English: European Union; French: Union européenne; Italian: Unione europea; Polish: Unia Europejska; Romanian: Uniunea Europeană; Hungarian: Európai Unió; Czech: Evropská unie

Despite the ongoing process of integration, there was growing controversy over the deepening, enlargement and democratic legitimacy of the European Union. Under the banner of the ‘democratic deficit’, for example, there was debate as to whether the EU and its institutions were sufficiently democratic and transparent, given their complex mode of operation. The dominant role in the political system is played by the Council of the EU (based in Brussels), a body that holds both legislative and executive powers. Another key player is the European Commission (based in Brussels), which is only indirectly democratically legitimised. The European Parliament (based in Strasbourg), which has been directly elected since 1979, was, by contrast, long regarded as the weakest institution in the EU’s legislative process. Although the powers of the European Parliament have been gradually expanded – most recently under the Treaty of Lisbon – voter turnout in European elections has fallen steadily to a historic low of 42.5 per cent in 2014.

The nature of the EU as a sui generis supranational organisation remains a subject of controversy. The EU is more than a purely intergovernmental organisation, but less than a genuine federal state. In German law, the term ‘confederation of states’ was therefore coined, which was incorporated into the case law of the German Federal Constitutional Court regarding the Maastricht Treaty in 1993.

Since the Treaty of Lisbon, the EU’s political system has been based on two founding treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), which contain both supranational (above-state) and intergovernmental (between-state) elements. Whilst national governments are represented in the European Council of Heads of State or Government and in the Council of the European Union (Council of Ministers), which is organised by policy area, the European Parliament directly represents the citizens of the Union in the EU’s legislative process. The European Commission and the Court of Justice of the European Union, based in Luxembourg, are also among the supranational institutions, alongside the Parliament.

The way the EU operates depends on the policy area, as the EU has different powers and decision-making procedures in different fields. In principle, legal acts adopted by the relevant European institutions – usually the Commission, the Council and the Parliament – in accordance with the EU’s ‘ordinary legislative procedure’ are binding on all Member States. In most cases, decisions are taken by qualified majority. The Treaty of Lisbon provides for a ‘special legislative procedure’ in certain cases, under which the European Parliament has either only a right of consent (for example, in the case of the accession of new members) or only a right to be consulted.

In areas where the EU has limited or no legislative powers, the intergovernmental method is applied. This applies in particular to the Common Foreign and Security Policy (CFSP). Important decisions can therefore, in principle, only be taken unanimously by all Member States in the European Council or the Council of the EU.

Finally, the third procedure alongside the Community and intergovernmental methods is the open method of coordination, which was originally introduced to boost competitiveness as part of the Lisbon Strategy of 2000. This method was later extended to other areas (employment, economic and social policy). Here, no formal decisions are taken; instead, there is merely informal coordination between Member States on the basis of jointly formulated objectives; the European Commission plays only a supporting role.

The EU’s ‘exclusive competences’ include the customs union, the establishment of the competition rules necessary for the functioning of the internal market, monetary policy within the framework of the Eurogroup, the conservation of marine biological resources under the common fisheries policy, and the common commercial policy (Article 3 TFEU). In these areas, only the EU may legislate and adopt binding legal acts; Member States may only act if authorised to do so by the Union, or in order to implement EU legal acts. In the case of ‘shared competence’, the Member States exercise their competence only insofar as the EU has not exercised its own competence. This applies to policy areas such as the European Economic and Monetary Union, research and environmental policy, healthcare, consumer protection, areas of social policy, and the area of freedom, security and justice. The latter encompasses aspects of home affairs and justice policy – including immigration policy, judicial cooperation in civil matters, and police and judicial cooperation in criminal matters.

The EU has relatively limited powers in the field of minority policy. However, in the course of the EU’s eastward enlargement, it pursued an active minority policy in Eastern Europe. When assessing the EU’s minority policy, it is therefore important to distinguish between internal and external perspectives. The Treaty of Amsterdam introduced numerous innovations relevant to minorities into primary law. The EU’s own claim to be a ‘community of values’ led the EU institutions to engage more closely with human rights issues. Article 13 of the EC Treaty (now Article 19 TFEU), the text of the Treaty of Amsterdam established a legal basis on which the EU could take measures against discrimination on grounds of race and ethnic origin. On the basis of this article, the European Commission presented two proposals: the ‘Anti-Discrimination Directive’ (Directive 2000/43/EC) and the ‘Equal Treatment Framework Directive’ (Directive 2000/78/EC), which are now regarded in EU law as key components of the Community’s anti-discrimination policy. This enshrined protection against discrimination in the EU’sacquis communautaire and laid the foundations for the further development of the EU’s policy on minorities.

With the failed Constitutional Treaty and the resulting Lisbon Reform Treaty, the term ‘minority’ was mentioned for the first time in a primary EU legal text. The new Article 2 TEU states:

The values on which the Union is founded are respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to all Member States in a society characterised by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.

Another source of EU minority law is the Charter of Fundamental Rights (CFR), which became binding for most EU Member States upon the entry into force of the Treaty of Lisbon, by virtue of the reference in Article 6 of the amended Treaty on European Union. From the perspective of minority rights, the Charter is of particular interest as it introduces the term ‘national minority’ in Article 21(1):

Discrimination, in particular on grounds of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation, is prohibited.

Unlike Article 19 TFEU, this provision contains a clear and directly applicable prohibition clause; however, it does not give the EU an unambiguous mandate to take action against such discrimination. Nevertheless, with the entry into force of the Treaty of Lisbon, the term ‘national minority’ was incorporated into primary law.

The Treaty of Lisbon thus marks a turning point in EU minority policy, as the rights of members of ethnic and national minorities are, for the first time, counted amongst the fundamental values of the Community: The Charter of Fundamental Rights (CFR) prohibits discrimination on the grounds of ‘belonging to a national minority’ (Article 21(1)). Together with Article 22 of the Charter of Fundamental Rights, which enshrines respect for cultural, religious and linguistic diversity, this constitutes a clear statement in favour of minority rights. Nevertheless, the Reform Treaty cannot obscure the contradiction that, whilst an explicit reference to minorities is made, concrete provisions for the implementation of these rights are still lacking.

The ‘Copenhagen Criteria’, adopted by the European Council in June 1993, were decisive for the external dimension of the EU’s minority policy. The political accession criteria, which require structures based on the rule of law and democracy, also include respect for and the protection of minorities.

The actual accession negotiations were preceded by an analytical review of the constantly evolving acquis through a screening process carried out by the European Commission. The EU had already made the opening of accession negotiations conditional upon the full or partial fulfilment of the political and economic criteria, and monitored their further implementation and compliance through a comprehensive monitoring procedure throughout the negotiations until accession.

The regular progress reports revealed a highly selective approach on the part of the Commission when assessing the situation of minorities in the accession states. The Commission focused its attention in particular on three minority groups: alongside the Russian communities in the Baltic states, the Roma in Central and Eastern Europe and the Hungarian minorities in Hungary’s neighbouring countries were the main focus of the progress reports. Numerous smaller minority groups (such as German-speaking minorities) in the accession countries, by contrast, went unmentioned or were only rarely addressed. Furthermore, the minority groups were not officially involved in the accession negotiations on the EU side; they were involved only indirectly via the national parliaments – provided the minority was represented there.

• Andreas von Arnauld: The Protection of Minorities in European Union Law. In: Archive of International Law (AVR) 42 (2004), pp. 111–141.
• Angela Kaiser: Protection of Minorities in the European Union. An examination of the ‘double standard’ in EU minority protection, with particular reference to the Charter of Fundamental Rights of the European Union. Frankfurt am Main et al. 2005 (Schriften zum Staats- und Völkerrecht 114).
• Michael Kreile: The Eastern Enlargement of the European Union. In: Werner Weidenfeld (ed.): The European Union. Political System and Policy Areas. Bonn 2006 (Publications of the Federal Agency for Civic Education 442).
• Maximilian Opitz: The European Union’s Minority Policy: Problems, Potential, Prospects. Berlin 2007 (Studies on Migration and Minorities 16).
• Gabriel Toggenburg: A Remaining Share or a New Part? The EU’s Role vis-à-vis Minorities after the Enlargement Decade. In: Marc Weller, Denika Blacklock, Katherine Nobbs (eds.): The Protection of Minorities in the Wider Europe. Basingstoke et al. 2008 (Palgrave Studies in European Union Politics).
• Werner Weidenfeld: The European Union. Paderborn 2010 (UTB Political Science 3347).

• eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2010:083:SOM:DE:HTML (Consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, Charter of Fundamental Rights of the European Union, Official Journal No C 83 of 30 March 2010)

Christoph Schnellbach: European Union. In: Online Encyclopaedia on the Culture and History of Germans in Eastern Europe, 2012. URL: ome-lexikon.uni-oldenburg.de/p32826 (accessed 24 November 2020).