Article 7 - Respect for private and family life
Article 8 - Protection of personal data
Article 12 - Freedom of assembly and of association
Article 41 - Right to good administration
Article 51 - Field of application
Key facts of the case:
Failure of a Member State to fulfil obligations — Admissibility — Article 63 TFEU — Free movement of capital — Existence of a restriction — Burden of proof — Indirect discrimination linked to the origin of the capital — Article 12 of the Charter of Fundamental Rights of the European Union — Right to freedom of association — National rules imposing on associations receiving financial support sent from other Member States or from third countries legally binding obligations of registration, declaration and publication which can be enforced — Article 7 of the Charter of Fundamental Rights — Right to respect for private life — Article 8(1) of the Charter of Fundamental Rights — Right to the protection of personal data — National rules imposing the disclosure of information on persons providing financial support to associations and of the amount of that support — Justification — Overriding reason in the public interest — Transparency of the financing of associations — Article 65 TFEU — Public policy — Public security — Fight against money laundering, financing of terrorism and organised crime — Article 52(1) of the Charter of Fundamental Rights.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby:
1) By its application, the European Commission seeks a declaration from the Court 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; ‘the Transparency Law’), 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, unjustified and unnecessary 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 Charter’).
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15) On 14 July 2017, the Commission sent Hungary a letter of formal notice (‘the letter of formal notice’) in which it took the view that, by adopting the Transparency Law, that Member State had failed to fulfil its obligations under Article 63 TFEU and Articles 7, 8 and 12 of the Charter, and granted Hungary a period of one month within which to submit its comments.
18) On 5 October 2017, the Commission issued a reasoned opinion (‘the reasoned opinion’) in which it found that Hungary had failed to fulfil its obligations under Article 63 TFEU and Articles 7, 8 and 12 of the Charter by introducing discriminatory, unjustified and unnecessary restrictions on foreign donations to civil society organisations through the provisions of the Transparency Law, 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 not complying with these obligations. The Commission also set Hungary a period of one month within which it had to take the necessary measures to comply with the reasoned opinion or submit comments to the Commission.
27) In addition, Hungary submits that the Commission’s conduct rendered the pre-litigation procedure unlawful. That conduct demonstrates that that institution did not make an adequate attempt to hear it, in breach of the principle of loyal cooperation set out in Article 4(3) TEU and of the right to good administration set out in Article 41 of the Charter. Furthermore, that conduct rendered the refutation of the complaints made by the Commission more difficult and thus constituted an infringement of the rights of the defence.
98) The Commission, supported by the Kingdom of Sweden, submits in its pleadings that since the Transparency Law restricts a fundamental freedom guaranteed by the FEU Treaty, it must also be compatible with the Charter.
99) When asked by the Court at the hearing as to the scope of that requirement, in the light of the judgment of 21 May 2019, Commission v Hungary (Rights of usufruct over agricultural land) (C‑235/17, EU:C:2019:432), which was delivered after the written part of the procedure had closed in the present case, the Commission added that that requirement entails determining whether the Transparency Law limits rights or freedoms enshrined in the Charter and then, if so, assessing on the basis of the arguments put forward by Hungary whether that law appears nevertheless to be justified.
101) As follows from the Court’s case-law, where a Member State argues that a measure of which it is the author and which restricts a fundamental freedom guaranteed by the FEU Treaty is justified on the basis of that Treaty or by an overriding reason in the public interest recognised by EU law, such a measure must be regarded as implementing Union law within the meaning of Article 51(1) of the Charter, such that it must comply with the fundamental rights enshrined in the Charter (judgments of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraphs 63 and 64, and of 21 May 2019Commission v Hungary (Rights of usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraphs 64 and 65).
103) The provisions of that law must therefore, as the Commission and the Kingdom of Sweden rightly observe, comply with the Charter, and that requirement entails that those provisions do not impose any limitations on the rights and freedoms laid down by the Charter or, if they do, that those limitations are justified in the light of the requirements set out in Article 52(1) of the Charter (see, to that effect judgments of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraphs 66 and 70, and of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraphs 39 and 41).
105) The Commission, supported by the Kingdom of Sweden, submits that the Transparency Law limits, in the first place, the right to the freedom of association guaranteed in Article 12(1) of the Charter and, in the second place, the right to respect for private and family life and the right to protection of personal data, which are the subjects of, respectively, Article 7 and Article 8(1) of the Charter.
109) In the second place, the data which under that law is to be communicated to the competent courts and disclosed to the public cannot, in itself, be classified as personal data falling within the scope of Article 8(1) of the Charter or data whose communication and disclosure limit the right to respect for private and family life guaranteed in Article 7 of the Charter. Moreover, persons who provide financial support to civil society organisations should, inasmuch as in doing so they seek to influence public life, be regarded as public persons enjoying less protection of their rights than mere individuals.
110) As regards, in the first place, the right to freedom of association, that right is enshrined in Article 12(1) of the Charter, which sets out that everyone has the right to freedom of association at all levels, in particular in political, trade union and civic matters.
111) That right corresponds to the right guaranteed in Article 11(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. It must therefore be regarded as having the same meaning and scope as the latter, in accordance with Article 52(3) of the Charter.
114) Lastly, it is apparent from the case-law of the European Court of Human Rights that, while it may, depending on the case, be justified, legislation which renders significantly more difficult the action or the operation of associations, whether by strengthening the requirements in relation to their registration (ECtHR, 12 April 2011, Republican Party of Russia v. Russia, CE:ECHR:2011:0412JUD001297607, §§ 79 to 81), by limiting their capacity to receive financial resources (ECtHR, 7 June 2007, Parti nationaliste basque — Organisation régionale d’Iparralde v. France, CE:ECHR:2007:0607JUD007125101, §§ 37 and 38), by rendering them subject to obligations of declaration and publication such as to create a negative image of them (ECtHR, 2 August 2001, Grande Oriente d’Italia di Palazzo Giustiniani v. Italy, CE:ECHR:2001:0802JUD003597297, §§ 13 and 15) or by exposing them to the threat of penalties, in particular of dissolution (ECtHR, 5 October 2005, Moscow Branch of the Salvation Army v. Russia, CE:ECHR:2006:1005JUD007288101, § 73) is nevertheless to be classified as interference in the right to freedom of association and, accordingly, as a limitation of that right, as it is enshrined in Article 12 of the Charter.
119) On that basis, the provisions of the Transparency Law referred to in paragraph 65 above limit the right to freedom of association protected in Article 12(1) of the Charter.
121) According to Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications. In addition, under Article 8(1) of the Charter, everyone has the right to protection of personal data concerning him or her.
122) The right to respect for private and family life enshrined in Article 7 of the Charter corresponds to that guaranteed in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and must therefore be regarded as having the same meaning and the same scope (judgments of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 53, and of 26 March 2019, SM (Child placed under Algerian kafala), C‑129/18, EU:C:2019:248, paragraph 65).
124) The Court has held that provisions imposing or allowing the communication of personal data such as the name, place of residence or financial resources of natural persons to a public authority must be characterised, in the absence of the consent of those natural persons and irrespective of the subsequent use of the data at issue, as an interference in their private life and therefore as a limitation on the right guaranteed in Article 7 of the Charter, without prejudice to the potential justification of such provisions. The same is true of provisions providing for the dissemination of such data to the public (see, to that effect, judgments of 20 May 2003, Österreichischer Rundfunk and Others, C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraphs 73 to 75 and 87 to 89; of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraphs 56 to 58 and 64; and of 2 October 2018, Ministerio Fiscal, C‑207/16, EU:C:2018:788, paragraphs 48 and 51).
125) On the other hand, the communication to a public authority of nominative and financial data relating to legal persons and the dissemination of that data to the public is not such as to limit the right guaranteed in Article 7 of the Charter unless the official title of those legal persons incorporates the name of one or more natural persons (judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 53).
126) The right to the protection of personal data enshrined in Article 8(1) of the Charter, which is closely connected with the right of respect for private and family life guaranteed in Article 7 of the Charter (see, to that effect, judgments of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 47, and of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 41), for its part precludes information in relation to identified or identifiable natural persons from being disseminated to third parties, whether that be public authorities or the general public, unless that dissemination takes place in the context of fair processing of that information meeting the requirements laid down in Article 8(2) of the Charter (see, to that effect, judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 49). Apart from in that situation, such dissemination, which constitutes the processing of personal data, must therefore be regarded as limiting the right to the protection of personal data guaranteed in Article 8(1) of the Charter (see, to that effect, judgment of 2 October 2018, Ministerio Fiscal, C‑207/16, EU:C:2018:788, paragraph 51).
128) Such data falls within the scope of the protection of private life guaranteed in Article 7 of the Charter, as follows from the case-law recalled in paragraphs 124 and 125 above.
132) Consequently, the obligations of declaration and publication provided for by the Transparency Law limit the right to respect for private and family life enshrined in Article 7 of the Charter.
133) Lastly, although the objective consisting in increasing the transparency of the financing of associations may be considered to meet a public interest, as is apparent from paragraph 79 above, its implementation, where it leads to the processing of personal data, must nonetheless observe the requirements of fair processing set out in Article 8(2) of the Charter. In the present case, Hungary does not in any way submit that the provisions laying down those obligations meet those requirements.
134) In those circumstances, and having regard to the considerations set out in paragraphs 126 and 127 above, those obligations must also be regarded as limiting the right to the protection of personal data guaranteed in Article 8(1) of the Charter.
135) The Commission and the Kingdom of Sweden claim that the limitations imposed by the Transparency Law on the rights enshrined respectively in Article 12, Article 7 and Article 8(1) of the Charter do not appear to be justified in the light of the requirements laid down in Article 52(1) of the Charter.
137) In any event, that law does not meet the requirement of proportionality laid down in Article 52(1) of the Charter.
138) In defence, Hungary submits that increasing the transparency of the financing of associations must be regarded as an objective of general interest recognised by the Union, within the meaning of Article 52(1) of the Charter. Furthermore, the measures put in place by the Transparency Law meet the other requirements set out in that provision.
139) It is apparent from Article 52(1) of the Charter, inter alia, that any limitation on the exercise of the rights and freedoms recognised by the Charter must genuinely meet objectives of general interest recognised by the Union.
141) It follows from that assessment that those provisions, which in addition to imposing restrictions on the fundamental freedom protected under Article 63 TFEU impose limitations on the rights enshrined in Articles 12, 7 and 8(1) of the Charter, as the Court has noted in paragraphs 119, 132 and 134 above, do not in any event meet those objectives of general interest.
142) Accordingly, by adopting those provisions, Hungary failed to fulfil its obligations under Articles 7, 8 and 12 of the Charter.
143) In the light of all the foregoing considerations, it must be held that, by adopting the provisions of the Transparency Law referred to in paragraph 65 above, 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.
145) Under Article 140(1) of those rules, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Kingdom of Sweden must bear its own costs.
