The European Union and Cultural Diversity: A Missed Opportunity?

In: European Yearbook of Minority Issues Online
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  • 1 School of Law, University of Nottingham, UK. We are grateful to the editors and an anonymous referee for comments and suggestions. The usual disclaimer applies.
  • 2 School of Law, University of Nottingham, UK. We are grateful to the editors and an anonymous referee for comments and suggestions. The usual disclaimer applies.

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  • 1 The enlargement of the EU has brought with it a further mix of cultures and minority groups who may be concerned for their interests not only against their own state, but also against the EU as a whole. The potential for being sidelined or feeling a sense of alienation once they join a large EU is understandable. The Saami population "are afraid that a huge EU construct might possibly roll over all smaller nations, and especially that national minorities might remain very marginal in this system", Reetta Toivanen, "Saami in the European Union", 8 IJMGR (2001), 303-23, at 307. The threat exists also for member states as a whole, "smaller states might perceive the additional danger of being marginalised by the bigger member states", Gabriel N. Toggenburg, "Minorities (...) the European Union: Is the Missing Link an `of' or a 'within'?", 25(3) Journal of European Integration (2003), 273-84, at 275. Aap Neljas, an Open Estonia Foundation board member and advisor to the Estonian Minister for Regional Affairs stated in a discussion on the Open Society website, °[t]here are fears that the interests of smaller nations, including the safeguarding of their cultures and languages, are not sufficiently taken into account. If the great powers are not inclined to give up their language and culture in the name of a federal ideal, then they can't really argue that smaller states should accept less for their culture and language." In the same discussion, Antoinette Primatarova, project director at the Centre for Liberal Strategies in Bulgaria, stated that "[a] 2001 Eurobarometer poll published in March 2002 showed that 30 percent of Bulgarian respondents ranked fear of'losing their language' as one of their top three concerns about joining the EU", interview on Open Society Institute and Soros Foundations Network, July 12 2002, at http://www.soros.org/newsroom/news/euaccessiontwoviews_20020710. Tsilevich also calls the EU a "Union of minorities", Boris Tsilevich, "EU Enlargement and the Protection of National Minorities: Opportunities, Myths and Prospects", eumap feature, October 2001, at http://www. eumap.org/articles/content/10/101/index_html, at 1. See the views of Bruno de Witte, "The European Community and its Minorities", in Catherine Brolmann et al. (eds.), Peoples and Minorities in International Law (The Hague,1993), 167-85, who believes the member states are not minorities.

  • 2 Tsilevich, "EU Enlargement ... ", 3. 3 Gaetano Pentassuglia, Minorities in International Law (Strasbourg, 2002),148. 4 Collette B. Cunningham, "In Defense of Member State Culture: The Unrealized Potential of Article 151(4) of the EC Treaty and the Consequence for EC Cultural Policy", 34 CornellILJ (2001),119-63, at 161. 5 Niamh Nic Shuibhne, EC Law and Minority Language Policy, Culture, Citizenship and Fundamental Rights (The Hague, 2002), 110.

  • 6 Lord Slynn, "Law and Culture - A European Setting", The Tanner Lectures on Human Values, delivered at Brasenose College, Oxford, 28 and 29 October 1993, 37-63, at 13, referring to Colette Guillaumin, "Women and Cultural Values: Classes According to Sex and their Relationship to Culture in Industrial Society", 6 Cultures (1979), at 41. See also the work of Fintan OToole, "Culture and Media Policy", in Patrick Keatinge (ed.), Ireland and EC Membership Evaluated (Pinter, 1991), 270-6, at 270-1. 7 Lord Slynn, "Law and Culture ...", 47. 8 Nic Shuibhne, ECLaw ...,110. 9 Lyndel Prott, "Cultural Rights as People's Rights in International Law", in James Crawford (ed.), The Rights of Peoples (Oxford, 1992), 93-106, at 94. 10 Emphasis added.

  • 11 Collette B. Cunningham, "In Defense of ...", 121; see also generally, Vernon Van Dyke, "The Individual State and Ethnic Communities in Political Theory", in Will Kymlicka, The Rights of Cultural Minorities (Oxford,1995), 31-56. 12 Many minorities are not based in any one nation state, for example, the Roma, Russians, and religious groups such as Muslims and Jews are spread throughout Europe. 13 Article 27 International Covenant on Civil and Political rights (CCPR) provides that "in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minori- ties shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language." It clearly envisages groups within states. See also the Human Rights Committee decisions in HRC, Communication No. 24/1977, Sandra Lovelace v. Canada, views of 30 July 1981, CCPR/C/OP/1; HRC, Communication No. 167/1984, Chief Ominayak and the Lubicon Lake Band v. Canada, views of 26 March 1990, [1990] Annual Report 1,5 ; HRC Communication No.197/1985, Ivan Kitok v. Sweden, 2 December 1985, CCPR/C/33/D/197/1985. 14 Article 5 EC "The Community shall act within the limits of the powers conferred upon it by this Treaty"; Article 7 EC "Each institution shall act within the limits of the powers conferred upon it by this Treaty". 15 That being the formal legal position, the precise extent of Community competence is not always easy to determine, for a number of reasons. Community competence includes implied compe- tence, where the Treaty does not grant an explicit power, but requires the achievement of an

  • objective (ECJ, cases C-281, 283-5, 287/85, Germany v. Commission, judgment of 9 July 1987 [1987] ECR 3203). Competence in a particular field is rarely exclusively allocated to the EU institutions, but is most often shared with national institutions, leading to boundary disputes about the proper limits of Community competence, expressed in legal terms by reference to the principles of subsidiarity and proportionality (Article 5(2) and (3) EC). Some legal basis provi- sions may be expressed in very general terms, leaving doubt as to their precise scope in a particu- lar context (see, in particular, Article 308 EC). All of these elements contribute to a situation in which the EU institutions may be charged with taking advantage of "creeping competence"- the extension of Community competence into ever wider areas; see, for instance, ECJ, case C-376/98, Germany v. Parliament and Council (Tobaccolldvertisin�, judgment of 3 April 2000 [2000] ECR 1-8419. For general discussion of Community competence, see, e.g., Paul Craig and Grainne de Burca, EU Law: Text, Cases and Materials (Oxford, 2003), 122-38; Stephen Weatherill, Cases and Materials on EULaw (Oxford, 2003) 45-68; Trevor C. Hartley, 1he Foundations ofEuropean Community Law (Oxford, 2003); Grainne de Burca and Bruno de Witte, "The Delimitation of Powers between the EU and its Member States" in Anthony Arnull and Daniel Wincott (eds.), Accountability and Legitimacy in the European Union (Oxford, 2002), 201-22; Uto di Fabio, "Some Remarks on the Allocation of Competences between the European Union and its Member States", 39 CMLR (2002),1289-301; Stephen Weatherill, "Pre-emption, Harmonisation and the Distribution of Competence", in Catherine Barnard and Joanne Scott, The Law of the Single European Market. Unpacking the Premises (Oxford, 2002), 41-74. 16 Gabriel N. Toggenburg, " 'Unity in Diversity': Searching for the Regional Dimension in the Context of a Someway Foggy Constitutional Credo", in Roberto Toniatti, Marco Dani, and Francesco Palermo (eds.), lln Ever More Complex Union: The Regional Variable as Missing Link in the European Constitution2 (Baden-Baden, 2004), 27-55. This statement is made with respect to the diversity aim in Article 3, but the same argument can be extended to the culture aim of Article 151.

  • 17 Neither is it a term commonly used in national or international contexts. 18 However the Parliament in its recent report on cultural diversity has declared the Union's support for the UNESCO Universal Declaration and Action Plan on Cultural Diversity of 2 November 2001 (Adopted by the 31st Session of UNESCO's General Conference Paris, 2 November 2001, 31 C/ Resolution 25 and Annexes I and II), which reaffirms that "culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs" (preamble). Furthermore, the Parliament makes several refer- ences to supporting traditions, lifestyles, and indigenous and minority groups (Draft European

  • Parliament Resolution, preamble, para. 2, para. 25 cited in European Parliament, "Report on Preserving and Promoting Cultural Diversity: the Role of the European Regions and International Organisations such as UNESCO and the Council of Europe", Committee on Culture, Youth, Education, the Media and Sport, 15 December 2003, (2002/2269(INI)), A5-0477/2003 final). The Vice-President of the same Committee has also commented that "[t]he broad definition of culture is particularly positive, embracing as it does not just aspects of culture such as theatre, music, opera, dance, painting and sculpture, but also popular culture, mass-produced culture and everyday culture. It is also important that culture, cultural assets and cultural services are seen as having intrinsic worth and not just as part of economic and competitive policy" (emphasis added), Hilde Hawlicek, Vice-President of the Committee on Culture, Youth, Education and the Media in the European Parliament, at http://www.inst.at/studies/l_02_e.htm.1he Parliament also "calls on the Commission, on the basis of Articles 149,150,151 and 308 of the EC Treaty, to submit to it by 31 March 2004 legislative proposals on language diversity and language learning - to include European regional and lesser-used languages - in accordance with the recommendations and proposed measures annexed to this resolution"; see European Parliament Resolution with Recommendations to the Commission on European Regional and Lesser-used Languages - the Languages of Minorities in the EU - in the Context of Enlargement and Cultural Diversity (2003/2057(INI)) A5-0271/2003.This illustrates an anthropological view of Article 151. The Court has implicitly accepted that the promotion of linguistic diversity is a part of culture in Article 151, thus supporting an anthropological perspective on culture. In ECJ, case C-42/97, European Parliament v. European Council, judgment of 23 February 1999 [1999] ECR 1-869, the European Parliament applied for the annulment of Council Decision 96/664/EC, on the adoption of a multiannual programme to promote the linguistic diversity of the Community in the informa- tion society (OJ 1996 L 306). The Parliament claimed that the measure should also cite Article 151 EC as its legal basis, in addition to ex-Article 130 EC. The Court did not ask the question of whether linguistic diversity was a legitimate aim of cultural diversity in Article 151. Rather, it seemed to accept that it was and decided the case on whether that cultural objective was the main or an incidental aim of the measure. Linguistic diversity can be perceived as an expression of anthropological culture: High culture is equated with mainstream culture, and is transmitted in the mainstream languages. The promotion of different languages (linguistic diversity) is not typi- cal of this traditional culture, but is a better expression of anthropological culture.

  • 19 Various fundamental human rights, including those recognized in the Council of Europe's European Convention on Human Rights and Fundamental Freedoms of 1950, and the EU's own Charter of Fundamental Rights 2000 (EUCFR), are recognized as general principles of EU law (see, e.g., ECJ, case C-29/69, Stauder v. City of Ulm, judgment of 12 November 1969, [1969] ECR 419; ECJ, case C-ll/70, Internationale Handelsgesellschaft, judgment of 17 December 1970, [1970] ECR 1125; ECJ, case C-4/73, Nold v. Commission,judgment of 14 May 1974, [1974] ECR 491; the Charter has been mentioned by the Court of First Instance and the Advocates General, but not by the ECJ, see e.g. CFI, case T-54/99, max.mobil Telekommunikation Service GmbH v. Commission, judgment of 30 January 2002, [2002] ECR II; Tizziano AG in ECJ, case C-173/99, BECTU, judgment of 26 June 2001, [2001] ECR 1-4881; Jacobs AG in case C50/00, ECJ, UPtl, judgment of 25 July 2002, [2002] ECR 1-6677. For detailed reading on the EU's obligations in this field, see Jason Coppel and Aidan O'Neill, "The European Court of Justice: Taking Rights Seriously", 29 CMLR (1992), 669-92; see Joseph Weiler and Nickolas Lockhart, "Taking Rights Seriously: The European Court and its Fundamental Rights Jurisprudence", 32 CMLR (1995), 51- 94 and 579-627, Philip Alston (ed.), The EU and Human Rights (Oxford, 1999); Nannette Neuwahl and Allan Rosas, The European Union and Human Rights (London, 1995), 297-312; Kim Feus (ed.), 1he EUCharter ofFundamental Rights, Text f� Commentaries (London, 2000); Philip Alston and Joseph Weiler, An Ever Closer Union in Need of a Human Rights Policy", 9 EJIL (1998), 658-723; Barbara Brandtner and Allan Rosas, "Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice", 9 EJIL (1998), 468-90; Armin Von Bogdandy, "The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union", 37 CMLR (2000),1307-38; Koen Lenaerts, "Fundamental Rights in the European Union", 25 ELR (2000), 570-600; Sionaidh Douglas-Scott, Constitutional Law of the European Union (Longman, 2002), 431-78; Tim Eicke, "The European Charter of Fundamental Rights - Unique Opportunity or Unwelcome Distraction", 3 European Human Rights Law Review (2000), 280-96; Lord Goldsmith, "A Charter of Fundamental Rights, Freedoms and Principles", 38 CMLR (2001), 1201-16; Aalt Willem Heringa and Luc Verhey, "The EU Charter: Text & Structure", 8 MaastrichtJournal ofEuropean and Comparative Law (2001),11-32. 20 Article 14 prohibits discrimination on grounds of, inter alia, association with a national minor- ity, race, colour, language and religion. It prohibits any difference in treatment where that dis- tinction has no "objective and reasonable justification", ECtHR, Belgian Linguistics Case 1969, judgment of 23 July 1968, Series A, No.6, 34 and the applicant is able to show some detriment from that distinction in treatment, ECtHR, Appl.10210/82, 35 DR (1983) 203, K. v. France, at 207. Certain principles arising from this are a) There must be no discrimination between similar

  • groups, Belgian Linguistic Case at 70; b) essentially different groups should not receive identical treatment, ECommHR, Christians Against Racism and Fascism v. United Kingdom, Application No.8440/78, 21 DR 138, at 152 (1980); c) direct discrimination against the majority is clearly allowed, if it is justified, ECtHR, Liberal Party et al. v. United Kingdom, 4 EHRR 1982 106, con- firming ECommHR, Lindsay et al. v. United Kingdom 1979 15 DR 247; d) a state might have to take positive measures to allow the minority group to assert its right under the ECHR, ECtHR, Platform Arzte fur des Leben v. Austria, judgment of 21 June 1988, Series A, Vol.139. Further, under Art 8 ECHR, the Court has taken a broad view of what is classed as a home (caravan site), but without giving an automatic right to remain in that caravan, see e.g., ECtHR, Burton v. United Kingdom, judgment of 15 September 1996, (1996) 22 EHRR CD135; ECtHR, Buckley v. United Kingdom, judgment of 25 September 1996, (1997) 23 EHRR 101, para 54. Crucially, how- ever, the Strasbourg Court has accepted that a changing consensus in the attitudes of European states could lead to a different conclusion (ECtHR, Chapman v. United Kingdom, judgment of 18 January 2001, (2001) 33 EHRR 399, paras. 93-4). Thus, there is a very real possibility that the Convention can protect such minority concerns. Moreover, minorities can require the state to protect the physical security of their home and belongings and access to it, ECtHR, Selcuk and �Ikser v. Turkey, judgment of 24 April 1998; (1998) 26 EHRR 477, para. 86. Under Article 3, it has been held that 'degrading treatment' may include the restriction on minorities inheritance rights, education in their language and cultural and religious restrictions, ECtHR, Cyprus v. Turkey, judgment of 10 May 2001, (2002) 35 EHRR 731. Freedom of religion and respect for religious institutions, activities and education etc., with specific regard to minorities is guaranteed in Article 9 ECHR. See e.g., ECtHR, Cyprus v. Turkey, judgment of 10 May 2001, and ECtHR, Al-Nashifv. Bulgaria, judgment of 25 January 2001. The sensitive subject of religious education is dealt with by Article 2 of Protocol 1. It would seem that under Article 2, Protocol 1, there is a right of persons to establish private schools, (thereby allowing for specific minority education), ECtHR, Kjeldsen, Bush, Madsen and Pederson v. Denmark, judgment of 7 December 1976, Series A, No.23; (1979-80) 1 EHRR 711, para 50. The second part of Article 2, Protocol 1 allows parents a significant influence by providing a right for them to ensure education and teaching "in con- formity with their own religious and philosophical beliefs". 21 ECJ, case C-4/73 Nold v. Commission, judgment of 14 May 1974 [1974] ECR 491, para 13. 22 Ibid. 23 Note however, France has issued a reservation precluding the application of Article 27, see HRC, Communication No. 220/1987, T.K. v. France, views of 8 December 1989, CCPR/C/37/ D/220/1987. 24 Gaetano Pentassuglia, "The EU and the Protection of Minorities: The Case of Eastern Europe", 12 EJIL (2001), 3-38, at 11. 25 The other criteria are economic. Candidate countries must have a functioning market economy, as well as the capacity to cope with competitive pressures and market forces within the Union and must incorporate the Community acquis, including adherence to the aims of political, eco- nomic and monetary union.

  • 26 For example, with respect to Bulgaria, the Commission reported that in September 2002 new "instructions for the integration of minority children and pupils" were published, outlining a strategy for integration through education. The main elements of the strategy are the integra- tion and preservation of Roma culture and the fostering of socialization of young people from different ethnic communities. "Furthermore, some steps have been made to preserving Roma culture and identity. Traditional Roma holidays have been included in the official cultural cal- endar. Publication of a Romany press and of books has started, but mainly funded by NGOs or foreign donors. Various cultural and educational events, organised by Roma organisations, were supported by the Government." 2003 Regular Report on Bulgaria's progress towards accession, athttp://www.europa.eu.int/comm/enlargement/report_2003/pdf/rr_bg_final.pdf. 27 According to the Committee on Economic, Social and Cultural Rights (CESCR/C), human rights obligations carry three types of duties: to respect, protect and fulfil. Promotion of cultural diversity would fall under the third type. See for further guidance CESCR/C, The Right to Water, General Comment No. 15, E/C.12/2002/11, 26 November 2002, para. 22; and CESCR/C, The Right to Adequate Food, General Comment No. 12, EIC.12/1999/5,12 May 1999, para. 15. 28 See further, Toggenburg, "Minorities (...) the European Unison ...",273, who, however, identifies also clear limits to this reading. 29 Toggenburg," `Unity in Diversity'..." ; see also id, "Unification via Diversification - What does it mean to be united in diversity?", eumap feature at http://www.eumap.org/journal/features/2004/ bigday/diversity.

  • 30 Carl Honore, "Fortress Europe: Who are We?", Houston Chronicle, 9 December 1998, A24, as quoted in Collette B. Cunningham, "In Defense of Member State Culture ...",162 31 This is based on the view that all member states themselves are minorities within the Union. But Toggenburg argues that it may be difficult to hold that member states are minorities according to the international criteria, since it would be necessary to find a majority culture. Toggenburg argues that there is "no dominant majority culture in the EU". Instead each member state is "co-dominant". Toggenburg, "Minorities (...) the European Union ...",275, and de Witte "The European Community ...",168-70. 32 Chloe Wallace and Jo Shaw, "Education, Multiculturalism, and the Charter", in Tamara Hervey and Jeff Kenner, Economic and Soczal Rights under the EU Charter of Fundamental Rights (Oxford, 2003), 223-46, at 244.

  • 33 For general overview of the EU's regional dimension, see Charlie Jeffery (ed.), 1he Regional Dimension of the European Union: Towards a 1hird Level in Europe? (London, 1997). Regions are not (yet) one of the major players in the EU, but participate in various respects in its system. Further the principle of subsidiarity forces the EU to respect the regional diversity in general. But contrast the fact that the other references to regions in the treaty do not relate to cultural identity, e.g. the role of the Committee of the Regions is to "make 'regional interests' heard rather than to preserve regional identities per se" and the Community's policy of "economic and social cohesion ... could be looked at as being a policy of economic homogenization rather than cultural differentia- tion", Articles 158-62 EC and 267 EC, cited in Toggenburg, 'Unity in Diversity' ...". De Witte also notes that the EC system excludes regional and local authorities from participating, Bruno de Witte, "The European Community ... ",170. 34 See the UK National Statistics website, at http://www.statistics.gov.uk/STATBASE/ssdataset. asp?vlnk=6207. 35 See news at http://www.leicester.gov.uk/newssite/newsview/page.asp?pgid=5456. 36 See e.g. Southwark Council's provision of translation and interpretation services to its Bengali Community at http://www.southwark.gov.uk/YourCouncil/GettingInvolved/CIDU/ BengaliCommDev.html; also its complaints procedure includes such services, http:llwww.south- wark.gov.uk/Uploads/FILE_2497.pdf. 37 Toggenburg, " `Unity in Diversity'...". 38 Toggenburg also argues that diversity at regional level could also be perceived as part of the "common cultural heritage"which the Community must "bring to the fore" in Article 151 For his reasonings, see Toggenburg, " `Unity in Diversity' .... ".

  • 39 If not, then the EU would not be respecting the cultural diversity of its 'people'but only a major- ity of them. 40 In practice it may be difficult for them to assert their views if they are not dominant or perma- nent. 41 The UK was chosen for a case study partly because of ease of access to data, which is all available in the English language. Moreover, the UK is a large member state, in which many minority

  • groups are well established. The UK thus constitutes a reasonably representative example, and it is unlikely that the pattern of funding for Culture 2000 projects differs dramatically in other member states. Further research would of course be necessary in order to determine whether this is the case. In 2003, the UK was involved in 32% of the projects under the programme (44 out of 139), with a total of 47 partner organisations (see the UK Cultural Contact Point, conference paper, "Cultivating Cultural Co-operation", 3 December 2003, London, UK, 30). 42 Decision No. 508/2000/EC of the European Parliament and Council, 14 February 2000, estab- lishing the Culture 2000 programme, [2000] OJ L63/1. 43 See European Commission proposal, COM (2003) 187 final, 16 April 2003; Council Decision 626/2004/EC of the European Parliament and of the Council of 31 March 2004 amending Decision 508/2000/EC establishing the Culture 2000 programme, OJ 2004 L 099, 3, entry into force 23 April 2004, which extended the programme until 31 December 2006. 44 See the EU's official website, at http://europa.eu.int/comm/culture/activities/activities_en.htm. See also Europa, Programme 'Culture 2000', available at http://europa.eu.int/scadplus/leg/en/ lvb/129006.htm. 45 See UK Cultural Contact Point, "Cultivating Cultural Co-operation" ...,12-20.

  • 46 24% overall in all years. See UK Cultural Contact Point, "Cultivating Cultural Co-operation" ..., 20-3; and Europa "Culture 2000 - Implementation 2003. 15 One-year projects supported in the field of visual arts", at http://www.europa.eu.int/comm/culture/eac/culture2000/pdf/pro- jets2003/visual_artsAl.pdf.

  • 47 See UK Cultural Contact Point, "Cultivating Cultural Co-operation" ..., 23-8. 48 See Europa "Culture 2000 - Implementation 2003.12 One-year projects supported in the field of Cultural Heritage", at http://www.europa.eu.int/comm/culture/eac/culture2000/pdf/pro- jets2003/cult_heritageAl.pdf.

  • 49 See Europa, "Culture 2000 - exercise 2002: 8 one-year Literature, Books and Reading projects supported", at http://europa.eu.int/comm/culture/eac/culture2000/pdf/book.pdf.

  • 50 See details "Books, accessing culture", at http://europa.eu.int/comm/culture/activities/book acces_en.htm; and Europa "Culture 2000 - exercise 2002 ...". 51 See UK Cultural Contact Point, "Cultivating Cultural Co-operation" ..., 28. 52 Ibid., Fabula Virtual Library. 53 Ibid., 23 54 See further, Voice of Roma, at http://www.actaonline.org/TADP/2003_grants/Voice_Roma. htm.

  • 55 See Europa "78 one-year projects Performing Arts" at http://www.europa.eu.int/comm/culture/ eac/culture2000/pdf/projets2OO3/perform-artsAl.pdf

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