Balázs TÁRNOK: Widening the gap between the EU and its citizens
On the European Commission’s decision rejecting the Minority SafePack Initiative
The respect for the rights of persons belonging to minorities has been a declared fundamental value of the EU since the entry into force of the Treaty of Lisbon, however, in practice it does not have a significant impact. The current legal framework lacks specific and enforceable provisions on the protection of national minorities, and thus, cannot be adequately employed for such purposes. The lack of a minimum set of EU rules allows the Member States to adopt legislation even depriving the earlier acquired rights of national minorities. This can give rise to anti-minority manifestations in the Member States, which may jeopardize the political stability of the Union as well.
The Minority SafePack Initiative (MSPI) is a package of proposals giving a partial solution for this controversy by calling upon the EU to adopt a set of legal acts to improve the protection of persons belonging to national and linguistic minorities in the Union. It was supported by 1,123,422 EU citizens and numerous national and regional parliaments in Europe demanding to launch the legislative process for the protection of national and linguistic minorities. The European Parliament also called on the Commission to propose legal acts expressed in a resolution adopted with an overwhelming majority. Despite this, on January 15, 2021, the European Commission in its communication rejected the MSPI refusing to initiate EU legislation with respect to any of the nine proposals of the package. The Commission concluded that the current legislation provides an appropriate legal framework, and thus, no additional legal acts are necessary.
With its decision, the Commission not only ignored the voice of more than one million signatories, and let down approximately 50 million EU citizens who belong to national and linguistic minorities, but also undermined the democracy of the Union by totally discrediting the instrument of the European Citizens’ Initiative (ECI), the only tool of EU participatory democracy. Instead of bridging the gap between the EU and its citizens, the Commission deepened and widened this gap while also threatening the fundamental values of the European Union. This decision is a clear sign of the fact that, on the one hand, the Commission is not seeking to understand the situation and challenges of autochthonous national and linguistic minorities of Europe, and, on the other hand, that the quasi-government of the EU is not taking seriously the EU participatory democracy.
Disrespecting a fundamental value of the EU
With respect to the protection of the rights of persons belonging to national and linguistic minorities, the Commission’s decision is problematic for two reasons. Firstly, under Article 2 of the Treaty on the European Union, the Union is founded on the values of, among others, the respect for human rights, including the rights of persons belonging to minorities. Therefore, the respect for the rights of persons belonging to minorities is a fundamental value the EU is built on, and as such, shall be respected by all EU institutions, as well as every single Member State. This fundamental value has the same weight, at least in theory, as the ‘rule of law’, just to mention one from the list under Art 2. However, while the Commission steps up for the protection of rule of law with great enthusiasms (as we can see in the procedure triggered against Hungary and Poland), it is not that much committed to protect a value of the same level, the rights of minorities – or at least the rights of national and linguistic minorities.
Secondly, by ignoring the citizens’ voice to improve the protection of national and linguistic minorities and strengthen the cultural and linguistic diversity in the Union, the Commission, acting in contrary to its obligations under the Treaties, namely to ensure that Europe’s cultural heritage is safeguarded, rather promoted the elimination of the cultural diversity and true European character of the EU. The language, culture and national characteristics of national and linguistic minorities are part of Europe’s cultural heritage. Ignoring the challenges these communities face each day could lead to the eventual disappearance of regional cultures in Europe. This would change of Europe’s cultural landscape as we know it today, abandoning all that cultural attributes that make Europe so special.
Although the Commission often refers to the lack of its general legislative competence to turn down inquiries for the improvement of the protection of persons belonging to national and linguistic minorities, as it did so this time as well, in fact this is a false reason to dismiss the MSPI. The virtue of the MSPI lies precisely in the fact that it aims to amend and supplement the current rules of the EU, while respecting the legal framework of primary EU law. As such, the proposals of the package, from a legal perspective, are in compliance with the Treaties. Moreover, in Case T-391/17, Romania v Commission, the General Court found that the Commission may register a proposal for specific acts that aim to complement the Union’s action, in the areas of its competence, in order to increase the protection of persons belonging to national and linguistic minorities and to support the Union’s cultural and linguistic diversity.
Undermining EU participatory democracy
The Commission’s decision raises concerns with regard to the democracy of the EU as well, as it clearly undermines the trust in EU participatory democracy. The Lisbon Treaty introduced the ECI, a new tool of transnational participatory democracy, aiming to bring the EU closer to its citizens. However, its implementation proves the opposite. So far, including the MSPI, the Commission examined five ECIs that successfully passed the signature collection, and rejected four of them without taking any action.
Before the European Commission’s communication on the MSPI, one would assume that the MSPI could be the ECI where the lost trust of citizens in the Union’s participatory democracy, and generally in the democratic functioning of the Union, could be restored. Given that the MSPI is a package of nine proposals, the Commission could have separately considered each proposal, and choose the one or two which are the most fundamental and the least ‘pricey’ from a political point of view. With this decision the Commission could demonstrate, shortly after the entry into force of the revised ECI regulation, that the citizens can in fact have a world in the decision-making process by supporting an ECI and the bottom up process, at least in a very restricted way, exists in the EU. The Commission refused to make such a compromising gesture towards its citizens and decided to reject the whole package without a single proposal, not even proposing a non-binding act of the Union.
The Commission regularly refers to civil dialogues as a proof of its democratic openness and desire to listen to their citizens’ voice. However, several scholars point out that the participation of organizations in policy consultations does not provide an opportunity for ordinary citizens’ participation. Civil dialogue focus on the consultation of Brussels-level bureaus and have little impact at the grassroots level. Moreover, civil dialogue consultations are organized by the Commission on the items of the agenda that the Commission chooses. However, in case of the ECI the Commission loses this ‘gate keeper function’, as the ECI allows citizens to choose the topics that they want to bring forward to the attention of the Commission. The added value of ECI in terms of citizens’ participation lies in the fact that it can force the Commission to take position on controversial issues that would otherwise not have been on its agenda – for instance the rights of persons belonging to national and linguistic minorities.
Although the Commission regularly consults with NGOs and other stakeholders from the ‘Brussels bubble’, it seems that grassroots have no real chance to effectively influence the EU decision-making process. The involvement of civil society organizations and representatives of organized interests is undoubtedly necessary and useful for the sake of good governance; however, it cannot replace genuine citizens’ participation. The ECI supposed to bring citizens closer to the EU. However, the Commission may reach an opposite effect if it keeps systematically and consistently rejecting successful citizens inquiries reflecting on their real problems. Such approach of ignoring citizens’ voice may lead to the rise of Euroscepticism. A good example for this may be revoked from South Slovakia where several mayors have joined a movement removing EU flags from municipality facilities as a sign of their protest against the Commission’s decision on the MSPI.
After the Commission’s decision
According to the Rules of Procedure of the European Parliament, the Parliament shall assess the Commission’s communication on a successful ECI, and if the Commission fails to submit an appropriate proposal on an ECI, the Parliament’s committee responsible for the subject may organize a hearing. Furthermore, Parliament may decide whether to hold a plenary debate (and whether to wind up this debate with a resolution). Parliament may also decide to exercise its right under Article 225 of the Treaty on the Functioning of the European Union (TFEU), and call on the Commission to present a proposal for a legislative act. This process has already started with a debate organized by the European Parliament’s Committee on Culture and Education, and there are several other similar debates are yet to follow. The greatest challenge is to keep the proposals of the MSPI on the EU’s political agenda, including all competent committees of the Parliament. The European Parliament supported the package by a three-quarters majority in October 2020, providing a solid basis on which further actions can and should be built.
The organizers also have the right to legally challenge the Commission’s communication at the General Court of the EU – and, as it turned out, they will do so. Although the Court of Justice of the EU earlier, in the case the One of Us ECI, confirmed the Commission’s broad discretion with regard to the decision to submit a proposal for the legal act of the Union, the organizers may have a real chance to win this lawsuit. As explained by Loránt Vincze—president of the Federal Union of European Nationalities (FUEN), the organization supporting and coordinating the Europe-wide campaign for the MSPI—on an online conference organized by the Friends of Hungary Foundation on March 8 2021, the organizers are claiming that the Commission did not give adequate reasons for refusing to launch the legislative process. The organizers already won one lawsuit against the Commission in 2017 when they successfully challenged the Commission’s earlier decision to reject the registration of the MSPI.
The next successful ECI related to national minorities in the EU is already knocking on the door. The ECI entitled Cohesion Policy for the Equality of the Regions and the Sustainability of the Regional Cultures (also known as ‘ECI on National Regions’), launched with the support of the Szekler National Council, already gathered 1,3 million signatures, passing the threshold of minimum signatures in ten different EU Member States, and the signature collection is still open until May 7. Although both the MSPI and the ECI on National Regions focus on the issues and situation of national and linguistic minorities, they use different EU policy approach. While the MSPI has a more general focus on the protection of national and linguistic minorities, with the aim to improve the Union’s legal framework in different policy areas, the latter is more specific and puts the emphasis on the cohesion policy, demanding the EU to pay special attention to regions with national, ethnic, cultural, religious or linguistic characteristics. The ECI on National Regions aims to preserve the special cultural characteristic of such historic regions by providing them equal access to EU-funds.
The protection of national minorities is indeed a sensitive political issue in Europe. However, the Commission should reconsider its attitude in relation to the MSPI. The EU, as a community based on certain fundamental values, must not turn a blind eye on such challenges of its citizens. The Union should act not only for the sake of the human dignity of its citizens belonging to national and linguistic minorities, although that in itself would be a legitimate reason, but also to maintain the Union’s character of a community of shared values which respects the principle of democracy, including participatory democracy, and listens to the voice of its citizens.
 Some actions were foreseen in the Right2Water ECI but not the ones the organizers requested. However, after almost 7 years the Commission published its communication ont he Right2Water ECI, a significant step forwad was made by the EU in terms of the revision of the Drinking Water Directive (See: https://ec.europa.eu/environment/water/water-drink/legislation_en.html). The revised regulation is applied from 1 January 2020.  Luis Bouza García – Susana Del Río Villar: The ECI as a Democratic Innovation: Analysing its Ability to Promote Inclusion, Empowerment and Responsiveness in European Civil Society. Perspectives on European Politics and Society, Vol. 13, No. 3, pp. 312-324, 2012.  Luis Bouza García: The Significance of the European Citizens’ Initiative for Pan-European Participatory Democracy. International Institute for Democracy and Electoral Assistance (International IDEA), 2013.  Annette Knaut – Julian Plottka: The European Citizens’ Initiative: New Knowledge Regimes for Interest Groups’ Involvement in European Law Making Processes? Paper presented at the 6th International Conference in Interpretive Policy Analysis: Discursive Spaces, Politics, Practices and Power, Cardiff June 2011.9.  Luis Bouza García – Justin Greenwood: What Is a Successful ECI? In Maximilian Conrad et al. (eds.): Bridging the Gap? Opportunities and Constraints of the European Citizens’ Initiative. Nomos, 2016.
Balázs TÁRNOK, jurist, associate researcher at EUstrat-European Strategy Research Institute of Ludovika-University of Public Service. He obtained his Ph.D. degree in 2020 at the Pázmány Péter Catholic University Faculty of Law and Political Sciences. Earlier, he has been a legal advisor at Dr. Sobor Law Firm, where he assisted in the court proceedings of the ECI on National Regions at the CJEU. As a legal expert at Rákóczi Association, he has been coordinating the Hungarian signature collection campaign of the Minority SafePack Initiative. Currently he is the Hungary Foundation’s Visiting Research Fellow at the Kellogg Institute for International Studies at the University of Notre Dame, USA. His main research fields are EU law and politics, national minorities, participatory democracy and human rights advocacy.