- The So-called Law on Foreign Agents is incompatible with the European Union legal system and values. There is no legislation in any country of the EU that assigns the status of "foreign agent" to non-governmental organizations.
- According to the European Court of Justice, the so-called Foreign Agents Law (Hungary) violates Article 63 of the Treaty on the Functioning of the European Union (free movement of capital) and Article 12 of the Charter of Fundamental Rights of the European Union (freedom of association).
- Furthermore, the decision of ECJ and the infringement procedure launched by the European Commission to enforce it forced Hungary to abolish the mandatory registration and attach NGOs such a label.
- According to the European Court of Human Rights, the so-called Foreign Agents Law (of the Russian Federation) violates Article 11 of the European Convention on Human Rights, which protects freedom of association.
- The European courts have found it particularly problematic to assign the label of "foreign agent" to non-governmental organizations and to oblige them to register.
- Not only the adoption of the so-called Law on Foreign Agents, but even the serious parliamentary debates on this issue significantly harms the process of Georgia's integration into the European Union.
- The adoption of the so-called Law on Foreign Agents will directly put at risk the fulfillment of the 10th priority defined by the European Union.
During the last months, especially after Georgia was denied the status of a candidate for the European Union, the hostile attitude towards the non-governmental sector has significantly strengthened. In order to discredit the civil sector, accusations of various contents are spread. The authors are mainly members of the parliamentary majority and persons close to the ruling party, who actively use various methods of achieving the goal and traditional or non-traditional forms of communication with the public.
At the end of 2022, on December 29, the members of the parliamentary majority (representatives of the "People's Power") at a specially held briefing announced that they would initiate the so-called Law on Foreign Agents in January 2023.[1] According to their own statement, the draft law was prepared based on the best Western practices, including the US. The discussion on the transparency of the finances of civil sector organizations was initiated.[2] In one-sided discussion, the term "agents" soon began to be used, the activities of non-governmental organizations were linked to "a natural threat to the sovereignty of Georgia" and the call for the "necessity of regulating the civil sector with a strict legal framework” was made.[3] It is noteworthy that the mentioned statement was made in the background of the discussion on the decline of democracy in Georgia held in the Committee on Foreign Relations of the United States of America.[4]
It is important to note that the so-called EU member states do not have the law regulating foreign agents. But non-democratic regimes manipulate valuable legitimate interests and populist methods, including by giving CSO’s the label of "agent" they try to discredit civil society and the non-governmental sector in general.
The clearest example, when "foreign agents" legislation restricts civil society, is the case of Russia and Hungary. In Russia, "foreign agent" carries a stigmatizing label and is associated with "spy". Consequently, many non-governmental organizations have closed down, or have chosen to stop receiving foreign funding and, thus, dramatically limited their activities.[5] With regard to harsh criticism, the Russian government argued that the law was enacted to achieve the same goals as FARA.[6] Following the Russian law, in 2017 Hungary also adopted a law “on the Transparency of Organizations Receiving Foreign Funds”.
The cases of Russia and Hungary also show that laws establishing "transparency" requirements have not led to the achievement of the declared legitimate goal, but have weakened the impartial civil society organizations monitoring the government and had a "chilling effect" on their activities in the field of human rights and strengthening of democracy.
The 10-year operation of the Russian law is a clear example of how the authorities instrumentalized "transparency" against political opponents and what effect this has on the country's democratic development.
According to the Decision of ECHR on the case of ECODEFENCE and other v. Russia[7] , the law formulated in such a manner that has a "chilling effect" on the activities of civil society in the country and creates fertile ground for its dishonest interpretation, contradicts the rights guaranteed by the Convention.
Following the Russian law, in 2017 Hungary also adopted a law “on the Transparency of Organizations Receiving Foreign Funds”.[8] On June 18, 2020, based on the appeal of the European Commission, the European Court of Justice found the law incompatible with the fundamental principles of the European Union. As a result, due to the initiation of the European Commission's enforcement mechanism, Hungary was forced to repeal the law.
The Venice Commission also noted that Hungary's draft law “On the Transparency of Organisations receiving support from abroad” raises questions regarding Article 14 of the European Convention on Human Rights.[9] The law repeated the Russian path and was aimed at weakening civil society by imposing an obligation of “transparency”.
According to the ECHR and ECJ standards the registration of foreign-funded non-governmental organizations as “Foreign Agents” or “organizations receiving foreign funding” and attaching a stigmatizing label to them is an unjustified interference in the fundamental rights and is not proportionate to the legitimate aim of "transparency". This kind of legislation contradicts not only the fundamental freedoms of association and expression, but also the fundamental principles of democracy and the rule of law.
Judgments of European courts are important as, from the perspective of European values, They express the strong attitude of the European Union and the Council of Europe towards the rule of law and democracy. Both the European Union and the Council of Europe once again highlighted the special role of the non-governmental organizations for the functioning of a democratic society.
The announcement of initiation of the "foreign agents" draft law by the members of the parliamentary majority (so-called "People's Power") and even a discussion on this issue will significantly hinder the process of Georgia's integration in the EU. The European Union considers the effective functioning of civil society as an imminent element of a legal and democratic state. European Union pointed out the positive effect of the activities of non-governmental in Georgia in its documents numerous times. EU annual Association Implementation Report on Georgia published on august 8, 2022, mentioned that “Civil society remained very active and involved in monitoring the implementation of EU-Georgia Association Agreement, in policy formulation, and in holding the government accountable, including to some extent at local level. According to the resolution of the European Parliament of December 14, 2022, the European Parliament once again emphasizes the crucial role of civil society organizations in democratic oversight. In the same document, the European Parliament calls on the Commission and the Member States to provide political, technical and financial support to civil society.
According to the opinion of the European Commission of June 17, 2022, one of the 12 priorities is related to the strengthening of non-governmental organizations and guaranteeing their involvement in all levels of decision-making process. In the situation when the country is in "waiting mode" and recommendations of the European Commission have yet to be implemented, not only the adoption of the law on so-called Foreign Agents, but even public discussions about it (Especially when "Georgian Dream" has not made any comments after the announcement of initiating the draft law) is harmful to the process of integration in the European Union.
The standards set by the European structures regarding the law on so-called Foreign Agents, especially the standards of the European Court of Human Rights and the European Court of Justice show that this kind of law is not compatible not only with fundamental human rights, especially freedom of expression and association, but also with the principles of a democratic and legal state and fundamental European values. European courts have found registration of non-governmental organizations as “Foreign Agents” and attaching a stigmatizing label to them particularly problematic. Moreover, the judgment of ECJ and the infringement procedure launched by the European Commission forced Hungary to abolish the mandatory registration and labeling NGOs. The initiative of the members of the parliamentary majority (so-called "People's Power"), according to their statements, considers the creation of a register of "foreign agents", which directly contradicts the judgment of the European Court.
Even if the law initiated by members of the parliamentary majority ( so-called "People's Power"), indicates the legitimate interest of "transparency", it is against the standards established by the European courts and undermines the fundamental European values regarding democracy, human rights and the rule of law. So-called Law on Foreign Agents is aimed at discrediting the civil sector. Taking into account the positioning of the European Union and the Council of Europe, it will receive a clearly negative assessment, especially in the context of implementation of the "12 priorities". The law will significantly reduce Georgia's chances to be granted the candidate status.
The above-mentioned legislative initiative directly contradicts the 10th priority of the European Commission (involvement of civil society in all decision-making processes at all levels) and instead of strengthening the non-governmental sector, it is aimed at damaging it. This tendency against civil society that has that has taken place during recent months is deeply concerning and poses a significant threat to Georgia's integration in the European Union.
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[1] According to the "People’s Power" draft law, a register of agents of foreign influence will be created, in which registration will be mandatory for all "NGOs" and entities that are financed from foreign sources https://bit.ly/3CXJTMR
[2] Chairman of the Georgian Dream faction, Mamuka Mdinaradze - "The money with which non-governmental organizations are financed is used to plan the campaign of the "Technical Government" - the public should know from where the "NGOs" are financed", (September 12, 2022) https://bit.ly/3Xhk6Hw
[3] Statement of members of the parliamentary majority - "People's Power" (November 18, 2022) https://civil.ge/archives/515348
[4] civil.ge, "The US Foreign Relations Committee talks about democratic backsliding in Georgia", (November 17, 2022) https://civil.ge/archives/515196
[5] “FOREIGN AGENTS” IN AN INTERCONNECTED WORLD: FARA AND THE WEAPONIZATION OF TRANSPARENCY. Nick Robinson 2020. DUKE LAW JOURNAL - p.1087
[6] Id. - p.1087
[7] CASE OF ECODEFENCE AND OTHERS v. RUSSIA (Applications nos. 9988/13). STRASBOURG 14 June, 2022 https://bit.ly/3W5Sa7S
[8] Act LXXVI of 2017 on the Transparency of Organizations Receiving Foreign Funds https://bit.ly/3GR2Rpy
[9] EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) HUNGARY PRELIMINARY OPINION ON THE DRAFT LAW ON THE TRANSPARENCY OF ORGANISATIONS RECEIVING SUPPORT FROM ABROAD (Strasbourg, 2 June 2017) https://bit.ly/3VYRnWs
/public/upload/Analysis/Law on Agents of Foreign Influence European Practice and Georgia eng .pdf
This material has been financed by the Swedish International Development Cooperation Agency, Sida. Responsibility for the content rests entirely with the creator. Sida does not necessarily share the expressed views and interpretations.
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