Metodología de la enseñanza de la
LA HISTORIA EN EL AULA: PUNTOS ESENCIALES
4. EL TRIENIO LIBERAL (1820 – 1823)
This subsection will focus on the added value of Union citizenship through free movement of persons and the Charter to minority protection. As can be seen from the analysis of EU legislation, the Charter and the jurisprudence of the CJEU and the ECtHR, the most substantial impact that they have had on minority rights has been in respect of one particular minority – Roma.
This section will first deal with Roma and then examine the added value of EU citizenship for cultural, religious and linguistic minorities. The EU Charter provides in Article 22 that the Union shall respect cultural, religious and linguistic diversity. The text of the explanatory note on Article 22 states that it is based on Article 6 TFEU, Article 151(1) and (4) EC Treaty now replaced by Article 167(1) and (4) TFEU and Article 3 TEU. It is also inspired by Declaration No. 11 of the Final Act of the Amsterdam Treaty, now taken over in Article 17 TFEU.
3.3.1. Ethnic minorities and focus on Roma
No single minority group has attracted the attention of the EU institutions as fully as the Roma. From 2007, a series of Council conclusions were adopted in which the EU Member States endorsed the Commission’s assessment that there is a powerful EU framework of legislative, financial and policy coordination tools already available to support Roma inclusion but more needed to be done. From 2010, the focus was first on developing a set of model approaches for the social and economic integration of Roma, and second, on ensuring that the preparation of measures to implement the EU 2020 Strategy as well as of programmes in the new financing period to provide specific solutions to the problems of the different types of Roma communities. As mentioned above, this development of a specific Roma integration strategy was given extra impetus because of a rise in the number of Bulgarian and Romanian nationals of Roma ethnicity being expelled from France in 2010.
The expulsion of Bulgarian and Romanian Roma from France (and Italy) in 2010 had numerous sources. The first was that following the accession of Bulgaria and Romania to the EU on 1 January 2007, France applied transitional restrictions on workers from the two countries, meaning that nationals of those two countries could only move to France if they were economically self-sufficient, self-employed or service providers. The first period of the restrictions was for two years, complemented by a second period of three years if justified and a final two years were absolutely necessary to protect the domestic labour market (to a total of seven years). Hence, Bulgarian and Romanian nationals had the right to move to France but possibilities to support themselves once there were limited to self-employment. In addition, the Citizens’ Rights Directive (2004/38), which was adopted just as the big enlargement of 2004 was about to take place, was less than crystal clear on the grounds on which EU citizens could be expelled from one Member State to another, specifically when those EU citizens could be deemed an unreasonable burden to the social assistance system of the host state (Article 14(1) Directive 2004/38). The fact that the target group for expulsion were Roma (as revealed by the interior ministry instructions of August 2010) added a new dimension. The frameworks of EU citizens’ rights and of minority rights introduced by the Lisbon Treaty the year before (2009) had to be reconciled. The policy choice of the EU institutions and in particular the Commission was to recognise that EU citizenship rights are a key tool available to all EU citizens to improve their lives and find a better future in another Member State. At the same time, it developed a Roma Integration Strategy to be negotiated in conjunction with the Member States and implemented by them, although assessed by the Commission on a regular basis.
This was intended to mean that EU citizens of Roma ethnicity could move to another Member State if they wished but were not driven from their home state by lack of physical protection, economic possibilities, education for their children, substandard housing and all the myriad of social woes that the Fundamental Rights Agency in its reports on the situation of Roma in the EU highlight.229 The Commission’s assessment of the National Roma Integration Strategies was published in May 2012, followed by a report in 2014. In 2015 questionnaires were again sent to the Member States followed by an assessment of the implementation of the strategies on 27 June 2016. The Commission has designated its role as a supporting one with Member States in the lead. Specific attention is paid to ‘enlargement’ countries. The EU contribution is foremost in financing – €90 billion available between 2014 and 2020 – with the investment priority the integration of marginalised communities.
Thus, the reconciliation of EU citizens’ rights of free movement and minority rights has taken place in two ways. The first is through the gradual acquisition of full rights to move (including as workers) for EU citizens from the 2004, 2007 and 2013 accession states. Minorities have gradually been incorporated as EU workers and entitled to their rights (but only in their capacity as nationals of a Member State). This strategy has been fairly successful for those members of ethnic minorities (who are citizens of a Member State) able and willing to move to another Member State, including for the purpose of escaping racism and social exclusion. A previous study for the European Parliament has gathered evidence that Roma EU citizens were discriminated in the following areas, related to the EU’s competence: “access to employment, education, financial services, accommodation/housing and social protection in a number of Member States. They are also prevented from registering in another Member State, or from living in caravans, and are subjected to evictions, expulsions and deportations as a result.” 230 A recent study on combatting anti-Gypsyism went further, in looking for ways to address such situations, particularly institutional discrimination and what could be the potential role for the EU to play.231
The second track pursued by the EU institutions has been an emphasis on minority protection in the form of Roma integration in their home state. This policy has been driven by the EU chequebook – paying states to implement policies to reduce the social exclusion of minorities (mainly Roma) and then checking what they have done and how effective it has been. The rule of law has worked fairly well as regards Member States implementing their obligations to permit free movement of EU citizens and their access to the labour market. The chequebook policy towards Roma integration has been more controversial as it has run into the issue of democracy – the majorities in some Member States are willing to vote for politicians who espouse anti-minority opinions, even extreme ones.232 Chequebook policies do not always take precedence over turbulent populist rhetoric that brings to power politicians who openly espouse anti-minority sentiments as more important than money.
In this acquisition of rights, the EU Charter has played a mainly symbolic role. Neither in the legislation nor the decisions of the CJEU regarding Roma has it been central.
229 http://fra.europa.eu/en/theme/roma
230 Study for the Policy Department for Citizens’ Rights and Constitutional Affairs, European Parliament, Ballesteros M. and G. Kelly, N. Meurens, A. Perego, “Obstacles to the right of free movement and residence for EU citizens and
their families: Comparative Analysis”, 2016
(http://www.europarl.europa.eu/RegData/etudes/STUD/2016/571375/IPOL_STU(2016)571375_EN.pdf) pp. 87– 92.
231 Carrera, S., I. Rostas and L. Vosyliute, “Combating Institutional Anti-Gypsyism Responses and Promising Practices in EU and Selected Member States”, CEPS, 2017 (https://www.ceps.eu/publications/combating-institutional-anti- gypsyism-responses-and-promising-practices-eu-and-selected).
232 See Le Pen v France (45416/16) before the ECtHR which was declared inadmissible on 28 February 2017 regarding a claim by Le Pen that his conviction for anti-Roma statements at a Front National Summer School violated his right to freedom of expression.
3.3.2. Religious minorities and focus on Muslims
The TFEU does not establish any specific competence of the EU in the field of religion other than as regards non-discrimination. However, Article 17 TFEU does require the EU to respect the status under national law of churches and religious, as well as philosophical and non- confessional organisations. 233 The EU’s scope is limited to the status of religious organisations and associations under national law. Article 167(4) TFEU could require the EU to take into account the impact of EU law on religious diversity. The Article 13 TFEU obligation that the EU respect Member States’ customs regarding religious rites, cultural traditions and regional heritage relates to animal welfare and national concerns about religious beliefs (see also Protocol 35 TFEU on abortion in Ireland). 234 Similarly, the Treaty basis for respect of linguistic diversity has been characterised as ‘thin’ by academics.235 It is a form of cultural expression (see also Article 22 of the Charter).
There are EU efforts in addressing hate crimes and hate speech against religious minorities, including Islamophobia and anti-Semitism. Nevertheless, the overall EU role on religious minority protection should be assessed critically. Recently, CJEU has considered two cases236 of discrimination on the grounds of religion in the area of employment. Both cases related to female employees wearing hijabs who were fired after refusing to remove them. In the Achbita v G4S Secure Solutions case, the company had a neutrality rule. Thus, the Luxembourg court found that such a rule could constitute not direct, but rather indirect discrimination on the ground of religion, but it was proportionate to the company’s image and freedom to run the business.237 The judgement raises interesting questions about the balancing of individual rights with what is strictly necessary, as on the other hand people wearing comparable items simply for fashion would not be found in non-compliance with the neutrality rule, and hence not fired.
In the Bougnaoui and ADDH v Micropole SA case, on the other hand, the firm had no such policy and it was rather clients’ wishes not to be served by a design engineer wearing an Islamic headscarf.238 In the latter case, the Luxembourg court found a breach with the Equal Treatment Directive.239
A comparison between the CJEU and ECtHR reasoning in a similar case, Eweida, and others v UK,240 finds a “lack of emphasis or weight which it places on the value of a diverse, tolerant and plural society and on the individual’s right to manifest his or her religion”241 Such CJEU case-law could have adverse impacts on highly visible religious minorities, such as Muslim women wearing headscarves or Sikh men wearing turbans in finding and keeping the employment.
233 Peers, S., et al., eds. The EU Charter of fundamental rights: a commentary. Bloomsbury Publishing, 2014. 234 Ibid.
235 See for instance R. Crauford Smith in Peers, S., et al., eds. The EU Charter of fundamental rights: a commentary. Bloomsbury Publishing, 2014.
236 European Court of Justice, Bougnaoui and ADDH v Micropole SA, Case C-188/15 Judgement of 14 March 2017 and Achbita v G4S Secure Solutions, Case C-157/15, Judgement of 14 March 2017.
237 Achbita v G4S Secure Solutions, Case C-157/15, Judgement of 14 March 2017. 238 ADDH v Micropole SA, Case C-188/15 Judgement of 14 March 2017.
239 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.
240 Eweida, Chaplin & ors v UK, Applications 48420/10, 59842/10, 51671/10 and 36516/10, Chamber decision 15 January 2013.
241 Jolly S. QC, “Achbita & Bougnaoui: A strange kind of equality” Blog Article, 15 March 2017 (https://www.cloisters.com/blogs/achbita-bougnaoui-a-strange-kind-of-equality)
3.3.3. Linguistic minorities and focus on Regional and Minority languages
The protection of linguistic minorities does not easily find resolution in the free movement of EU citizens, as movement from one Member State to another is unlikely to resolve linguistic issues unless the host Member State shares the language of those moving. The respect for cultural and religious minorities may benefit from a move to a host Member State. As the case law indicates, the issue of women’s clothing may be subject to substantial restrictions in some Member States (sanctioned by both the CJEU and the ECtHR) but not in others. Therefore, use of free movement rights may provide women who wish to wear culturally and religiously dictated clothing with the option to live in a Member State where their cultural and religious tenets are not subject to limitations by the Member State. The protection of minority linguistic and cultural rights is revealed also in the speech by Commissioner Navracsics on 18 May 2017 regarding the contribution of autochthonous minorities to European Cultural Heritage.242 The use of the term ‘autochthonous’ needs to be considered as the
assumptions which underlie it can be questionable. How a community becomes autochthonous is a matter of concern to many political scientists.243
A previous study for the European Parliament on obstacles to free movement for EU citizens has indicated that EU citizens are discriminated against on the basis of nationality. The report paid particular attention to Bulgarian and Romanian EU citizens experiencing discrimination in another EU Member State while accessing employment and other public services after the transitional period was over.244 As mentioned above, the European Parliament’s PETI Committee is receiving petitions regarding discrimination on the grounds of national minority background or minority language, on which there is no EU legal act in force.245
There is no difficulty in identifying serious problems regarding minority protection in Europe. EU concern about minority protection in respect of cultural, religious and linguistic minorities, as well as ethnic minorities such as the Roma, has been well justified in light of the experiences of Roma and their treatment in a number of EU Member States. The exercise of free movement rights of citizens can provide a mechanism whereby minorities whose rights are not protected in their home Member State may enjoy those rights in another Member State. This may be an accidental effect of the rights of EU citizens, but that notwithstanding, it is of central importance to many members of minorities in the EU. The interplay of EU law and national law in areas of competence permit variations in the definition of cultural, religious and linguistic rights, which have the effect of allowing in principle at least a wider range of options for EU citizens than may be available in their home Member State. However, this also raises questions about the consistency of EU law regarding discrimination and minority rights. The next section will examine the challenges and promising practices in effective minority protection in selected states.
242 https://ec.europa.eu/commission/commissioners/2014-2019/navracsics/announcements/contribution-
autochthonous-minorities-european-cultural-heritage_en.
243 Ragazzi, F. and K. Balalovska. "Diaspora politics and post-territorial citizenship in Croatia, Serbia and Macedonia." (2011). Jacobs, Dirk, and Andrea Rea. "“Allochthones” in the Netherlands and Belgium." International migration 50.6 (2012): 42-57.
244 Study for the Policy Department for Citizens’ Rights and Constitutional Affairs, European Parliament, Ballesteros M. and G. Kelly, N. Meurens, A. Perego, “Obstacles to the right of free movement and residence for EU citizens and their families: Comparative Analysis”, Brussels: European Union, 2016. (http://www.europarl.europa.eu/RegData/etudes/STUD/2016/571375/IPOL_STU(2016)571375_EN.pdf).