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Can confinement restrict CSOs’ services for vulnerable groups? Considerations from an EU law perspective

This is the fifth in our blog series on EU law and civic space. #EUlaw4civicfreedoms

In a country only just recovering from a public health emergency caused by the outbreak of an epidemic, the government decides to indefinitely extend confinement and precautionary measures for groups considered at risk. These groups include persons living in camps and other informal settlements as well persons with no fixed abode, such as homeless, Roma and newcomer migrants. The measures provide, among others, that only a very limited number of civil society organisations (CSOs), identified among those funded by the government, may continue to have access to these groups insofar as that is necessary to provide what the government regards as “basic services”. As a consequence, other associations, including many foreign-based associations, are prevented access to settlements and centres where these people are lodged, under threat of heavy fines and even terms of imprisonment if they contravene the restrictions. In addition, the groups concerned can no longer benefit from services considered “non-essential”, such as informal schooling, psychosocial care and provision of information on rights and legal assistance.

Confinement and marginalised groups

As the coronavirus pandemic spread throughout Europe and beyond, governments started imposing rigid confinement measures to contain its outreach. However, if the virus affects everyone equally, restrictions adopted in response to it affect marginalised and vulnerable groups much more severely than others.

International organisations and CSOs have warned about the particularly dire impact of response measures on marginalised and vulnerable groups, including Roma, migrants and homeless. Precarious living conditions and access to care have deteriorated even more as CSOs were forced to scale down their activities and were prevented from delivering services to marginalised groups. In France, for example, only a few CSOs got authorisation to deliver food to asylum seekers in the area of Grande Synthe, a few kilometres away from Calais, while many others got fined or were taken into custody while carrying out humanitarian work to try and meet the communities’ needs. In Bosnia and Herzegovina and Serbia, local and international organisations assisting migrants and refugees have not been able to enter asylum seekers reception centres since mid-March, whereas authorities in Bulgaria and Slovakia have put a number of Roma settlements under compulsory quarantine without making provision for adequate humanitarian aid.

As the pandemic sets back, reports accumulate of prolonged quarantine, confinement and other restrictions being imposed by governments on vulnerable and marginalised communities and groups and affecting the possibility for CSOs to provide services to them. Indeed, targeted containment measures may appear to have a social control and policing nature, raising doubts as to their genuine necessity and proportionality to protect public health.

CSOs may rely on EU law to challenge restrictions on the provision of services

Containment and confinement measures may prove crucial to protect public health in the context of a public health emergency such as the one cause by the coronavirus pandemic. However, as these measures interfere with the enjoyment of human rights, authorities must be able to show that they do not go beyond what is necessary to protect public health and that they are non-discriminatory in nature. In this context, certain measures may also need to be scrutinised in the light of EU countries’ obligations under EU law.

For example, restrictions on the provision of services by CSOs as those described in the scenario above, and the way they are applied, may potentially clash with a number of EU rules.

First, insofar as the restrictions prevent the people affected from accessing services, they may raise issues of compliance with EU countries’ obligations as regards the rights of specific groups. For example, the obligation to make sure that organisations providing advice and counselling to asylum seekers have access to the closed facilities where they are lodged (as provided for in the Asylum Procedures Directive and the Reception Conditions Directive); or the obligation to ensure non-discriminatory access to and supply of goods and services which are available to the public, irrespective of race or ethnic origin (as provided for in the Race Equality Directive).

Secondly, foreign-based CSOs, whose activity, even if non-profit, can be regarded as economic in nature, may argue that the authorisation to provide services granted only to certain organisations funded by the government is discriminatory in nature and puts them at a disadvantage, thus restricting their freedom to provide services in that country (Article 56 of the Treaty on the Functioning of the EU) or the exercise of their freedom of establishment (Article 49 TFEU).

In this connection, a disproportionate interference in the enjoyment of fundamental rights as enshrined in the EU Charter of Fundamental Rights (CFR) may also be raised. Reference could be made to the CSOs’ right to freedom of association (Article 12 CFR), given the impact of the restrictions on the exercise of their activities; and to the rights of concerned people impacted by the limitations on access to services, such as, for example the right to education (Article 14 CFR), the right to health care (Article 35 CFR) or the right to an effective remedy (Article 47 CFR).

How to invoke a potential breach of EU law?  

Violations of EU law, including the CFR, can be claimed before national courts, which should examine and rule on the matter, possibly requesting the assistance of the EU Court of Justice.

Independent national authorities, like the national human rights institution, may provide advice and may take up the issue by approaching national authorities or through litigation, if their mandate allows.

National laws and measures which result in systemic violations of governments’ EU obligations can also be brought to the attention of the EU institutions through complaints addressed to the European Commission or petitions addressed to the European Parliament. The body responsible for monitoring the respect by EU governments of their obligations under EU law is the European Commission, which can take steps to inquire the matter and can, if it establishes a violation of EU law, start formal infringement proceedings against the country in question.

Check out our new Handbook for more guidance

ECNL, in partnership with EFC and DAFNE, just published a new Handbook on “How to use EU law to protect civic space”, intended to provide practical guidance for CSOs to advocate and litigate using EU law to protect their rights and civic space in the EU.

Check out our user-friendly guide to know more on:

  • What EU law is and how it affects individuals and organisations;
  • When and how CSOs can challenge national provisions or measures that impact their mission, activities and operations on the basis of EU law, including the CFR;
  • Which legal avenues and resources are available for CSOs to defend their civic space within the EU law framework.

And click here for the other blogs in our #EUlaw4civicfreedoms series:

Blog #1. Contact tracing beyond the pandemic?

Blog #2. Free speech under quarantine: when emergencies lead to censorship, EU law may help.

Blog #3. Do CSOs have a right to funding in times of emergency?

Blog #4. Can EU citizens be stripped of their right to protest? Public emergencies, peaceful assembly and EU law.

Blog #6. Excluding CSOs from the democratic debate: a trend to be reversed, during and after emergencies