Paper presented at ‘Exchanging Ideas on Europe 2006: Visions of Europe: Key Problems, New Trajectories’UACES 36th Annual Conference and 11th Research Conference, Limerick, Ireland(31 August – 2 September 2006)

EU’s Numerous Contradictory Approaches toMinority Protection: Internal-External Paradox andMutually Exclusive Pre-accession StandardsDimitry Kochenov*

_________While a number of legal instruments potentially able to contribute to the elaboration of an EUminority protection standard are available they are mostly limited to guaranteeing simple nondiscrimination,which is not enough to ensure minority protection stricto sensu, as outlined e.g. by the PCIJ in the Albanian Schools case. The lack of any viable internal minorityprotection standard did not prevent the EU from treating minority protection as one of thekey-elements of the pre-accession exercise leading to the fifth enlargement, reinforcing theinternal – external competence divide and reducing the effectiveness of minority protection inthe EU. Although minority protection was one of the Copenhagen political criteria and thuswas at the core of the conditionality principle presupposing a fair assessment of the candidatecountries’ progress on the merits, the Commission clearly used minority protection in adiscriminatory way, tolerating the standard of assimilation in one group of the candidatecountries (Latvia, Estonia) and backing cultural autonomy in others. Thus, alongside with theinternal toleration or simple denial of minority problems, the Commission simultaneouslypromoted two contradicting approaches to the issue: de facto assimilation (prohibited by art.5(2) of the Framework Convention) and cultural autonomy, bringing to life a complicatedweb of partly overlapping – partly contradicting standards. Out of such practice myriadproblems arose. An imminent need to change this approach is obvious.

_______EU law, enlargement, minorities, pre-accession, Copenhagen-related documents, Copenhagencriteria, Copenhagen criteria.* An improved version of this paper will be submitted to the European Diversity and Autonomy Papers (EDAP)(EURAC, Bolzano/Bozen). I am grateful to Prof. Fabian Amtenbrink and Prof. Laurence W. Gormley for theircomments on the previous drafts of the paper at different stages of completion, and also to my co-panelists at theUACES Conference Antonija Petri_uši_ and Kyriaki Topidi as well as Gabriel von Toggenburg who kindlyagreed to serve as a discussant.Please do not cite without permission of the author.2Introduction: an edifice of many contradictions‘Stubbornly thinking in symbols’, this is how the European Union (EU) wascharacterised by a Czech mayor busy with building a Roma ghetto in the town of Ústí nadLabem.1 The mayor in question is certainly not the only person in the countries of Central

and Eastern Europe to ascribe equality, non-discrimination and human rights protection onlya ‘symbolic’ value. Luckily, the European integration project is largely built around a set ofvalues quite different from the local prejudices spread around the Member States and thecandidate countries. Minority protection is one of those principles, vital for the success of thecreation of the Union based on democracy, the rule of law and respect for human rights.2The articulation of the pre-accession principle of conditionality in the course of the preparation of the last (fifth) enlargement of the EU3 provided this organisation with a number of tools of influence necessary to effectively alter the situation in the field of minority protection in the candidate countries and other states willing to accede.4 Such developments notwithstanding, the fact that the minority protection criterion has been honoured unprecedented attention by the Commission seemed surprising to a number ofacademics.5This astonishment was largely caused by the fact that minority protection as such liesoutside the scope of the acquis communautaire.6 However, given a goal-oriented reading ofarticles 49 and 6(1) EU in the light of the article 5 EC it can be submitted that Commission’sactivities in the course of the pre-accession exercise were not constrained by article 5 ECcompetence limitations, since only checking the candidates’ adherence to the ‘democracy, the1 Banach, E., ‘The Roma and the Native Americans: Encapsulated Communities within Larger ConstitutionalRegimes’, 14 Fla. J. Int’l L., 2002, 382.2 To ensure the adherence to these principles, accession requires a profound transformation of the candidatecountries. See, generally, Kochenov. D., ‘Enlargement and Exigency of Overwhelming Change’, a review essaydiscussing Kellermann et al. (ed.), The Impact of EU Accession on the Legal Orders of New EU Member Statesand (Pre-)Candidate Countries (T.M.C. Asser Press, 2006) forthcoming at <www.europeanlawbooks.org>(NYU Law School).3 2004 Treaty of Accession, OJ L 236, 2003. Cf. Inglis, K. and Ott, A., ‘EU-uitbreiding en Toetreidingsverdrag:verzoening van droom en werkelijkheid’, 52 (20) SEW 4, 2004; Inglis, K., ‘The Union’s Fifth Accession Treaty:New Means to Make Enlargement Possible’, 41 CMLRev., 2004; Lannon, E., ‘Le traité d’adhésion d’Athènes:Les négociations, les conditions de l’admission et les principales adaptations des traités resultant del’élargissement de l’UE à vingt-cinq États membres’, CDE, 2004.4 On the legal regulation of enlargements see most importantly Ott, A. and Inglis, K. (eds.), Handbook on

European Enlargement, The Hague: T.M.C. Asser Press, 2002. Cf. Kochenov, D., ‘EU Enlargement Law:History and Recent Developments: Treaty – Custom Concubinage?’, 9 EIoP 6, 2005 (available at<http://eiop.or.at/eiop/texte/2005-006.htm>), with an exhaustive list of books on this issue in fn. 2; Kundera, J.(ed.), Rozszerzenie Unii Europejskiej: Korzy_ci i koszty dla nowych krajów członkowskich, Wrocław:Wydawnictwo Uniwersitetu Wrocławskiego, 2005; Hillion, Ch. (ed.), EU Enlargement: A Legal Approach,Oxford /Portland, OR: Hart, 2004.5 E. g. Maresceau, M., ‘The EU Pre-Accession Strategies: a Political and Legal Analysis’, in Maresceau, M. andLannon, E. (eds.), The EU’s Enlargement and Mediterranean Strategies, A Comparative Analysis, Basingstoke:Palgrave, 2001, 16.6 Acquis communautaire includes the whole body of legal instruments in force in the European Union: Delcourt,Ch., ‘The Acquis Communautaire: Has the Concept Had Its Day?’, 38 CMLRev., 2001.3rule of law and human rights’7 standards falling within the scope of the acquis wouldcontradict the very purpose of article 6(1) EU. Hence it is not surprising that minorityprotection, alongside with other issues generally falling outside the scope of the acquisbecame one of the corner-stones of the pre-accession.8 Ethnic minority protection is not theonly example of such practice – the rights of sexual minorities, for instance, have beenincluded by the Commission into the pre-accession assessment even though the acquis didnot include any Community competence on this issue at the time when the Regular Reportinghas started9 and the case-law of the ECJ was rather hostile to this category of EU citizens.10Judging by the Reports and Opinions released by the Commission in the course of thepreparation of the fifth enlargement it is possible to conclude that minority protection was atthe core of the pre-accession process. Sections of the Copenhagen-related documents11dealing with the assessment of this criterion are considerably longer than the sections dealingwith other issues. The analysis contained therein covered a large number of minorityprotection issues. Reports dealing with some countries even adopted a unique sub-structure ofthe minority protection section, something the Commission did not do while addressing otherissues.

Such a serious approach to minority protection can be regarded as a logical responseto the rise of nationalism in Central and Eastern European countries and is clearly connectedwith the EU’s stability and security concerns.12 While it has been argued that ‘nationalism is7 As stated in the Copenhagen criteria, Presidency Conclusions, European Council (Copenhagen, 21, 22 Jun.1993), Bull. EC 6-1993. Cf. Hillion, Ch., ‘The Copenhagen Criteria and Their Progeny’, in Hillion, Ch. (ed.),EU Enlargement: A Legal Approach, Oxford /Portland, OR: Hart, 2004.8 Although the scope of the Copenhagen criteria was much broader than that of the acquis communautaire, theCommission only used this discrepancy in a limited way, paying much more attention to those elements of theCopenhagen criteria that lay within the scope of the acquis. Kochenov, D., ‘Why the Promotion of the Acquis isNot the Same as the Promotion of Democracy and What can be Done in Order to Also Promote DemocracyInstead of Just Promoting the Acquis’, paper presented at the 2nd Global Conference ‘Redefining Europe:Federalism and the Union of European Democracies’, Prague, May 2005, available <http://www.interdisciplinary.net/AUD/AUD2/Kochenov%20Paper.pdf>.9 Written Question No. 2224/96, OJ C 356/95, 1996; Written Questions No. 2133/83 (to the Council) and No.2134/83 (to the Commission), OJ C 173/9 1984 and OJ C 152/25, 198410 E. g. Case C-249/96 Lisa Jacqueline Grant v. South-West Trains Ltd. [1998] ECR I-621.11 For the structure of the whole body of the Copenhagen-related documents – i. e. documents released inimplementation of the conditionality principle of the Copenhagen criteria – see Kochenov, D., ‘Behind theCopenhagen Façade: The Meaning and Structure of the Copenhagen Political Criterion of Democracy and theRule of Law’, 8 EIoP 10, 2004, 5 – 8 (available at <http://eiop.or.at/eiop/texte/2004-010.htm>).12 On the role played in the preparation of the fifth enlargement by the respect for and the protection ofminorities Copenhagen criterion see Hillion, Ch., ‘Enlargement of the European Union: The Discrepancybetween Membership Obligations and Accession Conditions as Regards the Protection of Minorities’, 27Fordham Int’l L.J., 3, 2004; Sasse, G., ‘Minority Rights and EU Enlargement: Normative Overstretch orEffective Conditionality?’, in von Toggenburg, G. (ed.), Minority Protection and the Enlarged EuropeanUnion: The Way Forward, Budapest: LGI, 2004; Wiener, A. and Schwellnus, G., ‘Contested Norms in theProcess of EU Enlargement: Non-Discrimination and Minority Rights’, ConWEB, No. 2/2004, 2004 (available<http://les1.man.ac.uk/conweb/>); van der Meulen, J. W., Bescherming van minderheiden als criterium bij EUuitbreiding:de Europese Commissie en Midden-Europa, The Hague: Nederlands Instituut voor InternationaleBetrekkingen ‘Clingendael’, 2003; Hughes, J. and Sasse, G., ‘Monitoring the Monitors. EU EnlargementConditionality and Minority Protection in the Central and Eastern European countries’, 1 JEMIE, 2003

(available at <http://www.ecmi.de/jemie/>); Vermeersch, P., ‘EU Enlargement and Minority Rights Policies inCentral Europe: Explaining Policy Shifts in the Czech Republic, Hungary and Poland’, 1 JEMIE, 2003(available at <http://www.ecmi.de/jemie/>); Henrard, K., ‘The Impact of the Enlargement Process on theDevelopment of a Minority Protection Policy within the EU: Another Aspect of Responsibility/Burden-Sharing?’, 9 MJ 4, 2002.4an inevitable factor in the creation of a post-communist state’,13 not all the scholars share thispoint of view.14 In the meanwhile, it is impossible to deny that historically, minorityprotection has always been especially acute for the Central and Eastern European countries,15particularly during the interbellum period, when the dissolution of several empires and thecreation of new nation states shifted the borders and gave rise to a number of minorityproblems all over the region.The prominent role played by minority protection in the course of the pre-accessionexercise leading to the last enlargement did not result in (and was not based on) elaborationof any serious minority protection standard that could be used by the EU both internally andexternally, especially during the preparation of the enlargements to come. Clearly, such astandard will be badly needed in the future, since the enlargement saga is far from over. TheEU will embrace two new Member States (Bulgaria and Romania) already in 200716 andmore will join later on. Three countries currently enjoy a candidate country status, namelyCroatia, Macedonia (FYROM) and Turkey.17 Moreover, a number of countries in Europe,Africa and the Caucasus, including Albania, Armenia, Bosnia i Herzegovina, Cape Verde,18Georgia, Montenegro,19 Moldova, Serbia and Ukraine20 made it clear that joining the EU isamong the priorities of their foreign policy. Among the countries of Eastern Europe (notcounting Russia and Kazakhstan) only Belarus under the rule of president Łukašenka is notexpressing any membership ambitions.21 In other words, the European Union standssomewhere in the middle of its enlargement road – in the future enlargements are likely to

stay on the agenda of the EU for several decades at least. No need to say that all the countriesin question and especially Turkey with its treatment of the Kurdish minority22 and the Balkanstates recovering from violent ethnic conflicts have a number of outstanding minorityissues,23 which the EU will have to address in the course of the pre-accession exercise. Areliable minority protection standard will clearly be needed to effectively deal with theseissues.As the analysis of the application of the conditionality principle demonstrates, at leasttwo mutually exclusive standards were employed by the Union in the course of the pre-13 Sajó, A., ‘Protecting Nation States and National Minorities: A Modest Case for Nationalism in EasternEurope’, U. Chi. L. Sch. Roundtable, 1993, 53.14 Mullerson, R., Minorities in Eastern Europe and the Former USSR: Problems, Tendencies and Protection’, 56Mod. L. Rev., 1993.15 Roter, P., ‘Locating the “Minority Problem” in Europe: A Historical Perspective’, 4 J. Int’l Relations &Development 3, 2001.16 Subject to the Commission’s approval. The date of accession can be moved to 2008. See 2005 Treaty ofAccession, OJ L 157, 2005.17 Two of these countries (Croatia and Turkey) have already started accession negotiations.18 Government to Request EU Membership for Cape Verde, World Markets Analysis, 9 May 2005 (availablethough Lexis-Nexis).19 The desire of the State Union of Serbia and Montenegro to join the EU was so articulated, that 3 out of 6goals outlined in the State Union’s Constitutional Charter were related to European integration: Samardži_, S.and Lopandi_, D., ‘Serbia and Montenegro’, in Kellermann, A.E., Czuczai, J., Blockmans, S., Albi, A. andDouma, W.Th. (eds.), The Impact of EU Accession on the Legal Orders of New EU Member States and(Pre)Candidate Countries: Hopes and Fears, The Hague: T.M.C. Asser Press, 2006, 149.20 See Ministerstvo Zakordonnykh Sprav Ukraïny, Stratehija intehratziï Ukraïny do Jevropejs’koho Sojuzu of 08June 1998 (available at <http://www.mfa.gov.ua/mfa/ua/publication/content/2823.htm>).21 The outcast regime is building a ‘State Union’ with the Russian Federation instead: Elistratova V.V.,‘Pravovyje aspekty v sfere integratzii Rossii i Respubliki Belarus'’, Pravo i gosudarstvo 8, 2005.22 Ergil, D., ‘The Kurdish Question in Turkey’, 11 Journal of Democracy 3, 2000.23 The former Yugoslav republics have only recently turned to a balanced approach to the issue of minorities.On the Croatian experience see e. g. Petri_uši_, A., ‘Constitutional Law on the Rights of National Minorities inthe Republic of Croatia’, 2 EYbMI, 2003.5

accession exercise: the first was roughly building on the idea of toleration of (forced)assimilation (applied to Estonia and Latvia), the second – on the idea of cultural autonomy(applied, inter alia, to Romania, Slovakia and Bulgaria). Such a situation, while reflectingwell the internal picture in the EU minority protection, which is that of normative disarray, isill-suited both for the conduct of the future enlargements and, which is probably moreimportant, for the effective protection of the minorities within the EU. Some uneasy choiceswill have to be made already in the nearest future in order to change this situation. This paperwill illustrate two main clashes inherent in the EU minority protection: the internal – externaldivide, allowing for the promotion of minority protection outside the Union borders whiletolerating the neglect of minority issues within the EU; and the double standard of minorityprotection that arose from the external minority protection activity espoused by the EU in thecourse of the preparation of the fifth enlargement. These contradictory practices will be putinto a broader context of the available minority protection standards.The whole edifice of EU minority protection that miraculously stands today is thusbuilt on two contradictions and is unable to serve its main function, providing effectiveprotection for minorities in the EU.Structure of the argumentThe paper will proceed as follows. After briefly mentioning the theoretical debatesurrounding the very idea of minority protection (focusing on Kymlicka and Waldron) (1), itwill make a clear distinction between the non-discrimination approach taken by theCommunity and best articulated in the Race Directive24 and a fully fledged vision of minorityprotection as understood in the PCIJ Albanian Schools case that also includes specialminority protection measures not limited to simple non-discrimination.25 Some legalprovisions potentially able to enable the Union to espouse a fully-fledged approach tominority protection will also be shortly summarised (2). The paper will continue briefly

focusing on the external-internal minority protection split in the European Union, providing asummary of minority-protection measures promoted by the EU externally and making part ofthe EU enlargement law as well as mentioning the rare internal references to minorityprotection, mostly coming from political documents lying outside the normative frameworkof European law. The paradoxical difference between what the EU was adhering to itself andwhat it was promoting, which can be illustrated by one of the maxims used by Joseph Weiler– ‘do not do what I do, do what I tell you to do’ (initially ascribed to ‘officers’ but equallyapplicable to the EU’s policy line in the field of minority protection) (3). The paper willproceed focusing on the assessment of the minority protection standards promoted by the EUduring the fifth enlargement: in order to connect the inadequacy of the EU’s internalapproach to minority protection with the inadequacy of the external one, the paper will lookinto the substance and structure of the Copenhagen-related documents released during thepreparation of the fifth enlargement with a view to discovering a standard the EU was usingwhile applying the conditionality principle in this field. Having discovered (at least) two ofsuch standards (4), the paper will focus on the inadequacy of the whole approach to minorityprotection taken by the EU (5). In an attempt to make a graphic representation of suchinadequacy the most important standards available to the EU are represented in Pic. I(Annexed to the paper).24 Council Directive 2000/43 EC, OJ L 180/22, 2000.25 PCIJ, Advisory Opinion regarding Minority Schools in Albania, 6 April 1935, PCIJ Reports, Series A/BNo.64, 1935.61. Should the EU build Disneylands? Waldron vs. KymlickaIt has been suggested that liberal democracies should take a neutral stand vis-à-visethnocultural diversity and that equality alone, without specific minority protection rights,can meet the needs of minorities.26 Moreover, negative effects of minority protection have

been demonstrated, questioning the human need to belong to a distinct community,27 whichused to be taken for granted in the past.28 Thus the very core of the argument of promoters ofspecific rights for minorities has been seriously questioned. Jeremy Waldron opined that…immersion in the traditions of a particular community in the modern world is likeliving in a Disneyland and thinking that one’s surroundings epitomise what it is for aculture really to exist. Worse still, it is like demanding funds to live in a Disneylandand the protection of modern society for the boundaries of Disneyland, while stillmanaging to convince oneself that what happens inside Disneyland is all there is toan adequate and fulfilling life.29

A drastically different approach is provided by Will Kymlicka’s assessment of minorityprotection. His argument is built around an absolute necessity to have specific minorityinstruments, based on the assumption that no polity can be truly ethnically neutral30 and thuscoincides with the League of Nations’ approach.31The lack of scholarly consensus on this issue is very telling. This theoretical diversity isreflected in a number of different practical approaches to minority protection adopted by theEU Member States, this diversity being even more striking at the time of enlargementpreparation.32Assessed from the standpoints of these theories (Waldron’s unnecessary subsidising ofa Disneyland and Kymlicka’s necessity to protect minorities), the EU can be placedsomewhere in the middle.33 Not providing a fully-fledged minority protection mechanism, it26 Barry, B., Culture and Equality: An Egalitarian Critique of Multiculturalism, Cambridge: Polity Press, 2001.Cf. Räikkä, J. (ed.), Do We Need Minority Rights? Conceptual Issues, The Hague/ Boston/ London: MartinusNijhoff Publishers, 1996.27 Waldron, J., ‘Minority Cultures and the Cosmopolitan Alternative’, 25 U. Mich. J.L. Reform, 1992, reprintedin Kymlicka, W. (ed.), The Rights of Minority Cultures, Oxford: OUP, 1995.28 Waldron (1995), 96.29 Id., 101.30 Kymlicka, W., ‘Western Political Theory and Ethnic Relations in Eastern Europe’, in Kymlicka, W. andOpalski, M. (eds.), Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations inEaster Europe, Oxford: OUP, 2001; Kymlicka, W., Multicultural Citizenship: A Liberal Theory of MinorityRights, Oxford: Clarendon Press, 1995; Kymlicka W., Liberalism, Community and Culture, Oxford: OUP, 1989.For critique of Kimlicka’s position (from two different stand-points) see e.g. Galenkamp, M., ‘Speciale rechten

voor minderheden? Een commentaar op Kymlicka’s Multicultural Citizenship’, 22 Recht en Kritiek, 1996;Waldron (1995), 105 et seq.31 See e.g. Pentassuglia, G., Minorities in International Law, Strasbourg: CoE, 2002, 23 et seq.32 For a comparison and classification see e.g. Rouland, R., Pierré-Caps, S. and Poumarède, J., Droit desminorities et des peuples autochtones, Paris: PUF, 1996, 261 – 305; Toniatti, R., ‘Minorities and ProtectedMinorities: Constitutional Models Compared’, in Dunne, M. and Bonazzi, T. (eds.), Citizenship and Rights inMulticultural Societies, Keele: Keele University Press, 1995, 195.33 On the minority protection and EU in different contexts see e. g. von Toggenburg, G., ‘A Remaining Share ora New Part? The Union’s Role vis-à-vis Minorities after the Enlargement Decade’, EUI Working Papers, LawNo. 2006/15, 2006, (available at <http://cadmus.iue.it/dspace/bitstream/1814/4428/1/LAW+2006.15.pdf>); vonToggenburg, G., ‘Minority Protection in a Supranational Context: Limits and Opportunities’, in vonToggenburg, G. (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest:LGI, 2004; von Toggenburg, G., ‘Minorities (…) The European Union: Is the Missing Link an “Of” or a“Within”?’, 25 Eur. Integration 3, 2003; Schuibhne, N., EC Law and Minority Language Policy: Culture,7nevertheless does not exclude the possibility of institutionalising minority protection andeven recognises it in a certain way. Community law in the sphere of minority protectionmight be not well articulated, but it is certainly far from being ‘non-existent’, as Hughes andSasse argue.34

2. Non-discrimination, special rights and Albanian SchoolsMinority protection has long been recognised in International Law.35 According to anestablished practice,36 articulated by the Permanent Court of International Justice (PCIJ) inthe Advisory Opinion concerning minority schools in Albania,37 minority protection consistsof two main components: non discrimination on the one hand and special measures forminority protection on the other (elements 1 and 2 in pic. I).38 Although these elements arecertainly interconnected, their essence remains different.In Europe especially the Council of Europe (CoE) is successful in dealing with boththese components playing an important role in minority protection. The CoE legal systemmakes a rather successful attempt to combine both of them through the use of the Framework

Convention for the Protection of National Minorities39 and the European Charter for Regionaland Minority Languages,40 coupled with the non-discrimination provisions of the EuropeanCitizenship and Fundamental Rights, The Hague: Kluwer Law International, 2003; Brusis, M., ‘The EuropeanUnion and Interethnic Power-Sharing Arrangements in Accession Countries’, JEMIE 1, 2003 (available at<http://www.ecmi.de/jemie/>); de Witte, B., ‘Politics versus Law in the EU’s Approach to Ethnic Minorities’,in Zielonka, Jan (ed.) Europe Unbound: Enlarging and Reshaping the Boundaries of the European Union,London: Routledge, 2002 (see also his Working Paper EUI WP, RSC No.2000/4, 2000); Schuibhne, N., ‘TheEuropean Union and Minority Language Rights’, 3 MOST J. Multicultural Societies, 2, 2001; von Toggenburg,G., ‘A Rough Orientation Through a Delicate Relationship: The European Union’s Endeavours for (its)Minorities’, 4 EIoP 16, 2000 (available at <http://eiop.or.at/eiop/texte/2000-016.htm>); Bescoe, A., ‘TheEuropean Union and Minority Nations’, in Cumper, P. and Wheatley, S. (eds.), Minority Rights in the ‘New’Europe, The Hague /London /Boston: Martinus Nijhoff Publishers, 1999; Martín Estébanez, M. A., ‘TheProtection of National or Ethnic, Religious and Linguistic Minorities’, in Neuwahl, N.A. and Rosas, A. (eds.),The European Union and Human Rights, The Hague/ Boston/ London: Martinus Nijhoff Publishers, 1995;Fenet, A., ‘L’Europe et les minorités’, in Fenet, A. (ed.), Les droits et les minorités: analyses et texts, Brussels:Bruyant, 1995; de Witte, B., ‘The European Community and Its Minorities’, in Brölmann, C. and Lefeber, R. J.M. (eds.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers, 1992.34 Hughes and Sasse (2003), 2.35 See e. g. Arts. 26 and 27 of the UN International Covenant on Civil and Political Rights (ICCPR); UNConvention on the Elimination of All Forms of Racial Discrimination (CERD). On minority protection ininternational law see e. g. Pentassuglia (2002); Pentassuglia, G., ‘On Models of Minority Rights Supervision inEurope and How They Affect a Changing Concept of Sovereignty’, 1 EYbMI, 2001/2002; Pentassuglia, G.,Defining “Minority” in International Law: A Critical Appraisal, Rovaniemi: Lapland’s University Press, 2000;Henrard, K., Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rightsand the Right to Self-Determination, The Hague/ Boston/ London: Martinus Nijhoff Publishing, 2000;Spiliopoulou Åkermark, A., Justifications for Minority Protection in International Law, The Hague: KluwerLaw International, 1997; Schulte-Tenckhoff, I. and Ansbach, T., ‘Les minorités en droit international’, in Fenet,A. (ed.), Les droits et les minorités: analyses et texts, Brussel: Bruyant, 1995; Thornberry, P., International Lawand the Rights of Minorities, Oxford: Clarendon Press, 1991.

36 See e.g. United Nations, Report of the First Session of the UN Sub-Commission on the Prevention ofDiscrimination and the Protection of Minorities, UN Doc. E/CN.4/52, section V.37 PCIJ, Advisory Opinion regarding Minority Schools in Albania, 6 April 1935, PCIJ Reports, Series A/BNo.64, 1935, 17.38 Cf. Henrard (2000), 59 et seq. This position is defended by Kymlicka (1989, 1992, 1995).39 Framework Convention for the Protection of National Minorities, ETS no. 157.40 European Charter for Regional and Minority Languages , ETS no. 148.8Convention on Human Rights (ECHR).41 Next to Article 14 ECHR which has acquired newimportance after the entry into force of Protocol 12 to the ECHR (making the self-standinguse of the article possible),42 and the case-law of the European Court of Human Rights(ECt.HR)43 the Framework Convention and the Charter form the most developedinternational minority protection system to-date, combining binding and non-binding legaldocuments aiming at the creation of a well-regulated minority-protection regime in Europe(element 3 in pic. I).It is necessary to keep in mind, however, that focusing on simple equality withoutproviding minorities with specific group rights is also a viable approach, purely consistentwith the notion of democracy.44 In other words the two-tire minority protection is desirable,but there is no obligation in International Law to put such a system in place._________________________________________________________EU law as it stands to date clearly gives overwhelming priority to the nondiscriminationpart of minority protection. This being said, it would be unfair to argue,however, that this approach is a consequence of a particular doctrinal choice made by theCommunity. Unlike some of its Member States, such as France for instance,45 the EU has notdefied the PCIJ’s position, but is simply not ‘mature’ enough in this respect to go further thanWaldron’s non-discrimination minimum. The first component of minority protection i. e.non-discrimination on the basis of belonging to a minority, is incorporated into theCommunity legal order via the Race Directive46 adopted on the basis of Article 13 EC andvia Article 6(2) EU, where a reference to the ECHR is made, thus making a connectionbetween Article 14 ECHR and the principles of Community Law. Article 2 of the Directive

states that… there shall be no direct or indirect discrimination based on racial or ethnicorigin.Art.14 ECHR prohibits discrimination on the grounds ofsex, race, colour, language, religion, political or other opinion, national or socialorigin, association with a national minority, property, birth or other status.All these provisions read together make it clear that non-discrimination on thegrounds of national origin or association with a national minority is elevated to one of theprinciples of Community Law.47 This legal framework is reinforced by Article 21(1) of theCharter of the Fundamental Rights of the European Union (CFR).48 Article 21(1) CFR, which41 Convention for the Protection of Human Rights and Fundamental Freedoms, ETS no. 5.42 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms,ETS no. 177.43 On ECt.HR see e.g. Gilbert, G., ‘The Burgeoning Minority Rights Jurisprudence of the European Court ofHuman Rights’, 24 Human Rts. Quarterly 3, 2002.44 Glazer, N., ‘Individual Rights against Group Rights’, in Kymlicka, W. (ed.), ‘The Rights of MinorityCultures’, Oxford: OUP, 1995, 133. This position is defended by Waldron (1995).45 Group rights are unconstitutional in France: Conseil Constitutionnel, Decision No. 99-412 DC of 15 June1999. Cf. Hoffmeister, F., ‘Monitoring Minority Rights in the Enlarged European Union’, in von Toggenburg,G. (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest: LGI, 2004, 89,90.46 Council Directive 2000/43/EC, OJ L 180/22.47 Hillion (2004 (Protection of Minorities)), 718 – 721; Pentassuglia (2001), 7, 8.48 OJ C 364/01, 2000.9is based on the set of legal instruments outlined above, namely on Articles 14 ECHR, 6(2)EU and 13 EC reads as follows:49Any discrimination based on any ground such as sex, race, colour, ethnic or socialorigin, genetic features, religion or belief, political or any other opinion, membershipof a national minority, property, birth, disability, age or sexual orientation shall beprohibited.50Although the CFR is a ‘proclaimed’ document having no binding force, its potential isillustrated by the references to its provisions made both by the ECJ51 and the Court of theFirst Instance (CFI).52 In other words, although not binding,53 the CFR nevertheless plays arole in the Community legal system.54Thus there is a number of provisions, laying down the basis and able to influencefurther development of the principle of non-discrimination on the grounds of belonging to a

national minority in Community Law, including Articles 6(2) EU, 13 EC, 14 ECHR and21(1) CFR as well as Directive 2000/43/EC.____________________________________________________The principle of non-discrimination as included in Article 14 ECHR around which theCommunity approach discussed in 2.1. supra is built, is much narrower in scope than theCopenhagen criterion of ‘respect for and protection of minorities’, since it does not includethe second component of minority protection within the light of the PCIJ Albanian Schools.The European Commission on Human Rights (EComm.HR) established that ‘[ECHR] doesnot compel states to provide for positive discrimination in favour of minorities’.55 It is justanother argument pointing at the fact that a simple anti-discrimination approach rooted inArticle 14 ECHR hardly includes a possibility to adopt specific measures aimed atimprovement of the situation in the sphere of minority protection. In other words, it does not‘reach out to minority rights stricto sensu’.56 Even the active approach taken by the ECJ in49 Council of the EU, Charter of Fundamental Rights of the European Union: Explanations Relating to theComplete Text of the Charter, Luxembourg: Office of Official Publications of the European Communities,2001, 39.50 On the effects of this provision on minority protection in the EU see e. g. Schwellnus, G., ‘“Much Ado AboutNothing?” Minority Protection and the EU Charter of the Fundamental Rights’, ConWEB, No. 5/2001, 2001(available at <http://les1.man.ac.uk/conweb>).51 Case C-540/03 Parliament v. Council [2006] judgement of 27 Jun. 2006, nyr, §3852 E. g. Case T-177/01 Jégo-Quéré & Cie SA v. Commission [2002] ECR II-2365, §42.53 Generally of not legally binding nature, the Charter, which was published as an interinstitutional agreement,binds Community Institutions.54 As if ironically, Mischo AG used a reference to the CFR to justify reluctance to protect human rights in hisill-famous Opinion in Joined Cases C-122/99 and C-125/99 D. & Sweden v. Council [2001] ECR I-4319, §97. Ithas been argued that the rationale behind the drafting of the Charter was actually to limit the human rights reachof the ECJ: Knook, A., ‘The Court, The Charter, and the Vertical Division of Powers in the European Union’,42 CMLRev., 2005.55 EComm.HR, Silvius Magnago and Südtiroler Volkspartei v. Italy [1996] Appl. No.25035/94. TheCommission found that the minimal threshold introduced in the context of parliamentary elections does notconstitute discrimination against minority parties. Cf. Thornberry and Martín Estébanez, M. A., ‘The Council of

Europe and Minorities’, Council of Europe, Doc. COEMIN, Strasbourg, September 1994, 20 – 24.56 Pentassuglia (2001), 35. ECJ case-law knows examples of a complex approach to non-discrimination, toinclude affirmative action. E. g. Case C-409/95 Hellmut Marschall v. Land Nordrhein-Westfalen [1997] ECR I-6363. For a contrasting approach see e.g. Case C-450/93 Eckhard Kalanke v. Freie Hansestadt Bremen [1995]ECR I-3051. Cf. Charpentier, L., ‘The European Court of Justice and the Rhetoric of Affirmative Action’, 4 ELJ2, 1998.10several cases involving minorities, where the Court viewed non-discrimination as allowingfor positive measures of minority protection,57 stating inter alia that ‘protection of a[linguistic minority] may constitute a legitimate aim’58 of state policy, did not change thegeneral picture: the Court is yet to establish national minority protection in a sense broaderthan simple non-discrimination as a principle of Community Law.59A number of possibilities to include the second element of minority protection intothe ambit of Community Law can be outlined.60 Probably the most realistic of them is relatedto the use of the provisions of the EC Treaty dealing with culture.61 It has been argued, thatTitle XII EC clearly implies that none of the Member States is culturally homogeneous,62 asArticle 151(1) EC states that ‘the Community shall contribute to the flowering of the culturesof the Member States, while respecting their national and regional diversity’. TheCommunity is also obliged to ‘take cultural aspects into account in its action […] in order topromote the diversity of cultures’.63Article 22 CFR also contains a reference to diversity, inspired by Articles 151(1) and(4) EC. It includes cultural, religious and linguistic diversity, thus indirectly referring to therespect for minority rights. It is notable that the drafters of the CFR viewed Article 22 CFR asbeing also rooted in Article 6 EU,64 thus pointing at the fact that diversity is a constitutionalprinciple of the EU.65The EC Treaty clearly does not only require the Community to ‘take cultural aspectsinto account in its action’,66 but also creates a climate ‘to promote culture’67 throughestablishing that aid in this domain is ‘considered to be compatible with the common

market’.68Certain minority protection measures in the sphere of culture were in place evenduring the pre-Maastricht period.69 A reference can be made, for example, to Directive77/486 of July 1977,70 dealing with the education of the children of migrant workers –nationals of one of the Member States in their mother tongue. It is questionable, however,whether this directive can really be viewed as a minority protection tool, since it is too much57 Case C-379/87 Groener [1989] ECR 3967; Case C-281/98 Angonese [2000] ECR I-4139. For discussion seee. g. von Toggenburg (2004 (Supranational Context)), 27 et seq.58 Case C-274/96 Bickel and Franz [1998] ECR I-7637, §12.59 von Toggenburg (2000), 19.60 See generally de Witte, B., ‘The Constitutional Resources for an EU Minority Protection Policy’, in vonToggenburg, G. (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest:LGI, 2004; Topidi, K., ‘Constitutionalising Minority Protection in the European Union: A MissionImpossible?’, paper presented at the 20th IPSA World Congress, Fukuoka, Japan, 9 – 13 July, 2006(unpublished, on file with the author).61 Pentassuglia (2001), 7; Schwellnus (2001), 20; von Toggenburg (2000), 11 et seq.; Cf. Martín Estébanez(1995), 142 – 151; de Witte, B., ‘The Cultural Dimension of Community Law’, METRO WP (Institute forTransnational Legal Research, Rijksuniversiteit Limburg) No.1994.002, 1994.62 Biscoe (1999), 93.63 Art. 151(4) EC.64 Council of the EU, Charter of Fundamental Rights of the European Union: Explanations Relating to theComplete Text of the Charter, Luxembourg: Office of Official Publications of the European Communities,2001, 40. Declaration No. 11 to the Final Act of the Treaty of Amsterdam on the status of churches and nonconfessionalorganisations is also mentioned among the provisions on which Art. 22 CFR was based. Cf. theexplanatory notes of the praesidium, Doc CHARTER 4473/00, 11 October 2000.65 von Toggenburg (2000), fn. 50.66 Art. 151(4) EC.67 Art. 87(3)(d) EC.68 Art. 87(3) EC.69 von Toggenburg (2000), 12.70 Directive 77/486, OJ L 199/1977.11inspired by the economic free movement and does not protect the rights of migrant workersbelonging to the national minorities. While the classical approach to minority rights usuallydoes not deal with the European citizens residing in a Member State other than their own,new studies adopt a somewhat more inclusive approach. Bruno de Witte was among the firstscholars to ask the question ‘have the Member States of the EU become ‘national

minorities’?’.71A certain evolution is apparent from the ECJ case-law related to culture, which isparticularly acute for minority protection. Martín Estébanez stresses the shift in the reasoningof the Court from mainly relying on the economic considerations to the more culturalaspects.72 Paying due respect to the cultural rights, it is clear, however, that the main case-lawof the Court related to the elaboration of the minority protection rights at the Communitylevel is mostly related to non-discrimination,73 which, as has been stated above, stops short ofproviding fully-fledged minority protection.At present second component of the Albanian Schools minority protection standard isdefinitely missing from Community Law. Such a situation does not prevent some scholarsfrom being optimistic about the development of internal minority protection system withinthe EU: ‘there seem to be already quite a number of building blocks in place on the basis ofwhich a more explicit internal minority policy for the EU could be developed if the necessarypolitical will could be engendered’.74 The scope of internal protection of minorities in the EUis thus comparable to the non-discrimination part of the CoE standard, but is slightly widerthan that due to its expansion potential to cover special rights (element 4 in picture I).3. Internal and external aspects of Community action: aminority rights paradoxIn the light of the wording of Article 6(1) EU which does not explicitly includeminority protection, the Copenhagen criterion dealing with the respect for and protection ofminorities has been called a ‘criterion which was not elevated to the nobility of PrimaryLaw’.75 The observations related to the possible reasons why it happened this way arenumerous. It is clear that the consensus concerning minority protection, as well as politicalwill to put such a system in place at the Union level is missing among the Member States.This can also be illustrated by the problems related to the ratification of the CoE Framework

Convention for the Protection of Minorities76 and the declarations adopted by the EUMember States in the course of this process. According to Bruno de Witte, ‘the notions of71 de Witte (2002), 148. Cf. von Toggenburg (2006); von Toggenburg (2003).72 Martín Estébanez (1995), 144. As an illustration of the former, consider Cases 281, 283 – 285 & 287/85Germany, France, Netherlands, Denmark and United Kingdom v. Commission [1987] ECR 3203; Joined Cases60 & 61/84 Cinétèque v. Fédération national des cinemas français [1985] ECR 2605; Case 229/83 Leclerc v.Au blé vert [1985] ECR 1; Case 52/79 Procureur du Roi v. Debauve [1980] ECR 833; Case 155/73 Sacchi[1974] ECR 409. For the illustration of the latter, consider Case C-353/89 Commission v. The Netherlands[1991] ECR I-4069; Case C-198/89 Commission v. Greece [1991] ECR I -727; Case C-180/89 Commission v.Italy [1991] ECR I-709; Case C-154/89 Commission v. France [1991] ECR I-659; Case 379/87 Groener v.Minister of Education and the City of Dublin Vocational Education Committee [1989] ECR 3967; Case 352/85Bond van Adverteerders v. Netherlands [1988] ECR 2085.73 Case C-274/96 Criminal Proceedings against Bickel and Franz [1998] ECR I-7637, §12; Case C-379/87Groener [1989] ECR 3967; Case C-281/98 Angonese v. Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139.74 Henrard (2002), 387; Martín Estébanez (1995), 162.75 von Toggenburg (2000).76 Framework Convention for the Protection of Minorities, Strasbourg, 1 Feb. 1995, ETS no. 157.12ethnic minority and European Union seem, at the first sight, to belong to two differentworlds’.77

_______________________________________________Looking closer, however, it is clear that ‘the respect for and protection of minorities’,has definitely become a new principle of (at least) the EU enlargement law, marking a longprocess of minority-related developments in the context of several enlargements.Certain rules aimed at the protection of the local communities first appeared in thecontext of the first enlargement with a reference to the rights of Channel Islanders,Manxmen,78 and the residents of the Færoe Islands.79 Such measures, not being minorityprotection per se mostly limited the application of Community Law to these territories, with agoal of preserving the local communities. In other words, they constituted a sort of

‘economic’ minority protection, which was perfectly in line with the purely economicorientation of the Communities at that time.At present, such kind of minority protection measures can only be regarded withcaution. Not only do they protect minorities. Also, by limiting the application of EU law tothe inhabitants of these special areas, they practically deprive the individuals belonging to theminorities of the part of Community law rights they would otherwise enjoy. Consider oneexample. The families granted settlement rights on Sark, the feudal fief in the hands of theseigneur of Sark and part of the bailiwick of Guernsey,80 although British Citizens (by virtueof their connection with the Crown as a successor of the Dukes of Normandy (not as a BritishMonarch)),81 are not fully-fledged EU citizens, since Community law provisions related tothe free-movement of workers and the free-movement of services do not apply to them.82While some of these people regard this state of affairs as a blessing (the status of territorieslying mainly outside EU law turned the Channel Islands into tax-heavens allowing them toattain the levels of GDP per head which are much higher than the UK average83), others areannoyed by the de facto discrimination and, the inability to rely on the free-movement ofpersons and the services under EC law. In order to become fully-fledged EU citizens the77 de Witte (2002), 137.78 Protocol No. 3 (on the Channel Islands and the Isle of Man) to the Act concerning the Accession to theEuropean Communities of the Kingdom of Denmark, Ireland, the United Kingdom of Great Britain andNorthern Ireland, OJ L 73/164, 1972. Simmonds, K. R., ‘The British Islands and the Community: I - Jersey’, 6CMLRev., 1969; Simmonds, K. R., ‘The British Islands and the Community: II – The Isle of Man’, 7 CMLRev.,1970; Simmonds, K. R., ‘The British Islands and the Community: III - Guernsey’, 8 CMLRev., 1971.79 Protocol No. 2 (on Færoe Islands) to the Act concerning the Accession to the European Communities of theKingdom of Denmark, Ireland, the United Kingdom of Great Britain and Northern Ireland, OJ L 73/163, 1972.80 Ridges, E. W., Forrest, G. A., Constitutional Law, London: Stevens & Sons, 1950, 435.81 Massey, A., ‘Modernising Government in the Channel Islands: The Context and Problematic of Reform in aDifferentiated but Feudal European Polity’, 82 Public Administration 2, 2004, 427.82 Art. 299(c) EC; Art. 2, Protocol No. 3, 1972 Act of Accession, OJ L 73/164, 1972. As also confirmed in CaseC-171/96 Rui Alberto Pereira Roque v. His Excellency the Lieutenant Governor of Jersey [1998] I-4607. The

legal status of Manxmen and Channel Islanders is comparable to that of the EU citizens from the new MemberStates before the lifting of temporary restrictions on free movement. On the latter category see Kochenov, D.,‘The European Citizenship Concept and Enlargement of the European Union’, 3 Romanian J. Pol. Sci. 2, 2003(Available at SSRN: http://ssrn.com/abstract=926850); Kochenov, D., ‘European Integration and the Gift of theSecond Class Citizenship’, 13 Murdoch U. Electronic J.L.1, 2006 (Available at SSRN:http://ssrn.com/abstract=926853).83 Massey (2004), 426.13Sarkese, just as any other Channel Islanders or Manxmen have to reside in the UK for fiveyears.84The de facto discrimination in terms of free-movement rights is even more acutegiven that the Channel Islanders as well as Manxmen fall within the scope of Britishnationality, as defined for the purposes of EU citizenship in Declaration No. 285 annexed tothe EEC Treaty by the British Government. Point ‘c’ of the Declaration makes an expressreference to Manxman and Channel Islanders, making it clear that they are nationals of theUK for the purposes of Community law.86 In other words, the kind of minority protection asused in the Protocols to the 1972 Act of Accession is of dubious nature. This type of minorityprotection standard corresponds to element 5 in pic. I. Providing Minorities with specialprotection it also strips them of some important rights.A somewhat more usable standard of minority protection, including the protection oftraditional occupations, culture, linguistic diversity etc., first appeared in the EU enlargementlaw in the course of the fourth enlargement and dealt with the rights of the Sami people87 and,to a lesser extent, with the Swedish-speaking population of the Åland Islands.88 As a result ofsuch measures, these minorities were, in the words of von Toggenburg, ‘saved fromunwanted effects of the Common Market’.89The principle of minority protection also acquired an immensely important role in theUnion’s enlargement-flavoured external relations with the countries of Central and EasternEurope after the end of the Cold War,90 especially though the ‘protection of the rights ofpersons belonging to minorities’ clause of the Europe Agreements concluded with the Central

and Eastern European countries.91 This is to say, a minority protection requirement formedpart of the enlargement law already before the first Copenhagen-related documents werereleased. But only the fifth enlargement allowed minority protection to acquire a ‘clear84 Art. 6, Protocol No. 3, 1972 Act of Accession, OJ L 73/164, 1972.85 OJ C 23/1, 1983.86 Cf. de Groot, G.-R., ‘Towards a European Nationality Law’, 8 Eur. J. Comp. L. 3, 2004 (available at<http://www.ejcl.org/83/art83-4.html>).87 Protocol No. 3 (On Sami People) to the Act concerning the conditions of accession of the Kingdom ofNorway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments tothe Treaties on which the European Union in founded, OJ C 241/352, 1994. In relation to the rights of the Samipeople it is notable that Norway attached declarations to the Final Act of the Treaty of Accession, reaffirming itscommitment to respect the rights of the Sami people (with a particular reference to Art. 27 ICCPR) anddeclaring that Bokmal and Nynorsk should enjoy a status equal to Norwegian as the languages of theCommunities. See Declaration No. 39 by the Kingdom of Norway on Sami Matters, OJ C 241/395, 1994 andDeclaration No. 38 by the Kingdom of Norway on the Norwegian Language, OJ C 241/395, 1994.88 Protocol No. 2 (On Åland Islands) to the Act concerning the conditions of accession of the Kingdom ofNorway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments tothe Treaties on which the European Union in founded, OJ C 241/352, 1994. Cf. Tucny, E., L’élargissement del’union européenne aux pays d’Europe centrale et orientale: La conditionnalité politique, Paris /Montréal :L’Harmattan, 2000, 15 et seq.; Booß, D. and Forman, J., ‘Enlargement: Legal and Procedural Issues’, 32CMLRev., 1995.89 von Toggenburg (2004 (Supranational Context)), 24.90 Wiener and Schwellnus (2004), 2.91 Maresceau, M., ‘Pre-accession’, in Cremona, M., (ed.), The Enlargement of the European Union, Oxford:OUP, 2003, 16; Riedel, E. and Will, M. ‘Human Rights Clauses in External Agreements of the EuropeanCommunities’, in Alston, Ph., Bustelo, M. and Heenan, J. (eds.), The EU and Human Rights, Oxford: OUP,1999.14political and legal dimension’.92 These developments notwithstanding, no clear minorityprotection clauses were included into 2003 Treaty of Accession.93

________________________________________________Although an established enlargement law principle, minority protection is far frombeing well-rooted within the Community. ‘Internally’, it has only manifested itself at the

Community level on two occasions, both of them quite accidental and not expressly aimed atminority protection. The first such occasion is the adoption of the EU Special SupportProgramme for Peace and Reconciliation in Northern Ireland94 and the second is a MemberStates’ demarche against Austria after the inclusion of Jörg Haider’s FPÖ into the coalitiongovernment in the year 2000.95 The protection of minority rights was expressly mentioned inthe course of the crisis on a number of occasions, making scholars speculate that ‘the EUMember States and the EU institutions […] would be opposed to any breach of inter aliaminority rights by the Austrian government’.96 Ironically, the report of the ‘three wise men’who had been sent to Austria to investigate the situation concluded that Austria ‘protects theexisting minorities […] to a greater extent than such protection exists in many otherEuropean Union countries’,97 thus failing to establish a link between the nature of thegovernment in power and possible minority rights violations.It is clear that the first example aimed at the establishment of piece and security, andthe second dealt with democracy and human rights protection in the broadest possible sense.None of them really focused on minority rights, neither was any of them adopting any viableminority protection standard, not going beyond political declarations. Minority protectiononly came as an unavoidable consequence of the Community interference.Absent from the binding sphere of the acquis, minority protection is neverthelesswell-rooted in the sphere of non-binding acts and political declarations. So the importance ofminority protection in the European Community has been asserted by the 1991 LuxembourgEuropean Council, which adopted a Declaration on Human Rights, stating that the respect ofthe minority protection principle ‘will favour political, social and economic development’.98The European Parliament has also demonstrated its willingness to contribute to the minority92 von Toggenburg (2000), 11.93 von Toggenburg (2004 (Supranational Context)), 24. The standards applied by the Commission to theassessment of minority protection in the candidate countries during the preparation of the fifth enlargement are

assessed in section 4 supra.94 European Commission, Communication to the Council and the European Parliament on ‘A Special SupportProgramme for Peace and Reconciliation in Northern Ireland’, COM(94)607 final. Cf. McGall, C., ‘PostmodernEurope and the Resources of Communal Identities in Northern Ireland’, 33 Eur. J. Political Research, 1998.95 Although it can be argued that the EU did not play an important role in the Austrian crisis, the actions of the14 Member States were obviously coordinated and cannot be treated simply as the initiatives of the individualMember States. Cf. Merlingen, M., Muddle, C. and Sedelmeier, U., ‘The Rights to Be Righteous?: EuropeanNorms, Domestic Politics and the Sanctions against Austria’, 39 JCMS, 2001; Happold, M., ‘Fourteen againstOne: The EU Member States’ Response to Freedom Party Participation in the Austrian Government’, 49 Int’l &Comp. L. Quarterly, 2000; Merlingen, M.; Muddle, C. and Sedelmeier, U., ‘Constitutional Politics and the“Embedded Acquis Communautaire”: The Case of the EU Fourteen against the Austrian Government’,ConWEB, No.4/2000, 2000 (available at <http://les1.man.ac.uk/conweb>); De Schutter, Ronse andWeyembergh, ‘Le contrôle par l’Union européenne du respect de la démocratie et des droits de l’homme par sesÉtats members: à propos de l’Autriche’, 8 Journal des tribunaux – droit européen, 2000.96 Henrard (2002), 366; Schwellnus (2001), 21.97 Report by Achtisaari, M., Frowein, J. and Oreja, M., Paris, 8 September 2000, §29.98 Luxembourg European Council, Declaration on Human Rights, Annex V to the Presidency Conclusions, 28-29 June 1991.15protection debate at the Union level on several occasions.99 The EP put forward a number ofinitiatives to introduce minority protection into the texts of the Treaties during every Treatyrevision exercise, but all these propositions were disregarded and none of them passedthrough.100 Once again, consensus on this point appears to be missing among the Herren derVerträge.________ _______!______"________#__________$_Thus, with an exception of a number of political declarations, the idea of minorityprotection going beyond simple non-discrimination has failed to get to the Community leveland enter the scope of the acquis communautaire to have an internal grip on the MemberStates.101 Such a limited role played by minority protection internally within the EU does not,however, exclude possible developments in this field.102 Not sounding too pessimistic, it is

nevertheless highly unlikely that minority protection will become a matter of large-scale EUinvolvement in the near future as ‘there remains an evident lack of competence, i.e. mandateprovided by the Treaty’s High Contracting Parties, regarding ethnic or linguisticminorities’.103 A minority protection standard common to the Member States of the EuropeanUnion is also missing.104 All this threatened to turn the EU pre-accession promotion ofminority rights into ‘measuring progress in the absence of benchmarks’, as Sasse rightlyemphasised.105A paradox is evident: an all too powerful principle of the enlargement law is not at allimportant internally.106 Even the absence of minority protection from the acquis and the nonexistenceof a common Member States’ standard in the field did not prevent the Community(and especially the Commission) from giving minority protection a full priority over otherissues during the pre-accession progress assessment exercise.10799 A number of Resolutions specifically deal with the problems related to minority protection: EuropeanParliament, Resolution on a Community Charter of Regional Languages and Cultures and on a Charter of Rightsof Ethnic Minorities, OJ C 287/1981, 106; Resolution on Measures in Favour of Minority Languages andCultures, OJ C 68/1983, 103; Resolution on the Languages and Cultures of Regional and Ethnic Minorities inthe European Community, OJ C 318/1987, 160; Resolution on Linguistic and Cultural Minorities in theEuropean Community, OJ C 61/1994, 110. Another group of Resolutions mentions the importance of the issuein a wider context: see e.g. European Parliament, Resolution on the Role of Public Service Television in aMulti-Media Society, OJ C 320/1996, 180, §27; Resolution on Human Rights in the World in 1997 and 1998and European Union Human Rights Policy, OJ C 98/1999, 270; Resolution on Racism, Xenophobia and Anti-Semitism and on Further Steps to Combat Racial Discrimination, OJ C 98/1999, 488. Numerous Resolutionsdeal with specific minorities, see e.g. European Parliament, Resolution on the Protection of Minority Rights andHuman Rights in Romania, OJ C 249/1995, 157. Cf. von Toggenburg (2004 (Supranational Context)), 5 et seq.;von Toggenburg (2000), 3 – 8.100 See de Witte (1992), 179. From the history of European Integration we know that proposals put forward bythe EP have been followed on a number of occasions, with a considerable delay though. The possibility tocombat discrimination on the grounds of ethnicity, racial origin or belonging to a national minority (a wordingvery similar to Art. 14 ECHR) was contained in the 1993 EP initiative for a draft Constitution of the European

Union, Title VIII. See EP, A3-0064/93, §3(b). It is possible to argue that this particular initiative contributed tothe later drafting of Art. 13 EC and the adoption of Directive 2000/43/EC.101 Wiener and Schwellnus (2004), 2; Brusis (2003), 1; Schwellnus (2001), 2; Martín Estébanez (1995), 135.102 von Toggenburg (2006).103 von Toggenburg (2000), 2.104 Wiener and Schwellnus (2004), 13; Schwellnus (2001), 2.105 Sasse (2004), 67.106 E. g. Hillion (2004 (Protection of Minorities)); cf. Sasse (2004), 61, 62.107 Pentassuglia (2001), 12; Maresceau (2001), 16.16That is to say, just like with the general human rights protection,108 minorityprotection is one of the cases, where the difference between ‘internal’ and ‘external’ EUaction is crucial.109 Taking minority protection requirement as an example, one can argue that‘in the context of pre-accession, the constitutional principle of “conferral of powers”110 doesnot apply’.111The gap between internal and external minority protection regulation by the Union isespecially acute after the fifth enlargement, which has only broadened this ‘politicallacuna’,112 effectively separating external demands addressed by the Community to the newcomersand the internal protection of minorities within the Community.113This gap can give rise to a number of far-reaching problems. Clearly, the Union lostits competence in the field of minority protection right after accession became a fact: preaccessionstrategy ceased to apply, just as well as the Copenhagen political criteria, while theUnion minority protection system is too close to non-existent to provide a reasonable degreeof protection.114 That is to say, in order for the Union to achieve some results in the sphere ofminority protection, all the minority protection reform in the candidate countries should becompleted before, not after the enlargement. Viewed from such perspective, minorityprotection is quite different from all the elements of the Copenhagen criteria which fallwithin the scope of the acquis, since the compliance with the latter is tested on a constantbasis also after the accession,115 and the EU involvement remains high. This observation canalso help explain the high level of attention paid by the Commission to the monitoring of the

candidate countries’ compliance with the minority protection criterion, as outlined atCopenhagen.That is to say while minority protection in the context of enlargement includes bothcomponents of minority protection, the EU’s ‘internal’ minority protection is purely based onnon-discrimination thus covering only half of the standard as outlined in the PCIJ AlbanianSchools case and Kimlycka’s writings. Although a theoretical possibility of embracing thewhole approach can, in principle, be found in the body of Community law, the political willto move in this direction is clearly missing (element 4 in pic. 5). This picture becomes evenmore complicated if the standards employed by the EU in the course of the pre-accessionassessment of the candidate countries’ adherence to the minority protection criterion arescrutinised.108 In the sphere of human rights protection the external competences are much broader than the internal ones:Alston, Ph. and Weiler, J.H.H., ‘An ‘Ever Closer Union’, in Alston, Ph., Bustelo, M. and Heenan, J. (eds.), TheEU and Human Rights, Oxford: OUP, 1999, 8; Clapham, A., ‘A Human Rights Policy of the EuropeanCommunity’, 10 Yearbook of European Law, 1990; McGoldrick, D., ‘The EU after Amsterdam: AnOrganisation with General Human Rights Competence?’ in O’Keeffe, D. and Twomey, P. (eds.), Legal Issues ofthe Amsterdam Treaty, Oxford: Hart, 1999.109 van der Meulen (2003); Schwellnus (2001), 1.110 Art.5(1)EC: ‘The Community shall act within the limits of powers conferred upon it by this Treaty and of theobjectives assigned therein’.111 Hillion (2004), 716.112 von Toggenburg (2004 (Supranational Context)), 10.113 For instance, ready to discuss minority languages protection in the candidate countries, the Commission isnot ready to give a clear answer to the questions regarding the protection of minority languages in France. SeeWritten Question No. 963/98 by Josu Imaz San Miguel to the Commission, relating to the respect of minoritylanguages, OJ C 310/1998, 150.114 For an argument for the continuation of minority rights monitoring after enlargement see Hoffmeister (2004).More generally, see also Pentassuglia (2001).115 Thanks to, inter alia, Arts. 234, 226, 227, 228 EC174. Pre-accession assessment: Is Estonia really so differentfrom Slovakia?

Based on the texts of the Copenhagen-related Documents it is possible to come upwith a classification of the Commission’s approaches to addressing the issue of minorityprotection in different candidate countries.116A number of different approaches can be outlined. For some of the countries, theissue of minority protection was somewhat less acute due to a lack of any more or lesssignificant minority population. The Commission adopted an inclusive approach to theminority protection monitoring among the candidate countries and did not specify anyminimum of minority population which is needed in order for the country monitoring in thisfield to begin. Nevertheless, the Commission has been reproached for expressly withdrawingfrom the assessment of the minority situation in some of the candidate countries, Polandbeing the most telling example of such practice.117 Even the fact that Poland was one of thelast among the Central and Eastern European countries to ratify the CoE FrameworkConvention was not criticised by the Commission.118 In other words, it appears that inrelation to some candidate countries conditionality in the field of minority protection in thecourse of the preparation of the fifth enlargement was almost not applied at all, or was onlyapplied at a rudimentary level, compared to other candidate countries.It is difficult to establish with certainty the exact sizes of minority populations in thecountries of Central and Eastern Europe. The statistical data concerning minority populationin that region has been called a ‘great illusion’119 – while the minority population data canprovide a frame of reference, it is clear that it is very far from reality.120 This issue isespecially acute in the case of Roma populations121 and equally concerns all the candidatecountries, acceding states and the (new) Member States. It is clear, however, that in thecountries that joined the EU in 2004 millions of people are discriminated on the basis of theirbelonging to a minority group.Judging both by the substance and by the structure of the Copenhagen-relateddocuments dealing with minority protection in the countries, considered by the Commission

as problematic, two distinct groups of states can be outlined. The Commission’s approach tothem appears to be quite different, which substantiates the claim made by Wiener andSchwellnus that ‘[minority protection] conditionality varies greatly across accessionstates’.122 Besides a simple non-inclusion of the issue of minority protection into theCopenhagen-related documents, released in the context of some candidate countries’ pre-116 On a similar approach see Hughes and Sasse (2003), 13 – 20, making a distinction between Roma and‘Russian-speaking’ minority on the one side and all other minorities on the other (at 14).117 On the Polish case see e.g. Wiener and Schwellnus (2004), 22 et seq.; Vermeersch (2003), 18 – 21. Neitherthe Belarusian nor the Ukrainian minorities were mentioned by the Commission.118 2000 Polish Report, 57.119 Liebich, A., ‘Ethnic Minorities and Long-Term Implications of EU Enlargement’, EUI WP, RSC 98/49,1998, 16 (available at <www.iue.it>).120 For the estimates of minority populations in the Countries of Central and Eastern Europe see Liebich (1998),Appendix II; Liebich, A., ‘Ethnic Minorities and Long-Term Implications of EU Enlargement’ in Zielonka, J.(ed.), Europe Unbound: Enlarging and Reshaping the Boundaries of the European Union, London: Routledge,2002.121 Pogány, I., ‘Legal, Social and Economic Challenges Facing the Roma of Central and Eastern Europe’,Queen’s Papers on Europeanisation, No. 2/2004, 2004 (available at<http://www.qub.ac.uk/schools/SchoolofPoliticsInternationalStudiesandPhilosophy/FileStore/EuropeanisationFiles/Filetoupload,5183,en.pdf>); Vermeersch, P., ‘Ethnic Mobilisation and the Political Conditionality ofEuropean Union Accession: The Case of the Roma in Slovakia’, 28 J. Ethnic & Migration Stud. 1, 2002.122 Wiener and Schwellnus (2004), 15.18accession process, the Commission did not formulate a single approach to all the candidatecountries where this issue was assessed.The first group of candidate countries included123 Bulgaria,124 Romania,125Slovakia,126 Hungary,127 the Czech Republic128 and, among the present-day candidatecountries, Croatia.129 The Copenhagen-related documents dealing with minority protection inthese countries did not contain any special sub-structure and dealt with a number ofminorities, mostly concentrating on the situation of the Roma,130 ethnic Hungarians131(mostly in Slovakia and Romania) and ethnic Turks (in Bulgaria).132 A number of smaller

size minority groups have also been mentioned (e. g. the Csango minority in Romania133).While dealing with these countries the Commission advocated wider inclusion for theminority population, respect and support for minority cultures, introduction of education inminority languages (including higher education for some minority groups) and, in somecases, cultural autonomy. A special emphasis was made on the issue of non-discrimination onthe ground of belonging to an ethnic minority.The second group of countries was considerably smaller and included Latvia andEstonia. The Copenhagen-related documents dealing with the state of minority protectionthere adopted a special structure, different from that contained in the Copenhagen-relateddocuments dealing with the first group of countries. The main focus of discussion was on thesituation of the ‘Russian-speaking’ minority,134 although, just as in the previous group, a123 On minority protection in the Constitutional Law of the countries of this group see e. g. Sadurski, W.,‘Constitutional Courts in the Process of Articulating Constitutional Rights in the Post-Communist States ofCentral and Eastern Europe. Part III: Equality and Minority Rights’, EUI WP Law No.2003/6, 2003, 16 et seq.,(available at <www.iue.it>).124 Cf. e. g. Zhelyazkova, A., ‘The Bulgarian Ethnic Model’, 10 East Eur. Const. Rev., 2001.125 Cf. e. g. Horvath, I. and Sacco, A., ‘From the Unitary to the Pluralistic: Fine-Tuning Minority Policy inRomania’, in Bíró, A.-M. and Kovács, P. (eds.), Diversity in Action. Local Public Management of Multi-EthnicCommunities in Central and Eastern Europe, Budapest: LGI, 2001; Ram, M., ‘Minority Relations inMultiethnic Societies: Assessing the European Union Factor in Romania’, 1 Rom. J. Society & Politics 2, 2001.126 Cf. e. g. Topidi, K., ‘The Limits of EU Conditionality: Minority Rights in Slovakia’, JEMIE 1, 2003(available at <http://www.ecmi.de/jemie/>).127 Cf. e. g. Vermeersch (2003), 11 – 15; Krizsán, A., ‘The Hungarian Minority Protection System: A FlexibleApproach to the Adjudication of Ethnic Claims’, 26 Journal of Ethnic and Migration Studies 2, 2000.128 Cf. e. g. Vermeersch (2003), 15 – 17.129 Cf. e. g. Petri_uši_, A., ‘Wind of Change: The Croatian Government’s Turn towards a Policy of EthnicReconciliation’, EDAP 6/2004, 2004 (available at <http://www.eurac.edu/documents/edap/2004_edap06.pdf>).130 On the influence of the transition to democracy on the situation of the Roma minority see e. g. Pogány(2004); Vermeersch (2002); Ringold, D., Roma and the Transition in Central and Eastern Europe: Trends andChallenges, Washington D.C.: The World Bank, 2000; Pogány, I., ‘Accommodating an Emergent NationalIdentity: The Roma of Central and Eastern Europe’, 6 Int’l J. Minority & Group Rts., 1999; Brown, M. W., ‘The

Effect of Free Trade, Privatisation and Democracy of the Human Rights Conditions for Minorities in EasternEurope: A Case Study of the Gypsies in the Czech Republic and Hungary’, 4 Buff. Hum. Rts. L. Rev., 1998.131 On the overview of the situation of the Hungarian minority see e. g. Haight, G. L., ‘Unfulfilled Obligations:The Situation of the Ethnic Hungarian Minority in the Slovak Republic’, 4 ILSA J. Int’l & Comp. L., 1997.132 Cf. e. g. Zhelyazkova (2001).133 In including the mentioning of this particular minority in the Regular Reports the Commission was followingthe Parliamentary Assembly of the Council of Europe. See PACE Recommendation 1521 (2001) Csangominority culture in Romania.134 See e. g. Topidi, K., ‘Zashchita men’shinstv i chlenstvo v ES stran Baltii: mify i real’nost’’, in Kasecamp, A.and Päebo, H. (eds.), Prodvizhenije demokraticheskih tzennostej v rasshiriajushchejsia Jevrope:Izmeniajushchiajania rol’ Baltijskih gosudarstva ot importërov k èksportëram, Tartu: Univeristy of Tartu, 2006(available at <http://ec.ut.ee/conf06/files/konverents_venek.pdf>); Van Elsuwege, P., ‘‘Russian-speaking’Minorities in Estonia and Latvia: Problems of Integration at the Threshold of the European Union’, ECMI WPNo.20, 2004 (available at <http://www.ecmi.de/download/working_paper_20.pdf>); Smith, D. J., ‘MinorityRights, Multiculturalism and EU Enlargement: The Case of Estonia’, JEMIE 1, 2003 (available at19number of other minorities was also discussed. In the context of Estonian and Latvianapplications for accession the Commission relied heavily on the findings of the CoE135 andOSCE136 and was backing the developments that were drastically different from the demandsaddressed to the candidate countries belonging to the first group. Concerning the role playedby the OSCE, it has even been argued that the EU has ‘delegated to the HCNM [HighCommissioner on National Minorities] the task of judging whether [the candidate countries]have “done enough” in terms of minority rights’.137 The references to the OSCE position arecontained both in the Europe Agreements with Estonia and Latvia138 and in the AccessionPartnerships,139 making the ECNM’s recommendations de facto enforceable law in thecontext of enlargement.The Commission focused on a number of negative developments in the field ofminority rights in these countries, but ultimately tolerated established discrimination againstminority groups in Latvia and Estonia. Unfortunately, the Commission mostly concentrated

on the instances of discrimination which were in blunt contradiction with the obligationsstemming from the Europe Agreements concluded with Latvia and Estonia, ‘in particular in<http://www.ecmi.de/jemie/>); Van Elsuwege, P., ‘State Continuity and Its Consequences: The Case of theBaltic States’, 16 Leiden J. Int’l L., 2003; Gelazis, N., ‘The Effects of EU Conditionality on Citizenship Policiesand Protection of National Minorities in the Baltic States’, EUI WP RSC No. 2000/68, 2000 (available at<www.iue.it>); Dorodnova, J., ‘EU Concerns in Estonia and Latvia: Implications of Enlargement for Russia’sBehaviour towards the ‘Russian-speaking’ Minorities’, EUI WP 2000/40, 2000, 45 (available at <www.iue.it>);Poleštšuk, V., Semjonov, A., Report. International seminar ‘Minorities and Majorities in Estonia: Problems ofIntegration at the Threshold of the EU’, Tallinn, 1999, 9, available at<http://www.lichr.ee/rus/centre/seminari/seminar1999.rtf>; Kalvaitis, R. M., ‘Citizenship and National Identityin the Baltic States’, 16 B.U. Int’l L.J., 1998; Visek, R. C., ‘Creating the Ethnic Electorate through LegalRestorationism: Citizenship Rights in Estonia’, 38 Harv. Int’l L.J., 1997; Holzapfel M., ‘Note: The Implicationsof Human Rights Abuses Currently Occurring in the Baltic States against the Ethnic Russian NationalMinority’, 2 Buff. J.Int’l L., Winter 1995 – 1996; Hanneman, A. J., ‘Independence and Group Rights in theBaltics: A Double Minority Problem’, 35 Va. J. Int’l L., 1995; Barrington, L. W., ‘The Domestic andInternational Consequences of Citizenship in the Soviet Successor States’, 47 Eur.-Asia Stud., 1995.135 Cf. Gilbert, G., ‘Minority Rights under the Council of Europe’, in Cumper, P. and Wheatley, S. (eds.),Minority Rights in the ‘New’ Europe, The Hague/ London/ Boston: Martinus Nijhoff Publishers, 1999; Aarnio,E. J., ‘Minority Rights in the Council of Europe’, in Phillips, A. and Rosas, A. (eds.), Universal Minority Rights,Turku /Åbo: Åbo Akademis tryckeri, 1995.136 Cf. Zaagman, R., Conflict Prevention in the Baltic States: The OSCE High Commissioner on NationalMinorities in Estonia, Latvia and Lithuania, ECMI, 1999; For the Relevant OSCE documents see theRecommendations of the High Commissioner on National Minorities, available at<http://www.osce.org/hcnm/documents/resommendations/>; Zelliner, W., ‘On the Effectiveness of the OSCEMinority Regime. Comparative Case Studies on Implementation of the Recommendations of the HighCommissioner on National Minorities of the OSCE’, IFSH (Institut für Friedensforschung undSicherheitspolitik) No. 111, 1999; Bloed, A., ‘The OSCE and the Issue of National Minorities’, in Phillips, A.and Rosas, A. (eds.), Universal Minority Rights, Turku /Åbo: Åbo Akademis tryckeri, 1995.137 Kymlicka, W. ‘Reply and Conclusion’, in Kymlicka, W. and Opalski, M. (eds.), Can Liberal Pluralism beExported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: OUP, 2001, 375.138 See the Preamble to the Europe Agreement with Estonia: ‘Considering the commitment to the intensificationof political and economic liberties which constitute the basis of this Agreement and to further development of

Estonia’s new economic and political system which respects – in accordance inter alia with the undertakingsmade within the context of the […] Organisation for Security and Cooperation in Europe (OSCE) – the rule oflaw and human rights, including the rights of persons belonging to minorities’, OJ L 68/1998. For a similarwording see the Preamble to the Europe Agreement with Latvia, OJ L 26/1998.139 Not mentioning the OSCE findings directly, the Accession Partnerships, however, make a reference to acting‘in line with the principle of proportionality, international standards and the Europe Agreement’. See e.g. Annexto Council Decision 2002/88/EC of 28 January 2002 on the principles, priorities, intermediate objectives andconditions contained in the Accession Partnership with Latvia, OJ L 44/2002 and Annex to Council Decision2002/86/EC of 28 January 2002 on the principles, priorities, intermediate objectives and conditions contained inthe Accession Partnership with Estonia, OJ L 44/2002.20the fields of free movement of persons, right to establishment, supply of services, capitalmovements and award of public contracts’.140 In other words, the market-oriented nature ofthe EU prevailed and little criticism was awarded to the policy of assimilation of the minoritypopulation coupled with the exclusion of the minorities from many spheres of life resulting inthe marginalisation of minorities – a reality in the countries of the second group.141 Thepolicy of the countries in question tolerated by the Commission amounted, as described indetail by Hughes, to the attempts to trigger exclusion and, eventually, immigration of theminority population.142 This approach was on its face contradictory to the spirit of inclusionand tolerance promoted by the Commission in the first group of countries.Adopting different approaches to minority protection depending on the countrieswhere the assessment was conducted and a particular minority in question does not go in linewith the pre-accession principle of conditionality that consisted in the objective assessment ofall the candidate countries’ progress based on the same criteria for all. Moreover, even withineach of the groups outlined the Commission’s approach to minority protection differed fromcountry to country. Different degrees of pressure are applied as well as different degrees ofscrutiny.143The main differences between the Commission’s approaches to the assessment of

minority protection in the countries belonging to the first and the second group concerned thefollowing issues:- Structural approach to minority rights assessment;- Naming the minorities concerned;- Different approach to the link between belonging to a given minority and thecitizenship of a country in question;- Different approaches to minority education in two groups of countries;- Different approaches to non-discrimination in two groups of countries;- Different approaches to minority self-government in two groups of countries;- Different approaches to the political rights enjoyed by minorities in two groups ofcountries.144

%__________&________&________________&__&________'_________________&_____While the approaches to the integration of the Russian minorities in Estonia andLatvia and the minorities in other candidate countries were built by the Commission alongtotally different lines, this difference was not reflected in the structure of all the Copenhagenrelateddocuments. It would have been naïve to expect the Commission to introduce into theregular reporting exercise such a differentiated treatment of minorities already at thestructural level: this would be in blunt disaccord with the principles of enlargement law,140 1999 Estonian Report, 15; 1999 Latvian Report, 18.141 Cf. 4.3. – 4.8. infra.142 Hughes, J., ‘“Exit” in Deeply Divided Societies: Regimes of Discrimination in Estonia and Latvia and thePotential for Russophone Migration’, 43 JCMS 4, 2005. Mikitajev, A., ‘Problemy grazhdanstva pusskih irusskojazychnogo naselenija v Latvii i Estonii’, Rossijskij biulleten’ po pravam cheloveka 3, 1994 (available at<http://www.hrights.ru/text/b3/bul3.htm>).143 For the differences in the Commission’s analysis of Poland, Hungary and Romania see Wiener andSchwellnus (2004), 15 et seq.144 This list is by no means exclusive and is drafted solely with a view to providing an example of how theapproaches to minority protection used by the Commission varied. For the summary of a number of differencessee Table 1.21making all the reasonable claims for predictability of the enlargement process irrelevant.145While the two-tire structure of the problematic countries is not really articulated in thestructure of the Copenhagen-related documents of general nature, such as Composite and

Strategy Papers, the same cannot be said about the structure of the Regular Reports releasedby the Commission.146The Papers’ approach to the issue is quite unsystematic. So the 1998 Paper tacklesthree main issues related to minority protection: Situation in Latvia and Estonia; Situationwith Roma; Hungarian minority in Romania and Slovakia.147 A similar structure of theassessment of the candidate countries’ progress can be found in other papers as well. The1999 Paper notes the progress with the handling of minority protection in Estonia andSlovakia, discusses the need of ‘striking the right balance between legitimate strengthening ofthe state language and the protection of minority language rights’,148 the situation with Romaand Hungarian minorities. The 2001 Strategy Paper narrows down the minority protectionassessment to two main issues: situation in Latvia and Estonia and the protection of Romarights.149 The 2002 Paper’s structure puts a dividing line between the issues of ‘Roma’protection and ‘minority’ protection, the latter to include all other minorities.150Overall, the Composite and Strategy Papers do not provide clear enough guidancethrough the minority protection particularities, mentioning the most acute problems anddevelopments, demonstrating an approach similar to that adopted by the Commission in thecourse of the pre-accession assessment of democracy and the rule of law in the candidatecountries.151A different picture can be observed upon the study of the Regular Reports. So dealingwith the second group of countries the Commission applies a specific ‘naturalisationoriented’structure of the Reports, including sub-headings dedicated to the issuance ofresidence permits and granting citizenship to the members of the minority communities.Thus all the Regular Reports dealing with the second group of countries werestructurally different from those dealing with the first group. The structure introduced by theCommission was mainly a three-fold one, including:1. naturalisation procedure;2. residence permits and special passports for non-citizens;3. integration of minorities.

145 Scholars argue that, on the large scale, the introduction of the principle of conditionality and its subsequentapplication did not make the enlargement process more predictable and clear: e. g. Hillion, Ch., ‘Enlargement ofthe European Union: A Legal Analysis’, in Arnull, A. and Wincott, D. (eds.), Accountability and Legitimacy inthe European Union, Oxford: OUP, 2002, 402; cf. Kochenov (2004 (Copenhagen Façade)).146 For the structure of the whole body of the Copenhagen-related documents, i. e. documents released inimplementation of the conditionality principle of the Copenhagen criteria, see Kochenov (2004 (CopenhagenFaçade)), 5 – 8.147 1998 Paper, 4.148 1999 Paper, 15.149 2001 Paper, 11.150 2002 Paper, 13 and 14.151 Kochenov (2004 (Copenhagen Façade)). The same is largely true regarding the pre-accession assessment ofthe rights of sexual minorities: Kochenov, ‘Democracy and Human Rights – Not for Gay People? EU EasternEnlargement and Its Impact on the Protection of the Rights of the Sexual Minorities’, forthcoming in Tex.Wesleyan L. Rev. Cf. Van Elsuwege, P., ‘Prodvizhenije demokratii v sosednikh ES stranakh: Uroki strategiipredvaritel’nyh uslovij chlenstva’, in Kasecamp, A. and Päebo, H. (eds.), Prodvizhenije demokraticheskihtzennostej v rasshiriajushchejsia Jevrope: Izmeniajushchiajania rol’ Baltijskih gosudarstva ot importërov kèksportëram, Tartu: Univeristy of Tartu, 2006 (available at<http://ec.ut.ee/conf06/files/konverents_venek.pdf>).22Some Regular Reports also contained a sub-chapter on linguistic legislation.152Already from this structure it is clear that the accents in the Commission’s assessment ofminority protection in Latvia and Estonia were shifted considerably, compared to theminority protection in the first group of countries. Predictably, there appeared a considerabledifference in the substantive approach to the minority protection assessment between thecountries belonging to the first and to the second group.%____(_____________________)________!_________________&________&______As if following the example of international law, where consensus concerning thedefinition of a ‘minority’ is missing, the European Commission ascribed the notion of‘minority’153 a very specific meaning, which differed considerably from the approach to theissue adopted in scholarly literature on the topic. Moreover, the approaches to the definitionadopted by the Commission for the first and the second groups of the candidate countries alsodiffered considerably.

A definition of a ‘minority’ is nowhere to be found in the Copenhagen-relateddocuments, leaving it up to the candidate countries to determine whom the Commission wasasking them to respect and to protect. Several peculiar features of the Commission’sunderstanding of the term follow directly from the Opinions and Regular Reports.First of all, the Commission’s notion of ‘minority’ used in the majority of theCopenhagen-related documents is clearly limited to national minorities, thus excluding awhole range of other minority groups, that might otherwise deserve protection. It is true thatthe rights of some other minority groups like religious and sexual minorities are addressed bythe Commission in the sections of the Copenhagen-related documents dedicated to othergroups of rights. At the same time, it is surprising why the Commission never used the term‘national’ or ‘ethnic’ minorities in the Regular Reports, insisting on a broader term ‘minority’which might appear misleading. It is worth recalling here, that Article 27 ICCPR, forexample, distinguishes between at least three kinds of minorities: ethnic, linguistic andreligious.154 The CoE Framework Convention adopts a slightly different approach, talkingabout national minorities without specifying this term, unknown to other internationalminority-protection regimes.155Taking such a specific view of minorities, the Commission did not necessarily act inaccordance with a definition of minorities employed by other Community Institutions. TheEuropean Parliament, for example, called for laying ‘particular stress on the rights ofminorities (ethnic, linguistic, religious, sexual etc.) at the time of enlargementnegotiations’.156Secondly, there is certainly a bit of confusion in the way the Commission named theminorities whose situation it monitored. It downgraded the importance of some minorities, bydefining them differently from other minority groups in similar situation. Talking about aHungarian minority living in Slovakia or Romania, the Commission uses a term ‘Hungarian152 See e. g. 1999 Estonian Report, 14; Strangely, Latvian Reports do not contain such a sub-chapter.153 Generally on the definition of a minority see Valentine, J. R., ‘Toward a Definition of National Minority’,

Denver J. Int’l L. Policy, 2004; Pentassuglia (2000); Henrard (2002), 367 – 370; Schulte-Tenckhoff andAnsbach (1995), 17 et seq.; Mullerson (1993), 807.154 Cf. Valentine (2004), 455 et seq.155 Gilbert (1999), 55.156 European Parliament, Resolution on Human Rights in the World in 1997 and 1998 and European UnionHuman Rights Policy, OJ C 98/1999, 270, §10.23minority’, while when discussing the minorities in Estonia and Latvia the term used is‘Russian-speaking minority’. Obviously, the denomination of what kind of minority is dealtwith in the Regular Reports is of greatest importance and can have considerable implicationson the strategy and practice of minority protection. The term ‘Russian-speaking minority’ isarguably narrower in meaning (and also might be interpreted to demand a different scope ofprotection compared to other minority groups assessed by the Commission) than ‘Russianminority’. The latter, also including linguistic rights, puts equal emphasis on culture andgroup identification based on common history, values etc., not limited to the linguisticfactors.157 Thus in the context of the two groups of candidate countries outlined supra theCommission started differentiating between minorities in Latvia and Estonia on the one handand the minorities in other countries on the second, already by defining these minoritiesdifferently.%____*_________________+______,_______________________________&________&______The Commission behaved wisely by refusing, on several occasions, to follow thedefinitions adopted in a given candidate country, trying to look into the substance of the issueof minority protection.158 This issue was particularly acute for the second group of countries.Latvia and Estonia, for example, were eager to make a connection between minority statusand the national citizenship, thus excluding all the non-citizens living (and often born) intheir territory from the scope of application of the minority protection criterion. Unlike in theother ‘states that emerged from the collapse of the Soviet Union [and] chose a “zero option”for citizenship, by which all permanent residents were granted citizenship without

naturalisation’,159 huge portions of the permanent population of the Baltic States of Latviaand Estonia were not granted citizenship rights after the dissolution of the Soviet Union andthus remained stateless.160157 On linguistic minority rights see e. g. de Varennes, F., ‘The Protection of Linguistic Minorities in Europe andHuman Rights: Possible Solutions to Ethnic Conflicts?’, 2 Colum. J. Eur. L., 1996.158 By doing this the Commission deviated from the generally established practice allowing the statesthemselves decide on the definition of a ‘minority’: von Toggenburg (2004 (Supranational Context)), 9.159 Barrington, L. W., ‘The Making of Citizenship Policy in the Baltic States’, 13 Geo. Immigr. L.J., 1999, 166.It is notable that the Treaty on the Principles of the Interstate Relations between the RSFSR (as Russian wasthen called) and Estonian Republic 1991 was the first step to a similar solution. In Art. 3.1 the Treaty offered theminorities a choice of either Estonian citizenship of a citizenship of the RSFSR. At the same time, Art. 3.3stipulated an obligation to conclude a special agreement regarding citizenship issues, but such an agreement hasnever been concluded. The Treaty was ratified by the Supreme Soviet of the Republic of Estonia on 15 January1991 (Vedomosti Estonskoj Respubliki No. 2, 1991). Ratified by the Supreme Soviet of the RSFSR on 26December 1991 (Vedomosti RSFSR, No. 3, 1992).160 Citizenship was not granted on the grounds that the independence of Latvia and Estonia did not come, legallyspeaking, as a result of secession from the Soviet Union, in which case the former Union citizens would get aright of option, but was a restoration of statehood suspended by the Soviet occupation right before WWII.Generally, on the secession and the right to nationality under International Law see Blackman, J. L., ‘StateSuccessions and Statelessness: The Emerging Right to an Effective Nationality under International Law’, 19Mich. J. Int’l L., 1998. On the position of the Russian Federation concerning the Soviet occupation of the BalticStates see Ministry of Foreign Affairs of the Russian Federation, answers to questions 97-20-01-2005 of 20January 2005 and 2721-27-12-2004 of 27 December 2004 (available at <http://www.ln.mid.ru>). On theoccupation thesis see e. g. Separate Dissenting Opinion of Judge Maruste in the case ECt.HR Slivenko v. Latvia[2003] Apl. No. 48321/99. It has been argued that the European Union recognised such a position in order,especially, to justify its policy of differentiation between the Baltic Republics and other post-Soviet states. SeeVan Elsuwege, P., ‘The Baltic States on the Road to EU Accession: Opportunities and Challenges’, 7 Eur. F.Aff. Review, 2002.24Dealing with the countries of the second group the Commission did not allow such a

narrow reading of the term ‘minority’ to become the starting point of the pre-accessionassessment, pointing out already in the Opinions on the Latvian and Estonian applications forthe membership of the European Union (released in 1997) that the assessment of minorityprotection should be made solely based on de facto situation ‘regardless of the nationalityheld and difference in personal status arising from non-possession of Latvian nationality’.161An almost identical wording can be found in the Opinion regarding Estonia’s application.162Such a constructive approach to the definition of the minorities in the context of these twocountries’ pre-accession progress resulted in some mild changes in the naturalisation policy,adopted in Latvia and Estonia.163 The Commission stopped short of capitalising on theachievements stemming from the inclusive definition of minorities for the purposes of thepre-accession assessment. Consequently, this approach, although beautiful on paper, onlybrought meagre results leaving much to be desired.Although not resulting in any sweeping changes, the move made by the Commissionwas legally speaking very significant, since for the first time the naturalisation policies of thecandidate countries were influenced by the pre-accession pressure of the EU,164 which hasonly limited powers in this domain. In any other context the Member States are free (albeitwithout discrimination165 and with ‘due regard to Community law’166) to decide who theircitizens are.167 That is to say, starting with 1997 the Commission adopted a ‘realistic’ or‘inclusive’ approach to the assessment of the minority protection in these candidatecountries.168The Opinions on the Application for Membership released by the Commission onJuly 15, 1997 enable us to assess the scope of the problem: according to the Opinions,‘around 35% of the population of Estonia consists of minorities, including non-citizens. […]Of that 35% a group of 23% (numbering around 335.000, mainly of Russian origin) are notEstonian citizens’.169 ‘In Latvia, minorities, including non-citizens, account for nearly 44% of

the population […]. Latvians are a minority in 7 of the country’s 8 largest towns. Within that44%, 28% of the population, i. e. some 685.000 people, do not have Latvian citizenship and alarge proportion of that group, consisting of the former citizens of the USSR, have nocitizenship at all’.170 To summarise, in its assessment of nationality policies, the Commission161 Opinion on the Latvian application, 18.162 Opinion on the Estonian application, 18.163 Kochenov, D., ‘Pre-accession, Naturalization, and “Due Regard to Community Law”: The European Union's“Steering” of Citizenship Policies in Candidate Countries during the Fifth Enlargement’, 4 Romanian J. Pol.Sci. 2, 2004 (available at SSRN: http://ssrn.com/abstract=926851).164 On the general overview of how the EU influences national citizenship policies see Rostek, K., Davies, G.‘The Impact of European Citizenship on National Citizenship Policies’, 10 EIoP 5, 2006 (available at<http://eiop.or.at/eiop/texte/2006-005a.htm>).165 Case C-300/04 M. G. Eman and O. B. Sevinger v. College van burgemeester en wethouders van Den Haag[2006] judgement of 12 September 2006, nyr.166 Case C-390/90 Micheletti v. Delegación del Gobierno en Cantabria, [1993] ECR I-4239, §10.167 Declarations on this matter were made by Germany (Attached to the EEC Treaty) and by the UnitedKingdom (first attached to the 1972 Treaty of Accession by the United Kingdom to the European Communities,later, in the light of a new Nationality Act, the UK made a new declaration on the definition of the term‘nationals’ on January 28, 1983). See also Case C-192/99 The Queen v. Secretary of State for the HomeDepartment ex parte Kaur [2001] ECR I-1237, commented by Hall, S., ‘Determining the Scope rationepersonae of European Citizenship: Customary International Law Prevails for Now’, 28(3) LIEI, 2001, 355.168 The Commission explicitly recognised the importance of the problem as early as in 1994: Communicationfrom the Commission to the Council, ‘Orientations for a Union Approach towards the Baltic Sea Region’,SEC(94) 1747 final, Brussels, 25 October 1994, 3.169 Opinion on the Estonian application, 18.170 Opinion on the Latvian application, 17.25dealt with the legal status of over a million people, making up a considerable share of thepopulation of the candidate countries belonging to the second group.The candidate countries themselves considered the persons in possession of foreign orof no nationality as not being part of the minority population. Consequently, according toLatvia and Estonia, the Copenhagen criterion of ‘respect for and protection of minorities’ was

not applicable to the situation of these people and, as a result, could not affect the applicationto join the EU made by Latvia and Estonia. To illustrate this point a reference can be made,for example, to the definition of a minority adopted by Estonia in the course of ratification ofthe Council of Europe Framework Convention for the Protection of National Minorities,171where Estonian government made a declaration that172Estonia understands the term "national minorities" as follows:Citizens of Estonia that(a) reside on the territory of Estonia;(b) maintain longstanding, firm and lasting ties with Estonia;(c) are distinct from Estonians on the basis of their ethnic, cultural, religiousor linguistic characteristics;(d) are motivated by a concern to preserve together their cultural traditions,their religion or their language, which constitute the basis of their commonidentity.The Commission dismissed such a citizenship-centred definition as ‘not relevant’.173The inclusive vision of minorities was only applied by the Commission to Latvia andEstonia. The first group of countries was analysed based on the assumption that personsbelonging to the minorities hold a nationality of the state where they reside. To illustrate adifference between the two approaches to minority definition, consider the Czech definitionof minorities, cited by the Commission: the Czech Law on the Rights of National Minorities,defined minorities as ‘a group of citizens of the Czech Republic living on the current territoryof the Czech Republic that differentiate themselves form the rest of the citizens and thoughtheir ethnic, linguistic and cultural origin create a minority that at the same time wish to beconsidered a minority’174 (emphasis added). Moreover, the Commission actively participatedin the drafting of Minority protection legislation in the Czech Republic: a pre-accessionadvisor participated in the drafting process as part of the twining programme.175 Thus theCommission knowingly approved of such a definition. The same definition is used by othercountries in the region.176 It has been noted that such an approach is probably not in line withthe ECJ case-law,177 which grants a possibility to benefit from the minority protection normsadopted by a Member State not only citizens, but also residents178 and visitors.179

In other words, the Commission asserted its right to apply the Copenhagen minorityprotection criterion to both citizens and foreigners (or stateless persons) residing in thecandidate countries only while dealing with Estonia and Latvia. It is notable, that there is noprincipal consensus in the scholarly literature on the topic concerning the notion of minority171 Council of Europe, ‘Framework Convention for the Protection of National Minorities’, Strasbourg, 1February 1995, ETS no. 157.172 Estonia ratified the Convention on 6 January 1997. Such declarations are not something new: Germany andLuxembourg, for example, made similar declarations while signing the Convention.173 Opinion on the Estonian application, 1.174 2001 Czech Report, 25175 See Hofmann, M., ‘The 2001 Law on National Minorities of the Czech Republic’, 1 EYbMI, 2001/2002, 624.176 See e. g. Łodzi_ski (1999), 8 for the Polish citizenship-centred definition.177 Wiener and Schwellnus (2004), 33.178 Case 137/84 Criminal proceedings against Robert Heinrich Maria Mutsch [1985] ECR 2681.179 Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7637.26or a necessity of a link between the minority status and citizenship.180 While it is often arguedthat citizenship is a necessary precondition to be recognised as a minority,181 many scholarsdisagree with it.182Likewise, it is impossible to find a clear solution to this problem in the maininternational legal instruments. Carmen Thiele notes that the Human Rights Committeeestablished by Article 28 ICCPR recognised that ‘all members of an ethnic, religious orlinguistic minority are granted minority rights, no matter whether they possess the citizenshipof the state or not’.183 The Framework Convention for the Protection of National Minoritiesdoes not contain any reference to citizenship either, which does not help, since it does notcontain any definition of minority, which would prove that citizenship is not amongnecessary requirements to be treated as a minority. The PCIJ did not include a citizenshiprequirement in its minority definition.184 The European Charter for Regional and MinorityLanguages, on the contrary, explicitly contains a citizenship requirement for minorities.185Overall, ‘the European regional system considers citizenship as a necessary precondition for

membership of a legally protected minority’.186 Assessed from this standpoint, the EstonianDeclaration attaching minority status to the citizenship of Estonia goes in the mainstream oflegal development in the field, which makes the position taken by the Commission an almostrevolutionary one.Notwithstanding the innovative nature of the Commission’s move towards theinclusive approach to minority definition the new understanding of who should qualify asbelonging to minorities in Estonia and Latvia, clearly did not change the approach towardsminorities adopted in these particular countries. The 2002 Estonian Report underlined thatEstonia gave too narrow definition to minorities,187 adding, however, that Estonia adopted amore inclusive approach in practice.188 Moreover, such a discrepancy in the definition of whois a minority within the scope of the Copenhagen political criteria demonstrated quite clearlythat no single approach was used by the Commission during the pre-accession monitoringexercise. This, yet again, undermined the pre-accession rhetoric of single and fair standardapplicable equally to all the candidate countries.Recalling the famous statement by Chief Justice Earl Warren in Perez v. Brownell,‘citizenship is man’s basic right, for it is nothing less than the right to have rights’.189 In thecontext of the Russian speaking minority in Latvia and Estonia the problem of statelessness is180 Thiele, C., ‘The Criterion of Citizenship for Minorities: The Example of Estonia’, ECMI WP No. 5, 1999, 2et seq. (available at <http://www.ecmi.de/download/working_paper_5.pdf>) Cf. Pentassuglia, G., Minorities inInternational Law, Strasbourg: CoE Publishing, 2002.181 Wiener and Schwellnus (2004) 8; Thiele (1999), 2, 3; Capotorti, F., Study on the Rights of Persons Belongingto Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, New York, 1979 (UNPublication Sales No. E.91.XIV.2, 1991) 96; Deschêne, J., Proposal Concerning a Definition of the Term‘Minority’ , UN Doc. E/CN.4/Sub.2/1985/31, 14 May, 1985, 30.182 Thiele (1999), 3; Tomuschat, Ch., ‘Protection of Minorities under Article 27 of the International Covenant onCivil and Political Rights’, in Bernhardt, R.; Geck, W. K.; Jaenicke, G. and Steinberger, H. (eds.), Völkerrechtals Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte, Festschrift für Hermann Mosler, Berlin/Heidelberg/ New York: Springer, 1983, 960; Nowak, M., U.N. Covenant on Civil and Political Rights. CCPRCommentary, Kehl/ Strasbourg/ Arlington: N.P. Engel, 1993, 499.

183 Thiele (1999), 3; Human Rights Committee, §5.1 of the ‘General Comment No. 23 (50) on Article27/Minority Rights’, UN Doc. CCPR/C/21/Rev. 1/Add. 5, 6 April 1994.184 PCIJ Advisory Opinion Regarding Greco-Belgian “Communities” [1930] PCIJ Reports Series B, No. 17.185 Art. 1(a)(i) of the European Charter for Regional and Minority Languages.186 Thiele (1999), 21; see also Roter, P., ‘Managing the “Minority Problem” in the Post-Cold War Europe withinthe Framework of a Multilayered Regime for the Protection of National Minorities’, 1 EYbMI, 2001/2002, 106.187 2002 Estonian Report, 31.188 Id., fn. 8.189 Perez v. Brownell, 356 U.S. 44 (1958), Warren CJ, Black J, and Douglas J, dissenting.27aggravated by the fact that by having a stateless status huge portions of the population ofthese states are de facto prevented by virtue of strict ethnocentric policy of the statesbelonging to the second group, from acquiring the nationality of the Baltic States in questionand also of the Citizenship of the European Union, which is derivative thereof. Lownaturalisation rates in the states of the second group (particularly in Latvia) are very telling inthis regard,190 inviting speculations about ineffective and discriminatory policy choices madein these countries. To claim certain limited community rights the members of minoritygroups, unless they are family members of Community citizens,191 can only rely on Directive2003/109/EC.192 Hughes predicts a large-scale exit of ethnic Russians from Latvia andEstonia.193

%_-__(______________________________&___________________&________&______Putting the fight for school desegregation aside194 (which is too complicated an issuefor a brief note likes this) the approach taken by the Commission in relation to education ofthe minorities is also inconsistent: while one minority should have a university, otherminorities loose their rights to schooling in their language. In the context of the ‘Russianspeaking’minorities an accent is made on de facto assimilation, while concerning theHungarian minority the principles applied by the Commission are absolutely different.195So the Commission followed the developments related to the amendment of the Law

on Education in Romania in order to create a German-Romanian University.196 Suchuniversity was not supposed to become the only institution of higher education in Romaniaoperating in minority languages, since Hungarian is used at a number of departments of stateuniversities in that country.The developments in Latvia and Estonia reveal that prohibition or limitation ofteaching in the minority language is considered to be an organic part of the promotion of thestate language. In Estonia Russian schools get funding from the state.197 However, the Lawon Basic and Upper Secondary Schools, as amended, only allows for 40% of teaching to bedone not in Estonian language starting with the year 2007,198 which is clearly contrary to theCommission’s position stated in the Opinion on the Estonian Application for the Membershipof the European Union. In that document the Commission recommended that education in190 See Hughes (2005) for some statistical data.191 Voit, A., A Right of a Third Country Family Member to Accompany a European Citizen in EU underCommunity Law in Connection with Citizenship, unpublished, LL.M. thesis submitted at the Faculty of Law,University of Groningen, 2006 (on file with the author).192 Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents,OJ L 16/44, 2003.193 Hughes (2005), 739.194 On school desegregation in the countries of the first group see inter alia Greenberg, J., ‘Brown v. Board ofEducation: An Axe in the Frozen Sea of Racism’, 48 St. Louis U. L.J., 2004; Marden, M. D., ‘Return to Europe?The Czech Republic and the EU’s Influence on Its Treatment of Roma’, 37 Vand. J. Transnat’l L., 2004; ERRC(European Roma Rights Centre, Budapest), Croatian Romani Children Sue at the European Court of HumanRights over Racial Segregation in Schools (available at <http://www.errc.org/cikk.php?cikk=2080>). ERRC, ASpecial Remedy: Roma and Schools for the Mentally Handicapped in the Czech Republic, Country ReportsSeries, No. 8, 1999.195 van der Meulen (2003), 7.196 See e. g. 1998 Romanian Report, 11. Cf. all other Romanian Reports.197 For an account on education in the Russian language in Latvia and Estonia see Van Elsuwege (2004), 18 –23.198 2000 Estonian Report, 19.28Russian language ‘should be maintained without time limit in the future’.199 Latvian

education law insists that all minority schools choose bi-lingual programme.200 Minorityschool teachers not proficient in Latvian are dismissed.201 According to the 2000 Report,starting with the year 2004 ‘all state funded schools will provide education in the statelanguage only’,202 thus effectively prohibiting education in the native language of 44% of thepopulation. Strikingly, in response to this development the Commission stated that ‘TheLanguage law is in line with the international obligations of Latvia’.203 The position of theCommission is difficult to explain, as the approval of the Latvian policy of banning Russianlanguage from schools is clearly contrary to the minority protection guidelines adopted by theCommission for the first group of countries, where education in the minority language issupported and safeguarded. Scholars regret that ‘under the present situation there seem to beno clear grounds to obstruct the implementation of the Latvian Education Law’.204While Hungarians in Romania having schooling in Hungarian were supported by theCommission in establishing a university in their own language, the Russian minority schoolsin the second group of countries are getting closed and the Commission did not make an issueout of it in the course of the pre-accession.%_.__(___________________________________________________&__________________________________________&________&______Unlike in the second group of countries, in the first the Commission was veryattentive to minority representation in Government and the police as well as to theorganisation of the minority self-government. Importantly, minority participation, aspromoted by the Commission in the course of the pre-accession exercise, was supposed to goall the way up the hierarchy of the army and police personnel.205Access to the labour market in general was also monitored with great care, especiallyregarding the discrimination concerning the Roma minority. Notwithstanding the efforts ofthe Commission and the countries of the first group de facto discrimination wasflourishing.206

A totally different situation arose in the context of the promotion of nondiscriminationin the second group of countries. Judging by the Commission’s Reports andOpinions it is possible to conclude that the Commission only regarded the Russian minorityin Latvia and Estonia as a linguistic minority. Almost all the measures recommended by theCommission in the course of the pre-accession exercise were related to the teaching ofLatvian and Estonian to the minorities. All the Accession Partnerships focused of the sameissue and the PHARE funding was used for it. Thus language teaching is regarded as themain tool of integration and of promotion of non-discrimination.Viewed from a legal perspective, such an approach is problematic, since theCommission in its Reports does not draw a line between integration and assimilation andarguably supports the complete assimilation of the Russian minority, which is clearly a state199 Opinion on the Estonian Application, 15.200 1999 Latvian Report, 18.201 Id.202 2000 Latvian Report, 22.203 2001 Latvian Report, 25.204 Van Elsuwege (2004), 21.205 2000 Bulgarian Report, 22.206 E. g. 1999 Hungarian Report, 15.29policy in the two Baltic States. Such a policy contradicts the Framework Convention for theProtection of Minorities, Art. 5(2) of which states that[…] the Parties shall refrain from policies or practices aimed at assimilation ofpersons belonging to national minorities against their will and shall protect thesepersons from any action aimed at such assimilation.But what is most striking, the Commission on a number of occasions simply refusedto acknowledge that there were problems related to the treatment of the Russian speakingminority, unreservedly taking the side of the two Baltic States. It is as if the Commission‘participates in a national conspiracy of silence, [following some Estonians and Latvianswho] simply seem to refuse to acknowledge that the Russian minority may have legitimatecomplaints’.207 All the Reports dealing with Latvian and Estonian preparation for accessionstate that the ‘rights of the ‘Russian-speaking’ minority with or without Estonian [or Latvian]nationality continue to be observed and safeguarded’.208 In fact, this standard was set in 1997

by Agenda 2000, which did not find any ‘evidence that [‘Russian-speaking’] minorities aresubject to discrimination’.209In other words, according to the Commission, there is basically no minority problemin the two Baltic States and there is no discrimination. Ironically, the Commission returned tothe issue of minority discrimination in consequent Regular Reports, mostly addressingdiscrimination arising from the absence of nationality, having a ‘non state language’ as amother tongue and related to the use of the minority language, social security, education,work and political representation. The far-reaching nature of the institutionaliseddiscrimination on the basis of belonging to a minority in place in Latvia and Estonia receivedextensive coverage in the academic literature.210 The findings of the researchers are in clearcontradiction with Commission’s claims.%_/__(______________________________________0____________________________________________________&________&______Another important issue that arose in the course of the preparation of the fifthenlargement was related to the adaptation of the political systems of the candidate countriesin order to better accommodate the minority needs. The Commission’s demands to changelegislation went as high as up to the candidate country’s constitutional level. In Bulgaria, forexample, considering the Constitutional prohibition to form political parties around ethnic,religious or racial lines, the Commission found that ‘it could be desirable to clarify theseConstitutional provisions with reference to the restrictions on the establishment of thepolitical parties’.211While a number of minorities in the first group of countries received a possibility toform political parties, use their language in communication with the authorities and weregranted a share of self government (be that Hungarians in Romania, or Roma in Hungary),the Russian minority in the second group of countries was treated very differently again. Thedifference in treatment was largely caused by the stateless status of a huge number of

individuals among the Russians in Latvia and Estonia.207 Visek (1997), 357.208 1998 Estonian Report, 11, 1998 Latvian Report, 13. The same formula can be found in all the Reports onLatvian and Estonian progress towards accession to the Union.209 Agenda 2000 (COM 1997 (2000) final), 45.210 See fn. 134 supra.211 2000 Bulgarian Report, 22.30Generally speaking, it is clear that ‘the inability of nearly one third of the populationto participate in elections [which is a reality, albeit to a different extent, in Latvia andEstonia] is hardly in line with norms established by Western democracies’.212 Latvian andEstonian non-citizens cannot vote in national elections and be members of the politicalparties.213 This has been criticised by the UN Human Rights Committee,214 Council ofEurope and OSCE, but not by the European Commission.Even those in possession of the citizenship of the state where they reside faceenormous obstacles in case they try to participate in political life. The Commission did littleto change the situation. According to Latvian law, candidates running for office, even inpossession of Latvian citizenship had to produce a language proficiency certificate. Latvialost a case in the ECt.HR215 and proceedings in front of the UN Human Rights Committee216in relation to this requirement. The ECt.HR case Podkolzina v. Latvia involved a Latvian ofRussian descent who was not allowed to run for office although being in possession of alanguage proficiency certificate of the highest third level on the grounds that she failed a‘linguistic check’, administered at her work place by a special officer without priornotification. In 2002 the ECt.HR found that Latvia violated the claimant’s right to freeelections, at the same time recognising the importance of the legislation in force, whichpleased the Commission.217 Indeed, the Court stated that ‘requiring a candidate for election tothe national parliament to have sufficient knowledge of the official language pursues alegitimate aim’.218Soon after the Podkolzina case was decided, the Parliament of Latvia has amended

the relevant legislation to lift the linguistic proficiency requirements from those standing ascandidates at national and local elections, which was welcomed by the Commission.219Interestingly, the amendment came right before the NATO summit in Reykjavik in May2002, which was supposed to discuss inter alia the Latvian application for membership in theorganisation. Such a coincidence made scholars suspect that the law was actually amended‘for the NATO’.220 Indeed: the Commission, being well aware of the practices of arbitrary‘linguistic checks’ of the Latvian citizens belonging to a minority willing to run for office didnot take any measures at all to make Latvia reconsider its policy.The majority of Russians in the second group of countries remain largely excludedfrom political life due to their stateless status. In other words, the citizenship legislation (or212 Hanneman (1995), 519. Cf. Stepan, A., ‘Kogda logika demokratii protivorechit logike natzional’nogogosudarstva’, Rossijskij biulleten’ po pravam cheloveka 3, 1995.213 UN Human Rights Committee Recommended Estonia to allow non-citizens at least to become members ofpolitical parties, CCPR/CO/77/EST, §17.214 CCPR/CO/79/LVA, §18.215 ECt.HR Podkolzina v. Latvia [2002] Appl. No. 46726/99. For the analysis of the case see Hoffmeister, F.,‘Podkolzina v. Latvia. Appl. No. 46726/99. European Court of Human Rights’, 97 Am. J. Int’l L., 2003; Taube,C., ‘Case Note, Podkolzina v. Latvia’, 1 Int’l Const. L., 2003.216 Views of the Human Rights Committee under Article 5, Paragraph 4, of the Optional Protocol to theCovenant Concerning Communication No. 884/1999, UN Doc. CCPR/C/72/D/884/1999, 2001.217 2002 Latvian Report, 34.218 ECt.HR Podkolzina v. Latvia, §34.219 2002 Latvian Report, 33.220 If it was not passed expressly for NATO, the proximity of the summit can at least shed light at the 75%majority achieved in Parliament at the ratification of the amendments – a fact, also noted by the EuropeanCommission (2002 Latvian Report, 33). See also Hoffmeister (2003), 668; Taube (2003).31the lack thereof221) was used in those countries with a view to creating ethnic electorates,222which falls short of democratic principles of inclusion and non-discrimination.%_1__(_________________________________________________________&_________________&________&______While Estonia at least ratified some international minority protection instruments by

the time of accession to the EU, the same cannot be said about Latvia. The Commission hasbeen stressing the importance of ratification of the Framework Convention for the Protectionof Minorities by Latvia throughout the whole reporting exercise starting with the Opinion onthe Latvian Application for the Membership of the European Union.223 By the time the lastReport structurally based on the Copenhagen criteria was released, the Convention still wasnot ratified. The delays, which eventually resulted in non-accession to the Convention, didnot hamper Latvian prospects to join the European Union in any way.224

* * *______2_(____________________________________________________'__________________________________________________&________&______1st group of countries2nd group of countriesMinority protection is limited to ‘linguistic minorities’No YesThe definition of minority is linked to citizenshipYes NoMinorities are entitled to increased opportunities to getschooling in their native languageYes NoDiscrimination on the grounds of belonging to a minority isacknowledged in all the relevant Copenhagen-relateddocumentsYes NoMembers of the minority communities are getting betteraccess to civil service and military appointmentsYes NoMinorities are entitles to a certain form of self-governmentYes NoMinorities are entitled to use their native language incommunication with the authoritiesYes NoMinorities are entitled to active and passive participation inpolitical lifeYes No221 Latvia did not have a citizenship law for some time, making any naturalisations legally impossible. Cf.Kudriavtzev, I., ‘Latvija: cherez skol’ko let budet grazhdanstvo?’, Rossijskij biulleten’ po pravam cheloveka 3,1994 (available at <http://www.hrights.ru/text/b3/bul3.htm>).222 Visek (1997); Stepan (1995).223 2002 Latvian Report, 30.224 Latvia only ratified the Convention in May 2005 with far-reaching derogations.32From the examples mentioned above it is clear that the approach adopted by the

Commission vis-à-vis minorities in each of the two groups of countries was contrary touniform. In fact, all the steps of the pre-accession assessment and the application of theprinciple of conditionality were de facto built along two different lines. The choice of astandard to be promoted depended on the country in question (whether it fell within the firstor the second group) and also on the minority in question. The first standard was vaguelybuilt around the approach to minority protection adopted in the CoE documents and wasapplied in the context of the first group of countries. The second standard, built around thepractices of toleration of exclusion and forced assimilation (deemed illegal according to theCoE minority protection documents) was applied to the minorities of the second group ofcountries. The first pre-accession approach to minority protection espoused by theCommission is shown as element 6 in pic. I; while the second approach corresponds toelement 7 in pic. I.Such a discrepancy between the two approaches taken by the Commission is nothingshort of a disaster for the application of the conditionality principle in this field. Moreover,given the similarities between the practices espoused by the second group of countries in thecourse of the pre-accession exercise, the Commission’s logic of conditionality becomes evenfurther impenetrable with regard to the choice of countries for the opening of negotiations. Itis impossible to find any consistent explanation as to why the negotiations with Estonia havebeen opened before Latvia.It is difficult to disagree with Marc Maresceau who stated that ‘the true and completestory of this unexpected choice by the Commission will probably never be fully known’.225The only possible explanation for such a choice is probably a geo-political necessity, whichhas nothing to do with political conditionality,226 the same necessity that can probablyexplain the existence of de facto two pre-accession minority protection standards applied bythe Commission during the preparation of the fifth enlargement. Some authors link the

decision taken by the European Union not to include Latvia within the first wave of countriesto open accession talks to several events which took place in 1998. These events included aviolent dispersion of a demonstration of ‘Russian-speaking’ pensioners in March, explosionof a bomb in front of the Russian embassy in Riga in April and a march of the SS veterans inthe Latvian capital, attended by a number of senior Latvian military officials.227 All theseevents taken together could not produce a convincing success story related to the integrationof the Russian minority. Nevertheless, Latvia and Estonia met the Copenhagen politicalcriteria already in 1997, when the Commission’s Opinions were released.Returning to the standards story, the Commission’s stance in the field of minorityrights is particularly ironical. Minority protection was probably the only area of the preaccessionmonitoring where certain more or less clear standards were actually available,thanks to the CoE. Compared to other areas, where such standards simply did not exist, andwhere the Commission was trying to act as a ‘myth-maker’,228 playing as if it had suchstandards at hand (like in the area of independence of the judiciary, for example229), theCommission, instead of applying ready-to-use CoE findings came up with two distinctapproaches contradicting each other and sitting uneasily next to the CoE documents. The225 Maresceau (2001), 18.226 Dorodnova (2000), 9.227 Barrington (1999), 174.228 Smilov, D., ‘EU Enlargement and the Constitutional Principle of Judicial Independence’, paper delivered atthe workshop ‘Implications of Enlargement for the Rule of Law, Democracy and Constitutionalism in Post-Communist Legal Orders’, EUI Florence, 28 – 29 November 2003 (available at <www.iue.it>).229 Id.33example of the application of the pre-accession conditionality principle to the requirement ofthe ‘protection of and respect for minorities’ can be used as an illustration for a necessity tobetter cooperate apparent from the relations between the EU and the CoE (particularly in thecontext of the preparation of the enlargements of the former).230The approach taken by the two Baltic States can probably be explained with a use of

the ‘ethnic democracy’ concept. Ethnic democracy, a concept formulated in Israel isunderstood as ‘a political system that combines extension of democratic rights for all withinstitutionalization of dominance by one ethnic group’.231 The use of this Israeli concept inthe EU Member States ‘united in diversity’232 is somewhat dubious.What could the Commission do to change the situation in the sphere of minorityprotection in the countries of the second group? Legally speaking, the tools available to theCommission within the framework of the conditionality principle and enhanced pre-accessionpolicy233 applied by the European Union during the process of preparation of the candidatecountries for accession to the EU provided the Commission with a wide range of options forsolving the statelessness crisis in Latvia and Estonia, unifying two contradicting approaches itapplied in the course of the preparation of the fifth enlargement. Moreover, as follows fromother areas of the pre-accession reform promotion, these tools could be used in a flexible wayin order to ensure better compliance, without bluntly dictating to the candidate countries thekind of policies they are expected to adopt.234At least three options were available to the Commission:a. to challenge discrimination on the grounds of the non-possession of acitizenship status by the residents of Latvia and Estonia;b. to promote milder conditions for naturalisation;c. to attack the citizenship policies of Latvia and Estonia directly, whichwould have resulted in the acquisition of citizenship by the minorities andthus in the elimination of the most severe forms of discrimination.The Commission had two main tools in order to pursue these developments: the firstbeing the Micheletti reference to the importance of a due regard of Community law whilegranting citizenship.235 The second – building on the assumption that ‘the external pressurecan be a powerful force for change’236 and using the range of tools provided to theCommission by the pre-accession strategy – most notably the effective use of the AccessionPartnerships allowing to stop the flow of the pre-accession financial assistance in case of230 Kochenov, D., ‘An Argument for Closer Cooperation between the European Union and the Council ofEurope in the Field of EU Enlargement Regulation’, forthcoming in Croatian Yearbook of European Law andPolicy (Vol. II).

231 Järve, P., ‘Ethnic Democracy and Estonia: Application of Smooha’s Model’, ECMI WP No. 7, 2000, 3,(available at <http://www.ecmi.de/download/working_paper_7.pdf>); Hughes (2005), 739, with furtherreferences.232 On ‘united in diversity’ cf. von Toggenburg, G., ‘Unification via Diversification – What Does It Mean to Be“United in Diversity”?’, Eumap.org Online Journal, 2004 (available at<http://www.eumap.org/journal/features/2004/bigday/diversity>).233 Kochenov, D. (2004 (Copenhagen Façade)), 7 (with further references).234 Kochenov, D., ‘EU Enlargement: Flexible Compliance with the Commission's Pre-Accession Demands andSchnittke's Ideas on Music’, BGU-CSEPS WP, 2005 (available at SSRN: <http://ssrn.com/abstract=926854>).235 The Commission actually tried to use this tool, albeit in shy manner. Consequently, it brought minimalresults. Cf. Kochenov (2004 (Due Regard)).236 Gulielmo, R., ‘Human Rights in the Accession Process: Roma and Muslims in an Enlarging EU’, in vonToggenburg, G. (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest:LGI, 2004, 37.34non-compliance,237 as well as enabling the Commission to go as far as freezing the accessiontalks. It is recognised in scholarly literature as well as obvious from the tools available to theUnion within the auspices of the pre-accession strategy, that the Union was clearly in a‘privileged position to monitor and influence minority situation in Estonia and Latvia’.238Unlike in the case of the second group of countries, while dealing with the first groupthe Commission used the third of the approaches outlined above: the constructive critique ofthe grounds of naturalisation. The issue was resolved very fast and concerned the citizenshiplaw of the Czech Republic, drafted in order to exclude the possibilities for the Roma toacquire Czech citizenship. The Commission found that such an approach taken by the CzechRepublic, (and especially the need to provide evidence of clean criminal record for fiveyears), was inadmissible (and contrary to the succession rule), thus demanding a candidatecountry to alter a naturalisation policy, including grounds for naturalisation as included in theCzech law No. 40/1993 Sb., something which never happened in the context of reporting ofLatvian or Estonian progress towards accession.239Strikingly, all the International Organisations and the great majority of scholars

working on the minority protection issue in the two Baltic States do not even discuss thelegitimacy of the naturalisation policy applied by the two countries. An important exceptionis the position of Ferdinand de Varennes, who is among the few to question the legitimacy of,inter alia, linguistic proficiency requirements in those countries.240 ‘The exclusive preferencegiven to Latvian and Estonian seems disproportionate and unreasonable as an attempt torectify past Soviet practices, bearing in mind the number of permanent residents born inEstonia and Latvia but not of Estonian or Latvian “ethnic origin”’.241 It is notable thatinternational legal practice knows the application of the principle of non-discrimination to theacquisition of citizenship.242 Citing a dissenting opinion of Judge Rodolfo E. Piza in theCosta-Rican Naturalisation case of the Inter-American Court,243 de Varennes makes aconvincing argument that ‘a reasonable and non-discriminatory naturalisation policy mustreflect, in a balanced way, the population of a state. It cannot operate in disregard of thelanguages actually used in the country’244 (emphasis added). Unfortunately, this approachwas not supported by the Commission or the Council of Europe. One OSCE official,however, mentioned the desirability of making Russian a second official language inLatvia,245 which only resulted in a scandal and did not bring in any constructive discussion.237 Art. 4, Council Regulation 622/98, OJ L 85/1, 1998 introducing Accession Partnerships and making thereceipt of the pre-accession aid conditional on pre-accession progress. Cf. Guggenbühl, A. and Theelen, M.,‘The Financial Assistance of the European Union to its Eastern and Southern Neighbours: A ComparativeAnalysis’ in Maresceau, M. and Lannon, E. (eds.), The EU’s Enlargement and Mediterranean Strategies: AComparative Analysis, Basingstoke: Palgrave, 2001.238 Van Elsuwege (2004), 17.239 On the denial of citizenship to the ethnic Roma in the Czech Republic and the successful role of theinternational organisations, including the EU in addressing this issue see e. g. Marden (2004), 1188; Banach(2002), 377; Warnke, A. M., ‘Vagabonds, Tinkers, and Travellers: Statelessness among the East EuropeanRoma’, 7 Ind. J. Global Legal Stud., 1999, 356 – 358; Dobal, V., Nedomová, A., Pspíšil, M., Sulitka, A. and

Vejnerová, I., Report on the Situation of the Romani Community in the Czech Republic, 1999 (available at<http://www.cts.cuni.cz/~dobal/report/index.htm>); Šiklová, J. and Miklušáková, M., ‘Denying Citizenship tothe Czech Roma’, 7 East Eur. Const. L. Rev. 2, 1998.240 de Varennes (1996), 136 et seq.241 Id., 137.242 ‘General Comment No. 18: Non-Discrimination’, in Report of the Human Rights Committee, U.N. GAOR,45 Sess., Supp. No. 40, Annex VI, at paras 7, 8, UN Doc. A/45/40 (1990).243 Advisory Opinion OC-4/84 Proposed Amendments to the Naturalisation Provisions of the Constitution ofCosta-Rica, January 19, 1984, Inter-Am. Ct.H.R. (Ser.A) No. 4, 1984.244 de Varennes (1996), 135.245 Johansson, J., ‘OSCE Provokes Language Scandal’, Baltic Times, 28 March 2002.355. Too many paradoxesAs the paper has demonstrated, the web of minority protection standards in Europe isa very sophisticated one. Not only are there CoE standards on the one hand and EU standardson the other. The EU standards are split into internal and external ones, the latter being muchbroader in scope, while the former – hardly articulated. Alongside such a split, it isnevertheless clear that the Community does not lack a possibility to develop a meaningfulinternal minority protection standard in the future, once there is better consensus regardingthis issue among the Herren der Verträge.None of the standards of minority protection available is uniform: duality is inherentin them, corresponding to two levels of minority protection, including non-discrimination onthe basis of belonging to a minority on the one hand, and, on the other hand, minorityprotection per se – i. e. special rights for minorities. Not all the standards described abovecover both elements of such an ‘ideal’ tandem. While the CoE instruments allow talkingabout an inclusive approach, it is clear, nevertheless, that the non-discrimination element ofthe CoE standard is much better articulated, being inscribed in the ECHR, than the grouprightselement, since the latter is mostly rooted in the documents of non-binding nature, suchas the Framework Convention. Viewed from the perspective of this duality, which is alsoreflected in the academic literature and case-law of the PCIJ, the approach to minority

protection taken internally by the EU is almost totally confined to non-discrimination andsays very little on the group rights issue. Moving one level of governance lower, it is clearthat any more or less uniform approach to minority protection issues among the MemberStates is missing. Group rights are de jure illegal in some Member States (e. g. France) andtaken to the extremes in others (e. g. Belgium). The last enlargement only added to thediversity of the array of national approaches to minority protection, making the possibility forthe EU as a whole to move in the direction of an articulated supranational minority protectionapproach even more uncertain.The picture gains in sophistication, once the external aspects of the EU minority rightsstandards are analysed. Historically, the EU used a number of different approaches tominority rights in external relations and in the course of the preparation of enlargements. Inthe enlargement law the path chosen by the EU was mostly confined to total or partialexclusion of the territories with minority population from the scope of application ofCommunity law. However, the application of such a standard is not always beneficial for theminorities concerned, since the scope of their Community law rights becomes significantlynarrower than that of other EU citizens. Also, applicable to islands and specific territories orcommunities, the standard is hardly useful in the situations where minority populations areintermingled with the majority. Both these considerations together explain the reluctance ofapplication of such a standard in the course of the preparation of the fifth enlargement.This did not make the pre-accession exercise easier, however. Having no internalminority protection tradition, the EU nevertheless made minority protection one of the preaccessioncriteria to be met by the candidate countries. Claiming to apply a single standardwhile judging all the applicants, which was a must in the light of the pre-accession principleof conditionality, the EU stopped short of creating a minority protection standard to be

exported. Moreover, as the paper has explained, it even failed to apply similar standards ofminority protection to all the candidate countries, applying two contradictory standardsinstead. The first standard, mostly rooted in the CoE documents on the issue and applied inthe context of the pre-accession assessment of the majority of the candidate countries wasdrastically different from the second standard, which was applied in the context of Latvianand Estonian pre-accession progress and is on the verge of being illegal, once the CoE36benchmarks are applied to it. Defining minorities differently and adopting differentapproaches to minority self-governance, political participation, education and other issues thetwo approached contradict each other and hardly overlap. Generally, it is possible to state thatwhile in the first group of countries the Commission is clearly on the side of the minorities, inthe second, the situation changes and the Commission takes the side of the candidatecountries, turning a blind eye to the ‘undoubtedly intentional’246 policy of exclusionpromoted by Latvia and Estonia.Such vision of minority protection promotion in the candidate countries means adisaster for the principle of conditionality. It demonstrates quite clearly that no fareassessment of all the candidate countries on the merits based on the same standards(presupposed by the principle) actually existed. Dividing the candidate countries into twogroups allows discovering some standards’ backbone behind the ‘ad-hocism andinconsistency’.247 Still, the fact that there are at least two standards out there certainly playsagainst the Commission, since this is precisely what the principle of conditionality wassupposed to avoid. This situation has to be changed immediately, not to undermine thecandidate countries’ belief in conditionality, which was otherwise more effective than not.* * *In other words, the whole story of minority protection standard-setting in the EU isthat of numerous fictions and contradictions. The internal standards are week and poorly

articulated, the national standards adopted by the Member States are contradictory and theexternal standards are numerous and poorly aligned. There is no or little order in thisconstruction.The current state of the EU standard-setting in the filed of minority rights has farreachingnegative implications on the development of a consistent system of minorityprotection in the Union in the future. A number of painful choices will have to be made toalter this situation. Most importantly, the internal standard used by the EU has to be mademore inclusive and uniform, while the external standard simply needs to be created.Both developments are likely to gain in importance already in the nearest future. Afterthe incorporation of the countries of Central and Eastern Europe the enlarged EU is likely toface more minority-related problems than it used to in the past, hence a need to effectivelytackle them internally both at the level of the Member States and at the Community level. Tomake this work a clear system of rules is indispensable. Such a system of rules is missing atpresent. Also in order to ensure smooth enlargement of the EU in the future, a uniform preaccessionminority protection standard needs to be devised, coming in place of the twocontradictory standards employed in the course of the fifth enlargement. Such a standard willbe absolutely necessary, given the human rights and minority protection record of thepresent-day candidate countries and the states willing to submit a membership application inthe future. Only at the moment when both internal and external standards are articulated willit be possible to talk about a developed system of minority protection standards in the EU. Atpresent the Union is only making the first tiny steps in this direction.246 Blackman (1998), fn. 163.247 Sasse (2004), 69.373____________Aarnio, E. J., ‘Minority Rights in the Council of Europe’, in Phillips, A. and Rosas, A. (eds.), UniversalMinority Rights, Turku /Åbo: Åbo Akademis tryckeri, 1995.Alston, Ph. and Weiler, J.H.H., ‘An ‘Ever Closer Union’, in Alston, Ph., Bustelo, M. and Heenan, J. (eds.), TheEU and Human Rights, Oxford: OUP, 1999.

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2nd group of countries