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		[2007] 5 Web JCLI

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The Importance of Minority Languages

The existence within a State of linguistic minorities is not such an uncommon occurrence. Rarely does the entire population of a State speak one and the same language. According to the European Bureau for Lesser Used Languages, there are over forty six million lesser used regional or minority language speakers in Europe. There are approximately 60 minority languages in Europe and apart from Iceland, minority languages are spoken in all other European countries (Mercator Education). Amongst the better known linguistic minorities are the native Welsh speakers in the United Kingdom and the native Catalan speakers in Spain. Both groups of individuals have an influential view that their language is an important part of their culture and ethnicity and thus have fought hard to be granted the right to learn and use their native language not only in their private, but also their public life (May 2001, 237-272). Since 1990, the Catalan language pressure groups have pressurized the Parliament of Catalonia to petition the European Parliament to declare Catalan one of the European Union official languages (A3 169/90, O.J. C-19, 29 January 1991). Other groups are less successful, such as the native Breton speakers in France and the use of Breton has been discouraged in the area of education, media and schooling (Hicks 2003, Conseil d’État 2002). The European Network for Regional and Minority Languages in Europe describes Breton as a threatened language (Hicks 2003).

There are numerous minorities in Europe, some of which are under economic, social, political, cultural or religious pressure to assimilate into the dominant group resulting in the loss of their identity. Assimilation results in the gradual loss of these minorities’ linguistic identities. The disappearance of the World’s languages is perceived to be detrimental to our cultural heritage, and it is thus preferable to ensure integration of linguistic minorities with the majority group in order to preserve linguistic identity.

The protection of minority languages is desirable for two sets of considerations. Firstly, from a human rights perspective, minority languages are inextricably linked to the communities that speak these languages. To safeguard the rights of linguistic minority communities it is necessary to protect and preserve native languages. International law has endeavoured to protect the rights of minorities, including that of linguistic minorities, requiring States to provide a legislative framework so as to avoid assimilation of such groups as well as non-discrimination measures. Increasingly, the EU, in cooperation with the Council of Europe, has committed itself to develop a significant role in this field. Secondly, from a cultural policy perspective, language is part of the cultural identity of a community and helps to understand its history and values (May 2001, 128; Rubio-Marín 2003, 52-79). The disappearance of minority languages would leave us culturally diminished and considerably affect the principle of equality of all European citizens. This is even more so with the dominance of the English language which is increasingly apparent in the workings of the institutions (Case C-361/01 Estate of Christina Kik v. Office for Harmonisation in the Internal Market, 2003 ECR I-8283.). From a regional perspective, cooperation both at the level of the Council of Europe and the EU is necessary to protect the minority languages. Indeed, languages are more closely linked to their regions. There is scope for the EU within its cultural and linguistic diversity programmes to add to the protection of linguistic minorities whilst taking the existing provisions in International law into account.

The Protection of Linguistic Minorities and Minority Languages and the Council of Europe

Gradually, the EU is moving towards a closer cooperation with the Council of Europe, in particular in the field of human rights. It is thus necessary to examine how minority rights in International Law have evolved, in particular through the workings of the Council of Europe.

Few conflicts witnessed in recent years did not, to some extent, involve issues affecting minorities. To discourage such events in the future, the international criminal court was created. There are also “lesser evils” which can threaten a minority group, such as not treating members of a minority group on an equal footing with the majority. Although International law does not give members of linguistic minorities the right to use their minority language (De Varennes 1991, 117), a mechanism exists for protecting the rights of linguistic minorities. Article 27 ICCPR states that

“in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language” (Article 27 of the UN International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, U.N.T.S. No. 14668, vol. 999 (1976), p. 171.)

This minority right provision is designed exclusively to protect group interests and recognises individual rights premised on the existence of a distinctive community, as Caportorti (1979, §206-210), the UN special rapporteur, stated “[it] is the individual as member of a minority group, and not just any individual, who is destined to benefit from the protection granted by article 27”. In practical terms, however, a claim has never been made solely on the basis of Article 27, but always in conjunction with other protected rights, such as freedom of speech or religion.

Minority rights provisions have evolved significantly in the 1990’s under the auspices of the Council of Europe with the adoption of the Framework Convention for the Protection of National Minorities more generally on the 1st of February 1995 (CETS 157). It is the most comprehensive of the Council of Europe’s instruments touching on minority rights, as well as the first legally binding instrument devoted to the protection of national minorities in general. More than 38 States have ratified the Convention. The Convention covers a spectrum of guarantees in favour of national minorities. It reformulates some basic standards of individual human rights protection such as freedom of expression or of association. It also provides for a number of specific guarantees on issues such as preservation and development of cultural identity, establishment of religious institutions, use of minority languages and education.

The Framework Convention is a significant step forward in determining the particular human rights obligations of States with regard to the protection of minorities. Firstly, respect for and protection of minorities requires complementary minority rights provisions and anti-discrimination measures, both of which the Framework Convention provides for, in particular article 4 which reiterates the principle of equality and non-discrimination. The minority rights provisions aim to enable individuals and communities to preserve their differences in order to avoid assimilation into the majority culture. In other words, the aim is to guarantee the survival and continued development of the cultural, religious and social identity of minorities concerned. This is often seen in a broader context in which the international community owes it to itself to preserve its cultural heritage, and that the protection of minority identities enriches and preserves that cultural heritage. As such, minority rights are there to prevent destruction of identities. Minority rights provisions need to be complemented with discriminatory measures which are designed to ensure that individuals are not treated differently from others for unjustifiable reasons.

Secondly, article 27 of the ICCPR was always surrounded by doubts whether this is a tolerance-oriented right or a promotion-oriented right (May 2001, 187). However, a mere passive stance by States would not ensure the effective protection of minorities (Thornberry 1991, 337). States should take measures to the extent necessary to ensure that the disadvantages of minority status do not result in the negation of this right (Thornberry 1991, 337). In this sense, States should protect minority members against infringement by private parties or public authorities, and should not discriminate as a result of an adoption of a domestic measure in favor of the majority, or one of its minority groups. Since the 1992 United Nations General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, whilst proclaiming that States have the right to use their own language, positively requests States to provide for the promotion of ethnic, cultural, religious and linguistic identities (Nic Shuibhne 2002, 222). This made the right to use one’s own language a promotion-oriented right. The Framework Convention confirms that minority rights are promotion-oriented rights and requires a pro-active approach from its Member States. Its preamble states that respect for national minorities is paramount; States should also create the necessary conditions to enable national minorities to preserve their identity. Furthermore, article 4 urges States parties to adopt

“adequate measures in order to promote in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority”

and thus encourages the introduction of positive measures in favour of particularly disadvantaged minorities. However, it is problematic that the Convention’s provisions are limited in scope. With regard to minority languages, articles 10 and 12 contain vague provisions with regard to language rights and educational rights. For instance, it is unclear whether everyone has the right to study in his/her mother tongue. Because it is a Framework Convention, it is especially important that the principles and the system as to how to achieve the Convention’s objectives are clearly set out, because States have to legislate to implement these. In particular for language and educational rights this can be a challenge, as the diversity of circumstances within linguistic minorities is not conducive to the adoption of one single system and calls for flexibility which takes into account the will of the minorities and the available resources.

It is regrettable that the Framework Convention does not give a definition of what constitutes a national minority, because to date no official definition exists (Gorzelik and Others v. Poland, Application No. 44158/98, 20.12.2001). However, the explanatory report suggests that it was more beneficial to adopt a pragmatic approach based on the recognition that, at this stage, it is impossible to arrive at a definition capable of mustering general support of all Council of Europe Member States. Hence, the Convention goes no further than a resolve of parties “to protect within their respective territories the existence of national minorities” (FCPNM, Preamble). A further examination of the Convention suggests that the Convention is mainly aimed at “ethnic, cultural, linguistic and religious identity” of each person belonging to a minority (FCPNM, 5) which differs slightly from article 27 ICCPR aimed at racial, linguistic and religious groups. The lack of definition viewed within the context of possible cooperation between the Council of Europe and the EU may be beneficial, because the EU has encountered opposition to a clear reference to minorities in its Treaties. However, some States such as France cannot recognise the existence of minorities in its territory, as this contradicts article 1 of the French Constitution. As a consequence, despite the Council of Europe’s calls for France to ratify the Framework Convention, it has not yet done so (PACE, 1766). It may be that such fierce opposition will hamper cooperation between the Council of Europe and the EU.

The Council of Europe, also, has focused specifically on the protection of minority languages with the adoption of the European Charter for the Protection of Regional and Minority Languages on the 5th of May 1992. It is important to note this treaty aims at the protection of minority languages from a cultural perspective, not the group of people that speak those languages. As such, it does not establish individual or collective rights for minority language speakers. It simply aims to recognise, protect and preserve the minority languages themselves.

This Charter as well as declaring all languages as part of Europe’s cultural traditions and heritage and urging States to ensure the non-disappearance of these languages, also invites States to sign up to a set of provisions of their choice which they determine freely amongst the areas of education, media, justice, administration, etc,. In other words, the Charter is quite flexible, so that States can determine, in accordance with their own specific circumstances, the extent to which they wish to apply the proposed measures.

This is quite a novel, cultural approach as it clearly sets out different degrees of provision. For instance, Article 8 which deals with education gives the States the choice to what extent it wishes to make education in the specific regional or minority language available. It has the choice either to make available all or a substantial part of the education in the minority language, or make the teaching of the minority language an integral part of its curriculum. But it can also choose to make either only available to the children of families who specifically request teaching in their minority language, provided a sufficient number of families do so. The flexibility of the choice in Charter provisions and extent of commitment will certainly aid the preservation of minority languages in Europe. The Charter supplements protection of minority languages afforded by States. As the Charter does not aim to protect linguistic minorities, it would be wrong to examine it in such a light, and thus the Charter must be seen for what it is: an indirect protection of a minority group defined by language which may contribute to improving their situation.

The Council of Europe clearly indicates that the protection of minority rights requires more than the adoption of non-discrimination measures. The two sets of treaties illustrate that from a human rights perspective, the rights of linguistic minorities must be protected, and from a cultural perspective that minority languages need protection. In order to examine how the EU has dealt with its linguistic minorities and minority languages, a similar approach needs to be adopted and differentiate between linguistic minority rights provisions and protection of minority language provisions.

Protection of Minorities and the EU

Human rights, and to an even lesser extent minority rights, are not matters over which the EU has been able to secure indisputable competence. To understand the EU’s lack of provision with regard to the protection of linguistic minorities, it is necessary to consider the status of human rights in the EU and the discrepancy between its external and internal human rights policies, particularly in the field of minorities’ protection.

The Ambiguity of the Status of Human Rights in the EU

As the European Community (EC) moved beyond a community of economic cooperation and integration, human rights issues became increasingly important. The EU has failed to adopt a strong legally binding human rights instrument despite numerous statements and attempts (EU Bull 12-2001 Annex to Presidency Conclusions). This has made the status of human rights in the EU ambiguous (Alston and Weller 1999, 7).

Since early 1990, the way has been paved for the EU to include human rights in its Treaties. This process culminated in the establishment of the European Charter for Fundamental Rights (Charter, 10 December 2000, [2000] OJ C 364/01) and its subsequent inclusion in the Constitutional Treaty. The ongoing process demonstrates that human rights will formally be part of the EU at Treaty level. However, it is doubtful that this will happen in the near future, because the adoption of the Constitutional Treaty, albeit not ‘dead and buried’ (Piris 2006, 30), has been postponed indefinitely. The fate of the Charter is linked to that of the Constitutional Treaty, and there are no signs that this status quo will change in the foreseeable future. This is regrettable, because the two referenda rejecting the ratification of the Constitutional treaty in France and the Netherlands were not per se a rejection of the Charter and the Constitutional Treaty, but, as Jean-Claude Piris suggests (2006, 9-27), the voice of discontent with the general state of the economy and the perceived responsibility of the EU for the economy, immigration, unemployment, social policy and other issues. That this results in the failure to include the Charter in the EU Treaties, is simply collateral damage. As a consequence, the Charter will remain a declaration of intent, lacking legal force and awaiting progress on the Constitutional Treaty front unless it finds another way into primary EU law (Williams 2004, 2; MacMahon 2006, 975).

With the establishment of the Charter, the EU articulated the rights and freedoms it is committed to adhere to. The Constitutional Treaty, if adopted, would ‘recognise the rights, freedoms and principles set out in the Charter (CT, Article I-7(1)), and the Charter would become Part II of the Constitutional Treaty. It would also mean that the EU would seek accession to the ECHR, which would in turn increase the uniformity of the protection of fundamental rights by the EU and the European Court of Human Rights (CT, 1-7(2)). This in itself would be important progress in human rights protection in Europe, as this could lead to further cooperation between the EU and the Council of Europe, as well as possible accession to other relevant treaties. However, in accordance with article II-111 of the Constitutional Treaty, the Charter’s provisions are aimed at the EU, not at the Member States unless “they are implementing Union Law”. Thus, the Charter does not give directly invocable rights to EU citizens against their own State, but the rights and principles of the Charter must be abided by the institutions of the EU and reflected in EU legislation.

The EU’s commitment to respect human rights has nevertheless evolved. It no longer simply asserts that the ‘Union shall respect fundamental rights as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to Member Sates as general principles of Community Law’ (TEU, 6(2) olim. F2) or more specifically that the “Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms” (O.J. C 340, 10 November 1997). The ECJ has long since affirmed that fundamental rights are protected by the EU as general principles of law, but recently, the status of the Charter significantly developed when the ECJ formally acknowledged the Charter (European Parliament v. Council, Case C-540/03, 27 June 2006 at § 38. Arnull 2006, 611-12).

At present, the EU institutions have the right to engage in human rights practices, but do not as yet have the competence to do so (Williams 2004, 8). If no further progress is possible, then such questions as to how and to what extent the EU would be able to construct a human rights policy remain unresolved (Williams 2003, 794-813). A recurrent objective is to develop cooperation with the work of the Council of Europe in order to avoid duplication (Regulation (CE) No 168/2007, establishing a European Union Agency for Fundamental Rights (FRA),15 February 2007, § 18). The lack of human rights policies does not provide an insight as to how they are intended to be compatible with already existing European human rights instruments, such as the ECHR, the Framework Convention on the Protection of National Minorities or the European Charter for the Protection of Regional and Minority Languages. Input and cooperation with the EU is added-value. A uniform human rights policy is further desirable, because it would alleviate criticisms that the EU has developed separate internal and external human rights policies, particularly in the field of protection of minority rights (Williams 2004, 53-110).

Protection of Linguistic Minorities: an External Policy Concern?

The rights of linguistic minorities need to be examined within the larger framework of EU’s general minority rights. The EU does not have explicit competence in the field of protection of linguistic minorities and will not interfere in a sphere that is of the competence of its Member States (OJ C-82/13).  Article 6(1) TEU defines the common principles applicable to all Member States as ‘liberty, democracy and human rights’ without specific reference to linguistic minorities in particular.

General minority issues are covered by the non-discrimination framework of Article 13 EC according to which the Council unanimously can decide to protect ethnic and religious against discrimination without mention of language (Council Directive 2000/43/EC, 29 June 2000, O.J. L 180, 19 July 2000, p. 22 and Council Directive 2000/78/EC, 27 November 2000, O.J.L 303, 2 December 2000, p.16). Further provisions encourage cooperation between Member States and supplement their action (Articles 149 EC, 151 EC, 49 EC, 94 EC and 95 EC). However, protection of linguistic minorities involves more than non-discrimination measures to establish effective equality, which can be achieved by promoting effective integration of ethnic and religious minorities in the EU whilst acknowledging and promoting differences (de Schutter 2006, 11). The current provisions do not permit Member States to adopt positive action measures in favour of disadvantaged groups, such as concrete measures to protect linguistic minorities to overcome a condition of inferiority (de Schutter 2006, 9). As such, EU policy in this area is not in line with current International law requirements as discussed above.

Neither the Constitutional Treaty nor the Charter includes specific rights of linguistic minorities such as granted in international human rights instruments (ICCPR, 27). Instead, article I-2 of the Constitutional Treaty concerning the Union’s values states that:

“The Union is founded on the values for human dignity, freedoms, democracy, equality, the rule of law and respect for human rights including the rights of persons belonging to minorities…”.

This article has both a positive and a negative consequence. On the one hand, the Constitutional Treaty clearly elevates the protection of people belonging to minorities to the status of value of the EU, thus making it part of the essence of the EU. So much so, that should a State wish to become a member, it must respect these values (CT, I.58), and should a Member State persistently breach these values, they will be suspended (CT, I.58). On the other hand, the perceived value for minorities is weakened by the reference to the rights of people belonging to minorities instead of the rights of minorities. Thus linguistic minorities are not granted collective rights in the EU. This is indicative of a more general problem faced by the EU as a matter of law and policy when determining its respective competences and responsibilities vis-à-vis its Member States. In this instance, some Member States do not recognise the existence of minorities⁽¹⁾. The EU will not urge them to do so for fear of interference in the internal affairs of a Member State, but will respect the rights of people belonging to minorities in its legislation. Both under the Charter and the Constitutional Treaty, protection of minorities will solely involve the prohibition of discrimination (CT, II-81; Charter, 21), but not the necessary corollary of acknowledgment and promotion of difference inherent to minorities’ rights. Indeed, the universalistic approaches to rights can accommodate non-discrimination more easily than group differentiated rights. The latter seems to need a much more pluralistic normative basis.

The accession process in 2004 brought to light a discrepancy with regard to the protection of minorities. Acceding States had to demonstrate, under very strict scrutiny, respect for and protection of minorities (EC Bull. 6-1993 at 13), such as the study of minority languages in education, use of minority languages with public authorities, on public signs, in judicial proceedings and access to media in minority languages. The reasons for this condition should, according to Andrew Williams, be set against the events that took place in Europe in the early 1990, in particular in the former Yugoslavia (Williams 2004, 67-9). In making accession conditional upon respect for and protection of minorities, the EU wanted to ensure stability and to discourage violence so as to avoid having to intervene in a future conflict in one of its Member States. Acceding States were thus recommended to ratify the Framework Convention for the Protection of National Minorities. However, existing Member States were never obliged nor recommended to do so as well.

This discrepancy results in ambiguity (Williams 2004, 79-110) and has led to claims that the EU applies double standards (Amato and Batt 1998). On the one hand, the accession of new States was and still is conditional upon the guarantee that they will ensure respect for and protection of minorities. On the other hand, the requirement to respect and protect minorities does not exist in the ‘acquis communautaire’. Thus, externally the EU requires of candidate States that adequate measures for the protection of minorities are put in place coupled with the ratification of a requisite number of human rights treaties. However, internally, the EU has not yet articulated a clear standard for the protection of minority rights. In actual fact, the EU applies a lesser standard which is that of respect for and protection of people belonging to minorities. As a consequence, the new Member States could rightly claim that their minority right provisions are more up-to-date and extensive than those of the older Member States. These provisions will also be more comparable amongst themselves than those of the older Member States having only recently had to legislate on the matter in accordance with the Framework Convention on the Protection of National Minorities. Thus from a human rights perspective, the EU has failed to address linguistic minorities issues by failing to impose positive obligations on its Member States. The EU should complement its internal anti-discrimination standards with minority rights provision in order to concur with current international law provisions concerning minorities.

The Protection of Minority Languages and the EU

From a cultural policy perspective, it is necessary to determine how minority languages are protected in the EU. The protection of minority languages is perceived as primarily of the competence of each Member State. Hence, it is necessary to examine to what extent the EU’s language regime and treaty provisions address the protection of minority languages, and whether the EU institutions have a uniform approach in their language policies with regards minority languages. The insufficiencies on all three accounts will bring to light that due to a lack of standard approach, within the minority languages, a hierarchy of languages is developing.

A Language Regime dominated by English

Language and the principle of linguistic diversity have been important factors since the creation of the EEC in 1957. The increase in EU languages has been detrimental to the efficiency of the workings of the EU. Hence, a hierarchy of languages has developed.

According to Article 290 EC, the rules governing the languages of the institutions of the Community are determined by a Council Regulation. Regulation n˚ 1 provides that ‘the official languages and the working languages of the institutions of the Community shall be Dutch, French, German and Italian’ (O.J. 017/385). The number of official languages has recently risen to 23 (Act of Accession 2003, 58). The scope of this language regime includes all the activities of the Union, institutions and bodies.

Ever since 1958, it has been inferred that all the official and working languages of the institutions are equal (article 314 EC) and although the principle is not legally binding (Creech 2005, 15), it has lingered. The institutions of the Community are obliged to draft all legislation and documents of public importance in each of these languages and allow EU citizens to communicate with them in the official language of their choice (Article 21 EC). This is a fundamental institutional rule of the EU.

Linguistic equality is a laudable principle, as it suggests that the EU has embraced its linguistic diversity fully. Indeed, linguistic equality promotes multilingualism and combats the emergence of a few languages to the detriment of the remaining less well represented languages. However, the financial and organisational implications outweigh its benefits. With each increase in official languages, the EU faces an increasing bill for interpretation and translation.⁽²⁾

In practice, it is questionable that strict linguistic equality currently exists with regard to the EU’s official languages. The EU institutions when dealing with its citizens will ensure easy access to its legal texts and correspond in the official language of the individual concerned.  As a consequence, the principles of linguistic equality and diversity are fully protected in communications between the institutions and citizens. The institutions, when conducting their internal business choose their own language arrangements (Article 6, Regulation, [1958], O.J. 017/385 1). Efficiency can necessitate the choice of a limited number of working languages provided it does not undermine the principle of linguistic diversity. The European Parliament’s language arrangements cover all the official languages. In general, the Commission and Council use an adapted approach with English, French and to a lesser extent German as the working languages, which may change to English, German and to a lesser extent French with the recent enlargements (Creech 2005, 24). As for the ECJ, each case has its own language, but the internal working language of the court is French. Each case is simultaneously published in all the Treaty languages which can give rise to significant delays with the language of the case being the authentic version (Creech 2005, 25-6).

This trend to limit the working languages has been confirmed by the ECJ and increasingly may be adopted in Community Regulations. Firstly, a recent ECJ case highlights that linguistic equality can be abandoned if efficiency dictates that when appropriate and proportionate the language choice be limited (Case C-160/03, Kingdom of Spain v. Eurojust, 2005 ECR I-2077). In this particular case, Spain sought the annulment of job announcements made by a Eurojust, a European Union body, under Article 230 of the EC Treaty (Council Decision 2002/187/JHA, 28 February 2002, O.J. 2002, L 63, p. 1; Creech 2006, 148). In Spain’s view, Eurojust’s language requirements of the selection procedure and selection criteria did not comply with the European Union’s language rules.  In particular, with regards the selection criteria, for the majority of positions, Eurojust sought to appoint candidates with an excellent knowledge of English as well as French, whereas the ability to work in other official languages of the Communities would be an asset (O.J. 2003, C 34 A, 1 – 19). Although, the ECJ dismissed the entire action, the Advocate-General’s opinion on this particular point merits further attention. The Advocate-General went out of his way to find grounds for admissibility of the case, but he did not propose a change to the existing applicable law permitting linguistic limitations. He essentially reiterated Kik v. OHIM (82) in stating that respect for linguistic diversity, while a matter of fundamental importance, was not absolute (38 and 40) and that in practice certain restrictions are necessary, “in order to reconcile observance of that principle with the imperatives of institutional and administrative life” (40). However, in the Advocate-General’s view, it was disproportionate for Eurojust to require that its employees have knowledge of more than one of its working languages (56), and by doing so Eurojust affords a privileged status to certain Union languages. Privileged status is increasingly afforded to the same languages, in particular English. It thus seems that with the increase of official languages, dominance of a small number of languages is inevitable. As a consequence, although linguistic diversity of the Union constitutes a fundamental rule of the EU (37), it is not a general principle of Community law. Hence the principle of linguistic equality must be cast aside when restrictions are necessary and justified. However, this has to be contained to the specific needs without creating unjustified differences of treatment between citizens and compromise equal access to jobs. This should never happen to the detriment of the linguistic balance of the Union and the principle of non-discrimination. In this respect, it was unfortunate that the ECJ dismissed the case, because it is necessary for the ECJ to clarify linguistic rights.

Secondly, a further illustration that the EU’s current language regime inevitably leads to dominance of a chosen few languages is highlighted in the postponed adoption of the Community Patent Regulation or CPR (Proposal for a Council Regulation on the Community Patent, COM/2000/0412. Amongst the objectives of the CPR is that to provide, in particular small to medium-sized businesses, with a relatively inexpensive procedure to obtain patent protection across the EU.  One of the difficulties resides in the choice of language regime of the CPR which on the one hand has to avoid increasing the financial burden of applicants due to multiple translations of the large amounts of text included in patent applications, and on the other hand wishes to take the EU’s cultural diversity into account. The current proposal is based on the working languages of the European Patent Office (EPO): English, French and German. An application can be made in any of these three languages; however a claim must be translated into all three languages. Proposed amendments to this language regime vary between applications made in one of the official languages to all official languages. Spain favours the application to be made in all the official languages, whereas the European Parliament suggests using the Community Trademark language regime in which the application would be made in any of the official languages as well as English, French, German, Italian or Spanish.

The universal language in the field of patents is English and efficiency may require linguistic diversity and equality to make way for the dominance of one language over all the other official languages of the EU.

It is thus apparent that the EU’s initial language regime has changed due to the increase in the numbers of languages. It is no longer uniform. The principle of linguistic equality is increasingly abandoned in favour of a few languages and does not address the protection of minority languages. Thus, pressures on efficiency and administrative economy dictate that fewer languages are used to enhance workability. As a consequence, there exists a hierarchy of languages with minority languages as the inferior category, but it is questionable whether the EU recognises its minority languages.

The Position of Minority Languages in the EU

At present, the EU acknowledges, to a limited extent, its minority languages through the contribution of funds to the Bureau of Lesser Used Languages (EBLUL) which is an independent non-governmental organisation with a European interest representing the regional and minority language communities and Mercator which is an information and research network for minority languages. However, no further provisions exist.

The Rome Treaty did not mention culture or language, because culture was considered to be the concern of organisations such as UNESCO and the Council of Europe (Craufurd Smith2007, 50). The TEU brought cultural policy within the remit of the EU as it provided that the Community should “contribute to the flowering of cultures of the Member States” and “to bring the common cultural heritage to the fore” (TEU 151(1); CT III-280). Article 151 EC provides the EU with a legal basis to conserve Europe’s cultural heritage for future generations. The EU shall assist and supplement the action of Member States by adopting incentives to promote the protection of minority languages of the EU. The EU has thus a secondary role, leaving it up to the Member States to take appropriate action. All harmonisation of laws and regulations of Member States are excluded (Craufurd Smith 2007, 51). Article 151(4) brings minority languages within the EU’s remit. Language is a direct expression of culture and gives people an identity. All languages of the EU are part of Europe’s cultural heritage and if a language becomes endangered, preservation measures must be adopted both by the Member State concerned, and in cooperation with the EU, because the disappearance of a language is permanent. Action should be taken on the basis of Article 251 EC which thus gives the European Parliament an active deciding role in linguistic diversity programmes through the mechanism of co decision for adoption of legislation in this area. The scope of action is limited to the adoption of incentive measures. This is mainly due to the fact that cultural diversity, but not linguistic diversity has a legal basis and that linguistic diversity programmes are seen as part of economic objectives rather than cultural ones, and thus are not taken on the basis of Article 151 EC (OJ L.306/40; Creech 2005, 52).

The Charter and the Constitutional Treaty will have little impact on the promotion by the EU of minority languages. Article I-3 of the Constitutional Treaty states the principle that “the Union shall respect cultural, religious or linguistic diversity” and this is reiterated in article II-22 and Article II-21 which prohibits discrimination on the grounds of language. In practical terms it means that EU legislation will have to respect linguistic diversity and not discriminate on the grounds of language, but this is a far cry from a concrete commitment to promote the preservation of minority languages in the EU by proclaiming a right to linguistic diversity. The right to linguistic diversity provides linguistic minorities with the necessary right to legal protection in order to preserve their differences and avoid assimilation. If the Constitutional Treaty is implemented in its current form co-decision will become the normal legislative procedure for the adoption of European laws, including incentive measures to safeguard cultural diversity (CT, III-396.

The EU’s current language provisions does not specifically provide for the protection of minority languages. Instead, they are buried within wider language policies rather than being addressed in their own right, as will become apparent when examining the role each of the EU institutions accords to minority languages.

Minority Languages, Linguistic Diversity and Multilingualism in the EU Institutions

Amongst the institutions of the EU, the most significant attempts to put linguistic minority issues on the agenda of the EU originated from the European Parliament. This is not altogether surprising, because as a directly-elected representative body, the European Parliament is expected to promote issues raised by its electorate. In fact, the European Parliament will not only work in all the official languages of the EU institutions, but also, if appropriate, permit the use of any other language (EP Rules of Procedure, 138).

Since the late 1970’s the European Parliament has articulated its desire for action in the field of the protection of linguistic minorities, but none of these endeavours were binding upon the Member States. They are, at best, declaratory and thus easily ignored by both Member States and EU institutions (EP Resolutions: 1981, OJ C 287, p. 1006; 1983, OJ, C68, p. 103; 1987, OJ C 318). These resolutions called for the Commission to take action in order to promote the use of minority languages and to review all Community legislation or practices which discriminate against minority languages (EP Resolution 1981, 6; EP Resolution 1983, 1(2))). They also urged Member States to officially recognise their minority languages if they or their Constitutions do not already do so. The European Parliament envisaged a division of labour with the Member States being responsible for policy realisation, and the Community having a coordinating role (Nic Shuibhne 2002, 64). However, without a clear Treaty-based competence concerning cultural and educational policies upon which to act, no further action was taken by the Commission, especially since it is reluctant to interfere in an area where Member States have very different political circumstances (Nic Shuibhne 2002, 70).

Despite Article 151 EC, the European Parliament made no significant progress with its further resolutions (EP Resolutions: 1990, OJ C 19, 42; 1994, OJ C 61, 110; 2001, OJ C 177 E, 334; CRPPRML 2003, COM-7/030; CMLEUCECD 2003,A5-0271/2003). More currently, the European Parliament supported the idea that EU citizens should be able to communicate with the EU in their own national language EP Resolution 2006, 2083 (INI), provisional edition: P6_TA-PROV(2006)0488), regardless of whether it is the officially recognised language of the Member State.

The Council considers that diversity only refers to the official and working languages of the EU institutions. This illustrates the philosophical discrepancy between the Council and the European Parliament on the notion of linguistic diversity. In accordance with the original economic nature of the EC, the Council has viewed linguistic diversity from a purely economic perspective to facilitate mobility and competitiveness which differs from that of the European Parliament which views the concept as cultural (Creech 2005, 61). This leaves a marginal place to minority languages within the context of linguistic diversity. In actual fact, the Council rarely refers to minority languages in its resolutions promoting linguistic diversity and when it does it is to give consideration to minority languages without adopting an active approach to allow preservation of these languages. When the Council refers to language learning and teaching (Council Resolution 1995, O.J. C 207/1), or to the languages of the Union (Council Resolution 1997, O.J. C 1/2) or when it reaffirms the principle of equal status from a cultural point of view of each of the languages of the Union (Council Resolution 2002, 2002/C 50/01), it is relevant to the official and working languages of the institutions to the exclusion of minority and regional languages. Although, the Council adopted in 2002 a resolution in which it declared itself in favour of linguistic minorities and requested the Commission to draw up an action plan on language learning, it did not put specific provisions in place (Council Resolution 2002).Instead, the Council’s focus is the learning, besides the mother tongue language, of two other languages amongst the EU’s official or working languages. Such statements disadvantage the learning of minority languages, because the learning of two official languages is prioritised. This can be further exacerbated if the Member State’s domestic legislation does not facilitate the learning of its minority languages in education. In the Council’s view, minority languages should be dealt with by the Member States without according a role for the EU.

In response to the Council’s commitment to linguistic diversity, the Commission has taken on the task of promoting multilingualism (Commission Communication 2005, COM/2005/0596), but whether minority languages will be given a space remains to be seen. Indeed since 2005, the portfolio of a European Commissioner includes multilingualism, which has become the single portfolio of a commissioner in January 2007. In November 2006, the Commission announced the creation of the High Level Group on Multilingualism. It is designed to assist the Commission with the assessment of how Member States are doing in enabling their citizens to have access to the learning of other EU languages and the promotion of multilingualism.

These are significant steps forward, as this elevates multilingualism to the status of policy in which the protection and preservation of minority languages could have a place. Although the Commission refers to minority languages, both the Action Plan which sought to promote language learning and linguistic diversity (Commission Communication 2003, COM (2003) 449 final) and the New Framework Strategy for Multilingualism (Commission Communication 2005) are primarily aimed at the official languages of Member States. Similarly to linguistic diversity, multilingualism is seen as a tool enabling freedom of movement of people to work or study in other Member States as well as combating the supremacy of the English language. In line with the Council, the aim is to ensure that all European citizens learn at least two foreign languages other than their mother tongue language and if they must learn English as a second language, they should also learn another language (Commission Communication 2005, 4). Theoretically, languages and multilingualism were understood to be all inclusive, but in practice this had not happened, because limited to the official languages of the Member States. As a consequence, it has been difficult to perceive how minority languages fit in and their exclusion has become detrimental to the protection and promotion of minority languages. If Member States are required to put in place provisions to enable the learning of two foreign languages this will inevitably take away time and resources for minority language learning in the school curriculum, therefore limiting access for persons belonging to a linguistic minority to minority language teaching.

The Commission does, however perceive its role as a coordinator, but is anxious to reaffirm that language policy is first and foremost of the competence of the Member States. The role of the Commission is to ensure consistency of action (Commission Communication 2005, 1.2).

Whereas the European Parliament unwaveringly continues to adopt resolutions urging the Commission to promote minority languages, the Commission promotes multilingualism and the Council promotes cultural diversity both only reserving an insignificant place for minority languages, thus minimising their importance within their programmes. As a consequence, notwithstanding a number of action and awareness-raising programmes with regard to minority languages, there is still no single European policy with regard to linguistic minorities. This is further hampered if a hierarchy of languages is created which differentiates between minority languages.

A Further Complication: the Creation of Sub-categories of Minority Languages

These categories presently encompass Irish Gaelic and the Spanish regional languages of Basque, Catalan and Galician on the other hand (Council Decision, 13 June 2005).Currently, the onus lies with the Member State to determine its official language(s). Although Ireland became a Member State in 1973 and despite the fact that the Irish Constitution defines the Irish language as the national language and ‘first official language’ with English the ‘second official language’ (Bunreacht, 8), Ireland decided not to put Irish Gaelic forward as one of their official languages. The Irish language, although a Treaty language, was not an official language of the EU. In January 2007, Irish Gaelic received a semi-official status in the EU. All key legislation adopted through co-decision will be translated into the Irish language which will also be recognised as an official language in job applications to the EU institutions, but the institutions will not be bound to draft and translate all acts in the Irish language at least during the transitional period. Ireland’s previous decision to omit the Irish language from the list of EU official working languages has been counterproductive for the preservation of the Irish language, which is now one of the objectives of the Irish political agenda (An Roinn 2005). The Council simultaneously created a further category of languages for the Spanish regional languages Basque, Catalan and Galician to be used in their dealings with the Commission. As a consequence, the EU has created a hierarchy of languages not only amongst the official and working languages, but also amongst the minority languages, despite the fact that the EU does not officially recognise any competence with regards minority languages.

As far as Irish Gaelic is concerned, it is an endangered minority language even in the Republic of Ireland (UNESCO Red Book on Endangered Languages: Europe), despite the Irish Constitution’s formal recognition that it is the first official language of the Republic of Ireland. As such preservation measures need to be put in place to protect the language from disappearing. Instead, the initial decision to exclude it as an official language of the EU institutions diminished the perceived language prestige of the Irish language to the benefit of English contributing to making it an endangered language with few active users.  Furthermore, for an Irish citizen wishing to work for one of the EU institutions, competence in the Irish language did not have any value. Instead, he/she was required to show competence in at least one other non-native language. Now that Irish Gaelic has received a semi-official language status on a transitional basis, this will certainly contribute to the preservation and promotion of the use of Irish, because it will improve language prestige and complement the Irish government’s policy to promote wider use of the Irish language in Ireland which is precisely the aims of protective minority language policies. It seems that, in the name of linguistic diversity and equality, Member States should no longer decide its official languages, and all full official languages of the Member States should also be the official languages of the EU. This may contribute to the preservation of minority languages, such as Irish Gaelic. Once languages are excluded this leads to the creation of ‘B’ lists which suggests a lesser status and contributes to poorer preservation of these languages. Furthermore, if the EU institutions in theory maintain linguistic equality as their language ethos, then this precludes that the official languages of some Member States are only given a semi-official status, even if on a transitional basis to train interpreters and translators, as in the case of Ireland.

As far as Basque, Catalan and Galician are concerned, the status these languages have been awarded distorts the issue for minority languages. Whereas the Irish Constitution declares the Irish language to be the first official language of Ireland, the Spanish Constitution confers a full official status on Castilian, but declares Basque, Catalan and Galician to be the other official languages in their respective autonomies (regions), although not mentioned by name. While there is little doubt that the Irish language should receive full official status, it is debatable whether regional minority languages which have not been granted full official status by their Member States should receive a preferential language status in the EU as this distorts language equality. This creates different categories of minority languages with the minority languages which are not sufficiently assisted by their governments as the forgotten category. It seems preferable that the EU, for the sake of linguistic diversity, recognises the importance to preserve its minority languages, and makes these special provisions available to all languages of the EU. If appropriate, the EU could allow citizens to use their language, such as for those activities that are address directly to citizens and are carried out in communities that have their own language.

Concluding Remarks: Diversity and Coherence, a new approach to Minority Languages in the EU

Both at Member State level and in the EU, minority languages are submitted to a wide range of different approaches, models and standards. Since cultural diversity is an EU objective, the EU can provide the impetus for the development of a more coherent approach, especially when this is reinforced by respect for linguistic diversity and for people belonging to a minority as envisaged by the Constitutional Treaty (CT II-82). This, by no means, involves reinventing the wheel, because this is an area in which the EU could look towards the Council of Europe’s efforts developed in this area with a view to cooperate and for inspiration to formulate the appropriate measures, as long as these do not infringe on their Member States’ competence.

As discussed, current provisions short-change both linguistic minorities and minority languages. From a human rights perspective, the protection of linguistic minorities is only effective when their differences are acknowledged and protected, even if this entails positive discrimination to establish effective equality. Such an approach is not an unthinkable shift, because the European Parliament in a resolution on non-discrimination and equal opportunities for all - A Framework strategy called for “positive measures” in appropriate case to be adopted to restore equality (2005/2191(INI), 8 May 2006, § 7). Thus showing that there is room for debate, as to which model the EU will follow when protecting its minorities: the current model of assimilation backed up by non-discrimination measures, or an alternative model of integration whilst recognising diversity and difference (De Schutter 2006, 13). The latter approach would bring the EU more in line with current international law obligations. Such an approach would contribute in developing closer cooperation in the area of minorities with the Council of Europe, in particular with regards the requirements of the Framework Convention on the Protection of National Minorities.

From a cultural policy perspective, the protection of minority languages is necessarily part of cultural and linguistic diversity. At this stage, it seems that the EU has two options. Firstly, the EU can opt to make no changes to its current language policies and language issues remain matters for the Member States, including the determination of its official languages. As a consequence, an adapted version of the principle of linguistic equality will guide the EU’s language regime with English but also French and German as de facto dominant languages. Furthermore, alongside the EU’s official languages, there will be other languages which receive partial recognition due to special pleadings and support received by some Member States. Secondly, the EU can opt that all official languages of Member States are also the EU’s Treaty languages with, for the sake of efficiency, a limited number of these languages receiving official status. Furthermore, the EU automatically recognises all EU’s minority languages for limited purposes, i.e. when appropriate the right for EU citizens to use the language of their choice in dealings with the EU institutions.

The latter option requires a modified version of the principle of equality of languages to accommodate all the languages of the EU. It is one where the principle of equality of languages is balanced with the goals of minority language protection to preserve the language, thus recognising different languages. This implies a more active approach by the EU in determining common objectives in the fields of education, media, communications and public life. This is a further area in which the EU, in accordance with article 151(3), has scope to expand its cooperation with the Council of Europe, especially since the Charter for the Protection of Regional and Minority Languages gives a framework of measures that contribute to language preservation. It is an advantage that the Charter for the Protection of Regional and Minority Languages creates rights for the minority language itself and not for the group of people that speak that minority language. It circumvents some of the problems faced by the EU, such as the fact that Member States cannot agree to recognise the existence of minorities, nor that the EU wishes to interfere in an area seen as the competence of Member States. If the minority language is the receiver of rights, this is compatible with article 151 EC without the EU having to recognise minorities and their rights. The EU, in its role of coordinator, could use the Charter’s framework of measures to adopt a minority language programme that complements national minority language policies and provide Member States with incentives to put in place the necessary preservation and protection measures.  In addition, the EU could avail itself of the information gathered under the auspices of the Council of Europe, as part of the workings of the Charter (Nic Shuibhne 2002, 63).

The latter option requires a modified version of the principle of equality of languages to accommodate all the languages of the EU. This would constitute a significant step forward towards a clear statement of intent that minority languages are part of Europe’s cultural diversity, and that the EU is willing to fulfil its role of conservationist and guardian of Europe’s cultural heritage whilst at the same time cooperating with the Council of Europe to avoid overlap in this area and to develop a modus vivendi and common protection of linguistic minorities. The main advantage though, is that the Council of Europe and the EU would cooperate to sing from the same hymn sheet.

Abbreviations

CETS	Council of Europe Treaty Series
CPR	Community Patent Regulation
CT	Constitutional Treaty
EBLUL	European Bureau of Lesser Used Languages
EC	European Community
ECHR	European Convention on Human Rights
ECJ	European Court of Justice
EP	European Parliament
EPO	European Patent Office
EU	European Union
FCPNM	Framework Convention for the Protection of National Minorities
ICCPR	International Covenant on Civil and Political Rights
OJ	Official Journal of the European Union
PACE	Parliamentary Assembly of the Council of Europe
TEU	Treaty of the European Union

  

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