The Dutch government is planning to oblige not-for-profit organisations in the Netherlands to make public certain information regarding their donors (donateurs). A recent judgment of the European Court of Justice (ECJ) will undoubtedly be interesting to the Dutch civil servants that are preparing the draft for this bill. Hungary has adopted a law requiring foreign (= non-Hungarian) donors to be disclosed to the public. Of course this is against European legislation regarding free movement of capital within the EU.
The Court takes into account that anti-money laundering can be a justification for limiting fundamental rights:
89 As the Court has already observed, the EU legislature has only partially harmonised the measures seeking to combat money laundering and the financing of terrorism, and so therefore the Member States are still entitled to rely on the fight against money laundering and the financing of terrorism to justify national provisions restricting free movement of capital, as grounds of public policy (…).
90 Likewise, in the absence of more general harmonisation in that field, the fight against organised crime may be relied upon as a ground of public security, within the meaning of Article 65(1)(b) TFEU, by the Member States.
91 However, it is settled case-law of the Court that where the grounds of public policy and public security mentioned in Article 65(1)(b) TFEU allow a derogation from a fundamental freedom provided for by the FEU Treaty they must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the EU institutions. Therefore, those grounds cannot be relied upon unless there is a genuine, present and sufficiently serious threat to a fundamental interest of society (…).
The operation of associations may not be hindered without reason:
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 (…), by limiting their capacity to receive financial resources (…), by rendering them subject to obligations of declaration and publication such as to create a negative image of them (…) or by exposing them to the threat of penalties, in particular of dissolution (…) 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.
The Court reminds of the fundamental rights in paragraphs 121-123 of the judgment and then remarks on data protection:
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 (…)
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 (…), 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 (…).
According to the ECJ the provisions of the Hungarian law violate the fundamental rights of the donors, as the provisions cannot be justified by any of the objectives of general interest recognised by the EU.
The conclusion of ECJ is that 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.