Minorities Protection Under EU Law Before and After the Lisbon Treaty – from a Mere Prohibition of Discrimination to “Affirmative Actions”

Abstract

For a long time discussions in international minority protection focused on the particulars of the prohibition of discrimination, which, according to the negative connotation as a prohibition, was understood to prevent "negative discrimination". Issues of "positive discrimination" through "affirmative actions" entered the discussion with the recognition that members of minorities would not be protected from developing a distinct cultural identity solely through the application of the principle of non-discrimination. What was needed was an active and supportive protection of minorities. Consequently "affirmative actions" were introduced in constitutional and public international law, which were regarded and defended as "justified differentiations."Prior to the Lisbon treaty eU law featured general prohibitions of discrimination, the Lisbon Treaty, however, for the first time stipulates in EU primary law that minority protection is a protected common value (article 2 of the treaty on european Union), and this has triggered off a debate about the legitimacy of "affirmative actions" as they structurally oppose the concept of the common market. the European Court of Justice has, in the "Omega" case, for the first time hinted at a possibility to immunize minority protective systems through the exception of "public order". Subsuming minority protection including "affirmative actions" under the concept of "public order" could thus mean that a minority protective system would not be touched by the liberties of the eU common market and thus could not be existentially threatened by these.