Insight: “Towards rule of law conditionality in the management of EU funds: LGBTI free zones not eligible for town twinning funding” by Dolores Utrilla
In the midst of ongoing discussions about the rule of law backsliding in Poland and Hungary and on the appropriateness of fostering respect for democracy and the rule of law through reinforced conditionality for the disbursement of European funds, last week the European Commission decided to reject the applications for funding under the twinning programme of the Europe for Citizens project in respect of six Polish towns that have declared themselves ‘LGBTI-free zones’.
The decision was announced on twitter by the EU’s Equality Commissioner, Helena Dalli, who stated that ‘six town twinning applications involving Polish authorities that adopted “LGBTI free zones” or “family rights” resolutions were rejected’ because ‘EU values and fundamental rights must be respected by Member States and public authorities’. Soon afterwards, Justice Commissioner Didier Reynders declared that discrimination can not be tolerated in the EU, and that ‘the Union values must be upheld in all the EU funded programmes, including the Town Twinning Programme’. Commission President Ursula von der Leyen recalled that the EU treaties ‘ensure that every person in Europe is free to be who they are, live where they like, love who they want and aim as high as they want’.
The municipalities concerned had applied for grants between 5,000 and 25,000 euros under the twinning programme, a funding programme to stimulate local debate and civic participation on EU policies. The Europe for Citizens Programme Guide, which forms part of the call for proposals for the twinning programme, sets out that funded actions must be accessible to all European citizens without any form of discrimination on the basis of gender, ethnic origin, religion or belief, disability, age or sexual orientation, and that project promoters should pay due attention to the necessity of promoting equal opportunities for all and non-discrimination. By its final selection decision, adopted on 24 July 2020, the Commission’s Education, Audiovisual and Culture Executive Agency granted a total value of more than 2,300 million euros to applications submitted by 127 cities and municipalities, eight of which from Poland.
This is the first time that the Commission adopts a decision with financial consequences in the context of the worrying developments involving LGBTI discrimination by Polish local authorities. Since 2019, nearly 100 Polish towns, counties and regions, representing a third of Poland’s territory, have declared themselves ‘free from LGBTI ideology’ through political declarations or have adopted ‘Charters of Family Rights’ that, although lacking legal binding force, discriminate in particular against single-parent and LGBTI families. This has happened in spite of the fact that, in July 2019, Polish courts annulled two of these resolutions, finding that they breached the prohibition of discrimination under the Polish Constitution. According to a survey conducted earlier this year by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), Poland is the most homophobic country in the EU.
In June 2019, the Commission sent a letter to the governors of five Polish administrative provinces – Lublin, Łódź, Małopolska, Podkarpackie, and Świętokrzyskie – requesting them to provide an explanation on the anti-LGBTI resolutions adopted in their provinces, and warning them that the activities of beneficiaries of the European Structural and Investment Funds must be in accordance with EU values and rules. In December 2019, the European Parliament adopted a resolution calling on the Polish government to take action to revoke the declarations by local authorities and reiterating that EU funds must not be used for discriminatory purposes.
The Commission’s move comes at a crucial time, with the allegedly weak degree of rule of law conditionality being one of the main points of disagreement by the European Parliament with the post-pandemic recovery plan unanimously approved by the European Council on 21 July. The town twinning funding decision can also be seen as a specific manifestation of the Commission’s ‘no rule of law, no money’-logic, explicitly contained in its(still pending) 2018 proposal for a Regulation on the EU’s budget in case of generalised deficiencies as regards the rule of law in the Member States, and which has given rise to a relevant debate (see for example here, here, here, and here) regarding the efficiency and the legal certainty implications of any such conditionality mechanism.
Dolores Utrilla is Associate Professor at the University of Castilla-La Mancha and Assistant Editor at EU Law Live.