In recent months, LGBT activists have engaged in various practices aimed at reducing the number of Polish local governments adopting the Local Government Charter of Family Rights. This document, which contains proposals for concrete actions to support family and marriage, was prepared, among others, by the Ordo Iuris Institute. The local governments that implement the Local Government Charter of Family Rights are sometimes considered to be alleged “LGBT-free zones”. LGBT activists from Poland have led the European Parliament to adopt a resolution containing false information on the subject and are now threatening to deprive pro-family local authorities of European Union funds. However, this attempt at blackmail has no legal basis.
The European Parliament's resolution of 18 December 2019 misconstrued the statement that the Local Government Charter of Family Rights contributed to discrimination against “single-parent families and LGBTI families”, and “called for refraining from any actions that encourage tolerance”. The European Commission has been called upon to “monitor the use all EU funding sources, including the EU structural and investment funds, and to enter into a regular dialogue with national, regional and local authorities in order to remind stakeholders of their commitment to non-discrimination, and that such funds may under no circumstances be used for discriminatory purposes”, as well as to “take concrete measures to eliminate clear and direct violations of anti-discrimination laws, in particular the prohibition of giving out orders to discriminate in accordance with Directive 2000/78/EC, i.e. violations undertaken by local governments adopting legislation against LGBTI rights”.
Importantly, the resolution is not a source of law, but only an opinion of MEPs. Therefore, no local government can be accused of acting contrary to the resolution. Only the demonstration of a breach of a specific legal provision can have any impact on the process of granting EU funds. Directive 2000/87/EC, referred to in the text of the resolution, was implemented in Poland by the Act of 3 December 2010 (Dz.U [Journal of Laws] of 2016, item 1219). The Local Government Charter of Family Rights does not violate any of its provisions. Moreover, in accordance with Article 5(1) of the Act, its provisions do not apply to the sphere of private and family life, and legal actions related to these spheres. The Polish legislator, by introducing this directive, therefore treats the family as a community with a wide range of autonomy – a similar assumption is made in the Local Government Charter of Family Rights. Article 7 of Regulation No 1303/2013 of the EP and the Council (EU) of 17 December 2013 (and the related horizontal principle 5.3) provides for the prevention of all forms of discrimination only at the stage of the preparation and implementation of the specific programmes, and not at the stage of the activities undertaken by the local government regardless of them. Also, the general ex ante conditionality – “anti-discrimination” – applies only to the European Fund for Strategic Investments (EFSI). Article 19 of the Regulation also ensures that it is the Member State that assesses the fulfilment of the preconditions for the whole programme.
The MEPs who voted on the draft resolution on the Charter were misled. On 26 November, three LGBT activists from Poland appeared in the European Parliament, who during a conference of the Group of the European United Left imposed on MEPs the erroneous view that the Local Government Charter of Family Rights turns the local governments into illegal “LGBT-free zones”. It is one of these activists who now sends letters to local government officials suggesting the admissibility of linking family and marriage protection to a lack of EU funds. Furthermore, on the initiative of French MEP Irène Tolleret, amendments 7 and 8 were included in the text of the resolution, according to which “the establishment of LGBTI-free zones restricts the freedom of movement of EU citizens”, and the European Commission was called upon to “assess whether the establishment of LGBTI-free zones constitutes a violation of freedom of movement and residence in the EU”.
The proposals contained in the Local Government Charter of Family Rights do not impose any obligation on local governments to take any specific actions that could be identified as being reserved for the competence of other entities. The Local Government Charter of Family Rights does not discriminate, but affirms the fundamental rights and freedoms guaranteed by the Constitution of the Republic of Poland and acts of international law, deepening their legal and factual protection. The constitutional context of the document is already mentioned in the justification of the Local Government Charter of Family Rights in the version proposed by the signatories. The council's competence to adopt it is derived indirectly from the need to protect and strengthen rights guaranteed by the Polish Basic Law: “the objective of the proposed resolution is to implement the «principle of subsidiarity, confirmed by the legislator in the preamble to the Constitution of the Republic of Poland, which strengthens the rights of citizens and their communities» by strengthening the family as a basic social community and ensuring its protection against the influence of ideologies undermining its autonomy and identity. The Constitution, in Article 18, requires that the public authorities should give special protection and care to the family, marriage as a union of a man and woman, parenthood and motherhood. The Basic Law [in Article 71(1)] also imposes an obligation on public authorities to be guided by the welfare of the family in their social and economic policies”.
The judgement of the Constitutional Tribunal of 18 May 2005 is also of considerable importance here (ref. K 16/04). The Constitutional Tribunal confirmed that “Article 18 is an expression of the same axiology that inspired Article 71 of the Constitution”. According to the Tribunal, that article “prescribes that the State shall take such measures that strengthen the links between persons forming a family, and in particular the links between parents and children, and between spouses”.
The justification of the Local Government Charter of Family Rights states that “the principle of subsidiarity with regard to the family is also specified in Article 47 of the Constitution, which guarantees legal protection of family life, and Article 48(1), which confirms the right of parents to raise their children in accordance with their own convictions. Article 72(1) of the Constitution establishes a systemic principle of the welfare of the child, and confirms that anyone can demand from public authorities the protection of the child from demoralisation”. Thus, when adopting a draft resolution, the legislative body (the council or the parliament) plays a dual role – both as one of the public authorities which, under the Constitution itself, should take action to protect the child from demoralisation upon request, and as an entity demanding maximum protection of the child from others.
“The suggestions put forward by LGBT activists, who had previously presented false facts to MEPs and contributed to the adoption of a resolution containing false statements, must be decisively rejected. The pro-family actions proposed by the Local Government Charter of Family Rights affirm the values protected by the Constitution of the Republic of Poland and cannot be the basis for taking EU funds away from local governments”, emphasised Nikodem Bernaciak from the Ordo Iuris Centre for Legal Studies.
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