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The Treaty of Lisbon and Beyond: The Evolution of EU Minority Protection?

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The Treaty of Lisbon and Beyond: The Evolution of EU Minority Protection?
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  The Treaty of Lisbon and Beyond: The Evolution of EU Minority Protection? By Tawhida Ahmed  Reprinted from European Law Review   Issue 1, 2013 Sweet & Maxwell 100 Avenue Road Swiss Cottage London NW3 3PF (Law Publishers)  The Treaty of Lisbon and Beyond: The Evolutionof EU Minority Protection? Tawhida Ahmed * University of Reading  EU law; Minorities; Minority protection Abstract Thisarticlearguesthatthepost-LisbonEUlegalframeworkbetterequipstheEuropeanUniontobemorereceptive towards the protection of diversity than was the case in the pre-Lisbon European Union. Therelevant aspects of this new framework comprise new EU legal sources, new legal provisions and newdirections in interpretation of EU law. Nonetheless, this article also notes several remaining limitations. Among others, minority protection in EU law is largely dependent upon the standards of protection given(or not given) to minorities within the European Convention on Human Rights system, and most  significantly, within state systems. This dependency severely curtails the autonomous development of a genuine and credible EU minority protection policy. Introduction Minority protection in EU law has always been of a patchwork nature 1 with little by way of an identifiabledirection and, aside from anti-discrimination law, EU law has been absent of direct implications for minorityrights.ThislegalenvironmentreflectedthepoliticalreluctanceoftheEuropeanUniontobecomeinvolved in sensitive minority concerns at national level. Today, although minority protection in EU lawremainsofapatchworknature,thisarticlearguesthatthechangesbroughttoEUlawsincethe2009Treatyof Lisbon develops the European Union’s legal framework on minority rights. 2 As explained by the * My thanks to the Editors and anonymous reviewer for comments. All errors are mine alone. 1 See G. Toggenburg (ed.),  Minority Protection and the Enlarged European Union: The Way Forward   (EURACResearch,OpenSocietyInstitute,2004);K.Topidi,  EULaw,MinoritiesandEnlargement  (Antwerp,Oxford,Portland:Intersentia,2010);K.Shoraka,  HumanRightsandMinorityRightsintheEuropeanUnion (London:Routledge,2010);R. Craufurd Smith (ed.),  Culture and European Union Law  (Oxford: Oxford University Press, 2004); T. Jovanovic,“NationalMinorityGroupsinPost-LisbonEurope:thePresenceof EuropeanisationandTransnationalHumanRightsin One Policy Field”, ECMI Working Paper 56 (January 2012), pp.1–28, available at  http://www.ecmi.de/uploads/tx _lfpubdb/Working_Paper_56_Final.pdf    [Accessed January 3, 2013]; F. Palermo and J. Woelk, “From MinorityProtection to a Law of Diversity? Reflections on the Evolution of Minority Rights” (2003–04) 3  European Yearbook of Minority Issues  5; L. Piccoli, “The European Union and Minority Languages: Evolution, Achievements andContradictions in the Light of the Treaty of Lisbon”’ (2011) 1  Interdisciplinary Political Studies  20; T. Ahmed, “EUGovernance and Minority Rights: Opportunities and Remaining Obstacles”in G. Guliyeva and G. Pentassuglia(eds),“Minority Groups Across Legal Settings: Global and Regional Dimensions” Special Issue (2010) 17  International  Journal on Minority and Group Rights  265; T. Ahmed,  The Impact of EU Law on Minority Rights  (Oxford: HartPublishing, 2011); T. Ahmed and T. Hervey, “The EU, Migration and Cultural Diversity: A Missed Opportunity?”(2003–04) 3  European Yearbook of Minority Issues  43; T. Ahmed, “Demanding Minority (Linguistic) Rights fromthe EU: Exploiting Existing Treaty Provisions” (2009) 15  European Public Law  379. 2 See also K. Drzewicki, “National Minority Issues and the EU Reform Treaty. A Perspective of the OSCE HighCommissioner on National Minorities” (2008) 19  Security and Human Rights  137. (2013) 38 E.L. Rev. February © 2013 Thomson Reuters (Professional) UK Limited and Contributors30  European Union’s Fundamental Rights Agency, “the Treaty of Lisbon puts a new emphasis on persons belonging to minorities and on diversity in general”. 3 Therelevantaspectsofthisnewemphasiscomprise(1)newEUlegalsources;(2)newlegalprovisions;and (3) new directions in interpretation of EU law. As will be illustrated in this article, this post-Lisbonlegal framework better equips the European Union to play a more receptive role towards the protectionof diversity than was the case in the pre-Lisbon European Union, and is arguably all the more noteworthy,given that it has developed within a contemporary climate of legal and political apprehension towardsdiversity and group identity rights. Nonetheless, despite noting that the European Union’s legal powershave expanded, it is also argued in this article that they are still limited in several respects.The most obvious limitation is that the EU Treaties still do not embody a general legal competence onminority rights and do not define the relevant terms. Moreover, the European Union has yet to address its pre-Lisbon failure to exploit its existing legal provisions towards the purpose of minority protection. Inaddition, several aspects of the post-Lisbon framework which can impact on minority rights are guided by standards of (1) the European Convention on Human Rights (ECHR), and (2) the EU Member States.This is not a criticism in itself, because in any given scenario, the applicable standards of the ECHR or theMemberStatesmaybepositiveforminorityprotection.However,thesesystemsmayadoptinadequateminority protection standards. Of greatest concern is that low standards are adopted by a number of Member States. In relation to this, some new EU provisions aim explicitly to safeguard the sovereigntyof the EU Member States, or at least are so closely intertwined with such aim as to prevent genuineadvances being made towards minority protection, beyond the arrangements already accepted withinMember States. In other words, these legal developments, despite advocating respect for diversity, aimonly to preserve the status quo within states, thus preventing the European Union from working towards better minority protection which the state has precluded within national law. In such instances, EU provisions,whichatfirstglance,appeartosupportdiversity,becometoolsfortheentrenchmentofMember States’negativepoliciestowardsminoritygroups.Analysingthisonestepfurther,isthisthentheEuropeanUnion’s way of addressing calls for its engagement in European minority protection while responding tostate concerns for maintenance of sovereignty in the field—two demands which all too often remaincontradictory in Europe?This articleproceeds in the following manner. To analyse effectivelythe post-2009 EU law on minority protection, it first briefly explains some key points regarding the situation of minority protection in EUlawbefore2009—thatispriortotheTreatyofLisbon.Itsubsequentlyevaluatestheminority-rights-relatedchangestotheEuropeanUnion’saimsandobjectivessince2009;post-LisbonsourcesofEUlaw;significantsubstantivechangessince2009;beforeproceedingtoconsiderwhatthesepost-Lisbondevelopmentsmeanfor the evolution of minority protection in EU law. EU minority protection before the Lisbon Treaty The European Union’s relationship with minority rights in legal terms has always been an elusive one.Ontheonehand,theEuropeanUnionhassignalledthehighesteemwithwhichitholdsminorityprotection by requiring that countries in the process of acceding to the European Union must achieve minority protectionasaconditionoftheircandidacy. 4 YettheEuropeanUnionimposednorequirementsofminority 3 European Union Agency for Fundamental Rights,  Respect for and Protection of Persons Belonging to Minorities2008–2010 , (2011), p.24. 4 Copenhagen European Council, June 21–22, 1993, SN 180/93. However, the credibility of the European Union’smonitoring of such protection has been criticised: Topidi,  EU Law, Minorities and Enlargement   (2010), Chs 5 and6; p.218. The Treaty of Lisbon and the Evolution of EU Minority Protection 31 (2013) 38 E.L. Rev. February © 2013 Thomson Reuters (Professional) UK Limited and Contributors   protection on these states (or on existing Member States) in their capacity as members of the Union. 5 Consequently, a tension arose with respect to the credibility of the European Union’s commitment tominority protection.One of the key aspects of this tension was the absence of an EU strategy on minority protection andthe lack of a minority-specific foundation in EU law for such strategy. The absence of strategy meant thatas far as EU internal law and politics were concerned, the European Union was largely a passive actor inthefieldofminorityprotection.Notwithstandingsomeexceptions, 6 EUlawwasalmostentirelyineffectivein preserving minority identities, either through positive action or by means of addressing the negativeimpact of the European Union on minority identities. 7 Relatedly, the absence of a strategy meant that EUcompetences were not being used fully towards minority protection and often were not being used at allin this regard. 8 The lack of relevant EU legal bases for minority protection was another pre-Lisbon concern. On theone hand, there were more legal bases which could affect minority protection than would appear at firstglance in the old Treaties. 9 Thus EU free movement of goods and services provisions 10 enable culturalgoods and services to be accessed across Member States; provisions on education, culture, protection of the environment, development of industry and enterprise and regional development 11 held potential for minority cultures and languages to be promoted, or at least to be taken into account in EU law and policy.To take one of the less common examples, ex art.157 EC provided the European Union with competenceto promote learning of languages which could be considered to increase the European Union’scompetitiveness. Such languages (e.g. Arabic) could be languages of members of minority communitiesin the European Union. However, the concern with these EU competence provisions was that not manyof them related directly to minority protection and rested on implicit, rather than explicit premises. 12 Thusex art.157 EC concerned competitiveness of industry in the European Union, and was not explicitly premised on support for minority languages. Other provisions presented similar limitations.Largesectionsofpre-LisbonEUlawalsooperatedonlyinthecross-bordersituation(thusmainlywithinthe context of nationality discrimination and better treatment of migrants) and therefore in these instances 5 C. Hillion, “Enlargement of the European Union, Discrepancy between Membership Obligations and AccessionConditions as Regards Protection of Minorities” (2004–05) 27  Fordham International Law Journal   715; B. de Witte,“Politics versus Law in the EU’s Approach to Ethnic Minorities” in J. Zielonka (ed.),  Europe Unbound: Enlarging and Reshaping the Boundaries of the European Union  (London: Routledge, 2002); G. Sasse, “Minority Rights andEU enlargement: Normative overstretch or effective conditionality?”, in  Minority Protection and the Enlarged  European Union  (2004), pp.59–84. 6 e.g. A Protocol attached to the 1994 Accession Treaty [1994] OJ C241/352 provided protection for Saami rights;Regulation 1007/2009 on trade in seal products [2009] OJ L286/36 which banned trade in products made from sealsincluded a derogation for the Inuit and other indigenous communities; the European Union’s Fundamental RightsAgency’s mandate since 2007 includes minority protection: Consideration No.10 of Council Regulation 168/2007establishing a European Union Agency for Fundamental Rights [2007] OJ L53/1–14; the promotion of minoritylanguages through the funding of the Mercator network and the European Bureau for Lesser Used Languages; thefocused efforts towards the Roma group; and the strong legal framework on non-discrimination. 7 G. Toggenburg, “A Remaining Share or a New Part? The EU’s Role vis-à-vis Minorities after the EnlargementDecade”, EUI Working Paper Law No.2006/15, pp.1–27 at p.26, available at  http://cadmus.eui.eu/bitstream/handle /1814/4428/LAW+2006.15.pdf?sequence=1  [Accessed January 15, 2013]. 8 See generally T. Ahmed,  The Impact of EU Law on Minority Rights  (Oxford: Hart Publishing, 2011). 9 Ahmed, TheImpactofEULawonMinorityRights (2011),Chs4and5;B.deWitte,“TheConstitutionalResourcesfor an EU MinorityProtectionPolicy”in  MinorityProtectionand the Enlarged European Union  (2004), pp.107–124. 10 Ex arts 23–31 EC and 49–55 EC. 11 Ex arts 149–150, 151, 6 and 174, 157, and 158–162 EC. 12 De Witte, “The Constitutional Resources for an EU Minority Protection Policy” in  Minority Protection and the Enlarged European Union  (2004), pp.107–124 at p.107. 32 European Law Review (2013) 38 E.L. Rev. February © 2013 Thomson Reuters (Professional) UK Limited and Contributors  EU minority protection was really more equivalent to an EU migration policy. 13 The nationalitydiscriminationframeworkprovidedlittleintermsofprotectionforminoritiesarisingfromtensionswithintheirownstate,whichthereforeneglectedthebulkofminoritygroupissuesinEurope,whicharisebetweengroups and their “home” state. Measures adopted to prohibit discrimination on grounds of race, ethnicityand religion, 14 and those adopted to promote cultural and linguistic diversity, 15 could potentially applywithin the home state situation, however, pre-2009 they were not implemented very effectively. 16 Another key aspect of the pre-Lisbon EU framework on minority protection was that EUanti-discrimination law provided minorities with almost all of their “rights” in EU law, as the EuropeanUnion was concerned with the non-discriminatory integration of persons in new Member States. This presented an obstacle to the European Union’s effective protection of minority identities, which wouldrequireactionbeyondthediscriminationfieldandintopositiveactionrightsor“specificminorityrights”. 17 Withininternationallaw,theUNHumanRightsCommittee,theUNMinorityDeclarationandtheCouncilof Europe’s Framework Convention on National Minorities outline a number of positive protection rightswhich enable minorities to seek protection of their identities, rather than to simply achieve equality withthe majority population. 18 EU laws which relate to positive protection are not formulated as “rights”, but instead present“opportunities”fortheapplicationofEUlaw.ExamplesinthiscategoryincludeprovisionsontheEuropeanUnion’s promotion of culture, language and disadvantaged regions, 19 where the European Union’s role isto “support” Member States’ activities. For the most part of pre-Lisbon law then, the European Union hadthe legal capacity to act as a “promoter”, rather than a “protector” of minority rights 20 and supported a“lawofdiversity”ratherthanoneofconcrete“minorityprotection”. 21 Ontopofthis,theEuropeanUnion’seconomic mission could be accused of contributing to the assimilation of minorities in European majoritysociety, or at least could be seen as jeopardising Member States’ attempts to prevent that assimilation. 22 Since 2009, with the Treaty of Lisbon, some changes in the European Union’s reception of minorityand diversity concerns are noticeable, which, inter alia, take the European Union’s legal framework onthe matterbeyond the realmof anti-discriminationand placesit on a more explicitfooting. Many of these, 13 e.g.relatingtotheabilityofamemberofaminoritygrouptomovetoakinstate,uselanguagefacilitiesinanother Member State in his mother-tongue, access education systems which help him to preserve his identity and so on. 14 Ex art.13 EC; Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racialorethnicorigin[2000]OJL180/22;Directive2000/78prohibitingdiscriminationongroundsofreligion,belief,disability, age or sexual orientation in the field of employment [2000] OJ L303/16. 15 Ex arts 151, 149 EC. 16 S. Benedi Lahuerta, “Race Equality and Third Country Nationals, or How to Fight Discrimination with aDiscriminatoryLaw”(2009)15E.L.J.738;AhmedandHervey,“TheEU,MigrationandCulturalDiversity;AMissedOpportunity?” (2003–04) 3  European Yearbook of Minority Issues  43; Topidi,  EU Law, Minorities and Enlargement  (2010), pp.98, 102–105. 17 K. Henrard,  Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination  (Leiden: Martinus Nijhoff, 2000), p.56. 18 e.g. the Framework Convention art.5(1) requires that “The Parties undertake to promote the conditions necessaryforpersonsbelongingtonationalminoritiestomaintainanddeveloptheirculture,andtopreservetheessentialelementsof their identity, namely their religion, language, traditions and cultural heritage”; and art.9 requires that “The Partiesundertake to recognise that every person belonging to a national minority has the right to manifest his or her religionor belief and to establish religious institutions, organisations and associations”. 19 Ex arts 151, 149 and 158–162 EC. 20 Ahmed,  The Impact of EU Law on Minority Rights  (2011), p.201. 21 Palermo and Woelk, “From Minority Protection to a Law of Diversity?” (2003–04) 3  European Yearbook of   Minority Issues  5. 22 Toggenburg,“MinorityProtectioninaSupranationalContext”in  MinorityProtectionandtheEnlargedEuropeanUnion  (2004), pp.3–36 at p.30. The Treaty of Lisbon and the Evolution of EU Minority Protection 33 (2013) 38 E.L. Rev. February © 2013 Thomson Reuters (Professional) UK Limited and Contributors
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