Από: Tarun Krishnakumar
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.
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
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