The Minority Safepack Is Not a Dull Piece of Butter With a Short Expiration Date

Gabriel N. Toggenburg: Well, we see a mixed mosaic rather than a clear-cut picture. We see in one corner that after long and solid minority-blindness the French legal and political system appears to to be waking up: the president of France just offered autonomy to the Corsican people. At the same time we see in another corner of the picture Hungary – a nation that likes to think of itself as being especially minority-minded – where a government depicts sexual minorities as potential paedophilic sex-offenders and adopts legislation that limits the access of minors to content that might be considered portraying gender transition or homosexuality. The European Commission reacted quickly and launched an infringement procedure against Hungary. And 15 Member States took side with the European Commission. A clear sign that the EU does not accept politics that discriminate against minorities.

Toggenburg: This is due to a certain decree also laid down in the legal system. EU law is not a symmetric plate in the area of discrimination but rather a dented lead sheet with a lot of hills and valleys. The protection against discrimination in EU law depends on which protected ground we are talking about. The protection against discrimination based on ethnicity is very strong and is applied in all areas of life. The protection against discrimination based on sexual orientation is strong in the area of employment but not in other fields. And when it comes to fighting discrimination based on language or based on membership in a national minority, then the EU does not even have a legislative competence to offer protection. It is therefore unjustified, if not unfair to read every silence of the EU as disinterest or ignorance.

Toggenburg: Good point. What one sometimes hears in EU corridors is that the “EU is not competent for national minorities". This is definitively a too simplistic view. For certain issues that are relevant for national minorities, the EU is indeed not at all competent. For instance, for the question, whether or not a region or an island is to be granted autonomy. Or, whether or not a linguistic minority is granted the right to school education in their minority language. But for other issues the EU has indeed a lot to offer for national and linguistic minorities.

Toggenburg: I was invited in May 2010 to the 55th FUEN Congress in Ljubljana to give a speech about the relevance of the treaty of Lisbon which back then had just entered into force. In the discussion I proposed to FUEN to use the new instrument of the European Citizens Initiative in order to push for concrete EU measures that would protect and promote persons belonging to national and linguistic minorities. I remember that I was surprised by the instant fascination of the FUEN team for this idea. In fact they pulled this up with huge commitment and success. The initiative managed to gather 1,320,000 statements of support in Romania, Slovakia, Hungary, Latvia, Spain, Croatia, Denmark, Bulgaria, Slovenia, Lithuania and Italy. One of the most successful European Citizens Initiatives ever!

Toggenburg: Well, I do understand that people working on this initiative must be frustrated. This was a huge effort. The European Commission refused already at the very beginning of the process to even register the initiative. The initiative had to fight through various legal proceedings before the Court of Justice of the European Union. Successfully! But at the very end of the long process, the Commission decided in January 2021 that it will not take any of the 9 proposed EU measures.

Toggenburg: I do not have any background knowledge and can just speculate. For me three elements might be of relevance. First, the initiative came rather late. Too late. When it was tabled the EU legislator had already closed some key legislative files which could have integrated some of the 9 proposals of the Safepack. Secondly, the Initiative came at a time when the European Commission was very much engaged in the rule of law debate. It had to deal with highly sensitive issues and risked to be seen as trampling on the sovereignty of some Member States – not the best moment to be perceived as starting to trample on additional and equally sensitive fields. Thirdly, the initiative was heavily supported by Hungary and its government at a time when the Hungarian prime minister was probably not the most popular man in Brussels. Maybe the combination of all these factors played a role in making the Minority Safepack appear a hot potato that would add problems rather than solutions.

Toggenburg: Well, I tend to disagree. The EU is a far too complex animal in order to qualify as “the” EU. The EU consist of countless players and interests. And do not forget: there would be no European Citizens Initiative at all without the EU. I think it was exactly this Article 11(4) of the EU treaty – so the legal basis of the any ECI - which made it for the first time possible to discuss minority-issues across many countries at the very same time at local, regional and national levels. In terms of awareness raising the initiative was a success. Millions of people discussed potential EU measure to promote minority cultures. And make no mistake: the Minority Safepack is not a dull piece of butter with a short expiration date. Rather it is a tasty evergreen onion whose 9 measures can be unfolded vis-a-vis the next European Commission. FUEN should make sure that the personalities nominated end of this year to become relevant Commissioners are asked in their Parliament hearings what they think of the 9 measures. Soon negotiations for the next multiannual financial framework 2028-2033 will begin. Why not to argue for a sort of “minority conditionality” that ensures that EU funds are spent in a minority-friendly manner? There are many entry points for minority-consciousness in the EU system. The future is open.

Toggenburg: To cut a long story short, I think we can distinguish three phases. There was a sort of romantic phase in the 70s and 80s, a phase of hope, when the European Communities where perceived as a possible anchor for the establishment of a European protection system for minorities. The focus was on the protection of cultures and languages. And the key player was the European Parliament. The second, more prominent phase was the enlargement phase from 1993 to 2004: with the so called “Copenhagen criteria” minority protection became an EU accession criterion. The focus was on settling political and ethnic conflicts before (!) the respective countries would join the EU. So, the topics of interest were no longer just language use and culture but also issues of political presentation, security etc. The key actor was no longer the European Parliament but the European Commission.

Toggenburg: Well, yes, after 2004 we saw a third phase which in a way was Janus-headed. On the one hand we witnessed the EU’s interest fading away from the minority engagement vis-à-vis the newly born EU Member States. On the other hand, the EU was stepping up its own engagement for the Roma, for anti-discrimination etc. The Copenhagen Dilemma consists in the fact that once a candidate state becomes a full member States, the accession criteria of minority protection can no longer be enforced. The EU does not have the same legal tools available vis-à-vis Member States as it has vis-à-vis a candidate state. Which brings us to the beginning: what might be perceived as political double standards is in reality also about different legal regimes which leave the EU less avenues to push than it would like to have.

Toggenburg: Surely, in the enlargement phase minority protection was seen as an export product. In the third phase, lets call it the internalisation phase, so the years after 2004, the EU had to start to think how “minority protection” can become a product that is also consumed “at home”. The treaty of Lisbon to a certain degree internalised minority protection as “minority protection” became a term of EU law even if there is still the dilemma that this is an EU value that is not backed up with an EU competence. The term remained a bit of an empty edifice, in that sense the Copenhagen dilemma is still with us.

Toggenburg: I do not see a future where the EU will have a legislative competence to harmonise the definition of who is a minority, who deserves protection, which region has an autonomous status and whether or not a specific minority language needs to be taught in schools or used in certain court rooms. Questions of identity preservation and constitutional engineering will remain zones reserved for the Member States. And rightly so. What I would however not exclude is that the EU’s influence over such decisions is increasing. At least in “red zones”, I mean in zones, where such decisions affect the rule of law performance of a given Member State.

Toggenburg: In a way, yes. As early as 2003, the European Commission announced that the introduction of a new political sanctioning procedure in Article 7 of the EU-Treaty provides the Commission with the powers to monitor developments falling beyond the legislative competence of the EU legislator. Against the context of the rule of law backsliding in Hungary and Poland it has become increasingly obvious that the values in Article 2 TEU are more than lofty principles and can trigger an EU involvement unthinkable a decade ago. In fact the European Commission is annually providing rule of law recommendations to the Member States in highly “State-owned” fields such as media pluralism, corruption, the quality of the national legislative process, the participation of stakeholders, the role of constitutional courts, National Human Rights Institutions, ombudspersons, equality bodies etc. since 2022. The current Hungarian and the former Polish government pushed with their rule of law backsliding for less Europe but the harvest of their sovereignistic attitude turns out to be exactly the contrary: the EU is entering new fields. And what is even more remarkable – it gets a green light by the EU Court in Luxembourg.

Toggenburg: In February 2018 the Court of Justice of the European Union clarified in the so called “Portuguese judges case” that the independence of the judiciary falls law under the domain of EU law independently of whether a concrete case concerns EU law or not. The logic is that the judiciary and the rule of law are relevant for the overall legal-political system and cannot be looked at in a compartmentalised manner. Due to the horiziontal role of the judiciary, it does not make sense to single out only those parts of the judiciary dealing with EU legislation. We therefore observe that the rule of law debate expands the reach of the values listed in Article 2 of the EU treaty beyond the strict borders of EU legislation.

Toggenburg: I am getting there. In April 2021, the Court decided the Repubblika case. The case concerned the 2016 judicial reform undertaken in Malta. The Court concluded that that national judicial reform did as such not interfere with the independence of the judiciary. However, what was interesting to see was, that the Court stressed that EU Member States have freely and voluntary committed to the values referred to in Article 2 of the EU treaty. From this the Court concluded that it is therefore not possible for a Member State to amend its legal system in a way that brings about a reduction in the protection of these values. Thereby the Court appears to have established a principle of non-regression regarding the EU values. This is an important step towards addressing the mentioned Copenhagen dilemma. So far the Court only dealt with the rule of law and especially the independence of the judiciary. But this new principle of non-regression might very well also cover a serious reduction of "the rights of persons belonging to minorities" as mentioned in Article 2 TEU. While EU law does not at all force Member States to introduce sophisticated systems of minority protection, EU law might stand in the way if a Member States starts backsliding by drastically reducing the protection that it had already guaranteed.

Toggenburg: None of these. The biggest challenge that I personally see for our political systems and therefore indirectly also for human rights are the shockingly low levels of trust in the national political systems. According the newest Eurobarometer on average, taking all EU Member States together, 20% of the population are “not at all” satisfied and 31% are “not very satisfied” with the state of democracy in their Member State. That makes over half of the population that is unhappy with their political system. In Bulgaria this figure is 71%, in Hungary 70%, in Slovenia 59%, in Italy 51%. For sure mistrust will be in many cases justified. But we need to ask what we ourselves contribute today, tomorrow to make the systems better. Where there is no trust in public institutions, polarisation, populism, manipulation, simplification have an easy game. We have to work on our understanding of the common cause of our societies, the res publica – minorities and majorities together. We cannot wait for the State to become a better State, we have to contribute because we are part of it. When the State starts eroding we will all loose….