Marcin Górski, Application of EU Law on Equal Treatment in Poland. État de choses in 2020 in:

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Marcin Górski* Application of EU Law on Equal Treatment in Poland. État de choses in 2020 Abstract After more than sixteen years of Poland’s membership in the EU, Polish equality law is far from the principle of effectiveness. The institutional setting is weak and the case-law is mostly disappointing. Within the last five years, state authorities have ma‐ de significant efforts to deprive anti-discrimination instruments of practical effect – which was infamously demonstrated by e.g. the so-called “LGBT-free zones”. This article explores major areas of equality law in Poland (e.g. the Labour Code, penal law, and administrative law) in order to analyse the case-law and the functioning of the institutional mechanisms. The conclusion is that in practice Polish law does not assure full implementation of EU equality law. Keywords: discrimination, implementation, EU law, Poland, equal treatment Introduction Poland acceded to the EU on 1 May 2004 and with the accession, the application of the principles of direct effect and primacy of EU law.1 In addition, since 1993 Poland has been a party to the European Convention on Human Rights (ECHR); the EU Charter of Fundamental Rights (EU Charter) has been a binding source of law in Po‐ land since 1 December 2009.2 EU anti-discrimination law is a complex body of normative acts, encompassing both primary3 and secondary4 law. Whereas the acquis communautaire features in‐ I. * Marcin Górski, Ph.D. in law, Dr. habil., assistant professor of the Department of European Constitutional Law, University of Łódź, Poland. Attorney, member of the Human Rights Committee of the National Bar of Attorneys. 1 See e.g. judgment of the Constitutional Court of 16 November 2011, case SK 45/09. 2 See e.g. judgment of the CJEU, C-585/18, C-624/18 and C-625/18, A.K. and others, ECLI:EU:C:2019:982, para. 85. 3 See e.g. Articles 21 and 23 EU Charter, Article 2 TEU or Articles 10, 18, 19, and 157 TFEU. 4 Among others, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treat‐ ment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, p. 22; Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, OJ L 180, 15.7.2010, p. 1; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373, 21.12.2004, p. 37; Directive 2006/54/EC of the European Parlia‐ OER 4/2020, DOI: 10.5771/0030-6444-2020-4-483 struments which directly combat discrimination, other instances of primary and se‐ condary legislation include anti-discrimination provisions, for example the EU Char‐ ter5 and the GDPR.6 Polish anti-discrimination law (including legislation transposing EU directives) can be divided into following groups: i) Labour Code and related instruments, ii) law relating to the provisions of services and other activities, and iii) other sources of antidiscrimination law sensu largo. A separate reflection should be made in reference to institutional protection against discrimination. Labour Code and related instruments Since 1 January 2002, the Labour Code of 1974 (Kodeks pracy) contains Chapter IIa on “Equal treatment in employment”. Alongside Articles 112 (principle of equal treat‐ ment of employees) and 113 (prohibition of discrimination) of the Labour Code, Chapter IIa has been designed to assure implementation of EU anti-discrimination di‐ rectives. Significant problems arise, though, when it comes to assuring their full and practical effectiveness in court. Some of these problems will be addressed below. II. ment and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupa‐ tion (recast), OJ L 204, 26.7.2006, p. 23; Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers, OJ L 128, 30.4.2014, p. 8. 5 Article 7 of Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Develop‐ ment Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (“Common Provisions Regulation” or “CPR”), OJ L 347, 20.12.2013, p. 320, provides that “The Member States and the Commission shall take appropriate steps to prevent any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation during the preparation and implementation of programmes. In particular, accessibility for persons with disabilities shall be taken into account throughout the preparation and implementation of programmes.”. 6 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1; For example, the GDPR provision on automated individual decision making (Article 22 GDPR) serves the aim of protecting data subjects, among others, from discriminative results of such processing. See also: A. Datta/M. C. Tschantz/A. Datta, Automated Experiments on Ad Privacy Settings. A Tale of Opacity, Choice, and Discrimination, Proceedings on Privacy Enhancing Technologies 1|2015, pp. 92– 112. 484 Marcin Górski Effective sanction Sanctions applied to discriminating employer or service provider must be effective, proportionate and dissuasive.7 They must assure effective and real protection for per‐ sons affected by discrimination.8 Article 183 d of the Labour Code provides that “a person against whom the em‐ ployer violated the principle of equal treatment in employment has a right to compen‐ sation of damage amounting to no less than the minimum salary established pursuant to relevant provisions”.9 The case-law rather unstably interprets the notion of “com‐ pensation of damage” referred to in the said provision because Polish legal language distinguishes between “compensation of material damage” (odszkodowanie) and “compensation of immaterial damage” (zadośćuczynienie). In consequence, some decisions link that institution essentially to material damages, while accepting its compensatory function for immaterial damages only in cases of transparent inade‐ quacy10 and stressing that the principal function of that compensation is to recover material damages.11 In this respect, it is interesting to note that in the past also the German case-law apparently encountered similar interpretative problems.12 Other de‐ cisions perceived that notion as relating predominantly to immaterial damages view‐ ing the compensation referred to in Article 183 d of the Labour Code as the sanction for very infringement of the principle of equal treatment, impacted by the type and intensity of discriminatory behaviour and not by the material damage as such.13 1. 7 See e.g. Article 17 of Directive 2000/78. 8 See e.g. CJEU, C-81/12 Asociaţia ACCEPT ECLI:EU:C:2013:275 and the case-law referred to therein. 9 In 2020 the minimum monthly salary in Poland is 2600 PLN (approx. 590 EUR). 10 See, to that effect, judgments of the Supreme Court of 22 February 2007, case I PK 242/06 and of 7 January 2009, case III PK 43/08. See also comments on the latter ruling and discussion on of views presented in the Supreme Court’s case-law in Ł. Nosarzewski, Glosa do wyroku SN z 7.01.2009 r., III PK 43/08, Ius Novum 3|2001, pp. 162–168, and in D. Leszczyńska, Glosa do wyroku SN z 7.01.2009 r., III PK 43/08, Monitor Prawa Pracy 8|2011, pp. 443–445. The same position was taken by the Supreme Court in its judgment of 6 June 2012, case III PK 81/11, where it was held that the compensation “should be effective, proportionate and deterring. Therefore it should compensate the damage incurred by the employee, there should be an adequate balance between the compensation and the infringe‐ ment of the equality principle by the employer and the compensation should serve preventi‐ ve goals. While establishing its amount one should consider circumstances relating to either of the parties to a work relation, in particular when it comes to immaterial damages”. See also judgment of the Regional Court in Szczecin of 21 March 2014 r., case VI Pa 83/13. 11 See, judgment of the Supreme Court of 10 July 2014, case II PK 256/13. 12 One should note that also the German case-law in the past encountered difficulties while applying the principle of effective sanction for violation of the principle of non-discrimina‐ tion, see: A. Wróbel, Sądy – team czy chór solistów?, Europejski Przegląd Sądowy 3|2006, p. 4. 13 To that end see judgment of the Supreme Court of 3 April 2008, case II PK 286/07. See also: M. Wieczorek/K. Bogatko/A. Szczerba-Zawada, Stosowanie przepisów antydyskryminacy‐ jnych z zakresu prawa pracy – wyniki monitoringu, in: M. Wieczorek/K. Bogatko (eds), Prawo antydyskryminacyjne w praktyce polskich sądów powszechnych. Raport z monitorin‐ gu, Warsaw 2013, p. 40. See also judgment of the District Court in Legnica of 24 September 2013, case IV P 67/13. Application of EU Law on Equal Treatment in Poland. État de choses in 2020 485 Burden of proof Pursuant to Article 183 b § 1 of the Labour Code, unequal treatment is illegal unless the employer proves that objective reasons existed for such treatment. This provision transposes rules on shifting the burden of proof which are rooted in EU anti-discrimi‐ nation directives.14 Against this background it appears somewhat surprising that Polish case-law ma‐ naged to develop another requirement which must be met for the successful claim of an employee. Whereas under the relevant EU directives, the claimant (i.e. the em‐ ployee) is only to “establish facts from which it may be presumed that there has been direct or indirect discrimination”,15 Polish case-law provides that the claimant must “present facts which substantiate (uprawdopodbniają) the existence of discrimi‐ nation and the criterion which was likely to cause unjustified unequal treatment of employees”.16 Expecting the claimant to “present facts which substantiate the criteri‐ on” of discrimination is therefore clearly beyond the mechanism designed in these in‐ struments. Discrimination by association (assumption) Discrimination by association describes unjustified unequal treatment which results from the relevant characteristics which are not possessed by the person concerned, but such person is nevertheless subject to discrimination because of these features (e.g. where an employer makes derogatory comments about an employee’s disabled child).17 Discrimination by assumption is a similar phenomenon but occurs when an employer assumes that the discriminated employee actually possess the relevant cha‐ racteristic, without however really verifying if it is so. As the CJEU held in Cole‐ man, “the principle of equal treatment enshrined in the directive [2000/78] in that area applies not to a particular category of person but by reference to the grounds mentio‐ ned in Article 1”.18 Thus it is irrelevant whether the person concerned actually repres‐ ents the relevant characteristic, but rather whether it forms the basis for the discrimi‐ nation. To date there has been one successful case in Poland concerning discrimination by assumption, in which a person whose employment contract was terminated due to that person’s sexual orientation.19 The case was litigated under the civil law provisions.20 2. 3. 14 e.g. Article 10 of Directive 2000/78, Article 9 of Directive 2004/113, Article 19 of Directive 2006/54. 15 See e.g. Article 10 of Directive 2000/78. 16 See e.g. judgment of the Supreme Court of 7 November 2018, case II PK 229/17 and the case-law referred to therein. 17 Such as in CJEU, C-303/06, Coleman ECLI:EU:C:2008:415. 18 ibid., para. 38. See also ECtHR judgment of 31 March 2009, Weller v. Hungary, appl. No. 44339/05. 19 Judgment of the Disrtrict Court for Warsaw-Śródmieście of 9 July 2014, case VI C 402/13, appellate judgment of the Regional Court in Warsaw of 18 November 2015, case V Ca 3611/14. 20 See Section III. 486 Marcin Górski However, in the field of labour law there has been one case concerning discrimination by assumption (or association) on grounds of political views, decided favourably to the claimant by the first instance court and later dismissed in the entirety by the appel‐ late court; cassation proceedings are still pending. In the latter case the appellate court did not even refer to the issue of discrimination by association (assumption) even though the claimant argued, firstly, that she was demoted in the governmental institu‐ tion solely due to the fact that she had been employed as one of the executive direc‐ tors during the term of the previous government, and secondly, that all other executive directors, appointed by the former government’s nominee, were demoted at the same time.21 Interpretation of the notion of a characteristic that constitutes a “genuine and determining occupational requirement” (Article 4 of Directive 2000/78) Article 4(1) of Directive 2000/78 provides that “Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the na‐ ture of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupatio‐ nal requirement, provided that the objective is legitimate and the requirement is pro‐ portionate”. The notion of “genuine and determining occupational requirements” has already been subject to several preliminary rulings of the CJEU22 and should be un‐ derstood as referring to a “requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations”.23 It seems therefore hard to accept the view adopted by the Polish Supreme Court that it was not discriminative and remained within the limits of application of Article 4(1) of Directive 2000/78 providing for the exception of “genuine and determining occupational requirements” to dismiss an assistant prosecutor (asesor prokuratury) due to physical inability because she was using a wheelchair whilst being an assistant prosecutor, which necessarily requires performing functions also outside of the premi‐ ses of the prosecution office.24 The Supreme Court failed to consider recital 16 of the Directive (“the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability”) and noticeably failed to consider a more “inclusive interpretation” as rightly and critically pointed out by some prominent scholars.25 Unfortunately, this 4. 21 Judgment of the Regional Court in Łódź of 2 April 2020, case VIII Pa 212/19 and preceding judgment of the District Court for Łódź-Śródmieście of 6 September 2019, case X P 294/19. 22 See e.g. judgments of the CJEU, C-396/18, Gennaro Cafaro, ECLI:EU:C:2019:929; C-188/15, Asma Bougnaoui, ECLI:EU:C:2017:204; or C-258/15, Gorka Salaberria Soron‐ do, ECLI:EU:C:2016:873. 23 See: judgment of the CJEU, C-188/15, Asma Bougnaoui, ibid., para. 40. 24 Judgment of the Supreme Court of 12 April 2012, case II PK 218/11. 25 See: E. Łętowska, Ja wykluczam, on wykluczony, my przegrani, Europejski Przegląd Sądowy 9|2012, p. 58 and subsequent; also K. Kędziora/K. Śmiszek, Problematyczne zagadnienia w stosowaniu prawa antydyskryminacyjnego w Polsce, http://ptpa.org.pl/site/assets/files/1028/ Application of EU Law on Equal Treatment in Poland. État de choses in 2020 487 judgment established the interpretative standard regarding Article 4 of Directive 2000/78 and contaminated the future judicial practice in this area.26 Law relating to the provision of services and other activities The predominant issue regarding the Law of 3 December 2010 on the implementation of certain provisions of the European Union in the field of equal treatment27 (hereaf‐ ter referred to as “ETL”) is that it was in fact an “unwanted child” of the Polish legis‐ lature. Examples of evidence of this opinion include the long delay in its adoption, which ultimately resulted in the ruling of the CJEU declaring that Poland failed to ad‐ opt the laws, regulations and administrative provisions necessary to comply with Di‐ rective 2004/113,28 and an awkward title uncommon to the Polish legislative traditi‐ on29 – the clear intention of the government seemed to be to highlight that ETL was enacted exclusively because of the requirements stemming from EU membership and otherwise no such law would have been adopted. In addition, the way ETL is formu‐ lated, from the technical-legislative point of view, cannot be described other than sim‐ ply appalling. For instance, Article 3 ETL defines “unequal treatment” as a treatment that constitutes, inter alia, indirect or direct discrimination, whereas the latter is de‐ fined as “a situation where a natural person is treated less favourably because of his or her sex, race, ethnic origin, nationality, religion, belief, worldview, disability, age or sexual orientation, than another person is, was, or could be treated in comparable si‐ tuation”. At the same time, Article 6 ETL provides that “unequal treatment of natural persons because of their sex, race, ethnic origin, or nationality is prohibited in relation to access to and conditions of making use of social insurance, services, including hou‐ sing services, goods and acquiring rights or energy, when they are publicly offered”. It appears that certain grounds of discrimination, included in the normative definition of “unequal treatment”, are suddenly and inexplicably missing in the “operative part” of the ETL. And this is just one of many examples of extremely poor legislative tech‐ nique of the ETL. However, the application of the ETL in practice is even more disheartening. In spite of being in force for almost a decade, the ETL has been applied only on several occasions to date, and – even more rarely – with a successful outcome for the clai‐ mant.30 Either Poland is such an ideal state and society where discrimination does not occur, or the ETL is inoperative in practice. Scepticism forces an acceptance of the III. opinia_roza_problematyczne_ zagadnienia_w_stosowaniu_prawa_antydykryminacyjnego_ w_polsce.pdf, pp. 2–8, 5.11.2020. 26 See e.g. judgment of the Supreme Court of 7 December 2017, case I PK 334/16 where the Supreme Court accepted the dismissal of a fiscal officer who could not, due to physical conditions, work in front of the computer screen for more than four hours per day. 27 Journal of Laws of 2016, item 1219, consolidated. 28 CJEU, C-326/09, Commission v Poland, ECLI:EU:C:2011:155. 29 It is the only statute in force at the moment whose title includes the phrase “on the imple‐ mentation of certain provisions of the European Union”. 30 See: K. Kędziora/K. Śmiszek (eds.), Ustawa o wdrożeniu niektórych przepisów Unii Euro‐ pejskiej w zakresie równego traktowania. Komentarz, Warsaw 2017, note 12 to Article 13 ETL. 488 Marcin Górski latter option. Nonetheless, a rare example and a beacon of light can be seen in the judgment of the District Court in Toruń in which the court held that requiring a candi‐ date for a privately-owned catholic school to provide a positive opinion from his pa‐ rish priest is irreconcilable with the ETL.31 (Some) other sources of anti-discrimination law largo sensu Penal Code The 1997 Penal Code in Poland (Kodeks Karny; hereafter: “PC”) only partially serves the aim of providing effective sanctions for violations of the equal treatment principle and in the last five years it has been if fact employed at least on several occasions to strangle that principle. First of all, provisions of the PC do not recognize certain grounds of discriminati‐ on as deserving legal protection. Article 119 PC penalizes the use of violence or unla‐ wful threat against a group of persons or an individual person because of his/her fea‐ tures regarding nationality, ethnicity, race or political views or denomination or lack thereof; no reference is made to features such as gender, age, sexual orientation or identity. Article 256 PC criminalizes the propagation of fascist or other totalitarian re‐ gime or instigating to hatred on grounds of national, ethnic, racial or denominational or non-denominational differences; again, a reference to features such as gender, age, sexual orientation or identity is lacking. Finally, it is a crime under Article 257 PC to publicly insult a group of persons or an individual person or infringe inviolability of the latter because of his/her features regarding nationality, ethnicity, race or political views or denomination or lack thereof. And again, no reference is made to features such as gender, age or sexual orientation or identity. Secondly, the case-law reveals rather poor picture of interpretation of these – alre‐ ady somewhat disappointing – provisions. For instance, when anti-fascist activists tried to stop the evidently anti-democratic manifestation of nationalists on 15 August 2017,32 they were accused by the police of “attempting to impede a non-forbidden pu‐ blic gathering” which was a petty crime (misdemeanour) stipulated in Article 52 § 2 (1) of the 1971 Code of Petty Offences. Although acquitted by the court,33 the chilling effect intended by the police was accomplished. Another example concerns a motion filed with the public prosecutor concerning the suspicion of a crime stipulated in Arti‐ cle 257 PC allegedly committed by the – then – Member of Parliament Ms. Krystyna Pawłowicz (who, somewhat ironically, serves since 2019 as judge of the Constitutio‐ nal Court) who declared publicly that atheists “have lefty, blasphemous views” which they represent “with ridiculous spectacle”. The public prosecutor simply refused to in‐ vestigate. IV. 1. 31 Judgment of the District Court in Toruń of 6 August 2019, case I C 469/18. 32 Nationalists raised slogans such as “ban on pedalling” (a “pedal” is a degrading reference to a homosexual male), “death to victims of the Homeland”, “either Poland is white or unpeo‐ pled” etc. 33 Judgment of the Disctrict Court for Warsaw-Śródmieście of 5 March 2019, case XI W 717/18. Application of EU Law on Equal Treatment in Poland. État de choses in 2020 489 Code of Petty Offences The 1971 Code of Petty Offences (hereinafter referred to as CPO) provides in its Ar‐ ticle 138, that “who, in professional services, requests and retrieves for the provision a payment of the excess of that being in force or intentionally and without reasonable cause refuses to provide the service which he is required to provide, is punishable by a fine”. That provision was the legal basis for convicting, without however imposing a fine, a printer who refused to print a poster ordered by a LGBT34 foundation. The poster was to include a logo of the foundation “LGBT Business Forum” (a rainbowcoloured stylised hexagon and the name), e-mail address and Facebook address of the foundation. There were no other elements of the content (such as any other texts, pic‐ tures or photos). The printer refused to provide the service on the grounds that he did not want to provide services supporting LGBT movement, due to religious concerns. Courts of two instances found the defendant guilty35 and the Supreme Court dismis‐ sed the cassation complaint of the Prosecutor General.36 The defendant was defended pro-bono by the lawyers of the extremist foundation “Ordo Iuris”. Politicians from the government, notably the Minister of Justice (being at the same time the Prosecutor General) vividly and publicly criticised the courts for their rulings. The Prosecutor General, apparently discontented with the rulings of common courts in the aforementioned “printer’s case”, applied on 22 December 2017 to the Constitutional Court (politically controlled by the parliamentary majority) for the ru‐ ling on unconstitutionality of Article 138 CPO (as allegedly compromising, among others, Article 2 of the 1997 Constitution – the principle of the rule of law) to the extent that it penalised the refusal to provide services without justified cause.37 On 26th June 2019, the Constitutional Court held the provision unconstitutional to the said extent which means that – as matters stand – it is no longer a petty offence to refuse the provision of services for e.g. homophobic or transphobic reasons.38 The Constitutional Court held that “it is hard to accept that penalisation of the refusal to provide services without justified cause satisfies the social understanding of justice” and that it “does not accomplish the aim of general prevention” due to “low social awareness” of the disputed provision and relatively mild sanctions imposed on its ba‐ sis. The Constitutional Court also added that “compensation of the violation of digni‐ ty or personal interests can be litigated in civil proceedings under the [Civil Code] or under the [ETL]” and “it is not indispensable in this case to establish discrimination in the proceedings on petty offences or criminal proceedings”. Interestingly, the Con‐ stitutional Court mentioned also that “one cannot accept the view of some members of the legal scholarship and the Ombudsman that ineffectiveness of anti-discriminati‐ on provisions of other legal acts than the Code on Petty Offences can be cured by 2. 34 Lesbian, gay, bisexual and transgender. 35 Judgment of the District Court for Łódź-Widzew of 31 March 2017, case VII W 1640/16, appellate judgment of the Regional Court in Łódź of 26 May 2017, case V Ka 557/17. 36 Order of the Supreme Court of 14 June 2018, case II KK 333/17. 37 Motion of the Prosecutor General of 22 December 2017, case K 16/17. 38 Judgment of the Constitutional Court of 26 June 2019, case K 16/17, available (in Polish) at: https://ipo.trybunal.gov.pl/ipo/view/sprawa.xhtml?&pokaz=dokumenty&sygnatura=K%20 16/17, 5.11.2020. 490 Marcin Górski maintaining the legal force of Article 138 of the Code on Petty Offences”. One should note that the Constitutional Court in a way confirmed that Polish anti-discrimination law suffers from ineffectiveness which in fact has been deepened by its judgment in June 2019. Administrative law The problem of “LGBT-free zones” The councils of some communes, powiaty (“counties”) and województwa (“regions”) in Poland adopted different types of resolutions, officially lacking legal force, decla‐ ring their territories “LGBT-free zones” or declaring their support for the so-called policy of promoting “traditional family models” (a “smoother” version of “LGBT-free zones” declarations). Despite the constitutional principles39 and international obligation binding upon all state authorities,40 the rationale behind these acts was purely homophobic, as is reflected by the records of meetings which adopted them. The Ombudsman41 applied to the administrative courts for judicial review of these resolutions; the Prosecutor General as well as the extremist right-wing foundation “Ordo Iuris”42 intervened in the proceedings in favour of the organs of self-government. Administrative courts, confronted with the “harder” versions of resolutions (declaring communes “LGBTfree zones”) either declared them null and void43 or dismissed the Ombudsman’s app‐ lication as inadmissible.44 The contentious issue was whether the declarations in ques‐ tion were actually susceptible to judicial review (i.e. belonging to the jurisdiction ra‐ tione materiae of administrative courts) or were not, which depended on establishing whether they constituted acts of local law or acts of organs of local self-government adopted in matters of public administration, other than acts of local law. The positive answer to that question resulted in finding that the review of these resolutions fell within the courts’ competence. Whether administrative courts will annul these resolutions shall be decisive for determining whether administrative law is actually able to protect LGBT persons from institutional discrimination and ghettoisation. 3. a) 39 See e.g. Article 32 of the 1997 Constitution reading that “all persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities” and that “no one shall be discriminated against in political, social or economic life for any reason whatsoever” and Article 7 of the 1997 Constitution providing that “the organs of public authority shall function on the basis of, and within the limits of, the law”. 40 Including the ECtHR and EU law. 41 Acting pursuant to Article 14 (6) of the1987 Law on the Ombudsman. 42 “Ordo Iuris” drafted the “model” resolutions and intervenes in different types of legal proceedings against equality. 43 Judgment of the Regional Administrative Court in Gliwice of 14 July 2020, case III SA/Gl 15/20; judgment of the Regional Administrative Court in Warsaw of 15 July 2020, case VIII SA/Wa 42/20. 44 Order of the Regional Administrative Court in Cracow of 23 June 2020, case III SA/Kr 105/20. Application of EU Law on Equal Treatment in Poland. État de choses in 2020 491 It is interesting to note, while drawing the picture of the actual implementation of the EU equal treatment law in Poland, that after the EU Equality Commissioner Ms. Helena Dalli informed that “six town twinning applications [for EU funds] involving Polish authorities that adopted ‘LGBTI free zones’ or ‘family rights’ resolutions were rejected”45 because of their irreconcilability with the EU non-discrimination principle, Poland’s Minister of Justice immediately informed that all these towns shall receive additional funds from the so-called “Justice Fund”, designed to transfer to victims of crimes the funds from punitive damages ordered in penal proceedings. This situation can certainly be treated as a distinctive feature of the government’s policy vis-à-vis the equality principle. Other areas of administrative law. The Example of the 1993 Law on Radio and Television Broadcasting Article 18 § 1 and 2 of the Law of 1993 on Radio and Television Broadcasting provi‐ de that broadcasted materials must not propagate illegal activities or those which are against raison d'état or attitudes or views incompatible with morality and social good, in particular they must not contain contents which incite hatred or discriminate on grounds of race, disability, gender, religion or nationality; also they must respect the religious views of the audience, in particular the Christian system of values. In spite of these requirements, a member of the general public is regularly expo‐ sed to the broadcast of sexist, homophobic, anti-Semitic or xenophobic contents, in particular while watching or listening to the broadcasts of the so-called “public me‐ dia” in Poland. For instance, on 13 June 2020, the main “public television” news ser‐ vice informed “LGBT ideology destroys families”46 and two days later the same news service informed that “should the opposition rule 200 billion [PLN] designed to help Polish families could be designed instead to satisfy Jewish claims”.47 These two quo‐ tations represent thousands of others characterised by the same “sophisticated” propa‐ ganda flavour. Against the background of this deplorable practice, the position of courts, review‐ ing the legality of decisions of the Polish regulatory body (National Council of Radio and Television Broadcasting) regarding the interpretation of the said Article 18, is va‐ gue and ambiguous. On the one hand, we can indicate views that “authors of broad‐ casted materials have a right to their own assessment of religions, in particular to pre‐ sent their views that religious practices are irrational, unreasonable and that being a non-believer is a sign of wisdom. Such statements are not offensive or lacking respect to religious views of the audience”.48 On the other hand though, one can point out on b) 45 See https://www.euronews.com/2020/07/29/eu-funding-withheld-from-six-polish-towns-ov er-lgbtq-free-zones, 5.11.2020. 46 See https://wiadomosci.tvp.pl/48517734/ideologia-lgbt-niszczy-rodzine, 19.9. 2020. 47 See https://oko.press/od-homofobii-do-antysemityzmu-propaganda-na-rzecz-dudy/, 19.9. 2020. 48 Judgment of the Court of Appeal in Warsaw of 2 September 2015, case VI ACa 1312/14. For the ECHR standard, see judgment of the ECtHR of 30 January 2018, Sekmadienis Ltd. v. Lithuania, appl. No. 69312/14 and the case-law referred to therein. 492 Marcin Górski the reasoning that “parodying the voice of an announcer [of the catholic television] accompanied by comments [...] offended the beliefs of catholic viewers and they have been the expression of mockery and disparaging treatment of a prayer”.49 It seems challenging to accept in these circumstances that courts may be said to have taken an unequivocally principled position concerning equal treatment in the field presented here, even though Article 30 of Directive 2010/1350 provides that Member States are bound to assure that “national regulatory authorities or bodies ex‐ ercise their powers impartially and transparently and in accordance with the objec‐ tives of this Directive, in particular media pluralism, cultural and linguistic diversity, [...] non-discrimination [...]”.51 Institutional protection EU anti-discrimination requires the Member States to establish bodies responsible for providing independent research on discrimination, publishing independent reports and recommendations on discrimination, as well as providing independent legal aid to persons who experienced discrimination.52 It is not explicitly stated that these bodies must be independent, moreover, EU directives allow the Member States to include these bodies into the mechanisms of already existing bodies responsible for the pro‐ tection of human rights. Nevertheless, when such bodies are established, they must meet the requirements of independence regarding their activities and – in accordance with the fundamental principle of effectiveness of EU law53 – they must perform their functions effectively. In the case of Poland, the ETL defined normatively the Governmental Agent for Equal Treatment (pełnomocnik rządu ds. równego traktowania, hereafter: “GAET”) who is appointed and dismissed by and subordinate to the Prime Minister54 and thus deprived of the valour of independence. At the same time, the Ombudsman (Rzecznik Praw Obywatelskich), a constitutionally independent body,55 has been vested with the competence to analyse, monitor and support equal treatment for all persons, to con‐ V. 49 Judgment of the Supreme Court of 14 January 2010, case III SK 15/09. 50 Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), OJ L 95, 15.4.2010, p. 1. 51 As amended by Directive 2018/1808 of 14 November 2018 amending Directive 2010/13/EU n the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities, OJ L 303, 28.11.2018, p. 69. 52 See e.g. Article 13 of Directive 2000/78, Article 11 of Directive 2010/41 or Article 20 of Directive 2006/54. 53 See, instead of many others, e.g. CJEU, C-45/76, Comet BV v Produktshap voor Siergewas‐ sen. 54 See Articles 18 and 20 ETL. 55 Pursuant to Article 210 of the 1997 Constitution of the Republic of Poland, the Ombuds‐ man “shall be independent in his activities, independent of other State organs and shall be accountable only to the Sejm in accordance with principles specified by statute”. Application of EU Law on Equal Treatment in Poland. État de choses in 2020 493 duct independent research on discrimination and to develop and publish independent reports and issue independent recommendations concerning problems related to dis‐ crimination.56 Apart from the fact that neither of these two bodies has been equipped with the competence to provide legal aid to victims of discrimination, the division of the competence results in an institutional mixture likely to cause confusion which – by definition – negatively impacts the effectiveness of the institutional requirements of the directives. However, even if the GAET is not vested with the part of competence which must necessarily be performed in independent manner, according to the EU anti-discrimi‐ nation directives, the question remains: what is its competence under the EU equal treatment law? Article 18 ETL reads that “the functions regarding the realisation of the principle of equal treatment shall be exercised by the Ombudsman and the Go‐ vernmental Agent for Equal Treatment”. It appears that the competences of the Om‐ budsman and the GAET are in fact overlapping and this seems incompatible with the directives. Finally, one should mention that recent GAETs have been politicians without any relevant or discernible theoretical or practical experience, even of homeopathic inten‐ sity, in the field of anti-discrimination law,57 whereas the Ombudsman (who is, in Au‐ gust 2020, Professor Adam Bodnar, a recognized lawyer with extensive experience in the area of anti-discrimination law and international reputation, but who is likely to be replaced by yet another ruling party’s politician in Autumn this year) has chronically suffered from insufficient budgetary resources to perform his function in the recent years. Summary. Does it work at all? This brief overview concentrates on some problematic issues regarding the interpreta‐ tion of provisions implementing the EU general principle of equal treatment.58 Howe‐ ver, the overall picture emerging from these detail-focused considerations is that the principle of equal treatment in Poland appears generally ineffective. State authorities, predominantly the government ruling since 2015, have endeavoured to deprive antidiscrimination provisions (mostly enacted in the process of implementation of EU law) of any practical significance, whereas courts were neither eager nor able to resist this process, to put it delicately. While the government is fully responsible for the practical collapse of institutional mechanisms designed to guarantee equal treatment59 (most probably also the Ombudsman will soon join other bodies politically “colonis‐ VI. 56 Article 17 b of the Law of 15 July 1987 on the Ombudsman, Journal of Laws of 2020, item 627, consolidated. 57 The recent three GAETs were Mr. Wojciech Kaczmarczyk, Mr. Adam Lipiński and Ms. Anna Schmidt-Rodziewicz. The experience of these politicians concerning anti-discrimination law remains unknown. 58 CJEU, C-144/04 Mangold, ECLI:EU:C:2005:709, para. 74. 59 It is characteristic and profoundly disappointing that public prosecutors normally and as a matter of routine intervene in all types of proceedings against claims based on the equality principle. 494 Marcin Górski ed” by the ruling party and will lose the valour of independence), most courts have also invested significant effort to weaken the interpretation of anti-discrimination clauses of Polish law. To quote just one more example as a manifestation of that pro‐ cess: the Regional Court in Zielona Góra dismissed the lawsuit of an actress who clai‐ med that she was harassed in her office on grounds of her sexual orientation – the court held that “the claimant initiated conversations on her sexual orientation”, and she “intentionally accented her sexual orientation” and that “while establishing the socalled discrimination criteria it is necessary to apply the model of a reasonable victim which will allow to eliminate from the scope of alleged discrimination these cases which result from excessive sensitivity of an employee”.60 In other words – the court expected the claimant to be reasonable and “don’t ask, don’t tell”. This process accompanies the more general crisis of the rule of law in Poland.61 And it is not surprising. As rightly pointed out by Kristin Henrard and Uladzislau Be‐ lavusau, “an effective protection against discrimination has only become more pres‐ sing during multiple ongoing crises, namely, the economic crisis, the refugee crisis, and the backsliding on the rule of law”.62 Simply, it is implausible to expect the “de‐ mocratorship” to be a regime based on the principle of equal treatment. These two do not match. 60 Judgment of the Regional Court in Zielona Góra of 14 June 2011, case IV Pa 63/11. See also K. Kędziora/K. Śmiszek, Problematyczne zagadnienia, op. cit., pp. 15–18. 61 See e.g. M. Wyrzykowski, Experiencing the Unimaginable: the Collapse of the Rule of Law in Poland, Hague Journal on the Rule of Law 11|2019, pp. 417–422, https://doi.org/10.1007/ s40803-019-00124-z, 5.11.2020. 62 K. Henrard/U. Belavusau, A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives, German Law Journal 20|2019, pp. 614–636, at 636. Application of EU Law on Equal Treatment in Poland. État de choses in 2020 495

Abstract

After more than sixteen years of Poland’s membership in the EU, Polish equality law is far from the principle of effectiveness. The institutional setting is weak and the case-law is mostly disappointing. Within the last five years, state authorities have made significant efforts to deprive anti-discrimination instruments of practical effect - which was infamously demonstrated by e.g. the so-called “LGBT-free zones”. This article explores major areas of equality law in Poland (e.g. the Labour Code, penal law, and administrative law) in order to analyse the case-law and the functioning of the institutional mechanisms. The conclusion is that in practice Polish law does not assure full implementation of EU equality law.

References

Zusammenfassung

Osteuropa Recht behandelt Gegenwartsfragen der Rechtssysteme und Rechtswissenschaft im östlichen Europa sowie deren völkerrechtliche Einbindung. Im Fokus stehen die ost-, ostmittel- und südosteuropäischen Staaten sowie der Kaukasus und Zentralasien. Die Zeitschrift dokumentiert und analysiert Gesetzgebung, Rechtsprechung und rechtswissenschaftliche Debatten in den einzelnen Staaten der Region und leistet einen Beitrag zum internationalen Rechtsvergleich. Die Zeitschrift erscheint vierteljährlich und ist peer-reviewed. Publikationssprachen sind Deutsch und Englisch. Osteuropa Recht wurde 1954 von der Deutschen Gesellschaft für Osteuropakunde e.V. gegründet.