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Regulating Political Activities of Non-Governmental Organisations

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O ING Conf/Exp (2013) 4

December 2013

EXPERT COUNCIL ON NGO LAW

REGULATING POLITICAL ACTIVITIES
OF NON -GOVERNMENTAL ORGANISATIONS

prepared by Ms Katerina Hadzi -Miceva Evans
on behalf of the Expert Council
at the request of the Standing Committee of the Conference of INGOs
d

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INDEX

Introduction Paras.1 -8

The concept of and standards for engagement Paras.9 -26

Political activities and public policy activities Paras.2 7-32

Overview of regulatory approaches to political activities Paras.3 3-38

Conclusion Paras.3 9-40

Country cases

Hungary Paras.4 1-62

Slovakia Paras.6 3-75

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REGULATING POLITICAL ACTIVITIES OF NON -GOVERNMENTAL
ORGANISATIONS

A. Introduction

1. Legislation currently drafted or adopted around the world and in particular
in some member states of the Council of Europe (e.g. Russia, Azerbaijan
and Turkey) reduces the possibility for active engagement of non –
governmental organisation s (NGOs). The threats particularly concern the
in ability of organi sations to voice their opinions and shape policies. 1

2. The ability of NGOs to engage in activities that influence politics and
policy -making is particularly important for those that engage in advocacy
activities. Such organisations aim to actively take part in policy -making in
order to contribute to shaping the future of the country around elections and
to defend human rights of fellow citizens.

3. The most recent example in restricting areas of NGO engagement is the
Law Introducing Amendments to Certain Legislative Acts of the Russian
Federation Regarding the Regulation of Activities of Non -Commercial
Organisations Performing the Function of Foreign Agents (‘the Law’),
dated July 20, 2012, №. 121 -Ф3.

4. One of the key concerns with the so -called “foreign agents’ law” is the
definition of political activities. Under the Law a “political activity” is
defined as “taking part (including by financing) in the organisation and
conduct of political actions aimed at influence over the decision -m aking by
state bodies intended for the change of state policy pursued by them, as well
as in the shaping of public opinion for the aforementioned purposes.” The
Law excludes several areas of NGO work from this definition. However,
experts agree that the de finition as provided in the law goes beyond what is
considered as political engagement. Indeed, the definition is too broad to
include activities dedicated to changing state policy as well as to
influencing public opinion relat ed to changing public policy. In other words,
1 For further information on standards please see: http://www.coe.int/t/ngo/expert_council_en.asp and
http://associationline.org/guidebook , whilst on trends in restrictive laws regarding NGOs please see:
http://www.icnl.org/research/monitor/index.html . All links to internet pages referenced in the footnotes of this
study were last accessed in December 2013.

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under the Law, any advocacy activity undertaken by NGOs could be
considered a “political activity”.

The Council of Europe Commissioner for Human Rights specifically note d
that “from the outset the Law did not clearly and unequivocally exclude
human rights advocacy from the notion of political activity” .2 As concluded
by the Commissioner, the Expert Council on NGO Law and other
international organisations including the Internatio nal Center for Not -for –
Profit Law (ICNL), “one can reasonably assume that the law will have a
disproportionate effect on democracy, governance, and human rights
activities.” 3 Unfortunately, the implementation of the Law justified these
concerns. Furthermor e, there are recent examples of other countries
attempting to follow the trend. 4

5. The current study was commissioned in order to provide a deeper
understanding of the approaches in defining and regulating political
activities vis -a-vis public policy and ad vocacy related activities.

6. The study provides an overview of the international and European
guarantees regarding the ability of NGOs to engage in political activities.
The study also summarises approaches in regulating political activities and
public par ticipation in a selected number of member states of the Council of
Europe which have undergone a similar transition to Russia.

7. The study was prepared at the request of the Conference of International
Non -Governmental Organisations of the Council of Europ e. It was
developed based on desk research and legal advice obtained from country
experts regarding the two case studies. The study further develops
information presented in the paper “Political Activities of NGOs:
International Law and Best Practices” by ICNL. 5 To this end, the study
updates the regulatory approach in Hungary, discussed in ICNL’s paper and
introduces a case study on Slovakia. 6 Parts of the study were presented at
the roundtable on “Developments in Legislation on Non -commercial
2 Opinion of the Commissioner for Human Rights on the Legislation of the Russian Fe deration on Non -Commercial
Organisations in Light of Council of Europe Standards, CommDH(2013)15 3 http://www.icnl.org/news/2012/2 -Jul.html ; see also: Expert Council on NGO Law: Country study on NGO
legislation in the Russian Federation
http://www.coe.int/t/ngo/Articles/Expert_Council_Russia_country_study_en.asp 4 Draft ing of laws similar to the Russian foreign agent law were initiated in Hungary and Kyrgyzstan for example. 5 Available at: http://www.icnl.org/research/journal/vol12iss1/special_1.htm 6 At the time of writing this study the situation in the other countries discussed in ICNL paper remains unchanged.

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Organisation s. International Experience”, co -organised by the Conference
of International Non -Governmental Organisations of the Council of Europe
and the Civic Chamber of the Russian Federation on 31 October 2013, in
Moscow. 7

8. This study is a step towards understandin g the framework within which
these activities can take place including the international guarantees that
exist. It aims to support governments and NGOs in creating a conducive
legal framework for NGO engagement and to give further arguments to
citizens and NGOs to defend their rights to be active contributors in shaping
policies and developing their societies.

B. The concept of and standards for engagement

9. The right to engage in any activities, including political activities as well as
public policy is cl osely linked to the freedoms of expression, association
and assembly. This right is an expression and manifestation of these
freedoms.

10. As previously stated by the Expert Council on NGO Law, NGOs should be
allowed to engage in any kind of activities otherw ise allowed to individuals,
without additional restrictions imposed on them. 8 Several international and
European instruments have integrated concrete guarantees for NGO
engagement in political and public policy activities.

11. The International Covenant on Civil and Political Rights (ICCPR)
recognises and protects the right of every citizen to take part in the conduct
of public affairs, the right to vote and to be elected and the right to have
access to public service. 9

12. As the General Comment on Article 25 of ICCPR provides in the conduct
of public affairs:
“… is a broad concept which relates to the exercise of political power,
in particular the exercise of legislative, executive and administrative
powers. It covers al l aspects of public administration, and the
7 The presentation was delivered by Maria Pomazkova , member of the Expert Council. 8 See Expert Council on NGO Law , ‘Conditions of Establis hment of Non -Governmental Organisations’, par. 33 and
further. 9 Article 25 of ICCPR.

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formulation and implementation of policy at international, national,
regional and local levels. The allocation of powers and the means by
which individual citizens exercise the right to participate in the
conduct of public affairs protected by article 25 should be established
by the constitution and other laws.” 10 (§5) Citizens may participate
directly by taking part in popular assemblies which have the power to
make decisions about local issues or about the affair s of a particular
community and in bodies established to represent citizens in
consultation with government” ( §6) .

13. The Comment further stipulates that:
“Citizens also take part in the conduct of public affairs by exerting
influence through public debate and dialogue with their
representatives or through their capacity to organise themselves. This
participation is supported by ensuring freedom of expression,
assembly and association”. (§8) “The right to freedom of association,
including the right to form and join organisations and associations
concerned with political and public affairs, is an essential adjunct to
the rights protected by article 25” (§26).

14. In line with this the UN Special Rapporteur on the rights to freedom of
peaceful assembly and of association in response to the U nited K ingdom’s
“Transparency in Lobbying, Non -Party Campaigning, and Trade Union
Administration Bill” stated:

“…the work of some of these [civil society] organisations is political
by definition, which is protected by the international covenant on civil
and political rights. This is, in fact, part of the reason they constitute
such a crucial component of a free and democratic society, for
engaging in politi cal activity should not and must never be left to
politicians and political parties alone. Civil society’s engagement in
political activities promotes and influences focus on issues, principles
and ideology, rather than seeking political power. Independent civil
society is one of the best vehicles we have for dialogue, pluralism,
tolerance and broadmindedness. It is a prerequisite for a legitimate
democracy. In the UK, civil society groups perform a vital function by
promoting political participation, under taking voter education,
10 General Comment No. 25: The Rights to participate in public affairs, voting rights and the right of equal access to
public service (Art. 25):.12 -07 -1996. CCPR /C/21/Rev.1/Add.7, General comment No. 25. (General Comments).
Office of the High Commissioner for Human Rights

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campaigning for good governance reforms and providing vehicles for
the expression of different interests. They also act as platforms that
cut across ethnic, linguistic and other barriers, and catalyse public
debate on issues that af fect them. Shutting down this debate
wholesale does nothing to advance democracy. It only threatens to
indelibly mar future elections with the stain of silenced voices.” 11

15. Similar guarantees are found in other international documents. For
example, the Dec laration on Human Rights Defenders of the UN General
Assembly 12 which sets a series of principles and rights that are based on
standards enshrined in other international legally binding instruments
provides the following guarantees:

“Article 7
Everyone has the right, individually and in association with others, to
develop and discuss new human rights ideas and principles and to
advocate their acceptance.

Article 8
1. Everyone has the right, individually and in association with others,
to have effective acce ss, on a non -discriminatory basis, to
participation in the government of his or her country and in the
conduct of public affairs.
2. This includes, inter alia, the right, individually and in association
with others, to submit to governmental bodies and agencies and
organisations concerned with public affairs criticism and proposals
for improving their functioning and to draw attention to any aspect of
their work that may hinder or impede the promotion, protection and
realization of human rights and funda mental freedoms.”

16. The European Convention on Human Rights and Fundamental Freedoms
(ECHR) guarantees the right of NGOs to engage in any kind of activities
otherwise allowed to individuals, and it provides a limited list of legitimate
interests that may ju stify restrictions on fundamental freedoms of
individuals or activities of organisations. 13 Any interference in the rights
and freedoms, including the ability of organisations to undertake activities
11 “Coalition’s lobbying bill threatens to leave a stain on British democracy ”, Maina Kiai, in theguardian.com, 12
January 2014 12 UN General As sembly resolution A/RES/53/144, 8 March 1999, Annex. 13 See Expert Council on NGO Law ‘Conditions of Establishment of Non -Governmental Organisations’, pars. 33 -45

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to pursue their objectives must be ‘necessary in a democr atic society’ to
achieve legitimate state interests, which include the interests of national
security or public safety, the prevention of disorder or crime, the protection
of public health or morals, or the protection of the rights and freedoms of
others. 14

“…the permitted restrictions on internationally guaranteed rights and
freedoms must also not be exceeded and thus make it impossible for
an NGO to be established to pursue objects that are entirely
legitimate. No blank cheque is thus given to States th at would allow
them to make unlawful anything to which they object .”15

17. Furthermore, Article 14 of ECHR provides that enjoyment of the rights and
freedoms set forth in the Convention shall be secured without
discrimination on any ground including political.

18. The European Court of Human Rights addressed the capacity of citizens
and NGOs to engage in public policy and political activities in several
cases. The Court stated that allowing participation in public life and policy
is in keeping with one of the principal features of democracy — that is, to
create the possibility for members of a society to resolve social and
political problems through dialogue, without recourse to violence, “even
when they are irksome” .16 A State has some margin of appreciation in
setting out conditions for the establishment and oversight of political
parties and other associations participating in elections, however, other than
that the ECHR provides broad protection to NGOs “political” activities.

19. More important ly , the Court also stated that the fact that an NGO’s
objectives might be seen as “political” should not necessitate it seeking the
status of a political party where this is separately provided for under a
country’s law. In the case of Zhechev v. Bulgaria , where an association
with objectives deemed “political” was precluded from acquiring legal
personality other than as a political party , the Court noted that the mere fact
that an organisation demands political changes or that its activities are
otherwise deemed “political” does not per se justify interference with its
freedom of association, including a request that the organisation be
registered as a political party, in order to participate in political life.
14 ECHR, Article 11(2) 15 Expert Council on NGO Law , ‘Conditions of Establishment of Non -Govern mental Organisations’, pars 35. 16 United Communist Part of Turkey and Others v. Turkey, no 19392/92, 30 January 1998, paras 57 -58.

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“The first thing which needs to be noted i n this connection is the
uncertainty surrounding the term “political”, as used in Article 12 § 2
of the Constitution of 1991 and as interpreted by the domestic courts.
… Against this background [of different interpretations by national
courts] and bearin g in mind that this term is inherently vague and
could be subject to largely diverse interpretations, it is quite
conceivable that the Bulgarian courts could label any goals which are
in some way related to the normal functioning of a democratic society
as “political” and accordingly direct the founders of legal entities
wishing to pursue such goals to register them as political parties
instead of “ordinary” associations. A classification based on this
criterion is therefore liable to produce incoherent res ults and
engender considerable uncertainty among those wishing to apply for
registration of such entities. It would also mean subjecting it to a
number of additional requirements and restrictions…, which may in
some cases prove an insurmountable obstacle f or its founders.
Moreover, such an approach runs counter to freedom of association,
because, in case it is adopted, the liberty of action which will remain
available to the founders of an association may become either non –
existent or so reduced as to be of no practical value …”. 17

20. The protection also extends to NGOs rights to publish and distribute
propaganda materials, advocate with authorities by promoting their ideas
and aims, and involve volunteers in their activities. Otherwise, the right to
engage in political activities would be deprived of any content. 18

21. The freedom of NGOs to pursue any objectives, including political
activities and public policy is noted also in the Council of Europe
Recommendation CM/Rec(2007)14 of the Committee of Ministers t o
member states on the legal status of non -governmental organisations in
Europe . The Recommendation emphasises four important guiding
principles:

17 Zhechev v Bulgaria, no 57045/00, 21 June 2007 , Par. 55 -56. of the judgment. See also Expert Council on NGO
Law , ‘Conditions of Establishment of Non -Governmental Organisations’, pars. 18 -24. 18 See e.g. Koretsky and Others v. Ukraine , 40269/02, 3 April 2008, discussed in Expert Council on NGO Law
‘Conditions of Establishment of Non -Governmental Organisations’, pars. 33 -45.

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– NGOs should be free to pursue their objectives, provided that both the
objectives and the means employed are consistent with the
requirements of a democratic society (§11).
– NGOs should enjoy the right to freedom of expression (§5).
– NGOs should be free to undertake research, education and advocacy
on issues of public debate, regardless of whether the position taken is
in accord with government policy or requires a change in the law
(§12).
– NGOs should be free to support a particular candidate or party in an
election or a referendum provided that they are transparent in
declaring their motivation, subject to legislation on the funding of
elections and political parties (§13).

22. The Recommendation also provides specific guidance that governments
should allow ef fective participation of NGOs, without discrimination, in
dialogue and consultation on public policy objectives and decisions.

“76. Governmental and quasi -governmental mechanisms at all levels
should ensure the effective participation of NGOs without
disc rimination in dialogue and consultation on public policy
objectives and decisions. Such participation should ensure the free
expression of the diversity of people’s opinions as to the functioning
of society. This participation and co -operation should be fa cilitated by
ensuring appropriate disclosure or access to official information.
77. NGOs should be consulted during the drafting of primary and
secondary legislation which affects their status, financing or spheres
of operation.

23. The Explanatory Memorandum to the Recommendation explains that NGO
support to political parties or their agenda can be an important means of
realising a particular objective, whether in whole or in part, as the outcome
of an election or referendum may lead to a change in law or pol icy
favourable to that objective. NGOs should, therefore, be free to provide
such support . A condition however may be imposed that they be
transparent when declaring their motivation, particularly to ensure that their
members and funders are aware of such support being given and that the
law on the funding of elections and political parties is observed.

24. The Council of Europe Recommendation CM/Rec(2010)5 of the Committee
of Ministers to member states on measures to combat discrimination on

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grounds of sexual orientation or gender identity also reinforces the
importance of the inclusion of different types of NGOs in public policy:

“Member states should ensur e that non -governmental organisations
defending the human rights of lesbian, gay, bisexual and transgender
persons are appropriately consulted on the adoption and
implementation of measures that may have an impact on the human
rights of these persons.”

25. Th e Council of Europe ’s Code of Good Practice for Civil Participation 19
underpins the general principles, guidelines, tools and mechanisms for
active participation of NGOs in public affairs with focus on the decision –
making process. The Code is a reference do cument which aims to set the
basis for further development of the framework for citizens’ involvement in
conducting public affairs in European countries. The Code describes four
gradual levels of participation, from least to most participative:
information ; consultation; dialogue; and partnership. Furthermore, the
Code defines the forms through which NGOs can contribute at each stage
of participation. Typical forms include: advocating for issues, concerns and
needs, information and awareness building; exper tise and advice sharing;
providing innovation in addressing needs, engaging in service provision,
watchdog functions.

26. In an effort to promote dialogue with civil society as undertaken by the
Lisbon Treaty and following up on the EC Principles and Minimum
standards, in 2009 the European Parliament adopted a resolution on the
perspectives of Developing Civil Dialogue under the Treaty of Lisbon. 20
The resolution is important in that it reinforces the significance of
consultation and calls on EU institutions to adopt binding guidelines
concerning the appointment of civil society representatives, methods for
organising consultations and their funding . In addition, the resolution calls
on EU institutions and Member States to make full use of legal provisions
an d best practices to “step up dialogue with citizens and CSOs” , and
especially in those regions and sectors where it is not fully developed. 21

19 CONF/PLE(2009)CODE1, adopted by the Conference of INGOs at its meeting on 1st October 2009;
http://www.coe.int/t/ngo/Source/Code_English_final.pdf 20 P6_TA(2009)0007, 13 January 2009 21 As described in Hadzi -Miceva Evans Katerina, Comparative Overview of European Standards and Practices in
Regulating Public Participation, commissioned by OSCE and the Macedonian Center for International Cooperation
(MCIC), 2010

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C. Political activities and public policy activities: the approach in European
countries 22

27. There is no universally accepted definition of political activities for the
purposes of NGO engagement; the term “political activity” is subject to
multiple interpretations and meanings. When countries regulate political
activities they explicitly list wha t is considered as ‘engagement in political
activities’. When limiting such engagement, those restrictions are clearly
prescribed and narrowly defined.

28. “Depending on the context, “political activity” could be defined narrowly
or broadly to include suppor ting or opposing candidates for public office,
supporting particular political parties, lobbying for or against specific laws,
engaging in public advocacy, pursuing interest -oriented litigation, or
engaging in policy debate on virtually any issue.” 23

29. In ge neral, the definition of political activities is not tied to areas of work or
influence of NGOs (such as human rights, children, women, disabilities,
science, culture, arts) but follows the nature of what constitutes engagement
in the political arena. In a lmost all countries, NGOs generally have the right
to criticise or endorse state officials and candidates for political office.

30. When the laws impose limitations to political activities those limitations are
closely linked to activities that political part ies engage in versus broad
policy and advocacy activities of NGOs. Regardless of the scope or
limitations to engagement in political activities, NGOs are allowed to
advocate and engage in activities with state actors which help them further
their cause.

31. In the broadest sense, most NGO activities have implications for public
policy. Hence, i n many European countries, the laws and practice
distinguish between political activities and other kinds of activities, which
are grouped as “public policy activities” . Public policy activities include
22 The following two secti ons (C) and (D) of the Study are developed based on two primary sources supplemented
with information collected through desk research : Political Activities of NGOs: International Law and Best
Practices, by ICNL, the International Journal of Not -for -Profit Law, Volume 12, Issue 1, November 2009, and
United States International Grantmaking (USIG): Country Overviews http://usig.org/countryinfo.asp , information
available as of October 2013 23 As described in Inter national Law and Best Practices, by ICNL, the International Journal of Not -for -Profit Law,
Volume 12, Issue 1, November 2009

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attempting to influence legislation, engaging in decision -making processes,
lobbying, campaigning on issues of relevance, raising awareness of issues
of concern, monitoring elections, participating in public affairs and
criticism of actions by public authorities . The state may decide to or decide
not to engage with or support organisations with such activities. But these
activities would not be prohibited, and in civil law countries they would not
typically fall under the definition of political activities.

32. In many European countries, there is a tendency to introduce legislation
that give s the right to NGOs to engage in legislative processes and that
prescribes legal guarantees to exercise this right. In Hungary, the l aw
provides explicit right to any state, local government or other organisation
to comment on a draft legal regulation affecting their legal status or
responsibilities. The detailed rules are laid down in the Act on the social
participation. In France, NGO s can advocate for changing a law or a
regulation/decision, critici se government, and organise meetings on topics
of concern. In Germany, regulations governing the application of the
German Tax Code and related commentaries say that an organisation is
allo wed to comment on politics related to its public -benefit purpose. NGOs
may participate in public hearings, which are routinely held in advance of
parliamentary reviews of proposed legislation.

D. Overview of regulatory approaches to political activities i n European
countries

33. Some European countries allow or , do not prevent , NGO s from engag ing in
political activities. In Romania, NGOs may engage in political activities so
long as those activities are not specifically covered by the Political Parties
Law. They can contribute funds to political parties or for election -related
activities. 24 In Poland, there are no limitations on the political activities of
associations and foundations. The preamble of the Law on Associations
lists the opportunity to particip ate actively in public life as one of the
inherent purposes of associations and the law explicitly grants associations
“the right to voice their opinion on public issues” regardless of their stated
goals or activities. Hence, Polish law explicitly gives as sociations the right
to engage in almost any political activity, even participation in electoral
24 The law uses the term ‘electioneering’, which means political campaigning and trying to persuade people to vote
for a candidate .

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campaigns (through special elective committees). Foundations can
participate in such activities if they are listed in their governing documents.
The Montenegro Law of Non -Governmental Organizations does not
address the extent to which NGOs may engage in political activities. There
is an example of one NGO in Montenegro which entered into politics and
established a political party and voluntarily dissolved the NG O.

34. When state s regulate the issue, the practice varies in terms of the scope of
engagement. As discussed above, while there is no agreed definition of
“political activities”, some European countries pr oscribe specific activities
which are considered as political activities and impose limitations on NGOs
to engage in these activities. These limitations provide the framework and
scope of what is considered a “political activity” for the purposes of NGO
engagement. Examples include:

– Registering a candidat e for election (e.g. in the Czech Republic it is
reserved for political parties only);

– Nominating candidates for election. For example, in Hungary a “direct
political activity” includes
“political activity undertaken for the benefit of a political party,
nomination of candidates during the Parliamentary election,
nomination to county or metropolitan local government council
(including the capital Budapest), nomination of a member of
the European Parliament, nomination to the council of a city
with county rights, and nomination of a mayor” ;

– Supporting candidates or an election campaign. For example, in
England, charities cannot support a political party or candidate
although they may engage with a political party in support of their
own charitable purpos es;

– Direct or indirect financing of political party or elections is prohibited
in England, Macedonia and Bulgaria. In France, the involvement of
NGOs in the funding of political parties and election funds is
prohibited, except for associations created spe cifically for political
campaign funding purposes;

– Raising funds for candidates or parties is prohibited in Serbia;

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– Participating in election campaigning is prohibited in Serbia, Latvia,
Macedonia and Bulgaria).

35. Differences can also be found based on t he legal system (common law vs.
civil law), types of legal entities (e.g., associations, funds, foundations or
non -profit corporations), acquisition of status or benefits (e.g., tax exempt,
public benefit or charity status).

36. There is a difference of appro ach in countries with a common law system
(such as England and Ireland) and those with a civil law system (the
majority of Western and Eastern European countries). In countries with a
common law system there are more direct limitations to political activit ies
than in countries with civil law systems. This is because in the common law
system, the majority of the sector is established for pursuing public benefit
purposes.

37. Some countries have limitations based on the legal status – they may allow
associations to engage in political activities but prohibit foundations.

– In the Czech Republic associations cannot be founded for political
purposes; however they can lobby, endo rse candidates, provide
information and advocate.

– In France, there are no explicit provisions prohibiting the involvement
of an association in political activities and political advocacy.
Political parties may be registered as associations, and the disti nction
between the two is that the political parties are engaged in political
campaigning, at both national and local levels. A special category of
associations may provide direct financial support to a political party or
an election campaign. Such politic al associations are established for a
limited period of time and are restricted to engaging in these
stipulated activities only.

– In Hungary, foundations and associations may nominate and support
candidates freely.

– In Germany, NGOs without tax exemptions may take part in
campaigns and may make monetary contributions to political parties.

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– In Slovakia, associations are similarly free to engage in a range of
political activities, including endorsing candidates, lobbying and
contributing to political campaign s; foundations, however, are
restricted from financing political parties. Foundations, non –
investment funds and NGOs are expressly forbidden from using their
assets to support political parties or political movements

38. Most commonly, when limitations to pol itical activities occur those are
linked to public benefit/charity status or other state benefits (such as tax
benefits) given to NGOs.

– For example in Hungary, when the organisation is registered as a
public benefit organisation, its statute must state that it does not
pursue direct political activity, it is independent of political parties,
and it does not provide financial support to political parties. But
public benefit organisations can nominate candidates for the councils
set up on local government level (but not mayors). And, although
public benefit organisations cannot support political parties, political
parties may support such organisations. So in practice, NGOs can
make monetary contributions to political parties, provide facilities,
endorse pa rty candidates, and conduct similar partisan activities. In
2006, a candidate nominated by a (non -PBO) NGO also was voted
into the Parliament (and later became a Minister for Local Self –
Government).

– In both England and Ireland, a charity can never be form ed for the
purpose of engaging in political activities. A charity may, however,
engage in some political activities as a means of achieving its
charitable purposes.

– In France, associations and foundations which are of public utility,
may not engage prim arily in political activities.

– In Germany, tax -exempt organisations must not spend any of their
assets for the direct or indirect support of political parties. Thus, the
support of an election campaign is not allowed. However, those
organisations are allo wed to comment on politics and organise
campaigns related to its public -benefit purpose. In this respect, they
can communicate with legislators about proposed legislation without
losing tax -exempt status.

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– In Latvia, a public benefit organisation may not t ransfer donated
property or financial means for the performance of such activities,
which are associated with the activities of political organisations
(parties) or the support of the election campaign thereof.

E. Conclusion

39. The examples of European countries show that the regulatory practice of
NGO engagement in political activities differs. While in some countries
there are no limitations, others may limit the engagement.

40. However, when limitations to political activities apply then (1) the
limitations are clearly prescribed in the law and specify the exact type of
activities that are affected; (2) those are clearly linked to activities related
to political parties and elections, versus the broad spectrum of public policy
activities that NGOs are engaged in; (3) the limitations typically relate to a
specific legal form of an NGO or its public benefit/charity status; (4) there
is an increased tendency to separate political activities in the sense of party
politics and electi ons from public policy activities and to allow NGOs to
freely express their opinions and engage in policy processes.

F. Country cases
Hungary 25
General overview
41. In Hungary the two traditional legal forms of NGOs are association and
foundation. In addition, there are other legal forms, including non -profit
corporations .

42. An association is the main form of membership -based organisations ,
established under Act IV/1959 (Civil Code) and Act CLXXV/2011 (CSO
Act) . The special forms of associations are: alliance, political party and
trade union. According to Article 3 (4) of the CSO Act an association may
be created for any purpose that is consistent with the Basic Act of Hungary
and is not unlawful . An association cannot be formed for criminal, military,
25 This section is developed based on the case study in ICNL’s Political Activities paper, and updated with the
support of Eszter Hartay, Legal Advisor at the European Center for Not -for -Profit Law (ECNL)

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unlawful purposes or to undertake a public task which is reserved for state
bodies.

43. The establishment and operation of foundations is also regulated in the
Civil Code and the CSO Act , while the establishment and operation of non –
profit corporations is regulated in the Company Code (Act IV/2006). None
of these three main Acts governing non -profit organisations in Hungary
place any restrictions on legislative or political activities of N GOs.
Foundations, associations, and non -profit corporations may nominate and
support candidates and legislation freely.

44. NGOs are generally free to engage in all forms of political activities. In
addition, the legal and institutional framework guarantees NGO ability to
take part in policy -making processes through a wide range of advocacy,
campaigning, and lobbying activities.

45. Restrictions to engage in political activities apply, only if the organisation
acquires the status of a public benefit organisatio n (PBO). In this case, the
NGO must not pursue direct political activity, but instead must be
independent of political parties, and it must not provide financial support to
them. 26

46. The operation and management of political parties is regulated in Act
XXXIII/1989 .

Scope and definition of political activity

47. Under Article 2 point 22 of the CSO Act, “direct political activity” includes
“political activity undertaken for the benefit of a political party, nomination
of candidates during the Parliamentary election or to the county or
metropolitan local government council, nomination of a member of the
European Parliament, nomination to the council of a city with county
rights, and nomination of a mayor; the nomination of mayor by certain
minority organisati ons determined by law at the election of the local and
minority local government representative is not considered as direct
political activity.”

26 Act CLXXV/2011, Article 34 (1) (d).

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48. Based on this definition, there are no limitations to nominate candidates for
local government councils at t he municipal level (including districts of the
capital); in fact, even PBOs may nominate and/or support candidates for
local elections.

Public benefit status

49. As noted above, if an NGO acquire s PBO status then the organisation is
subject to limitations in terms of its engagement in political activities.

50. Chapter VII of the CSO Act regulates the eligibility criteria, operation,
management and supervision of PBOs . As a precondition for the status, the
NGO shall undertake public benefit activity, which is defined as an activity
that directly or indirectly serves the completion of public (governmental or
local governmental) tasks and thereby contributes to the satisfaction of the
common n eeds of society and the individuals.

51. In order to obtain PBO status the organisations must fulfil a set of criteria.
For the purposes of the present study the most important criteria are that the
organisation shall not undertake direct political activit y, shall be
independent from any parties, and shall not provide financial support to
them.

52. Although PBOs cannot support political parties, political parties may
support PBOs.

53. Except for “direct political activities,” other forms of “political”
engagemen ts are allowed for PBOs in Hungary. At the same time, they
must be “independent from political parties” in order to receive the status.
Theoretically, if they lose their independence, the PBO status may be
revoked by the court. However, there is no clear l egal guidance as to when
a PBO, which is legitimately involved in campaigning and advocacy,
violates the independence requirement. Also, there has been very little case
law which would help to determine “good practice” or the limits of political
involvemen t of PBOs in Hungary.

Public policy activities

54. The legal framework enables NGOs to take part in policy and decision –
making process of Government and Parliament.

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55. Article 19 of the Act on Legislation (Act CXXX/2010) stipulates that in
case the law provides explicit right to any state, local government or other
organisation to comment on a draft legal regulation affecting their legal
status or responsibilities, the drafter of the legal regulation shall ensure that
the affected e ntity can exercise its right. The detailed rules are laid down in
the Act on the social participation in the preparation of legal regulations
(Act CXXXI/ 2010 ). The rules of procedure of the Government may
determine further regulations as well.

56. According to the Act on the social participation in the preparation of legal
regulations , the drafts and motivation of all laws, governme nt decrees and
ministerial decrees shall be subject of consultation. However, according to
the scope of the Act it applies only to those legal regulations which were
drafted by one of the ministries. Consequently, if a Member of Parliament
submits a draft law directly to the Parliament , it can circumvent the
requirement of consultation.

57. The two main forms of consultation are gene ral consultation and direct
consultation. General consultation means the disclosure of the draft legal
regulation on the website of the ministry and the possibility to send
comments via e -mail. Direct consultation refers to a closer co -operation
with organ isations based on a partnership agreement. A partnership
agreement may be concluded with organisations which are ready for mutual
co -operation and represent broader social interest or undertake scientific
activity in the given field of law. Strategic partn ers can be civil society
organisations, churches, professional and scientific organisations, public
bodies, national minority self -government trade unions, higher education
institutions.

58. In addition, several ministries have introduced specific procedures for
working with NGOs and have established consultative bodies in their
respective fields. Through these cross -sectoral advisory bodies NGOs can
follow and analyse the development of the specific field ; i nform the
Government of the situation; share their opinion related to the proposed
measures and the draft legal regulations ; and p ropose specific decisions,
programmes and legal regulations . Thus in many fields (environment,
disability etc.) there are institutional mechanisms established for NGOs
through wh ich they can become well informed, may submit their views on
a regular basis, and monitor the government’s work in the given field.

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59. In addition, NGOs, including PBOs, may submit position papers, opinions,
policy papers, analyses, and recommendations to me mbers of the
Parliament at any time. NGOs, including PBOs, may also organise
campaigns and protests for or against a legislative initiative, including
freely mobilizing their members to write letters, send emails, join a protest
event, or any other campaig n activity relating to a certain piece of
legislation.

60. NGOs in Hungary are free to conduct a workshop or a conference to
educate the public on an issue of importance with or without taking a
position on the issue. For example, during the government’s campaign for
EU accession, there were NGOs wh ich campaigned in support of the
accession; there were others that held workshops, conferences, and public
events about why people should vote against accession; and there were
NGOs which aimed to present a fair assessment of the arguments of both
sides and organised educational events to discuss advantages and
disadvantages of joining the EU.

61. NGOs can also criticise government policy or officials at any time and at
any place, based on the right to freedom of s peech enshrined in the Basic
Act as well as in domestic and international law.

Foreign funding restrictions

62. According to the Law on Operation and Financing of Political Parties (Act
XXXIII/1989), political parties may not accept monetary support from a
foreign government. However, such a restriction does not apply to NGOs in
any form; therefore there are no restrictions for NGOs supporting political
parties to accept support from a foreign government and then support the
political party as a domestic NGO . (However, as noted above, PBOs may
not support political parties.) At the same time, parties have to report on all
donations (including monetary and in -kind support) they receive, listing the
name of the donor and the amount. Anonymous donations cannot b e
accepted; those would have to be paid to the Foundation of the Party.

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Slovakia 27

General overview

63. NGOs in Slovakia can be civic associations, non -profit organisations
providing public benefit services, foundations and non -investment funds.
Each legal form is regulated under separate Act providing basic
information on establishment of the NGO, its activ ities, decision -making
body and conditions under which the organisation can be dismissed.

64. The most common legal form of NGOs in Slovakia is the civic
association. 28 The purpose of associations is to provide a legal opportunity
for citizens to exercise their fundamental right to freely associate. However,
not all forms of associations of citizens are considered to be civic
associations under the Act No. 83/1990 on Ass ociation of Citizens. There
is an exhaustive list of exceptions and the one relevant for this study is an
association of citizens in political parties and political movements. They
have to be established under a different Act 29 and their field of interest a nd
activities differ from the civic associations.

65. There are also several legislations that, by the content of their provisions,
affect all forms of NGOs. The most important one is the Constitution 30
which guarantees freedom of association. Another importan t law for the
purposes of this paper is the Act on Political Parties and Political
Movements 31, which is lacking the definition of political activities.

66. Generally, CSOs in Slovakia can freely address matters of public debate
and express criticism. The mos t common way of communication with the
government is through the Council of the Government for Non –
Governmental Organisations and Solidarity and Development Council.
Consequently, the Legislative Rules of the Government of the Slovak
27 This section is developed with the support of Ivana Rosenzweigova, Legal Associate at the European Center for
Not -for -Profit Law (ECNL) 28 Act No. 83/1990 on Association of Citizens, available at: http://www.vyvlastnenie.sk/predpisy/zakon -o-
zdruzovani -obcanov/ 29 No. 85/2005 on Political Parties and Political Movements 30 Constitution of the Slovak Republic, No. 460/1992, a vailable at: http://www.vyvlastnenie.sk/predpisy/ustava –
slovenskej -republiky/ 31 Article 24 d.) of the Act No. 85/2005 on Political Parties and Political Movements, available at:
http://www.infovolby.sk/index.php?base=data/legislativa/volebne/1273704239.txt

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Republic gives them an opportunity to comment on draft laws and thus
pursue their objectives.

Public benefit status

67. There is no legal definition of “public benefit status” in Slovak legislation.
However, there is a legal form of NGO called non -profit organisation
providing pu blic benefit services, which is operating under this term. This
type of NGO is regulated under Act No. 213/1997 on non -profit
organisations providing public benefit services .32 The Act provides a list of
services considered as public benefit.

68. The legislati on regarding foundations 33 and non -investment funds 34 is using
the term “public benefit objective”, which is the compulsory condition for
their establishment. Act No. 147/1997 on Non -investment funds is
providing a list of public benefit purposes, which is l ess specific than the
one provided by Act No. 213/1997. Act No. 34/2002 on Foundations 35
gives a definition of a public benefit objective which relies on the same list
of activities as in Act No. 213/1997.

Scope and definition of political activity

69. Slovak legislation does not clearly define the term political activities . Act
No. 85/2005 on Political Parties and Political Movements 36 is not very
detailed and provides only a restrictive definition. Activities of the parties
that are not in compliance with the Constitution of the Slovak Republic,
constitutional laws, other laws and international treaties are, with respect to
this Act, p rohibited.

70. The Act on Civic Associations uses the term political activities in the case
of involuntary termination of the association. If the responsible state body
determines that a civic association established under this Act is exercising
an activity that is reserved for the political parties and movements , it
immediately notifies the association and asks it to stop engaging in the
32 Act No. 213/1997 on non -profit organisations providing public benefit servi ces, available at:
http://www.tretisektor.gov.sk/data/att/3174_subor.pdf 33 Act No. 34/2002 on Foundations, available at: http://www.tretisektor.gov.sk/data/att/3172_subor.pdf 34 Act No. 147/1997 on Non Investment funds, available at: http://www.tretisektor.gov.sk/data/att/3173_subor.pdf 35 Article 2 of the Act No. 34/2002 on Foundations, available at:
http://www.tretisektor.gov.sk/data/att/3172_subor.pdf 36 Article 2 of the Act No. 85/2005 on Political Parties and Political Movement s

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given activity. If the association continues to exercise the activity, the
association will be dissolved. 37

71. Both foundations and non -investment funds are prohibited from using their
property for financing political parties and political movements.
Additionally, the Act on Non -investment Funds prohibits the financing of a
candidate for elective office. No NGO, re gardless of the category/type, is
allowed to donate a gift or provide free benefits to political parties.

Public policy activities

72. The functioning of NGOs is regulated by laws mostly in development and
protection of human values, protection of human rig hts and environment,
development of social services etc. NGOs use several tools to engage in the
decision -making process and to influence legislation in order to achieve
their goals. They actively participate in discussion platforms and other
mechanisms ai med influencing the general policy and direction of the state.

73. The most efficient way to communicate with the government and to
participate in the administration of public affairs is through the Council of
the Government for Non -Governmental Organisations . The Council
operates as a permanent expert, advisory, co -ordination and consultancy
body to the Slovak government in the field of civil society organisations
and development of civil society in Slovakia. The scope of activities and
competences are regula ted under the Statute of the Council. 38 In addition,
CSOs can pursue their own interests more effectively by inviting their
representatives to participate in meetings of a Solidarity and Development
Council, which serves as a platform to discuss issues tha t concern society
as a whole. 39 This Council is also a form of partnership between
Government and NGOs in the policy making process and the preparation of
important decisions regarding the development of the society. 40

74. The other important form of influencin g the direction of the state policy is
through commenting on draft laws. According to the Legislative Rules of
the Government of the Slovak Republic, a draft act shall be deliberated
37 Act No. 83/1990 on Association of Citizens 38 Statute of the Council of the Government for Non -Governmental Organisations from 1 August 2012, available at:
http://www.tretise ktor.gov.sk/data/files/3781_statut -final.pdf 39 USAID 2012 CSO Sustainability Index 40 Solidarity and Development Council, source of information: http://www.vlada.gov.sk/rada -solidarity -a-rozvoja -sr/

25

with the respective bodies and institutions in an inter -institutional rev iew.
Among others, the inter -institutional review of the draft act shall be carried
out also with the general public, prior to submitting the draft act to the
Government for deliberations. 41

Foreign funding restrictions

75. There are no limitations to NGOs to receive foreign funding.
41 Article 13 of the Legislative Rules f the Government of the Slovak Republic

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