Anti-discrimination as the predominant tool for minority protection in the EU
Of the key elements of EU law on minority protection, antidiscrimination law is more significant than other areas of EU law for a number of reasons, including that since the Treaty of Lisbon entered into force, it offers - in legally binding form - specific protection for members of national minorities, under the CFR. EU anti-discrimination law covers grounds of, inter alia, nationality (Article 18 TFEU; Article 21(2) CFR), race and ethnic origin (Article 19 TFEU; Article 21(1) CFR and Directive 2000/43/EC), religion (Article 19 TFEU; Article 21(1) CFR and Directive 2000/78/EC) and membership of a national minority group (Article 21(1) CFR). However, despite the advantages that nondiscrimination brings for members of minority groups, this legal field has several limitations.
The most fundamental protection offered by all these provisions is equal treatment with nationals of the host state to individuals when they travel to another member state. With nationality discrimination, this is almost the sole scenario through which EU protection is triggered, as exemplified by Directive 2004/38 (European Parliament and Council, 2004b), which offers equal treatment with nationals of a host state. This makes the prohibition of nationality discrimination of limited benefit to minorities as (a) members of minorities would need to travel to another member state; and (b) the protection would be required from the host member state. Such a scenario simply does not pertain to minorities who struggle to gain recognition within their home state from their home state.
However, some aspects of the EU's prohibition of nationality discrimination may be of benefit to minorities. Two such aspects are the case law of the Court of Justice of the European Union (CJEU, former European Court of Justice, ECJ) on the spelling of names and its case law concerning regulation in regional minority regimes. In the former, the CJEU recognises that protection of free movement can be served by requiring host states to respect the spelling and format of individuals' names in accordance with their member state of origin.2 Although applying in the cross-border context, these cases thus recognise the importance of identity protection. With respect to protection of regional minority regimes, the 2010 case of Bressol acknowledged that regional minority regimes could withhold their benefits to non-nationals under EU law, on grounds of the viability of that regime (in this case access to medical courses).3 The case contrasts with the earlier attitude of the CJEU in Mutsch and Bickel and Franz,4 where the court held that the benefits of minority protection regimes, in these cases the use of a minority language before courts, must be available to nationals of other member states when they travel to the minority region (thereby making the regime resource-vulnerable). The Bressol case represents a development of EU law which suggests that EU law, in so far as judicial protection before the CJEU is concerned, is open to the idea of the maintenance of minority specific regimes.
There is a second example of EU law on nationality discrimination being of benefit to minority groups. Whilst traditionally applying to protect individuals against nationality discrimination practised by host member states, EU protection against nationality discrimination can also safeguard individuals from discriminatory acts practised by their home member state. This has always been an ambiguous area of EU law. However, cases such as Angonese and Zanotti indicate that EU law against nationality discrimination protects individuals where the individual is excluded from a benefit from his home state as a result of his having exercised free movement rights.5 Thus, in Zanotti, the CJEU held that Zanotti (who had studied abroad) was entitled to the same level of tax relief as students who remained in Italy. Clearly however, the link to free movement across the EU limits the utility of EU law on nationality discrimination for minorities, and thus this avenue is unlikely to relate to the vast majority of minority concerns in the EU.
With respect to other forms of discrimination, EU protection against race, ethnic and religious discrimination applies both in the home and cross-border scenarios and is thus generally of wider application than EU law on nationality discrimination. This means that even if minorities do not move to other member states, they may benefit from the EU's protection. However, each ground of discrimination (nationality, race, ethnicity and religion) is only applicable in certain circumstances, defined by the scope of the TFEU and relevant Directives, that is, Directive 2004/38 - the EU citizenship Directive (European Parliament and Council, 2004b); Directive 2000/43 (Council, 2000a); and Directive 2000/78 (Council, 2000b). Some grounds of discrimination, such as race and ethnicity, have a wide scope of application: Directive 2000/43 applies within the labour market, and also covers areas such as education, social protection including social security and health care, social advantages and access to and supply of goods and services which are available to the public, including housing (Article 3(1)). Religious discrimination is prohibited only in the field of employment in Directive 2000/78. The prohibition of religious discrimination under the CFR is stated as applying within the full scope of EU law. However, the extent to which this will circumvent the limitations of Directive 2000/78 is yet to be tested, given that the wording of Article 52 CFR is that '[t]he 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'.
The ground of national minority status in EU law deserves a separate remark. Article 21 CFR has been legally binding since the Treaty of Lisbon entered in force in 2009. It prohibits discrimination against persons on grounds of their membership of a national minority group. This adds value to the TFEU grounds of non-discrimination, because it would clearly capture, for instance, national minorities based solely on linguistic characteristics. However, the obligation applies to EU institutions, and also to the member states when they act within the scope of EU law (Article 51(1) CFR). This is not therefore a blanket ban on discrimination against national minorities, and perhaps also indicates that a minority policy within the EU is a part of other EU goals and is not an end in itself. Moreover, as noted in relation to religious diversity, the utility of the CFR is still ambiguous, and this poses a general problem overall with the understanding of the implications the CFR has for the protection of minorities.
The above analysis has indicated the diversity of the competences that exist within the EU to tackle acts of discrimination in the EU territory, and while EU anti-discrimination policy is the strongest tool for minority protection in the EU, it remains weak in implementation and enforcement. For example, the notion of equality adopted - formal or substantive - is an important concern. While EU law permits states to practice acts of substantive equality (see Article 5 Directive 2000/43 and Article 7 Directive 2000/78), it does not mandate such action. Another example of unfulfilled implementation of anti-discrimination competences concerns religious freedom. EU anti-discrimination law has a clear prohibition on religious discrimination in employment. Yet, the issue of religious dress is not touched upon. The Commission has issued several reports in the field of race discrimination, including reports which target the renewed discrimination of Roma in Europe (see below) - a contemporary European problem. By comparison, there is a neglect of concern for the contemporary issue of religious discrimination in relation to religious symbols. This sends mixed messages in relation to the importance given by the EU to religious freedom, and as to the role of the EU as a governing institution in the matter.
The EU's anti-discrimination framework is also weak concerning the issue of litigation of group concerns. Opportunities for individuals to litigate breaches of their EU law rights are primarily based at national level. Individuals bring challenges to national courts, following national procedural rules, which are based on the individual litigation model, and
EU law (e.g. Directive 2000/43 or Directive 2000/78) does not mandate states to provide opportunities for group claims, although it does request states to ensure that associations, organisations, or other legal entities may bring action on behalf of victims, 'where they have a legitimate interest' in ensuring that the provisions of the Directive(s) are complied with (Article 7(2) Directive 2000/43 and Article 9(2) Directive 2000/78). Identifying a legitimate interest of an organisation leaves considerable discretion to states in providing locus standi for these collective actions. As a result, national legal systems are still largely immune from considering claims that particular measures or acts discriminate against a group as a whole (although collective claims are permitted in a few member states and have been made; for example, by a consumers' association in Test-Aschat,6 and a national equality body in Feryn).7 This means that progress in correcting 'systemic' wrongs is ad hoc and slow (see Dawson, Muir and Claes, 2012: 286-291).
Addressing group concerns is possible through alternative means within the EU, but these avenues are not wholly reliable means of enforcement or progress. The Commission can bring an action against a member state's failure to comply with EU law under Article 258 TFEU, but the Commission is not legally obliged to do so. Group concerns are also addressed in the sphere of policy. For instance, the EU devotes resources to bringing minority concerns to the public attention. Emphasis on the sufferings of the Roma is a significant example of this (European Commission, 2013k).