The EU has no effective tools to deal with minority rights in generalFlorin
ICELDS: Illiberal and authoritarian trends in the domestic policies of individual EU states are a widely acknowledged recent phenomenon. Do these trends also concern national minority issues and the implementation of anti-discrimination laws?
Aleksejs Dimitrovs: Indeed, modern systems of minority rights protection and the fight against discrimination are to a great extent intended to implement the values of liberal democracy. If liberal democracy is losing its legitimacy, it inevitably affects minority rights and anti-discrimination. It does not necessarily happen immediately at the level of legislation – but it is important to take into account the overall situation in the country. Appeals to the past, consolidation of the nation based on ethnicity, public statements create the environment where persons belonging to minority start to feel exclusion, but those belonging to majority start to believe in superiority and illegitimacy of claims based on minority rights and non-discrimination. Such a climate will, in turn, have an impact on practical application of existing laws.
ICELDS: If these processes negatively affecting national minorities took place or may take place in the nearest future, in which countries are they more salient?
AD: As regards practices, it is difficult to single out particular countries. Even if illiberal political parties do not control the government, their growing popularity and impact may result in an atmosphere in which discrimination, hate speech and even violence become widespread and sometimes tolerated by law enforcement authorities and society at large. But of course, it is much easier to create a climate of uncertainty for minorities in the states in which the government does not share the principles of liberal democracy. It may take forms of vetoing more progressive legislation on minority and regional languages, as has happened in Poland, or tolerance towards anti-Semitic or anti-Roma statements, as in Hungary. Representatives of “new” minorities, such as Muslims, are even at greater risk to become victims of the cultural fight, as are newly arrived asylum seekers or migrants – and the rhetoric concerning the relocation of asylum seekers to Czech Republic and Slovakia demonstrates it pretty well.
ICELDS: What are the reasons for these trends?
AD: There are several overlapping reasons, in my opinion. The first one is a general trend against human rights that we witness everywhere in Europe after the euphoria of the 1990s. New security threats, difficulties in coping with migratory flows create insecurity and distrust, and minority rights suffer most, as the majority population does not feel it needs them.
The second reason is trivial – the recent economic crisis demonstrated that prosperity in the Member States from Central and Eastern Europe on par with Western Europe cannot be achieved just by joining the EU with its values of democracy, the rule of law and fundamental rights. On the contrary, illiberal states may demonstrate economic growth. In the situation where fundamental values are not deeply enshrined, many voters start to believe that there is a need to trade conservative values and tradition in for economic purposes. It is especially easy to “return to the roots” bearing in mind that the founders of the club also sometimes forget about values when confronted with terrorism or the growing number of asylum seekers, and they hope that they can perhaps turn a blind eye to certain developments elsewhere.
ICELDS: Do the EU governing bodies and the European political establishment at large take into account the potential retreat of the European diversity policies? Is it a matter of concern?
AD: For the time being the main concern is the rule of law – there is a belief that functioning institutions, including the judiciary, will be able to contain the governments and to implement minority rights and anti-discrimination legislation correctly. But the problem is that the EU does not have effective tools to deal with situations related to minority rights in general.
Article 2 of the Treaty on European Union (TEU) requires that all Member States respect human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. However, the Commission interprets the Treaties in a way allowing to start infringement procedures only in the field covered by the EU legislative competences. For the issues beyond this, such as minority rights, the only applicable tool is Article 7 TEU, which entitles to pursue the procedure of gradual warning and sanctioning of a Member State in cases of a ’clear risk of a serious breach’ and of a ’serious and persistent breach’ of the values set out in Article 2. Nevertheless, the thresholds for the activation and use of this provision are very high, therefore it has never been used in practice.
On the other hand, the Union does have legislative competence in the field of fighting against discrimination. The potential of the infringement procedures related to discrimination still remains to be seen. Interestingly, the Commission successfully referred to discrimination on grounds of age while trying to address the reform of the judiciary in Hungary, in the absence of other pretexts to intervene under secondary law. I have recently started an infringement procedure concerning the reform of the judiciary in Poland with reference to gender discrimination. However, such a piecemeal approach could hardly resolve a breach of the EU values.