Under the pretext of transposing EU rules on combating money laundering, a member state puts in place a very heavy system of transparency reporting which explicitly targets CSOs, arguing that CSOs are more frequently and easily used to disguise money laundering activities.
A CSO organises a disruptive rally next to an oil drilling site to contest controversial oil rig work. As a result, the CSO’s director is criminally prosecuted on the basis of national provisions implementing an EU Directive on combating terrorism.
A CSO is threatened with a lawsuit requesting a massive sum of money in damages by a political figure. The politician claims the violation of his right to be forgotten under EU data protection law, due to a blog post on the CSO’s website exposing some illegal practices that the politician carried out but for which he is no longer indictable because the claim is statute barred.
Turning EU law off its head
Cases where EU law is misused, abused or misinterpreted in a way which negatively affects civic space and the work of CSOs are routinely reportedly these days. The examples above resonate with real life cases:
- the debate around Romania’s anti-money laundering law and its impact on CSOs;
- the criticism moved to the chilling effect on civic freedoms of Spain’s Law on Citizen Security;
- or examples of the apparent misuse of EU data protection law to silence critical voices.
Indeed, EU law is mostly construed in a way that allows member states to retain a certain leeway – a “margin of appreciation” – when implementing, transposing or applying its mandatory provisions. EU directives, for example, require member states to achieve a specific result but do not dictate the exact means through which to achieve the result. Therefore, it is up to member states to adopt national laws to achieve those results. Sometimes, even EU regulations - which (unlike directives) are directly applicable in member states - include “non-self-executing” provisions that allow a degree of flexibility in how they should be implemented. Add to that the fact that EU rules, like all legal provisions, are naturally the object of an exercise of legal interpretation.
As a result, it happens that member states use their margin of appreciation to go beyond the minimum requirements of EU law, by adopting more favourable or more stringent national measures than what EU rules actually require. When this is done to put in place a tougher regulation, it is known as “gold-plating”. Beyond member states, public and private entities - be it companies, individuals or national authorities - can also rely on the margin left for EU rules’ interpretation to purport incorrect or abusive readings of what EU law requires.
The examples reported show how this can result in undue restrictions on fundamental rights and civic space. Sometimes, member states simply go further than is necessary. In other cases, instead, public or private actors deliberately take advantage of EU law as a tool to undermine the work of CSOs. Some governments even do it strategically to pre-empt criticism of their measures shrinking civic space by EU and national watchdogs and monitoring bodies.
Yet EU law is there to protect fundamental rights and civic space
The scope and meaning of EU law must be defined and interpreted in the light of the EU legislator’s intentions and in compliance with the overarching principles, which lie at the foundation of the EU legal order. These principles – referred to as the “general principles of EU law” – include criteria meant to test regulatory measures against their necessity and proportionality. They also include fundamental rights and freedoms as enshrined in the EU Charter of Fundamental Rights (CFR). CFR provisions, such as the right to freedom of association, freedom of assembly or freedom of assembly, can be used to support a rights-compliant interpretation of EU law provisions with a view to protect civic space and the independence and autonomy of CSOs from undue interferences.
In the examples above, a CSO which finds itself subject to unreasonable transparency reporting requirements pursuant to national rules transposing EU anti-money laundering obligations may challenge such requirements relying on the principles of necessity and proportionality and on their right to freedom of association (Article 12 CFR).
Faced with criminal charges grounded in EU antiterrorism legislation for having held a demonstration, a CSO may invoke the need to interpret national rules transposing EU law in accordance with the right to freedom of assembly (Article 12 CFR) and the principle of legality and proportionality of criminal offences and penalties (Article 49 CFR).
Also, a CSO threatened with legal action on the basis of EU data protection law for having documented a politician’s illegal practices may contest the merits of the action underlining the need to reconcile the right to the protection of personal data pursuant to EU rules with the right to freedom of expression and information (Article 11 CFR).
Calling on national courts and bodies to set the record straight
National courts are the first in line to turn to, should you become the target of an incorrect or abusive implementation of EU rules which results in an undue restriction of your rights and freedoms. Before a competent national court, you will be able to invoke the violation by public or private entities of those general principles, which bind the implementation of EU law, including fundamental rights and freedoms enshrined in the CFR. The national court would have a duty to look into the matter, possibly requesting the assistance of the EU Court of Justice, who is there to guide national judges and authorities on how EU law should be correctly interpreted and applied.
If you are not keen on litigating before a court, you may also raise the issue with independent national authorities. Bodies like the national human rights institution may be in a position to help where the restriction results from national law or from an established practice of national authorities. Specialised entities may also help in cases concerning specific areas of law and involving private parties. This is the case for example, as regards data protection, of the national Data Protection Authorities (DPAs), which supervise, through investigative and corrective powers, the application of data protection law, including EU rules.
How to bring the matter to the attention of EU institutions?
Should national courts or independent bodies be unable to assist you to claim your rights, you may get EU institutions deal with the matter.
You can challenge national laws and measures which appear in breach of governments’ obligations under EU law 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. The Commission 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, which can lead to proceedings before the EU Court of Justice.
Join our webinar on 17 November to find out more! ECNL, in partnership with Philanthropy Advocacy, a joint EFC and DAFNE project, will hold a webinar on How to use EU law to protect civic space.
The workshop is meant as a space for CSOs to learn and discuss how to use EU law to defend fundamental rights and civic space in the EU, building on the Handbook published earlier this year. Participants will hear from experts on how EU law and arguments can be used in litigation processes or towards national policy makers and will have an opportunity to discuss their own experience and concerns with their peers. Don’t miss this opportunity!