The emergence of minority rights in the EU: EU enlargement
Minorities existed in European states before the establishment of the EU, and thus have been part of the EU since its creation. The issue, however, came onto the agenda only in the 1990s, when, with the collapse of Communism in Central and Eastern Europe, new states - seeking admission into the EU - grappled with new found freedoms, political tensions and ethnic conflicts. Given the prospect of these states joining the EU, tackling the instability of the region caused by, inter alia, minority rights issues, was of paramount concern for the EU enlargement procedure. Consequently, in 1993, the European Council concluded the Copenhagen criteria, which laid down the accession conditions that candidate states should meet before they could join the EU (European Council, 1993; for analysis, see Rechel, 2008). The respect for and protection of minorities constituted one criterion that made clear to the world that minority protection was a significant interest of the EU (although the minority protection element of accession was not given legal force in the Treaties until the Treaty of Lisbon in 2009).
The implementation of the Copenhagen criteria consisted of, inter alia, an accession partnership agreement for each candidate state (identifying specific targets for each state - including in the field of minority protection) and the Phare programme, which provided financial assistance to states towards accession. However, a comprehensive or effective EU 'strategy' on minority rights was missing. The EU did not have its own standards of minority rights, and throughout the 1990s appeared to operate without any concrete benchmark. In Agenda 2000 (European Commission, 2000b), the European Commission (Commission) often made reference to the European Convention on Human Rights (ECHR), which does not include specific minority provisions. However, reliance was gradually placed on the standards of the Council of Europe (CoE)'s Framework Convention for the protection of national minorities (FCNM) (see further, Hillion, 2008: 1-15).
The lack of EU expertise in minority rights standard-setting, and also in the aspect of monitoring, was criticised in numerous sources as failing to provide clear guidelines for minority protection, which could be clearly tested. Instead the Commission was accused of lacking clarity and applying low and inconsistent thresholds in relation to minority protection in some candidate countries. For example, Kahn- Nisser (2010: 27-28) points to the fact that both Romania and Poland were deemed to have assured minority protection in early years (Poland since 1998 and Romania since 1999), despite the fact that discrimination and violence against Roma persisted in both countries. Topidi argues similarly in relation to Slovakia and Latvia, that the Commission failed to apply rigorous scrutiny to whether changes to law in Slovakia (largely in the field of non-discrimination) sufficed for minority protection and also to understand how a citizenship approach in Latvia 'that jeopardized integration ...and threatened to create a social underclass of non-citizens' might be incompatible with minority rights (Topidi, 2010: 207).
Indeed, states that have joined the EU since the announcement of the 1993 Copenhagen criteria still demonstrate significant minority rights concerns (as also do the pre-1993 member states). However, once inside the Union, the pressure to respect minority rights is reduced, given that no central competence exists in EU internal law on minority protection, despite the growing positive rhetoric within the EU institutions on the value of minorities and minority rights (see e.g. European Commission, 2005h: 3, 10; European Parliament, 2003).1 The lack of an internal competence inspired a whole host of criticisms against the EU; not least, it raised the accusation of double standards between states external to the EU and internal EU member states. This is captured most dramatically by Gower (2000: 227) who observed that, 'If the European Union applied to join itself, it ran the risk of not meeting the Copenhagen Criteria!' (see also Hillion, 2004-2005; de Witte, 2004; Shoraka, 2010).
Today minority rights protection continues to be a condition of EU membership (Article 49 TEU). Recent analysis demonstrates that the EU has developed a strong skill-set in relation to monitoring this field, and works well with the standards set by the FCNM (Hillion, 2008). However, the dichotomy between internal and external obligations in the field of minority protection remains.