ARTICLE 19 is deeply concerned about the European Commission’s proposed Directive on interest representation services on behalf of third countries (the Directive) and its potential impact on a range of human rights in the EU and beyond. As it stands, the Directive could have a serious impact on the rights to freedom of association and freedom of expression and shrink civic space in the EU. Moreover, it could cause geopolitical damage within the EU and mar the legitimacy of the EU’s external actions promoting democracy and human rights.
The Directive is an attempt by the European Commission (the Commission) to address efforts by state actors outside the EU to undermine democracy in Europe.
The current draft Directive requires non-governmental organisations (NGOs) in EU countries to register if they conduct ‘interest representation’ for and receive funding from third countries, disclose information on their funding and activities to the authorities, and keep records of said activities under penalty of sanctions. While the legislator holds that the proposal does not follow the Russian ‘foreign agents’ model, the adoption of a conceptually similar law – even if less restrictive – would undermine the EU’s ability to criticise countries like Hungary or Georgia when they try to adopt similar legislation.
While ARTICLE 19 shares the Commission’s concerns about the possible impact of ‘foreign interference’ on democracy and the information space in the EU and beyond, we firmly believe that the proposed Directive is the wrong instrument to address them. In particular, we are concerned that the proposed Directive:
- Creates unnecessary administrative burdens for NGOs operating in the EU, leading to difficulty attracting and receiving funding and stigmatising civil society. The Directive is likely to create a chilling effect on the ability of NGOs to engage with non-EU state donors, limiting their funding opportunities and potentially stifling criticism by NGOs of EU policy.
- Fails to meet international human rights standards on freedoms of association and expression. The Directive vaguely defines the concept of ‘interest representation’ as an overbroad list of NGO activities without linking them to the specific threshold of ‘foreign influence’. Furthermore, the proposed text does not pursue any legitimate aim and imposes disproportionate and unnecessary sanctions for NGOs.
- Will potentially negatively affect media freedoms in the EU. While the Directive, in principle, excludes the media from its scope, it contains ambiguous language as to its application to media service providers. Moreover, in practice, many NGOs perform journalistic functions by informing the public on issues of public interest and will be directly affected by the new rules. The questions of ownership transparency and independence of the media are already regulated by the European Media Freedom Act. In contrast, the Directive risks stigmatising those organisations that receive foreign funding for their activities in public interest, including activities of journalistic nature.
- Fails to tackle the root of the problem as it focuses on already transparent civil society organisations rather than covert influence in policymaking. The focus should be put on foreign state influence operations, rather than lawful activities of NGOs, which may or may not receive funding from outside the EU. Legitimate concerns of unlawful activity should be addressed by applying existing legislation and law enforcement frameworks, particularly laws on money laundering, espionage, tax evasion, political lobbying and electoral integrity.
Finally, ARTICLE 19 is worried that if adopted in its current form, the Directive will encourage undemocratic states to impose restrictions on NGOs that receive foreign funding. We are aware that a number of legislative proposals of similar nature have been recently proposed or already adopted in Europe and Central Asia, following the model of the Russian ‘foreign agents’ law. While the Directive falls short of the level of sanctions and restrictions imposed by Russian legislation, it follows the same model of discriminatory and stigmatising regulatory requirements for NGOs that receive foreign funding. Adoption of a similar legal regime at the EU level would further embolden these States to proceed with these proposals and enforce problematic rules against NGOs.
ARTICLE 19 urges the European Commission to scrap the proposed Directive and to ensure that any measures to counter foreign efforts to undermine democracy in the EU do not come at the expense of human rights. A thriving civil society that is free to seek funding without stigma and freely criticise EU policy are the demands of pluralism and uninhibited debate on issues of public interest in a democratic society.