Individual Rights and Group Rights in the European Community's Approach to Minority Languages

Abstract

The European Union rights discourse is dominated by talk of individual, and not group, rights. Individual market actors have been the constitutive atoms of European Union law. Within this legal framework, the onus has been on the Member States to protect and contribute to minority language groups. This paper examines some of the ways Member States accommodate and recognize the minority language groups residing within Europe, and subsequently analyzes the compatibility of these measures with the EC Treaty in light of the European Court of Justice's (ECJ) willingness to invoke the Treaty in an increasing array of situations. Specifically, the article argues that the expansive view of EU citizenship taken by the ECJ in the Martinez Sala case (confirmed judicially by subsequent cases and legislatively by important directives) increases the range of situations for which the EU's non-discrimination principle may invalidate these Member State group rights measures. The ECJ's willingness to interpret citizenship expansively is troubling because it has not taken a similar expansive interpretation of the concept of minority group rights. After discussing the theoretical background and practical importance of the distinction between individual rights and group rights, this article discusses the key ECJ cases involving the conflict of group language rights and individual Community rights. Ultimately, the paper concludes by recommending (1) the ECJ adopt a new interpretive approach to analyzing Member States' bona fide efforts to protect minority language groups; or (2) the Member States modify the EC Treaty in one of three ways to permit group rights in the field of minority language protection without running afoul of the individual rights of EU citizens embodied in the non-discrimination principle.

Keywords: European Union, Borough of Ealing, EU citizenship, Directive 2004/38, minority languages, language rights, Trojani, minority rights, group rights, individual rights, Martinez Sala, Angonese, Bickel/Franz