Opinions nº C-78/18 of Tribunal de Justicia, January 14, 2020
|Resolution Date:||January 14, 2020|
|Issuing Organization:||Tribunal de Justicia|
(Action for failure to fulfil obligations - Free movement of capital - Articles 63 TFEU and 65 TFEU - Respect for private life - Protection of personal data - Freedom of association - Transparency - Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union - Foreign donations to non-governmental organisations which carry on their activity in a Member State - National legislation imposing on non-governmental organisations in receipt of support from abroad legally binding obligations of registration, declaration and transparency which can be enforced)
1. In an action brought by the Commission, the Court is required to adjudicate on whether Hungary, in establishing by law (2) certain restrictions on donations received from abroad for the benefit of so-called ‘civil society organisations’, has failed to fulfil the obligations incumbent on it under Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2. The Court must rule on the action for failure to fulfil obligations brought by the Commission, by again approaching the judicial review of a Member State’s actions in such a way that, in its analysis, the fundamental freedoms laid down in the Treaties dovetail harmoniously with the rights protected by the Charter.
1. FEU Treaty
3. Article 63 TFEU reads:
‘1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.’
4. Article 65 TFEU provides:
‘1. The provisions of Article 63 shall be without prejudice to the right of Member States:
to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Treaties.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63.
2. The Charter
5. Article 7 states:
‘Everyone has the right to respect for his or her private and family life, home and communications.’
6. Article 8 stipulates:
‘1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.’
7. In accordance with Article 12(1):
‘Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.’
8. Article 52 provides:
‘1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
National law. Law No LXXVI of 2017
9. The preamble states:
‘… organisations established in accordance with the freedom of association are an expression of the self-organisation of society and their activities contribute to democratic scrutiny of and public debate about public issues … such organisations perform a decisive role in the formation of public opinion,
- … the transparency of associations and foundations in society is overwhelmingly in the public interest,
- … support from unknown foreign sources to organisations established in accordance with the freedom of association is liable to be used by foreign public interest groups to promote - through the social influence of those organisations - their own interests rather than community objectives in the social and political life of Hungary and … may jeopardise the political and economic interests of the country and the ability of legal institutions to operate free from interference.’
10. In accordance with Article 1:
‘1. For the purposes of the application of this law, “organisation in receipt of support from abroad” means every association or foundation which benefits from funding within the meaning of paragraph 2.
2. For the purposes of this law, any donation of money or other assets coming directly or indirectly from abroad, regardless of the legal instrument, shall be treated as support where, in a given financial year, that donation - alone or cumulatively - comes to double the amount stipulated in Paragraph 6(1)(b) of Law No LIII of 2017 on the prevention of and fight against money laundering and terrorist financing (“the Pmt Law”). (3) 3. That calculation of the amount of support for the purposes of paragraph 2 shall not include support received by the association or foundation under a special legal rule, such as funding from the European Union channelled through a [Hungarian] financial institution.
4. This law shall not apply to:
associations and foundations which are not regarded as civil society organisations;
associations covered by Law No I of 2004 on sport;
organisations which carry on a religious activity;
organisations and associations for national minorities covered by Law No CLXXIX of 2011 on the rights of national minorities, and foundations which, in accordance with their constitution, carry on an activity directly connected to the cultural autonomy of a national minority or which represent and protect the interests of a particular national minority.’
11. Paragraph 2 provides:
‘1. Every association and foundation within the meaning of Paragraph 1(1) must, within 15 days, give notice of the fact that it has become an organisation in receipt of support from abroad where the amount of support it has received in the year in question comes to double the amount stipulated in Paragraph 6(1)(b) of the [Pmt] Law.
2. An organisation in receipt of support from abroad must send the declaration referred to in paragraph 1 to the court with jurisdiction for the place of its registered office (“the court for the place of registration”) and provide the information specified in Annex I. (4) The court for the place of registration shall include the declaration in the records relating to the association or foundation in the register of civil organisations and other organisations considered to be non-commercial (“the register”) and shall record the association or foundation as an organisation in receipt of support from abroad.
3. Applying by analogy the rules laid down in paragraph 1, the organisation in receipt of support from abroad must forward to the court for the place of registration, at the same time as its calculation of the amount received, a declaration containing the information specified in Annex I relating to support received in the previous year. The declaration must set out, for the year in question,
where the support is less than HUF 500 000 (5) per donor, the information set out in Annex I, point (A), part II,
where the support is equal to or more than HUF 500 000 per donor, the information set out in Annex I, point (B), part II.
4. By the 15
thday of each month, the court for the place of registration must send to the minister with responsibility for management of the civil information portal the name, registered office and tax identifier of the associations and foundations which it has entered in the register as organisations in receipt of support from abroad in the previous month. The minister shall disseminate without delay the information forwarded to it in order to ensure that the information is freely available to the public on the electronic platform set up for that purpose.
5. After making its declaration for the purposes of paragraph 1, the organisation in receipt of support from abroad must indicate without delay on its homepage and in its publications … that it has been classified as an organisation in receipt of support from abroad within the meaning of this law.
6. The organisation in receipt of support from abroad shall continue to be bound by the obligation laid down in paragraph 5 for as long as it is classified as [such] an organisation for the purposes of this...
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