VASSILIOS GRAMMATIKAS

IMPOSING SOMETHING THAT DOES NOT EXIST? THE PROMOTION

OF MINORITY RIGHTS IN THE CONTEXT OF THE EU
ENLARGEMENT PROCESS AND THE ENP

1. Introduction

Back in the early 90’s, when the possibility of future enlargements of the EU was
apparent and the idea was also endorsed by the EU leaders, it was realized that the
criteria used for candidate states until then were totally insufficient to cover the new
wave of potential members. The vast majority of them were either former Soviet
(Baltic states) or former communist states of Eastern Europe with political, economic
and social systems entirely different from the fundamentals upon which the EU was
gradually built.
In order to regulate future enlargements the EU, in 1993, decided to formulate a
series of criteria to be used during any such process, the infamous “Copenhagen cri-
teria”. Since then, the term became the “holy grail” of enlargement and a major fac-
tor of consideration for potential candidate states.
Nevertheless, the EU itself did not have any institutional framework for minority
protection while, in the more general context, the Charter of fundamental rights be-
came part of the institutional framework of the EU only in 2009. However, in the
context of accession negotiations, observance of the Copenhagen criteria has been a
core issue and the EU has frequently treated them as a central point during the nego-
tiation processes.
The article will explore the impact of the Copenhagen criteria on the protection of
minorities in the candidate countries, but also their extension to the European
Neighborhood Policy and the Eastern Partnership, as well as the willingness and de-
gree of “compliance” by the respective states.

2. Evolution of the Copenhagen Criteria

When the EU-12 leaders decided not to form a closed club (or even a semi-
restricted union with the addition of the remaining western European states that were
not yet members), it became apparent that the existing processes and criteria for ac-
cession were hardly sufficient to cover the necessities imposed on the one hand by
186 Vassilios Grammatikas

the new and more complex structure of the European Union, including the acquis
communautaire and, on the other hand, by the fact that, with the exception of Cyprus,
Malta, and possibly Slovenia, all other potential candidates had a background of po-
litical, social and economic systems totally different and incompatible to the ones of
the EU, since they included former Soviet (the Baltic states) and former communist
eastern European States.
Therefore during the 1993 Copenhagen summit, the leaders of the EU for-
mulated a set of criteria that would be applicable in all future enlargement proce-
dures. In the Presidency conclusions of the Copenhagen European Council,1 under
Heading 7 entitled: “Relations with the Countries of Central and Eastern Europe” it
is provided that:
“Membership requires that the candidate country has achieved stability of institu-
tions guaranteeing democracy, the rule of law, human rights and respect for and
protection of minorities, the existence of a functioning market economy as well as
the capacity to cope with competitive pressure and market forces within the Union.
Membership presupposes the candidate's ability to take on the obligations of mem-
bership including adherence to the aims of political, economic and monetary un-
ion.”
While the text itself extensively deals with the economic parameters of the proc-
ess, no further elaboration of the political criteria was made.
The introduction of the political part of the Copenhagen criteria was not entirely
original. Considerations of this type were already included in the texts of association
agreements between the EEC (and its members) and former communist states of cen-
tral and eastern Europe, known as “Europe Agreements” the first of which was the
1991 agreement with Poland,2 followed by identical agreements with the rest of the
eastern European and Baltic states.
The official inclusion of the Copenhagen criteria into the EU terminology pro-
vided the Commission with a very useful tool in the process of evaluating the pro-
gress of candidate states. Moreover, the political nature of the criteria allowed for a
broad interpretation and a more flexible approach than the more technical require-
ments, like the adoption of the acquis.
_______________
1. Presidency Conclusions of the Copenhagen European Council of 21-22 June 1993, where the EU
leaders stated their willingness to accept new members in the following wording: “iii) The European
Council today agreed that the associated countries in Central and Eastern Europe that so desire shall
become members of the European Union. Accession will take place as soon as an associated country is
able to assume the obligations of membership by satisfying the economic and political conditions re-
quired”. EU Doc. SN/180/1/93, p. 13, also http://www.europarl.europa.eu/enlargement/ec/pdf/cop_
en.pdf, Last visited on 1.4.2014).
2. OJ 1993 L 348, p. 1. The preamble of the agreement provides inter alia the following: “RECOG-
NIZING the significant achievements of the Polish people in the process of fast transition to a new politi-
cal and economic order based on the rule of law and human rights, including the legal and economic
framework for market economy and a multiparty system with free and democratic elections …”.
Imposing Something that Does not Exist? 187

3. Human and Minority Rights in the EU

3.1. EEC and Human Rights

In the time of its creation the European Economic Community (EEC) neither did
it have a human rights dimension, nor did it need one for a variety of reasons:
a. The European Communities in general and the EEC in particular were created with
a view to form a single market, thus focusing exclusively on the economic aspects
of integration. Consequently, apart from the general requirement of democratic
governance, there was no need for the European Communities to address issues of
human rights.3
b. Additionally, all members were democratic, western European states, members to
the European Convention of Human Rights, therefore sharing a common set of
human rights principles.
Despite the above, human rights, as general principles governing the EEC legisla-
tive framework, were considered initially by the ECJ in the Handelsgesellschaft
case,4 where the Court ruled that fundamental rights formed an “integral part of the
general principles of [European Community] law”. The findings of the ECJ were
transformed into political commitments a few years later in the form of a Joint Decla-
ration by all EEC institutions concerning the protection of fundamental rights.5
_______________
3. There is however a perception among some authors that in view of the previous failure of two am-
bitious undertakings, the European Defence Community Treaty (1952) and the European Political Com-
munity Treaty (1954), the drafters of the EEC did not want to include any political aspect (such as human
rights) that could jeopardize the agreement (See Craig P & de Búrca G. EU Law, Text, Cases and Materi-
als (2003), p. 318). On the EPC See also R. T. Griffiths, ‘Europe’s first constitution: the European Po-
litical Community, 1952–1954’ in S. Martin (ed.), The Construction of Europe: Essays in Honour of
Emile Noël (1994), at 20-21, where the author also connects the failure of the EDC to the subsequent
failure of the political experiment of the EPC.
4. Case 228/69, Internationale Handelsgesellschaft mbH v. Einfuhr und Vorratsstelle für Getreide
und Futtermittel, [1970] ECR 1125. Reference should also be made to the Stauder Case (Case 29/69,
Erich Stauder v City of Ulm – Sozialamt, [1969] ECR 419, at 7), where the Court held that fundamental
human rights as “… enshrined in the general principles of community law and protected by the Court”.
5. Joint Declaration by the European Parliament, the Council and the Commission Concerning the
Protection of Fundamental Rights and the European Convention for the Protection of Human Rights and
Fundamental Freedoms (OJ 1977 C 103/1). The operative part of the Declaration reads as follows:
“1. The European Parliament, the Council and the Commission stress the prime importance they at-
tach to the protection of fundamental rights, as derived in particular from the constitutions of the Mem-
ber States and the European Convention for the Protection of Human Rights and Fundamental Free-
doms.
2. In the exercise of their powers and in pursuance of the aims of the European Communities they re-
spect and will continue to respect these rights”.
The effect of the above declaration was affirmed by the Court in the Johnson v Royal Ulster Con-
stabulary Case (Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary,
188 Vassilios Grammatikas

In the field of “soft law”, the European Parliament has been more active in ad-
dressing specific issues of minority protection, even in the absence of pro-minority
action by any other institution of the EEC. In 1981 it adopted a Resolution on a
Community charter of regional languages and cultures and on a charter of rights of
ethnic minorities,6 where it urged states to adopt a number of measures, mainly con-
centrated to the teaching and uses of minority languages, trying to involve the Com-
mission through a proposal to review all discriminatory practices against minority
languages and calling upon it to set up pilot projects on the teaching of minority lan-
guages. In 1983, the Parliament adopted a Resolution on Measures in Favour of Lin-
guistic and Cultural Minorities,7 reaffirming the latter and calling upon the Council
to ensure that the principles of that resolution are respected in practice. Finally, a
more comprehensive resolution of 1987 entitled Resolution on the languages and
cultures of regional and ethnic minorities in the European Community8 the Parlia-
ment reaffirmed its previous resolutions and formulated a more detailed list of pro-
posed rights and policies in favour of linguistic minorities and regional and minority
languages. However, the actual conduct of the other EEC / EU institutions in the next
years totally neglected the issues put forward by the European Parliament.

3.2. Human Rights in the EU

The situation changed in the course of transformation of the EEC into a predomi-
nantly political organization, the European Union. In the preamble of the Maastricht
Treaty, the leaders of the EU confirm “[…] their attachment to the principles of lib-
erty, democracy and respect for human rights and fundamental freedoms and of the
rule of law”,9 while art. 6 § 2 (F) provides the following:
_______________
[1986] ECR 1651, § 18), where the Court recalled the latter declaration and noted that fundamental rights
should be taken into consideration in Community law.
6. Resolution of the European Parliament on the Community Charter of Regional Languages and
Cultures and on a Charter of Rights of Ethnic Minorities (OJ 1981 C 287/106)/, pp. 106-107.
7. Resolution of the European Parliament on Measures in favour of minority languages and cultures
(OJ 1983 C 68/103), pp. 103-104.
8. Resolution of the European Parliament on the Languages and Cultures of Regional and Ethnic Mi-
norities in the European Community (OJ 1987 C 318/160), pp. 160-164. Specific mention was made to
the European Bureau for Lesser Used Languages (EBLUL) and the parallel efforts of the Council of
Europe that eventually led to the adoption of the European Charter for regional or Minority Languages in
1992. Influenced by the latter, as well as by the Charter of Paris for a New Europe (1991) and The CSCE
Human Dimension Copenhagen Document (1990) the EP adopted the Resolution on linguistic and cul-
tural minorities in the European Community, proposing more solid actions by states and the EC organs to
promote the use of minority languages, Resolution of the European Parliament on the Languages and
Cultures of Regional and Ethnic Minorities in the European Community (OJ 1994 C/61- A3-0042/94),
pp. 110-113.
9. Treaty on European Union (OJ 1992 C 191/01), also available at: <http://eur-lex.europa.eu/legal-
Imposing Something that Does not Exist? 189

“The Union shall respect fundamental rights, as guaranteed by the European Con-
vention for the Protection of Human Rights and Fundamental Freedoms signed in
Rome on 4 November 1950 and as they result from the constitutional traditions
common to the Member States, as general principles of Community law”.
Thus, in the most official way, the EU incorporated fundamental human rights
into its agenda, without however making it directly applicable to the decision-making
process of its organs.
This deficit was partially covered when, in 2000, the EU adopted the Charter of
Fundamental Rights,10 a text that might have an influential character, if it had a le-
gally binding nature. However, the decision was to adopt the Charter as a political
declaration and not as a binding legal document and refer its actual legal force to the
future.11 Acknowledging the problem, the EU leaders decided to include the Charter
as a chapter of the 2003 Constitutional Treaty. When the fate of the latter was sealed
as a result of the negative referenda in France and the Netherlands, most EU mem-
bers wanted to incorporate the Charter into the Reform (Lisbon) Treaty, but this was
severely opposed by the UK and Poland, followed by the Czech Republic.
Therefore, when it was clear that unanimity could not be reached on this issue, it
was decided to separate the Charter from the Lisbon treaty and adopt it as a legally
binding text, with UK, Poland12 and eventually the Czech Republic opting-out.13
_______________
content/EN/ALL/?uri=OJ:C:1992:191:TOC>, last visited 12th June 2014.
10. Charter of Fundamental Rights of the European Union (OJ 2010 C 83/389/), (Annotated version
of the 2000 Charter – the legally binding text).
11. See the Presidency Conclusions of the 2000 Nice Summit, Part I: http://www.europarl.europa.
eu/summits/nice1_en.htm, last visited on 12th June 2014 .
12. The UK and Poland expressed their reservations even during the negotiating phase of the Lisbon
Treaty, securing an opt-out Protocol that excluded any judicial interference in the following wording:
Art. 1 § 1 “the Charter does not extend the ability of the Court of Justice of the European Union, or any
court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative
provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamen-
tal rights, freedoms and principles that it reaffirms", while Art. 1 § 2 explicitly states that the Charter
provisions containing social or economic rights do not create justiciable rights in the two countries,
unless provided so by domestic legislation. It is interesting to note that the UK accepted the content of the
Charter as part of the Constitutional treaty but changed its position during the Lisbon treaty negotiations,
probably finding itself in a better negotiating position. The motives of the two states were not moving
towards the same direction. On the one hand, the UK wanted to secure that the labour and social rights
contained in the Charter would not alter its domestic legislation, considering that this would increase the
cost of businesses and extend the right to strike for workers. On the other hand Poland had a more com-
plicated approach towards the Charter. Initially, the Polish Government under the Kaczyński brothers
was concerned that the application of the Charter would allow homosexual couples to the same rights as
heterosexuals. When the Government changed in 2007, Prime Minister Tusk declared that he would not
sign the Charter, despite the fact that his coalition was in favour, prior to the elections. After many con-
tradictory statements as to the upholding of or withdrawal from the Protocol, it now seems that Poland is
reconsidering its position and that it will eventually sign the Charter, as the Parliament (Sejm) had al-
ready indicated by the end of 2007 (for that resolution in Polish see http://orka.sejm.gov.pl/proc6.
190 Vassilios Grammatikas

The ECJ however, took a conceptually different stand on the application of the
Charter in these States. In the NS v. Home Secretary Case the Court held that Article
1(1) of the British Protocol “[…] explains Article 51 of the Charter with regard to the
scope thereof and does not intend to exempt the Republic of Poland or the United
Kingdom from the obligation to comply with the provisions of the Charter or to pre-
vent a court of one of those Member States from ensuring compliance with those
provisions”.14 Furthermore, the Court ruled that the questions asked by the British
Court of Appeal and involve issues of the application of the Charter “do not require
to be qualified in any respect so as to take account of Protocol on the application of
the Charter of Fundamental Rights of the European Union to Poland and the United
Kingdom” (operative para. 4). Thus, the Court totally disregarded, if not annulled,
the intended effect of the Protocol.15
In light of the above, it is now safe to say that the Charter has “imported” into the
EU law- and decision-making processes a strong human rights flavor that was there
since the Maastricht Treaty, but in less precise and less clear terms. The frequent use
of the Charter by the ECJ, even before its elevation into a legally binding instrument
seems to secure an enhanced protection of human rights in all areas of competence of
the EU and will undoubtedly make EU organs, especially the Commission to be a lot
more careful in addressing fundamental human rights in the course of their activities.
3.3. Minority Rights and the EU
3.3.1. The existing framework
Discussing the relationship between the EU institutions and minority rights is an
entirely different question. If one attempted to write an article about the minority
_______________
nsf/uchwaly/86_u.htm, last visited on 12th June 2014).
13. The Czech Republic opposed the Charter at a later stage, linking the ratification of the Lisbon
Treaty to an opt-out clause similar to the latter. The main reason behind the Czech refusal was the possi-
bility of Germans, expelled from the territory of Czechoslovakia under the Beneš decrees to use the Char-
ter in order to reclaim their property. The Czech President Václav Klaus linked ratification of the Lisbon
Treaty to a similar protocol excluding the Czech Republic. After several changes in the Czech position,
the newly elected Prime Minister after the January 2014 elections, Bohuslav Sobotka announced his in-
tention to withdraw the request for an opt-out (source: http://www.reuters.com/article/2014/02/19/us-
czech-eu-idUSBREA1I1A520140219, last visited 12th June 2014).
14. Joined cases C-411/10 and C-493/10, N.S. v Home Secretary and M.E. v. Refugee Applications
Commissioner, [2011] EUECJ C-411/10 (21 December 2011), para. 120, available athttp://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010CJ0411:EN:HTML, last visited 12th June
2014.
15. The same view as to the actual impact of the Protocol is shared by several authors. See inter alia,
I. Pernice, “The Treaty of Lisbon and Fundamental Rights” in S. Griller & J. Ziller (eds.), The Lisbon
Treaty: EU Constitutionalism without a Constitutional Treaty? (, 2008), pp. 245, at 248-249; Craig & de
Burca, supra n. 3, p. 395.
Imposing Something that Does not Exist? 191

rights regime of the EU, it would probably be the shortest article ever written, an-
swered by a simple word: none.
The term “minorities” is not entirely alien to the EU vocabulary. Art. 2 of the
TEU refers to minorities in negative terms as follows: “The Union is founded on the
values of […] human rights, including the rights of persons belonging to minorities”.
Additionally, Art. 21 of the Charter of Fundamental Rights prohibits discrimination,
inter alia, on grounds of membership to a national minority.
According to the Commission website, respect of the rights of persons belonging
to national minorities is one of the values of the EU,16 but it goes on to admit that “it
has no general power as regards minorities”, which lie within the authority of the re-
spective states. In essence, even through the words of the Commission, the EU does
not have authority and does not have any kind of institutional framework on the pro-
tection of minorities.
But even if we accepted that such a protective framework existed, certain issues
of general nature that are attached to minorities would render the issue of protection
at the EU level highly problematic. Initially, the absence of a universally accepted
definition of the term minority,17 limits, to some extent, the recipients and the poten-
tial for protection. Secondly, while the EU refers to the ECHR as the appropriate re-
gime for the protection of human rights, this is not the case with minorities, as there
doesn’t exist an equivalent institutional framework to cover minority rights.18
Thirdly, reference by Art. 21 of the Charter of Fundamental Rights to “national mi-
norities” only, limits even further the alleged protection that it grants through the
non-discrimination clause.

3.3.2. Is there a common set of minority rights among EU members?

Even if we disregard the above, a common policy on behalf of all EU members

regarding minority protection might be enough to consider that there is indeed a
common framework for minority protection that allows the EU organs to apply it
_______________
16. http://ec.europa.eu/justice/fundamental-rights/minorities/index_en.htm, last visited 12th June
2014.
17. On the issue of definition see inter alia, F. Capotorti, Study on the Rights of Persons belonging to
Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/ Rev.1, 1979, para. 568, J.
Deschene: Proposal concerning a definition of the term “minority”, UN Doc. E/CN.4/Sub.2/1985/31,
14.5.1985, para. 181, V. Grammatikas, ‘The Definition of Minorities in International Law: A Problem
still Looking for a Solution’ (1999) 52 Revue Hellénique de Droit International 321.
18. As Toggenburg observes, the fact that there is no acquis communautaire involved in the area of
minority protection, the accession criterion of the protection of minorities is left “somewhere in the open
field of political obligations” (G. N. Toggenburg, The EU’s evolving policies vis-à-vis Minorities: A Play
in Four Parts and an Open End (2008), p. 4.
192 Vassilios Grammatikas

during the enlargement, ENP and EaP procedures.

The most advanced legal instrument concerning minority protection worldwide is
the Framework Convention for the Protection of National Minorities (1995) that was
adopted by the Council of Europe.19 Although the Convention itself considers minor-
ity rights as part of international human rights,20 it adapts many of them to cover the
special needs of minorities, while it introduces certain rights tailored exclusively for
minorities. Despite the fact that the rights are not directly applicable by persons be-
longing to minorities, the control mechanism that was established seems to be work-
ing successfully in order to safeguard and promote minority rights. The main ques-
tion though is whether this is a set of rules common to all EU members and, as such,
suitable to be […] exported abroad.
Out of 28 member states, one (France) has not even signed the FCNM, while
three (Belgium, Greece & Luxemburg) have signed but not ratified it.21 However,
even the States that are parties to the FCNM have made reservations or declarations
limiting the scope of protection. Thus, Germany considers minorities for the pur-
poses of the FCNM Danes, Sorbians, Frisians, Sinti and Roma of German citizen-
ship, Denmark applies the FCNM only to the German minority in South Jutland, the
Netherlands applies the FCNM only to the Frisians, Slovenia considers as national
minorities the autochthonous Italian and Hungarian minorities and the Roma, Swe-
den designates as minorities the Sami, Swedish Finns, Tornedalers, Roma and
Jews.22
It is not difficult to detect the complete lack of any uniform approach to the issue
of minority protection, even to the designation of groups as minorities. If, for exam-
ple, we refer to the Roma, several states that are parties to the FCNM do not consider
them as minorities for the purposes of protection, despite the fact that the Fundamen-
tal Rights Agency of the EU considers them as the biggest ethnic minority in
Europe.23 If ones tries to detect a common denominator towards minority protection
within the EU political or legal establishment, this is confined to various provisions

_______________
19. ETS No. 157, Strasbourg 1.2.1995. Text: http://conventions.coe.int/Treaty/en/Treaties/Html/
157.htm, last visited 12th June 2014.
20. Article 1 provides that “The protection of national minorities and of the rights and freedoms of
persons belonging to those minorities forms an integral part of the international protection of human
rights, and as such falls within the scope of international co-operation”, while under Article 23 the
FCNM provisions should conform with the equivalent provisions of the ECHR.
21. Source: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=157&CM=8&DF=
21/04/ 2014&CL=ENG, last visited 12th June 2014.
22. List of declarations made with respect to treaty No. 157: http://conventions.coe.int/Treaty/ Com-
mun/ ListeDeclarations.asp?NT=157&CM=8&DF=21/04/2014&CL=ENG&VL=1.
23. See http://fra.europa.eu/en/theme/roma, last visited 12th June 2014. According to the FRA, about
6 million Roma reside in EU states, most of which are also EU citizens.
Imposing Something that Does not Exist? 193

of secondary EU legislation concerning prohibition of various forms of discrimina-

tion, which is applicable to minorities as well,24 perhaps more than to the rest of the
citizens, but still having a general nature.
It seems that the major field of application of EU minority rights concerns has
been […] foreign relations,25 especially by enforcing the Copenhagen criteria vis-à-
vis the candidate states, but also in the course of the various cooperation processes in
the immediate or wider neighborhood of the Union, namely the European Neighbor-
hood Policy, the Stabilization and Association Process and the Eastern Partnership.

4. Implementation of the Copenhagen criteria in the course of the 2004-2013

enlargement

References to human rights were made in the preambles of the Europe Agree-
ments, even before any of the Eastern European states applied for membership to the
EU. In the Czech agreement,26 the preamble provides that “Recognizing the estab-
lishment in the Czech Republic of a new political order which respects the rule of
law and human rights, including the rights of persons belonging to minorities […]”,
while Art. 6 of the operative part, under the heading “General Principles” refers to
“respect for the Democratic Principles and human rights, as established by the Hel-
sinki Final act and the Charter of Paris for a New Europe […]”. Almost identical
provisions exist in several other Europe Agreements,27 but not in all of them.28 The
EU took a slightly different approach in the respective agreements with the Baltic
States. These agreements lack a general reference to minority rights, though Art. 2
refers to the protection of human rights as a general principle, but they focus on mu-
tual cooperation in the field of “[…] promoting language training […] in particular
for resident persons belonging to minorities”.29
_______________
24. The Commission itself admits that the only contribution of EU legislation and programmes is
with regard to anti-discrimination measures that also affect persons belonging to minorities (http://ec. eu-
ropa.eu/justice/ fundamental-rights/minorities/index_en.htm, last visited 12th June 2014).
25. See also D. Šmihula, ‘National Minorities in the Law of the EC/EU’ (2008) 8 Romanian Journal
of European Affairs 51, at 67, where the author points out (probably ironically) that it is rather strange
for human (and minority) rights to have a bigger impact in the relations of the EU with third states than in
its internal policy.
26. OJ 1994 L 360/2/31.12.1994.
27. Almost identical provisions exist in several other Europe Agreements: Slovakia (OJ 1994 L
359/2), Romania (OJ 1994 L 357/, Bulgaria (OJ 1994 L 358/1). The same wording is repeated in the
Agreement with Slovenia (OJ 1999 L 51/1/26.2.1999), despite the fact that Slovenia is a virtually mono-
ethnic state and had already undergone the Stabilization and Association Process.
28. It is noteworthy that the Polish and Hungarian Agreements do not even contain the word minori-
ties, while there is no operative provision referring to human rights.
29. This clause is contained in Art. 78 of the Agreements, Latvia (OJ 1998 L 26/1), Lithuania (OJ
194 Vassilios Grammatikas

In the course of an enlargement process unprecedented in its size and scope, the
EU had to forge a structured process, the first step of which was the Accession Part-
nerships. In 1998 the Council decided on the principles that should govern the indi-
vidual Accession Partnerships30 and, without referring directly to minorities, it ren-
dered pre-accession assistance to the recipient states conditional upon fulfilling the
Copenhagen criteria.

4.1. Demands by the EU during the Accession Negotiations

A more focused approach to the issue of minorities was made in the next phase of
the relationship between the EU and the candidate states. During the Accession
Agreements with several of the above countries, the Commission had the opportunity
to address specific minority issues. The findings and the observations of the Com-
mission in the Progress reports served as the basis for the formulation of EU de-
mands in the field of minority protection, but even this process proved to be selective
and circumstantial.31

4.1.1. The Roma issues

The first – and less problematic – issue that was addressed was the situation of the
Roma, both in terms of non-discrimination, as well as positive minority protection.
Several issues concerning the Roma (discrimination, social exclusion, education, ra-
cism even by municipality officials) were raised in the pre-Accession phase.
_______________
1998 L 51/3), and in Art. 77 of the Agreement with Estonia (OJ 1998 L 68/3).
30. Council Regulation (EC) No 622/98 of 16 March 1998 on assistance to the applicant States in the
framework of the pre-accession strategy, and in particular on the establishment of Accession Partner-
ships , (OJ 1998 L 85/1/). In the preamble it is provided that “Whereas Community assistance is condi-
tional upon respect of the commitments contained in the Europe Agreements and upon progress towards
fulfillment of the Copenhagen criteria;” while, in article 4 it is stated what happens in the event of viola-
tion, on behalf of a candidate state, of the commitments in the following wording: “Where an element
that is essential for continuing to grant pre-accession assistance is lacking, in particular when the com-
mitments contained in the Europe Agreement are not respected and/or progress towards fulfillment of the
Copenhagen criteria is insufficient …”.
31. In this respect, Wiener and Schwellnus argue that “In sum, minority protection is not an EU rule
and remains a weak rule, lacking a common standard, in the accession acquis, with the result that condi-
tionality varies greatly across accession states. Some countries with problematic minority situations are
under continuous scrutiny and face explicit and determinate, though not necessarily legitimate EU de-
mands; others have to comply with the minority criterion in general, but do not seem to be subject to any
particular minority protection disciplines.” (A. Wiener & G. Schwellnus, ‘Contested Norms in the Proc-
ess of EU Enlargement: Non-Discrimination and Minority Rights’ (2004) 2 Constitutionalism Web-
Papers,available at https://www.wiso.uni-hamburg.de/fileadmin/sowi/conweb/conwebwiener/2004/ con-
web2_2004.pdf, last visited 12th June 2014).
Imposing Something that Does not Exist? 195

Thus, the Czech Progress Report of 1999 raised significant issues of discrimina-
tion and social exclusion practices against the Roma, highlighting the overall unsatis-
factory attitude of the State towards the Roma.32 It seems however that the pressure
exerted upon the Czech Republic motivated the latter to adopt positive measures to
tackle the problems indicated by the Report.33 Similarly, the relevant reports on Hun-
gary underline the existence of discrimination and education problems but it is clear
that the Reports are much more favorable to Hungary, accepting that the state has
adequate mechanisms to address the Roma issues, including an Ombudsman for mi-
nority rights.34 In the case of Slovakia, the Commission made a very positive, initial,
evaluation regarding the Roma situation, both de jure and de facto.35 For Slovenia,
the only minority issue that existed was the Roma situation, with the Commission
considering that the measures undertaken by the Slovene state were adequate to con-
front the problems in education.36
In the case of Poland, the Reports do not even refer to the Roma and, in general,
the examination of minority issues is confined in a few lines, considering that Poland
has no issues whatsoever with regard to minorities,37 while in the Reports of Lithua-
nia,38 Estonia39 and Latvia40 there is no reference to the Roma at all.
_______________
32. <http://ec.europa.eu/enlargement/archives/pdf/key_documents/1999/czech_en.pdf>, pp. 16-17,
last visited 12th June 2014.
33. This is evident in the 2000 Regular Report, where the Commission indicates that “Increased and,
in some areas, significant efforts have been made since last year regarding the situation of the Roma
community, notably with regard to the education system” (http://ec.europa.eu/enlargement/archives/
pdf/key_documents/ 2000/cz_en.pdf, last visited 12th June 2014.), p. 27. In the 2002 Regular Report the
Commission notes even further improvements to the legislative and administrative framework regarding
the Roma (http://ec.europa.eu/enlargement/archives/ pdf/key_documents/2002/cz_en.pdf, last visited 12th
June 2014.), pp. 33-34. In that report, the Commission relied in the findings and the recommendations of
the FCNM Advisory Committee’s Opinion.
34. 1999 Progress Report on Hungary (http://ec.europa.eu/enlargement/archives/pdf/key_ docu-
ments/1999/ hungary_en.pdf, last visited 12th June 2014.), p. 15. The conclusions of the Commission are
repeated in the 2000 Regular Report (http://ec.europa.eu/enlargement/archives/pdf/keydocuments/2000/
hu_en.pdf, last visited 12th June 2014.), p. 21.
35. 1999 Progress Report on Slovakia (http://ec.europa.eu/enlargement/archives/pdf/key_documents/
1999/ slovakia_en.pdf, last visited 12th June 2014.), pp.17-18, and 2000 Regular Report (http://ec.europa.
eu/enlargement/archives/pdf/ key_documents/2000/sk_en.pdf, last visited 12th June 2014), p. 22.
36. 1999 Progress Report on Slovenia (<http://ec.europa.eu/enlargement/archives/pdf/key_ docu-
ments/ 1999/ slovenia_en.pdf>, last visited 12th June 2014), p. 17.
37. The 1999 Progress Report on Poland simply states that “In Poland, the respect for and protection
of minorities continues to be assured” (http://ec.europa.eu/enlargement/archives/pdf/keydocuments/
1999/ poland_en.pdf, last visited 12th June 2014), p. 17.
38. 1999 Progress report on Lithuania (http://ec.europa.eu/enlargement/archives/pdf/key_ docu-
ments/1999/ lithuania_en.pdf, last visited 12th June 2014). p. 15.
39. 1999 Progress Report on Estonia (http://ec.europa.eu/enlargement/archives/pdf/key_ docu-
ments/1999/ estonia_en.pdf, last visited 12th June 2014), pp. 15-16.
40. 1999 Progress Report on Latvia (http://ec.europa.eu/enlargement/archives/ pdf/key_ docu-
196 Vassilios Grammatikas

In the Joint Report on Social Inclusion submitted by the 10 Acceding States in

2005,41 the adverse social conditions of the Roma in the various states are high-
lighted and certain measures to tackle social exclusion and discrimination against
them are proposed.42 It should be noted however that states in which Roma were not
even mentioned during the Progress Reports, suddenly appear with sizeable Roma
populations and are even criticized on various deficiencies in the field of Roma pro-
tection. In the words of the Commission “[Social inclusion policy measures] […]
have been in general quite disappointing. Although the vulnerability of disadvan-
taged groups such as Roma […] to poverty and exclusion has been recognized by all,
only in few cases a clear strategy, with specific targets, objectives, budget, timetable
and evaluation mechanisms has been set out”.43
In light of the above, it is safe to conclude that, by neglecting the Roma issues in
certain accession cases, the Commission played a purely political role, unrelated to
the mandate it had to carry out, namely to assess the human rights record of each
candidate state.

4.1.2. Protection of Minorities

A much more delicate issue was the treatment of national, religious and linguistic
minorities. In this respect, the Commission did a better screening of the various is-
sues in the candidate states and addressed several minority situations.
Thus, the situation of Hungarian minorities in Slovakia and Romania is dealt with
in some detail. In the case of Slovakia the 1999 Progress report describes the efforts
of the Slovak authorities, mainly in the fields of education and the use of language
before the administrative authorities, noting the significant progress Slovakia made.44
For the Hungarian minority in Romania the 1999 Report is also descriptive of the
positive measures undertaken by Romania.45
The Turkish minority in Bulgaria also attracted some attention. In the 1999 Pro-
_______________
ments/1999/ latvia_en.pdf, last visited 12th June 2014), pp. 16-18.
41. European Commission: Report on social inclusion 2005: An analysis of the national action plans
on social inclusion (2004-2006) submitted by the 10 new Member States (Office for Official Publications
of the European Communities, Luxembourg, 2005), pp. 78 et seq.
42. Ibid. pp. 80-84.
43. Ibid., p. 85.
44. http://ec.europa.eu/enlargement/archives/pdf/key_documents/1999/slovakia_en.pdf, last visited
12th June 2014, pp. 16-17.
45. http://ec.europa.eu/enlargement/archives/pdf/key_documents/1999/romania_en.pdf, last visited
12th June 2014, p. 19. In the 2004 Regular Report (http://ec.europa.eu/enlargement/archives/pdf/key_
documents/2004/rr_ro_2004_en.pdf, last visited 12th June 2014), the last of its kind before Romania en-
tered the EU, it is stated that “Relations with other minorities [other than the Roma] did not present ma-
jor problems during the reporting period”. Report p. 30.
Imposing Something that Does not Exist? 197

gress Report46 the Commission considers that the Turkish minority is fully integrated
within the society.
Undoubtedly, the main minority issue the Commission had to deal with was the
position of ethnic Russians (or Russian-speaking minority) in Latvia and Estonia.47
The fact that a large number of residents were deprived of the respective citizenships
raised substantive issues as to the fulfillment, not only of the political criteria, but
also touching upon economic aspects as well.
One would expect that the EU would apply pressure in order for this issue to be
effectively resolved, prior to the accession of the two countries, especially Latvia, to
the EU. This, however, proved not to be the case. While the Commission covered in
detail many aspects of discrimination against minorities in Latvia and Estonia in the
Progress Reports, it never went as far as to impose the abolition of the qualifications
for acquisition of the respective citizenships, which was the core of the problems. It
should also be noted that, in the cases of Latvia and Estonia, the Commission relied
to a large extent on the OSCE (and CoE) findings,48 but the final outcome (on behalf
of the EU) fell short of the “international standards” it invoked.
Even after the accession of Latvia into the EU, the Union seems to tolerate these
policies, even endorsing them. Thus, in late 2003 the Council adopted a Directive
concerning “the status of third country nationals who are long-term residents”,49 al-
lowing them to participate in the economic freedoms granted by the EU, in particular
free movement of persons, and this was even conceived by some authors as “sooth-
ing the criticism that the EU discriminates against people of Russian origin”.50
In the case of Croatia, contrary to what the EU did with Estonia and Latvia, the
Commission relied almost exclusively to the findings of other international actors,
_______________
46. http://ec.europa.eu/enlargement/archives/pdf/key_documents/1999/bulgaria_en.pdf, last visited
12th June 2014, p. 16.
47. For the nature of this issue and its implications See A. J. Hanneman, ‘Independence and Group
Rights in the Baltics: A Double Minority Problem’ (1995) 35 Virginia Journal of International Law 485;
M. Holzapfel : Note, ‘The Implications of Human Rights Abuses Currently Occurring in the Baltic States
against the Ethnic Russian National Minority’ (Winter 1995-96), 2 Buffalo Journal of International Law
329; R. Kalvaitis , ‘Citizenship and National Identity in the Baltic States’ (1998) 16 Boston University In-
ternational Law Journal 231; P. Van Elsuwege , ‘Russian-speaking Minorities in Estonia and Latvia:
Problems of Integration at the Threshold of the European Union’ (2004) 20 ECMI Working Papers,
available at http://www.ecmi.de/uploads/ tx_lfpubdb/working_paper_20.pdf, last visited 12th June
2014;A. Cheskin, ‘Exploring Russian-Speaking Identity from Below: The Case of Latvia,’ (2013) 44
Journal of Baltic Studies 287.
48. See e.g. the 1999 Progress Report on Latvia, supra n. 40, p. 18.
49. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country
nationals who are long-term residents (OJ 2004 L 16/444).
50. K. Messerschmidt, “Legal Problems on the Right of Establishment and the Freedom to Provide
Services: Impact on New Member States”, in Y. Goldammer , The Long Road of Smaller Countries into
the Enlarged European Union (2006), at 35-36.
198 Vassilios Grammatikas

mainly the decisions of the ECtHR. Despite the fact that Croatia had already been
part of the SAP, and it should have already conformed with the fundamental re-
quirements of that process, the initial Accession Progress Report of 2005 indicated
some serious problems regarding the treatment of the Serb minority, while the Com-
prehensive Monitoring Report of 2012 (the last prior to accession) noted several mi-
nority issues that still continued to exist.51 Yet, Croatia had no problems in becoming
an EU member.
The overall picture of the treatment by the EU Commission of minority problems
in the course of the already completed EU enlargements appears rather disappointing
in the sense that very serious violations of minority rights (and human rights in gen-
eral) were addressed in the course of accession negotiations but they were either ig-
nored in the end or even sanctioned by the EU (in the case of denial or qualified citi-
zenship for the Russian minority in Latvia and Estonia). This attitude is even more
surprising since the Commission (and the EU as a whole) never engaged in actual
negotiations with the candidate states but imposed demands that had to be met down
to the last detail, like in the case of the adoption of the acquis. However, the Com-
mission adopted a much more flexible and definitely selective approach on the issue
of minority rights which could describe its conduct towards the “minority” part of the
Copenhagen criteria not as “political” but rather as “politicized”.

5. The Stabilization and Association Process (SAP)

The SAP was designed specifically for the Western Balkan States that were
granted the prospect of becoming members of the EU.52 In the context of the relevant
documents minority rights are considered in the same manner as the Copenhagen cri-
teria.
The 1997 Luxembourg Council rendered financial assistance to the recipient
states conditional upon “respect for human and minority rights” and “real opportuni-
ties to displaced persons”.53 At the legal level, the CARDS Regulation,54 which pro-
_______________
51. EU Doc. COM 601/2012 final of 10.10.2012, p. 4.
52. See the conclusions of the 2003 Thessaloniki EU Summit.
53. Annex III to Council Conclusions, Luxembourg 29/30 April 1997, in EU Bulletin, 4(1997), point
2.2.1.In the same text these general propositions are further elaborated to include “[the] right to establish
and maintain … own educational, cultural and religious institutions, organisations or associations …
adequate opportunities for … minorities to use their own language before courts and public authorities
and … adequate protection of refugees and displaced persons returning to areas where they represent an
ethnic minority”.
54. Council Regulation (EC) No 2666/2000 of 5 December 2000 on assistance for Albania, Bosnia
and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of
Macedonia, repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and
Imposing Something that Does not Exist? 199

vides the basis for funding in the context of the SAP, explicitly refers to minority
rights as an essential element for its application, making a direct reference to the
Luxembourg Council Conclusions.55
The SAAs that were eventually signed with all Western Balkan States consider
minority rights mention in their common Article 5 that human rights and the respect
and protection of minorities “[…] are central to the Stabilization and Association
process”,56 but minority rights are not listed as “essential elements” stipulated in Ar-
ticle 2 of the agreements. Therefore, the Council cannot suspend these agreements
invoking minority rights. Moreover, Article 5 is phrased not in the form of unilateral
obligations, but rather as mutually accepted principles.
As the SAP is interrelated to the Accession process, individual assessment of its
impact on minority protection issues can only be made with regard to countries that
do not bare the EU candidate status, namely Bosnia & Herzegovina. However, the
SAA with that state has not yet entered into force, even though Bosnia is practically
an EU “colony”, mainly due its non-functioning (or non-viable?) character.57

6. Eastern Partnership (EaP) and beyond

The latest cooperation process instituted by the Union is the Eastern Partnership,
which attempts to enhance and upgrade the European Neighborhood Policy towards
the European (or quasi European) former Soviet states that are not members of the
EU, namely, Belarus, Ukraine, Moldova, Georgia, Armenia, Azerbaijan. After the
initiation of the ENP, it was evident that a differentiated approach was needed with
respect to the European partners. It would not be realistic to expect that the needs and
form of cooperation should be the same for Jordan or Tunisia on the one hand and
Moldova or Ukraine, on the other hand.58 The initiative by the then French President
Sarkozy intended to differentiate and attach more importance to the cooperation with
the European neighborhood of the EU.

_______________
(EEC) No 1360/90 and Decisions 97/256/EC and 1999/311 (OJ 2000 L 306/1).
55. One author considers the CARDS Regulation + Luxembourg Council Conclusions as “one of the
most comprehensive conditionality clauses ever embodied in a Community law measure” (Toggenburg,
supra n. 18, p. 7.).
56. See e.g.Stabilisation and Association Agreement between the European Communities and their
Member States of the one part, and the Republic of Montenegro, of the other part (SAA), , Council Doc.
11566/07 of 21.9.2007.
57. See the 2013 Report on Bosnia, EU Doc. COM (2013) 700 final, entitled “Enlargement Strategy
and Main Challenges 2013-2014”, extract on Bosnia, p.1.
58. On the objectives and motivations of the EU members towards the EaP see inter alia M Łapczyn-
ski, ‘The European Union’s Eastern Partnership: Chances and Perspectives’ (2009) 3 Caucasian Review
of International Affairs 143, at 144-146.
200 Vassilios Grammatikas

Although it was initiated as a high profile activity of the EU, back in 2009, its
progress does not seem to live up to the expectations of its drafters. The EU did not
even start negotiations with Belarus, Armenia suspended negotiations, Azerbaijan is
still negotiating with the EU, thus leaving Moldova and Georgia, which signed the
agreement in December 2013 and Ukraine, which negotiated its agreement, but even-
tually refused to sign it. After the ousting of the elected Ukrainian President
Yanukovych, the provisional Ukrainian Government did so, but the agreement is in-
complete as only the political part of the agreement was signed and the economic as-
pects were left out.
Despite the fact that the main component of the EaP is the creation of a Deep and
Comprehensive Free Trade Area (DCFTA), democracy and human rights play an
important role. Building upon similar commitments in the context of the ENP, and
using similar wording to the SAAs and Accession Progress Reports, the EaP renders
human rights as an important and decisive factor for further and enhanced coopera-
tion with the partner countries.
The EU- Ukraine cooperation council that was held in 2013 in Luxembourg to
prepare and facilitate the Association Agreement provides in Operational Part III,
point 2.1 that:
“The Parties agree to maintain dialogue and to cooperate to strengthen respect for
democratic principles, the rule of law and good governance, human rights and fun-
damental freedoms, including the rights of persons belonging to national minorities
as enshrined in the core UN and Council of Europe Conventions and related proto-
cols”.
Furthermore, it upgrades minority protection as a specific field of cooperation in
the general framework of human rights. More specifically, the parties agree in “[…]
(c) exchanging best practices on measures to protect minorities from discrimination
and exclusion in accordance with European and international standards, with the ob-
jective of developing a modern legal framework. Developing close cooperation be-
tween the authorities and representatives of minority groups”.59
At the general level, however, the Joint Declaration of the EaP Vilnius Summit of
December 2013,60 while they contain a lot of references to human rights and funda-
mental freedoms, they do not even use the word “minorities”, and the Association
Agreement with Georgia merely contains the usual, general reference to the rights of
minorities.61
_______________
59. EU-Ukraine Association Agenda, Luxembourg July 2013, p. 4, Operative Part, point 2.1.iii.c,
http://eeas.europa.eu/ukraine/docs/eu_ukr_ass_agenda_24jun2013.pdf, last visited 12th June 2014.
60. Joint Declaration of the Eastern Partnership Summit, Vilnius, 28-29 November 2013,
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/139765.pdf, last visited 12th
June 2014.
61. EU - Georgia Association Agreement, Art. 3 § 2 (h) http://eeas.europa.eu/georgia/ assoagree-
Imposing Something that Does not Exist? 201

Finally, the 2014-2017 EaP Work Program that was adopted during the Vilnius
Summit also fails even to mention the term “minority”, although human rights is a
priority goal of the program.62

7. Conclusions

This, unprecedented, agreed “intrusion” into the domestic affairs of Ukraine in

the area of minority protection might signal a more active stand on behalf of the EU
towards minority protection in its immediate neighborhood and a real contribution in
protecting minority rights and potentially diffusing possible conflicts in the area. Is
this however the case?
If we take on the Ukrainian case, most probably not. After the deposition (sic) of
the elected Ukrainian President Yanukovych, the EU was quick to engage in a cor-
dial relationship with a government lacking even parliamentary legitimacy, compris-
ing of many neo-Nazi or pro-Nazi elements, the first legislative act of which was the
abolition of the law providing for Russian as the second official language in minority
areas!63 At the political level, the EU has consistently refuse to engage Belarus in the
EaP process because of the authoritarian character of its regime – and quite rightly so
– but is cooperating in the same process with Azerbaijan, a country whose regime
has very little differences, if any to the one of Belarus, thus loosing much of its inter-
national credibility.
Despite the lack of a minority rights portfolio and, probably its unwillingness to
adopt one in the future, the EU has been and is in a position to impose such rights in
its immediate neighborhood, particularly in areas where the treatment (or mistreat-
ment) of minorities had been an outstanding issue after the collapse of the Soviet Un-
ion and Yugoslavia. It also possesses the tools and the power of enforcement.
Nevertheless, the selective application of the same principles, the “preferential”
treatment of certain states (e.g. the Baltic states) vis-à-vis others (e.g. the Czech Re-
public) is indicative of a trend to use the political Copenhagen criteria and in particu-
lar the minority factor, merely a tool to exert political pressure in certain cases, with-
out any real interest in the rights and treatment of minority groups.
_______________
ment/pdf/ge-aa-title-ii-political-dialogue-reform-cooperation-in-field-of-foreign-security-policy_en.pdf,
last visited 12th June 2014
62. Eastern Partnership Multilateral Platforms, Platform I “Democracy, good governance and stabil-
ity, Core Objectives and Work Programme 2014 - 2017”, p. 4, http://eeas.europa.eu/eastern/platforms/
2014_2017/docs/work_programme_2014_2017_platform1_en.pdf, last visited 12th June 2014.
63. Law 4199 of 23.2.2014, adopted by the Ukrainian Parliament. See http://rt.com/news/minority-
language-law-ukraine-035http://usa.mfa.gov.ua/en/press-center/news/18319-shhodo-klyuchovih-
zakonodavchih-aktiv-uhvalenih-verkhovnoju-radoju-ukrajini-22-23-lyutogo-2014-roku, last visited 12th
June 2014.
202 Vassilios Grammatikas

It is to be hoped that in the near future the consideration of minority rights, in the
course of the various EU cooperation schemes, will be used not as a tool for the pro-
motion of the Union’s political agenda towards the states in question, but will rather
contribute to the improvement of the position of minority groups in those states. Af-
ter all, human rights are supposed to constitute general principles of EU law.