Maintaining Ethnic Ties in the Process of EU Enlargement: The Relationship between Kin-Minority Laws, EU Anti-Discrimination Law and the Schengen Acquis

Abstract

Within the course of the 1990s, several European Union (EU) Member States have adopted so-called “kin-minority laws”, granting preferential entry and residence rights to their co-ethnics abroad. This paper investigates the relationship between such kin-minority legislation and the Union acquis, in particular the prohibition of nationality discrimination and the Schengen rules. It provides for a comprehensive overview of kin-minority laws in Europe, comparing their scope of application, eligibility requirements and benefits granted. We argue that in the absence of Union competence in the area of minority protection, kin-minority laws provide crucial instruments in protecting ethnic minorities. At the same time, legislation granting favourable treatment to co-ethnics may be at odds with the strict Schengen regime and the principle of non-discrimination on grounds of nationality and/or ethnic origin. Even though EU law allows for positive discrimination under certain circumstances, a strict proportionality test applies. We argue that kin-minority provisions enacted by several Member States are questionable from an EU law perspective, illustrating the challenge to allow for the protection of ethnic minorities on the basis of national law whilst ensuring the coherency of the EU legal order.