The European Commission has begun legal proceedings against Hungary and Poland for discrimination against LGBT+ people in an escalating rule of law fight with the union's wayward members.
The move in response to a recent anti-LGBT law in Hungary and so-called "LGBT-free zones" in Poland intensifies a row over whether domestic or EU law rules supreme and a growing standoff over whether Brussels should withhold funds from Budapest and Warsaw.
"Europe will never allow parts of our society to be stigmatised: be it because of whom they love, because of their age, their ethnicity, their political opinions, or their religious beliefs," European Commission president Ursula von der Leyen said in a statement.
In a letter of formal notice to the Hungarian government, the commission accused it of breaking a number of EU rules with a law banning the “promotion” or depiction of homosexuality or transgender people in any content intended for under-18s – a law that triggered outrage among fellow EU states last month as rights groups warned it would marginalise gay people and prevent sex education.
In addition, the letter warns of an additional breach of EU law by a consumer authority that forced the publisher of a children’s book about a same-sex family to include a disclaimer saying it depicts “behaviour deviating from traditional gender roles”.
“By imposing an obligation to provide information concerning a divergence from ‘traditional gender roles’, Hungary restricts the freedom of expression of authors and book publishers, and discriminates on grounds of sexual orientation,” the commission said.
Separately, the commission notified the Polish government that it had breached the “principle of sincere co-operation” with EU institutions, set out in the treaties, by failing to respond to requests regarding the establishment of a so-called “LGBT-ideology-free zone” by local Polish authorities.
The commission said it was “concerned that these declarations may violate EU law regarding non-discrimination on the grounds of sexual orientation”.
The letters open a new front in a sprawling fight over the rule of law, adding to ongoing proceedings against both states over the rigging of the judiciary in Poland, and attacks on democratic institutions in Hungary.
But the Polish government has said it rejects the authority of the EU’s top court to rule on domestic matters all together, a position that goes against a basic principle of EU membership that ensures legal coherence across the union.
Polish prime minister Mateusz Morawiecki insisted on Thursday that the EU court had no authority to shape member states' judicial systems, after the Court of Justice of the European Union (CJEU) ruled that Poland was failing its obligations under EU law through reforms that set up a new disciplinary chamber for judges at the supreme court and ordinary courts.
Justice minister Zbigniew Ziobro, a key architect of Poland's judicial reforms, dismissed the ruling as "delivered at the behest of the European Commission", and said it "smacks of colonial thinking".
The ruling nationalist Law and Justice (PiS) party defends its reforms as an overdue effort to rid the judicial system of lingering communist baggage and streamline the courts, but many judges, opposition parties and civil rights groups say they create a politically beholden judiciary by appointing loyalists to courts and creating a regime of fear for non-aligned judges.
Pre-empting the CJEU ruling, the constitutional court in Warsaw ruled on Wednesday that the government’s priority was to the Polish constitution and it was not bound by all international treaties to which it was party, including the EU accession treaty of 2004.
Former prime minister Donald Tusk, who has returned to opposition politics in Poland after several years in top European roles, said the row has raised questions about his country's future in the EU.
“It’s not Poland that wants to leave the EU, but PiS,” he said.
The developments add to rising pressure from some member states and the European Parliament to withhold EU funds from states that reject the rules of membership. This week, the commission has delayed signing off on a package of Covid-19 stimulus money for Hungary due to concerns over a lack of safeguards against corruption – seen as a sign of further standoffs to come.