The ruling by the EU Court of Justice is the culmination of years of tension between Poland and Brussels.
The Court of Justice of the European Union decided this Thursday, January 12th, on discrimination related to homosexuality in Poland. It decided to tighten anti-discrimination provisions in the workplace, since the notion “conditions of access to employment, self-employment or work (…) must be broadly defined, covering access to all professional activity, regardless of its nature and its characteristics. Sexual orientation can therefore not be a reason for refusing an employment contract. The EU has thus extended the application of the existing anti-discrimination measures.
That decision came after a man had to end his association with local public television in 2017. The event coincided with the release of a video on the internet promoting tolerance towards gay couples. The man in question appeared there alongside his companion.
Tensions have increased since 2015
In recent years, several decisions by the Polish Constitutional Court on new laws in Brussels have been received with reluctance. The EU accuses the conservative government (PiS, Law and Justice Party) of discriminatory policies towards the LGBT community. The legal standoff between Warsaw and the European Commission will see one of its epilogues this Thursday.
“There have been disputes between Poland and the European Union over the LGBT issue for a number of years, long before the conservative party came to power in 2015,” says historian Max-Erwann Gastineau, an expert on international relations. “As early as 2007, the ECtHR had condemned Poland for forbidding homosexual activists from organizing a Pride March,” he recalls.
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However, the situation took a new turn when the Conservatives came to power in 2015. They have never made a secret of the fact that they are waging a veritable culture war against the progressive ideals of the European Commission.
In 2019, for example, the Polish Constitutional Court made a court decision that was highly controversial in Western Europe: it authorized retailers to refuse customers who belong to the LGBT community on behalf of their religious beliefs. This decision was the culmination of a story that began in 2016 when a printer refused to print posters for an LGBT group. According to him, these helped encourage a fight that he disapproved of.
A year later, in 2020, Commission President Ursula Van der Leyen emphasized the EU’s role in defending LGBT rights in her State of the Union address. “The Commission will soon propose a strategy to empower LGBTQI people,” she said.
A few months later, the European Commission finally opened infringement proceedings against Poland for “attacks on the fundamental values of the European Union”. Questionable ? The creation by certain Polish communities of “zones free from any LGBT ideology”. The call, issued by the Union “deeply concerned”, should encourage Poland to end these measures, which are deemed discriminatory.
Supremacy of European law over national law: a sensitive issue
The various condemnations expressed by the EU aim to reaffirm the primacy of Union law over national law, with the Commission even qualifying its decisions as “binding on all national authorities and courts”.
The role of the ECJ is to “ensure that EU law is interpreted and applied in the same way in all EU countries”. The Commission relies on Article 2 of the EU Treaty, which provides that “respect for human rights, including the rights of persons belonging to minorities”, shall be recognized by all Member States.
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The strong tensions within Polish society on the issues of the LGBT community then come to nothing. The country is divided into a conservative power camp that defends a traditional family image, and a liberal camp that approaches the progressive ideas of Western Europe. The Polish conservative camp wants to defend a national cultural model that is more and more opposed to the one promoted by the EU every day.
gray areas
From a legal point of view, there are also some gray areas. For example, it is difficult to know what areas of competence “lie within the EU or within nations in social and cultural matters”, stresses Max-Erwann Gastineau, who insists on the tensions that this uncertainty can create.
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Certain provisions of European law can also be used as justification by the Polish conservative camp. “Article 2 was also used by Polish conservatives to defend the ban on abortion in the case of fetal malformations, says the researcher. The Conservatives claimed to fight against disability discrimination. Both conservatives and progressives see European texts as the legal basis for their decisions.
“Constant pressure” from the Commission
For the researcher, this decision of the Court should not be taken in isolation, but as part of an overall European Union strategy. The various verdicts or measures handed down by European judges in recent years have meant that “constant pressure” has been maintained on the Polish state to push through developments related to LGBT rights.
The condition of obtaining European aid to respect non-discrimination against LGBT people is Brussels’ new leverage to assert its sovereignty in cultural and social affairs. “Polish progressives often refer to Brussels to ease national tensions,” explains Max-Erwann Gastineau. And finally: “The standardization process initiated by Brussels aims to create a unified European people with common values”.