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The 22nd of all EU-r rights: diversity and how the Charter contributes

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The 22nd of all EU-r rights: diversity and how the Charter contributes
Courtesy of Miloladesign - © Miloladesign - © Miloladesign

Most would be forgiven for thinking an initiative signed by over a million EU citizens would have far-reaching implications. However, it’s not a given that any successful European Citizens Initiative actually do lead to political action1. Take the example of the so called "Minority Safepack" which was signed by 1,123,422 EU citizens in 2018. The initiative called on the EU Commission to adopt nine legislative measures aimed at promoting the situation of national, linguistic minorities. Amongst the proposals was one for a Council Recommendation on the protection and promotion of cultural and linguistic diversity in the EU or, the creation of an EU Language Diversity Centre that would also deal with the estimated 40 to 50 million people in the EU who speak a regional or minority language2.

How is this linked to the Charter? Well, Article 22 is interpreted by some as a minority protection clause which obliges the EU to establish a system of minority protection. However, the wording of Article 22 simply compels the EU to do nothing more than “respect cultural, religious and linguistic diversity”. Short and concise for sure but not necessarily very clear. Article 22 confirms that the overall impression of the Charter is “easy to read but difficult to understand”3.

What sort of diversity does Article 22 refer to then? Would it be the diversity between Member States, which in theory, would boil down to dressing the EU’s obligation to respect the Member States national identities4 in the strange garb of fundamental rights? Or is it perhaps also about the diversity within the Member States which would indeed introduce a sort of minority protection clause? Some point in this context to the fact that the Convention that drafted the Charter had witnessed an intense discussion on whether to include a minority protection clause in the Charter5. This, however, speaks against rather than in favour, of reading a minority protection clause into Article 22. In addition, the wording of Article 22 suggests that this Charter provision is a principle rather than a right. It does not appear to establish the individual entitlements that one could invoke before court. But this does not mean that it would be void of legal effects6.

The Charter right in action

Maybe due to its ambivalence, Article 22 is so far not particularly used in legal practice. Before the Court, it appeared in the context of protecting national languages rather than in defending ethnic groups or their languages. For instance, Article 22 was invoked to increase the number of national languages available for communication between job applicants and the European Personel Office. In defending such “national” (rather than subnational) issues the provison did not prove very efficient. The Court concluded that it “cannot be inferred from the European Union’s obligation to respect linguistic diversity that there is a general principle of law entitling each person to have everything likely to affect his or her interests drafted in his or her language in all circumstances, and that the institutions are required, without any derogation being permissible, to use all the official languages in all situations7. Similarly, Spain was not successfully invoking diversity when seeking the annulment of the Council Regulation concerning the unitary EU patent which establishes a language regime with only 3 official languages (English, French and German – thereby excluding Spanish)8.

What do Member State constitutions say?

Whereas diversity does not appear as an overall legal principle in national constitutions, there are many constitutions that prominently emphasize various aspects of national diversity by referring to minority cultures. This is especially true in the constitutions of Eastern European Member States that deal prominently with minorities and a variety of languages within their national territories9. For instance, the Czech and the Slovak constitutions distuinguish the following three rights that citizens belonging to minorities have10:

  • the right to education in their own language (see also Slovenian constitution)11,
  • the right to use their language in official communication (see also constitutions of Estonia or Slovenia)12,
  • the right to participate in the decision-making in affairs concerning them (forms of cultural autonomy and of self-government at subnational level are also referred to in the constitutions of Croatia, Estonia, Hungary, Lithuania or Poland)13. The Slovenian constitution refers not only to the right to activities in the field of public media and publishing but also to the importance of fostering relations with the minority’s nations of origin, the so-called ‘kin-states’14. Finally, some constitutions refer to important groups of minorities protected by the legal system explicitly. The Austrian constitutions refers to the Croats and Slovenes15, the Finnish constitution to the Sami and the Roma16, the Slovenian constitutions to the Italians, the Hungarias and the Roma population17 and the Swedish constitution refers to the Sami population18.

So what?

The notion of “diversity” in EU primary law is ambivalent and so is Article 2219. However, the fact that the Treaty of Lisbon clarified that the Union is founded on the values of respect for human rights, “including the rights of persons belonging to minorities” in Article 2 TEU, suggests that diversity in Article 22 is also about the linguistic, cultural and religious diversity that flows from the identities of the countless minorities who live in the EU. Whereas Article 22 does not enshrine any fundamental rights entitlement for persons belonging to minorities to be proactively protected by EU law, it adds a fundamental rights dimension to the obligation of the Union to not compromise diversity. The EU legislator needs to make sure that EU law and policy making – think for instance of the harmonising effects of the Common Market20 – do not put existing diversity and related minority protection mechanisms at risk. And given that Article 51 of the Charter calls on the EU to “promote the application” of all Charter rights, this might also speak for a more proactive stance of the EU for instance by re-introducing minority-specific funding schemes21.

Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

1: The possibility to launch European Citizens Initiatives was introduced by the treaty of Lisbon. See Art 11 (4) TEU.
2: The idea of the “Minority Safepack” goes back to the 2009 annual Congress of the Federal Union of European Nationalities (FUEN) in Ljubljana where in May 2009, I presented the potential of the (then new) treaty of Lisbon for the protection of minorities. The idea of using the new instrument of the European Citizens Initiative for fostering European diversity fell on fertile ground and FUEN and others succeeded in organizing one of the most successful (in terms of signatures) European Citizens Initiatives. However already at the registration stage of the initiative (made possible only after the Court of Justice provided a push to the European Commission) it was clear that minority protection remains a sensitive topic at EU level. In the end, the European Commission did not follow-up on any of the initiative’s proposals. Basically the Commission argued that no additional legal EU acts are necessary to achieve the aims of the initiative, see European Commission, communication C(2021) 171 final, 14.1.2021. The General Court found no manifest error of assessment (Case T-158/21, 9 November 2022) but an appeal was filed end of January 2023 and the case is pending before the CJEU. On the initiative see Gabriel N. Toggenburg, The European Union and the protection of minorities: new dynamism via the European Citizens Initiative, in European Journal of Minority Studies, Vol 11 No3-4 2018, p. 362-391.
3: Gabriel N. Toggenburg, The EU's charter of fundamental rights - five years on, opinion in EU Observer 1.12.2014.
4: As introduced by the Maastricht treaty, see Art. 4 TEU which states that the EU has to “respect the national identities of its Member States”.
5: See Gabriel N. Toggenburg, Die Geburtsstunde der EU-Grundrechtecharta: ein Gespräch mit dem Konventsmitglied Heinrich Neisser, in P. Hilpold et al (eds.), Rechtsstaatlichkeit und Solidarität in Österreich und in Europa, Facultas 2021, S. 98-106. Proposals by the European Parliament, the Committee of the Regions and various members of the Convention such as Jens Peter Bonde (“Persons belonging to [national] minorities have the right to the protection and promotion of their ethnic, cultural, linguistic and religious identity inter alia through effective participation in cultural, religious, social, economic and public life within the Union”) were not successful. The wording of Article 22 falls also short of what Convention members like Sylvia Kaufmann (“The entitlement of national, ethnic and religious minorities to protection and promotion of their identity and culture shall be guaranteed”), Rainhard Rack (“The Union shall work to promote the tradition and cultivation of minority rights”) or Johannes Voggenhuber (“Members of groups in practice at a disadvantage are entitled to special support”) had in mind. For the documents submitted during the genesis of the Charter see Coghian N. Steiert M. (eds.) (2020), The Charter of Fundamental Rights of the European Union: the travaux préparatoires and selected documents.
6: Note also that the EU has ratified the 2005 UN Convention on Cultural Diversity and, more importantly, Article 167 TFEU on the EU’s cultural policy states that the EU shall “contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity” and that even when dealing outside the field of culture it “shall take cultural aspects into account” and “respect and to promote the diversity of its cultures”. See also Art. 3(3) TEU.
7: CJEU, C 377/16, 26.3.2019, Para. 37. See also CJEU, T 723/18, 3.3.2021, Paras 110-113.
8: See regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements and CJEU, C 147/13, 5.5.2015. Neither was Article 22 successful as a proxy-argument for protecting a national identity (the national language) in the context of the national legislation which obliged employers and employees in the Belgium’s Dutch-speaking region to use the Dutch language exclusively in employment relations. See CJEU, C-202/11, 16.4.2013.
9: The Austrian constitution states in a rather recently added provision that the republic “is committed to its linguistic and cultural diversity which has evolved in the course of time and finds its expression in the autochthonous ethnic groups”. The language and culture of the latter “shall be respected, safeguarded and promoted”. See Art. 8(1) of the Austrian Federal Constitution. Also, rather recently France recognized in its constitution that its regional languages are part of France’s heritage. See Art. 75-1 of the French constitution. The Latvian constitution establishes a right of persons belonging to ethnic minorities to “preserve and develop their language and their ethnic and cultural identity”. Art. 114 of the Latvian constitution. The Hungarian constitution affirms that national minorities living in Hungary are “constituent parts of the State” and the Belgian constitution stresses upfront that Belgium comprises four linguistic regions. See Art. XXIX of the Hungarian constitution and Art. 4 of the Belgium constitution. The Spanish constitution establishes that Spanish languages (other than Castillian) shall be official languages in accordance with the statutes of the respective regions (Section 3(2) of the Spanish constitution). This “richness” of languages shall be “specially respected and protected” (Section 3(3) of the Spanish constitution).
10: Art. 25(2) of the Czech constitution and Art. 34(1) of the Slovak constitution.
11: Art 64 of the Slovenian constitution.
12: Art. 51 of the Estonian constitution, Art. 62 of the Slovenian constitution.
13: Art. 15(4) of the Croatian constitution, Art. 50 of the Estonian constitution, Art. XXIX (2) of the Hungarian constitution, Art. 45 of the Lithuanian constitution, Art. 35(1) and (2) of the Polish constitution.
14: Art. 64 of the Slovenian constitution.
15: See Art. 13(1) of the Federal act on the legal status of the ethnic groups in Austria (the law has constitutional standing).
16: Section 17 of the Finnish constitution.
17: Art. 5 and 65 of the Slovenian constitution.
18: Art. 2 of the Form of government document.
19: See Gabriel N. Toggenburg, “United in diversity”: Thoughts on the ambiguous motto of the European Union,in Meinrad Handstanger et al. (eds.), Law and Politics. Festschrift für Joseph Marko, Nomos, 2022, pp. 553-560.
20: For the potential conflict between the unifying forces of the common market and national protection systems aiming to maintain diversity within the State see Gabriel N. Toggenburg, Regional autonomies providing minority-rights and the law of European Integration: experiences from South Tyrol, in J. Marko et al. (eds.), Tolerance established by Law. The Autonomy of South Tyrol: Self-Governance and Minority Rights, Martinus Nijhoff, 2008, pp. 177-200.
21: See in this context H. Kuipers-Zandberg and A.F. Schukking, Accessibility for regional or minority languages to EU programmes, 2021.
Gabriel N. Toggenburg

Gabriel N. Toggenburg

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

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  • All EU-r rights

Citation

https://doi.org/10.57708/b146809781
Toggenburg, G. The 22nd of all EU-r rights: diversity and how the Charter contributes. https://doi.org/10.57708/B146809781

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