About two decades ago, a famous politician was about to step down from his mandate leading a war-torn European country’s transition to peace and democracy. In a farewell interview to a newspaper, the politician reflected on the challenges of his role and concluded that, “The greatest failure is that although we have created institutions, we have not created a civil society.”
It goes without saying that a vibrant, thriving, inclusive and pluralistic civil society is an essential pre-condition for democracy. The European Court of Human Rights acknowledged that the role of “watchdog” of democracy may also be exercised by non-governmental organisations. Any effort to strengthen democratic institutions should also support the spontaneous flourishing of civil societies and non-governmental groups, so they can have their own say on how their democracies are being shaped. And this support should come strong and clear from the EU, especially in cases where its own Member States are undermining civil society’s role and existence.
"This support should come strong and clear from the EU, especially in cases where its own Member States are undermining civil society’s role and existence."
The outbreak of the COVID-19 pandemic has also triggered a phenomenal display of solidarity and coordination from civil society organisations (“CSOs”), who have played a pivotal role in promoting reliable information, aid and access to services as well as holding governments accountable for their responses to the crisis. However, the very same global crisis and the governments’ recourse to emergency powers to withstand it have exacerbated the already existing challenges to an enabling environment for civil society movements and organisations.
Meaningful participation in decision-making remains sketchy
In the context of the pandemic, several European states resorted to the adoption of emergency legislative procedures in the name of public health protection. Worryingly, though, some states also used the state of emergency to adopt other laws unrelated to the pandemic, providing little to no opportunities for public consultation on any of these, nor a proper parliamentary review. Austria and Slovenia, for instance, fast-tracked the adoption of several legislative proposals during the lockdown. France recently approved its Global Security Law with a fast-tracked procedure cutting down on parliamentary debate and is using the same procedure to push ahead a controversial bill on Republican Values.
"Worryingly, though, some states used the state of emergency to adopt other laws unrelated to the pandemic, providing little to no opportunities for public consultation on any of these, nor a proper parliamentary review."
Climate activists and environmental groups in particular have seen their right to participation curtailed in the last years: several CSO representatives headed to a UN climate change convention in Poland were denied visa and deported, even after receiving UN accreditation. In 2019 and 2020, governments in Ireland and Slovenia respectively tabled and passed bills to limit the participation of environmental CSOs in consultations and decision-making processes concerning the climate. Bulgaria also limited civil society’s ability to contest government decisions on environmental projects of national importance through increased administrative hurdles and court fees.
Furthermore, in almost all EU countries (with the exception of Portugal) there was no clear and proactive efforts to ensure broad representative engagement in the preparation of the EU National Recovery and Resilience Plans, a recovery instrument raising funds to help repair the immediate economic and social damage brought about by the pandemic.
Legal frameworks are not fostering an enabling environment for civil society
CSOs need to operate in an enabling political, social and regulatory context that facilitates the pursuit of their legitimate objectives. The civic space where individuals and civil society conduct their activities entails the protection of their fundamental rights of freedom of expression, association and right to peaceful protest as well their right to participation in public affairs. Yet, in the last few years we have seen that states across Europe tend to propose – and in some cases implement – arbitrary or disproportionate restrictions to those rights. This “closing” of civic space has picked up momentum since the start of the pandemic.
"The closing of civic space has picked up momentum since the start of the pandemic."
In the context of the initial lockdown measures adopted to contain the spread of the COVID-19 pandemic, several countries (among others, Belgium, Germany and Hungary) introduced blanket bans on the right to physically assemble outside, without due consideration of the possibility to take measures to ensure safe social distancing. Freedom of peaceful assembly is also under pressure in France, where the recently approved Global Security Law was referred to the review of the Constitutional Court for its provisions penalizing the sharing of images “maliciously” identifying by face or name law enforcement officers in operations during assemblies. In Greece, new guidelines for the management of public outdoor assemblies entitle the police to restrict access of journalists to assemblies by identifying specific sites from which the latter are allowed to cover demonstrations. Bills tabled in Denmark and the United Kingdom also fail to strike a proportionate balance between the exercise of the right to peaceful protest and the protection of public order and security.
In other cases, governments introduced measures allegedly aimed at curbing COVID-19-related disinformation but with the result of disproportionately clamping down on free speech and access to information: last year, Hungary punished during the state of emergency anyone who “distorts” or publishes “false” information on the pandemic with up to five years in jail. In Spain, more than one million sanctions were issued based on the Law on the Protection of Citizens’ Security since the declaration of the State of Alarm in March 2020, also for online statements and expressions. In Greece, a decision issued by the government prohibited hospital staff from speaking with the media, and journalists were mandated to obtain permission for reporting in hospitals.
Beyond the measures in response to the pandemic, the right to freedom of association also continues facing sustained attacks: last year, the German government rushed to draft a bill introducing stricter requirements for the setting up of foundations, piling up on already existing burdensome provisions on status and tax regime penalising CSOs. The French bill on the “Protection of Republican Values”, currently under fast-tracked debate, make the registration and operation of CSOs conditional upon a “contract of republican engagement” whose vague formulation could give a wide margin of discretion to administrative authorities supervising their operations. In September 2020, the Greek government introduced a new Joint Ministerial Decision placing discriminatory and disproportionate criteria for registration and certification of national and foreign CSOs – as well as their staff, members or volunteers – working in the field of migration, asylum and social inclusion, which are pre-requisites to be legally allowed to operate in the country. In Cyprus, the Ministry of the Interior recently ”de-registered” more than 2,000 CSOs – rather than issuing alternative proportionate sanctions for failing to update their information for registration within a tight deadline issued during the COVID-19 pandemic.
In Austria, in the aftermath of terrorist attack in November 2020, the government tabled a draft “Anti-Terrorism Act”, which would introduce a new criminal offence concerning the creation, leadership, financing or support in any form of a “religiously motivated extremist association” or promotion of “religiously motivated extremist acts”. However, the concept of “religious motivated extremism” is not clearly defined and articulated by the law.
Legal threats, attacks and smearing campaigns against specific groups and activists are rampant
CSOs and activists – including, in particular, those working on women’s rights and with minority groups, religious groups and LGBTQI+ people – continue experiencing an escalation of threats and attacks, which can take the form of verbal or physical attacks, hate speech in the online civic space or even vexatious legal harassment. In some countries, these stakeholders are even subject to state and media-run smear campaigns against them, which have become only more aggressive following the socio-economic crisis and uncertainty triggered by the pandemic: in Slovenia last year, the recently established Prime Minister used his social media accounts to accuse 15 CSOs funded by the previous government of enriching themselves at the expense of taxpayers. Additionally, a weekly magazine controlled by the ruling party showed pictures of CSO representative under the title, “They want money for themselves, not for fighting COVID-19”. In Italy three years ago, the then Minister of the Interior accused CSOs involved in search and rescue (SAR) operations in the Mediterranean Sea of being “voracious” and aiding human traffickers.
CSOs involved in SAR operations in the Mediterranean also routinely face legal proceedings and criminal investigations against them. In 2020, Malta and Italy even closed ports to SAR vessels led by CSOs, allegedly due to “health risks.”
Civic space incidents involving gender and LGBTQI+ groups are reportedly growing in various parts of Europe: in Hungary, the government passed an amendment to the Registry Act that only recognises ‘sex at birth’, outlawing legal recognition of transgender and intersex people. In Poland, the government has ramped up its anti- LGBTQI+ and anti-abortion agenda and women’s protests were repressed with excessive force from law enforcement officers and violence from far-right groups.
Furthermore, the rise of a global climate movement has been accompanied by a crackdown on civic space for climate activists in Europe as well, with documented episodes of peaceful protesters being arrested in France, UK and Poland or even wiretapped around a climate conference in Denmark.
Curbing access to funding for CSOs at national level…
Access to resources is a cornerstone for CSOs to achieve their mission and serve communities. Limiting access to donations, core or long-term project funding, for instance by imposing cumbersome applications procedure or narrowing eligibility criteria, is yet another tool that governments can use to challenge the survival and sustainability of unfriendly or unwelcome not-for-profit organisations operating under their jurisdiction.
We have seen among others, a recent attempt by the Flemish government in Belgium to stop funding the National Minorities Forum, which works with marginalised ethnic people, migrants and religious groups. Another bill under review in Denmark would empower the Ministry of Immigration and Integration, on the basis of a recommendation from the Danish Immigration Service Department, to ban donations to CSOs coming from natural or legal persons, including state authorities and state-run organizations, that “oppose or undermine democracy, fundamental freedoms and human rights”. The French bill on Republican Values also provides that CSOs can be granted subsidies as long as they priorly subscribe a “Republic commitment contract” and violation of the latter would oblige them to refund it to the government. A recently tabled Dutch draft of the Transparency Act aims to prevent “undesirable foreign influence from occurring” as a result of donations received by CSOs that are considered a (potential) threat to “public order” or “general interest”. Furthermore, provisions in the Electoral Reform Bill of 2020 in Ireland prohibit any person or organisation based in the country from accepting sizeable or any international donations to assist them in campaigning on or seeking to change public policy.
…and calling for funding restrictions at EU level
Last but not least, in March this year the French Interior Minister wrote a letter to the European Commission in which he asked them to withdraw the funds originally assigned by a EU tender to a consortium including a French Muslim CSO. In the letter, the Ministry also suggests carrying out a “collective reflection” on the opportunity to establish a EU funding “concertation mechanism involving more closely the Member States” and exhorts the Commission to address the matter of regulation of foreign funding of EU-based associations. Around the same time, the European Parliament Special Committee on Foreign Interference in all Democratic Processes in the European Union, including Disinformation released a draft Working Document on covert funding of political activities by foreign donors, which states that “By way of recommendation for the steps ahead, one ought to give careful consideration to the question of banning non-EU third parties and non-profit organisations from foreign funding altogether.”
What are the drivers behind these civic space restrictions?
As we can see, not only the pandemic and the governments’ subsequent recourse to the use of emergency powers have clamped down disproportionately on civic space in the EU. Some states have adopted laws and measures to hinder operations and throttle funding for groups with dissenting views, in the name of security and counter-terrorism. The rise of protests against issues ranging from lockdown, civic rights, to climate change and economic reforms have also been met with the adoption of repressive measures in the name of public order protection.
Governments turning more and more authoritarian have encouraged relentless smearing campaigns against CSOs and grassroots organisations critical of their policies. These attacks have targeted in particular organisations working with marginalised people, representing marginalised ethnic people or having a religious affiliation, in a effort to impede progress towards the realisation of integrated and open societies.
"CSOs systematically end up fighting in order to stay afloat and not lose ground rather than advance and make progress in their long-term missions."
Everywhere, we hear institutional pledges and commitment to action to prevent the deterioration of freedoms of speech, peaceful assembly, association, access to funding and right to participation of civil society. The sad truth is, though, that CSOs systematically end up fighting in order to stay afloat and not lose ground rather than advance and make progress in their long-term missions.
Is it all bad news?
Every cloud has a silver lining and indeed, we do see some good examples of enabling environment for civic space that give us hope. In France, for example, the Constitutional Court has just struck down the Global Security Law provisions criminalising the “malicious” publication of police officers on duty during assemblies. Last year in Germany, the Constitutional Court struck down the blanket ban imposed on outdoor assemblies on the grounds of COVID-19-related public health and declared that a careful assessment should be conducted on a case-by-case basis balancing the protection of public health with the right to protest. Similarly in France, the Council of State suspended the blanket ban on demonstrations considering them disproportionate restriction on freedom of peaceful assembly.
In Austria, the government passed legislation that acknowledged the role of CSOs and granted additional state funding available to them during the pandemic. In the Czech Republic, the Government Commissioner for Human Rights for Non-governmental Non-profit Organisation equally acknowledged and praised CSOs’ fundamental support in addressing the pandemic in an open letter to them.
In Denmark, following an open hearing in parliament and constructive dialogue with civil society stakeholders about the proposed bill regulating assemblies, mentioned above, it appears now that the parliamentary majority is considering proposed constructive amendments to the text and. Slovakia also opened up several policy processes for consultation with CSOs, such as the one leading to the drafting of anti-corruption legislation and the election of the country’s general prosecutor. Furthermore, the Slovak government’s Work Programme includes commitments to improving the financial, legislative and institutional stability of CSOs.
It is also encouraging that in June 2020 the European Court of Justice (ECJ) struck down a 2017 Hungarian Law, which included “discriminatory and unjustified” provisions restricting foreign funding to CSOs operating in the country, although the Hungarian government has now tabled a new bill repealing the previous one which may still be discriminatory to CSOs.
Last but not least, we definitely welcome the new European Commission Equality, Rights and Values (CERV) programme offering funding to CSO networks for citizens engagement, equality and the protection and promotion of rights and EU values.
So what should we do sooner rather than later?
"The EU and its Member States need to step up the narrative to protect civic space as part and parcel of EU law if they want to sustain a democratic lead and credibility, and ensure its own population enjoys the fundamental freedoms it claims it stands for."
The EU and its Member States need to step up the narrative to protect civic space as part and parcel of EU law if they want to sustain a democratic lead and credibility, and ensure its own population enjoys the fundamental freedoms it claims it stands for.
The work of civil society actors and organisations is pivotal for the implementation of the common EU values enshrined in Article 2 of the Treaty of the EU. The European Commission has acknowledged and emphasised that no democracy can thrive without an active civil society. It has also recognised the key role CSOs play in promoting common standards and best practice in the respect of the rule of law. We believe it’s time to put these messages fully in operation and start properly protecting, strengthening and nurturing civil society rather than merely defending it from increasing attacks.
In order to do so, first, we need to have in place permanent, inclusive dialogue structures with the EU policy-making bodies but also with EU Member States. It is especially important that CSOs are included in a regular, meaningful and structured dialogue with the EU institutions on the rule of law, to identify violations, promote democracy and fundamental rights.
In addition, the Rule of Law Mechanism recently introduced by the European Commission needs to strengthen its focus on the review of the state of civic freedoms, provide stringent, recommendations and follow up closely on their implementation.
Furthermore, Member States and the EU should conduct thorough impact assessments when drafting or implementing policies which may affect civic space and its components – i.e., freedom of expression, peaceful assembly, association and right to participation. Once again, enhanced and inclusive consultation processes would help to contribute to such assessments.
"Support to strategic litigation is particularly crucial if we want to set long-lasting precedents for the protection of civic space and ensure that countries integrate EU law standards in their own laws and practices."
Last but not least, the right of CSOs, including small grassroots movements and organisations, to access resources and receive funding not only within their own country but also from donors abroad or from international organisations should remain the fundamental rule, not the exception. As previously suggested, the EU and Member States should make sure funding is available to cover activities ranging from service provisions, surveys, advocacy, education and to support strategic EU law-based litigation to in EU countries. The latter is particularly crucial if we want to set long-lasting precedents for the protection of civic space and ensure that countries integrate EU law standards in their own laws and practices.