Polish-British Protocol and its consequences for legal protection of individuals
Krystyna Kowalik-Bańczyk[(]
The aim of this paper is an analysis of practical consequences of a short document annexed to the Treaty of Lisbon – namely the so-called Polish-British Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom. This very brief, rather mysterious document was initially proclaimed as an “opt-out” for those two Member States of the European Union from the provisions of the Charter. Soon it turned out that its legal impact is much lesser – it does not constitute an opt-out but just an explanation on how the provisions of the Charter should be applied in and towards these two counties. Still its influence on the legal protection of individuals in the countries concerned needs a broader analysis and cannot be ignored as insignificant. The Protocol in fact diminishes this protection in a quite substantial manner.
1. Introduction
The inclusion of the Charter of Fundamental Rights into primary law of the European Union (EU) by the Article 6 (1) of the Treaty on European Union (TEU) in its Lisbon version[1] would lead to the situation that this document would be binding not only on the institutions, bodies, offices and agencies of the European Union, but on all Member States “when they are implementing Union law”[2]. Thus national administrative and judicial authorities would obtain an additional modern catalogue of fundamental rights[3] that could be of use in proceedings with some Community (Union) element[4] (as opposed to purely internal situations)[5]. The consequences of this change of status of the Charter would be quite far reaching. In case of a conflict between a provision of the Charter and a provision of national law, the primacy of application would belong to the Charter[6]. Furthermore, at least some of the provisions of the Charter could be directly effective in this sense that individuals could claim their rights stemming from the Charter in national proceedings that would not be purely internal before national jurisdictions. At present even if references to the Charter are becoming more and more common in the jurisprudence of ECJ, they are only “subsidiary” in nature and they do not and cannot constitute a real basis for the claimed right[7]. The future binding character of the Charter would also provide for the possibility of posing preliminary questions on its interpretation and on the validity of the measures of secondary law that could be seen as contrary to the Charter[8]. Finally, despite the clauses included in art. 6 (1) TUE (Lisbon version) and the Charter itself (Art. 51 (2)) that the “competences of the European Union should not be extended”, the inclusion of the Charter into the primary law may cause a certain “reorientation” in defining the aims of the Union and may lead to the broader application of fundamental rights arguments in proceedings in which the EU law is applied[9].
Those consequences of the inclusion of the Charter into the primary law of EU might be limited as far as the United Kingdom and Poland are concerned because of the reservations included in the so-called Polish-British Protocol (further referred to as “Protocol”). Therefore individuals in these two countries might face some obstacles when invoking rights stemming from the Charter, claiming its broad interpretation or basing their claims on infringements of these rights. Regardless of the ratification crisis around the Lisbon Treaty, the provisions of the Protocol are worth an analysis as it seems most probable that whatever the fate of the Lisbon Treaty, the fears and limits for the application of the Charter reflected in this document would be an actual issue for both those interested in the protection of human rights in the EU and those working on the issues of diversified integration within the Union.
2. The origins of the Protocol
At the time when the idea of the Reforming Treaty was being discussed during the German Presidency in the first half of 2007, the United Kingdom negotiated a special protocol explaining certain aspects of the application of the Charter of Fundamental Rights towards this country. It needs first to be stated that already during the preparatory works on the Treaty establishing Constitution for Europe, under the British influence some horizontal provisions had been added to the Charter, in order to make clear the scope of its application and to exclude any possibility of its extension. Because within the Charter there are provisions containing principles, rights and freedoms[10], the main problem consists of identifying which provision contain which type of guarantee as depending on this distinction, the level of possible protection and the available remedies before national courts differs. The horizontal guarantees adopted in 2004 are retained in the present version of the Charter, in its Articles 51-54. The most important of those provisions in the examined respect seems to be Article 52 (5) which states that “provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality”. This means that the principles cannot be invoked unless they had been implemented both by the Union and the Member States, and that even in case of their implementation, they can only be invoked in order to interpret the implementing measures or to control their legality. The distinction between the rights and principles is thus of vital importance but remains obscure. The explanations to the Charter[11] that could have been a decisive document in this respect, give only a partial guidance on this issue, because in most cases they do not clearly classify any of the provision of the Charter as containing either right or principle[12].
Despite this new wording of the Charter, the United Kingdom was still anxious of the possible extension of the interpretation and direct applicability of the Charter. The adoption of the Protocol resulted foremost from certain fears as to the direct effect[13] of certain social provisions contained in the Charter, and particularly its Title IV entitled “Solidarity”, as the United Kingdom has always shown some distrust towards European initiatives concerning “social dimension” of Europe. In order to exclude the possibility of attributing to at least some of the provisions of Title IV of the Charter the character of the rights, the UK directly excluded in the Protocol the “justiciability” of those provisions. Thus, as it will be more broadly revealed later, the Protocol can be of use in clarifying this distinction.
The other important “structural” factor, influencing the drafting of the Protocol might be the lack of a written constitution in the United Kingdom. Thus any document that could retain a constitutional character of direct application in the national legal order could be perceived with distrust[14].
In June 2007, two delegations: of the Republic of Poland and of the Republic of Ireland reserved a possibility to accede to the British Protocol[15]. This possibility was used only by Poland but it had no influence on the content of this document, Warsaw has accepted it as it stood after British negotiations. The main justification given by the then Polish authorities to explain this accession were the fears of extensive interpretation of the Charter given by the ECJ, as well as the anxieties that the Union would attribute to itself new competences in the field of protection of human rights.[16] The particular issues that were exposed by the Jarosław Kaczyński government as reasons for accession to the Protocol concentrated on the fear that the different legal standard could be applied than the one used in Poland in cases linked with moral standards. The Protocol was presented as excluding any risk of broad interpretation of the right to the abortion, homosexual marriages or any other cases of non-discrimination because of sexual orientation (outside the scope of the binding Directive 2000/78). The other argument raised by the then Polish Foreign Minister Anna Fotyga as one of the reasons for accession to the Protocol was the alleged possibility granted by the Charter of the recovery of properties by the so-called “Vertriebenen” (persons of the German origin who lost their properties after the second world war)[17]. The accuracy of those arguments would not be analysed here but most (if not all) of them were populist in nature and in fact were not legitimate if one analyses the new provisions of art. 6 TEU and the articles 51-52 of the Charter itself. In the political game the Protocol was also presented as an “opt-out” from the Charter (which is not confirmed by the analysis of its wording). Even after the change of the Polish Government in November 2007, the issue of the Protocol remained one of the vital points in the political struggle. President Lech Kaczyński obliged the new Prime Minister Donald Tusk not to step away from this agreement if the Lisbon Treaty was to be ratified by the Head of State. Even though the Government for those reasons maintained the Polish reservation in December 2007, Poland had not avoided the ratification crisis[18].
In consequence of the Polish accession to the Protocol, the Treaty of Lisbon is accompanied, among other 36 protocols, by a “Polish-British Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom”. In the version of Lisbon treaty published in December 2007[19], the Protocol functioned as Protocol number 7, whereas after the publication of a consolidated version of the founding treaties in May 2008, it became the Protocol number 30[20].
3. The content of the Protocol
Knowing the fears that have led to the adoption of the Protocol, it is necessary to contrast them with the actual provisions of this text. The Protocol is a short document that consists of a Preamble and two articles, containing in fact three provisions.
Article 1 (1) states, that the Charter “does not extend the ability” of ECJ or any court or tribunal in two countries in question “to find that the laws, regulations or administrative provisions, practices or action” of Poland or of the United Kingdom “are inconsistent with fundamental rights, freedoms and principles that it reaffirms”. This provision excludes any interpretation of national law or the provisions of the Charter that could lead to an ascertainment that a national provision clashes with the provisions of the Charter. Thus it is impossible to state any infringement of the Charter by any act of any judicial authority of the two countries concerned. The principle of primacy of Community law, that constitutes a basic and fundamental principle of Community legal order is thus undermined (which would be analysed later).
Article 1 (2) provides in turn, that „for the avoidance of doubt, nothing in Title IV[21] of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as” any of those two countries “has provided for such a right in its national law”. This provision in fact requires an implementation (inclusion) of a right provided in Title IV of the Charter into the national law[22], in order for it to be effective. Any direct effect of any of the provisions contained in the Title IV is thus excluded and those norms are proclaimed as not “self-executing” in the legal orders of Poland and the United Kingdom. The British reasons for adoption of this type of provision can be easily understood for historical and political motives, as far as “social dimension” of Europe is concerned. However, the accession of Poland to this provision is completely incomprehensible, the more so, if one analyses the Polish declaration no 62, where Poland declares that, “having regard to the tradition of social movement of ‘Solidarity’ (…) it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union”[23]. The reservation contained in the Protocol is therefore completely without object for Poland, as all the rights provided in the Title IV of the Charter are already included in Polish legal order.
Article 2 of the Protocol provides, that „to the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognized in the law or practices” of those two countries. This article concerns a particular group of provisions of the Charter, namely those that make a direct reference to the national provisions (for instance, the right to marry is guaranteed accordingly to the national law)[24]. It seems that the aim of this provision is an exclusion of any autonomous interpretation of this type of provisions of the Charter. Article 2 of the Protocol makes application of those provisions dependent on national provisions, first – as to their very existence, second as to their content and scope.
4. The legal character of the Protocol
The Protocol is annexed to the Treaty on the European Union and to the Treaty on the functioning of the European Union (TFEU) and it constitutes part of the primary law of the EU, as part of an international agreement concluded by all Member States of the European Union[25]. As it was already stated, the Protocol under no circumstances can be perceived as an “opt-out” from the Charter for neither the United Kingdom nor Poland. The Charter would constitute a binding source of law in those two countries.