Από: Tarun Krishnakumar
Record
On 18 June 2020, the Court of Justice of the European Union (the "Court") delivered its judgment in the caseEuropean Commission v Hungary(Case C-78/18), an action brought by the Commission under Article 258 of the Treaty on the Functioning of the European Union ("TFEU"). In its request to the Court, the Commission requested that this be determined by determiningAct LXXVI of 2017on the transparency of organizations receiving funding from abroad (the "Transparency Law"), Hungary introduced "discriminatory, unjustified and unnecessary restrictions on foreign donations to civil society organizations in violation of the country's obligations under Article 63 of the TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union". In short, the Transparency Act imposed registration, reporting and publication obligations on certain categories of civil society organizations that receive foreign financial support above a certain monetary threshold. Organizations that do not comply with these obligations may be subject to sanctions. , including fines and dismissal.1A more detailed description of the provisions of the law on transparency can be found in §§ 2 - 10 of the Court's decision.
In its ruling, the court agreed with the Commission's claims and found that by adopting the transparency law, Hungary breached its obligations under various provisions of EU law — including those guaranteeing the free movement of capital.Art. 63, SÖV) as well as individual rights such as the right to freedom of association (Art. 12, map), the right to respect for private and family life (Art. 7, map), and the right to protection of personal data (Art. 8, map). In particular, the Court found that none of Hungary's political goals for the law could justify the extent of the restrictions it imposed. The stated goals of the law on transparency included combating foreign influence and interference in "Hungarian social and political life", improving the transparency of civil society organizations, and combating money laundering and terrorist financing.
Even before the court's ruling, the Transparency Act was also informally calledAssociations Act- attracted a lot of attentiontrowithin Hungary, but also internationally. In this context, the Court's decisionit was no surprisefor many, and his discoveries are followed closelyMyby the Attorney General, as well as the Court's practice. Therefore, the decision attracted limited engagement.
Foreign influence and the decision toHungary
While the Court admittedly departs from a limited area of law, the Court's decision offers important lessons for another area of increasing importance—the study of foreign influence campaigns and the design of frameworks to counter them. From disinformation campaigns and covert lobbying to election interference and hidden funding streams, foreign influence is presentrevivalwhile states seek to reshape the global order by shaping public opinion and making decisions across borders. In response, the targeted states are considering a variety of responses to the phenomenon – from stricter foreign financing regimes to foreign agent registration laws aimed at exposing foreign lobbying and political activity.
While jurisdictions such as the United States have long had laws such asAct on registration of foreign agents(“FARA”) to address, among other things, foreign influence and covert activitiesAustraliarecently joined the group - with several others includingThe United Kingdom, is actively implementing legislative reforms in the region. Often aimed at countering similar threats (e.g., while frameworks such as Hungary's Transparency Law can legitimately be considered part of various governmental responses to foreign influence, frameworks that target only narrow segments of organizations are typically more likely to - such as NGOs or civil society - serve other regulatory or policy objectives. Such frameworks cannot be seen as comprehensive counter-influence efforts - a phenomenon that can be channeled through a wide range of stakeholders, including individuals and commercial enterprises.
WhatHungaryAnti-impact agents for front frames
In light of the growing interest in transparency-based anti-influence frameworks, the Court's decisionHungaryprovides many interesting clues for future discussions, including obstacles that are likely to arise. Although the judgment was delivered in the EU, many of the court's findings provide clues to the issues to come. After all, foreign influence is a global phenomenon that is unlikely to abate in the near future.
1. Transparency and labeling
First of all, the decision reveals differences in approaches to the role of transparency and labeling in dealing with foreign influence. While frameworks such as FARA and Australia's Foreign Influence Transparency Scheme ("FITS") rely on foreign agents registering and publishing details of their activities on a public portal, the decision inHungarysuggests that not all jurisdictions will be bound by similar considerations in applying such an approach.
For example, EU jurisdictions may be less tolerant of generically labeling organizations as foreign-funded or foreign agents, fearing that this would discourage donations and prevent the free movement of funds across EU member states. According to the words of the Court inHungary, the provisions of the Transparency Law acted to "create a climate of mistrust towards [covered civil society organisations] which may prevent natural or legal persons from other Member States or third countries from providing them with financial support.Although the observations are specific to the Hungarian law in question, the Court recognized at some level that any benefits of labeling may be outweighed by its effects on the labeled organizations.
Combined with the requirement for public disclosure of donors and the "imposition of additional formalities and administrative burdens" on covered organizations, these requirements acted to prevent support from foreign sources to these organizations. While the Court's decision in the case focused on issues of proportionality and scope within the Hungarian context (discussed below), these observations are noteworthy as non-EU countries are unlikely to have similar restrictions to distinguish between domestic and foreign capital flows. This may point to differences in the way EU and non-EU countries deal with foreign influence, particularly funding.
2. Delineation and targeting
Secondly, the decision inHungaryit also emphasizes the importance of proper enforcement of anti-influence laws based on transparency – particularly in relation to covered entities. Initially, it is important that such legislation clearly delimits – on the basis of an evidence-based risk analysis – what triggers the application of registration or information requirements.
UHungary, the Court objected to the transparency law because it covered all civil society organizations that received a foreign donation, regardless of whether they had a "significant impact on public life and public discussion" taking into account "the aims and means they had for availability" . In other words, the court recognized that not all organizations can exercise the kind of influence that can prove harmful to the state and its democratic institutions. The court also expressed concern that the financial thresholds that triggered the registration and reporting requirements under the Transparency Act were unrelated to the nature of the alleged threat. The funding thresholds were too low to conclude that eligible organizations would do sofrom the event itselfpose a significant danger to Hungary.
While both of the Court's conclusions may be problematic given, among other things, that covert influence does not necessarily require large organizations – especially where the targeting of influence is more subtle (or not overt) – they provide guidance for the way forward. Rather than a threshold-based approach, the criteria for applying the impact framework should reflect a more nuanced risk-based approach. Such an approach is the basic application of the framework inspecific activitiesthe organization participates, for example, to lobby, educate or form opinion. Another can only lead to initiation of registration and other requirements when the organization's activity promotes the interests of the foreign headquarters or financier. In other words, simply receiving foreign funding would not trigger the application of the anti-influence framework. The third can only be used when the organization acts at the behest, control or request of a foreign principal, i.e.resources. The key is to demonstrate an objective, risk-based approach to the application of registration and disclosure requirements – based on activity, not just the fact that funding is received from a foreign source.
Finally, based on the above, there seems to be little reason for an anti-influence framework to only cover certain types of organisations. Channels of influence can range from a well-connected individual acting alone to a large corporation with close ties to the government. While there is no doubt that the civil society organizationcould beThe channel of influence is probably one of the least effective, most obvious and easiest to combat. If the state is serious about tackling influence, it must realize that the form of organization or the advertised purpose is irrelevant. In this context, there is even less basis for targeting or exempting certain types of civil society organizations from compliance — as the transparency law in Hungary does with respect to religious and minority organizations. A strong anti-influence regime must focus not only on the channels of influence, but also on its methods. Anything less is likely not only to raise legal issues of equal treatment, but is also likely to be ineffective in dealing with the consequences in practice.
3. Balancing privacy and transparency
Third, the decision also outlines the potential for the anti-influence framework to conflict with privacy and data protection rules. Because transparency-based frameworks often rely on public disclosure of information related to foreign principals and funding sources, concerns arise about the legal basis for the collection, processing and disclosure of personal data. While approaches to privacy and data protection law will differ in scope, approach and philosophy (as between Europe and the US), states should carefully adapt anti-influence frameworks to align with their current (and rapidly evolving) regulations.2At the same time, this is likely to be more of a problem in a harmonized environment such as the EU, where many rights are granted to residents of the EU as a whole rather than to citizens of a particular country.
If the objective is to detect foreign funding or control, in the absence of special circumstances, it may be sufficient to disclose general and non-identifying information about the source - particularly where individual sources are concerned. If the funding or control relates to a foreign company, government or public figure, more specific disclosures may be acceptable in light of limited privacy concerns. Ultimately, states must be careful to draw the line between disclosing foreign sources and requiring disproportionate information that may have the effect of discouraging the funding relationship in the first place.
conclusion
Although it is not intended to analyze the essence of the Court's decision inHungary, this commentary sought to highlight some aspects of the decision that provide clues for future discussions of foreign influence and the global framework that addresses it. While frameworks for foreign influence should be properly structured to be effective,HungaryThe decision shows that another key issue will be how such a framework interacts with rules in other areas – including privacy, equal treatment and proportionality in limiting other rights. Addressing these issues will require frameworks to adopt a narrowly tailored, evidence-based approach to the risks posed by foreign influence. Anything less could undermine critical societal interests and, more importantly, fail to address the malign influence.
The author is an attorney admitted to the Bar of the United States and India. He is also a research associate in the Foreign Influence Transparency Initiative (FITI) at the Center for International Policy (CIP). All opinions are personal.
Executive Editor: Natasha Nicholson Gaviria
FAQs
What is the role of the Court of Justice of the European Union as a human rights adjudicator? ›
What does the CJEU do? The CJEU gives rulings on cases brought before it. The most common types of case are: interpreting the law (preliminary rulings) – national courts of EU countries are required to ensure EU law is properly applied, but courts in different countries might interpret it differently.
What is the role of the Court of Justice of the European Union? ›The Court of Justice of the European Union (CJEU) is the judicial institution of the European Union. This means that it deals with disputes between parties as the courts do in Ireland. The CJEU ensures that European law is interpreted and applied in the same way in every member state.
What is the Court of Justice of the European Union and Human Rights? ›The court deals with complaints from member states and individuals asserting that another signatory state has breached its Convention obligations. Only a direct victim of a violation of a Convention obligation can apply to the ECtHR. The ECtHR is made up of one judge from each state that is party to the Convention.
What is the structure of the CJEU? ›The CJEU consists of two major courts: the Court of Justice, informally known as European Court of Justice (ECJ), which hears applications from national courts for preliminary rulings, annulment and appeals. It consists of one judge from each EU member country, as well as 11 advocates general.
Is the European Court of Human Rights an international court? ›The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly.
What is the role of the European Court of Justice after Brexit? ›The Government has promised to end the direct jurisdiction of the European Court of Justice (ECJ) after Brexit. However, the role of the court remains a live issue in negotiations. This IfG Analysis charts the UK's experience at the ECJ compared to the 14 other longest-standing members of the European Union (EU).
How powerful is the European Court of Justice? ›The ECJ is the highest court of the European Union in matters of Union law, but not national law. It is not possible to appeal against the decisions of national courts in the ECJ, but rather national courts refer questions of EU law to the ECJ.
What is the role and importance of the European Court of Human Rights? ›What does the European Court of Human Rights do? The Court applies the European Convention on Human Rights. Its task is to ensure that States respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as “applications”) lodged by individuals or, sometimes, by States.
Why did the Court of Justice of the European Union developed and laid down the doctrine of state liability for breach of EU law? ›The European Court of Justice (ECJ) has developed a general principle of state responsibility for non-compliance with EU law. State liability derives from the fact that EU Member States are responsible for the creation and above all for the implementation and enforcement of EU law.
How effective is the European Court of Human Rights? ›The European Convention on Human Rights has made an extraordinary contribution to protecting and promoting human rights and the rule of law in Europe and plays a central role in maintaining democratic security and improving good governance.
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Inspired by the Universal Declaration on Human Rights, the Convention is a unique, legally-binding treaty, overseen by an independent international court, which safeguards people's basic rights and fundamental freedoms.
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What are the 4 principles of the EU? ›The common principles and values that underlie life in the EU: freedom, democracy, equality and the rule of law, promoting peace and stability.
What are the three pillars of EU law structure explain? ›The Three Pillars
The Treaty of Maastricht (1992) created the European Union as a single body of "three pillars". The pillars consist of the European Communities, Common Foreign and Security Policy and Cooperation in Justice and Home affairs. These pillars are seen as the three policy areas.
The Maastricht Treaty altered the former European treaties and created a European Union based on three pillars: the European Communities, the common foreign and security policy (CFSP) and cooperation in the field of justice and home affairs (JHI).
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The European Court of Justice (hereinafter: ecj) is often accused of being an activist Court,1 involved in political law-making.
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Which international court is most effective? ›The International Court of Justice, also known as the ICJ and the World Court, is the world's highest court.
What is the most powerful Court in the world? ›The International Court of Justice (ICJ; French: Cour internationale de justice; CIJ), also called the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordance with international law and gives advisory opinions on international legal issues.
What are the principles of the European Court of Human Rights? ›These principles are democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, equality and solidarity, and respect for the principles of the United Nations Charter of 1945 and international law.
What is the object and purpose of the ECHR? ›As an international treaty, the ECHR specifies the most basic human rights and freedoms on a pan-European level. By doing so, it establishes the rules of conduct of a state towards any person and thus offers the latter protection from arbitrariness. The ECHR is, therefore, a unique legal instrument.
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What is the origin of the European Court of Human Rights? ›The court was established on 21 January 1959 on the basis of Article 19 of the European Convention on Human Rights when its first members were elected by the Parliamentary Assembly of the Council of Europe. Initially, access to the court was restricted by the European Commission of Human Rights, abolished in 1998.
What was one of the main reasons behind the creation of the European Union? ›Origins. The EU represents one in a series of efforts to integrate Europe since World War II. At the end of the war, several western European countries sought closer economic, social, and political ties to achieve economic growth and military security and to promote a lasting reconciliation between France and Germany.
How did the European Court of Human Rights come about? ›The ECHR is the European Convention on Human Rights. It was drafted in the aftermath of the Second World War and the Holocaust in an attempt to protect the people from the State, make sure the atrocities committed would never be repeated, and safeguard fundamental rights.
What is the impact factor of the European Convention on Human Rights Law Review? ›
The impact score (IS) 2021 of European human rights law review is 0.13, which is computed in 2022 as per its definition.
How does the International Court of Justice protect human rights? ›The Court's role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.
Why is the European Convention on Human Rights controversial? ›Some have criticised the concept of 'human rights' as being Western, put into place after WW2 by European and North American politicians and thinkers. They argue that this Western concept of human rights does not apply easily to Islamic or Asian cultures, which have different histories and traditions.
How are judgments of the European Court of Human Rights enforced? ›The Committee of Ministers of the Council of Europe is responsible for enforcing the Court's judgments. States are bound by the decisions of the Court and must execute them accordingly.
Does the EU respect international law? ›The European Union has legal personality and as such its own legal order which is separate from international law. Furthermore, EU law has direct or indirect effect on the laws of its Member States and becomes part of the legal system of each Member State. The European Union is in itself a source of law.
What is the difference between the European court and the Inter American Court? ›Inter-American Court of Human Rights receives petitions from both states and the Commission itself, and then issues advisory opinions. The main difference between the Inter-American Court and the European Court is that the former does not receive petitions from individuals.
Is the European Court of Justice and the Court of Justice of the EU the same thing? ›Court of Justice of the European Union (CJEU), also called European Court of Justice (ECJ), the judicial branch of the European Union (EU). Its basic mission is to ensure the observance and uniform application and interpretation of EU law within EU member states and institutions. Its headquarters are in Luxembourg.
Are the decisions of the European Court of Justice binding? ›The national court to which it is addressed is, in deciding the dispute before it, bound by the interpretation given. The Court's judgment likewise binds other national courts before which the same problem is raised.
What are the 5 priorities of the EU global strategy? ›Peace and security, prosperity, democracy and a rules-based global order are the vital interests underpinning our external action.
What are the 5 types of EU policies? ›- EU treaties. The treaties lay down the objectives of the European Union, the rules for EU institutions, how decisions are made and the relationship between the EU and its member countries. ...
- Regulations. ...
- Directives. ...
- Decisions. ...
- Recommendations. ...
- Opinions. ...
- Delegated acts. ...
- Implementing acts.
What are the 4 main bodies of the EU which influence the decision making within the EU? ›
the European Parliament (Brussels/Strasbourg/Luxembourg) the European Council (Brussels) the Council of the European Union (Brussels/Luxembourg) the European Commission (Brussels/Luxembourg/Representations across the EU)
What is the EU rule of law framework? ›Rule of law guarantees fundamental rights and values, allows the application of EU law, and supports an investment-friendly business environment. It is one of the fundamental values upon which the EU is based on.
What are the 2 main principles applicable for the EU law? ›Institutions must comply with the law and the rule of law. They should respect vested rights. The principle of legitimate expectations should be respected. Those who follow the law in good faith should not be frustrated in their expectations in relation to that law and its application.
What are the three main decision making bodies of the EU? ›- the European Parliament, representing EU citizens.
- the Council of the European Union, representing EU governments.
- the European Commission, representing the EU's overall interests.
In these areas, the EU has what the treaties call shared competences: single market. employment and social affairs. economic, social and territorial cohesion.
What removes the three pillar structure of EU political system? ›The Lisbon Treaty abolished the previous constitutional structure with its "three pillars" in the European treaties.
What is the role of the European Union in human rights? ›The European Union is based on a strong commitment to promoting and protecting human rights, democracy and the rule of law worldwide. Human rights are at the heart of EU relations with other countries and regions. EU policy includes: promoting the rights of women, children, minorities and displaced persons.
What is the role of the European Convention of Human Rights? ›The Convention protects the rights of more than 700 million* people in Europe. All 46 Council of Europe member countries have signed up to the European Convention on Human Rights (ECHR), a treaty designed to protect people's human rights and basic freedoms.
What are the advantages of the European Court of Human Rights? ›Pro – protects freedom
The court “guarantees specific rights and freedoms and prohibits unfair and harmful practices” as set out in the European Convention on Human Rights, including freedom from torture and slavery, freedom of expression and more, according to the Equality and Human Rights Commission.
Who can bring a case to the Court? The Convention makes a distinction between two types of application: individual applications lodged by any person, group of individuals, company or NGO having a complaint about a violation of their rights, and inter-State applications brought by one State against another.
What is the European Union law that grants legal protection to individual humans? ›
What is the GDPR? The General Data Protection Regulation (GDPR) is a European law that established protections for privacy and security of personal data about individuals in European Economic Area (“EEA”)-based operations and certain non-EEA organizations that process personal data of individuals in the EEA.
What is the role of EU in the development of international relations? ›Principal roles in international relations
The European Commission plays a key role in the design of development policy and delivering aid worldwide. Internationally, it helps to negotiate development cooperation agreements and is represented on the ground by EU delegations around the world.
SAFEGUARDING HUMAN RIGHTS
The Council of Europe helps member states fight corruption and terrorism and undertake necessary judicial reforms.
The European Convention on Human Rights and Fundamental Freedoms (ECHR) 1950 was created by the Council of Europe (not to be confused with the European Union!). The Council of Europe was set up after the Second World War to protect human rights and the rule of law and to promote democracy across Europe.
How does the European Convention of human rights support equality? ›The European Convention on Human Rights protects people from discrimination – including discrimination based on ethnicity, gender or sexuality. Judgments from the European court have provided justice for the victims of discrimination.
How does the European Court of Human Rights protect human rights? ›What does the European Court of Human Rights do? The Court applies the European Convention on Human Rights. Its task is to ensure that States respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as “applications”) lodged by individuals or, sometimes, by States.