European parliament working paper

Chapter 3: Proposals and considerations on the way forward for the European Commission, in the light of the European Court of Justice judgement of 12 May 1998

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Chapter 3: Proposals and considerations on the way forward for the European Commission, in the light of the European Court of Justice judgement of 12 May 1998

3. Introduction

3.0.1. The background. As explained briefly in the Introduction to this Report, following the European Court of Justice Judgement C-106/96 of 12 May 1998^⁹⁰ the budget line for regional and minority languages came to an end, and appropriations provided for a preparatory measure, for the period 1999-2001 (see above, Ch. 2).
As laid down in paragraph 36 of the Interinstitutional Agreement of 6 May 1999^⁹¹, “Under the system of the Treaty, implementation of appropriations entered in the budget for any Community action requires the prior adoption of a basic act. A 'basic act' is an act of secondary legislation, which provides a legal basis for the Community action, and for the implementation of the corresponding expenditure entered in the budget. Such an act must take the form of a Regulation, a Directive or a Decision (Entscheidung or Beschluß). Recommendations and opinions do not constitute basic acts, nor do resolutions or declarations.”
Subsequently the DG Education & Culture drafted a Community Action Programme proposal, “Archipel”. The DG’s initial proposal that the legal basis for such a programme be Article 149 of the Treaty was rejected by the Commission’s legal service, which considered that the appropriate basis for such an Action was Article 151: “The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity […]”. The objective of such an Action would thus be to safeguard the cultural heritage and the linguistic diversity of the Community. Following a preparatory action for the period 1998-2000^⁹², the lack of initiative on the part of the Commission seems to be related to the fact that Article 151 requires unanimity in the Council. The legal service seemed open to further discussions on aspects they might not have borne in mind, and we shall propose various arguments which, in our view, lead us to different conclusions from those reached by that service.
In Chapter 4 we shall make various proposals for Community action, to extend the support it can give to linguistic diversity including regional or minority languages, among which a specific new programme is just one.
Before entering the subject, several introductory remarks have to be made.
3.0.2. Instruments of varying hierarchical status. It is striking that a subject that affects up to 40 million European citizens has received so little direct attention, other perhaps than the series of European Parliament Resolutions and the longstanding pilot project mentioned above, run by the Commission thanks to the support of the European Parliament. This leads necessarily to a fragmentary treatment of the documents on the subject matter, as well as to the unavoidable conjunction of instruments of varying hierarchical status: from political statements, through Decisions and Articles quoted from the Treaties, to European Court judgements. This chapter does not have enough space to offer a thorough analysis of all the relevant documents and legal instruments, so a brief selection of documents will be made; all are relevant to the discussion in this chapter, for we contend that the political will of the Union’s institutions is just as important a factor in the way forward as are the specific legal bases on which legal acts can be grounded.
It will immediately become clear that the distribution between the Union and its Member States of competence’s relating even indirectly to language matters is as imprecise in this field as it is in others. It is particularly so given that references to "language policy" as such are not to be found in the Treaties.
3.0.3. The lack of a legal basis for excluding regional and minority languages from Community action in the field of language promotion. The Union has a number of language policies in particular fields in which it has powers. The legal bases for these policies are mainly Articles 149, 150 and 151, as well as on 157 EC^⁹³: so we see no reason why references in the Treaties have to be sought in order to justify actions which can help specifically to promote regional or minority languages. On the contrary, we believe that the onus is on the Council and the Commission to attempt to explain what references in the Treaties have allowed language policies to be developed which actually exclude them, covering only the Union's official languages (a term which does not appear in the Treaty) and/or, on occasion, other languages such as Irish and Lëtzebuergesch.
3.0.4. Respect for diversity: towards an active policy. As we shall explain below, the reference in article 149.1 to the need to respect Member States’ cultural and linguistic diversity gives rise to the fundamental question: what does “respect” mean in terms of policy (in this case, related to the Community’s action in the field of education)? Can the Community respect a “minority” language, for instance, in a passive way, by ignoring its existence, while acting to support the corresponding “majority” language? Is this not a contradiction in terms? Surely, we shall argue, the term “respect” should not be interpreted only as limiting the action of the Community (or only insofar as its action might threaten diversity), but rather as also providing a basis for it, so that a specific, active policy in the field of promoting diversity can help to attain Community objectives.
3.0.5. Language as a component of culture. We shall draw attention to Article 151, for it places the Community’s institutions under an important obligation: “The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.” (151.4 EC). It is clear that language is an important component of the Community’s cultures. We shall also be referring later to Article 151.1 (quoted at the beginning of this Chapter), as it is also relevant to the issue. Language and culture are certainly closely related: but language is not merely culture, just as culture has many aspects, which are not linguistic in nature.
3.0.6. Closing remarks. Finally, it is clear that however one wishes to define the limits to Community action in the field of language policy, the official recognition of a language by a Member State cannot but have legal effects within the institutions of the Union.
In what follows, we shall question some of the assumptions that have hitherto been behind much of the debate on this subject. The discussion is still open, and we shall offer interpretations, which, we hold, are on occasion closer to the literal texts of the Treaties.

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