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Property and Income

Parti nationaliste basque – Organisation régionale d'Iparralde v France, 7 June 2007 [ECtHR]

Case no 71251/01

19.  The applicant party complained that its request for authorisation of the funding association it had set up in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988 had been refused on the ground that most of its resources derived from financial support from the Spanish Basque Nationalist Party, a foreign legal entity. This had severely affected its finances and its capacity to pursue its political activities, particularly in relation to elections. It contested the Conseil d'Etat's conclusion that the prohibition on the funding of political parties by foreign legal entities was “necessary in a democratic society” for the “prevention of disorder” and submitted that the rule in question had been applied in its case on account of the views it promoted. It relied on Articles 10 and 11 of the Convention, taken together, and on Article 3 of Protocol No. 1 ...

B.  Opinion of the Venice Commission

29.  In its opinion, based in particular on a study of the domestic law in forty-four member States of the Council of Europe, the Venice Commission noted that twenty-eight of these States prohibited or substantially limited foreign donations to political parties and the other sixteen did not impose any such restrictions. It pointed out that national regulations on political parties resulted from history, political tradition and practice and hence differed greatly from one country to another. With regard to funding, approaches ranged from a total lack of regulations (for example, in Switzerland) or non-prohibition of foreign donations (for example, in Cyprus, Bosnia and Herzegovina, the Czech Republic and Hungary) to an explicit ban on foreign contributions and donations (as in France and the Russian Federation); intermediate solutions included imposing strict limitations (for example, in Armenia, Azerbaijan, Georgia and Moldova) or providing for exceptions to the rule, to a greater or lesser extent, in the case of funds originating from European Union member States (for example, in Spain, Germany, the United Kingdom – except Northern Ireland – and Lithuania). It concluded that each example of the prohibition of financing of political parties from foreign sources had to be considered separately in the light of the political system of the country concerned, its relations with its neighbours, its constitutional law and the general system it had adopted for the financing of political parties.

30.  The Venice Commission went on to point out that its guidelines on the financing of political parties emphasised the need to prohibit donations from foreign States and enterprises, and that Recommendation Rec(2003)4 of the Committee of Ministers urged member States to “specifically limit, prohibit or otherwise regulate donations from foreign donors” (see paragraph 18 above). As to whether, in particular, it was “necessary in a democratic society” for this prohibition to cover funds from foreign political parties, the Venice Commission referred to the principles deriving from the Court's case-law, as set out in United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/01, §§ 57-62, 19 January 2006). An analysis of the domestic provisions containing such a prohibition indicated that the reasons varied from one country to another, particularly on account of their specific history and political and constitutional experiences. One such reason related to the internationalist policies of extremist parties between the two world wars. A second stemmed from similar circumstances during the cold war and the ensuing polarisation of the world. A third resulted from fear of separatist movements. A fourth concerned the implementation of a system of public funding of parties and the consequent desire for the funds thus allocated to remain within the country. It was more difficult, in the Venice Commission's opinion, to identify why many States did not impose a prohibition of this kind (for example, Austria, Belgium, Denmark and Finland). In some countries, the reason was possibly that such a measure had never been thought necessary. Other countries appeared to have adopted this position in order to facilitate politically their own support of political movements in the Third World. A further group seemed reluctant to hinder legitimate cooperation between political parties in the context of the Parliamentary Assemblies of the Council of Europe and the OSCE, the European Parliament and cooperation organisations such as the Nordic Council.

31.  Having regard to the specific nature of the European Union and the “new legal order” it constituted, the Venice Commission found it “reasonable and appropriate” that the Union's member States should adopt a specific approach to the financing of political parties by political parties established in other member States. It pointed out in particular that Article 191 of the Treaty of Rome provided: “Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.” It added in this context that Regulation (EC) no. 2004/2003 of the European Parliament and the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding (see paragraph 27 above) afforded such parties the possibility of receiving donations from political parties which were members of them (Article 6), while Article 7 of the Regulation stated that their funding “from the general budget of the European Union or from any other source may not be used for the direct or indirect funding of other political parties, and in particular national political parties, which shall continue to be governed by national rules”. The Venice Commission observed that the very existence of the Regulation showed that cooperation and, to some extent, integration of financing systems were necessary for the functioning of political parties both at national level and at the level of the Union. It also referred to Article 56 of the Treaty, which enshrined the principle of free movement of capital, pointing out that this notion in principle covered all transfers of funds from one member State to another, probably including those between political parties. Since this was a fundamental freedom enshrined in the Treaty, the member States were required to respect it. The Venice Commission thus concluded that rules adopted by member States for the funding of political parties had to observe this principle, although the European Union's powers with regard to political parties were limited to the regulation of “political parties at European level”. The only exceptions permitted in this regard by Community law were those set out in the Treaty itself (for example, in Article 58, which reserved the right of member States “to take measures which are justified on grounds of public policy or public security”) or identified by the Court of Justice of the European Communities.

32.  In conclusion, the Venice Commission observed that in the light of the varying approaches to the issue from one Council of Europe member State to another, there could be no single answer to the question whether the prohibition on the funding of political parties by foreign political parties was “necessary in a democratic society”. It considered, however, that the experience of cooperation between political parties within supranational European organisations and institutions supported a less restrictive approach; such cooperation was itself “necessary in a democratic society”, whereas it was not obvious that the same could be said about the imposition of obstacles to cooperation through the prohibition of all financial relations between political parties established in different countries. Various factors could nevertheless be capable of justifying the prohibition of contributions from foreign political parties: in particular, where contributions were used to pursue unlawful aims (for example, where the foreign party in question advocated discrimination or human-rights violations), undermined the fairness or integrity of political competition, destabilised the electoral process, threatened the territorial integrity of the State concerned or hindered its democratic development, or where prohibition formed part of the State's international obligations. Accordingly, in the Venice Commission's opinion, to establish whether the prohibition on the financing of political parties by foreign political parties was compatible with the requirements of Article 11 of the Convention, each individual case had to be considered separately in the context of the general legislation applicable in the State concerned on the funding of political parties and of the State's international obligations – including, where appropriate, those resulting from membership of the European Union.

C.  The Court's assessment

33.  As a preliminary point, the Court reiterates that political parties come within the scope of Article 11 of the Convention (see, for example, United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 17, § 25, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1252, § 29). Accordingly, this provision is clearly applicable in the instant case.

Furthermore, the protection of opinions and the freedom to express them within the meaning of Article 10 of the Convention is one of the objectives of the freedoms of assembly and association enshrined in Article 11, particularly in the case of political parties, so that Article 11 must be considered in the light of Article 10 (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 88-89, ECHR 2003-II; United Communist Party of Turkey and Others, cited above, pp. 20-21, §§ 42-43; Socialist Party and Others, cited above, pp. 1255-56, § 41; and United Macedonian Organisation Ilinden and Others, cited above, §§ 59-61).

In the instant case the Court cannot see any evidence to suggest that the impugned measure sought to penalise the applicant party on account of the political views it promoted. Accordingly, although this factor is not decisive (see United Macedonian Organisation Ilinden and Others, cited above, § 59), the Court considers that the issues raised by the case relate essentially to Article 11 of the Convention.

34.  As to Article 3 of Protocol No. 1, the financial repercussions of the impugned measure on the ability of the applicant party and its members to take part in parliamentary elections cannot in any event be seen as anything other than “secondary” or “incidental effects” of the measure; accordingly, irrespective of whether the Court finds a violation (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 28, § 64, and Socialist Party and Others, cited above, p. 1259, § 57) or no violation of Article 11 (see, mutatis mutandis, Refah Partisi and Others, cited above, § 139), it is unnecessary to examine the case under Article 3 of Protocol No. 1.

35.  Having clarified that point, the Court will examine whether there was interference with the applicant party's exercise of the rights guaranteed by Article 11 of the Convention and, if so, whether the interference was justified in view of the requirements of paragraph 2 of that Article.

1.  Whether there was interference

36.  The Political Life (Financial Transparency) Act of 11 March 1988 limits the sources of funding for political parties. There is an annual ceiling of EUR 7,500 per person on donations from individuals, and contributions from other legal entities (with the exception of French political parties or groups) and foreign States are prohibited. In compensation for this, public funds are allocated to political parties in proportion to their results in elections to the National Assembly (sections 8 and 9 of the Act).

Under section 11 of the 1988 Act, political parties collect their funds through the intermediary of an agent, in the form of either a funding association (which must be authorised by the CCFP – section 11-1 of the Act) or an individual (designated as the “financial agent” in a simple declaration to the prefecture – section 11-2).

37.  In view of the applicant party's specific nature as the French “branch” of the Spanish Basque Nationalist Party, and in particular its small size and the local character of its sphere of activity, the prohibition on its receiving contributions from the Spanish Basque Nationalist Party undoubtedly has a significant impact on its financial resources and hence its ability to engage fully in its political activities.

More specifically, as a result of the refusal, on the basis of this prohibition, of the request to authorise the funding association set up by it, the applicant party is unable to receive funds through the association. While it has the alternative possibility of appointing an individual as “financial agent” for that purpose (without any authorisation being required), that person would not be able to receive contributions from the Spanish Basque Nationalist Party either.

38.  In short, having regard to the impact of the circumstances in issue on the applicant party's financial capacity to carry on its political activities, the Court is in no doubt that there has been interference with the exercise of its rights under Article 11.

2.  Whether the interference was justified

39.  Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.

(a)  “Prescribed by law”

40.  The Court reiterates that a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail; experience shows, however, that it is impossible to attain absolute precision in the framing of laws (see, for example, Ezelin v. France, judgment of 26 April 1991, Series A no. 202, pp. 21-22, § 45).

41.  In the instant case, contrary to what the applicant party maintained, the prohibition on the funding of French political parties by foreign political parties is prescribed by the Act of 11 March 1988. It follows from section 11 of the Act that political parties may receive funds only through a funding association or a financial agent (see also the CCFP's decision of 2 July 1999), and from subsection 5 of section 11-4 that funding associations and financial agents cannot receive contributions from foreign legal entities. A political party established in another State is clearly a “foreign legal entity”. The fact that the second subsection of section 11-4, which lays down in more general terms the rule that donations from legal entities are prohibited, provides for an exception to this rule in the case of donations from “political parties or groups”, without specifying whether this concerns only French parties or groups, is not sufficient to cast doubt on the clarity of the law on this point.

42.  The Court can, however, understand the applicant party's doubts as to whether the refusal of its request for authorisation of the funding association it had set up was foreseeable. It notes that the Act of 11 March 1988 (section 11-1) envisages only two scenarios in which a request for authorisation can be refused: where the object of the association is not limited to the funding of a political party, and where its articles of association do not define the geographical area within which the association is to carry out its activities or do not contain an undertaking to open a single bank or post-office account into which all donations received for the funding of a political party are to be deposited. However, in the present case the refusal was not based on one of these grounds but on the finding that most of the applicant party's resources derived from financial support from the Spanish Basque Nationalist Party. Admittedly, the Conseil d'Etat held in the instant case: “It follows from the first subsection of section 11-6 ... that the granting of authorisation is subject to the funding association's compliance with the requirements of sections 11-1 and 11-4 of the Act.” However, this is a somewhat extensive interpretation of that subsection, which is worded: “The authorisation of any association that has failed to comply with the requirements laid down in sections 11-1 and 11-4 of this Act shall be revoked.” It appears that in reality this provision solely allows ex post facto scrutiny of funding associations that have obtained authorisation. It is therefore permissible to question whether the law, as interpreted by the Conseil d'Etat, was foreseeable in its effect.

On this specific point, the Government maintained that there was settled case-law to the effect that it was possible to cite the grounds for revoking a permit or authorisation as a basis for refusing to grant such a permit or authorisation, seeing that the result was the same. They relied in that connection on the Conseil d'Etat's Aldana Barrena judgment of 8 January 1982, from which it appeared that the grounds for revoking refugee status were also capable of justifying a refusal to grant such status. In the Court's view, that judgment is not conclusive in that it simply set aside a decision by the Appeals Board on the ground that it had refused to take into consideration facts occurring after the refusal issued by the French Office for the Protection of Refugees and Stateless Persons. The Court can, however, see the logic in the Conseil d'Etat's interpretation of the above-mentioned provisions, given that a strict reading of them would mean granting and subsequently revoking authorisation, since the CCFP – as the Government submitted – has limited discretion. Accepting, therefore, that such an interpretation was foreseeable, the Court concludes that the interference in issue was “prescribed by law”.

(b)  Legitimate aim

43.  As to the “legitimate aim” pursued, the Conseil d'Etat referred to the “prevention of disorder”. It pointed out in that connection that political parties were “intended to contribute to the exercise of suffrage in the implementation of national sovereignty” and that “[i]n prohibiting foreign States and foreign legal entities from funding national political parties, the legislature [had] sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty”; the aim pursued had thus related to the protection of the “institutional order”.

The Court accepts that the concept of “order” within the meaning of the French version of Articles 10 and 11 of the Convention encompasses the “institutional order”, although the expression “défense de l'ordre” (protection of order) refers essentially to the prevention of disorder, as can be seen from the English version of Articles 10 and 11, which uses that term.

Having thus acknowledged the legitimacy of the aim pursued, the Court considers that, contrary to what the applicant party maintained, the fact that the prohibition also applies to contributions from political parties established in another member State of the European Union is not sufficient to call it into question; in the Court's view, that particular factor must be taken into account in examining whether the interference was “necessary”.

44.  The Government added that the law was also aimed at the “prevention of crime”, in that it was more difficult to check the origin and lawfulness of funds from abroad. The Court observes that that was not the Conseil d'Etat's assessment in the present case, but considers it unnecessary to determine this question since it is sufficient that the interference in issue pursued just one of the legitimate aims listed. It will therefore confine itself to its above finding that the aim of the interference was the “prevention of disorder”.

(c)  “Necessary in a democratic society”

45.  The Court observes at the outset that the prohibition on the financing of political parties by any legal entities other than French political parties and groups forms part of a body of rules designed to ensure financial transparency in political life. It would observe, firstly, that it is especially alert to the importance of such regulations “in a democratic society” as this has been highlighted by both the Venice Commission and the Parliamentary Assembly of the Council of Europe (see paragraphs 16-17 above).

46.  That said, the Court reiterates that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on the freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports 1998-IV, pp. 1614-15, § 40). That applies all the more in relation to political parties in view of the importance of their role in a “democratic society” (see, for example, United Communist Party of Turkey and Others, cited above, pp. 16, 20-21 and 22, §§ 25, 43 and 46).

When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court also has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, for example, Sidiropoulos and Others, loc. cit., and United Communist Party of Turkey and Others, cited above, p. 22, § 47).

47.  In the instant case the Court has no difficulty in accepting that the prohibition on the funding of political parties by foreign States is necessary for the preservation of national sovereignty; indeed, the “Guidelines on the financing of political parties” adopted by the Venice Commission (see paragraph 16 above) state that financial contributions from foreign States should be prohibited.

It is not so easily persuaded, however, with regard to the prohibition on funding by foreign political parties. It fails to see exactly how State sovereignty would be undermined by this factor alone. Moreover, it is striking that the above-mentioned guidelines – which, precisely, approach this question from the standpoint both of the need to ensure “democratic security” and of freedom of political association – do not indicate that there should be such a ban, whereas they emphasise the need to prohibit funding by “foreign enterprises”.

The Court considers, however, that this matter falls within the residual margin of appreciation afforded to the Contracting States, which remain free to determine which sources of foreign funding may be received by political parties. In support of that approach, it notes that it appears from the opinion produced in the present case by the Venice Commission that the member States of the Council of Europe are divided on the financing of political parties from foreign sources (see paragraph 29 above), and that in Article 7 of Recommendation Rec(2003)4 of 8 April 2003 on common rules against corruption in the funding of political parties and electoral campaigns, the Committee of Ministers of the Council of Europe recommended that the governments of member States “specifically limit, prohibit or otherwise regulate donations from foreign donors” (see paragraph 18 above).

This leads the Court to conclude that the fact that political parties are not permitted to receive funds from foreign parties is not in itself incompatible with Article 11 of the Convention.

48.  The applicant party submitted that a specific approach nevertheless had to be adopted where a political party established in one member State of the European Union received funds from a political party established in another member State.

In the Court's opinion, that is no doubt a factor to be taken into consideration, seeing that a certain degree of “intrusion” by such parties into the political life of other European Union member States may appear consistent with the logic of European integration. Indeed, this seems to be the approach taken by the Venice Commission, whose opinion stresses the value of financial cooperation between parties at European Union level and points out that the prohibition in issue might contravene the Community principle of free movement of capital (see paragraph 31 above).

However, in the first place, it is not for the Court to interfere in matters relating to the compatibility of a member State's domestic law with the European Union project. Moreover, the choice of the French legislature not to exempt political parties established in other European Union member States from this prohibition is an eminently political matter, which accordingly falls within its residual margin of appreciation.

49.  It remains to be determined in practical terms whether the measure complained of is proportionate to the aim pursued; this entails assessing its impact on the applicant party's ability to engage in political activities.

The Court reiterates in this connection that when assessing the “necessity” of an interference with the right to freedom of association, the extent of the interference is decisive. It has held that “drastic measures, such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken only in the most serious cases” (see Refah Partisi and Others, cited above, § 100); conversely, “mild measures” should be more broadly acceptable.

50.  In the instant case the Government rightly pointed out that the measure complained of does not call into question the applicant party's legality or constitute a legal impediment to its participation in political life or censorship of the views it intends to promote in the political arena.

Admittedly, as the applicant party indicated, in order to engage fully in political activities it has to forgo financial assistance from the Spanish Basque Nationalist Party.

However, to fund its political activities, it would nevertheless be able to use membership fees and donations from individuals – including those from outside France – which it could collect through a financial agent or a funding association authorised on the basis of a fresh application. Furthermore, there is nothing in law to prevent it from receiving funds from other French political parties or from taking advantage of the system of public funding instituted by the French legislature. It is true, as the applicant party pointed out, that these sources of funding appear somewhat hypothetical in its particular case. In view of its political aims, it is unlikely that it would attract the support of another French party; and in view of its geographical sphere of activity, it is likely to take part in local rather than parliamentary elections, so that it scarcely appears to be in a position to take advantage of the system of public funding (which is based on results in parliamentary elections). Its election candidates would nevertheless enjoy all the same benefits as those from other parties in terms of the funding of their election campaign (the costs of “official election material” being borne by the State and election expenses being refunded subject to certain conditions).

51.  In conclusion, the impact of the measure in question on the applicant party's ability to conduct its political activities is not disproportionate. Although the prohibition on receiving contributions from the Spanish Basque Nationalist Party has an effect on its finances, the situation in which it finds itself as a result is no different from that of any small political party faced with a shortage of funds.

52.  In the light of the foregoing, the Court considers that the interference with the applicant party's right to freedom of association may be regarded as “necessary in a democratic society” for the “prevention of disorder” within the meaning of Article 11 of the Convention. There has therefore been no violation of that provision, read separately or in conjunction with Article 10 of the Convention.

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