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EU-Poland: Opt-out Protocol to the Charter of Fundamental Rights

28 March 2012

On 13 December Poland signed the Treaty of Lisbon and the Charter of Fundamental Rights together with an opting-out protocol. The protocol excludes jurisdiction of the European Court of Justice and Polish courts with regard to the Charter, thus making its provisions unenforceable and denying their direct applicability under Polish law.

Prime Minister Donald Tusk agreed to sign a so-called "British protocol" as a result of a compromise between two main political parties: Law and Justice and Civic Platform. This decision provoked many controversies and heated up pubic debate. Polish Ombudsman, Jan Kochanowski criticized this political compromise in his calling to organize public referendum for the ratification of the Treaty.

The initiative to opt out from the Charter of Fundamental Rights came from the previous government of Jaroslaw Kaczynski and his party Law and Justice. This position was a continuation of ultra-conservative doctrine promoted by the Kaczynskis and their then allies on the far right of the political landscape. Officially acknowledged motivation to do so was the fear that the European Union could impose its 'moral standards' on the Polish law.

The main concern raised by Law and Justice was the scope of the principle of non-discrimination with regard to sexual minorities and relationships between homosexual partners (art. 9 and 21 of the Charter). Law and Justice argued that broadly formulated principle of non-discrimination together with the lack of definition of marriage in the EU law could enable homosexual partners' claims to equal access to adoption, institutionalization of relationships, social and economic benefits (e.g. tax relief). Kaczynski and his party openly deny the right to equal treatment for homosexual couples in these areas.

Another 'controversy' voiced by Law and Justice was a potential impact of the right to privacy, as provided for in the Charter, on women's freedom to decide about their sexual health and family planning. Politicians feared that women might be able to rely on this right to claim not only free access to contraceptives or prenatal testing but also unlimited right to abortion. Such interpretation would be inconsistent with Polish law that severely limits access to abortion. Law and Justice were clearly not prepared to take any risks of interpretative battles in matters of 'strategic' importance for their political crusades.

To win more public support for signing the protocol, one more 'emotional' argument was played out. The former chief of Polish diplomacy Anna Fotyga and other voices within Law and Justice argued that provisions of the Charter could serve as legal grounding for German citizens' claims to land in the Western areas of Poland. In their most feared interpretation of the Charter, the European Court of Justice could use its provisions to enforce German claims directly against Polish citizens and lead to revindication of the land. However this argument would not stand up to reasonable legal analysis, it fitted neatly into the strategy of fueling popular fears and playing out traditional antagonisms.

Despite his outright victory in recent elections, Donald Tusk in his capacity of the Prime Minster decided to uphold the position of the former government with regard to the Charter. Tusk explained this decision as a necessary political compromise: the position of Kaczynski's Law and Justice in the Parliament remains strong enough to jeopardize the process of ratification of the Treaty of Lisbon (Polish Constitution requires 2/3 of votes for the ratification). Indeed, it seems more than likely that Law and Justice would object the ratification if the Treaty had been signed without the British protocol.

At the same time, Tusk and the majority in Civic Platform acknowledge that opting out from the Charter of Fundamental Rights is a backward step in terms of both European integration and making civil rights and freedoms more effective. During the meetings in Brussels at the beginning of December, Tusk reassured that he would not give up in fighting for the adoption of the Charter. Prime Minister hoped that the Charter would be adopted without any reservations at a later stage once all doubts are clarified in the public debate.

This tension between conservative and liberal forces and the climate of political blackmail created by Law and Justice was reflected in recent parliamentary debates. On 20 December 2007, the lower chamber of the Parliament (Sejm) approved the signing of the Treaty together with the protocol. However, this resolution included an important statement that "Sejm of the Republic of Poland, acknowledging positive impact and importance of the Charter of Fundamental Rights for citizens hopes that it will be possible for Poland to withdraw from the British protocol".

This move clearly shows that Donald Tusk and current parliamentary majority are ready to take more liberal path. Unsurprisingly, it was met with outright criticism on the part of Law and Justice. In the heated debate before the voting, the opponents resorted to suggestions that such wording of the resolution may have an impact on the ratification process, obviously a negative one. Critical voices also warned that the protocol does not provide for the possibility of opting out by the means of a unilateral act. Undoubtedly, it is now for the Polish government to consider how, in practice, Poland could withdraw from its reservations after the ratification, assuming that the Treaty and the Charter will have to be ratified together with the protocol in its present shape.

Warsaw correspondent