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

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

In the run up to national elections, the government of a country which just got through a public safety emergency, changes the law regulating the status of civil society organisations (CSOs). The new law aims to ensure, among others, that public events and consultations are subject to stricter controls and they respect public safety precautions during the election period. The new rules provide a presumption of legality for the organisation of public events, debates or other types of public mobilisation only where such activities are held by CSOs that apply for and are granted a new, special charitable status. The new charitable status is also a precondition for being able to participate in public consultations, as well as for benefiting from a favourable tax regime. 

This new charitable status can be granted by law only to those CSOs that represent and promote a “legitimate public interest”. While this notion is not precisely defined in the law, the new provisions are interpreted in practice in a way that excludes CSOs working on issues which are considered political in nature from being eligible for the new charitable status. On this basis, many CSOs working on issues such as the promotion of human rights or the advancement of social or environmental justice are excluded from the new status, which means that they have to undergo a very burdensome and strict authorisations procedure for each and every activity organised. As a result, they are faced with increasing difficulties in pursuing their public mobilisation and advocacy campaigns, get excluded from important public consultations and start suffering financial instability.

Limiting CSOs’ ability to promote democratic participation is a weapon in the hands of politicians who want to stifle criticism

CSOs’ ability to take active part in the public debate is instrumental to the proper functioning of any healthy democracy. Through their public mobilisation and advocacy activities, CSOs raise awareness on matters of public interest and help citizens make better informed choices when electing their political representatives. CSOs also make sure that citizens’ voices are heard and given due weight whenever elected politicians or civil servants take decisions affecting their lives, for example by participating in public consultations or by creating themselves channels for citizens to get involved and express their opinions.

Yet, instead of facilitating CSOs in performing this role, certain governments are making it more difficult for them to promote and participate in a democratic debate on public interest issues. This is sometimes done deliberately through regulatory measures hindering CSOs’ from exercising their rights to the freedoms of association, peaceful assembly and expression, as part of broader plans by authoritarian governments to dismantle the core elements of democracy in their countries. These measures can concretise, for example, in arbitrary registration requirements or limitations on CSOs’ ability to seek funding, access information or express opinions. In the EU, Hungary provides a sad example of this worrying pattern. The situation was recently further aggravated by the new crackdown on freedom of expression, right to information and public participation disguised by the government as part of its response to the public health emergency caused by the coronavirus pandemic.

But restrictions on CSOs’ ability to freely and actively participate in the democratic debate can also be the result of short-sighted regulatory choices, which are vulnerable to be exploited by certain politicians or lobbyists to silence critical voices. In fact, research shows how this problem also affects a number of EU countries generally scoring high on free civic space and participatory democracy. This is the case, for example, of Ireland, where provisions of laws such as the Electoral Acts or the Charities Act result in restrictions being imposed on activism and the free operation of CSOs. An example is human rights organisations, which carry out public advocacy activities on public interest issues which bear political relevance. Another example is Germany, where the interpretation of tax law has resulted in CSOs working on public interest issues such as human rights, social justice or climate protection being withdrawn their charitable status on grounds that their activities were “too political”.

The recent public health emergency has exacerbated existing  and created new barriers on participation in the EU and worldwide, closing spaces on consultation, assembly and expression. As countries slowly phase out from the emergency situation, it will be important for CSOs to closely monitor the situation and ensure that restrictions on participation set in place during the pandemic do not set new precedents which serve to inhibit or backtrack on CSOs’ participation.

National rules limiting CSOs’ freedom of action also affect the EU civil dialogue

National measures limiting CSOs’ freedom of action, such as the ones described in the example above, not only hamper CSOs’ ability to take active part in the democratic debate at national level, but also prevent them from effectively engaging and promoting civic participation at EU level.

On this basis, it may be argued that similar measures impair the effectiveness of the principle established in Article 11 of the Treaty on European Union (TEU), according to which citizens and representative associations must have the opportunity to make known and publicly exchange their views in all areas of EU action, including through dialogue, participation to consultations, and the promotion of citizens’ initiatives.

While this provision is formally addressed to EU institutions, it is clear, as also recognised by the EU, that the participation foreseen in Article 11 TEU can only be realised if an independent, diversified and well-functioning organised civil society exist across the Member States. Indeed, national measures which result in systemic threats to CSOs’ development and functioning prevent the existence of a free and safe civic space where CSOs can flourish and thus engage on matters of public interest at both national and EU level. Similarly, restricting CSOs’ ability to take part in the democratic debate at national level significantly restrict the opportunity for CSOs to make their voice heard on EU action, given that EU laws and policies are, as a rule, meant to be implemented by Member States’ authorities and have the greatest impact at national, regional and local levels.

Such measures, therefore, endanger the achievement of the objectives pursued by Article 11 TEU and should be seen as a breach by the concerned Member State, in that connection, of its duty of sincere cooperation (Article 4(3) TEU). The consistency of such measures with  fundamental rights as enshrined in the EU Charter of Fundamental Rights (CFR) may also be raised, making reference, in particular to CSOs’ right to freedom of expression and of information (Article 11 CFR) and freedom of association (Article 12 CFR).

How to bring the matter to the attention of EU institutions?  

National laws and measures which appear in breach of governments’ obligations under the EU Treaties can 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.

Where an infringement of a particular EU provision cannot be established, the matter may still be addressed by the EU at political level. This is the case, in particular, where action taken by a Member State poses a clear risk of a serious breach of one of the EU basic values enshrined in Article 2 TEU, which include respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. In such situations, preventive and sanctioning mechanisms may be applied pursuant to a special procedure provided for in Article 7 TEU. The Council has so far been requested to trigger this procedure against Poland (by the European Commission) and against Hungary (by the European Parliament).

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