Minorities in Europe : UNPO welcomes CJEU decision in favor of the Minority Safepack European Citizen's Initiative
The UNPO welcomes the decision of the CJEU rendered on 20 January 2022 which reaffirms for the third time that the protection of linguistic and cultural diversity falls within the competence of the European Union.
In the face of the Commission's initial refusal to register the citizens' initiative to protect European minorities, Romania's appeals, and the Commission's subsequent inaction, the UNPO hopes that this final decision will result in the action of a far too complacent Commission that relies on already existing legislative instruments that fail to protect minorities.
Indeed, still today, the EU has no binding instrument specifically aimed at the protection of minorities. Instead, the EU uses non-specific provisions such as the principle of non-discrimination and often refers to non-binding instruments developed by the United Nations, the Council of Europe, and the OSCE.
The European Citizen's Initiative (ECI) was established in 2007 with the Treaty of Lisbon under Article 11 paragraph 4 of the Treaty of the European Union (TEU) and Article 25 of the Treaty on the Functioning of the European Union (TFEU). The ECI allows for 1 million European citizens, distributed among ¼ of the Member States, to sign a petition that can subsequently be examined by the Commission provided that certain criteria are met.
The Minority Safepack initiative was originally presented to the Commission in 2013, and “calls upon the EU to adopt a set of legal acts to improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union. It shall include policy actions in the areas of regional and minority languages, education and culture, regional policy, participation, equality, audiovisual and other media content, and also regional (state) support”. In other words, the aim is to remedy the lack of a system for the protection of minority rights within the EU.
The Safepack initially contained 11 proposals that aim to “improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union”. In its Decision C(2013) 5969 final of 13 September 2013, the European Commission refused to register it on the ground that “even though respect for the rights of persons belonging to minorities is a value of the European Union referred to in Article 2 TEU, no provision of the Treaties provides a legal basis for the adoption of legislative acts aiming at promoting those rights. Furthermore, even if, in accordance with Article 3(3) TEU, the EU institutions must respect cultural and linguistic diversity and are bound, pursuant to Article 21(1) of the Charter, to refrain from all discrimination based on membership of a national minority, none of those provisions confers a legal basis in view of any such action of the institutions for those purposes”.
Thus, the Commission found that the ECI’s proposals manifestly fell “outside the framework of powers under which it may submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties”.
Faced with the Commission's refusal, the main authors of the ECI, supported by Hungary, challenged the Commission's decision. The Commission was supported by the Slovak Republic and Romania. On 3 February 2017, the General Court annulled the Commission’s decision on the ground that “the Commission has failed to comply with its obligation to state reasons by not indicating those of the measures which, among those set out in the annex to the proposed ECI, did not fall within its competence, nor the reasons in support of that conclusion”.
Following the General Court’s judgment, the Commission proceeded to register 9 out of the 11 initial proposals of the ECI on 29 March 2017.
However, on 28 June 2017 Romania filed an appeal against the Commission’s decision to register the Minority Safepack proposal in order to annul its decision. Among the various arguments raised, Romania finds that:
The Commission had no competence because the proposals of the ECI “aimed at improving the protection of the rights of persons belonging to national and linguistic minorities (…) has no direct link with cultural diversity” provided for in the TEU and TFEU, and therefore, the EU is not competent “to promote a policy the sole purpose of which is cultural diversity”.
The competence as regards the protection of the rights of persons belonging to national and linguistic minorities is within the exclusive competence of the Member States and not the EU. In general, Romania argues that “the proposed ECI falls outside the sphere of EU competence”.
Adopting “specific measure[s] in the field of ‘education’ or ‘culture’, intended to support persons belonging to those minorities, would also have no legal basis in the Treaties”. Instead, it’s up to the Member States “to adopt measures in the field of the linguistic identity of persons belonging to national minorities” in the context of the Council of Europe Framework Convention for the Protection of National Minorities.
“The Treaties also do not provide a legal basis for adopting acts which seek to ensure approximately equal treatment between persons without nationality and EU nationals”.
“Granting exceptional treatment to ‘regions where national minorities live’ would be contrary to the values enshrined in Article 2 TEU, would constitute direct discrimination in terms of the free movement of services, which is prohibited by Article 56 TFEU”.
The Commission failed to argument why the registered proposals fall within its sphere of competence.
On 24 September 2019, the General Court dismissed Romania’s arguments. The Court finds that the registered proposals by the Commission “did not fall ‘manifestly outside’ the framework of the Commission’s powers to submit a proposal for an act for the purpose of implementing the Treaties” and that “the contested decision sets out, in any event, to the requisite legal standard, the reasons underlying the registration in part of the proposed ECI”.
On 4 December 2019, Romania appealed the General Court’s decision.
In the meantime, on 15 December 2020, the Minority Safepack was the subject of a public hearing in the European Parliament. As a result, a resolution was adopted by the Parliament strongly supporting the Initiative and highlighting the importance of the ECI for the participation of European citizens in the political process.
The Commission responded to the Minority Safepack initiative on 15 January 2021. It disappointingly stated that “while no further legal acts are proposed, the full implementation of legislation and policies already in place provides a powerful arsenal to support the Initiative's goals”.
Here, the Commission not only ignored the efforts upheld by more than 1 million signatories, but also ignored the Court’s rulings and the Parliament’s support for the ECI. This led Mrs. VÄ›ra Jourová and Mrs. Ursula Von der Leyen to issue a strong open letter to the Commission, highlighting the Commission’s “lack of concern for the voice of citizens and lack of empathy towards the autochthonous national and linguistic communities of the EU”.
However, on 20 January 2022, The European Court of Justice confirmed the General Court’s decision, thus ruling for the third time in favor of the Minority Safepack. The Court confirms that the protection of linguistic and cultural diversity falls within the competence of the EU.
The ECI’s procedure largely shows the underlining issue of the ECI: the Commission can undermine its democratic power if it decides that no subsequent legislation will be implemented. The UNPO hopes that this reiteration by the Court will lead the Commission to take legislative action to protect European minorities.