The EU has different minority protection requirements for existing member States and for States wishing to join the EU. In 1993, the EU established a set of criteria that accession States must meet in order to join – the ‘Copenhagen criteria’. These criteria include “respect for and protection of minorities”. In addition, since 1997, for States in the Western Balkans there is another set of membership requirements that include the State’s “credible commitment to democratic reforms and progress in compliance with the generally recognized standards of human and minority rights”.⁹² The conditionality in these criteria is country specific and the EU has to varying degrees emphasised minority protection in its political accession criteria. The regular reports produced to monitor state compliance with accession criteria include information about minority protection. In practice, documents external to the EU have been used to provide the framework for examining minority protection in accession States. How States implement the FCNM has become a major indicator, making FCNM ratification a key consideration for accession States. Other documents referred to include reports of the OSCE High Commissioner on National Minorities, ECRI and national legislation.

The EU has extensive non-discrimination provisions. Two key EU Directives were adopted in 2000: Directive 2000/43/EC “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin” (the “Racial Equality Directive”); and Directive 2000/78/EC “establishing a general framework for equal treatment in employment and occupation” (the “Employment Equality Directive”). Directives are binding on member States (i.e. they must be transposed into national law) but States may decide on the most suitable means of implementing them. The Directives define direct and indirect discrimination and apply to both the public and private sectors.

The Racial Equality Directive prohibits discrimination on racial or ethnic grounds in areas including employment, training, education, social protection and access to goods and services. The Employment Equality Directive prohibits discrimination on the grounds of religion or belief, age, disability and sexual orientation in the areas of employment and vocational training. Importantly, both Directives provide for a shift in the burden of proof, which means that once an alleged victim has established a difference in treatment it is for the respondent to prove that the difference was not due to discrimination. All EU member States are required to ensure their national legislation complies with the Directives. The Directives also allow for associations or NGOs to take action on behalf of victims through the national courts. The Racial Equality Directive provides for the establishment of equalities bodies in member States with a mandate to provide independent support for victims.

States, within a set timeframe, communicate to the European Commission the measures they have taken to transpose the Directives into national law. Where States fail to do this, the Commission may start ‘infringement proceedings’ which can include referral to the European Court of Justice. In the case of the Race and Employment Directives, a number of States were slow in informing the Commission of their transposition and, in December 2004, the Commission took five States to the European Court of Justice for failure to implement the Directives (i.e. Austria, Finland, Germany, Greece and Luxembourg).

The separate Equality Directives for race, gender, religion and age make it more challenging to pursue a case involving discrimination on multiple grounds. Since the Directives provide for individual remedies only, some argue they are less suited for tackling institutional discrimination and deep-rooted inequalities.

The EU Agency for Fundamental Rights (FRA) (formerly the European Monitoring Centre on Racism and Xenophobia) is an independent agency of the EU. Among its thematic areas of work of relevance for minorities are: “racism, xenophobia and related intolerance”; “discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation and against persons belonging to minorities”; and “asylum, immigration and integration of migrants”. The FRA does not examine individual cases but is responsible for producing policy research, data collection, monitoring, awareness raising and advising EU member States and agencies.