How Europe’s Civil Society Groups Can Fight Back


 

 

 

 

 

 

What Can Civil Society Do against the Attack it Faces?

Following a recent of movement of limiting civil society orginzations’ rights all across Europe, I wrote this OpEd for Bloomberg, which presents an array of options on how they can fight back against the crackdowns they face.

The European Commission finally looks prepared to take Hungary to court over its crackdown on a George Soros-funded university. But while the commission’s announcement last week marks a welcome change from its previous reluctance, it is no help to many civil society organizations (CSOs) who find their rights infringed but in less high-profile ways. The commission is unlikely to go to such lengths for them; they will need to be more creative in defending themselves.

The EU may be one of the most proactive human rights defenders around the world, but it has a poor record of acting within its own borders — even as CSOs in its member states are increasingly under attack.

Hungary is far from the only offender. Romania and Poland have enacted new laws that restrict funding to non-governmental organizations from both domestic and foreign sources. Anti-money-laundering and anti-terrorism legislation is being used by both countries, along with Bulgaria, to limit funding and impose additional, burdensome requirements on CSOs. Poland is about to pass a law that would allow the government to purge the judiciary of all judges who don’t meet with its approval.

And it’s not just the former east bloc: France, Austria and Spain now severely limit the right to protest including collaboration with third-party nationals and restrictions on where to protest (not close to buildings such as parliament or the seat of regional government).

Smear campaigns against particular organizations in Hungary, Croatia, Italy, Romania and elsewhere create a climate of mistrust toward the sector in society that threatens the future effectiveness and fundraising capacity of these organizations. This leaves civic freedoms severely exposed today, but the sustained campaign against these organizations also compromises their future effectiveness.

Most of the focus on an EU response has been on a process that can lead to the suspension of member states’ voting rights in case of persistent breach of EU values — so-called Article 7 of the European Union treaty. But this framework has never been invoked for a reason: Doing so requires unanimity (clearly lacking in this case). It is in many ways a paper tiger.

Article 7, however, isn’t needed to mount a legal challenge to these measures. Virtually all anti-NGO legislation contravenes the ability of such organizations to provide and receive cross-border services, the right to be established in a member state, to hire non-national workers and receive capital from across the border — all freedoms protected by EU law. Both the commission and the CSOs themselves can challenge these laws in national (and ultimately European) courts.

Even without the courts, the EU can do more. EU treaties, for example, allow the creation of common rules by majority vote to prevent the disruption of the internal market. The European Union could define minimum standards of protection for CSOs in the EU that would bind all European member states. That’s what the EU did when it established the European company statute in 2001, which allows companies operating in more than one member state to follow a common set of rules.

Meanwhile, CSOs themselves are also not helpless. First, both civil and economic freedoms granted by EU law can be invoked before both domestic courts and national administrative authorities. If CSOs start thinking about the breaches they face in market restriction-terms, they are likely to win protection. That is how the European Court of Justice has been able dismantle economic obstacles faced by trade operators and enforce their rights.

Second, the EU provides an arsenal of tools that can be mobilized to force EU institutions themselves to take action, ranging from requests for access to documents, petitions to the European Parliament, or complaints to the EU Ombudsman.

Of course, concerted action by the CSOs requires strategic skills, legal fluency, resources and a road map that many lack. Those resource constraints and lack of expertise empower national authorities to keep them weak. But by banding together and calling on outside expertise both within their own countries and internationally, the CSOs can leverage on the existing EU constitutional and institutional framework to fight back against repression.

There are a number of organizations — including the dozens of foundations gathered in Warsaw that have  pledged to support CSOs via the Solidarity Fund, the EU Fundamental Rights Agency, and leading NGOs such as Liberties and the public interest skill-sharing community The Good Lobby — that can assist by providing legal expertise and other support. And if these organizations can strategically use EU law in the national courts, and eventually the European Court of Justice, to fight back, then maybe the EU itself will be emboldened to take a stronger stand.