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

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Gabriel N. Toggenburg

28 February 2023

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

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 situations”⁷. 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!

Gabriel N. Toggenburg

is an Honorary Professor for European Union and Human Rights Law at the University of Graz and Head of Sector at the European Union Agency of Fundamental Rights in Vienna. The interview was given in private capacity – the views expressed cannot be attributed to the agency. The lawyer joined the agency in 2009. Before he has been working for over ten years at the European Academy Bolzano/Bozen/Bulsan where he initiated for instance the Bolzano/Bozen Declaration on the protection of minorities in the enlarged European Union. He holds a PhD from the European University Institute in Florence and has widely published on human and minority rights. He grew up in South Tyrol where the family offers holidays for persons in wheelchairs at www.himmelfahrt.it/en/. He is father of 5 children and lives in Vienna.