Boycott versus discrimination. Is the refusal to provide services to the Russians, due to the politics of their government, lawful?

The new reality, caused by Russia’s aggression against Ukraine, raises many legal questions, including those where the answer does not immediately seem obvious. This is also the case with the question of whether the refusal to provide services to the Russians on the basis of the policy of their control is, in the light of the applicable legal order, a legitimate boycott or, however, a manifestation of national and ethnic discrimination?

In order to answer the above question, the concept of discrimination should be defined in the first place. According to the Act of 3 December 2010 on the implementation of certain provisions of the European Union in the field of equal treatment, called the Anti-Discrimination Act, direct discrimination occurs when a person is treated less favourably than another person in a similar situation on the grounds of his/her race, nationality or ethnic origin. Discrimination is therefore a violation of the principle of equal treatment, which results directly from Art. 32 of the Constitution of the Republic of Poland. In addition, paragraph 2 of Article 32 of the Constitution of the Republic of Poland provides that no one may be discriminated against in economic life for any reason, which also applies to access to goods and services. However, public authorities are the entity obliged to equal treatment, which results from the literal wording of Art. 32 of the Constitution of the Republic of Poland. So what about non-public entities? The obligation of private entities arises from ordinary laws, such as the aforementioned anti-discrimination law and from international legislation.

Yet until 2019, the Polish legal order penalised, in Art. 138 of the Code of Petty Offences, the refusal to perform a service without a justified reason. This was changed on 26 June 2019, when the Constitutional Tribunal found Art. 138 of the Code of Petty Offences in the above scope to be incompatible with the Constitution. However, even during the period of its application, the refusal to provide services on the grounds of belonging to a particular nation or ethnic group was not considered as a legitimate reason. In accordance with the decision of the Criminal Chamber of the Supreme Court of 14 June 2018, file reference number II KK 333/17, refusal to perform the service cannot be justified by the individual qualities of the persons for whom the service is required to be performed by a specific entity. This means that the entrepreneur could not refuse to provide the service due to the nationality or ethnic origin of the client, as this was not an objectively rational reason, as opposed to, for example, a specific behaviour of the client.

However, how is the status of third-country citizens shaped in EU law?

Third-country citizens, to which Russian citizens belong, are also subject to fundamental rights, including those arising from the EU Charter of Fundamental Rights, which prohibits any discrimination on the basis of ethnic origin or nationality in Article 21. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin contains in its preamble a declaration that: ‘Member States should also ensure, where appropriate and in accordance with national tradition and practice, the protection of legal persons who are victims of discrimination on grounds of racial or ethnic origin of their members.’ The above-mentioned Directive applies to all persons, both public and private, including public institutions, i.a. in relation to access to goods and services and the supply of goods and services available to the public.

The Polish anti-discrimination law, which implements certain EU regulations, applies both to natural persons and to legal persons and organizational units that are not legal persons, to whom the law grants legal capacity. The provision of Article 6 of the Act explicitly prohibits unequal treatment of natural persons on the grounds of ethnic origin or nationality in the scope of access to services. On the other hand, Article 10 prohibits the unequal treatment in this respect of legal persons and organisational units which are not legal persons to which the law grants legal capacity, if the principle of equal treatment is violated on the grounds of ethnic origin or nationality of their members.

In what cases is a boycott possible?

The boycott is regulated by the Act of 16 April 1993 on combating unfair competition. According to Article 15 (1) (2), the act of unfair competition is to prevent other undertakings from accessing the market, in particular by inducing third parties to refuse to sell to other entrepreneurs or not to purchase goods or services from other entrepreneurs. The described act consists in inciting to boycott, and for its occurrence it is necessary to have at least three parties: inciting to boycott, boycotting and boycotted. Boycott, on the other hand, is an expression of opposition to the entrepreneur’s actions and can be considered as an activity within the limits of freedom of expression, therefore, it is not always an act of unfair competition. A boycott, or in principle inducing a boycott of an entrepreneur, may be considered an act of unfair competition only if the statutory conditions are met, namely: an act contrary to law or good practice, carried out by another entrepreneur, hindering access to the market and affecting the entrepreneur’s interest. In order to determine whether an act constituting an act of unfair competition has occurred in a given case, the purpose of the act in question must be taken into account. In most cases, the statutory conditions are fulfilled for boycotts with an economic purpose. However, in the case of a boycott motivated by a political objective, the situation is not so obvious. When a call for boycott is justified in the public interest, it does not consist in putting pressure on its addressees, is not made by a competitor of the entrepreneur, and additionally does not constitute a disproportionate ‘sanction’, it should not constitute an act of unfair competition, as it would not fulfil the condition of illegality or good practice. However, the views of jurisprudence and doctrine in the field of political or social boycotts are not unanimous, which in the case of a court dispute excludes the possibility of predicting what decision can be made in a given case.

Given the above considerations, there are no grounds for considering that the politics of the authorities of the Russian Federation is a legitimate reason for differential treatment of Russian citizens by refusing to provide services to them. Such action is contrary to both national and international law and constitutes a manifestation of national and ethnic discrimination. However, it seems that a boycott of Russian entrepreneurs is permissible, but only if they openly support the politics of their government, and not only because of their nationality.

Krystyna Malinowska, Legal assistant