Article originally published on ECNL – accessible here
Let us imagine now (and it’s not a stretch) that, in the aftermath of a public emergency endangering people’s safety, a government imposes an indefinite blanket ban on public gatherings, demonstrations, protests and rallies within the national territory. According to the new rules, organising, advertising or inciting in any form any public gathering on the territory, and taking part in any such public gathering, is sanctioned with heavy fines and terms of imprisonment. The rules are also meant to be enforced on foreign citizens travelling to the country to speak or take part in events. To that effect, foreign citizens entering or present in the territory are asked to notify the authorities of their bearings, the exact reasons of their presence in the country and any people they intend to meet. On the basis of this, the authorities are authorised to deny entry to the territory, order expulsions and impose sanctions and re-entry bans. These restrictions and sanctions are arbitrarily enforced on a great number of persons regarded by the authorities as civil society activists potentially engaging in or inciting to demonstrations and protests.
The thin line between protecting people’s safety and unduly quashing dissent
As part of their response to the COVID-19 pandemic, many countries across the globe have imposed wide-ranging restrictions on the right of peaceful assembly, banning public gatherings for weeks or even months.
While the right to peaceful assembly is not absolute and may be limited by law for certain imperative legitimate reasons, including public safety and public health, any limitations also have to undergo a check of their necessity and proportionality. This means that the nature and the extent of any interference with this right must be balanced against the reason for interfering. As the Constitutional Courts in Germany and Kosovo recognised in some recent cases concerning refusals to authorise public protests during the COVID-19 pandemic, blanket restrictions on public assemblies are presumptively disproportionate.
Indeed, the way some countries, even in Europe, have devised and applied restrictions to peaceful assembly during the pandemic has raised concern, as we explained here. As some governments with authoritarian tendencies may be tempted to extend restrictions beyond the public emergency to silence civil society activists and quash dissent, it is important to carry out a close monitoring of the use and application of restrictions on the right to peaceful assembly in the aftermath of the pandemic.
EU law may provide arguments to challenge disproportionate restrictions
Devising and applying restrictions on the exercise of the right to peaceful assembly on the national territory pertains, in principle, to the sovereign competence of each individual state. Nonetheless, measures adopted by EU governments within their exclusive powers may still give rise to situations prohibited by EU law.
In the example described above, it may be argued that the restrictions and sanctions imposed, and the way they are applied, are, for example, in conflict with EU rules on the free movement of EU citizens (Article 21 of the Treaty on the Functioning of the EU and/or relevant provisions of the Free Movement Directive 2004/38). Under EU rules, expulsion decisions and the denial to enter the territory imposed on EU citizens cannot be the consequence of a blanket ban: any such decision would need to be assessed on an individual basis and justified on grounds of its necessity and proportionality towards an overriding objective of general interest. It may also be argued that, measures requiring EU mobile citizens to notify the authorities and provide information about their presence on the territory, including their bearings, the exact reasons of their stay and the people they intend to come in contact with, constitute an obstacle to the exercise of the right to free movement.
In this context, the legality of such measures should also be challenged in the light of the protection granted by the EU Charter of Fundamental Rights (CFR). In the example referred to, a number of fundamental rights would come into play: the right to privacy (Article 7 CFR) in relation to the authorities’ disproportionate request of information, freedom of expression (Article 11 CFR) insofar as advertising and inciting public gatherings can also give rise to heavy sanctions and, of course, freedom of assembly(Article 12 CFR).
How could restrictions be challenged?
Violations of EU law, including the CFR, can be claimed before national courts, which should examine and rule on the matter, possibly requesting the assistance of the EU Court of Justice.
Independent national authorities, like the national human rights institution, may provide advice and may take up the issue by approaching national authorities or through litigation, if their mandate allows.
National laws and measures which result in systemic violations of governments’ EU obligations can also be brought to the attention of the EU institutions through complaints addressed to the European Commission or petitions addressed to the European Parliament. The body responsible for monitoring the respect by EU governments of their obligations under EU law is the European Commission, which can take steps to inquire the matter and can, if it establishes a violation of EU law, start formal infringement proceedings against the country in question.
Check out our new Handbook for more guidance!
ECNL, in partnership with EFC and DAFNE, just published a new Handbook on “How to use EU law to protect civic space”, intended to provide practical guidance for CSOs to advocate and litigate using EU law to protect their rights and civic space in the EU.
Check out our user-friendly guide to know more on:
- What EU law is and how it affects individuals and organisations;
- When and how CSOs can challenge national provisions or measures that impact their mission, activities and operations on the basis of EU law, including the CFR;
- Which legal avenues and resources are available for CSOs to defend their civic space within the EU law framework.
And click here for the other blogs in our #EUlaw4civicfreedoms series:
Blog #1. Contact tracing beyond the pandemic?