18 Legal Rights of Linguistic Minorities in the European Union

In 1957 the Treaty of Rome established the European Economic Community (EEC). It established the equal treatment of the (dominant) languages of all Member States as “official and working languages of the Community” (Nic Shuibhne 2002:4). The first six Member States had four languages among them (Dutch, French, German, and Italian). Since then, the European Union (EU) has increased to become an organization of 27 Member States with 23 official languages. However, the linguistic diversity among the states does not take into account the vast diversity of languages spoken across Europe because it does not consider linguistic minorities. Although it is not easy to come to a precise count, Pan (2009:29) lists 191 minorities inside the EU-27 (see also Benedikter 2006:6-7; Extra and Gorter 2008). All Member States have at least one minority, except Malta, but then Maltese is the smallest of the official languages of the EU. Rumania has 18 minorities and Hungary and Poland have a substantial number (with 13 minorities each). Outside the EU there are another 162 minorities in 20 other European states, including 45 in the European part of Russia and 23 in Ukraine. Those 20 states also include mini-states like Andorra, Lichtenstein, Monaco, San Marino, and the Vatican City that have no minorities. A complex system of language rights with a lot of variations applies to this mosaic of linguistic minorities in the 27 EU Member States.

The policy developments and legal measures at the level of international organizations (in particular the United Nations), and the European institutions (EU, but also the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe) have become more important in recent years in developing legal standards regarding language rights. However, the level of the state is still by far the most important. Although there are no clear boundaries between the competence of the Member States and the EU in the field of language, it is the states that largely determine which level of rights is given to linguistic minorities. Some states, for example Finland and Spain, have provisions in their constitution that anchor basic legal rights of the minority languages on their territory. For other groups there are special laws or legal arrangements to protect and promote the language, for example Welsh in the United Kingdom or German in South Tyrol, Italy. Other minorities may enjoy a modest degree of legal rights, for example Frisian in the Netherlands, or there may be some mainly symbolic recognition, for example Friulian in Italy. There are also states such as France or Greece that nowadays admit the existence of minority groups on their territory, but are reluctant to provide any rights at all. Many linguistic minorities in Europe are vulnerable or severely endangered (Moseley 2009) and in need of protection.

Although there are still many weaknesses, there is a trend in Europe toward the improvement of minority rights. Inside the EU, the UK and Spain have taken the lead in devolving central power to minority-dominated regions. The examples of Welsh and Gaelic as well as Catalan and Basque illustrate best practices for language rights at a regional level. They can be compared to other well-protected minority languages, such as Swedish in Finland and German in Italy.

This chapter focuses on the level of the EU as a whole and on general trends regarding legal rights of linguistic minorities. The Treaty of Lisbon, adopted in 2009, is a new foundation for the EU. It introduces for the first time the word “minorities” in EU-primary law (Toggenburg 2008:12). Although its impact remains to be seen, it has the potential to improve the protection of European minority languages.

Minority language groups are predominantly defined in relation to a state. Each language group has its own unique history and linguistic, social, political, and economic development, also in terms of language rights. Historically the issue of minorities is closely related to the development of the modern system of “nation-states” since the middle of the seventeenth century. Majorities and minorities came into existence because of policies aimed at national homogeneity and cohesion, based on an ideology of “one state, one nation, one language” (Judge 2000; Beswick 2007:29).

A distinction should be made between “language minorities” and “minority languages.” The former refers to the social group or community and the latter to a specific category of languages, for which sometimes also terms such as “lesser used,” “heritage,” “stateless,” or “ethnic” language are used. Thus, minority languages should be distinguished from majority languages, also referred to as “dominant,” “national,” or “state” languages (Gorter 2006).

In itself the concept of minority is quite problematic. The term is an issue of controversy among academics, policymakers, and minority activists. There are many definitions of minorities and they often overlap to some extent. The difficulty in arriving at an acceptable definition lies in the diversity of situations in which minority languages exist. What constitutes a minority depends on who defines a minority and who are the beneficiaries of minority rights.

In international law a lot of work has been done about minority protection. The special rapporteur of the United Nations, Francesco Capotorti, defines a minority, including a language minority, as:

a group numerically smaller than the rest of the population of the State to which it belongs and possessing cultural, physical or historical characteristics, a religion or a language different from those of the rest of the population and shows, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language. (Capotorti 1991:96)

Although later studies tried to improve on this definition, it reflects the general understanding of minority in international law (Pentassuglia 2002:72) and covers most minority situations (Thompson 2001:130). This definition combines ‘objective’ and ‘subjective’ approaches. The approach is objective to the extent that membership in a minority group is seen as a demographic fact independent of the will of the members. It is also subjective to the extent that the free choice and will of the group members are decisive. Up to the present day the term minority is not defined in most instruments of international law, because a definition may serve certain ideological or political goals.

In contrast, a definition for “regional or minority languages” in the European Charter for Regional or Minority Languages has gained wide acceptance in recent years. The text refers to minority languages as:

languages that are traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State's population; and different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants. (Council of Europe 1992)

The definition shows the decisive role of the nation-state in determining which language varieties obtain minority rights (and protection) and which do not. The answer to the layman's question on the status of a variety as “language or dialect?” depends on political recognition by a state. At the same time, a basic idea in international law is that what constitutes a minority should not depend on a state but on objective criteria.

In a more sociological sense the term minority is also used to refer to groups with less status and less power (May 2001). This usage may be preferred over the commonsense understanding of minority as “less than half” or “a smaller number.” Language minorities differ very much in size—there can only be a handful of speakers or there can be millions. The number of individuals that speak a language seems a simple fact, but it is not always the case (cf. Fishman 1991:45–6). When drafting a list of minority languages and the numbers of speakers, one inevitably runs into a lack of consensus about the question of which varieties belong on the list as separate languages and which are subvarieties of another language (Wei 2000:6–11; Lewis 2009). Who is counted as a speaker is likewise not straightforward because there are different criteria to count someone as a “speaker” of a language. The most common criterion is mother tongue (i.e. the language acquired as a child), but language competence (the language that someone is able to speak), and the main language used (the most important daily means of communication) are also often used as criteria (Kloss and Haarmann 1984:34). The size of a language minority can be quite different depending on whether the mother tongue speakers are counted or whether instead it is all persons able to speak a language.

Another important distinction can be made between so-called “unique minority languages,” which are not the dominant language in any state, and “cross-border minority languages,” which are the official dominant language of one state and a minority language in one or more other states. Basque and Frisian are examples of the former, and Swedish in Finland and German in Italy illustrate the latter.

Yet another distinction can be made between regional minority languages and the languages spoken by immigrants (Extra and Gorter 2008). The first refers (chiefly) to minorities that arose during state-formation or because of the migration of population groups in the distant past. Immigrant minority languages are the consequence of more recent migration. In Western Europe this process dates mainly from the 1960s. Due to an influx of migrants, expatriates, refugees, and asylum-seekers, in many European states today, in particular in the larger urban areas, easily over 100 languages are spoken as home languages. The difference between regional and immigrant minority languages can be gradual, as is shown by the example of Finnish language speakers in Sweden. Immigrant minority languages are hardly if ever protected by legal measures.

Some major international human rights instruments, such as the European Convention on Human Rights (1950) of the Council of Europe (COE) and the International Covenant on Civil and Political Rights (1966) of the United Nations include a number of provisions which are important for minorities, although they are not specifically directed at minorities (Henrard and Dunbar 2008:3). The COE has played a crucial role in developing language rights for European language minorities, as has the OSCE.

The OSCE is a security organization with members not only in Europe, but also in Central Asia, the USA, and Canada. It has 56 participating States. In 1992 the OSCE established the position of High Commissioner on National Minorities (HCNM). His mandate was created largely in reaction to ethnic conflict in Europe, in particular the situation in the former Yugoslavia. The OSCE states are bound by United Nations obligations on human rights, including minority rights, and most OSCE States are also bound by the standards of the Council of Europe. For the HCNM the linguistic rights of national minorities are a recurrent issue. In 1996 the HCNM consulted a group of experts to ascertain their recommendations on the linguistic rights of persons belonging to national minorities. It led to the development of the “Hague Recommendations Regarding the Education Rights of National Minorities” (1996), followed two years later by the “Oslo Recommendations Regarding the Linguistic Rights of National Minorities” (1998). Whereas the former document focuses on the use of language in education (the right to proper knowledge of the mother tongue), the latter deals more broadly with rights in regards to issues such as names, community life, media, economic life, administrative authorities, public services, and judicial authorities. The two sets of recommendations together form a standard that is being used by the High Commissioner. Over the years the OSCE has expanded this series of recommendations. Now it also includes “The Lund Recommendations on Effective Participation by National Minorities in Public Life” (1999), the “Warsaw Guidelines on Minority Participation in the Electoral Process” (2001), the “Guidelines on the Use of Minority Languages in the Broadcast Media” (2003), and most recently “The Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations” (2008). Generally those recommendations are based on provisions in international law. They do not have legal force in themselves, but they are important in shaping the debate and in giving the outlines of what is regarded as normal.

The COE today comprises 47 Member States, including all 27 EU states. The work of the COE was probably even more important for linguistic rights than the OSCE, because between 1984 and 1992 the COE developed the European Charter for Regional or Minority Languages (ETS 148) and later, between 1993 and 1994, the Framework Convention for the Protection of National Minorities (ETS 157). Both treaties came into force in 1998.

The European Charter for Regional or Minority Languages is an important instrument for the development of language rights and language policy. The Charter was drafted over a long period of time, starting in 1981¹ with recommendations from the Parliamentary Assembly of the COE as well as the European Parliament. They recommended drawing up a charter of regional or minority languages and cultures (Ó Riagáin 2002; see also Woerhling 2006:23–4). Its drafting was a long and tedious process, but due to the important political changes in Central and Eastern Europe in the early 1990s the process was speeded up and the Charter was accepted by the COE in 1992 by the then 27 members. By 2010 the Charter had been ratified by 24 states and another 9 had signed but not ratified it. This implies that 14 other states are not party to this treaty; among them, for different reasons, are Belgium and Ireland, countries that have a long tradition of dealing with language rights.

English and French are the official language versions of the treaty, but the interest among minority language groups is high as can be seen from the fact that the official text has been translated into 45 different languages, official state languages as well as several unique minority languages. According to Woerhling (2005:27–8) the Charter has several characteristics that make it an original approach to promoting respect for regional or minority cultures.

The Charter has a preamble and five parts:

A ratifying state must apply a minimum of 35 paragraphs or sub-paragraphs from the provisions of Part III to each minority language, including at least three paragraphs or sub-paragraphs from Articles 8 and 12 and a minimum of one from Articles 9, 10, 11, and 13. Ratification of the Charter is a serious undertaking and not merely an expression of good intentions.

The states party to the European Charter have to deliver a periodical report every three years. The Committee of Experts examines these reports and prepares recommendations for the Committee of Ministers, the highest body of the COE. The Committee of Experts thus plays a central role in the monitoring process. Although the Committee can clarify ambiguities in the Charter, it cannot give a definitive legal interpretation. Dunbar (2008:61) suggests that the role of the Committee of Experts should not be that of a quasi-judicial body, but a “policy advisor on good language planning.”

The European Charter functions as an international instrument for the comparison of legal measures and facilities of Member States (Craith 2003), and is aimed at the protection and the promotion of the historical regional or minority languages of Europe. The Charter offers the adhering states the opportunity of choice between different alternatives. The degree of protection is not prescribed; thus, a state can choose loose or tight policies. The result is a wide variety of provisions across EU Member States (Grin 2003).

The second important treaty that provides support for minority language groups is the Framework Convention for the Protection of National Minorities (Council of Europe 1995). The Framework Convention was drafted in a much shorter period of time and is even more strongly related to the political transitions in Central and Eastern Europe in the 1990s. It was adopted in 1995 and entered into force in 1998. As of 2010 there were 39 states that had ratified the Framework Convention and another four signed it but did not follow by ratification; another four states are not party to this treaty: France, Monaco, Andorra, and Turkey.

The Framework Convention is not completely satisfactory because it was drafted with a lot of compromises between different views of the Member States. A criticism is that the provisions add little to existing international law. Furthermore, they are vaguely worded with many phrases such as “as far as possible.” Troebst (1999: 3) compares it to “a wide-meshed net which contains a great number of large holes. Each government which intends to slip through will no doubt succeed.” Although Troebst is also convinced that this “leaves room for interpretation in a more positive direction,” the treaty needs to be implemented in “good faith” with the political will to support minority rights.

The Framework Convention contains a preamble and five sections with 32 articles:

Similar to the European Charter, an Advisory Committee of independent experts monitors the implementation of the Framework Convention and reports to the Committee of Ministers. The monitoring process consists of four stages: (1) a periodical report by the state (every five years); (2) an opinion by the Advisory Committee on the state report; (3) comments on the Advisory Committee opinion by the state; and (4) a resolution of the Committee of Ministers.

The aim of the Framework Convention is to ensure respect for the rights of national minorities and it is “the first (and still only) international treaty specifically and exclusively directed at minorities” (Henrard and Dunbar 2008:5). The implementation of the rights from the Framework Convention, however, may still leave much to be desired (Gal 2000).

The Framework Convention is a different instrument from the European Charter. Its aim is to protect minorities (thus groups) and the Charter is concerned with languages as cultural assets. The Framework Convention is about establishing rights, whereas the European Charter requires states to develop a policy to promote minority languages. The Framework Convention is also much less detailed on the use of language in different social fields than the European Charter (Woerhling 2005:32–4). However, because of the interpretations of the periodical reports by the Advisory Committee, De Varennes (2008:29) opines that the Framework Convention “may become a much stronger instrument than the European Charter.”

The European Charter and the Framework Convention are instruments developed by the COE and thus they are not part of the acquis communautaire (current law) of the EU. Nonetheless, they have been influential in the development of EU policies towards linguistic minorities. In the last decades important developments have taken place inside the EU that pave the way for more attention being given to linguistic minorities, their legal protection, and their promotion by active policies.

The earliest political involvement with minority languages of the EU (then still European Communities) dates back to October 1981, when the first directly elected European Parliament adopted the so-called Arfé Resolution. The resolution called on the Member States and on regional and local authorities to promote regional and minority languages, particularly in the domains of education, mass communication, public life, and social affairs.² The political and cultural support for minority languages expressed in the Arfé Resolution enabled the European Commission to open a small EU budget line and to develop a program of activities for minority languages. It led, among other things, to the establishment of the European Bureau for Lesser Used Languages (EBLUL) based in Dublin, Ireland. The EBLUL was a non-governmental organization (NGO) which aimed at seeking political and financial support for lesser used languages in European institutions and has been particularly active in the European Parliament and the COE. In January 2010 the EBLUL closed as funding was no longer available. The EBLUL collaborated with the Mercator network of three specialized centers (Mercator-Education in Friesland, Mercator-Media in Wales, and Mercator-Legislation in Catalunya). These are centers for information, documentation, and research about minority languages in the EU. Recently the Mercator network has been extended with centers in Sweden and Hungary.

Another important development took place in 1983 with the establishment of the Intergroup for Minority Languages and Cultures, an informal working group comprising Members of the European Parliament from different political parties. The next initiative on behalf of lesser used languages in the European Parliament was the Kuijpers resolution, adopted in 1987. This resolution was more wide-ranging and it went into greater detail on specific actions than the Arfé Resolution. It recommended various measures in the areas of education, language use before local authorities, mass media, cultural infrastructure, and transborder cooperation.

It is difficult to say how important these resolutions of the European Parliament in the 1980s were, because they were not related to the priorities of the Commission or the European Council. Stolfo (2009:40–2) concludes that the European Parliament has played an important role since the 1980s. Toggenburg (2008:3), however, criticizes the resolutions as being “idealistic,” “unrealistic,” “non-legally binding,” and “a means for fostering [the] institutional profile [of the European Parliament]”.

During the 1990s two important lines of development took place, the first internal to the EU and the second triggered by external processes.

Among the internal developments, the Killilea report of 1994 stands out. The text shows the influence of the Maastricht Treaty (1993), which created the European Union. Member States are called upon to recognize their linguistic minorities and create the basic conditions for their preservation and development. The Killilea report differs from the earlier Arfé and Kuijpers reports because it focuses completely on the European Charter for Regional or Minority Languages, which it wholeheartedly supports. It was adopted by an overwhelming vote in the Parliament, which seemed to reflect a positive shift in public opinion in favor of linguistic diversity.

It is also worth noting that there are several references to minority languages in other resolutions adopted by the European Parliament, relating to matters such as cable television networks, regional policy, and radio and television production.

However, inside the EU there was a rather negative development that resulted from a general decision by the European Court of Justice in June 1998. The Court held that the Commission did not have the right to fund any program unless it was based on a legal act agreed to by the Commission, the Parliament, and the Council. Because it did not qualify under this standard, the budget line for Regional and Minority Languages and Cultures was blocked. To reinstate a budget line would call for a new legal base. However, it also would require unanimity, which was something impossible to achieve because some states would veto any program supporting minority languages. Even during the European Year of Languages (2001), a thematic year organized and supported by the EU and the COE together, no solution was found and nothing happened. The European Commission contracted the SMiLE report, which investigated how the EU can best support minority languages. The report provides an overview of language policy, activities, and instruments (Grin and Moring 2002). However, the end result was that minority languages did not remain as a separate policy, but were “mainstreamed” as part of the Action Plan 2004–2006 to promote language learning and linguistic diversity.

The most important external process in the 1990s was the political transition of Central and Eastern Europe and as a consequence of the enlargement of the EU. The so-called “Copenhagen criteria” (1993) define whether a country is eligible to join the EU. These conditions included “the respect for and protection of minorities.” In this way the European Council (by deciding on accession) and the European Commission (by monitoring the candidate states) became directly involved with minority issues. The policy shifted from a focus on language and culture to wider issues of political participation and citizenship. In the end, Estonia and Latvia were able to join the EU without fully complying with the spirit of the Copenhagen criteria (Adrey 2005). According to Toggenburg (2008:7) the Copenhagen criterion of respect for and protection of minorities “remains hopelessly vague.” The addition of 10 new Member States became a fact in 2004 and in 2007 Bulgaria and Rumania also became EU Member States. Thus, the many linguistic minorities in those 12 new Member States also became part of the EU.

With this last enlargement in 2007, Irish was made an official and working language of the EU, which means it has the same status as the other national languages of the Member States. A further recognition and extension of the use of minority languages at the European level was accomplished with the approval of the use of additional languages. This concerns minority languages that have an official status in a particular Member State and it requires special agreement with that Member State, which has to be ready to take upon itself the costs and the responsibility (Arzoz 2008:7). So far Basque, Catalan, and Galician in Spain and Welsh in the United Kingdom have profited from this legal measure.

Meanwhile the European Parliament accepted a resolution based on the so-called Ebner Report (2003). This document calls for the establishment of a European Agency for linguistic diversity and language learning, including regional and minority languages, as well as a multiannual program. To date neither proposal has been realized. In its next legislative period (2004–2009) the European Parliament reaffirmed its support for linguistic minorities by adopting the Moraes Report (2005). This report contains the most encompassing and far-reaching resolution thus far. The text calls on the European Commission and the EU Member States to treat linguistic minorities in accordance with the principles laid down in the European Charter, the Framework Convention, and the Hague and Lund recommendations. It shows the continuing importance of the two COE treaties and the OSCE recommendations for the further development of EU policy (see also Henrard and Dunbar 2008:9). Today the Commission sees minority protection as a part of the acquis communautaire.

Since the beginning of 2007 the EU has had a special Commissioner who deals with all issues related to multilingualism, including linguistic minorities. The importance of multilingualism for Europe and of minority languages as an integral part of linguistic diversity has been emphasized by him in several reports. The Commissioner has published his general strategy under the title “Multilingualism: an asset for Europe and a shared commitment.” Multilingual speakers of minority languages are seen as acting “as the glue between different cultures” (European Commission 2008:6). In the new European Commission of 2010 this special post was reintegrated with the mandate of the Commissioner for Education, Culture, Multilingualism, and Youth. Among the priorities for the next five years, the Commissioner mentions the support for “Europe's 60 regional or minority languages.”

In the EU linguistic minorities are more valued today than they were only a few decades ago. Linguistic diversity and multilingualism are now on the political agenda. After the acceptance of the Charter of Fundamental Rights in 2000, the EU committed itself in Article 22 to respect for cultural, religious, and linguistic diversity (Arzoz 2008:5). With the adoption of the Treaty of Lisbon (2009) it becomes legally binding. In Europe in the twenty-first century a basic assumption is that the preservation, protection, and promotion of linguistic and cultural diversity are important. It is an idea that is backed up by the population in general. In a survey in the then 25 EU Member States, a positive answer was given by 63 percent of the respondents to the statement “Regional and minority languages should receive greater support” (Eurobarometer 2005).

Over the years a widely supported set of standards in the area of linguistic minorities has been developed. The role of the COE and the OSCE has been very important. “Europe” has also contributed in a constructive way to the development of national state policies. The development of legal standards is, however, heavily constrained by political considerations.

Despite all the progress made, as Benedikter (2008:3) remarks “Europe is not yet a ‘heaven’ for minorities”. In terms of language rights what can be observed is quite complex and in need of further elaboration and clarification. In the end the implementation of language rights is of greatest importance (Thornberry and Martin Estébanez 2004). The essential question is, do such rights contribute to the revival and the improved maintenance of a minority language, or do they encourage a transition to the dominant language? If the recognition of the minority language is only symbolic, that may work as a stimulus for assimilation to mainstream society, instead of being a safeguard for the language concerned.

Overall, the policies of the EU are of major importance, but the EU has lacked leadership on this issue due to constitutional limitations. With the entry into force of the Treaty of Lisbon this might change. The treaty refers to “the rights of persons belonging to minorities” as a basic European value. Moreover the Charter of Fundamental Rights uses the term “national minority,” which via the Treaty of Lisbon becomes a term of EU law. The Treaty of Lisbon is thus an important step forward for the protection of the rights of linguistic minorities in the EU, because in legal terms it becomes a value on which the EU “is founded” and which is “common to the member states” (Toggenburg 2008:14). How far this protection will go is still an open question.