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Ahead of the EU Elections 2024 | 2 | An effective defence of democracy


Introduction

The interest representation Directive, the legislative proposal of the Defence of Democracy Package which was adopted by the European Commission on 12 December 2023, aims to bring transparency and accountability on foreign-funded individuals and entities, carrying out activities on behalf of third countries against remuneration. 

Stepping into 2024, the European elections year, both co-legislators have started preliminary discussions on the legislative file. We have compiled a list of key topics that have been points of discussion and contention among policymakers, alongside our own recommendations on these issues for the upcoming term. Specifically, we have identified the following topics of discussion:

  1. Scope – Capturing interference effectively 
  2. Maximum vs minimum harmonisation argument
  3. The case for independent national authorities
  4. Appropriate sanctions with strong safeguards
  5. Fundamental rights’ aspects: A long road with twists and turns

The Defence of Democracy Package also includes a Recommendation on inclusive and resilient electoral processes. It is unfortunate that the proposal’s timing will not allow Member States to implement the recommendation effectively before the European elections in 2024. Additionally, the proposal comes in the form of a recommendation without any binding effect on the Member States.

Recommendations

Scope – Capturing interference effectively

Extensive discussions have taken place among policymakers on the scope of the Directive. Questions have arisen about whether the scope of activities covered by this Directive should be broadened, whether the link between third countries and interest representatives should extend beyond its financial nature, or whether a Directive targeting only foreign-funded individuals and entities will effectively address cases of interference.

Maximum vs minimum harmonisation argument

At present, 15 Member States maintain transparency registers for interest representation activities, each operating under different scope and imposing varying obligations or forms of sanctions. Several countries have proposed lowering the level of harmonisation from maximum to minimum arguing that Member States which have stricter rules should not be forced to lower their standards. This means, however, that all Member States will have the ability to adopt stricter measures (or even criminal sanctions) against critical voices, such as individuals or entities opposing government policies.

The case for independent national authorities 

So far, neither the Commission nor policymakers have guaranteed that both types of national authorities, namely the “supervisory authorities” and the “authorities in charge of setting up and maintaining national registers”, must be independent. They have given more emphasis on the former type over the latter. Similarly, there has been a lack of discussion regarding the potential conflicts arising between national authorities from different Member States in their cross-border cooperation and exchange of information.

Appropriate sanctions with strong safeguards

Discussions have also touched upon the possibility of raising the proportion of administrative sanctions (currently at 1% of the annual turnover), proposing dissolution of entities or even introducing criminal sanctions, mirroring what is currently envisaged in certain national registers.

Fundamental rights’ aspects: A long road with twists and turns

Initially, the Commission intended to propose the file without first conducting a fundamental rights’ Impact Assessment. However, following a robust reaction by civil society organisations, the Commission decided to conduct such an assessment. 

The Directive incurs significant implications for fundamental rights and freedoms, restricting a number of them in the name of transparency. The question remains whether the level of interference is in line with the European and international standards on human rights. With the European Parliament’s Civil Liberties Committee (LIBE) opting out of involvement in this file, other Committees involved have been exploring the possibility of requesting an opinion from an external body with a mandate on fundamental rights, such as the Venice Commission and the Fundamental Rights Agency (FRA). 

An effective defence of democracy: Photo by Liam Edwards on Unsplash