CJEU - C-78/18 - Commission v Hungary (Opinion of AG Campos)

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CJEU - C-78/18
Cjeulogo.png
Court: CJEU
Jurisdiction: European Union
Relevant Law:
http://curia.europa.eu/juris/liste.jsf?language=fr&td=ALL&num=C-78/18
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: AG Opinion
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.