EU law offers several useful tools to protect fundamental rights and the space for civil society. This package will walk you through the basics so you know how to decide if a restriction in your country violates EU law.
By the end of this learning package, you will:
- Know what is EU law and how it affects individuals as well as CSOs;
- Understand when a national law or equivalent measure must comply with EU law and the Charter of Fundamental Rights of the EU (CFR);
- Be able to ask the right questions to assess when a national law or equivalent measure fall under the scope of EU law and the CFR.
Why EU law matters for civil society
The European Union (EU) is a political and economic union of Member States (currently 27). The exercise of its competences is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Therefore, these rights must be respected by the EU institutions and by each of the EU Member States when adopting and applying their respective laws and policies.
A variety of areas falling under the EU competences – and the related EU law regulating them – can also be relevant to CSOs’ functioning and activities, including their formation, registration, reporting, receiving funding, employing or working with volunteers, providing services or engaging in advocacy or other activities. .
By “EU law” we refer both to the legal framework on which the European Union is founded (“primary law”) and the legislative acts that it has the power to adopt (“secondary law”).
Primary EU law
The EU is founded on two legally binding international agreements:
- The Treaty of the EU (TEU)
- The Treaty of the Functioning of the EU (TFEU).
The two treaties are also known as “the founding Treaties” and constitute “primary law”.
The founding Treaties contain the main provisions on the EU values, objectives, structure and powers. They also define the relationship between the EU institutions and the EU Member States and their respective competences.
Another key legally binding source of primary EU law is the Charter of Fundamental Rights of the EU (CFR).
The CFR is a catalogue of fundamental rights and principles, including civil and political rights, socio-economic rights and fundamental rights specific to the EU framework (e.g., freedom of movement).
The provisions of the CFR apply:
- To the institutions, bodies, offices and agencies of the EU;
- To the EU Member States only when their actions fall under the scope of EU primary or secondary law.
Download the 54 Charter provisions in PDF format here.
Secondary EU law
Based on the principles, objectives and competences outlined in the founding EU Treaties, the EU institutions can adopt two types of legislative instruments:
Binding legislative instruments:
- Uniteral: EU regulations, directives, decisions.
- Multilateral : international agreements.
Non-binding legislative instruments: recommendations, opinions.
These instruments are also known as “secondary law”.
EU secondary law must be compliant with relevant provisions of EU primary law (EU treaties and CFR).
For a detailed description of the different legislative instruments, check our Handbook on How to Use EU Law to Protect Civic Space and the EU website (see Sources section below).
Supplementary sources of EU law
In addition to the primary and secondary EU law sources specifically mentioned in the EU Treaties, other instruments are used to better define and interpret their meaning and their scope. Supplementary sources of EU law are:
- The case-law of the Court of Justice of the EU (CJEU);
- The general principles of EU law as acknowledged by the CJEU case-law and the EU founding Treaties (e.g., fundamental rights, good administration, legal certainty, proportionality, equality before the law);
- International law, including international agreements.
In a nutshell:
When can the EU adopt laws applicable in the EU Member States?
In order to understand the impact of EU law on individuals and CSOs’ rights and freedoms, we need to have a look at the distribution of competences between the EU and its Member States. Based on the powers conferred to the EU by its Member States and outlined in the EU founding Treaties, the EU has three types of competences:
- Exclusive competences: areas in which only the EU can adopt binding legislation. In such cases, the EU Member States can adopt laws only if explicitly authorised by the EU.
- Shared competences: areas in which both the EU and its Member States can adopt binding legislation. In such cases, the EU Member States can adopt laws only when the EU has not adopted them first.
- Supporting competences: areas in which the EU can only intervene to complement or coordinate actions undertaken by EU Member States.
What principles govern the relationship between the EU and its Member States in the exercise of their respective competences?
Three principles must apply when the EU and/or its Member States carry out their tasks:
Principle of Subsidiarity
In the areas of shared and supporting competences, the EU can only intervene and adopt legislation if the objective of the law proposed or adopted by the EU Member State/s is better achieved at EU level by reason of its scale and cross-border effects. (Article 5, TFEU).
Principle of Proportionality
Furthermore, every measure adopted by the EU institutions must be strictly necessary and proportionate to achieve the EU objectives (Article 5, TFEU).
Principle (or “Duty”) of Sincere Cooperation
The EU and its Member States must assist each other in the exercise of their respective competences to ensure that the obligations arising from EU law are adequately fulfilled (Article 4(3), TEU). In practice, this means that when the EU Member States exercise their competences – including in areas where the EU does not share them – they have two obligations:
- Positive obligation: they must take all appropriate measures to ensure and facilitate the fulfilment of the obligations established by EU laws;
- Negative obligation: they must not exercise their own competences in any way that may hinder the fulfilment of the obligations established by EU laws and compromise their effectiveness or the achievement of their objectives.
See in the table below some examples of the areas under the respective EU competences:
When does a national law have to comply with EU law?
Whenever a national law directly or indirectly falls within the scope of EU law, it must always be compatible with the relevant EU law provisions, including the CFR.
PLEASE NOTE: by “national law” here we intend all kinds of regulatory measures taken by the EU Member States’ authorities, either at the central or local level: they can include legislative acts but also regulations, executive acts from administrative bodies, etc.
When does a national law fall directly or indirectly within the scope of EU law?
In this section, we will help you identify when a national law – either proposed or already adopted and implemented in a EU Member State – falls directly or indirectly within the scope of EU law and therefore must be compatible with the relevant EU law provisions and the CFR.
Possible scenarios:
The EU legislative body of an EU Member State:
- tables a draft law affecting civil society;
- approves a draft law affecting civil society;
- implements an existing law in a way that restricts civic space and fundamental rights/freedoms.
Question 1: Does the situation covered by the national law fall under the exclusive competence of the EU?
If the answer is YES:
The national law must be compatible with EU law – including the CFR.
If the answer is NO:
It may still be possible that the national law falls under the shared competences between the EU and its Member States. See Question 2.
Question 2: Does the situation covered by the law fall under the shared competences between the EU and its Member States?
If the answer is NO:
The national law does not fall under the scope of EU law, so it cannot be assessed based on its compatibility with EU law (including the CFR).
If the answer is YES:
It is still not enough that the EU shares its competence with Member states on that situation to decide if the national law must be compatible with EU law (including the CFR). See the next question.
Question 3: Has the EU already exercised its shared competence by adopting relevant EU secondary law (regulation, directive, decision) applicable to the situation covered by the national law?
If the answer is YES:
The national law falls under the scope of the relevant EU secondary law. As a result, it must be compatible with the provisions of the relevant EU secondary law and with the CFR.
If the answer is NO:
There is still a possibility that EU law may apply. See next question.
Question 4: Are there any provisions in the EU founding Treaties with directly enforceable rights or freedoms applicable to the same situation covered by the national law?
If the answer is YES:
The national law falls under the scope of relevant provisions of the EU founding Treaties. As a result, it must be compatible with the relevant Treaty provisions and with the CFR.
If the answer is NO:
The national law does not fall under the scope of EU law, so it cannot be assessed based on its compatibility with EU law (including the CFR).
How can you demonstrate that a national law falls under the scope of EU law and must be compatible with it (including with the CFR)?
Let us get back to the 3 potential scenarios where the legislative bodies of an EU Member State (1) table a draft law affecting civil society, (2) approve a law affecting civil society or (3) implement an existing law in a way that restricts civic space.
As we have seen in the previous section, a national law, whether already adopted and implemented or in the making, falls (directly or indirectly) within the scope of EU law and must be compatible with it (including with the CFR of the EU) only if:
- The EU is competent in the area covered or affected by the national law;
- The EU has already exercised this competence in practice, because:
- Either the EU has already adopted secondary EU law (e.g., regulations, directives or decisions) in this area;
- Or there are provisions in the EU founding Treaties with directly enforceable rights or freedoms applicable to the areas covered by the law;
Here are a series of questions to guide you in your assessment on whether a national law is governed by EU law and how it must be compatible with such provisions (including those of the CFR):
Is the EU Member State proposing/adopting a law (or implementing an existing law) specifically to execute or transpose EU law provisions?
This is the case, for example, of a Member State ratifying or otherwise transposing/implementing specific EU treaty provisions, EU directives or non self-executing provisions of EU regulations.
If the answer is YES:
This law obviously falls under the scope of of EU law and must be compatible with it (including with the Charter of Fundamental Rights of the EU). At this point, the law must be assessed on the basis of the following two questions:
- Does the national law go beyond the scope, purpose and obligations of the EU law provisions?
- Does the national law violate any of the rights and freedoms enshrined in the CFR?
Practical example:
The EU has adopted a Directive aimed at harmonising national rules on preventing and sanctioning strategic civil lawsuits against public participation (SLAPPs), with a view to ease the burden on and ensure a proper functioning of justice systems while protecting public participation in matters of general interest. In transposing this Directive into national law, an EU Member State decides to exclude from the scope of application of the provisions those proceedings brought against conduct intended to influence public opinion in a way deemed incompatible with the religious identity of the State as enshrined in the national constitution. As a measure adopted to transpose EU law, the national law also has to comply with the CFR, in the light of which EU law must be interpreted and applied. Both secular and faith-based CSOs which do not identify in the religious identity of the State may reasonably argue in such case that the national law transposing the Directive violates freedom of expression and discriminates on grounds of religion or belief.
EU law provisions potentially infringed:
- Provisions of EU anti-SLAPP Directive
- Article 11 CFR (Freedom of expression)
- Article 21 CFR (Non-discrimination including on grounds of religion and belief)
If the answer is NO:
It may still be possible that the national law falls under the scope of EU law and must be compatible with it (including with the CFR). See the next question.
Even if the law does not intend to implement, execute or transpose EU law provisions, does the matter regulated still fall within the scope of existing EU law?
This is a common scenario: an EU Member State decides to regulate on a matter within its competences but the measures also impact on situations already governed by EU law.
If the answer is YES:
The national law falls under the scope of EU law and must be compatible with it (including with the CFR).
Practical example:
A Member State proposes a law requiring all CSOs operating in its territory to publish online every six months an updated list of their donors together with their names, addresses and amount donated. Failure to comply is sanctioned as an economic offence with the payment of an administrative fine and more than one failure to comply leads to cancellation from the register of CSOs and subsequent denial of tax benefits. The law lists among its objectives the need for increased transparency on CSOs’ donations in order to highlight in particular which ones receive money from foreign or religious entities or individuals and therefore may be acting as “foreign agents” or be subject to “undemocratic influences” . Although the national law does not aim to transpose any specific EU law, national measures that impose processing and disclosure of personal data such as names and addresses fall under the scope of the EU General Data Protection Regulation 2016/679 (“GDPR”), which also governs national measures which impose requirements on processing or free movement of personal data. As a result, the law must also be compliant with the fundamental rights of the CFR, including the CSOs’ freedom of association and the donors’ rights to privacy and protection of personal data.
EU law provisions potentially infringed:
- Provisions of the EU General Data Protection Regulation
- Article 7 CFR (Respect for private and family life)
- Article 8 CFR (Protection of personal data)
- Article 12 (Freedom of assembly and association)
- Article 21(1) (Prohibition of discrimination on grounds of nationality)
If the answer is NO:
It may still be possible that the national law falls under the scope of EU law and must be compatible with it (including with the CFR). See the next question.
Does the law proposed, adopted or implemented by the EU Member State violate the principle (aka “duty”) of cooperation with the EU?
We have seen in the previous session that based on this principle, the EU Member States must take all appropriate measures to ensure and facilitate the fulfilment of the obligations established by EU laws (positive obligation) and they must not exercise their own competences in any way that may hinder the fulfilment of the obligations established by EU laws and compromise their effectiveness or the achievement of their objectives (negative obligation) (Article 4(3), TFEU).
If the answer is YES:
Even if the law is not specifically transposing or implementing existing EU laws or it is part of the State’s national sovereign competence, it may still be considered as falling indirectly under the scope of EU law when its adoption or implementation may compromise the full implementation of an EU law or the achievement of the objectives of EU law.
Practical example:
A Member State tables an amendment to an existing national Freedom of Information Act. The amendment establishes that from now on, anyone, including CSOs, who submits a request to a public authority to produce information amounting to more than 10 pages of documentation must pay all the administrative costs incurred by public officials – including the amount of hours spent, the cost of photocopies, etc. – to research, collate and produce the relevant documentation. This provision imposes a significant economic burden on CSOs, including CSOs wishing to exercise their rights under the EU Directive on access to information in environmental matters (Directive 2003/4/EC), which establishes obligations upon Member States to make available upon request environmental information held by national authorities. CSOs may argue that national legislation deprives the rules contained in the Directive of their effectiveness, in violation of the duty of cooperation under Article 4, TEU, to cooperate with the EU institutions to achieve the Directive’s objective and must refrain from adopting any measure that may jeopardise the exercise by CSOs of their right to information
EU law provisions potentially infringed:
- Provisions of the EU Directive on access to information in environmental matters read in light of Article 4(3)TEU
- Article 11 CFR (Freedom of expression and information)
If the answer is NO:
It may still be possible that the national law falls under the scope of EU law and must be compatible with it (including with the CFR). See the next question.
Even if the law proposed, adopted or implemented by the EU Member State pertains to its own sovereign competence, does it give rise to a situation that would normally be prohibited under EU law?
If the answer is YES:
The law in violation of EU law unless the State can demonstrate that the national measures are justified because they fall under an exception specifically allowed by EU primary or secondary law. Where such exceptions are allowed, the State must also demonstrate that they are clearly established and are necessary and proportionate to pursue a legitimate aim (e.g., public order, public health, national security). In order to check if such derogations to EU law fulfil these criteria and override restriction of fundamental rights, it is especially important to check if they are compatible with the CFR.
Practical example:
A Member State proposes or adopts a law whose official purpose is to ensure the transparency of organisations that receive financial support from abroad. The law imposes additional requirements of registration, reporting and disclosure of personal data of donors and beneficiaries only on CSOs that receive direct or indirect foreign financial support exceeding a certain amount. Failure to comply is sanctioned by penalties. The Member State argues that these additional requirements are justified by overriding reasons of public policy. However, it may be reasonably argued that the provisions of this law are likely to dissuade donations from abroad therefore qualify as a restriction to the free movement of capital under Article 63, TFEU. Such restriction constitutes the medium to infringe fundamental rights enshrined in the CFR, in particular the CSOs’ right to freedom of association and the donors right to privacy and protection of personal data.
EU law provisions potentially infringed:
- Article 63 TFEU (free movement of capital
- Article 7 CFR (Respect for Private and Family Life)
- Article 8 CFR (Protection of Personal Data)
- Article 12 CFR (Freedom of Assembly and Association).
If the answer is NO:
The law does not fall under the scope of EU law and cannot be assessed with regard to its compatibility with EU law, including the CFR.
Testimonials
We rely on European Union law and European court rulings to support our arguments against legislation targeting NGOs in Slovakia which restricts freedom of association. Since the government has not made such attempts to restrict civil society since the Velvet Revolution, there are no applicable rulings of the Slovak Constitutional Court.
- ECNL – Philea: Handbook – How to Use EU Law to Protect Civic Space – Second Edition (2023): guidance on how EU law affects our fundamental rights, and why rule of law matters to civic space.
- European Commission: Types of EU Law: detailed description of the Primary law: EU treaties and Secondary law: Legislative acts.
- European Parliament: Protecting fundamental rights within the Union: information on EU values and the European Parliament’s role.
- Fundamental Rights Agency of the EU – Charterpedia: official explanations for each provision in the Charter, Court of Justice of the EU (CJEU) and European Court of Human Rights (ECtHR), a selection of national case law that refers directly to one or more Charter Articles & more.
