Diversity and the EU Charter of Fundamental Rights: Principles vs. practice
In his regular LinkedIn newsletter "All EU-r rights", Gabriel Toggeburg explains each of the 54 provisions in the EU Charter of Fundamental Rights. This article examines the ambiguity of Article 22 of the Charter, which calls for respect for cultural, religious and linguistic diversity without establishing concrete legal rights.
Article 22 of the Charter of Fundamental Rights of the European Union states that the EU shall “respect cultural, religious and linguistic diversity”. This is for sure short and concise. But not necessarily very clear. Article 22 confirms the overall impression of the Charter that is “easy to read but difficult to understand”.1 Whereas some will read Article 22 as a rather useless principle bar of any practical implications, others look at it as “potentially one of the most politically explosive provisions in the Charter”.2
In fact, in the circles of minority experts, Article 22 is often perceived as minority protection clause. But what sort of diversity does Article 22 refer to? The diversity between Member States? This would boil down to dressing the EU’s obligation to respect the Member States national identities3 with strange fundamental rights clothes. Or is Article 22 indeed 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 or not to include a minority protection clause in the Charter.4 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 effects.
It is noteworthy that Article 22 comes along with a considerable ‘diversity aquis’. 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”. The EU has also ratified the 2005 UN Convention on Cultural Diversity. Article 3 (3) TEU establishes as one of the EU’s objectives to “ensure that Europe's cultural heritage is safeguarded and enhanced”. Finally, “United in diversity” has become motto of the European Union (selected, by the way, from amongst over 2000 proposals sent in by 80.000 school children more than 25 years ago).5
The Charter right in action
Maybe due to its ambivalence, Article 22 is so far not particularly used in legal practice. Not much more than 30 judgments of the Luxembourg Courts referred to the Charter. Mostly, the provision 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”.6 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).7 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.8
Over 20 years ago I characterised Article 22 and the notion of diversity in EU law as an “self-restrictive value”. It appeared to me as a hybrid provision addressing both the diversity between and the diversity within States with the result that where a national identity consists of protecting the official language at the cost of minority languages, the value of “diversity” would get locked down in a zero-zum game.9 I felt confirmed in this view when reading the recent Grand chamber judgment of the Court of Justice on the Latvian language legislation.10 The Russian language and its speakers remain an invisible elephant in the room and Article 22 is referred to in combination with Article 4(2) TEU – a provision that obliges the EU to respect the national identity of its Member States – an identity which, to quote the Court, “includes protection of the official language of the Member State concerned”.11 The opinion of the Advocate General in that case was more nuanced as he stressed that there are “two sides to the concept of ‘language diversity’” onre of them being “the respect of minority languages.”12 An aspect that got lost in the Courts judgment.
How the EU protects diversity
Without doubt the EU invests considerable efforts in fostering cultural diversity in the European Union as various funding programmes and initiatives show.13 When it comes, however, to the funding of of minority languages and cultures, the EU’s engagement becomes far more cautious.14 This is even more the case for legal and policy initiatives concerning minorities. Most would be forgiven for thinking an initiative signed by over a million EU citizens would have far-reaching implications.15 But the 1,123,422 EU citizens who signed the “Minority Safepack” in 2018 did not see any follow-up by the EU. The initiative called on the EU Commission to adopt 9 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 language.[ ^16] These proposals remained wishful thinking.
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 territories.17 For instance, the Czech and the Slovak constitutions distuinguish the following three rights that citizens belonging to minorities have18:
- the right to education in their own language (see also Slovenian constitution)19,
- the right to use their language in official communication (see also constitutions of Estonia or Slovenia)20,
- 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)21
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’.22 Finally, some constitutions refer to important groups of minorities protected by the legal system explicitly. The Austrian constitution refers to the Croats and Slovenes23, the Finnish constitution to the Sami and the Roma24, the Slovenian constitutions to the Italians, the Hungarias and the Roma population25 and the Swedish constitution refers to the Sami population26.
So what?
The notion of “diversity” in EU primary law is ambivalent and so is Article 22. 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 Market27 – 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 schemes.28
Nota bene
If you are new to the Charter and want to get a video-introduction to the Charter you might want to consult these tutorials:
The Charter - History & legal nature (7 minutes)
For a more encompassing introduction: Introducing the Charter at the 1stCharterXchange (45 minutes)
Who wants to know even more about the Charter might want to consult the Charter material and tools of the European Union Agency for fundamental rights (FRA).
This and all other posts are just my personal views. They might be entirely wrong and can under no circumstance be attributed to my current or former employers.
Note: This article gives the views of the author and does not represent the position of the European Association of Daily Newspapers in Minority and Regional Languages (MIDAS) or Eurac Research.
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This blog is supported by the European Association of Daily Newspapers in Minority and Regional Languages (MIDAS). MIDAS was founded in 2001 to provide assistance to minority language newspapers and nowadays has members all over Europe. MIDAS serves as a platform for exchange, uniting minority language newspapers to present a collective voice to the European institutions.
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