An EU government adopts a law requiring all civil society organisations (CSOs) operating in the country to regularly transmit an updated list of foreign donations they received, including personal details on the donors and amounts donated – under the threat of heavy sanctions. CSOs receiving money from foreign donors above a certain threshold are listed in a special public registry in the name of transparency, while the authorities increasingly point out at the risks that foreign funded organisations pose to the integrity of the state.
In another Member State, the government decides to impose new, burdensome registration and certification requirements on CSOs engaged in providing assistance to migrants and asylum seekers. Authorities enjoy a broad discretion in validating registration and certification, which are prerequisites to operate and to receive funding.
Elsewhere in the EU, cases multiply of CSOs engaged in advocacy and campaigning on sensitive issues such as climate and social justice that see their charitable status withdrawn. As a result, they become subject to heavy taxation and face obstacles in benefitting from state funding and private donations.
Disguised attempts to stigmatise and hamper CSOs’ freedom of association
National laws and practices stigmatising and stifling CSOs’ work under the guise of regulating their status, registration and reporting requirements, such as those illustrated by the examples made above, are becoming more and more common in the EU. Developments reported during 2020 show this pattern quite clearly. Attempts to emulate the well-known Hungarian NGO law of 2017 were denounced over the summer in Bulgaria. New provisions were introduced in Greece earlier this year to tighten requirements for the registration and operations of CSOs working on asylum and migration, despite the critical opinion of the Council of Europe Expert Council on NGO Law. A recent report draws attention to the inadequacy of rules on charitable status in Germany and their misuse by some politicians and lobbyists to trouble CSOs whose work does not fit their interests.
Human rights law is clear on the fact that the right to freedom of association protects the possibility for CSOs to pursue their activities and operate without unjustified interference by the state. Laws, which introduce excessively heavy registration requirements, significantly limit associations’ capacity to receive financial resources, impose reporting obligations such as to create a negative image of them or expose CSOs to the threat of penalties, in particular of dissolution, render the action and operations of the CSOs significantly more difficult. They are therefore to be regarded as a clear interference in the right to freedom of association.
While governments are entitled to regulate the status, registration and funding of CSOs in their territory having regard to objectives of general interest such as transparency or the protection of public order, the multiplication of laws introducing disproportionate requirements seem to reflect a devious tendency of using regulatory powers to unduly restrict the civil society space.
EU law may help, the EU Court of Justice says
The status, registration and funding of CSOs is currently not regulated at EU level. Each EU government therefore remains free to introduce the rules it deems more appropriate in its national context. However, national rules on the registration and funding of CSOs may well impact on a number of EU obligations.
For example, national rules restricting access to funding, in particular from foreign sources, may affect the free movement of capital, according to which any restrictions on capital movements and payments, including donations, across the EU is prohibited (Article 63 TFEU). They may also deprive EU rules on the disbursement of EU funds of their effectiveness, contrary to the duty of sincere cooperation (Article 4 TEU). Rules on status or registration requirements may come into conflict with the freedom of establishment (Article 49 TFEU) which grants the right to set up agencies, branches or subsidiaries in other member states to any organisations (including CSOs) involved in some form of economic activities, even non-profit.
When this is the case, the legality of those national rules may be challenged on the basis of EU law, also in the light of the fundamental rights guaranteed by the EU Charter of Fundamental Rights (CFR). These include the right to freedom of association (Article 12 CFR) as well as other rights that may be impacted by national rules, such as non-discrimination (Article 21 CFR) or the right to privacy and protection of personal data (Article 7 and Article 8 CFR). It is precisely this reasoning that led the EU Court of Justice to condemn Hungary for the breach of EU obligations on account of its NGO law of 2017, in a recent ruling prompted by a legal action brought against the Hungarian state by the European Commission.
Calling on national and EU bodies to safeguard freedom of association
National courts are the first in line to turn to. Before a competent national court, you will be able to invoke the incompatibility of national rules with 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.
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 by approaching national authorities or through litigation, if their mandate allows.
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.
Should national courts or independent bodies be unable to assist you to claim your rights, you may get EU institutions deal with the matter.
National laws and measures, which appear in breach of governments’ obligations under EU law, 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. 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 the ECNL/Philanthropy Advocacy Webinar on 17 November to find out more!
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. The new Handbook published earlier this year will provide the basis for such discussions, alongside other ECNL resources such as its Fundraising Principles or its recent briefer on permissible limitations on freedom of association.
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.