CJEU - C-78/18 - Commission v Hungary (Opinion of AG Campos): Difference between revisions
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}} | }}The Advocate General Campos Sanchez-Bordona considered that the restriction imposed by Hungary on the financing of civil organisation from abroad are not compatible with the free movement of capitals provisions and the Charter. He proposed that the Court of Justice should declare that the legislation at issue unduly restricts the free movement of capital, in that it includes provisions which amount to unjustified interference with the fundamental rights of respect for private life, protection of personal data and freedom of association protected by the Charter. | ||
==English Summary== | ==English Summary== | ||
===Facts=== | ===Facts - Curia's press release=== | ||
In 2017, Hungary adopted a lawin order to ensure transparency incivilorganisationsthat receivedonationsfrom abroad. Under that law, suchorganisationsmustregister withthe Hungarian authorities as‘organisationsin receipt ofsupport from abroad’where the amount of the donations they have received in a given yearreaches a certain threshold. When registering, those organisations also have to indicatethename of donorswhose supportreaches or exceeds 500000 Hungarian forints (HUF)(approximately€1500) and the exact amount of thesupport. That informationis later published on a free, publicly accessiblee-platform. In addition, the civil organisations concerned must indicate on their home pages and in their publications that they are an ‘organisationin receipt ofsupport from abroad’. The Commission brought an action for failure to fulfil obligations against Hungary before the Court of Justice. It claims that the law on the transparency of civil organisations financed from abroad infringes both the principle of free movement ofcapital and a number of rights protected by the Charter of Fundamental Rights of the EuropeanUnion (‘the Charter’): the right to respect for private life, to protection of personal data, and to freedom of association. | |||
===The opinion of the Advocate General === | |||
The Advocate General Manuel Campos Sánchez-Bordona takes the view that the transfer of a donationfrom abroad in favour of a Hungarian civil organisationisa movement of capital. In Hungary, that movement of capitalis subject to conditions such as the obligation imposed on certain civil organisations to register as ‘organisationsin receipt of support from abroad’ and the publication of certain data. | |||
However, those conditions apply solely in the case of donations coming from abroad, as a result of which they are much more likely to affect nationals of other Member Statesthan Hungarian nationals. In those circumstances, the Advocate General is of the opinion that those conditions amount to a restrictionof the principle of free movement of capital, both with regard to the organisations affected, which may have to cope with financing difficultiesand whose exercise of the right to freedom ofassociation may be limited, and their foreign donors, who may be dissuaded from making donationson account of the possible stigmatising effect of the publication of the details of those transactions, because they expressan ideological affinity that might be compromisingin the Hungarian national context. Concerning, in particular, theright to freedom of association, the financial effects of the legislation at issue may affect the viability and the survival of the organisations concerned, undermining the attainment of their social objectives. Furthermore, by making thefinancial contribution of potential donors more difficult, that legislation directly affects those persons’ exercise of the freedom of association. | |||
As regards the protection of private life and personaldata, the Advocate General states that the meredisclosure of the donor’s name is sufficient by itself to identify that donor and to place that disclosure within the scope of the provisions of EU law on the treatment of personal data.1The fact that the donor’s name is inextricably linked to a donation for the benefit of a civil organization constitutes a link that by itself reveals an affinity between the donor and that organisation, which may help to ideologically profile the donor. The Advocate General adds that the fact that the data published enable such profiling may deter donors or dissuade them from helping to support civil organisations. In that context, the Advocate General considers that the publication in a publicly accessible register of the names of natural persons who make donations from abroad to certain associations established in Hungary and the amounts of such donations is an interference in the private life of those persons as regards the processing of their personal data. Consequently, the Advocate General takes the view that the publication of those data is an interference both with the rights relating to the protection of private life and personal data, and with the right to freedom of association, all safeguarded by the Charter. In respect of whether there is justification for that interference, the Advocate General admits that some general interest objectives relied on by Hungary—such as the protection of public policy and the fight against money laundering and terrorist financing—may justify, in principle, interference with the rights concerned, but finds that, while the objective of the protection of public policy could legitimise measures imposed on civil organisations suspected of breaching public policy, that obligation does not legitimize general legislation which imposes, ex ante, the obligations at issue on all civil organisations. Moreover, the Advocate General considers that the EU legislative provisions on the fight against money laundering and against terrorist financing2aresufficient for the purposes of guaranteeing adequate protection. Lastly, the Advocate General finds that the measures at issue are disproportionate because, first, the threshold of500000Hungarian forints(HUF)is excessively low given the gravity of the resulting interference; secondly, donations coming from other Member States are treated in the same way as those coming from outside the EU and, thirdly, failure to comply with the obligation sat issue can lead to the winding-upof the infringing organisation. In those circumstances, the Advocate General proposes that the Court of Justice should declare that the Hungarian legislation at issue unduly restricts the free movement of capital, in that it includes provisions which amount to unjustified interference with the fundamental rights of respect for private life, protection of personal data and freedom of association protected by the Charter. | |||
===The decision of the Court=== | ===The decision of the Court=== | ||
To be completed.. | |||
==Comment== | ==Comment== | ||
There is no judgement yet. | |||
Revision as of 11:03, 20 February 2020
| CJEU - C-78/18 | |
|---|---|
 | |
| Court: | CJEU |
| Jurisdiction: | European Union |
| Relevant Law: | Article 4(11) GDPR Article 6(1)(a) GDPR Article 5(3) ePrivacy Directive 2002/58/EC |
| Decided: | 14. 2. 2020 |
| Parties: | VZBV Planet49 GmbH |
| Case Number/Name: | C-78/18 |
| European Case Law Identifier: | ECLI:EU:C:2020:1 |
| Reference from: | |
| Language: | 24 EU Languages |
| Original Source: | Judgement |
| Initial Contributor: | n/a |
The Advocate General Campos Sanchez-Bordona considered that the restriction imposed by Hungary on the financing of civil organisation from abroad are not compatible with the free movement of capitals provisions and the Charter. He proposed that the Court of Justice should declare that the legislation at issue unduly restricts the free movement of capital, in that it includes provisions which amount to unjustified interference with the fundamental rights of respect for private life, protection of personal data and freedom of association protected by the Charter.
English Summary
Facts - Curia's press release
In 2017, Hungary adopted a lawin order to ensure transparency incivilorganisationsthat receivedonationsfrom abroad. Under that law, suchorganisationsmustregister withthe Hungarian authorities as‘organisationsin receipt ofsupport from abroad’where the amount of the donations they have received in a given yearreaches a certain threshold. When registering, those organisations also have to indicatethename of donorswhose supportreaches or exceeds 500000 Hungarian forints (HUF)(approximately€1500) and the exact amount of thesupport. That informationis later published on a free, publicly accessiblee-platform. In addition, the civil organisations concerned must indicate on their home pages and in their publications that they are an ‘organisationin receipt ofsupport from abroad’. The Commission brought an action for failure to fulfil obligations against Hungary before the Court of Justice. It claims that the law on the transparency of civil organisations financed from abroad infringes both the principle of free movement ofcapital and a number of rights protected by the Charter of Fundamental Rights of the EuropeanUnion (‘the Charter’): the right to respect for private life, to protection of personal data, and to freedom of association.
The opinion of the Advocate General
The Advocate General Manuel Campos Sánchez-Bordona takes the view that the transfer of a donationfrom abroad in favour of a Hungarian civil organisationisa movement of capital. In Hungary, that movement of capitalis subject to conditions such as the obligation imposed on certain civil organisations to register as ‘organisationsin receipt of support from abroad’ and the publication of certain data.
However, those conditions apply solely in the case of donations coming from abroad, as a result of which they are much more likely to affect nationals of other Member Statesthan Hungarian nationals. In those circumstances, the Advocate General is of the opinion that those conditions amount to a restrictionof the principle of free movement of capital, both with regard to the organisations affected, which may have to cope with financing difficultiesand whose exercise of the right to freedom ofassociation may be limited, and their foreign donors, who may be dissuaded from making donationson account of the possible stigmatising effect of the publication of the details of those transactions, because they expressan ideological affinity that might be compromisingin the Hungarian national context. Concerning, in particular, theright to freedom of association, the financial effects of the legislation at issue may affect the viability and the survival of the organisations concerned, undermining the attainment of their social objectives. Furthermore, by making thefinancial contribution of potential donors more difficult, that legislation directly affects those persons’ exercise of the freedom of association.
As regards the protection of private life and personaldata, the Advocate General states that the meredisclosure of the donor’s name is sufficient by itself to identify that donor and to place that disclosure within the scope of the provisions of EU law on the treatment of personal data.1The fact that the donor’s name is inextricably linked to a donation for the benefit of a civil organization constitutes a link that by itself reveals an affinity between the donor and that organisation, which may help to ideologically profile the donor. The Advocate General adds that the fact that the data published enable such profiling may deter donors or dissuade them from helping to support civil organisations. In that context, the Advocate General considers that the publication in a publicly accessible register of the names of natural persons who make donations from abroad to certain associations established in Hungary and the amounts of such donations is an interference in the private life of those persons as regards the processing of their personal data. Consequently, the Advocate General takes the view that the publication of those data is an interference both with the rights relating to the protection of private life and personal data, and with the right to freedom of association, all safeguarded by the Charter. In respect of whether there is justification for that interference, the Advocate General admits that some general interest objectives relied on by Hungary—such as the protection of public policy and the fight against money laundering and terrorist financing—may justify, in principle, interference with the rights concerned, but finds that, while the objective of the protection of public policy could legitimise measures imposed on civil organisations suspected of breaching public policy, that obligation does not legitimize general legislation which imposes, ex ante, the obligations at issue on all civil organisations. Moreover, the Advocate General considers that the EU legislative provisions on the fight against money laundering and against terrorist financing2aresufficient for the purposes of guaranteeing adequate protection. Lastly, the Advocate General finds that the measures at issue are disproportionate because, first, the threshold of500000Hungarian forints(HUF)is excessively low given the gravity of the resulting interference; secondly, donations coming from other Member States are treated in the same way as those coming from outside the EU and, thirdly, failure to comply with the obligation sat issue can lead to the winding-upof the infringing organisation. In those circumstances, the Advocate General proposes that the Court of Justice should declare that the Hungarian legislation at issue unduly restricts the free movement of capital, in that it includes provisions which amount to unjustified interference with the fundamental rights of respect for private life, protection of personal data and freedom of association protected by the Charter.
The decision of the Court
To be completed..
Comment
There is no judgement yet.
