The restrictions imposed by Hungary on the funding of civil organisations from abroad infringes the principle of free movement of capital and the right to respect for private life, to protection of personal data, and to freedom of association, protected by the Charter of Fundamental Rights of the European Union, said Advocate General Manuel Campos Sánchez-Bordona in his Opinion adopted on Tuesday 14 January (Case C-78/18).
In 2017, Hungary adopted a law to ensure the transparency of civic organisations receiving donations from abroad. Under this law, such organisations must register with the Hungarian authorities as ‘organisations in receipt of support from abroad’ as soon as the annual amount of donations received exceeds a certain threshold (HUF 7.2 million or €24,000).
When registering, NGOs must identify donors whose support exceeds HUF 500,000 (approximately €1,500) and the exact amount of support. This information is published on a public electronic platform. The organisations concerned must mention on their websites and in their publications that they are an "organisation in receipt of support from abroad".
The Commission brought an action for failure to fulfil obligations against Hungary before the Court of Justice (see EUROPE 11921/24). In his Opinion, the Advocate General agrees with the Commission.
Mr Campos Sánchez-Bordona notes that the conditions imposed by Hungarian legislation apply only to donations from abroad and are therefore more likely to affect nationals of other Member States than Hungarian nationals. In his view, those conditions amount to a restriction of the principle of free movement of capital both with regard to the organisations affected and their foreign donors. They may be dissuaded from making donations on account of the possible stigmatising effect of the publication of the details of those transactions, he says.
Concerning, in particular, the right to freedom of association, the financial effects of the legislation at issue may affect the viability and the survival of the organisations concerned. Moreover, in the Advocate General's view, the regulation directly affects potential donors’ exercise of freedom of association by placing obstacles in the way of their economic contribution.
As for the protection of private life and personal data, the publication of the donor's name is sufficient by itself to fall within the scope of the Regulation (2016/679) governing the processing of personal data. According to Mr Campos Sánchez-Bordona, linking the name of a donor to a donation made to a civil association reveals an affinity between the donor and that organisation, which may help to ideologically profile the donor.
In that context, the Advocate General considers that the Hungarian legislation involves an interference with the right to freedom of association and with the private life of the persons concerned.
Mr Campos Sánchez-Bordona acknowledged that certain general interest objectives invoked by Hungary - such as the protection of public order and the fight against money laundering and terrorist financing - may justify, in principle, interference with the rights concerned.
However, he considers that while the objective of protecting public policy could legitimise measures imposed on civil organisations suspected of breaching public policy, that obligation does not legitimise general legislation which imposes, ex ante, the obligations at issue on all civil organisations. Furthermore, the Advocate General considers that the Directive (2015/849) on the fight against money laundering and terrorist financing are sufficient for the purposes of guaranteeing protection.
Finally, the measures in question are disproportionate. The threshold of HUF 500,000 is excessively low given the gravity of the resulting interference. Secondly, donations from other Member States are treated in the same way as those coming from outside the EU. Thirdly, failure to comply with the Hungarian legislation at issue can lead to the winding-up of the infringing organisation.
See the conclusions: http://bit.ly/3a9UeoQ (Original version in French by Mathieu Bion)