Minority protection as a value of the EU (but lacking normative content)

As indicated above, the requirements for respecting minority rights within EU internal law are not as strong as the requirements found within the conditions for accession, in that internally, EU member states are not required to demonstrate 'respect for and protection of minorities' in order to remain members of the Union, and the Union has no explicit 'competence' in the field of minority protection. However, this is not to say that EU internal law has no relevance for minority protection: in fact that link has increased in recent years.

In the first place, EU 'aims' and 'values' indicate the importance to the EU of minority protection and diversity. Both historically and today, the predominant aims of the EU Treaties have been market integration and economic progress. EU preambles pre- and post-Lisbon are dominated by references to economic achievements. However, over the course of the last two decades, other values emerged, which hinted at the importance of diversity as a foundation of the EU entity. Already pre-Lisbon, these included non-discrimination and equality (equality being a significant aspect of minority protection) and also the rule of law, democracy and human rights (preamble and ex Article 2 TEU) as well as peace and security (preamble TEU 1993) and respect for cultural diversity (preamble TEU 1993, Article 3 of the Treaty establishing the European Community).

Since 2009, the EU Treaties express an even stronger commitment to human rights in general (being 'deeply rooted in human rights', Piris, 2010: 71), but also to minority protection. Article 3 TEU declares respect for linguistic diversity, giving effect to the battle for recognition of the importance of linguistic diversity which has ensued in the EU since at least 1981 (European Parliament, 1981). The provision finds support in Article 55(2) TEU, which now provides for the EU Treaty to be translated into languages which enjoy official status in all or parts of member states' territories, and contributes to the pre-Lisbon acceptance of certain minority languages as official or working languages of the EU. Letzerburgesch can be used as a language of communication between EU institutions and EU citizens; Spanish regional languages have written communication status in relation to the European Parliament, EU Council (Council) and Commission. With the Treaty of Lisbon amendments, there is also a heightened emphasis on the institutional (and not only the individual) dimension to equal treatment. Article 4(2) TEU requires the EU to respect member states' regional and local self-government structures, going further than pre-Lisbon law which acknowledged the importance of member states' national identities only (ex Article 6(3) TEU). The Charter of Fundamental Rights (CFR) of the EU also confirms that the EU sees 'diversity of the cultures and traditions of the peoples of Europe' as a key component of the Europe it endeavours to create (preamble, Recital 3).

Article 2 TEU, however, is the provision of most interest to this section of this chapter, according to which 'the EU is declared to be founded on... respect for... the rights of persons belonging to minorities.' Article 2 TEU marks a groundbreaking development in the field of EU minority protection. It breaks a prolonged silence in EU Treaty law on the topic of minority protection, and also acknowledges the fundamental and distinguished place of minority protection in EU identity, by according to it the status of a founding value. A breach of Article 2 values may lead to the potential investigation of an EU member state's actions under Article 7 TEU and may, inter alia, lead to the suspension of that state from the Union (in reality, Article 7 TEU will rarely be invoked). Article 2 TEU is also supported by new Article 49 TEU, which for the first time moves the achievement of minority protection as a condition of accession to the EU from a political to a legal obligation. Thus, Article 2 TEU, with its supporting provisions, arguably demonstrates the explicit importance given to minority protection as a key aspect of the EU project.

Nonetheless, Article 2 TEU harbours numerous shortcomings, including its lack of content on the terms minority and minority rights, and that it is not a competence provision (thus ensuring that such content cannot be elaborated in legally binding terms). One of the strongest points of disappointment is that, although adopted in 2009, Article 2 TEU has not led to a surge of policy developments from the EU in relation to minority protection. Whilst the EU Fundamental Rights Agency took an active lead in collecting data on minorities and providing analysis of the EU legal mechanisms which can encompass minority protection (Fundamental Rights Agency, 2011), the Commission has devoted merely half a page to the issue on the website of Directorate General Justice (European Commission, 2013j). Whilst the EU may not wish to offer concrete normative content for minority protection, some boundaries must be laid out for the place of minority protection in the EU - boundaries which have been long awaited and are required to bring some order and clarity to EU action in this field. Article 2 TEU provided the perfect impetus for the EU institutions to articulate such boundaries, and at the time of writing, appears to be an opportunity missed by the EU.

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