EU’s ‘Foreign Agent Law’ Is Misguided

The proposed EU directive is a threat to civil society and the media, both inside and outside the EU’s borders.

For the second time in two years, tens of thousands of protesters in Georgia’s capital Tbilisi are braving police tear gas, water cannons, rubber bullets and beatings to block a Russia-style “foreign agent” law aimed at clamping down on independent civil society. The protesters, mainly young people, see it as an existential battle for the future of their country – the only way to prevent a disastrous turn away from EU integration towards Putinesque authoritarianism.

The EU has been a crucial ally in their fight both times, issuing statement after statement condemning the law and granting EU candidate status to Georgia last December after the government withdrew its original proposal. However, worryingly, the EU is now pursuing a near-identical law to the one it criticises, jeopardising the bloc’s credibility to speak out against the Georgian legislation.

Ahead of June’s European Parliament elections, in which far-right extremism is expected to surge, the EU is urgently stepping up its fight against malign foreign interference from Russia. Central to these efforts is a proposed directive targeting European organisations and individuals thought to be furthering foreign government interests. But this approach is the wrong way. The proposed EU directive is a threat to civil society and the media, both inside and outside the EU’s borders.

People walk past announcements for the upcoming 2024 EU elections outside the European Parliament building in Brussels, Belgium, 27 April 2024. EPA-EFE/FREDERIC SIERAKOWSKI

Incompatible with EU Values

The European Commission has moved ahead with the “Directive on Transparency of Interest Representation on Behalf of Third Countries” despite fierce opposition from European civil society since its unveiling in 2023. Critics have dubbed it the “EU foreign agent law”, referencing similar legislation elsewhere which singles out foreign-funded people and groups for additional scrutiny, ostensibly to promote transparency and sovereignty but often as a means to silence dissent or vilify opponents.

Invariably, such laws lead to clampdowns on civil society and critical media. Groups designated as foreign agents are often publicly stigmatised and subjected to bureaucratic harassment to bully them into submission or bury them in paperwork.

The most infamous of these laws is Russia’s 2012 foreign agent legislation, whose vague wording and broad application has forced all manner of independent organizations to shut down. But from Hungary to Israel to Nicaragua, wherever foreign agent laws appear, authorities weaponise them against activists.

These laws are quickly spreading in Europe and Central Asia. Besides Georgia, in recent months Bosnia and Herzegovina, France, Kyrgyzstan, and Slovakia have adopted or moved forward with foreign agent legislation. The EU has denounced many of these laws as authoritarian and incompatible with its values, but the EU’s proposal is fundamentally no different.

Hungarian PM Viktor Orban (L) and Slovak PM Robert Fico at the start of a Special European Council in Brussels, Belgium, 01 February 2024. EPA-EFE/OLIVIER HOSLET

‘Not a foreign agent law’

EU officials claim their proposed directive is merely intended to increase transparency. That explanation has not convinced European civil society. While the EU has repeatedly said “this is not a foreign agent law,” it’s neglected to provide a convincing argument.

Indeed, the proposed directive speaks for itself. At its core is a mandatory public register of organisations and individuals funded by non-EU governments and their proxies, with member states free to implement the directive as they like at the national level. While the proposal substitutes the term “foreign agent” with the awkward “entity carrying out interest representation activity on behalf of a third country”, any register will likely lead to stigmatisation and vilification, no matter the wording.

The directive stems from the false assumption that nonprofits whose public-interest activities are funded from abroad are duty-bound to advocate for the country that pays them. That’s absurd. My own organisation, CIVICUS, receives funding from European donors, but that doesn’t preclude us from critiquing EU policies.

Like Russia’s foreign agent law, the EU proposal is vague. Phrases like “interest representation activity” and “activities of economic nature” leave much room for interpretation. Likewise, the text’s definition of a “third country entity” is so broad that almost any foreign donor could plausibly qualify. Politicians can easily abuse such wording to target groups they dislike.

Further, the directive requires onerous record-keeping, including several years of up-to-date logs which authorities can demand at any time under penalty of fines. Such rules create a perpetual state of uncertainty and add significant administrative burden, especially for small, overstretched citizen groups. Opportunities for harassment by officials acting in bad faith are endless.

Given their track record, there is major concern that some incumbent EU governments will use these registers to smear critics as spies and subversives. And the spectre of authoritarian-leaning parties gaining power in this “super election year” means some of the “Putin proxies” the bloc wants to stymie may be the first to wield the directive’s powers.

Unfortunately, rhetoric from prominent officials connected to the directive doesn’t allay fears that it will be used to clamp down on civil society and media. For instance, Guy Lavocat, a French MEP who authored the EU legal affairs committee’s opinion on the proposal, bluntly stated it is part of fighting a “hybrid war”, and advocated for individual EU states to be allowed to use additional, harsher measures against designated groups.

(L-R) Azerbaijani President Ilham Aliyev, Kazakh President Kassym-Jomart Tokayev, Tajik President Emomali Rahmon, Russian President Vladimir Putin and Kyrgyz President Sadyr Japarov visit the Peterhof State Museum and Reserve in St. Petersburg, Russia, 26 December 2023. EPA-EFE/PAVEL BEDNYAKOV/SPUTNIK/KREMLIN POOL

‘Why are you allowed and we are not?’

The proposal is not only dangerous, it’s hypocritical, harming EU efforts to stop foreign agent laws from spreading across Eurasia. In the past, an EU court struck down Hungary’s 2017 foreign agent law, and EU pressure helped scuttle a previous attempt to pass similar legislation in Kyrgyzstan, in addition to the EU’s success in Georgia last year. But with its own foreign agent law in the works, EU protestations now ring hollow.

Sure enough, when Georgia introduced a fresh foreign agent law this year, Parliament Speaker Shalva Papuashvili announced it would be an exact copy of the proposed EU directive. Over 200 European NGOs warned of this outcome in 2023 in an open letter pointing out the EU proposal would undermine Brussels’ opposition to foreign agent laws abroad.

More broadly, the EU proposal fits a pattern of hypocrisy among Western nations on rights, which authoritarians are keen to call out. Kyrgyzstan’s president, Sadyr Japarov, responded to an appeal from the US secretary of state against adopting a foreign agent law by pointing to the US’s own Foreign Agents Registration Act from 1938 by pointing out: “The question cannot help but arise: why are you allowed and we are not?”

Proponents say the EU urgently needs the directive to prevent illiberal actors from taking hold of European institutions through malicious interference by repressive governments. But European governments are already heading down the path of repression – with or without foreign interference.

In the last five years, the percentage of people in Europe and Central Asia living in countries with open civic space has reduced by half, according to CIVICUS Monitor data, as democracies increasingly crack down on protesters and activists. The proposed law, if adopted as authoritarian-minded governments are expected to come to power, could easily be repurposed to further undermine European civil society activities to the detriment of human rights.

Like the protesters in Tbilisi, EU officials may see themselves at a tipping point for democracy. But they’ll need to consider if Europe can risk further deterioration of rights in the face of dwindling civic space. They should also think hard about whether resorting to the same tactics of their “hybrid war” opponents is worth the cost.

Tara Petrović leads research on Europe and Central Asia for the CIVICUS Monitor. She is a human rights lawyer and civil society activist based in Belgrade, Serbia.

The opinions expressed are those of the author and do not necessarily reflect the views of BIRN.