Legislative Brief by Civic IDEA regarding the “Foreign agents’” draft law initiated by the parliamentary group “The People’s Power”
In the beginning, it must be unequivocally said that the draft law is dangerous and discriminatory and significantly distances us from the declared goal of joining the European Union; therefore, it goes against the constitution and the choice of the Georgian people.
Today, the initiation and support of such a law by the ruling party in Georgia, the content and goals of which have been negatively evaluated by all structures and all member states of the European Union, and which the Court of Justice of the European Union has declared[1] to be contrary to the legislation of the European Union, clearly represents another attempt by the Georgian authorities to distance the country from the perspective of European integration.
Since applying for candidate status, this is not their first step, which goes contrary to the purpose of EU membership. However, we can undoubtedly say that among the anti-integration steps taken during the year-long process, the adoption of this bill will be the most glaring proof of the ruling party’s anti-EU and isolationist policy.
At the same time, we should not forget that the main inspirer and first initiator of such legislation were the Russian Federation, where the enactment of the law resulted in mass persecution, arrests, and in many cases expulsion of non-governmental organizations, their founders, and employees.
Why is the draft law incompatible with democracy and EU standards?
The bill is unequivocally anti-European, or more precisely anti-EU.
Not only experts and non-governmental organizations but also the International Court have unambiguous positions on this issue. Its analog, the Hungarian law, was recognized by the Court of Justice of the European Union as contrary to EU laws and other multiple acts in 2020 (in the case of Commission vs. Hungary). It is to be mentioned that Hungary annulled legislation 2021.
The Court held that “by imposing obligations of registration, declaration, and publication on certain categories of civil society organizations directly or indirectly receiving support from abroad exceeding a certain threshold and providing for the possibility of applying penalties to organizations that do not comply with those obligations, Hungary had introduced discriminatory and unjustified restrictions with regard to both the organizations at issue and the persons granting them such support.”
The Luxembourg court found that the law –
– Is discriminatory;
– Violates the right to freedom of association;
– Violates the right to privacy and privacy of personal information;
The law contradicts one of the fundamental rights of the creation and existence of the European Union – Free movement of capital – the transactions covered by the Transparency Law fell within the scope of the concept of ‘movements of capital’ in Article 63(1) TFEU and that the law in question constitutes a restrictive measure of a discriminatory nature.
Why did the court find multiple violations of the law and why is such legislation anti-democratic?
1. It is discriminatory for the following reasons:
a. It differentiates organizations with identical mandates and activities and imposes restrictions only on one segment of operating private entities, NGOs on a discriminatory basis.
It is unclear on what principle non-profit organizations are selected for such “transparency scrutiny” and not LTDs, LEPLs, state agencies, or any other legal entity with similar activities and the same sources of funding.
Financial resources raised by non-governmental organizations are the same as investments by LTDs or legal entities under public law. Both create jobs or delivered services and goods with this money.
For example, let us consider the case of three organizations:
– The law firm (ltd)
– Public Legal Aid Bureau (a legal entity under public law)
– Legal aid center of the Georgian Young Lawyers’ Association (NGO)
All three organizations are engaged in absolutely identical activities, providing legal consultations, representing persons in court or with other bodies, assisting in preparing legal documents, and others. The only difference between them is that one takes money for this service from the client, the second receives funding from the budget, and the third will seek financial support from outside the country and will serve the citizens of Georgia for free with the help of foreign donors.
Meanwhile, we often have cases when within the framework of different donor programs, like, small business support and state institutional strengthening programs, it may turn out that the source of funding is the same; for instance, USAID can be the one that finances the non-governmental organizations, but the difference is that the first still continues to receive payment for services from clients, the second receives money from the budget and the third one continues to serve the people in need free of charge and entirely selflessly.
What does the new bill say?
Despite this uniformity, both in terms of activities and funding, only an NGO has to claim the status of “agent of a foreign country”, and all obligations apply only to them.
Therefore, it is probably not surprising that the EU court unquestionably established the discriminatory nature of the law in a similar Hungarian case.
b. The authors of the draft law say that such organizations influence public opinion and the decision-making process, which is the basis for the need for new legislation and the equalization of non-governmental organizations with political public entities.
This argument is not one of a kind either since the Hungarian legislation indicated the same argument, although they forgot to draw a sharp line. The argument is not unique because the Luxembourg court discussed this matter and unequivocally determined that, in reality, regardless of the nature of the organization’s activity, the law always applied to non-governmental organizations if 20 percent of their funding comes from foreign states or foundations, and that is why it is discriminatory.
If we judge on the example of the Young Lawyers’ Association, how does the law address that? Will their legal aid or education programs and the resources used for them separated from the rest of their activities and declared accordingly?
Or to exclude discrimination again and again, what do the authors of the law say about the construction companies financed by the European investment who lobby for the construction code and standards, or pharmaceutical companies and others? Are they obligated to declare and affix the status of “agent of a foreign country” to their objects? Or, what does the law say about legal entities under public law? Due to similar activities, do they also become carriers of the status of “agent of a foreign country”?
The prohibition of “money laundering, financing of terrorism, and organized crime” established by numerous international documents, as well as all measures that equal to such actions, are the only cases where any restrictions, additional registration obligations, or other requirements can be considered legitimate.
c. The draft law also contradicts the norms of freedom of association recognized by the Constitution and International law.
2. Initiators of the draft, as well as ruling party representatives and their supporters, claim similarity with the US law on Foreign agents and by that challenge legitimacy of the controversy around it. It is to be said clearly that the proposed legislation is absolutely distinctive from the US FARA both in terms of the purpose of the law and the scope of the issues covered. Here are some of the issues to be outlined.
✔The subjects of the proposed Georgian legislation are exclusively only NGOs and media organizations, while FARA does not discriminate by type of organization and is purpose oriented;
✔ Georgian legislation labels all NGOs and media entities as “foreign Agents” as long as 20 percent of their finances come from foreign sources regardless of the nature and purpose of the activities, even purely humanitarian aid delivery NGOs will be declared as foreign agents;
✔ The subject of US FARA is anyone (legal or physical person) as long as they are “paid lobbyists” of a foreign principle “to influence the public decision-making process in both the legislative and executive branches of the Federal Government”;
To make this difference even more clear here is an example. The Georgian government usually has paid lobbyists in Washington to lobby the interests of Georgia with the US government. All of them are registered under the FARA regulations, and transparency rules established by US law make it possible not only for the American taxpayers but also for us to see those contracts and activities carried out in the name of Georgia by hired lobbyists. In most cases, those companies are american Law firms or PR agencies and almost never non-profits. So, a law firm in the US hired by the Georgian government to lobby Georgia’s interests in Senate goes through the registration process and falls under the category of foreign agents. This is all US FARA regulates.
Now, the proposed Georgian draft law says that only NGOs or media organizations say the Georgian Red Cross, needs to go through registration and becomes foreign agent as soon as they get money from e.g. Swiss government for humanitarian aid to be distributed among IDPs from South Ossetia. But if there is a Georgian Law firm representing Iranian companies and lobbying on their behalf to avoid sanctions and ease regulations with the government of Georgia, they do not fall under the regulation of the law and do not need to be transparent about funding or their activities.
We believe that these two cases show the real difference and also the real reason behind the proposed legislation. Not the disclosure of foreign influence operations in Georgia and the funding behind it, but a witch hunt against NGOs.
If we imagine for a moment that the draft law will be passed and implemented on a full scale without discrimination and will declare all organizations funded by international donor organizations as “agents of foreign influence”, we will see similar inscriptions on the uniforms of the Georgian military next to the Georgian flag, on the equipment of the Georgian policemen, on the buildings and structures of all secondary schools, on the complete set of weapons of the country. Moreover, scientists of almost all universities, researchers who can continue their activities precisely because of the existence of such grants, a significant part of students who have scholarships from the Konrad Adenauer Foundation, Erasmus, or other similar programs, doctors and patients who receive medicines or medical care free of charge within the framework of such assistance should be declared foreign agents as well. It needs to be said that if it were not for the efforts and programs of our strategic partner countries, and especially the donor organizations registered in the USA, we might have insurmountable problems of fighting for survival due to mass hunger, “C” hepatitis, and many other reasons.
Despite all the above-mentioned legal arguments, which are already known to government officials, the initiation of the project and the silence of the ruling party on its Russian and discriminatory nature once again confirm the real goal of the Georgian Dream, to use all means at its disposal to delay the process of rapprochement with the European Union and complete de-Europeanization of the country.
The answer to the question frequently asked by government supporters about why should the ruling party do this and what is its interest is more trivial because the Georgian Dream, like any other party leaning towards authoritarianism, is afraid of Europe, which brings democracy, freedom, an environment free from discrimination, fear and state terror.
We appeal to the opposition parties in the parliament to ensure a quick and complete delivery of information about the mentioned bill to all our partner countries and international organizations, to use the resources of various parliamentary assemblies and monitoring committees to make the issue of political responsibility of the government team inevitable in case the law is adopted.
