E Pluribus Unum – The EU Way

Prof. dr. Miodrag Jovanovic

The ‘EU Patent’ Case

A long history of attempts to introduce an EU wide patent

Such a measure would presumably result in lower costs and fewer barriers for inventors, thus stimulating innovation and making the EU more competitive

One apparently simple issue has proven to be an apple of discord: in what language(s) should the EU issue its patents?

In search of an adequate language formula The most realistic, ‘English-only’ solution was blocked by Germany and France

During the Spanish presidency in the first half of 2010, consensus was reached on a five-languages formula: three aforementioned + Italian and Spanish

One day after the Spanish presidency, French EU Internal Market Commissioner Michel Barnier announced the EU Commission’s proposal: EU patents would be examined and granted in one of three official languages: English, French, or German - the version published in this language would be the legally binding text of the patent, with a translation of the claims into the other two official languages.

Italian opposition to the three-languages formula

Minister of EU Affairs, Andrea Ronchi, who declared that Italy was “ready for battle” and defined the proposal as “unacceptable because it means actually legitimizing the notion that there exist languages of first class and languages of second class, all this in contradiction with the provisions of the Treaties of the Union on the principle of equal dignity of languages.”

Franco Fratini, Italian Foreign Minister, stated that Italy “will oppose [the measure] with all legal means and if we don’t succeed, we will use the veto.”

Italian government sees the ‘only English’ formula as less detrimental and harmful than the proposed one

The EU Commission’s response José Manuel Barroso has said that the

Commission’s proposal is the logical choice to reduce costs, arguing that “this is not a linguistic beauty contest … The priority is to find a cost-effective workable solution in the interest of European business.”Bernier stated: “I didn’t invent the working languages of the European Community or of the EPO, which has been working with three languages for thirty years.”The EU Commission has amended its proposal to allow for

the possibility of inventors filing applications in their native language and being reimbursed for the necessary translations into an EPO language. Barnier believes that this proposal ‘strikes the right balance’ between pragmatism and linguistic pluralism.

EU – Between pluralism and efficiencyDESIRING to deepen the solidarity between their peoples while respecting their history, their culture and their traditions,

DESIRING to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them… (Preamble)

The EU “values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” (Art. 2)

The EU “shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.” (Art. 3.3)

“The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.” (Art. 13.1)

Multiculturalism – conceptual distinctions The term ‘multiculturalism’ refers to two

distinctive things:1. sociological reality – that a society is in ethnic,

linguistic, religious, etc. terms heterogeneous; 2. political program - the politics of granting

political and legal recognition to relevant and distinctive collective minority identities when the liberal paradigm of ‘equal rights for equal citizens’ seems to promote injustice, instead of preventing it;

Whereas the latter presupposes the former, the former does not necessarily imply the latter!

EU as a multicultural polity

The EU is a highly heterogeneous society Yet, there is not much of a multicultural

political program, institutionalized at the level of the EU as a whole, partly because of the complex structure of relations: EU – Member States – sub-state minorities

Article 2 TEU of the Lisbon Treaty states that the EU “is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”

EU enlargement and the minority protection

At the 1993 Copenhagen meeting, the European Council declared that “the associated countries in Central and Eastern Europe that so desire shall become members of the European Union.”

The Copenhagen criteria can be divided into three sub-categories: political, economic and acquis criteria. Under the political criteria, the membership requires that a candidate country ensures “stability of institutions guaranteeing democracy, the rule of law, human rights and the respect for and protection of minorities”

The “minority rights imperative”’ was without a clear legal basis in the primary EU law, but it was, nonetheless, in full consistence with the emerging European system of minority protection. The accession was monitored in light of these standards.

European system of minority protection The 1990 Copenhagen meeting of the CSCE: “The participating States recognize that the questions relating to national minorities can only be satisfactorily resolved in a democratic political framework based on the rule of law, with a functioning independent judiciary.”

EU Commission’s Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (16 December 1991) stipulated “guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE”

In 1992, OSCE appointed a High Commissioner on National Minorities

In November 1992, the Council of Europe opened for signatures the European Charter for Regional and Minority Languages

In 1995, the Council of Europe adopted the Framework Convention for the Protection of National Minorities

The ‘double standards’ charge Candidate states have frequently raised the

‘double standards’ charge with respect to the ‘minority imperative’ of the accession procedure

While strongly emphasizing a variety of methods for minority protection in Eastern Europe, most Western EU states “are less than forthright in addressing the situation of their own minorities within the same or other international contexts.” (G. Pentassuglia)

French reservation on Article 27 of the ICCPR A. Merkel’s statement that, in Germany, the

political program of multiculturalism is dead

An overall assessment of the policy of ‘conditionality’

The EU policy of “conditionality” can be assessed as successful, insofar as the candidate states promptly acceded to and ratified the major regional instruments for the protection of minorities (such as the FCNM and to a lesser extent the ECRML), as well as responded accordingly when their domestic legislation was perceived unsatisfactory by the relevant monitoring bodies

However, once created as the external “conditionality” policy with respect to eastward enlargement, minority rights protection can become a field of the EU’s genuine involvement only if it is interiorized and consistently applied to its Member States as well

Minority protection within the EU At first, it appears that, when discussing

minority rights within the EU, that the only topic that can be dealt with concerns the relation, if any, between the EU and minority groups inside its member states

On a closer look, there are certain policy areas, commonly associated with minority protection, in which the EU might directly act:

1. Integration of immigration2. Roma protection3. Language politics

Integration of immigration or ‘Fortress Europe’?

According to some press reports, at least 14,921 people have died since 1988 along the European frontiersThat is the reason why the EU is at times pejoratively called ‘Fortress Europe’

The Tampere European Council, held on October, 15-16, 1999, stated that the EU should ensure fair treatment of third-country nationals residing lawfully on the territory of the Member States and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of EU citizens

Immigrant voting rights in the EU-27

EU Member State Foreign Nationals (Non-EU Nationals)

Austria, Bulgaria, Cyprus, Czech Republic, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxemburg, Poland

Have no voting rights (local, national and EP elections)

Belgium, Estonia May vote in local elections only, but cannot be elected

Denmark, Finland, Ireland, Netherlands, Sweden

Non-discriminatory regime whereby all legal immigrants may vote and stand for elections at the local level when certain requirements are fulfilled (e.g. regarding type of status in country and a minimum duration, obligation to register to vote, etc...)

Malta, Portugal, Slovakia, Slovenia, Spain, UK

Local enfranchisement is restricted to immigrants who hold citizenship of specific counties (e.g Commonwealth, countries with former colonial ties etc...)

Return Directive

Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (‘Return Directive’)

The ‘Return Directive’ “does not guarantee the return of irregular migrants in safety and dignity. On the contrary, an excessive period of detention of up to one and a half years as well as an EU-wide re-entry ban for those forcibly returned, risks lowering existing standards in the Member States and sets an extremely bad example to other regions in the world. At the same time, the text lacks sufficient guarantees for unaccompanied minors and contains weak provisions with regard to judicial oversight of administrative detention. Finally, it allows specific derogations on detention conditions in those Member States confronted with so-called emergency situations.” (Amnesty International)

EU Blue Card

Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment

An approved EU-wide work permit (Council Directive 2009/50/EC) allowing high-skilled non-EU citizens to work and live in any country within the European Union, excluding Denmark, Ireland and the United Kingdom, which are not subject to the proposal

‘Blue Card’ offers a one-track procedure for non-EU citizens to apply for a work permit, which would be valid for up to two-years, but can be renewed thereafter; those who are granted will be given a series of rights, such as favorable family unification rules; it also encourages geographic mobility within the EU, between different member states, for those who have been granted a blue card.

Roma people – a European minority Being without the kin-state, Roma people

can be said to represent a European minority

Recent events demonstrate lack of political will, both within Member-States and at the EU level to seriously dealt with this problem

The second European Summit on Roma inclusion took place in Córdoba (Spain), on the 8th and 9th April 2010, on the occasion of the International Roma Day, as a key event of the Spanish Presidency of the Council

Roma protection – current situation

European Parliament resolution of 9 September 2010 on the situation of Roma and on freedom of movement in the European Union:

“Expresses its deep concern at the measures taken by the French authorities and by other Member States' authorities targeting Roma and Travelers and providing for their expulsion; urges those authorities immediately to suspend all expulsions of Roma, at the same time calling on the Commission, the Council and the Member States to intervene with the same request…

Deeply deplores the lack of political will demonstrated by the Member States at the Second European Roma Summit, which only three ministers attended, and calls on the Member States to endorse concrete measures which give effect to the undertakings given in the Roma Summit joint declaration issued by the Trio Presidency…”

EU and ethno-linguistic democracy The principle of equality of 23 official languages The current number of Member States (27) exceeds

the number of official languages, as several national languages are shared by two or more countries – Dutch is official in the Netherlands and Belgium, French in France, Belgium and Luxembourg, German in Germany, Austria, Belgium, and Luxembourg, and Greek in Greece and Cyprus.

Contrarily, Luxembourgish (Letzeburgesch) does not have the status of an official EU language, as well as Turkish, which is one of the official languages of Cyprus.

EU language politics

Language politics has its origin in Regulation 1/58, which “sets out guidelines for communications between Member States and the EC institutions, and for the language practice to be followed by the institutions in a general sense.”

Article 55 of the Lisbon Treaty stipulates that all language versions of the Treaty are equal

EU citizens have “the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.”