Europa

Volume 3 No 2 - 2000

The EU: A New Window of Opportunity to Widen the Rights of Persons Belonging to Linguistic Minorities

Elena García Sagüés, University of Exeter

 

 

I. EU Support and Prromotion of Minority Languages 

Since the 1980's an increasing number of international institutions (e.g. United Nations), including European institutions [1], have adopted various positive provisions concerning lesser used languages and the rights of their speakers. Linguistic minorities nowadays thus engage the attention not only of the linguistic community itself and the State(s) to which it belongs but also the international community[2]. It is the emergence of an international interest in the subject that prompted me to look for a similar expansion in the approach to the study of linguistic minorities by trying to look at their situation within a framework other than that of the State or region. My interest in the European Union as a framework for the study of minority languages derives from its structure and more particularly from the fact that it differs greatly from other international organisations such as the United Nations or the Council of Europe in that it has 'real powers'. When comparing the EU competences with a State and/or other international organisations one realises that it is much more similar to the former (State) than the latter (international organisations). EU legislation has by and large general application, with treaties[3] and regulations, for example, being binding in their entirety and being directly applicable in all Member States, as has been confirmed by Directorate-General X: 

Despite the advice of numerous governments and its Advocate-General, the Court decided that all the rules of the founding treaties, which are worded unconditionally, are self-sufficient and legally complete so that their implementation or validity does not require any further intervention by the Member States or the Commission, can apply directly to individuals.[4]

But let us not be mistaken by this legislative or sovereign power. The Member States, when establishing a community endowed with its own institutions and particularly with 'real powers', did not transfer to it all their sovereign rights, but only those related to areas such as the internal market, the economy and the currency, for example. Thus, the Treaty of Rome (and subsequent treaties) do not include any rules directly concerning language (except for provisions relating to the operation of the European institutions themselves) neither do they grant the institutions the power to adopt such rules. Nevertheless, the existence of provisions relating to the operation of the European institutions themselves constitutes an excellent opening for linguistic minorities to lobby for the recognition of certain rights. The recognition of such rights by the EU would clearly call into question the morality of all Member States which continue to deny the same rights to minorities within their borders. This is the case of Catalan which, following a proposal from the Intergroup for Minority Languages, was granted limited recognition within the European Parliament: 

The European Parliament.... 

Calls on the Council, comprised of representatives of the member states, and the Commission to take whatever steps necessary to achieve the following objectives: 

- the publication in Catalan of the Community's treaties and basic texts;
- the use of Catalan for disseminating public information concerning the European institutions in all the media;
- the inclusion of Catalan in the programs set by the Commission for learning European languages;
- the use of Catalan by the Commission's offices in its written and oral dealings with the public autonomous communities in question ...[5]  

Unfortunately, although this resolution has normative consequences on the Parliament's activity, it is not binding upon the Commission or any of the other institutions of the European Union. Yet, the recognition of Catalan by the European Parliament opens many doors to Catalan speakers: first, as has been suggested, it calls into question the attitude of those governments which continue to withhold recognition; secondly, the rights claimed by the Catalan community gain increased respectability and become known beyond the State(s) to which it belongs; and finally, Catalans acquire added support for their lobbying. The pressure by the EU Parliament on the Commission and other institutions of the EU has led the Commission to affirm:[6] 

Europe enjoys a rich diversity of languages. The continuing process of integration will be significantly accelerated if open access is provided to legislative texts and supporting documents for all its citizens in the various languages used.[7]  

We can see that the Commission's stance as regards minority languages is rather different from that of the Parliament: first, it refers only to legal texts and, secondly, it can be said to be mere words, since legal texts are currently legally binding only in the official languages of the EU (Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish, and Swedish)[8]. Nevertheless, the adoption by the Commission of such a stance constitutes a step forward in the process of recognising the rights of linguistic minorities. Moreover, the Commission has launched a budget heading (B3-1006) also referred to as 'Community action in favour of regional or minority languages and cultures'[9] to support different projects related to the promotion of minority languages.[10]

The linguistic policy of the European Court of Justice is different again from that of the Parliament or the Commission. The only languages used when dealing directly with the public are the official languages of the EU and Irish. The basis for the recognition of Irish seems to be that of the nature of the service offered which includes, obviously, judicial proceedings in which citizens may be involved. For a case to be democratic, the persons involved need to fully understand the language of the proceedings, as has been pointed out on several occasions:  

The question not properly heard or understood, may bring forth an answer that might turn the scales from innocence to guilt or from guilt to innocence. There, too, the answer given may be made in words not entirely familiar or understood by the defendant...[11]  

Yet, the European Court of Justice seems to limit itself - as all EU institutions - to the official languages of the Member States and do not take into account that persons belonging to linguistic minorities are disadvantaged by such a linguistic policy[12]. This disadvantage may be considered to be in breach of Article 2 of the 'United Nations Universal Declaration of Human Rights': 

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.   

 

II. The EU Linguistic Policy: an infringement of human rights?[13]

There is another perspective from which to look at the relation between the EU and minority languages. We might say the other side of the coin, with heads being positive action (what the EU obviously wants to project as its public image), and tails representing the viewpoint of those who believe the EU linguistic policy is in breach of Human Rights. Persons belonging to linguistic minorities have often had recourse to the 'Universal Declaration of Human Rights' or the 'Convention for the Protection of Human Rights and Fundamental Freedoms' (which all EU member states have signed) in order to support their demands for the right to use their mother tongue with the administration, in judicial proceedings, etc. The rights to which they generally resort are (1) freedom of expression and (2) non-discrimination on the grounds of language.[14] 

It was only recently (in 1993) that one of the difficulties relating to the interpretation of the right to freedom of expression was addressed by the United Nations Human Rights Committee. It clearly stated and concluded that the situation involving individuals interacting with public authorities in official or service areas was not one where freedom of expression was relevant. 'Freedom of expression' protects a right to non-interference of the State in private matters and therefore does not impose a positive linguistic obligation on States. In the case of service areas (public matters) individuals are clearly asking for a State service, obviously incompatible with non-intervention. Thus, this right can only be invoked within the context of private relations. From here flow the successive failures of those individuals claiming that the state is positively obliged to respect their linguistic preferences in state activities. There only remains the possibility of resorting to non-discrimination on the grounds of language, a much more complex fundamental freedom in terms of its interpretation. 

It is important to make a clear distinction between differential and discriminatory treatment. As Fernand de Varennes points out: 

Any state language preference invariably favours some and disadvantages others. It must again be emphasised that this is an unavoidable situation, since no state has the resources to provide all of its services in every language spoken within its jurisdiction. However, the linguistic policy actually adopted in a given state must be reasonable.[15]

The choice of one or several official languages always results in differential treatment for those individuals whose mother tongue is different from the languages of the State/EU but it does not necessarily constitute discrimination. Everything comes down to whether or not in the end the State's conduct - in this case the EU's conduct - can be said to be 'reasonable' or not. The factors generally taken into account by judicial entities such as the European Court of Justice or the European Court for Human Rights when evaluating whether or not a 'differential treatment' on the grounds of language is discriminatory are: 

  • The number of individuals whose mother tongue is different from the official language(s). 
  • The nature of the service offered (advantages / disadvantages imposed on individuals by the existing linguistic policy).
  • Human, financial or material resources of the State/Institution in question. 

Now, there exists no scale determining when differential treatment may be considered to be discriminatory. There is none which refers to the number of speakers nor to the nature of the service offered nor the resources of the State. The difficulty inherent in establishing the rights of persons belonging to linguistic minorities is thus an absence of appropriate parameters. The ambiguity arising out of this has until recently been detrimental to linguistic minorities. However, it is now beginning to be used by linguistic minorities to their own advantage and a good example of it is the recognition of certain rights of Catalan speakers by the European Parliament. Clearly, the absence of appropriate parameters should not stop institutions from considering the claims of linguistic minorities since there are many ways in which to proceed: comparison with precedent being the most obvious one. 

To draw a comparison between, for example, the rights granted by the EU to Danish and Catalan speakers is not a straightforward exercise since many aspects need to be taken into consideration[16]. Some argue that it all depends on the factors taken into account and that one can easily conclude that there is no differential treatment in not recognising Catalan as an official language. Here is their approach: 

  • The EU has granted the same rights to all EU citizens as regards the use of a language since they are all allowed to use the official language of their State when dealing with the EU institutions (To the exception of Irish since Ireland accepted not to give Irish the official status).

They seem to forget:

1. That not all citizens of a country share the same language and that therefore there is differential treatment when analysing the issue at the level of the citizen (since we are dealing with individual rights I believe the 'citizen level' is the most appropriate one). There is no EU member State with a single language; neither is there a EU member State which grants the same rights to all linguistic communities within its borders. Thus, Catalan, Basque and Galician speakers in Spain, German speakers in Belgium and Denmark, etc. are disfavoured by their State linguistic policy. 

2. That not all EU minority languages are denied this right since the right does not consist in using the official language of the state to which one belongs but to use any of the official languages of the EU. Thus, many persons belonging to a linguistic minority (e.g. German speakers in Belgium) enjoy the same rights as those having the official language of their state as their mother tongue, and; 

3. That in many aspects the EU does not depend on the member states and that there is a direct link between the citizen and the institutions. EU institutions are becoming more and more independent of the member States and the way in which EU legislation (treaties and regulations, for example) becomes applicable clearly shows this trend. EU institutions have the power to adopt rules which are directly applicable in all member States, that is that they do not need to be ratified by the member States in order to be applicable. The State is no longer needed for EU citizens to feel the impact of EU institutions since the latter are getting closer to them. This has been confirmed by the EU: 

The individual has long since ceased to be merely a citizen of his town, district or State; he is also a Community citizen. For this reason alone it is of the highest importance that the Community citizen should be informed about the legal order that affects him personally.[17]

And: 

Europe enjoys a rich diversity of languages. The continuing process of integration will be significantly accelerated if open access is provided to legislative texts and supporting documents for all its citizens in the various languages used.[18] 

This last aspect seems to be the most difficult one to handle. Although part of the European legislation is directly applicable in all member states and does not need to be ratified by the member states to be valid (treaties, regulations, directives and decisions) the EU when conceived was envisioned as a 'union of states' rather than a 'union of citizens'. Yet, not only does EU legislation have a direct effect on the citizens but it seems that the EU has decided to get closer to the citizens - something that has resulted in strengthening the role of the EU Parliament, the only EU institution whose members are democratically elected - thereby turning the previous three-tier structure (EU-State-Citizen) into a two-tier one (EU-Citizen). If this change is to be carried out it should be carried out at all levels. The EU needs to be consistent and follow the same 'ideal' all the way. 

If the inconsistency on the part of the EU (three-tier [EU-State-Citizen] / two-tier [EU-Citizen] approach) were declared to be undemocratic, persons belonging to minority groups would be entitled to claim the same rights as any other citizen. Naturally, this does not mean that the EU needs to grant Mirandese speakers (approximately 15,000 speakers [19]) the same right that, say, French speakers enjoy. It would clearly be naive in the extreme to adopt such a position. The number of individuals whose mother tongue is different from the official language(s), the nature of the service offered and the human, financial and material resources of the EU should be taken into account when deciding whether or not differential treatment is discriminatory. Nonetheless some linguistic minorities should clearly be granted more rights. For example,