CJEU - Opinion of AG Campos in C-78/18 - European Commission v Hungary (Transparency of associations)

CJEU - C-78/18
Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 8 of the Charter
Decided:	14. 2. 2020
Parties:	Hungary Vs. European Commission
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 is not compatible with internal market provisions and the Charter, including the right to protection of personal data. He proposed that the Court of Justice should declare that the legislation at issue unduly restricts the free movement of capital, and lead to unjustified interference with the fundamental rights of respect for private life, protection of personal data and freedom of association protected by the Charter.

Curia - press release

Facts

In 2017, Hungary adopted a law in order to ensure transparency in civil organisations that received donations from abroad. Under that law, such organisations must register with the Hungarian authorities as ‘organisations in receipt of support from abroad’ where the amount of the donations they have received in a given year reaches a certain threshold. When registering, those organisations also have to indicate the name of donors whose support reaches or exceeds 500000 Hungarian forints (HUF) (approximately €1500) and the exact amount of the support. That information is later published on a free, publicly accessible platform. In addition, the civil organisations concerned must indicate on their home pages 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. It claims that the law on the transparency of civil organisations financed from abroad infringes both the principle of free movement of capital and a number of rights protected by the Charter of Fundamental Rights of the European Union (‘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 donation from abroad in favour of a Hungarian civil organisation is a 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 States than Hungarian nationals. In those circumstances, the Advocate General is of the opinion that those conditions amount to a restriction of the principle of free movement of capital, both with regard to the organisations affected, which may have to cope with financing difficulties and whose exercise of the right to freedom of association may be limited, and their foreign donors, who may be dissuaded from making donations on account of the possible stigmatising effect of the publication of the details of those transactions, because they express an ideological affinity that might be compromising in the Hungarian national context. 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, undermining the attainment of their social objectives. Furthermore, by making the financial 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 personal data, the Advocate General states that the mere disclosure 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. The 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 financing are sufficient for the purposes of guaranteeing adequate protection. Lastly, the  Advocate General finds that the  measures at  issue  are disproportionate because, first, the threshold of 500000 Hungarian 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 obligations at issue can lead to the winding-up of 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

On 18 June 2020, the Court declared that, by adopting the provisions of the a külföldről támogatott szervezetek átláthatóságáról szóló 2017. évi LXXVI. törvény (Law No LXXVI of 2017 on the Transparency of Organisations which receive Support from Abroad), which impose obligations of registration, declaration and publication on certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and which provide for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary has introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations, in breach of its obligations under Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union. The judgment can be read in its entirety here.

Comment

Here, you can read the pdf version of the AG's opinion press release.