CASE OF PARTI NATIONALISTE BASQUE - ORGANISATION REGIONALE D'IPARRALDE v. FRANCE
No violation of Art. 11 or 11+10;Not necessary to examine P1-3
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Loukis Loucaides
4. The applicant party is established as an association registered on the basis of the Associations Act of 1 July 1901. Its name in Basque is Euzko Alderdi Jeltzalea – Iparraldeko Erakundea (Basque Nationalist Party – Iparralde Regional Organisation), and its registered office is in Bayonne (France). “Iparralde” is the Basque designation for part of south-western France. Its constitution of 19 August 1996 states that it is “formed as a regional branch of the EAJ-PNB in the provinces of Laburdi (Labourd), Benafarroa (Lower Navarre) and Zuberoa (Soule)” and adopts “the national ideology of the EAJ-PNB” and “the traditional principles and modus operandi of the EAJ-PNB to the extent that they are compatible with the present Constitution”. The EAJ-PNV (Euzko Alderdi Jeltzalea – Partido Nacionalista Vasco; the French abbreviation is EAJ-PNB) is a political party established under Spanish law whose aim is to defend and promote Basque nationalism. 5. The applicant party states that its activities are the same as those of any political party: it devises political programmes, puts forward candidates for elections and takes part in election campaigns. 6. In order to be able to receive funds, in particular financial contributions from the EAJ-PNV, the applicant party formed a funding association in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988. On 16 September 1998 it applied to the National Commission on Election Campaign Accounts and Political Funding (Commission nationale des comptes de campagnes et des financements politiques – “the CCFP”) under section 11-1 of the same Act for authorisation of the funding association. On 22 January 1999 the CCFP rejected the application, giving the following reasons in its decision: “... [The CCFP] has been asked to authorise the funding association for the Parti nationaliste basque as that political organisation’s funding association within the meaning of section 11 of the Act of 11 March 1988 as amended. It was noted in the Commission’s opinion published in the Official Gazette of 18 November 1998 ... and was acknowledged by the [applicant] party’s chairman in his letter of 20 January 1999 that the party receives funds from the Spanish Basque Nationalist Party. Section 11-4 of Law no. 88-227 of 11 March 1988, as amended by section 16-1 of Law no. 95-65 of 19 January 1995, prohibits the funding of a political party by any foreign legal entity [personne morale]. The Parti nationaliste basque receives financial support from the Spanish Basque Nationalist Party, whose official recognition under Spanish law does not in any way remove its status as a foreign legal entity. Accordingly, this unlawful source of funding, which accounts for most of the resources of the Parti nationaliste basque, precludes the party from having a funding association authorised in accordance with the law. ...” 7. On 22 June 1999 the applicant party applied to the CCFP to reconsider its decision. The application was refused on 2 July 1999 in a decision worded as follows: “... As to the [alleged] absence of a ban on the financing of a French political party by a foreign political party: Having compared the provisions of Article L. 52-8 of the Elections Code, applicable to election campaigns, and section 16-1 of the Act of 19 January 1995, the applicant contends that section 16-1 ... simply states that only a political party can fund another political party and that, contrary to the position regarding election campaigns, no provision of any statute or regulations expressly prohibits the funding of a political party by another political party established under the law of a foreign country. This argument disregards the fifth subsection of section 11-4 of the Act of 11 March 1988, as amended by the Acts of 15 January 1990 and 19 January 1995, which provides: ‘No funding association or financial agent may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ Pursuant to section 11 of the Act of 11 March 1988, the intervention of a funding association or financial agent is compulsory for the receipt of funds. It thus follows from these two provisions, read together, that a party cannot receive funds from a political party that is a foreign legal entity. As to the [alleged] infringement of the Community principle of the free movement of capital and [alleged] incompatibility with developments in national electoral law: These two principles conflict with express provisions of French law. Firstly, the free movement of capital does not prevent local law from regulating certain aspects of this principle. Secondly, the transnational representativeness of parties does not necessarily presuppose financial support from abroad and, contrary to what the applicant argues, the prohibition of such support does not in any way impair the full exercise of the right to vote and to stand for election. ...” 8. On 3 September 1999 the applicant party applied for judicial review of that decision to the Conseil d’Etat, which dismissed the application on 8 December 2000 in a judgment worded as follows: “... Section 11 of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), in the wording resulting from Law no. 90-55 of 15 January 1990, provides that political parties and their territorial and specialist organisations ‘collect funds through the intermediary [of an agent] duly designated by them, which may be either a funding association or an individual’. Section 11-1, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, provides that ‘authorisation to act as a political party’s funding association shall be given by the National Commission on Election Campaign Accounts and Political Funding’. It follows from the first subsection of section 11-6, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, that the granting of authorisation is subject to the funding association’s compliance with the requirements of sections 11-1 and 11-4 of the Act. Among the requirements concerned are those set forth in the penultimate subsection of section 11-4, which provides: ‘No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ ... Substantive legality The applicant group argues that the Commission erred in its application of section 11-4 of the Act of 11 March 1988 and that, should the Commission’s interpretation be held to prevail, the statutory provisions cited in support of its decision should be struck down as being contrary to the Constitution and incompatible with France’s international obligations. As to the alleged erroneous application of section 11-4 of the Act of 11 March 1988: ... the penultimate subsection of section 11-4 of the Act of 11 March 1988 prohibits funding associations from receiving financial contributions ‘from a foreign State or a foreign legal entity’. Foreign political parties, which belong to the category of foreign legal entities, fall within the purview of that prohibition. The amendments resulting from the Act of 19 January 1995 to the second subsection of section 11-4 with the effect, firstly, of prohibiting a legal entity from funding a party or a political group and, secondly, of excluding ‘political parties and groups’ from this prohibition on account of the role conferred on them by Article 4 of the Constitution of 4 October 1958 had neither the purpose nor the effect of exempting foreign political parties from the prohibition on the funding of a French political party by any foreign legal entity. Consequently, the applicant group has no basis for arguing that the impugned decision was based on an erroneous application of the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988 in conjunction with the second subsection of that section. As to the alleged breach of Article 11 of the Declaration of the Rights of Man and of the Citizen: It is not for the Conseil d’Etat, acting in its judicial capacity, to assess whether the law is compatible with the Constitution. Accordingly, the argument that section 11-4 of the Act of 11 March 1988 contravenes Article 11 of the Declaration of the Rights of Man and of the Citizen, to which the Preamble to the Constitution refers, fails. As to the alleged incompatibility of the law with France’s international obligations: As regards the Convention for the Protection of Human Rights and Fundamental Freedoms: The applicant group relies on the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, paragraph 1, of which secures freedom of expression to everyone ‘without interference by public authority and regardless of borders’ and Article 14 of which provides that the enjoyment of the rights and freedoms set forth in the Convention is to be secured ‘without [discrimination] on any ground such as ... national ... origin ...’. Even accepting, as the applicant group argues, that the rules on the conditions for funding political parties have a bearing on the right to freedom of expression within the meaning of paragraph 1 of Article 10 of the Convention, which includes, as well as the freedom to hold opinions, ‘the freedom to receive and impart information and ideas’, paragraph 2 of the same Article nonetheless provides that ‘[t]he exercise of these freedoms, since it carries with it duties and responsibilities’, may be subject to such ‘restrictions ... as are prescribed by law and are necessary in a democratic society’ to the extent that they satisfy one or other of the requirements set forth in that paragraph, among which is ‘the prevention of disorder’. Political groups and parties falling within the purview of Article 4 of the Constitution of the French Republic are intended to contribute to the exercise of suffrage in the implementation of national sovereignty. In prohibiting foreign States and foreign legal entities from funding national political parties, the legislature sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty. The aim thus pursued is linked to the ‘prevention of disorder’ within the meaning of paragraph 2 of Article 10 of the Convention. On account of both the justification of this measure and the fact that the right to freedom of expression is affected only indirectly by the rules governing the funding of political parties, and in view of the margin of appreciation which Article 10, paragraph 2, affords the national legislature, the provisions of section 11-4 of the Act of 11 March 1988 are not incompatible either with the requirements of Article 10 of the Convention, or indeed with those of Article 14. As regards Community law: The applicant group argues that since the resources obtained by the funding association whose authorisation has been refused stem from a political party with its registered office in a member State of the European Community, the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988, in so far as they apply to a situation governed by Community law, are incompatible with a number of provisions of the Treaty establishing the European Community. ... Thirdly, even supposing that the rules governing the funding of political parties may, in certain respects, have a bearing on the free movement of capital between member States as guaranteed by Article 56 of the EC Treaty, that Article, as Article 58 clearly indicates, does not affect the right of member States to ‘take measures which are justified on grounds of ... public security’. Regard being had both to the aim it pursues and to the limited impact it has on the free movement of capital, the prohibition set forth in the penultimate subsection of section 11-4 of the Act of 11 March 1988 is to be counted among the measures that may be taken by a member State under Article 58 of the Treaty. Accordingly, the submission that the Act is incompatible with Article 56 must be dismissed. Fourthly, the provisions of section 11-4 of the Act of 11 March 1988, which, as stated above, are intended to avoid creating any relationship of dependency between political parties in the performance of their function and a foreign State or a foreign legal entity, are likewise not incompatible with the provisions of Article 191 of the Treaty, which appear in a part of the Treaty dealing with the Community institutions and more specifically the European Parliament, and which read: ‘Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ Accordingly, and even supposing that Article 191 creates any rights in respect of private individuals, this submission must fail. ...” 9. The first paragraph of Article 4 of the Constitution of 4 October 1958 provides: “Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of national sovereignty and democracy.” Section 7 of the Political Life (Financial Transparency) Act (Law no. 88227 of 11 March 1988) reaffirms that “political parties and groups shall be formed and shall carry on their activities freely”, adding that they have legal personality and are entitled to take part in court proceedings and to acquire movable and immovable property, by way of gift or for consideration, and that they “may perform any actions consistent with their purpose, including establishing and running newspapers and training institutions in accordance with the statutory provisions in force”. 10. The financing of politics in general and political parties in particular is governed by law (main source: technical files on the Senate’s website, www.senat.fr). 11. In addition to the operating costs they have to meet in the same way as any other association, political parties incur significant expenditure during election campaigns. They have two main sources of funds: private funding, which is generally modest, and State funding, which nowadays accounts for a decisive share. 12. Like any association, political parties may charge membership fees. In practice, however, these account for only a very small proportion of their resources. 13. The Act of 11 March 1988 (as amended) gives them the further possibility of receiving donations from individuals (donations from other legal entities are in principle prohibited); however, voluntary contributions from individuals are traditionally modest. The following provisions of the Act of 11 March 1988 (as amended) are relevant to the present case: “Political parties and the territorial or specialist organisations they may designate for this purpose shall collect funds through the intermediary of an agent duly designated by them, which may be either a funding association or an individual.” “Authorisation of a political party’s funding association shall be granted by the National Commission on Election Campaign Accounts and Political Funding referred to in Article L. 52-14 of the Elections Code, provided that the sole object of the association is the funding of a political party and that its articles of association comply with the provisions of the following subsections of this section. The authorisation shall be published in the Official Gazette. The articles of an association authorised to act as a political party’s funding association must include: (1) the delimitation of the geographical area within which the association is to carry on its activities; and (2) an undertaking to open a single bank or post-office account into which all donations received for the funding of a political party are to be deposited.” “The political party shall declare in writing to the prefecture of the département in which its registered office is situated the name of the individual it has chosen as its financial agent. The declaration must be accompanied by the express consent of the person designated and must specify the geographical area within which the financial agent is to perform his or her duties. The financial agent must open a single bank or post-office account into which all donations received for the funding of the political party are to be deposited.” “Donations made by duly identified individuals to one or more associations authorised as funding associations or to one or more financial agents of the same political party may not exceed 7,500 euros per annum. Other legal entities, with the exception of political parties or groups, may not contribute to the funding of political parties or groups, either by making donations in any form to their funding associations or financial agents or by providing them with property, services or other direct or indirect benefits for less than the usual price. The funding association or financial agent shall provide the donor with a receipt. A decree issued after consultation of the Conseil d’Etat shall lay down the conditions for drawing up and using such receipts. This decree shall also determine the procedure whereby receipts issued for donations by individuals of amounts lower than or equal to 3,000 euros shall not mention the name of the receiving party or group. All donations of more than 150 euros to a funding association or financial agent of a political party must be made by cheque. No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity. Notices and documents issued by the funding association or financial agent to third parties for the purpose of soliciting donations must indicate, as appropriate, the name of the association and the date of its authorisation or the name of the agent and the date of the declaration to the prefecture, and also the political party or group for which the sums collected are intended.” “Anyone who makes or accepts donations in breach of the provisions of the preceding section shall be liable to a fine of 3,750 euros or one year’s imprisonment or both.” “The authorisation of any association that has failed to comply with the requirements laid down in sections 11-1 and 11-4 of this Act shall be revoked. In that event, or where the summary statement mentioned in section 11-1 is found not to have been transmitted, the votes obtained in the geographical area of the association’s activity by the political party or group which requested its authorisation shall be discounted, for the following year, from the total referred to in the first subsection of section 9 above.” “No political party or group which has obtained authorisation for a funding association or has appointed a financial agent may receive donations from duly identified persons other than through the intermediary of such association or agent. In the event of a breach of this requirement, the provisions of the last subsection of section 11-7 shall apply.” 14. Every year, appropriations are set aside in the Budget Bill for political parties and groups; one half is allocated according to their results in the last election to the National Assembly and the other half according to their representation in Parliament (section 8 of the Act of 11 March 1988 as amended). The first portion of these subsidies is distributed among parties and groups which put forward candidates who each obtained at least 1% of the votes cast in at least fifty constituencies in the most recent election to the National Assembly, or which put forward candidates solely in one or more overseas départements or in St Pierre and Miquelon, Mayotte, New Caledonia, French Polynesia or Wallis and Futuna who obtained at least 1% of the votes cast in all constituencies in which they stood. The second portion is distributed among parties and groups eligible for the first portion, in proportion to the number of members of parliament belonging to or attached to them (section 9 of the Act of 11 March 1988 as amended). State subsidies are now the main source of political parties’ funding (80,264,408 euros (EUR) was distributed among more than forty parties or groups in 2002). In addition, the State grants parties resources which may be regarded as indirect funding. Outside election campaign periods, political organisations represented by parliamentary groups in the National Assembly or the Senate are entitled to “air time”, allowing them to broadcast on public radio stations and television channels; they are also granted certain tax concessions (reduced-rate corporation tax) on some of their own income (for example, from leasing out their buildings and undeveloped land). 15. Except in the case of the election of département councillors in cantons with fewer than 9,000 inhabitants or municipal councillors in municipalities with fewer than 9,000 inhabitants, all candidates intending to receive donations for the organisation of their campaigns are required to do so through a financial agent, who is the sole person entitled to collect funds to cover campaign costs and the payment of expenses (except for those borne by a political party or group). Donations from individuals are capped at EUR 4,600 per candidate per campaign. Contributions from other legal entities, with the exception of political parties and groups, and from foreign States or foreign legal entities are prohibited (Articles L. 52-4 and L. 528 of the Elections Code). Election expenditure is subject to a ceiling according to the number of inhabitants in the constituency concerned (Article L. 52-11 of the Elections Code). The financial agent must keep campaign accounts recording all receipts and expenditure relating to the election campaign. The accounts must be certified by an accountant and submitted to the scrutiny of the National Commission on Election Campaign Accounts and Political Funding, which approves or rejects them. If the accounts are approved, the State reimburses candidates who obtain at least 5% of the votes cast in the first round in the form of a lump sum of up to 50% of the maximum permitted expenditure in the constituency in question, within the limits of the amounts actually spent (see, in particular, Article L. 52-11-1 of the Elections Code). The State bears the costs associated with “official election material”, defined as the cost of paper, printing of ballot papers, circulars, posters and official billposting fees (these costs are reimbursed on the basis of an official scale to candidates obtaining at least 5% of the votes cast). 16. At its 46th plenary meeting (9-10 March 2001), the Venice Commission adopted guidelines on the financing of political parties (document CDL-INF (2001) 8), the relevant parts of which read: “The Venice Commission: Being engaged in the promotion of fundamental principles of democracy, of the rule of law and the protection of human rights, and in the context of improving democratic security for all; Noting with concern problems relating to the illicit financing of political parties recently uncovered in a number of Council of Europe member States; Taking into account the essential role of political parties within democracy and considering that freedom of association, including that of political association, is a fundamental freedom protected by the European Convention on Human Rights and is one of the cornerstones of genuine democracy, such as that envisaged by the Statute of the Council of Europe; Paying particular attention to State practice in the area of financing of political parties; Recognising the need to further promote standards in this area on the basis of the values of European legal heritage; Has adopted the following guidelines: 1. For the purpose of these guidelines, a political party is an association of persons one of the aims of which is to participate in the management of public affairs by the presentation of candidates to free and democratic elections. 2. Such political parties may seek out and receive funds by means of public or private financing. A. Regular Financing a. Public Financing 3. Public financing must be aimed at each party represented in Parliament. 4. In order, however, to ensure the equality of opportunities for the different political forces, public financing could also be extended to political bodies representing a significant section of the electoral body and presenting candidates for election. The level of financing could be fixed by legislator on a periodic basis, according to objective criteria. Tax exemptions can be granted for operations strictly connected to the parties’ political activity. 5. The financing of political parties through public funds should be on condition that the accounts of political parties shall be subject to control by specific public organs (for example by a Court of Audit). States shall promote a policy of financial transparency of political parties that benefit from public financing. b. Private Financing 6. Political parties may receive private financial donations. Donations from foreign States or enterprises must however be prohibited. This prohibition should not prevent financial donations from nationals living abroad. Other limitations may also be envisaged. Such may consist notably of: a. a maximum level for each contribution; b. a prohibition of contributions from enterprises of an industrial, or commercial nature or from religious organisations; c. prior control of contributions by members of parties who wish to stand as candidates in elections by public organs specialised in electoral matters. 7. The transparency of private financing of each party should be guaranteed. In achieving this aim, each party should make public each year the annual accounts of the previous year, which should incorporate a list of all donations other than membership fees. All donations exceeding an amount fixed by the legislator must be recorded and made public. ...” 17. On 22 May 2001 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1516 (2001) on the financing of political parties, the relevant parts of which read: “... 7. The Assembly believes that the rules on financing political parties and on electoral campaigns must be based on the following principles: a reasonable balance between public and private funding, fair criteria for the distribution of State contributions to parties, strict rules concerning private donations, a threshold on parties’ expenditures linked to election campaigns, complete transparency of accounts, the establishment of an independent audit authority and meaningful sanctions for those who violate the rules. 8. Accordingly, the Assembly considers that: A. As regards sources of finance i. States should encourage citizens’ participation in the activities of political parties, including their financial support to parties. It should be accepted that membership fees, traditional and non-controversial sources of finance, are not sufficient to face the ever increasing expense of political competition. ii. Political parties should receive financial contributions from the State budget in order to prevent dependence on private donors and to guarantee equality of chances between political parties. State financial contributions should, on the one hand, be calculated in ratio to the political support which the parties enjoy, evaluated on objective criteria such as the number of votes cast or the number of parliamentary seats won, and on the other hand enable new parties to enter the political arena and to compete under fair conditions with the more well-established parties. iii. State support should not exceed the level strictly necessary to achieve the above objectives, since excessive reliance on State funding can lead to the weakening of links between parties and their electorate. iv. Besides their financial contributions, States may contribute indirectly to financing political parties based on law, for example by covering the costs of postage and of meeting rooms, by supporting party media, youth organisations and research institutes; and also by granting tax incentives. v. Together with State funding, private funding is an essential source of finance for political parties. As private financing, in particular donations, creates opportunities for influence and corruption, the following rules should apply: a. a ban on donations from State enterprises, enterprises under State control, or firms which provide goods or services to the public administration sector; b. a ban on donations from companies domiciliated in offshore centres; c. strict limitations on donations from legal entities; d. a legal limit on the maximum sum of donations; e. a ban on donations by religious institutions. ...” 18. In Recommendation Rec(2003)4 of 8 April 2003 on common rules against corruption in the funding of political parties and electoral campaigns, the Committee of Ministers of the Council of Europe recommended that the governments of member States “specifically limit, prohibit or otherwise regulate donations from foreign donors” (Article 7).