalised groups (€900,000), and (ii) the employability of vulnerable groups towards their inclusion in education and employment (€900,000). In Montenegro two projects (worth approximately €1.7 million) were supported: (i) the designing of sustainable solutions for internally displaced Roma, the promotion and protection of the human rights of Roma, Egyptians and other vulnerable groups, and gender equality; and (ii) a €3 million grant scheme to implement quality social services for the most vulnerable groups. In the framework of the IPA Sector Operational Programme for Education Employment and Social Policies (SOPEES), a further grant of €300,000 was awarded to strengthen the role of Roma mediators in the sector of inclusive education, and €300,000 was awarded to support/fund an awareness campaign against discrimination of ethnic minorities. With the focus of the grants being on beneficiaries in the region, MRG has only been supported by this instrument to work on initiatives led by local partners. Concretely, MRG supported the implementation of one IPA II project in North Macedonia, entitled ‘From Action to Equal Rights for Roma’.66 European Neighbourhood Instrument The ENI is the EU’s main instrument for financing its so-called Neighbourhood region.67 The ENI falls under the policy area related to cooperation with third countries and international

61 Neighbourhood and Enlargement Negotiations, Instrument for Pre-Accession Assistance (IPA II) Indicative Strategy for Albania (2014–2020) (European Commission 2014). 62 Neighbourhood and Enlargement Negotiations, Instrument for Pre-Accession Assistance (IPA II) Revised Indicative Strategy for Kosovo (2014–2020) (European Commission 2018). 63 Neighbourhood and Enlargement Negotiations, Instrument for Pre-Accession Assistance (IPA II) Revised Indicative Strategy for Montenegro (2014–2020) (European Commission 2018). 64 Neighbourhood and Enlargement Negotiations, Instrument for Pre-Accession Assistance (IPA II) Revised Indicative Strategy for Bosnia and Herzegovina (2014–2020) (European Commission 2018). 65 European Union External Action Service, EU Annual Report on Human Rights and Democracy in the World: 2019 Country Updates (European Union 2019). 66 IPA/2015/382006. IPA II Macedonia. 67 The ENI was established by Regulation (EU) No 232/2014.

412  Research handbook on minority politics in the European Union agreements,68 and directly contributes to the implementation of the European Neighbourhood Policy (ENP). The ENI sets out a framework for efforts to advance democratisation, good governance, political cooperation and economic integration with its beneficiaries. Its main objective is to bring the EU and its neighbouring countries closer by enhancing political cooperation and progressive economic integration between the Union and neighbouring countries (Perchoc, 2015). Its geographic scope includes 16 countries and territories east and south of the EU, structured into an Eastern Partnership (Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine) and the Southern Neighbourhood (Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, the occupied Palestinian territory (oPt), Syria69 and Tunisia) (Parry, 2016). The ENP is complemented by two broader regional initiatives, the Union for the Mediterranean and the Black Sea Synergy, which includes ENP countries and other third countries not officially part of the ENP (Parry, 2016). The main beneficiaries of this instrument are international organisations, CSOs and partner countries, and like others the instrument is managed by the EC through EuropeAid/DG DEVCO in conjunction with DG NEAR and the EEAS. In the Multiannual Financial Framework 2014–2020, the ENI was allocated €15.58 million (1.43 per cent of the MFF) (Parry, 2016). The protection of minority rights is explicitly identified as a clear cross-cutting issue within this instrument,70 falling within the priorities for cooperation, good governance, democracy, the rule of law and human rights, economic development for stabilisation, security, and migration and mobility. The instrument also stresses the ‘fight against discrimination’ as an underlying key concept to enhance establishment of ‘sustainable democracy, promoting good governance, fighting corruption, strengthening institutional capacity at all levels and developing a thriving civil society including social partners’. However, as discussed below, it is not clear whether this is properly mainstreamed or if there are the necessary tools in place to monitor and assess the effectiveness of the actions taken in the ENI’s framework towards these aspects. While the ENI funds regional,71 Neighbourhood-wide72 and cross-border cooperation,73 most of its funding is earmarked for bilateral cooperation, funding investment projects. This is based on the Single Support Framework (SSF),74 a multiannual programming cycle that defines areas of focus for EU assistance, and specifies general objectives, expected results, indicators of achievement, indicative budgets and potential risks for each of the partner coun-

68 The ENP references Article 8 TEU, section 5 and Articles 216–9, and was preceded by the European Neighbourhood and Partnership Instrument (ENPI). 69 The EU suspended bilateral cooperation with the Syrian government, including Syrian government participation in regional programmes, following the outbreak of civil war in 2011. 70 EP and EC (EU) No 232/2014, Point 21. 71 See generally https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbourhood/​southern​-neigh bourhood/regional-cooperation-with-the-mediterranean-partners_en. 72 See generally https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbourhood/​neighbourhood​ -wide​_en. 73 EEAS, Programming of the European Neighbourhood Instrument (ENI) – 2014–2020 Programming Document for EU Support to ENI Cross-Border Cooperation (2014–2020) (European Union 2014). 74 Access to ENI country information, including all Partnership Priorities, the Single Support Framework and Action Plans: Countries of the Region – European Neighbourhood Policy & Enlargement Negotiations – European Commission, https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbourhood/​ countries​_en.

The European Union and global development cooperation  413 tries.75 The SSF is in line with the Partnership Priorities (PP) and bilateral ENP Action Plans. The Action Plans – eventually association agreements (AA) – are mutually agreed between the EU and each partner country, comprising a mix of legal, social and economic reforms that set the political framework for cooperation priorities. ENI assistance is conditional, which means support is directly linked to progress towards agreed reforms and EU standards.76 Thus ENI programmes are designed based on partner interests, country priorities and characteristics, and progress achieved so far. All ENP Action Plans/AA contain specific provisions for the protection of human rights, with occasional references to minority rights, in provisions such as ‘to strengthen respect for democratic principles, the rule of law and good governance, human rights and fundamental freedoms, including media freedom and the rights of persons belonging to minorities, and to contribute to consolidating domestic political reforms’.77 However, these provisions are few, and in general it is not clear what ‘persons belonging to minorities’ exactly entails. Similarly, all corresponding country PP and related SSF explicitly cite the protection of human rights, equality and fundamental freedoms. However, almost none (with few exceptions, such as Georgia) include explicit reference to minorities,78 though some include references to ‘protection of most vulnerable sections of society and/or protection of the most marginalised groups’,79 freedom of religion and belief,80 or address issues of non-discrimination.81 Thus despite human rights protection being among the key principles for this instrument, minority protection is not the focus of the instrument, and is treated more as a cross-cutting issue. Furthermore, the ENI is an uneven instrument, with each country agreement being different impacting the prioritisation and presence of minority issues within each partnership (Benedek et al., 2012). Despite this, some actions funded under the ENI have had important impacts in the protection of human rights, especially in the context of strengthening rule of law; for example, financial support for Jordan under the ENI for 2017–20 included implementation of the justice sector reform through a dedicated programme. This did yield achievements, including improved access to justice, an increase in judicial inspections and

EEAS, Programming of the European Neighbourhood Instrument (ENI) – 2017–2020 – Single Support Framework for EU Support to Egypt (2017–2020) (European Union 2017). 76 ‘Conditionality is a route to enduring acceptance of values as precondition for the discussion of interests. The ENP uses certain enlargement instruments in the pursuit of regional foreign policy and must steer a course between making the promotion of values a precondition and striving for it as an effect.’ See Perchoc (2015) op. cit., 79. 77 This, from the AA for Georgia, presents similar wording in some AP/AA. Other AP/AA containing explicit reference to minority rights are the AP for Israel and AA for Ukraine. 78 Access to ENI country information, including PPs, the SSF and Action Plans: Countries of the Region – European Neighbourhood Policy and Enlargement Negotiations – European Commission https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbourhood/​countries​_en. 79 See Euro-Mediterranean Agreement Between the European Communities and their Member States, of the One Part and the Arab Republic of Egypt, of the Other Part (European Union 2004). Also see the Association Council, EU–EGYPT Partnership Priorities 2017–2020 (European Union 2017). 80 See European Union–Palestinian Authority Action Plan (European Union 2013). 81 See Relations Tunisie-Union Europeén: Un Partnerariat Privilégie D’action 2013–2017 (European Union 2013); Programmation De L’Instrument Européen De Voisinage (IEV) (2014–2020) Cadre Unique D’Appui UE-Algérie (2018–2020) (European Commission 2018) and Cadre Unique D’Appui 2014–2020 Maroc (European Commission 2014). 75

414  Research handbook on minority politics in the European Union better-quality training by the Judicial Institute.82 MRG implemented one programme under this stream, working in conjunction with local Roma groups in Ukraine on ‘A Partnership For All: Developing Strategies for Socio-Economic Cooperation between Roma Communities and Local Authorities in Ukraine’.83 Instrument contributing to Stability and Peace The IcSP was established as the main external funding instrument for peace-building and conflict prevention through provision of effective, consistent and integrated responses to emerging and full-blown crises in partner countries (Dobreva and Wegner, 2017).84 Falling within the area of foreign policy and international cooperation and development, it encompasses a global programme with a thematic focus,85 structured in three main areas/types of action: (i) conflict prevention, crisis preparedness and peace-building (9 per cent); (ii) global-transregional and emerging threats (21 per cent), and (iii) exceptional assistance (70 per cent) (Dobreva and Wegner, 2017). Actions in line with foreign policy priorities are managed by the EEAS through the Common Foreign & Security Policy (CFSP), with actions in line with cooperation development priorities directly managed by the Directorate-General for International Cooperation and Development. This instrument devolves short- and long-term assistance in emerging and existing crises, conflict prevention, peace-building conflict prevention; and under DEVCO it draws long-term assistance addressing global and transregional threats and emerging threats, normally related to terrorism and organised crime. Humanitarian aid is not funded under this instrument (Dobreva and Wegner, 2017). In the Multiannual Financial Framework 2014–2020, the IcSP was allocated €2.30 million (0.22 per cent of the MFF) (Dobreva and Wegner, 2017). Aimed at supporting security initiatives and peace-building activities in partner countries, the protection of human rights and minority rights is, like the ENI, a cross-cutting issue within this instrument. Explicit encouragement is given for inclusion of issues such as the promotion of human rights and humanitarian law, and non-discrimination of vulnerable groups, including women rights, children’s rights and indigenous peoples’ rights.86 It has three priority areas: (i) assistance in a crisis or emerging crisis to prevent conflict, which is non-programmable crisis response assistance and accounts for the largest proportion of the IcSP budget; (ii) assistance for conflict prevention, crisis preparedness and peace-building, which is the IcSP area in which civil society work tends to be funded; and (iii) addressing global, transregional and emerging threats,87 the programmable part of the IcSP. Cooperation with partner countries and regions is based on the IcSP’s thematic strategy papers and an MIP. Ideally jointly developed with partner countries, civil society, and regional and local authorities, these instruments provide the framework for assistance and focus areas for funding in the programmable part of the 82 EEAS, EU Annual Report on Human Rights and Democracy in the World: 2019 Country Updates (European Union 2019). 83 ENI/2016/376-039. ENI Ukraine Civil Society Support Programme. 84 (EU) Regulation 230/2014 2014. 85 Other policy instruments relevant to this instrument cite Articles 209–12 TEU, the thematic strategy papers and multiannual indicative programme and the Global Strategy for the European Union’s Foreign and Security Policy. It was preceded by the Instrument for Stability established by (EU) Regulation 1717/2006. 86 EP and EC Regulation (EU) No 230/2014 L 77/1, Point (4) of Article (2). 87 Ibid. Articles 3–5.

The European Union and global development cooperation  415 IcSP, including specific objectives for the priority areas, performance indicators, the period of assistance and financial allocations per action. Under priority area (ii) relating to post-conflict and post-disaster recovery, explicit reference is made towards the ‘protection, participation and empowerment of local communities, with focus on vulnerable and minority groups’.88 Overall, without being among its focus priorities, by contributing to create, restore or consolidate appropriate tools and mechanisms at local, national and regional level to prevent conflicts and contribute to durable peace, actions under this instrument may be conducive to a greater push for the protection and promotion of minority rights and indigenous peoples. However, it is important to note that despite its cross-cutting approach, the programmatic mechanisms of this instrument do not seem to include indicators or any other tools that may support monitoring and assessing the impact of its actions on vulnerable groups such as minority groups and indigenous peoples. Partnership Instrument The final instrument, included for completeness, has had no direct bearing on minority and human rights. The PI supports measures that respond to objectives from the EU’s bilateral, regional and multilateral relationships with third countries,89 and falls under the EU policy areas of trade policy, and economic, financial and technical cooperation with third countries, with the main beneficiaries being partner countries. Considering the importance attached to promoting EU standards in other countries, human and minority rights ought to be among the principles promoted through this action. However, the protection and promotion of human rights are neither a focus nor a cross-cutting element of this funding instrument (Parry and Wegner, 2020). European Development Fund Founded in 1958, the EDF is the oldest and largest development-funding instrument of the EU90 that most closely resembles equivalent schemes from other non-European actors such as the United States of America and Canada. Although the EDF has been subsumed within the budget for the next funding period (2021–27), between 1985 and 2020 it was not part of the EU budget and used to be funded by direct voluntary contributions from Member States and managed by the EC. EU countries disburse an important part of their ODA through the EDF, which falls under the framework of EU’s Development Policy. The African, Caribbean and Pacific (ACP) countries modernised the EDF as a development instrument (Visser et al., 2017). The overall objective of this instrument is poverty eradication in ACP countries, and the fostering of sustainable development, support for democracy, the rule of law, good governance and human rights in the countries where it is active. The EDF has a geographic focus and finances EU cooperation devolved under two specific headings: (a) Overseas Countries and

88 European Commission, Instrument Contributing to Stability and Peace (IcSP) Thematic Strategy Paper 2014–2020 (European Union 2014). 89 Regulation (EU) 234/2014. 90 The founding instrument references the Treaty of Rome (1960); EU Agenda for Change, Articles 198, 208–11 of the TFEU; and the Cotonou Partnership Agreement (2000), successor to the Lomé Convention (1975).

416  Research handbook on minority politics in the European Union Territories (OCTs),91 and (b) ACP countries that are signatories of the Cotonou Partnership Agreement. In the context of ACP countries, the EDF supports: national and regional programmes, covering three or four thematic areas per country; intra-ACP and inter-regional cooperation; and thematic actions common to many or all the ACP countries. The EDF also includes an investment facility (4 per cent) managed by the European Investment Bank and aimed at funding higher-risk operations. Partner countries are the main beneficiaries of the EDF, but CSOs may also be funded, especially in ACP countries (D’Alfonso, 2014). The EDF builds on the European Consensus on Development, which identifies human rights as a key EU cooperation objective.92 It is intrinsically linked to the ACP, and in line with principles enshrined within it, including Article 8 of the Cotonou Agreement that opens the door to discussing EU human rights and fundamental freedoms with partner countries. The EDF is also shaped by the principles set up in the EU Agenda for Change,93 which includes human rights as a key policy area. Under the 11th EDF (2014–20), Member States allocated €30.5 million (Bossuyt et al., 2013). Human rights have prominence within the EDF as a core part of its objective and principles for development cooperation. This means that human rights standards are a factor guiding allocation, and are directly addressed by programming (Visser et al., 2017, p. 26). For example, 97.5 per cent of the total amounts allocated to national programmes and all the regional and intra-ACP envelopes of 2016 corresponded to human rights and good governance.94 From the year of its creation until 2020, the EDF was not an EU budget instrument (Pouwels, 2021), with the EC and the EP having no scrutiny over the EDF budget or priorities, and though it overlaps with the DCI and the EIDHR, the EDF lacks complementarity with the funding instruments discussed under ‘Programmes under Global Europe’ above.95 At the same time, given that its funding may not be regarded as external support but as domestic financing, the EDF may lead to financing where no other EU instrument could provide support, such as to CSOs and human rights activities in countries where external funding in such areas is not allowed.96 Minority rights are referenced as a cross-cutting issue for the EDF. However, the lack of specific data on impacts makes it difficult to assess, with limited evidence from a few cases showing that minority rights may be subsumed under the broader label of ‘vulnerable people’. Accordingly, while minority rights projects and/or projects that include minority rights as a cross-cutting issue may be funded under this instrument, minority rights do not feature as a focus among EDF priorities, with no direct programming, and no monitoring in place to evaluate progress or impacts in this regard.

The EU is associated with 13 OCTs in the Atlantic, Antarctic, Arctic, Caribbean, Indian Ocean and Pacific regions as defined per Council Decision 2013/755/EU. See https://​ec​.europa​.eu/​international​ -partnerships/​where​-we​-work/​overseas​-countries​-and​-territories​_en. 92 A landmark agreement between the EC, EP and Member States, setting out a common EU vision for development cooperation (2005). See Joint Statement (2006/C 46/01) on European Union Development Policy: ‘The European Consensus’ [2006], C 46/1 and The European Consensus on Development (Care International 2016), www​.care​-international​.org/​files/​files/​CARE​_the​_European​ _Consensus​_on​_Development​.pdf. 93 Agenda for Change|Capacity4dev, https://​europa​.eu/​capacity4dev/​public​-fragility/​wiki/​agenda​ -change. 94 Visser et al., 2017, p. 4. 95 Ibid., p. ix. 96 Ibid., p. 25. 91

The European Union and global development cooperation  417

CONCLUSION The EC’s first proposal for a new MFF (May 2018) was revised significantly in May 2020, to include Next Generation EU (NGEU), a feature to support recovery from the COVID-19 pandemic. The Council adopted the regulation following EP approval post-negotiation, laying down the EU’s new MFF for 2021–2797 on 17 December 2020. Most of the sectoral EU funding programmes were adopted in 2021 and would apply retroactively from the beginning of 2021. In line with key mid-term observations of the 2014–20 external financing instruments,98 proposed changes were aimed at increasing flexibility, coherence and performance. This would incorporate streamlining of instruments ‘to simplify their operation and lessen overlaps or gaps between them’ (Lilyanova, 2019),99 the merger of fragmented development-cooperation funding instruments into one, integration of the EDF into the EU budget to strengthen transparency100 and the creation of a new off-budget instrument to fund security- and defence-related actions.101 A clear strategic geographic focus is also emerging on the Neighbourhood and Africa with cross-cutting priorities on migration, peace, security, SDGs and gender equality, with the changes envisaged as helping align EU actions to deepening commitments to the UN 2030 Agenda, the Paris Climate Agreement, the new Global Strategy, the European Consensus on Development and the European Neighbourhood Development (Lilyanova, 2019). The most relevant change in the context of this discussion is the establishment of the Neighbourhood, Development and International Cooperation Instrument (NDICI),102 merging several EU external financing instruments, including the DCI, EIDHR and ENI and part of the EDF, IcSP and PI. The NDICI will be structured in three pillars:103 1. Geographic pillar (with 75 per cent of the instrument’s resources), directly linked to SDGs, targeting the Neighbourhood, Sub-Saharan Africa, Asia and the Pacific, the Americas and the Caribbean, and designed for actions to respond to not just one focus but several goals at the same time;104 2. Thematic pillar, a complementary programme, to be applied where no other funding applies, addressing human rights, civil society, democracy, peace and global challenges;

See generally https://​ec​.europa​.eu/​info/​strategy/​eu​-budget/​long​-term​-eu​-budget/​2021​-2027​_en. EC, Mid-Term Review Report of the External Financing Instruments (European Commission 2017). 99 The new proposed instruments for EU external action included: the Neighbourhood Development & International Cooperation Instrument (NDICI); the Instrument for Pre-accession Assistance (IPA III); the Humanitarian Aid Instrument (HAI); the Common Foreign & Security Policy (CFSP); Cooperation with Overseas Countries & Territories, including Greenland (COCT); and the European Instrument for Nuclear Safety (EINS). 100 The EP gains democratic oversight over the EDF, which is expected to become more efficient, predictable and effective. 101 The European Peace Facility, an off-budget instrument to finance military operations. 102 Regulation (EU) 2021/947. 103 See generally https://​ec​.europa​.eu/​neighbourhood​-enlargement/​funding​-and​-technical​-assistance/​ neighbourhood​-development​-and​-international​-cooperation​-instrument​-global​-europe​-ndici​-global​ -europe​_en. 104 Including enhanced partnership and dialogue, eradication of poverty, good governance, security, peace and stability, migration and mobility, human rights and democracy, inclusive economic growth, the rule of law, the environment and climate change, and human development. 97 98

418  Research handbook on minority politics in the European Union 3. Rapid response pillar, flexible and complementary to both the geographical and thematic pillars – it is not envisaged as requiring programming but will be provided as exceptional assistance in emergency situations. Overall the NDICI seems overambitious, with its budget falling short in a context where human rights, democracy and equality face unprecedented pressure and where civil society is likely to be called upon to play a crucial role in helping the EU to achieve its external action objectives. Although external funding will increase, the budget allocated for human rights and democracy actions under the thematic pillar of the NDICI is almost the same as under the EIDHR,105 with the overall focus on human rights significantly weakened and reduced to a cross-cutting issue across instruments. Almost all the instruments with direct and indirect human rights and minority programming have been merged, with the resonance human rights had under the DCI, ENI and EDF not mirrored in the new funding structure. Furthermore, while streamlined development funding may lead to better assessment of the impact of such funding, increasing its complementarity, it is difficult to know whether programming, monitoring and evaluation systems under the new instruments will adequately mainstream human rights and minority rights. On a more positive note, the heightened awareness of environmental needs addresses the climate crisis to some extent, but understanding how the human rights–climate interface can be successfully managed will be crucial to future sustainability and the achievement of the visions to which the EU is committed. In the final analysis, as we hope this chapter has demonstrated, despite the troubled histories and controversies that attach to developing funding, the EU has, through the articulation of its priorities, and some attempt to reflect these adequately in its funding instruments and fund allocations, paid attention to issues of human rights and to minority protection. It needs to be noted that this push for values of inclusion has come in the face of contemporary internal adverse difficulties that challenge the agenda significantly in line with rising xenophobia in Member States, already reflected in the regression of national politics in this regard. The sharp rise in anti-immigration sentiment, growing LGBTQ+ aggression, Islamophobia, a febrile atmosphere of hate speech targeting ethnic and religious minorities, and the treatment of refugees stranded at the EU’s borders have dominated politics in nearly every one of the Member States. The #BlackLivesMatter movement has shown that civil society support for a broader inclusive agenda remains high, even if not adequately reflected (yet) in the political space. The EU development support for human and minority rights is also particularly worth noting in the global context of the shrinking of civil space, the corresponding deterioration in US support for human rights under the Trump presidency, and the rise of majorities in key countries of growing global importance such as China and India (Castellino, 2020b). Overall questions may remain about the motivations of development funding in general, and as to whether it serves the giver or the receiver. Equally, the extent to which such funding prioritises needs as perceived at the receiving (rather than sending) end will also likely continue to be a valid question. The challenges ahead for development funding are only likely to grow. Estimates of the funding gap to achieve the SDGs appear beyond reach. The impact of the pandemic on gross domestic product is also likely to have dual dampening effects: increase the need at home dramatically, while shrinking the size of economies drastically. Yet cooperation 105 EC, ‘Strengthening human rights and democracy in the world: EU launches a €1.5 billion plan to promote universal values’ (European Commission, December 2021).

The European Union and global development cooperation  419 and collaboration are likely to be key imperatives in combating the climate challenge posed, and irrespective of the moral imperative to promote human rights, these, and especially their availability to communities far from sites of power, will likely be a central feature of the extent to which European values that promote peace, stability and inclusion can build stable and prosperous societies.

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420  Research handbook on minority politics in the European Union McMichael, Phillip, ‘Contemporary Contradictions of the Global Development Project: Geopolitics, Global Ecology and the “Development Climate”’ 30(1) Third World Quarterly (2009), 247–62. Medeiros, Eduardo, ‘Territorial Cohesion: An EU Concept’ 60 European Journal of Spatial Development (2016), 1–30, www​.nordregio​.org/​publications/​territorial​-cohesion​-an​-eu​-concept. Medeiros, Eduardo, ‘The Global Development Formula’ 13(9) Sustainability (2021), 5262, https://​doi​ .org/​10​.3390/​su13095262. Mills, Brandon, The World Colonization Made: The Racial Geography of the Early American Empire (Pittsburgh: University of Pennsylvania Press, 2020). Moyo, Dambisa, Dead Aid: Why Aid Is Not Working and Why There Is Another Way for Africa (Ann Arbor: Allen Lane 2009). Sachs, Jeffrey, The Ages of Globalization: Geography, Technology, and Institutions (New York: Columbia University Press, 2020). Sachs, Jeffrey, The End of Poverty: How We Can Make it Happen in Our Lifetime (London: Penguin, 2005).

Reports and Briefs Benedek, Wolfgang, et al., Mainstreaming Human and Minority Rights in the EU Enlargement with the Western Balkans (European Union 2012), www​.europarl​.europa​.eu/​RegData/​etudes/​etudes/​join/​ 2012/​457114/​EXPO​-DROI​_ET​%282012​%29457114​_EN​.pdf, accessed 12 December 2020. Bossuyt, Jean, Camilla Rocca and Brecht Lein, Political Dialogue on Human Rights under Article 8 of the Cotonou Agreement (European Union 2013), www​.europarl​.europa​.eu/​RegData/​etudes/​etudes/​ join/​2014/​534977/​EXPO​-DEVE​_ET(2014)534977​_EN​.pdf, accessed 23 December 2020. D’Alfonso, Alessandro, European Development Fund Joint Development Cooperation and the EU Budget: Out or In? (European Parliament 2014), www​.europarl​.europa​.eu/​RegData/​etudes/​IDAN/​ 2014/​542140/​EPRS​_IDA(2014)542140​_REV1​_EN​.pdf, accessed 23 December 2020. Dobreva, Alina, European Instrument for Democracy and Human Rights (European Parliament 2015), www​.europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2015/​568332/​EPRS​_BRI(2015)568332​_EN​.pdf, accessed 13 December 2020. Dobreva, Alina, and Philipp Wegner, Instrument Contributing to Stability and Peace (European Parliament 2017), www​.europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2017/​599331/​EPRS​_BRI​%28 2017%29599331_EN.pdf, accessed 23 December 2020. Lilyanova, Velina, Financing EU External Action in the New MFF, 2021–2027: Heading 6 ‘Neighbourhood and the World’ (European Parliament 2019), www​.europarl​.europa​.eu/​RegData/​ etudes/​BRIE/​2019/​644173/​EPRS​_BRI(2019)644173​_EN​.pdf, accessed 23 December 2020. MacKellar, Landis, et al., External Evaluation of the Development Co-Operation Instrument (2014–Mid 2017) Final Report (European Commission 2017), https://​ec​.europa​.eu/​international​-partnerships/​ system/​files/​dci​-final​-report​-vol​-i​-main​-report​_en​.pdf, accessed 23 December 2020. Moran, Greg, et al., External Evaluation of the European Instrument for Democracy and Human Rights (2014–Mid 2017) Final Report, Volume 2: Annexes (European Commission 2017), https://​ec​.europa​ .eu/​international​-partnerships/​system/​files/​eidhr​-evaluation​-final​-report​-volume​-2​-annexes​_en​.pdf, accessed June 2022. Parry, Matthew, European Neighbourhood Instrument (European Parliament 2016), www​.europarl​ .europa​.eu/​RegData/​etudes/​BRIE/​2016/​593485/​EPRS​_BRI​%282016​%29593485​_EN​.pdf, accessed 23 December 2020. Parry, Matthew, and Edoardo Segantini, Development Cooperation Instrument (European Parliament 2017), www​.europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2017/​608764/​EPRS​_BRI(2017)608764​_EN​ .pdf, accessed 23 December 2020. Parry, Matthew, and Philipp Wegner, Partnership Instrument (European Parliament 2020), www​ .europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2017/​599431/​EPRS​_BRI(2017)599431​_EN​.pdf, accessed 23 December 2020. Perchoc, Philippe, The European Neighborhood Policy (European Parliament 2015), www​.europarl .europa​.eu/​RegData/​etudes/​IDAN/​2015/​569048/​EPRS​_IDA(2015)569048​_EN​.pdf, accessed 23 December 2020.

The European Union and global development cooperation  421 Pouwels, Alexandra, The Integration of the European Development Funds into the MFF 2021–2027 (European Parliament, 2021), www​.europarl​.europa​.eu/​thinktank/​en/​document/​IPOL​ _BRI(2021)694414, accessed December 2021. Svášek, Martin, Instrument for Pre-Accession Assistance (IPA II) (European Parliament 2017), www​ .europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2017/​603957/​EPRS​_BRI​%282017​%29603957​_EN​.pdf, accessed 23 December 2020. Visser, Muriel, et al., External Evaluation of the 11th European Development Fund (EDF) (2014–Mid 2017) (European Commission 2017), https://​ec​.europa​.eu/​international​-partnerships/​system/​files/​edf​ -evaluation​-final​-report​_en​.pdf, accessed 23 December 2020.

EU Legislation European Parliament and Council Regulation (EU) No 230/2014 establishing an instrument contributing to stability and peace [2014], L 77/1. European Parliament and Council Regulation (EU) No 231/2014 establishing an Instrument for Pre-Accession Assistance (IPA II) [2014], L 77/11. European Parliament and Council Regulation (EU) No 232/2014 establishing a European Neighbourhood Instrument (ENI) [2014], L 77/27. European Parliament and Council Regulation (EU) No 233/2014 establishing a financing instrument for development cooperation for the period 2014–2020 [2014], L 77/44. European Parliament and Council Regulation (EU) No 234/2014 establishing a Partnership Instrument for cooperation with third countries [2014], L 77/77. European Parliament and Council Regulation (EU) No 235/2014 establishing a financing instrument for democracy and human rights worldwide (EIDHR) [2014], L 77/85. European Parliament and Council Regulation (EU) No 236/2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action [2014] L 77/95. European Parliament and Council Regulation (EU) No 2021/947 establishing the Neighbourhood, Development and International Cooperation Instrument – Global Europe, amending and repealing Decision No 466/2014/EU and repealing Regulation (EU) 2017/1601 and Council Regulation (EC, Euratom) No 480/2009 [2021] L 209/1.

EU Statements and Declarations European Parliament, Council, Commission Joint Statement (2006/C 46/01) on European Union Development Policy: ‘The European Consensus’ [2006], C 46/1. Joint Declaration by the European Parliament, the Council of the European Union and the European Commission concerning the funding of horizontal programmes for minorities, in the European Parliament and Council Regulation (EU) No 231/2014 establishing an Instrument for Pre-Accession Assistance (IPA II) [2014], L 77/11. Press release by European Commission, ‘Strengthening human rights and democracy in the world: EU launches a €1.5 billion plan to promote universal values’ (European Commission, 9 December 2021), https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​IP​_21​_6695, accessed January 2022.

EU Publications/Documents Association Council, EU-EGYPT Partnership Priorities 2017–2020 (European Union 2017). Care International, The European Consensus on Development (2016), www​.care​-international​.org/​files/​ files/​CARE​_the​_European​_Consensus​_on​_Development​.pdf, accessed 23 December 2020. European Commission, Instrument Contributing to Stability and Peace (IcSP) Thematic Strategy Paper 2014–2020 (European Union 2014). European Commission, Mid-Term Review Report of the External Financing Instruments (European Commission 2017).

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Websites Agenda for Change|Capacity4dev, https://​europa​.eu/​capacity4dev/​public​-fragility/​wiki/​agenda​-change. Countries of the Region – European Neighbourhood Policy and Enlargement Negotiations – European Commission, https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbourhood/​countries​_en. EU Budget – The Long-Term EU Budget – 2014–2020 – European Commission, https://​ec​.europa​.eu/​ info/​strategy/​eu​-budget/​long​-term​-eu​-budget/​2014​-2020​_en. EU Budget – The Long-Term EU Budget – 2021–2027 Long-Term EU Budget & Next Generation EU – European Commission, https://​ec​.europa​.eu/​info/​strategy/​eu​-budget/​long​-term​-eu​-budget/​2021​ -2027​_en. Neighbourhood, Development and International Cooperation Instrument – Global Europe (NDICI – Global Europe) – European Neighbourhood Policy and Enlargement Negotiations – European Commission, https://​ec​.europa​.eu/​neighbourhood​-enlargement/​funding​-and​-technical​-assistance/​ neighbourhood-development-and-international-cooperation-instrument-global-europe-ndici-globaleurope_en. Neighbourhood Wide – European Neighbourhood Policy and Enlargement Negotiations – European Commission, https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbourhood/​neighbourhood​-wide​_ en. Overseas Countries and Territories, https://​ec​.europa​.eu/​international​-partnerships/​where​-we​-work/​ overseas​-countries​-and​-territories​_en. Overview – Instrument for Pre-Accession Assistance – European Neighbourhood Policy and Enlargement Negotiations – European Commission, https://​ec​.europa​.eu/​neighbourhood​-enlargement/​instruments/​ overview​_en. Regional Cooperation with Mediterranean Partners – European Neighbourhood Policy and Enlargement Negotiations – European Commission, https://​ec​.europa​.eu/​neighbourhood​-enlargement/​neighbour hood/southern-neighbourhood/regional-cooperation-with-the-mediterranean-partners_en.

Index

2020 Agenda 50–51 Abaúj-Abaújban EGTC 297 Abkhazia, Georgia 384–5 absorption capacity 177 accession countries 252, 284, 366, 395 conditionality, see conditionality Copenhagen Criteria, see Copenhagen Criteria democratization 196 EU’s double standard in minority rights protection 48, 146, 163, 166–7, 196–7 see also enlargement accession negotiations 132, 163, 168–71 accession partnership agreements 163, 168 Accession Treaty (AT) 170 Achatzi case 94–5 Achbita case 42, 55, 95, 96 acquis communautaire 6–7, 17, 166 Action Line for the Promotion and Safeguard of Minority and Regional Languages and Culture 218 actorness formation 285–6 added value 247–9 advocacy 253 affirmative action 257 African, Caribbean and Pacific (ACP) countries 309, 310, 314, 415–16 agency 39, 54, 56 Agency for Fundamental Rights (FRA) 54 Agenda 2000 168 Åland Islands 309, 319–21, 325 Albania 147, 173, 181, 347, 352, 355, 355–6, 361 Alfonsi, F. 221 Algeria 332 Amsterdam Treaty 21–2, 90, 166, 311 Angonese case 101 animal welfare 96–100 Ankara Agreement 180 Annan, K. 333 Annual Report on Human Rights and Democracy in the World 403 anti-discrimination 149 European Commission 150–52 fundamental rights 6–7, 38–61, 69, 72–4, 198–9 ‘near abroad’ 370, 372–9

antigypsyism 259–60 anti-Muslim hatred 151 anti-Semitism 151 Arbitration Commission of the Conference on Yugoslavia 165 Arfé, G. 130, 218 Ariane Programme 239, 240–41 Aristotle 87, 399 Armenia 372, 379–80 Association Agreements 132, 372, 373, 374, 379, 413 Association of European Border Regions 305 asylum seekers 68, 252 autonomous territories, see special territories Azerbaijan 372, 379–80 Azores 312, 313, 325 Badinter Commission 165, 349 Balfour, R. 370 Balkans, see Western Balkans Balladur, E. 164 Basque National Liberation Movement 333 Basque region 291, 295, 296, 333 Bauböck, R. 339–40, 340–41 Beirens, H. 77 Belarus 372, 379, 381 Bellamy, R. 195 Berne Canton 338–9 Bickel–Franz case 19, 102 Bieber, F. 176 bilateral agreements 67–8, 73, 78, 116, 196, 231, 348 accession partnership agreements 163, 168 Association Agreements 132, 372, 373, 374, 379, 413 PCAs 366–8, 369, 379, 381, 386 SAAs 171, 350–51 special territories 318–19, 322, 325 Western Balkans 171, 348, 350–51 bilateral disputes 173, 179–82 Björkdahl, A. 394 borders 289; see also cross-border cooperation; debordering Börzel, T. 177 Bosnia and Herzegovina (BiH) 182, 353–4, 355, 358–9, 360, 361 Bougnaoui case 42, 55, 95, 96

423

424  Research handbook on minority politics in the European Union breaches of rule-of-law mechanisms 44–5 Brewer, M.B. 194 Brosig, M. 178 Brusis, M. 198 ‘Brussels effect’ 323 Budd, D. 255 Bulgaria 147, 180, 181, 182 Calligaro, O. 245 Cameroon 407 Canary Islands 311, 312 candidate countries 2, 8, 20–21, 122, 133, 146, 163–4, 167–75, 177–9, 182–3, 196–7, 204, 252–5, 257, 330, 348, 409 capacity building 391–3 Capotorti, F. 65, 84–5 Carrera, S. 77 Catalonia 11, 291, 331, 335–6, 337, 342 Centraal Israëlitisch Consistorie van België case 98–9 Ceuta 320, 323–4, 325 chain of legitimacy 192 CHEZ case 41, 90, 91–2 Charter of Fundamental Rights (CFR) 22, 27–8, 45–6, 71–2, 79, 80, 121, 136 Article 21 22, 27–8, 45–6, 52, 65, 71–2, 118, 149, 166, 198, 216 Article 22 28, 46, 72, 88, 100, 216 freedom of religion 98 ‘Charter of the Rights of Ethnic Minorities’ (draft) 19–20, 130 Christianity 400 citizenship 38 argument on internal enlargement 340–41 civic 67–8 defining minority 65–6 EU citizenship 62, 67–8, 194–6, 200–201 national 38, 68 civic citizenship 67–8 civil society 406 Çiygoz, A. 384 co-determination 70–71 cohesion 9–11 linguistic diversity and 226–7 regional policy and promotion 273–7, 285 unity, diversity and 78–81 versus regionalism 334–6 collective action 300 collective identity 79–80 colonization 400–401 Commission on Human Rights Subcommittee on the Protection of Minorities and the Prevention of Discrimination 117 Committee on the Elimination of Racial Discrimination/C (CERD/C) 92–3

Committee of the Regions 200, 305, 309, 310, 313, 321, 335, 337 common constitutional traditions 121–2, 124 common cultural heritage 234–6 Common European Asylum System (CEAS) 68, 77 ‘Common European Framework on Migration and Asylum Management’ 77 Common Fisheries Policy 322 Common Foreign and Security Policy (CFSP) 164 Common Security and Defence Policy (CSDP) 311 Common Spaces 381–2 communication with citizens, languages of 217 Community Assistance for Reconstruction, Development and Stabilisation (CARDS) programme 350 competence structure 29–30 Comprehensive and Enhanced Partnership Agreement (CEPA) 379 conditionality 8, 119–20, 163, 164–7, 171–2, 182, 183 Copenhagen Criteria, see Copenhagen Criteria democratic 196 improving the situation of Roma 253–6 integration capacity 177–9 and minority rights in the Western Balkans 11, 347–64 and normative pressure 174 Conference on Security and Cooperation in Europe (CSCE) 139, 162, 165, 178 conferral principle 16–17 conflict EU as manager of internal conflict 332–4 prevention 414–15 Russia’s actions in the near abroad 383–6 conservative neutrality 341, 342 Constitutional Convention 2002–03 336–7 constitutional design 352–5 constitutional law 215–16 Constitutional Treaty 23, 121 constructivism 194 consultation 70–71 Roma 263–4 cooperation cross-border, see cross-border cooperation global development 11–12, 398–422 Copenhagen Criteria 8, 20, 21, 47–8, 119, 122–3, 131–2, 146, 147, 164, 167–8, 171, 177, 182, 183, 253, 284, 366, 410 Copenhagen Declaration on European Identity 193 Corsica 332–3

Index  425 Cotonou Agreement 416 Council of Europe 54, 162, 178, 219 cultural policy 231–2 definition of minorities 65–6, 134 participation and EU regional policy 284–5 Council of the European Union 3, 7–8, 128, 129, 140–42, 162–3, 192 cultural policy 232 linguistic diversity and language rights 220, 221 Resolution on the horizontal aspects of culture 238 secession 341, 342 West Balkans 349–50 Court of Justice of the EU (CJEU) 7, 56, 84–111, 113, 217 culture 230, 232, 236, 237–8 freedom of religion 96–100 linguistic rights and linguistic minorities 100–103 minority protection’s overarching principles 86–9 protection against invidious discrimination 90–96 respect for identity and national constitutional identities 103–6 Creative Europe Programme 224, 245, 248 Crimea annexation of 382–3 violation of rights of Crimean Tatars 383–4 Croatia 122–3 accession 173, 180, 182–3 EU conditionality and minority rights 349, 352–3, 355–6, 359, 360, 362 cross-border cooperation 10 debordering 291–2, 293, 294–300, 303–6 regional policy 277, 280–81, 283–4 cultural diversity 43, 236–9, 242–3, 245–6, 248, 273, 275 cultural heritage 234–6 cultural minorities 55–6 cultural policy 3, 9, 230–49 action programmes and other sources 240–47 characteristics 247–9 first steps 232–3 fundamental provisions 233–40 regional initiatives 231 role of the Council of Europe 231–2 taking cultural aspects into account 236–8 culture 29, 169 concept of 230 cross-border cooperation 300 Culture Programmes 239, 243–7 customary international law (CIL) 113, 120–21, 122

Cyprus 179, 180, 182, 333–4 Northern Cyprus 320, 324–5, 332, 333–4 D.H. and Others v the Czech Republic 26 Dalsass, J. 130 data collection 262 De Búrca, G. 155, 195 De Witte, B. 166, 394 debordering 10, 289–308 kin-state activism 10, 289, 290–94, 300–306 limits and potential of the EU 303–4 strategies in minority contexts 290–94 substate diplomacy 10, 289, 290–300, 303–4 Decade of Roma Inclusion 78, 257, 263 Decision on a European Year of Cultural Heritage 235–6 Declaration on Yugoslavia 1991 349 decolonization 401 deeper engagement approach 372–9 definitions of minority 5–6, 64–6, 84–6, 134 democracy Maastricht Treaty and 20–21 and minority rights in the West Balkans 362 as a vehicle of the inclusion of minorities 201–4 democracy deficit 192–3, 195–6 democratic conditionality 196 democratic deficit 195–6 democratic participation 57 democratization 8–9, 190–209 of applicant and partner countries 196 EU double standard in minority rights protection 196–7 individual rights 200–201 institutional representation of minorities 199–200 problems of the European demos, European identity and union citizenship 193–6 value of respect for minority rights 198–9 ‘demoicracy’ 194 Denmark 315 Faroe Islands 320, 321–3, 325 Greenland 315–18 South Schleswig region 280–81 depoliticization 2 Deported Meskhetians (DMs) 386–8 development fostering socio-economic development 296 global development cooperation, see global development cooperation Development Cooperation Instrument (DCI) 404, 408–9, 417, 418 development policy 147–8 direct discrimination 72–3, 91–2, 95–6

426  Research handbook on minority politics in the European Union Directive 2000/43 (Racial Equality Directive, RED) 22, 40–41, 72–4, 88, 90–93, 222, 256–7 Directive 2000/78 (Framework Equality Directive, FED) 22, 41–2, 56, 90, 93–6 Directive 2003/86/EC (Family Reunification Directive) 74, 75–6, 93 Directive 2004/38 42 Directorate General for Translation 225 discrimination 149 anti-discrimination, see anti-discrimination CJEU and protection against invidious discrimination 90–96 direct 72–3, 91–2, 95–6 European Commission 150–52 indirect 72–3, 92, 95–6 racial 90–93 religious 93–6, 151 Roma 251, 252 insufficient attention to 259–60 diversity 9 cultural 43, 236–9, 242–3, 245–6, 248, 273, 275 European Commission initiatives 152–5 law of 272 linguistic, see linguistic diversity minorities and within the founding values and objectives of the EU 24–6 principle of respect for 27–8 right to 69–70 Roma 262 social cohesion, unity and 78–81 Tree Model of diversity governance 80–81 Donnelly, G. 387–8 Dothan, S. 145 double standards 48, 146, 163, 166–7, 196–7 conditionality regarding Roma 255–6 Douglas-Scott, S. 157, 340 dualism 114 eastern enlargement, see enlargement Eastern neighbourhood, see ‘near abroad’ Eastern Partnership (EaP) 369–70 Roadmap 370 Eastern Partnership 3 (EaP3) 372–9 Eastern Partnership Minorities Network (EaPMN) 391–3 EC Treaty (Rome Treaty) 17–18, 21–2, 230, 232, 239, 248, 275, 309 education 29–30, 169, 234, 265 Egenberger case 94 empathy 399–400 employment 48–50 Employment Guidelines 48–9, 282 empowerment 263–4, 273, 278

enforcement, poor use of 152 English language 216, 217, 226–7 enlargement 2, 3, 4, 8, 20–21, 47–8, 122–3, 162–89, 201, 284 conditionality, see conditionality Copenhagen Criteria, see Copenhagen Criteria European Commission 146–7 European Council 139–40 European Parliament 131–3, 135 internal, see internal enlargement phase 3, 4, 128 policy and procedures 167–74 legitimacy of 171–4 revised strategy 2006 171, 173, 177 timeframes and key issues of enlargement waves 179–82 transformative power and integration processes 174–9, 183 Western Balkans, see Western Balkans equal treatment 69, 86–7 Equality Framework Directive (Directive 2000/78) 22, 41–2, 56, 90, 93–6 Erasmus+ programme 224 Erdoğan, R. 180 Eriksen, E.O. 192 Eritrea 407 essentialism 194 Estonia 146, 179 ethnic identity 89 Roma 261–2 ethno-cultural minority groups 2–6 EU citizenship 62, 67–8, 194–6, 200–201 EU-isation 176–7 ‘Europe of the Regions’ discourse 335 European added value 247–9 European Agency on Linguistic Diversity and Language Learning 133 European Agenda for Culture 245 European Bureau for Lesser Used Languages (EBLUL) 20, 131, 218, 223 European Capital of Culture 241–3 European Centre for Modern Languages (ECML) 223, 225 European Charter for Regional or Minority Languages (ECRLM) 16, 117, 119–20, 124–5, 130, 136, 137, 165, 214, 215, 219, 310, 372 ‘near abroad’ linguistic rights and 388–91 European Citizens’ Initiatives (ECIs) 31, 201–3, 337 MSPI, see Minority SafePack Initiative (MSPI) European Commission 3, 8, 144–61 accession to the EU 168–9

Index  427 Action Plan on Integration and Inclusion 77–8 Anti-Racism Action Plan 150 ‘A Common Agenda for Integration’ 70 Communication on Non-Discrimination and Equal Opportunities for All 50 cultural policy 232–3, 238–9 expansive approach to minority rights protection 144–6 external relations 146–8 enlargement 146–7 internal dimensions of engagement with minority rights 148–55 anti-discrimination actions 150–52 diversity initiatives 152–5 legal framework 149–50 linguistic diversity and language rights 219–20, 223–4 A New European Agenda for Culture 246–7 role in minority rights 155–7 European Commission against Racism and Intolerance (ECRI) 259 European Conference 167 European Consensus on Development 416 European Convention on Human Rights (ECHR) 19, 26, 27, 47, 55, 117, 120–21, 136, 165 European Council 7–8, 128, 131, 138–40, 142, 162–3, 219 Declaration on Human Rights 166 Luxembourg 1997 167, 179, 180 Luxembourg Presidency Conclusions 139 Madrid 1995 167 European Court of Human Rights (ECtHR) 19, 55–6, 94 European Court of Justice (ECJ), see Court of Justice of the EU (CJEU) European Cross-Border Mechanism 305 European Cultural Convention 231 European cultural heritage 234–6 European Day of Languages 225 European demos 193–6 European Development Fund (EDF) 12, 404, 408, 415–16, 417, 418 European Economic Community (EEC) 230 European Employment Strategy (EES) 48–50 European Free Alliance (EFA) 199–200, 336–7 European Grouping of Territorial Cooperation (EGTC) 283–4, 290, 291, 295, 296, 304, 305 EGTC regions (EGTCs) 296–300, 304–5 European identity 193–6 European Indicator of Language Competence 223–4

European Instrument for Democracy and Human Rights (EIDHR) 371–2, 404, 405–8, 417, 418 European Language Equality Network (ELEN) 223 European Language Label 225 European Neighbourhood Instrument (ENI) 405, 411–14, 417, 418 European Neighbourhood and Partnership Instrument (ENPI) 371 European Neighbourhood Policy (ENP) 11, 25, 367, 369, 380, 412 Action Plans 413 European Parliament (EP) 3, 7–8, 128, 129–38, 142, 156, 165, 192 Arfé Resolution 218, 219 breaches of the rule of law 44–5 Committee on Culture 130 Committee on Legal Affairs 130 cultural policy 232 DRF Resolution 44 enlargement impetus 131–3 first initiatives and resolutions on minority rights 130–31 institutional representation of minorities 199–200 Kuijpers Resolution 131, 218–19 language issues 218–19, 219–20, 220–21, 222 mainstreaming minority rights 403 Members of the European Parliament (MEPs) 129, 133, 137 Minority Intergroup 138, 200 parliamentary intergroups 137–8 post-enlargement period 133–7 Resolution on endangered European languages and linguistic diversity (European Parliament) 221 Resolution on minimum standards for minorities in the EU (European Parliament) 52, 222 Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe (European Parliament) 133–4 resolutions on EU–Russia relations (European Parliament) 384–5 Roma 134–5 Russia’s actions in Ukraine 383–4 European Platform for Roma Inclusion 51–2 European public sphere 193 European Regional Development Fund 280, 309 European Roma Policy Coalition (ERPC) 259 European Social Agenda 50–51 European Social Fund 30, 280

428  Research handbook on minority politics in the European Union European Union law 7, 112–26 and minority rights 115–16 minority rights in 118–23 in relation to international law 112–15 European Year of Intercultural Dialogue 242 European Year of Languages 219, 225 Europeana project 236 Europeanization 176–7 Euroregions 291 Euroscepticism 293 existence, right to 69 expansive approach to minority protection 144–6 external incentives model 178 Family Reunification Directive 2003/86/EC 74, 75–6, 93 Faroe Islands 320, 321–3, 325 federalism 191–2 Ferreira, E. 334 Feryn case 40–41, 90–91, 92 Fidesz government 301, 302 financial and economic crises 331, 335 Finland 319–21 fisheries 315, 318, 322 Follesdal, A. 192, 195 food labelling 99–100 ‘Fortress Europe’ 323–4 founding values 24–6 Framework Convention for the Protection of National Minorities (FCNM) 5, 16, 31, 39, 85–6, 117, 119–20, 124–5, 136, 137, 145, 165, 214, 215, 274, 281–2, 284–5, 310 Framework Decision on Racism and Xenophobia 43 Framework Equality Directive (FED, Directive 2000/78) 22, 41–2, 56, 90, 93–6 Framework for National Roma Integration Strategies (NRIS) 51, 150, 257–65 France 7, 147, 295, 305 Corsica 332–3 ICCPR 119, 124 Roma 46, 54, 151–2 free movement rights 107 freedom 169 freedom of religion 93–4, 96–100 French Guiana 311, 312 fundamental rights 6–7, 38–61, 87–8, 120–21, 165, 169 after the Lisbon Treaty 26 EU legal references to minority protection and 40–47 evolving nature and needs of minority rights protection 38–40 and non-EU minorities 7, 62–83

categorizing their fundamental rights 69–71 instruments and mechanisms 71–8 persisting gaps vs opportunities for development 53–7 pre-Lisbon period 17–20 soft law normative tools 47–53 see also human rights Fundamental Rights Agency (FRA) 63, 65–6, 258 Galbreath, D. 197 Garcia Avello case 105–6 general principles of law 114 Georgia 366, 372–9, 380, 394 Deported Meskhetians 386–8 ECRML ratification 388–9 Russia’s actions in 384–5, 386 Gergely, D. 265 Germany 181 South Schleswig region 280–81 Gheorghe, N. 258 global development cooperation 11–12, 398–422 EDF 12, 404, 408, 415–16, 417, 418 funding and the EU as an actor 399–402 mainstreaming human and minority rights 402–16 programmes under Global Europe 404–15 Global Security Strategy 385–6 globalization 239 governance multilevel 192, 277–9 regional policy 277–9 Grabbe, H. 174 Greece 180 Green Deal 402 Greenland 315–18, 325, 336 Groenendijk, K. 76 Groener case 101, 104 Guglielmo, R. 254–5, 256 Gulakova, B. 379 Guy, W. 146–7, 264 Hammarberg, T. 387 headscarves, Islamic 41–2, 95–6 Helsinki Goup 179 Henrard, K. 137 heritage, cultural 234–6 Herrmann, R. 194 High Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance 43, 52 Hillion, C. 173, 177, 198, 199 historical memories 297 Hix, S. 192 Hoch-Jovanovich, T. 201, 275, 281, 282

Index  429 Horvath, E. 394 Hoxha, E. 347 Hughes, J. 172, 254, 391 human rights 142, 157, 165, 275 CJEU 88, 106–7 Eastern Partnership 370 European Commission 147–8 European Parliament approach 136 EU’s role in 155 mainstreaming in global development cooperation 402–16 minority rights as 117–18 minority rights in EU law 118–23 Roma 252–3 Russia’s violations of in Ukraine 383–4 Tree Model 80 without minority rights 17–20 see also fundamental rights; minority rights Human Rights Watch 77 Hungarian minority in Romania 283 Hungary 152, 179 Act on Hungarians Living in Neighbouring Countries 2001 (Status Law) 302 border area with Slovenia 296, 297 Citizenship Act amendment 2010 302 EGTCs 296, 297, 299 kin-state activism 301–3 Hurrelmann, A. 194 Huskic case 93 Ibn Khaldun 399 ‘icebox effect’ 164 idealistic phase 3, 4, 128, 129–30 identity collective 79–80 ethnic 89 positive Roma ethnic identity 261–2 European 193–6 language and 213 national constitutional identities 89, 103–6 respect for 85, 86, 87, 103–6 right to 69–70 implementation gap 254–5 inclusion 57 democracy as a vehicle of 201–4 social 30 socio-economic 48–53 indirect discrimination 72–3, 92, 95–6 individual rights 200–201 institutional representation of minorities 199–200 institutionalization of cross-border cooperation 295–6 Instrument Contributing to Stability and Peace (IcSP) 405, 414–15, 417

Instrument for Pre-Accession Assistance (IPA) 350 IPA II 404, 409–11 integration cultural policy 247, 248 and federalism 191 functionalist approach 191 fundamental rights and non-EU minorities 7, 62–83 linguistic diversity 226–7 processes and enlargement 174–9 soft law and the Framework for National Roma Integration Strategies 257–65 integration capacity 177–9 integration requirements 75 interest representation 264 internal enlargement 10–11, 330–45 cohesion vs regionalism 334–6 EU as manager of internal conflict 332–4 non-politics of 336–7 theoretical perspectives and debates 338–41 internalization phase 3, 4, 128–9 International Commission for European Citizens 337 International Conference on Former Yugoslavia (ICFY) 349 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 70 International Covenant on Civil and Political Rights (ICCPR) 70, 117, 118–19, 124 international law 7, 112–26 EU law in relation to 112–15 minority rights as human rights 117–18 rules and regulations on languages 215–16 soft-law-type sources and the EU 123 international NGOs 253 INTERREG Programme 280, 295 invidious discrimination 90–96 racial 90–93 religious 93–6, 151 IR case 94 Islamic headscarves 41–2, 95–6 Italy 291–2, 295, 305 Roma 54, 151–2 Iusmen, I. 259 Jacquot, S. 285 Joint Declaration on fisheries 318 Joint Declaration on fundamental rights 165 Joint Partnership Priorities 379–80 Jordan 413–14 judiciary 169 Jura 338–9, 340 justice 169

430  Research handbook on minority politics in the European Union Juvenes Traslatore 225 Kadi I case 113–14 Kadi doctrine 114–15 kafala adoption 106 Kaleidoscope Programme 239, 240–41 Kamberaj case 42–3, 93 Keating, M. 282, 291, 292, 339–40 Kelley, J. 174 Khurtsidze, N. 379 Killiea, M. 131, 219 kin-state activism 10, 289, 290–94, 300–306 Klípa, O. 263 Knox, P. 401 Kochenov, D. 172–3, 195, 199 Kolchenko, O. 384 Kosovo 181, 182, 353, 354, 355, 356, 358, 359, 360, 411 Kostadinova, G. 259 Kovats, M. 258, 261, 262 Kuijpers, W. 131 Lahuerta, S.B. 256 language cross-border cooperation 296–7, 300 international rules and regulations 215–16 linguistic component of national identity 104–5 management 213–16 minority languages in the EU 211–13 official languages 211–12, 214, 216–17, 226 Language Charter, see European Charter for Regional or Minority Languages (ECRML) language policies 9, 213–27 EU language policies 216–27 institutional framework 217–22 legal framework 216–17 and programmes 223–5 language rights 20 CJEU 100–103 linguistic diversity and 9, 211–29 ‘near abroad’ 388–91 West Balkans 355–8 Latvia 146, 179 law of diversity 272 legal competences 29–30 legislation–implementation gap 254–5 lesson-drawing model 179 level-differentiated theory of secession 339–40, 340–41 Liebich, A. 302–3 Liga van Moskeeën case 96–8 limited engagement approach 379–81 Lindbergh, L.N. 191

linguistic diversity 20, 43, 132–3, 273, 275 and cultural policy 239–40, 245–6 and language rights 9, 211–29 linguistic justice 227 linguistic minorities 89, 100–103 Lisbon Strategy 282 Lisbon Treaty 3, 6, 17, 23, 103, 116, 120–21, 128, 149, 330, 337 minority protection after 23–31 Outermost Regions 311 Local Border Traffic Regulation 201 local government 264–5 long-term-resident TCNs 63, 68 Long-Term Residents Directive (LTRD) 42–3, 74–5, 76, 77 Lux Film Days 225 Luxembourg 305 Luxembourg Group 179 Maastricht Treaty, see Treaty on European Union (TEU) MacFarlane, N. 394 Macron, E. 332 Madeira 312, 313, 325 mainstreaming 48–50 human and minority rights in global development cooperation 402–16 policies regarding Roma 260–62 Majone, G. 196 Malloy, T.H. 202, 277, 281–2 Manners, I. 174–6, 394 Marchetti, R. 394 market-based development 402 market integration 88–9, 107 Marks, G. 278 Marston, S. 401 Marushiakova, E. 261 Matras, Y. 252 McEvoy, J. 197 McGarry, A. 264 McLaughlin, K. 394 McMichael, P. 402 Medeiros, E. 398–9 MEDIA 2007 programme 244 Mediterranean Union 369 Mejlis 383 Melilla 320, 323–4, 325 Members of the EP (MEPs) 129, 133, 137 Mercator European Research Centre on Multilingualism and Language Learning 219, 223 Meskhetians, Deported 386–8 Migrant Workers’ Convention 75–6 migration 63 Roma 251–2

Index  431 see also non-EU minorities Millennium Promise 398 ‘Minorities in Russia: Developing Languages, Culture, Media and Civil Society’ programme 389 minority, definitions of 5–6, 64–6, 84–6, 134 minority councils 361 minority languages 211–13, 226–7 Council of the EU 141–2 European Parliament 130–31, 132–3 see also language; language policies; language rights; linguistic diversity minority political parties 282–3 minority protection 64–5, 272–3 after the Lisbon Treaty 23–31 European Parliament 136–7 fundamental rights and, see fundamental rights overarching principles 86–9 in the pre-Lisbon period 17–23 shift to preservation and promotion 273–5 minority rights and conditionality in the Western Balkans 11, 347–64 double standards 48, 146, 163, 166–7, 196–7 in EU law 118–23 EU law and 115–16 European Commission and 8, 144–61 as human rights 117–18 human rights without union rights 17–20 international minority rights law 7, 112–26 mainstreaming in global development cooperation 402–16 ‘near abroad’ 11, 365–97 respect for as a value 198–9 Roma 252–3 standards in the Western Balkans 348–51 the Treaties and 6, 16–37 Minority Rights Group International (IMRG) 392, 399, 407, 409, 411, 414 Minority SafePack Initiative (MSPI) 30–31, 52–3, 136, 137, 153–5, 156, 200, 202, 248, 283 Minority Schools in Albania Advisory Opinion 86 minority-specific rights 84–6 Minsk Agreements 386 Mirga-Kruszelnicka, A. 259 misfit 178 Mission Opérationnelle Transfrontalière 305 Mogherini, F. 392–3 Moldova 372–9, 380, 389 monism 114–15 monitoring 262 monitoring reports 48, 132, 168–70, 172 Monnet, J. 191

Montenegro 123, 181, 352, 353, 355–6, 356–7, 359, 411 Moraes, C. 133 Morano-Foadi, S. 73 Moravcsik, A. 195 Morocco 103–4, 323, 324 Möschel, M. 92 ‘Mother tongue + 2’ objective 225 multilevel governance 192, 277–9 Muraba EGTC 296, 297 Muslim Feast of Sacrifice 96–7 Muslim women 54–5, 56 Islamic headscarves 41–2, 95–6 Mutsch, R. 102 Nagy, J. 136 nation-building 347–8, 352–61 National Action Plans (NAPs) 49 national citizenship 38, 68 national constitutional identities 89, 103–6 National Liberation Front of Corsica (FLNC) 332 National Minorities Councils 361 national minority regions (NMRs) 202–3 National Roma Strategic Frameworks (NRSF) 51 national sovereignty 121, 183 nationalism 293 ‘near abroad’ 11, 365–97 EU’s diverging regional approach 372–86 deeper engagement 372–9 limited engagement 379–81 Russia 372, 381–6 practical engagement on minority issues 388–93 principal EU documents and structures with reference to minority rights 366–72 negotiated secession 338–41 Neighbourhood, Development and International Cooperation Instrument (NDICI) 417–18 new minorities 6, 53, 65–6; see also non-EU minorities Nicolae, V. 260 Nicolaïdis, K. 194 Nirenberg, J. 263 non-discrimination, see anti-discrimination non-EU minorities 7, 42–3, 52, 53–4, 62–83 categorizing fundamental rights of 69–71 categorizing a very heterogeneous group 64–8 EU Pact on Migration and Asylum 76–8 EU standards on fundamental rights and non-discrimination 71–4 fundamental rights and instruments specifically designed for 74–6 non-governmental organizations (NGOs) 263, 264

432  Research handbook on minority politics in the European Union international 253 norm diffusion 174–5, 394–5 normative ethics 175–6 normative pressure 174–6 North Macedonia accession 147, 173, 180–81, 182, EU conditionality and minority rights 349, 353, 354, 355, 357–8, 360, 361 Northern Cyprus 320, 324–5, 332, 333–4 Northern Ireland 333 OABA case 99–100 objectives of the Union 24–6 OCT Association (OCTA) 314, 326 OCT-EU Forum 314 official languages 211–12, 214, 216–17, 226 official monolingualism 211, 213 official multilingualism 211 old minorities 6, 53, 66 one-sided minority situations 299 one-sided multiple minority situations 299 O’Nions, H. 257 Open Method of Coordination (OMC) 50, 153, 156, 282 cultural policy 245 democracy as a vehicle of inclusion 201, 203–4 Roma 150, 259 opportunity structures 278–9, 294 organic food labelling 99–100 Organization for Security and Cooperation in Europe (OSCE) 54, 165, 178, 351 High Commissioner on National Minorities (HCNM) 16, 351 Oslo Recommendations regarding the Linguistic Rights of National Minorities 214–15 Outermost Regions 10, 309, 310–13, 325, 326–7 Overseas Countries and Territories (OCTs) 10, 309, 310, 313–18, 325, 326–7 Pact on Migration and Asylum 68, 76–8 Palermo, F. 71 paradiplomacy 10, 289, 290–300, 303–6 Paris Charter 165 parliamentarization 192–3 participation 57, 86–7, 272, 274–5 political in the West Balkans 358–61 regional policy 274, 280–83, 285 as support for 275–7 right to 69, 70–71 Roma 263–4 Partnership and Cooperation Agreements (PCAs) 366–8, 369, 379, 381, 386 Partnership Instrument (PI) 405, 415, 417 partnership principle 278

Partnership Priorities (PP) 413 Partnership Working Parties 314 peace-building 414–15 PEACE programme for Northern Ireland 333 Peers, S. 75 Permanent Court of International Justice (PCIJ) 86 permissive consensus era 190–91 Poland 44, 152 political participation 358–61 Popov, V. 261 Portugal 312, 313 post-colonial states 401 Poulsen and Diva Navigation case 113 Prais case 93–4 pre-determination 5 presence 65 preservation 273–5 primary law 6, 16–37 minority protection after the Lisbon Treaty 23–31 minority protection in the pre-Lisbon period 17–23 prior stunning 98–100 problem territories, see internal enlargement procedural ethics 175–6 progress monitoring reports 48, 132, 168–70, 172 promotion 273–5, 285 regional policy as support for 275–7 proportionality 85–6 protection, see minority protection public sphere 193 racial discrimination 90–93 Racial Equality Directive (RED, Directive 2000/43) 22, 40–41, 72–4, 88, 90–93, 222, 256–7 racialized politics 260–61 Racke case 113 Radaelli, C. 176 Ram, M.H. 255 Raphael Programme 239, 240–41 rebordering 290, 293, 305 reconciliation 304 Reding, V. 337 refugees 68 Regional Approach 350 regional cooperation agreements 231 regional policy 9–10, 272–88 and changed form of governance 277–9 cohesion vs regionalism 334–6 FCNM and the EU 284–5 and its programmes in minority-inhabited regions 279–84

Index  433 relevance of EU policies for minority groups 273–5 support for promotion and participation of minority populations 275–7 Regulation 1612/68 40 religion and colonization 400 freedom of 93–4, 96–100 religious dimension of national identity 104 religious discrimination 93–6, 151 religious minorities 54–5, 55–6 religious slaughter 96–100 remedial secession 338, 340 reporting system method 120 rescaling theory of secession 339–40 respect for diversity principle 27–8 responsibility, diffuse and Roma 258 Rezsőházy, R. 235 Roma 9, 54, 55, 63, 74, 78, 250–70, 411 advocacy 253 CHEZ case 41, 90, 91–2 discrimination 251, 252 insufficient attention to 259–60 double standards 255–6 emergence as an EU issue 250–53 EU conditionality to improve the situation of 253–6 European Commission 146, 148, 150–52 European Parliament 134–5 France and 46, 54, 151–2 human/minority rights 252–3 Italy and 54, 151–2 migration 251–2 OMC 150, 259 progress reports in enlargement 172–3 Racial Equality Directive and 256–7 research directions 265–6 soft law tools 51–2 and the Framework for National Roma Integration Strategies 257–65 Roma Education Fund 257 Roma Strategy Framework 135 Romania 132, 180, 282–3 Rome Treaty (EC Treaty) 17–18, 21–2, 230, 232, 239, 248, 275, 309 Rorke, B. 258 Rostas, I. 262, 263–4 Rövid, M. 261 Rüffer case 102–3 rule adoption 178–9 rule of law 57, 362 breaches 44–5 Rule of Law Report 44 Runevič-Vardyn case 41, 105 Russia 372, 381–6, 395

annexation of Crimea and violations of the rights of Crimean Tatars 382–4 Common Spaces 381–2 conflicts in the neighbourhood 384–6 ECRML 389–90 PCA 367, 386 Russian speakers in Estonia and Latvia 171–3 Sahrawi people 103–4 Sasse, G. 172, 254, 391 Scheingold, S.A. 191 Schengen border regime 201, 293–4, 301, 302, 324 Schimmelfennig, F. 178–9 Scotland 11, 331, 335–6, 342 Scott, J.W. 289 sealskin ban 315–18 secession 11, 331–2, 337, 338–42; see also internal enlargement Seidelmeier, U. 178–9 security 169 concerns 395 relations with Russia and 381–6 IcSP 404, 414–15, 417 segregation 54–5, 261 selectivity 150–52, 157 self-determination 5 Sekler National Council 202–3 Sentsov, O. 384 separatism 331 Serbia 181, 182, 352, 355–6, 359, 411 Sidjanski, D. 191 sign languages 212, 221 Single European Act 19, 165 Single European Market 311 Single Support Framework (SSF) 412–13 Sinti minority 78 Slovakia 146 SM v Entry Clearance Officer, UK Visa Section 106 Smith, J. 190–91 Smith, M. 394 social capital 56–7 social cohesion, see cohesion social development 121–2 social inclusion 30 social learning model 178 socio-economic development 296 socio-economic inclusion 48–53 soft law 57, 58, 273–4 and the Framework for National Roma Integration Strategies 257–65 international minority rights law 123 normative tools linking fundamental rights and minority protection 47–53

434  Research handbook on minority politics in the European Union solidarity 77 Sólyom case 114–15, 124 Sørensen, E. 1, 2 South Ossetia/Tskhinvali region 384–5 South Schleswig region 280–81 South Tyrol 291–2, 296, 332 sovereignty 121, 183 Spain 141–2, 292, 295, 305 Basque region 291, 295, 296, 333 Catalonia 11, 291, 331, 335–6, 337, 342 Ceuta and Melilla 320, 323–4, 325 special rights 118–23 special territories 10, 309–29, 336 comparative outlook 325–6 Outermost Regions 10, 309, 310–13, 325, 326–7 Overseas Countries and Territories 10, 309, 310, 313–18, 325, 326–7 sui generis territories 309, 310, 318–25, 326–7 Spirova, M. 255 Stabilisation and Association Agreements (SAA) 171, 350–51 Stabilisation and Association Process (SAP) 170–71, 348, 350, 362 Stability Pact of 1999 350 state 85 state sovereignty 121, 183 Status Law (Hungary), see Act on Hungarians Living in Neighbouring Countries 2001 Stauffenberg, Count 130 stigmatization of Roma 260–61 Stockholm Programme of 2010 148 Stork, S. 392 Strategic Framework on Human Rights and Democracy 147 substate diplomacy 10, 289, 290–300, 303–6 sui generis territories 309, 310, 318–25, 326–7 Surdu, M. 261 surnames 104, 105–6 Sustainable Development Goals (SDGs) 399 Sustainable Fisheries Partnership Agreement 318 Switzerland 338–9 Tampere European Council 67 targeting 260–61 need to identify the target group 262 Tárnok, B. 202, 203 Tatars, Crimean 383–4 Technical Assistance to the Commonwealth of Independent States (TACIS) programme 366, 368–9, 371 Territorial Agenda 2030 334 territorial cohesion 334 territorial disputes 332–4

third-country nationals (TCNs), see non-EU minorities Tito, J.B. 347 Tocci, N. 394 Toggenburg, G.N. 2–3, 128, 394 Topidi, K. 252 Torfing, J. 1, 2 Tóth, J. 201 trade policy 147 transformative power 174–9, 183 transparency, lack of 193 Treaty development 6, 16–37 minority protection after the Lisbon Treaty 23–31 minority protection in the pre-Lisbon period 17–23 Treaty on European Union (TEU) (Maastricht Treaty) 20–21, 103, 149–50, 166, 403 Article 2 24–6, 46–7, 57, 65, 116, 118, 149, 198, 216, 286 Article 3 24–6, 43, 149, 276 Article 6 26, 47, 120 Article 7 44–5, 149, 156 Article 13 40 Article 17 144 cultural policy 233 enlargement 330–31 EU citizenship 194–5 regional policy 275, 276 Treaty on the Functioning of the EU (TFEU) 29–30, 43, 195 Article 17 94 Article 19 29, 45–6, 52, 149 cultural policy 230, 233–4, 236–7, 238 languages 216, 217 regional policy 276 special territories 311, 314, 318 Treaty interpretation, methods of 145 Tree Model 80–81 Tremlett, A. 250 tripartite meetings 314 Tskhinvali region/South Ossetia 384–5 Turkey 180 Turkish Cypriots 324–5, 333–4 two-sided minority situations 299 two-sided multiple minority situations 299 Tyrol–South Tyrol–Trentino EGTC European Region 296, 297 Ukraine 371, 372–9, 380 Language Law of 2012 390–91 Russian actions in Eastern Ukraine 382–4, 386 unemployment 48–50 unequal global development 398

Index  435 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 237, 238–9 Union citizenship 62, 67–8, 194–6, 200–201 United Kingdom (UK) Northern Ireland 333 Scotland 11, 331, 335–6, 342 United Nations (UN) 399 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 5 decolonization and development 401 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 70 International Covenant on Civil and Political Rights (ICCPR) 70, 117, 118–19, 124 Sub-Commission on Prevention of Discrimination and Protection of Minorities 5 unity 78–81 Universal Declaration of Human Rights (UDHR) 117 usages of Europe 285 values 235 founding 24–6 respect for minority rights as a value 198–9 Van Baar, H.J.M. 261, 265 Van der Stoel, M. 62

Van Rompuy, H. 337 Varennes, F. de 66 Venice Commission 351, 390–91 Vermeersch, P. 261 Vienna Convention on the Succession of States in Respect of Treaties 338 visa liberalization process (VLAP) 373–9, 390–91 Vizi, B. 120, 200 Wakelin, E.M. 197 Walker, N. 341 Wallace, W. 190–91 Waterbury, M.A. 199, 302 Weiler, J.H.H. 195 welfare state 335 Western Balkans 11, 170–71, 347–64 conditionality and minority rights future for 361–2 standards 348–51 minority accommodation 352–61 constitutional design and 352–5 linguistic rights of national minorities 355–8 right to political participation 358–61 Woelk, J. 71 Woll, C. 285 Work Plan for Culture 2019–2022 247 World Bank 259 xenophobia 418