The European Commission intervenes on “LGBT-free” zones in Poland
The letter from the European Commission is a confirmation that the homophobic resolutions passed by local governments in Poland have legal consequences, violate the rights of their residents, and should conform to EU values. It also opens the way to EU funds being blocked – right now
https://ruleoflaw.pl/the-european-commission-intervenes-on-lgbt-free-zones-in-poland/
by Anton Ambroziak
The addressees of the European Commission’s letter are the marshals (wojewodowie) of five provinces (voivodships, województwa) that have adopted anti-LGBT resolutions or their equivalent, i.e. the homophobic ‘Local Government Charter on the Rights of the Family’ drawn up by an NGO Ordo Iuris. These are the Lublin, Łódź, Malopolskie, Podkarpackie and Świętokrzyskie provinces.
What does the Commission want? In short: for the provincial governors (wojewodowie) to check whether the money from the EU’s cohesion policy is actually being spent in violation of European regulations.
This mainly concerns Art. 2 of the European Union Treaty, which speaks of the values on which the Community is founded:
- respect for human dignity;
- freedom, democracy, equality, the rule of law,
- and respect for human rights, including the rights of persons belonging to minorities.
“These values are common to the Member States in a society based on pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.”
The obligation to combat discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation is also included in art. 7 of the Regulation on EU funds dating from 2013. Moreover, the preventive actions to which the beneficiaries of EU funds are obliged are explicitly included in the partnership agreement, and include both investments and programmes run by local authorities, as well as soft activities accompanying them, such as ‘communication’.
In the opinion of the European Commission, the adoption by some Polish local governments of homophobic documents, which reduces the LGBT community to an ‘ideology’, calls into question the regional institutions’ ability to implement the principle of non-discrimination.
“In addition, there is a risk that the beneficiaries of the funds (…) will discriminate against the LGBT community in their activities,” writes the European Commission, instructing the provincial governors to investigate the matter.
“We cannot be full members of the EU if we exclude some of our citizens.”
Why is this letter so important?
First of all, this is not just another commentary expressing moral indignation; rather it is a specific intervention.
Anna Błaszczak-Banasiak, a lawyer of the Commissioner for Human Rights’ Office says the EC’s position confirms that the anti-LGBT resolutions, regardless of their form, directly affect the lives of citizens.
“In the Commissioner’s opinion, the EC’s letter embodies the principle of non-discrimination as a fundamental principle of the European Union. In other words, we cannot be full members of the community if we fail to apply the principle of equal treatment and exclude some of our citizens from social life.”
The local governments that adopted the homophobic documents have defended themselves by claiming that they did not exclude LGBT people, but were only protesting against a harmful ‘ideology’, or promoting the values of the traditional family.
“I’m glad that the Commission has confirmed the arguments of the Commissioner, who emphasised from the beginning that this was not about ideology or beliefs, but about living people,” commented Błaszczyk-Banasiak.
Local governments may lose EU funds straight away
The EC’s position thus clearly demonstrates that the anti-LGBT resolutions have legal consequences, are in conflict with EU regulations, and that the Polish institutions which should defend them have been neglecting their duties. But the most revolutionary matter is the threat that the joint funding might be lost.
Until now, the example of the homophobic self-governments gave impetus to the parties which wanted to link the next EU budget to compliance with the basic principles enshrined in the EU Treaty.
Now, the European Commission has shown that the consequences of compromising EU values can even be borne today.
“And that would be the worst possible news if it seems that any self-government has lost EU funding due to the ill-considered actions they carried out during the course of the election campaign,” says Anna Błaszczak-Banasiak.
This is a clear signal to those local governments that have adopted homophobic resolutions that their actions are not neutral, and the European community is not only a collection of rights and benefits, but also of obligations which must be fulfilled. And if they aren’t, then the money to renovate historic parts of the city, a new sewage system or a road may run out.
Pressure on local authorities is not just defensive in nature. It is not just about whether the provincial governors will check to see whether the funds are spent in accordance with the law, but whether they also take active measures aimed at preventing discrimination.
The Commissioner has appealed against 9 resolutions to administrative courts
The Commission’s letter coincides with the position adopted by the European Parliament, which in December 2019 called on the Polish authorities to repeal homophobic resolutions by administrative means, i.e. via the provincial governor (wojewoda) or the administrative courts. The Parliament also urged the EC to verify whether the local governments that adopted anti-LGBT resolutions and still collect money from the EU are using it for purposes that violate human rights and the principle of equal treatment.
“Since the expected action has not been taken after the resolution by the European Parliament in December, which indicated that member states are obliged to uphold the fundamental rights enshrined in the EU Treaties, the Commission has naturally taken further steps. We hope that the local governments will come to their senses, and that this statement will contribute to the immediate revocation of the resolutions,” says Justyna Nakielska from the Campaign Against Homophobia.
Also in December 2019, the Polish Commissioner for Human Rights appealed against the nine most flagrant resolutions to the administrative courts. However, as Anna Błaszczak-Banasiak explained, the legal status in Poland is more complex.
The local communes (gminy) are trying to show that the resolutions do not affect the residents’ subjective rights. On the other hand, the Commissioner accuses the local governments of failing to comply with the legalist principle expressed in Art. 7 of the Constitution. “Our basic complaint is therefore a formal one. We want to demonstrate that the local governments have exceeded the scope of their competence when adopting these documents. We must remember that these are precedential proceedings; we are waiting patiently for the first decisions to be handed down.”
Pressure from the partner regions
The withdrawal of EU funds would be the most severe loss for the local governments that have passed the homophobic laws. So far, some municipalities or provinces have – temporarily – lost their partnership agreements with foreign regions. Some of this happened after the intervention of OKO.press, which in February 2020 sent information on the local authorities’ activities to 52 partner regions around Europe.
So far, none of the local governments have withdrawn the resolutions. Kraśnik came the closest; after losing its partnership with Nogent-sur-Oise in France, it is still debating the future of the document.
The first of the so-called ‘LGBT-free’ zones was established on 26 March 2019 in Świdnik (in the Lublin voivodeship). Since then, similar documents in various forms have been adopted by over 80 local government units.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 
