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Ordo Iuris responds to the European Commission’s allegations, siding with the LGBT movement

Published: 20.09.2021

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• The European Commission has filed a number of charges against Poland.

• In February 2021 the EC accused the Polish government that, while respecting the autonomy of local governments that have adopted pledges to protect families from threats from ideologized LGBT movements, it may be discriminating on the grounds of sexual orientation. In doing so, the Commission continues to use the false term 'LGBT (-ideology) free zones'.

• The Polish government responded in April, but in July the Commission deemed this response insufficient and announced that it would investigate the situation in Poland to determine whether there was a risk of a serious breach by a Member State of the values of the Union. In September it warned the regional marshals they will lose EU funding for declaring opposition to "LGBT ideology".

• The current actions are a consequence of the European Union strategy "for LGBTIQ equality" that the Commission adopted in November 2020.

• Ordo Iuris Institute wishes to recall the report on the strategy and presents a comprehensive critical analysis of the European Commission's actions, to be distributed to national and EU bodies.

READ THE REPORT - LINK

“The Ordo Iuris Institute identifies the need for a precise and thorough presentation of the current legal and factual situation concerning the slander of some local governments for introducing the so-called ‘zones free of extreme leftist ideology’. Activity in this area constitutes an effective, substantive and comprehensive response to the actions of the misled European Commission,” comments Łukasz Bernaciński, Director of the Centre for Legislative Analyses.

On 16 February 2021 the European Commission addressed a letter to the Polish authorities in response to "a number of letters from NGOs and individuals complaining that in 2019 more than 90 Polish municipalities, districts and provinces adopted resolutions opposing the so-called 'LGBT ideology' or declaring that these places are a zone free of such 'ideology'". In the opinion of the authors of these letters, such resolutions constitute a violation of EU law.

In a letter of 19 April, the Polish government, through the office of the Plenipotentiary for Equal Treatment, responded to the allegations, but the Commission considered it insufficient. Subsequently, on 15 July, it announced that it would examine the situation concerning Poland with regard to Article 7 of the Treaty on European Union, concerning the Council's finding of a risk of a serious breach by a Member State of the values of the Union. On 14 September these actions were supported in a separate resolution by the European Parliament, which called on the Commission to "make full use of the tools available to it" against Poland and Hungary.

The authors of the resolution revealed their ideological motivations, calling for the imposition of an obligation on all Member States to recognise homosexual concubinages as marriage, and persons with transgender-related disorders as parents. They also expressed the view that that “EU law prevails over any type of national law, including over conflicting constitutional provisions, and that therefore, Member States cannot, invoke any constitutional ban on same-sex marriage or constitutional protection of ‘morals’ or ‘public policy’ in order to obstruct the fundamental right to free movement of persons within the EU in violation of the rights of rainbow families that move to their territory”. This amounts to a clear breach of Treaty obligations and Article 9 of the Charter of Fundamental Rights, and an attack on the pro-family declarations made by Poland in 2003 and 2007, subsequently confirmed by the Polish Parliament.

Further, on 3 September the Commission warned the marshals of the Lubelskie, Łódzkie, Małopolskie, Podkarpackie and Świętokrzyskie provinces it would suspend funding under the REACT-EU programme in respect of regional operational programmes', demanding 'any corrective action on the declarations'. Significantly, none of these provinces has established any "zone", and the Łódzkie province in particular should not be equated with the other four, as it has adopted a Local Government Charter on the Rights of Families, which does not contain any reference to the LGBT movement - but consists of positive, pro-family postulates.

The Ordo Iuris Institute has undertaken a comprehensive response to the European Commission's action to punish Poland for allegedly introducing so-called "LGBT-free zones". Earlier this year, Ordo Iuris drafted an extensive report which critically analyses the European Commission's LGBTIQ Equality Strategy for 2020-2025. The Institute is now complementing it with an analysis in which it assesses the European Union's legal options with regard to the European Commission's announced proceedings against Poland for the alleged existence of the so-called "LGBT-free zones". It also provides substantive answers to all 4 of the 12 questions posed by the European Commission, which can be answered without having detailed statistical data to which only public administrations have access.

The European Commission's current action follows its adoption in November 2020 of the first European Union strategy "for LGBTIQ equality". Previously, the Commission had not adopted a stance on such issues, confirmed by a document of similar stature. Although the Strategy adopted by the Commission is not binding, it sets out the Commission's policy direction and has interpretative value in the interpretation of existing legislation. The Strategy contains attempts to introduce new notions and categories of rights that are not supported by existing standards and for which there is no consensus among EU Member States. These attempts are also an expression of unauthorised attempts to go beyond the competences granted to the Union in the Treaties and the principles of proportionality and subsidiarity, and they strike directly at the Polish constitutional order. Significantly, the Commission's document reproduces false information disseminated in the public domain by radical activists concerning the alleged existence of "LGBT-free zones" in Europe.

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