Europe of Human Rights

For more than two weeks Poland has been the formal leader of the EU. The goals of the presidency, as presented by the Prime Minister Donald Tusk in his address to the European Parliament on 6 July 2011, focus on European integration and the creation of a European safe heaven. Is this possible without full respect for fundamental rights? Definitely not, as it was highlighted during the parliamentary session.

While so enthusiastic about human rights and the European integration, Poland, together with the United Kingdom secured in the negotiations leading up to the signing to the Lisbon Treaty a protocol relating to the application of the Charter of Fundamental Rights (Protocol No 30).

The protocol contains two substantial provisions. Article 1(1)—precludes both the domestic courts in Poland and the UK, and the EU’s courts from finding that “laws, regulations or administrative provisions, practices or action” in the countries to which it applies are inconsistent with the Charter. Article 1(2)—says that the Title IV of the Charter, which contains economic and social rights, does not create justiciable rights.

Just to recall the reasons for the opt-out: Poland’s conservative Kaczyński brother’s government disliked the Charter for its supposed liberalism on moral issues (they feared it would give the possibility to conclude same sex marriages).

Some voices from the academia stated that the Protocol has no legal force, since countries are still bound by art. 6 of the Treaty on the European Union, according to which fundamental rights constitute general principles of the Union’s law. Similar opinion was voiced by the Court of Justice in judgments that confirmed the Charter’s binding force (e.g. the case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG).

In 2007 the Civic Platform, before the parliamentary elections, declared their support to step out from the Polish-British Protocol. The same declaration was given by the Prime Minister Donald Tusk in an interview for Gazeta Wyborcza in March this year. He stated that “a modern European country should be not only efficient. It should also be a sphere of freedoms. Therefore, Poland needs a quick ratification of the European Charter of the Fundamental Rights”.

The question of the Polish-British Protocol is coming back as a boomerang in the Polish media. The pre-election period combined with the Polish Presidency, which brings European issues to the public’s attention, could be a good moment for introducing changes.

Dropping the Polish-British Protocol would be possible through a simple change of the Treaty. However, it may prove difficult to get the consent of the entire European community. Nevertheless, it could be a symbolic step, which would be of vital importance in the current integration crisis.

The upcoming signing of the Croatia Accession Treaty may be a good opportunity for Poland to drop the Protocol without the need to mobilize the entire EU solely for that purpose. Neither Croatia, nor any other member state could oppose that, since dropping the protocol would confirm the ability of the Court of Justice of EU to review the conformity of laws with fundamental rights, which it already does, and consequently underscore Polish attachment to the European values of human rights protection. On the other hand, there is little time left as the negotiations are almost completed and little hope that Polish authorities will manage to bring the opt-out to the agenda. For another similar opportunity Poland may have to wait a while, since the accession negotiations with Serbia will require some time.

Dominika Bychawska-Siniarska and Zuzanna Warso, “Europe of Human Rights”

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