Publicystyka - ngo.pl

Although the idea behind the introduction of this type of regulation – which clearly is directed against non-governmental organisations, at the moment of such humongous crisis we are dealing with now, would be best fended off and placed in the catalogue of absurd ideas, it is difficult not to dwell on this idea for a while. Even if to just analyse it once again – what is it that some political parties are proposing, what are the contexts and what could the consequences of these regulations be?

The draft stipulates the imposition of new obligations on two groups of organisations. The first one encompasses organisations with revenues for the financial year exceeding PLN 250,000. The second group is organisations with revenues exceeding PLN 1,000,000.

As regards organisations with annual revenues above PLN 250,000, the draft provides for an obligation to collectively submit information about project funding sources to the National Court Register – within three months of the end of the tax year.

The annex to the Act indicates an extensive catalogue of such types of funding sources. Besides such revenues as e.g. revenues from business activity or paid activity, these also include for example the category of donations in the amount exceeding PLN 15,000. This type of donation would have to be listed separately. Additionally, each donor who has paid in more than PLN 50,000 in total should be listed separately. Besides, the organisations would be obliged to disclose – again separately – the revenues that originate from foreign sources.

The authors of the draft would also like organisations mentioned here to publish the information about “entities providing support” on their websites within 7 days of obtaining that support. Unfortunately, they failed to explain how such publication were to take place.

The second category of organisations are organisations whose annual revenues from their statutory activity was above PLN 1,000,000. Those organisations – besides their duties mentioned above – would also be obliged to “provide information about project funding sources via audiovisual, audio and visual means”. Here, the authors of the proposed draft also failed to indicate what they meant exactly. The draft, however, specifies the way in which the organisation would have to take care of the visibility of the denotation – for example, if the material were to be in the audiovisual form, the information about the funding should take no less than 10% of its area.

Additionally, the largest organisations should keep a register of all payments received and make it available on their websites – together with the data of persons making those payments, as well as a register of agreements – and also place it on their websites.

Certain categories of entities have been excluded from all these obligations – for example social cooperatives and foundations established by political parties. Of course, political parties as such are not subject to these regulations.

Basically everything. When reading the draft, it is hard not to come to a conclusion that it has been prepared in a great hurry and simply sloppily. The provisions are unclear, individual regulations contradict each other, which makes it difficult to understand who would be obliged and to do what.

For example, it is difficult to understand in what cases the authors of the draft anticipate that data of natural persons making donations would be published – one part of the Act stipulates such an obligation, and another – on the contrary.

The authors of the proposed draft have been using the term “support” in different, varying contexts, as a result making this term incomprehensible.

The draft Act and its justification contain obvious errors – e.g. one place indicates that something refers to an organisation with revenues exceeding PLN 1,000,000, and another – that it refers to an organisation above PLN 100,000. One place mentions the need to disclose donations in amounts exceeding PLN 15,000, in another, in the same context, the amount of PLN 10,000 appears. These are obvious mistakes due to negligence. 

The draft also contains a catalogue of obligations which are impossible or extremely difficult to fulfil. For example, it defines foreign support as one that originates directly or indirectly from abroad – we do not know how the organisation is supposed to know whether it receives support originating indirectly from abroad.

Which is most interesting – the draft specifies donations from Polish organisations with 33% of revenues originating from abroad as foreign support. Such support would be also support from Polish legal entities and their subsidiaries in which the foreign shareholding exceeds 50%.

The justification repeatedly mentions the issue of the organisations’ activities being funded by foreign entities in the context of such entities exerting harmful influence on state-related matters. Issues connected with national security or terrorism have been pointed out.

During the conference initiating the draft Act, the authors of the draft also referred to the war in Ukraine, indicating the risk connected with Russia influencing the public opinion in different countries. This issue was also mentioned during the press conference. The accusation of other countries’ interests being pursued, addressed at NGOs (yet again), was undoubtedly been lurking in the background, many different fears were stoked, and inconvenient contexts were eliminated.

Which is most important – the arguments used by the authors of the draft, addressed to the public opinion, reveals their motivation – that this is really about foreign funds.

In the text of the legal act, the authors try to avoid indicating that this is about the foreign support for NGOs. It is probably connected with the ruling of the Court of Justice which deemed the Hungarian Act – concerning foreign funds – to be incompliant with the European Union’s law. The authors of the draft Act are therefore trying to indicate in the draft that this is about the disclosing of all revenues, which in the end – in the context of the entire justification, including the oral one – and still, the specification of foreign funds in the Act, is quite inept.

In other words – an attempt is being made in Poland to introduce an Act stigmatising foreign funds of non-governmental organisations, without its introduction. After the ruling of the Court of Justice with regard to Hungary, it is known that an act discriminating foreign funding cannot be introduced, therefore a solution is being sought thanks to which you could do it differently. Obliging organisations to disclose all funds is such an idea.

The Act also creates such a possibility that, even if it does not directly stigmatise organisations, it can be done in the narrative that accompanies it. Which is already happening – the authors, commenting on this issue, are talking mainly about foreign funds.

Incidentally, it is also worth pointing out that during the conference the authors of the draft claimed that provisions would refer to large entities only, whereas small ones – with revenues below 250,000 – would not be covered by the regulations. Here, it should be immediately noted that the group of organisations to which issues discussed in the draft refer is not so small. In accordance with the data provided in the survey entitled “NGO condition 2021” (https://kondycja.ngo.pl/) there are currently 6% of organisations with the budget exceeding 1 million (on an assumption that there are currently 70,000 active ones, this number equals 4,200), and those with the budget above 250,000 – 18% (i.e. 12,600). The Act would open the door to further regulations which could later cover also other organisations.

In order to understand what is really happening, you simply need to reach to what we have already had. Legal acts of this nature have previously been introduced in Israel, Hungary and in Russia. This is a kind of copycat legislation. All these Acts have been adapted to the local specificity, but in fact they are very similar, and their introduction was accompanied by an identical narrative.

And consequences of operation of these regulations – which in each of these cases led to a serious crisis in the NGO sector, and restriction of the organisations’ activity. In consequence – they caused reduced scrutiny of government by citizens, growth of authoritarianism and infringement of human rights.

In Russia, Acts on foreign funding have been additionally drastically extended since 2012. After the obligation to become registered as “foreign agents” and to identify their materials has been imposed on the organisations, the acquisition of funds from certain sources has been completely banned.

Another step was to open the door to similar regulations concerning the media sector. On 15 November 2017, the Russian Duma adopted an Act amending the media law. The amendment consisted in extending the operation of the Act on foreign agents to include the media – from that moment, any media that received any funds from abroad had to register as foreign agents and identify all of their materials – also when they receive funds from private persons, foreign citizens (i.e. for example when a foreign citizen pays for a subscription).

Two years after the Act mentioned had been adopted, on 21 November 2019 the State Duma adopted another amendment of the media law – this time concerning natural persons. This Act allowed the allocation of the “foreign agent” status not just to NGOs and media but also natural persons if they receive foreign funding and publish contents addressed to an unlimited number of recipients.

The Minister of Justice has also prepared a draft Act in which a register for “unregistered” organisations was proposed – i.e. for informal groups, citizens’ movements. Russian human rights defenders explain, however, that this is about achieving control of citizens’ activities that have not been controlled previously, and about imposing on them the same restrictions that have been imposed on organisations – for example those from the Act on foreign agents. However, the draft has not been enacted so far.

In practice, the need to identify materials as produced by an organisation which acts as a foreign agent constitutes a huge problem arising from the Act. It is easy to imagine a report on election fraud bearing the following description on the cover: “Prepared by an organisation acting as a foreign agent” (Association Golos) or a report from the public opinion poll bearing such a label (Levada Centre). This makes it difficult to present reports and survey results not just for the public opinion but also for the authorities (it makes it easier to take the following stance, e.g.: “we have studied the organisations report, but these are foreign agents”). It is easy to imagine how this label works in the case of the media.

Groups which in different countries cite the fact that a similar Act exists also in the United States discreetly omit the fact that it was created mainly with the political activity in mind. It was adopted a long time ago under no circumstances did it intend to regulate activities of non-profit organisations. The discussion concerning the possibility of application of this Act in general to organisations is currently under way, however the argument prevails that in a democratic state it would be simply harmful and benefits from such actions would be smaller than losses.

The ruling of the Court of Justice of the European Union in Strasbourg mentioned above seems of key relevance for the fate of all Polish drafts of this type.

On 13 July 2017, the European Commission initiate proceedings concerning the infringement of legal regulations against Hungary. According to the Commission, the law on foreign funding of organisations infringes the European Union law. Because the Hungarian government ignored the Commission’s opinion, the Commission brought the case to the Court of Justice of the European Union. 

The Court of Justice of the European Union issued a ruling concerning the Hungarian Act concerning NGOs which receive foreign financial support. It stated that The Act on foreign agents was incompliant with the EU law. In its decision, the Court ruled that by imposing obligations connected with registration and publication of information about foreign support on certain categories of organisations, Hungary introduced discriminatory and unjustified restrictions both with regard to these organisations and in relation to persons providing such support. The CoJ stated that transactions specified in this Act were covered by the term “movement of capital” within the meaning of the European law, and that the Act contained a restrictive measure of discriminatory nature. This is because it established a difference in the treatment of the movement of capital in domestic and cross-border trade – which may discourage natural persons and legal entities based in other Member States or third countries from providing financial support to Hungarian organisations.

The Court, however, referred not just to the issue of unequal treatment of domestic and foreign funds – it also deemed that these restrictions were contrary to obligations of Member States, also with regard to the right to respect their private and family life, right to personal data protection and right to freedom of association.

Judges of the Court of Justice noticed that publication of information concerning persons based in other Member States or in third countries, who provide financial support to those associations and foundations, may also discourage them from providing such support. Therefore, the obligations concerning registration and publication, and fines provided for in the Act on transparency, considered jointly, constitute a restriction to free movement of capital, which is forbidden.

Referring to the right to freedom of association, the Court noted that it constituted one of the fundamental bases of a democratic and pluralistic society because it made it possible for citizens to act jointly in areas that constitute a subject of shared interest, thus contributing to the correct functioning of public life. In this matter, the Court stated that measures provided for in the Act on transparency restricted that right because in many respects it significantly hindered the operation and functioning of associations covered by the scope of that Act.