The European Commission adopted on 12 December the ‘Defence of Democracy’ package, which includes legislative and non-legislative measures to tackle the threat of covert foreign influence in our democratic life. It will also help build democratic resilience by encouraging citizens and civil society organsiations’ participation in our democracies.
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What is included in the Defence of Democracy package?
The centrepiece of the package is a proposal for a Directive on Transparency of Interest Representation on behalf of Third Countries. The proposal establishes harmonised requirements in the internal market on transparency and democratic accountability of interest representation carried out on behalf of third countries. It builds on the extensive work already undertaken under the European Democracy Action Plan of December 2020 to promote free and fair elections, to step up the fight against disinformation, to support media freedom and pluralism, including by developing civic spaces and citizens’ participation to bolster democratic resilience from within.
The Communication on Defence of Democracy takes stock of the Commission’s work on all these fronts through key legislation and other political initiatives, bolstering societal resilience from within. It also outlines the immediate next steps still needed to achieve the objectives under the European Democracy Action Plan and explores areas where the EU can be proactive in the face of existing and evolving challenges.
The Commission adopted a Recommendation on inclusive and resilient electoral processes in the Union and enhancing the European nature and efficient conduct of the elections to the European Parliament, with specific measures on electoral matters ahead of the elections to the European Parliament. The Commission also adopted a Recommendation on promoting the engagement and effective participation of citizens and civil society organisations in public policy-making processes, with specific measures to foster a safe and enabling civic space.
According to EU citizens, which dangers exist for European democracies?
A Eurobarometer survey on Citizenship and Democracy, published on 6 December, shows that 81% of respondents agree that foreign interference in our democratic systems is a serious problem that should be addressed and 81% also agree that entities representing foreign governments should be registered to prevent this problem. In the specific context of elections in Europe, the survey uncovers a high level of concern about various forms of potential interference in EU elections. Almost eight in ten respondents are concerned about disinformation influencing people’s voting decisions (78%). Around seven in ten are concerned about elections being manipulated through cyberattacks (72%) or foreign countries influencing elections covertly (70%). 65% of respondents are concerned about people being pressured into voting in a particular way. Finally, almost nine in ten respondents (87%) think that the role of civil society in the form of associations and NGOs is important in promoting and protecting democracy and common values, including in terms of fostering a well-informed and pluralistic democratic debate. 66% and 54% of EU respondents think that the engagement of citizens, and of civil society organisations respectively, in the decision-making process at European level should be increased.
According to another Flash Eurobarometer on Democracy, published today, the threat to democracy listed most frequently by respondents is ‘false and/or misleading information in general circulating online and offline’ (38%). This is followed by ‘growing distrust and scepticism towards democratic institutions’ (32%). Another four of the threats are selected by more than one in five respondents: ‘lack of engagement and interest in politics and elections among regular citizens’ (26%), ‘lack of opportunities for citizens to voice their opinions’ (23%), ‘propaganda and false/misleading information from a non-democratic foreign source’ (22%), ‘covert foreign interference in the politics and economy of your country, including through financing of domestic actors’ (21%).
HARMONISED RULES FOR CARRYING OUT INTEREST REPRESENTATION ON BEHALF OF THIRD COUNTRY GOVERNEMENTS
Why is the Commission proposing new rules on covert influence by third countries?
There is growing concern in the EU that the openness of our societies can be exploited: foreign governments seeking to influence public opinion and the democratic debate, when done covertly, can pose a threat to the EU’s democracies. The transparency and reporting requirements for interest representation activities are currently regulated in different ways in the Member States. In addition, Member States are recognising the need to act specifically on interest representation carried out on behalf of third countries. The Commission is therefore putting forward a proposal for a harmonised approach to improve the functioning of the internal market by creating a level-playing field, reducing compliance costs for entities that seek to carry out interest representation activities on behalf of third countries across borders and prevent regulatory arbitrage. It also equips the EU with transparency tools that will ensure democratic accountability, while remaining an open society and protecting fundamental values, in particular freedom of expression and access to information and of association. Instilling transparency and openness in the way that foreign interests are represented is key to protect the integrity of our democratic space.
What measures does the Commission propose to shed light on covert influence by third countries? How will the targeted requirements work in practice?
The Directive on Transparency of Interest Representation on behalf of Third Countries will tackle internal market obstacles on cross border interest representation activities carried out on behalf of third country governments. It will also remove certain obstacles linked to the inconsistent regulatory requirements, for example by supporting cross-border supervision and enforcement by competent authorities. This will ensure a common high level of transparency and democratic accountability across the EU in relation to lobbying campaigns carried out on behalf of third countries. It will also contribute in the medium term to a better understanding and public awareness of the magnitude, trends and actors involved in such activities. This would allow EU citizens and public authorities to understand the motivation behind them and to see which third countries invest in influencing democratic debate and decision-making processes in the EU.
To this end, the proposal includes targeted requirements consisting of:
- Registration in a Transparency Register: Entities carrying out interest representation activities on behalf of a third country will have to register in a transparency register. Member States will be asked to establish or adapt existing national registers to for this purpose.
- Public access: key elements of the data on such interest representation activities will be publicly available, allowing for transparency and democratic accountability. This relates for instance to the annual amounts received, the third countries concerned and the main goals of the activities.
- Record keeping: entities carrying out interest representation activities on behalf of a third country will be required to keep records of the key information or material related to the interest representation activity for a period of four years after the end of this activity.
What will be covered by the transparency requirements?
The Directive on Transparency of Interest Representation for Third Countries targets economic activities of interest representation on behalf of third countries. All entities, whether legal or natural persons, who engage in such activities with the objective of influencing the public decision-making process are therefore covered by the proposal. This includes entities carrying out such activities as a service to third countries, i.e. activities carried out with a view to influencing the development, formulation or implementation of policy or legislation, or public decision-making processes, in the Union, that are of an economic nature.
This could include lobbying and public relations companies, think tanks, private research institutes, public research institutes offering research services as well as consultants and in-house lobbyists, media or civil society organisations, if these entities are carrying out their activities on behalf of third countries with a view to influencing public life and the democratic process in the EU. However, the simple fact of receiving funding from a third country, does not imply falling under the scope of the Directive. The proposal also includes comprehensive safeguards to ensure that entities subject to the transparency requirements would not be stigmatised, nor incur consequences for the mere fact of being registered. The proposal will not apply to certain activities, such as diplomatic representation or legal representation in a trial.
Will there be any monitoring to ensure the transparency requirements?
Yes, the proposal provides that national supervisory authorities that are independent and have clearly defined and circumscribed powers, should be competent for the supervision and enforcement of the new rules. It also includes an obligation to establish proportionate administrative fines for non-compliance and creates a framework for the exchange of information between supervisory authorities and the Commission. By making information on interest representation activities carried out on behalf of a third country publicly accessible, the proposal will also ensure more transparency and democratic accountability.
Will the data included in the transparency registries be public?
The Directive will set obligations on Member States to establish or adapt existing national registries for transparency of interest representation activities on behalf of third countries. Most of the registered data will be public, allowing for transparency and enhanced public scrutiny, in full respect of the horizontal EU data protection framework. This includes, among others, the identity of the third country behind the activity, the type of organisation, the registration number, the description of the interest representation activity at stake, and the Member States where it will be carried out.
What safeguards are proposed to ensure respect for fundamental rights and to prevent stigmatisation of civil society organisations (CSOs) or the misuse of the Directive against them?
The proposed Directive covers all interest representation activities on behalf of third countries, irrespective of the type of entity involved. However, the Directive does not introduce any provisions that would limit civil society organisations (CSOs) in participating in international, cross-border partnership beyond the Union. It does not apply to an entity merely because it receives foreign funding, since there must always be a link between the funding and the interest representation activity carried out operational grants, for example, are not covered. Inclusion in the register should, therefore, not result in any negative labelling or questions of the credibility or legitimacy of the entity concerned, thereby significantly reducing the risk of stigmatisation. The proposal would apply to CSOs only insofar as they carry out interest representation activities on behalf of third country governments to influence policy-making in the EU. The proposal contains the necessary safeguards and ensures that the proposed measures are proportionate, do not discriminate against or stigmatise any actors and do not restrict in any way the exercise of fundamental rights, such as freedom of expression or association.
The proposal does not create a system of licencing or pre-authorisation as a prerequisite to carry out interest representation activities. Through national transparency registries, it will provide more transparency and information on activities sponsored by third countries that may affect political decision-making within the EU. Such registries would have to be presented in a neutral manner that does not lead to stigmatisation of the registered entities, based on clearly defined, proportionate and tailored information and record-keeping obligations.
By setting fully harmonised transparency requirements, the proposal will prevent the risk of ‘gold-plating’ potentially leading to disproportionate or overly burdensome requirements. Finally, the Directive foresees that national supervisory authorities entrusted to monitor enforcement should be independent and have clearly defined and circumscribed powers, including to ensure that no adverse consequences arise from registration. The supervisory authorities would be empowered to request limited records in duly justified cases only, and in a proportionate manner. Second, non-compliance could be sanctioned by proportionate administrative fines, which remain subject to judicial review and accompanied by effective remedies, to avoid potential chilling effects. In addition, the Commission has opted for a full harmonisation approach, to minimise the risk that Member States adopt divergent and potentially disproportionate or repressive rules and practices.
ADVANCING THE NEW PUSH FOR EUROPEAN DEMOCRACY: PROMOTING FREE AND FAIR ELECTIONS AND THE PARTICIPATION OF CITIZENS AND CIVIL SOCIETY ORGANISATIONS IN PUBLIC POLICY-MAKING
How will the Commission ensure compliance with the Recommendation on elections?
The Commission will work with Member States to support the implementation of the Recommendation on inclusive and resilient electoral processes in the Union and enhancing the European nature and efficient conduct of the elections to the European Parliament in the framework of the European Cooperation Network on Elections, and the Council, as needed. According to the Recommendation, within Member States should inform the Commission about the conduct of these elections in their territory including on the implementation of this Recommendation. No later than one year after the 2024 elections to the European Parliament, the Commission will assess the impact of the Recommendation in the context of its Report on the 2024 elections to the European Parliament.
What is the scope of the Recommendation on the participation of citizens and civil society organisations in public policy-making?
The Commission also works with Member States to promote a safe and enabling civic space. This builds on investment already made and using new avenues for citizen participation in the public sphere as boosted by the Conference on the Future of Europe and its follow-up. The Recommendation on promoting the engagement and effective participation of citizens and civil society organisations in public policy-making processes aims to strengthen the participation of both citizens and civil society organisations in public policy-making to help strengthen democratic resilience within the Union. Member States are recommended to provide for a general framework and tailored opportunities to citizens and civil society organisations to effectively participate in public policy-making processes at the local, regional and national levels. This will strengthen transparency and may contribute to reinforcing trust in representative democracy. The Recommendation also prompts Member States to create and maintain a safe and enabling environment for civil society organisations and human rights defenders where they are protected, supported and empowered.
What has the EU done so far to promote an enabling environment for civil society organisations and human rights defenders?
Civil society organisations and human rights defenders are crucial for the well-functioning of our democracies. They are watchdogs, drawing attention to threats to the rule of law. Only in a safe and enabling civic space, civil society can effectively participate in democratic policy making. Civil society organisations help promote and protect the rights enshrined in the Charter of Fundamental Rights of the EU and spread our values.
Protecting, supporting, and empowering civil society organisations and human rights defenders is at the core of the EU’s work on ensuring a thriving civic space as underlined in the 2022 Report on the application of the Charter of Fundamental Rights. The annual Rule of Law Reports provide an overview of the steps taken in Member States to improve the situation for civil society organisations. The 2022 and 2023 Rule of Law Report made specific recommendations to a number of Member States. In addition, in September 2023 the Commission put forward a proposal for a legislative initiative on cross-border activities of associations, which will aim to remove barriers in the single market to enable associations to thrive in the single market. The Commission also made a wide range of funding opportunities available to boost citizen participation, civic engagement and trust in democracy, most notably under EU programmes such as the Citizens, Equality, Rights and Values programme; Creative Europe; Erasmus+; and Horizon Europe.
The Commission engages with civil society organisations in policy-making on many fronts. Consultation and dialogue enable civil society organisations and human rights defenders to present their views on EU legislation and policy. The ‘Have Your Say’ portal is the entry point for consultation and makes it possible for all interested parties to contribute to initiatives before and after adoption. Civil society organisations are part of the partnership with regional and local authorities and economic and social partners, which allows them to be involved throughout the preparation, implementation, and evaluation of EU-funded Cohesion policy programmes.
The Commission has also established regular dialogues with civil society actors in different policy areas providing for more effective communication and involvement in policy-making. Structural civil society dialogue takes place through forums and platforms, covering a broad range of policy areas.
What has the EU done so far to engage citizens in EU policy-making?
The Conference on the Future of Europe, an unprecedented exercise of participatory democracy, called for further citizens’ engagement. As a result, the Conference was followed up by the new generation of European Citizens’ Panels that were piloted for three key initiatives in 2022/23 on Food Waste, Virtuals Worlds and Learning Mobility. With another panel coming next year on Energy Efficiency, the EU aims to include citizens even more in EU policy making.
The launch of the revamped Have Your Say (HYS) Portal, and in particular the new, interactive Citizens’ Engagement Platform (CEP), as well as the next European Citizens’ Panel (ECP) on the Energy Efficiency First Principle (from February to April 2024) are some of the next key steps in the Commission’s efforts to improve citizens engagement.
The Commission has developed the platform to be part of the revamped Have Your Say portal, the new online one-stop-shop for citizen engagement. The Platform is part of a new ecosystem for democratic engagement and innovation across the Commission. The Platform notably complements and amplifies the work of a new series of European Citizens’ Panels (ECP). The latter are organised around two sessions taking place in person (in Brussels) and one session online. Feedback event(s) will follow in autumn/winter 2024.
Was the public consulted on the proposed legislation?
The Commission published a call for evidence that was open for feedback from 16 February to 14 April 2023. More than 1,200 contributions were received from the public. The vast majority of these responses (1,102, 91.15%) were submitted by EU citizens, with further inputs by non-governmental organisations (NGOs) (63, 5.21%). In addition, a small number of non-EU citizens (15, 1.24%), public authorities, ‘other’ stakeholders (both 10, 0.83%), business associations, academic/research institutions (both 4, 0.33%) and companies/businesses (1, 0.08%) also submitted responses. The Commission consulted Member States via questionnaires as conveyed in the Focus Groups, the Open Public Consultation, the Call for Evidence and written contributions sent directly via email. Several focus group meetings were organised with the participation of Member States in the past months, including with representatives from national transparency registers, local authorities, and Permanent Representations to the EU, to collect their input on the proposals. A majority of respondents agreed that Union action is needed to increase transparency regarding lobbying, public relations activities and any other activity that, when carried out on behalf of third countries, significantly impacts the democratic sphere. Member States welcomed the Defence of Democracy package, agreeing that society has a fundamental interest to be better informed about interest representation activities carried out on behalf of third countries. Transparency was considered a key measure to tackle covert foreign influence. CSOs were also consulted, with targeted meetings and exchanges. CSOs emphasised the need to avoid stigmatisation, explaining that the entry in an interest representation register should not lead to any negative consequences. Instead the emphasis should be on the ethical standards that are applied when carrying out interest representation activities, irrespective of whose interests are represented. Some CSOs specifically referred to the need to put in place specific safeguards to respect the right to effective remedies and to a fair trial.
Member States called for more inclusiveness in elections and stressed that there is a joint need to tackle disinformation, particularly in the context of elections. Some Member States suggested education, inclusive access to information and more support to fact checking as useful tools to this end, while others called for more strategic communication, effective public relations, and an active exchange between authorities and stakeholders. The fight against disinformation was also mentioned as a key priority in view of the upcoming European elections.
Defence of Democracy Factsheet
Communication on Defence of Democracy
Eurobarometer on Citizenship and Democracy
Defence of Democracy – website
Democracy and electoral rights website
Source: European Commission
