— European Commission (@EU_Commission) July 13, 2017
In June 2017, the Orbán government introduced a new law, obliging certain categories of NGOs receiving annual foreign funding above HUF 7.2 million (about €24.000) to register, and label themselves in all publications, websites and press material as ‘organisations supported from abroad’. In addition, they need to report specific information about this foreign support to the Hungarian authorities. Organisations face sanctions, should they fail to comply with these new reporting and transparency obligations.
“Civil society is the very fabric of our democratic societies and therefore should not be unduly restricted in its work. We have studied the new law on NGOs carefully and have come to the conclusion that it does not comply with EU law. We expect that the Hungarian government will engage in a dialogue to resolve this issue as soon as possible. We await a reaction from the Hungarian authorities within a month.“
Besides the fact that Timmermans might not the right person to level further criticism at the Orbán government after his emotional blunder earlier this year, the EU Commission’s case is badly argued in their press release. The Commission ‘concludes’ that the law does not comply with EU law for three reasons:
Firstly, they claim:
“The law interferes unduly with fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union, in particular the right to freedom of association. The new law could prevent NGOs from raising funds and would restrict their ability to carry out their work.“
This ‘reason’ seems to consist of two separate statements. One is the allegation that the Hungarian law interferes with the right to freedom of association. No argument why this would be the case is made. The only possible argument that could be read in this statement, is that the Hungarian law, according to the Commission, prevents the raising of all funds, not just foreign. And that this would simultaneously restrict NGOs’ ability to work. Yes, operating without funds would be very difficult, but there is simply no argument presented here how the Hungarian law would cause this effect.
“The law also introduces unjustified and disproportionate restrictions to the free movement of capital, as outlined in the Treaty on the Functioning of the European Union. The new registration, reporting and publicity requirements foreseen by the law are discriminatory and create an administrative and reputational burden for these organisations. These measures may have a dissuasive effect on the funding from abroad and make it difficult for the concerned NGOs to receive it.“
The Commission undoubtedly has a point that the Hungarian law causes an administrative burden, though this point would have been improved by quoting the relevant sections of the law, showing the extent of this burden.
That the Commission fears a ‘reputational burden’ is very interesting, especially in view of the dissuasive effect on funding the Commission fears. The Commission’s defence of secrecy to the detriment of transparency is, again, very interesting. But lacking is an argument, based on references to the Hungarian law that support the conclusion arrived at by the Commission.
“The law also raises concerns as regards the respect of the right to protection of private life and of personal data. It does not strike a fair balance between transparency interests and the right of donors and beneficiaries to protect their personal data. This relates in particular to the requirement to provide the Hungarian authorities with the exact amounts of transactions and detailed information about donors, which are then made public by the authorities.“
This is the first ‘conclusion’ by the Commission that actually argues a point with something amounting to a tangible reference to the actual law. But by failing to take the Hungarian point of view into account, the reader is left with yet another ‘because we say so’-opinion by the Commission.
The conclusion that the balance is unfair can only be reached after weighing the arguments for and against. By only providing a one-sided condemnation, the Commission again fails to communicate why her conclusion is valid.
The Hungarians have a month to officially respond to this, the first step of the infringement procedure. If no reply is received, or if it finds the reply unsatisfactory, the Commission may decide to proceed to the next stage. This requires the Commission to send a ‘reasoned opinion’ to Hungary. Ultimately, the Commission may refer the case to the Court of Justice of the EU. In view of Brussels recent power play against Eastern-European member states, it may come to that.