THE LAW AGAINST CIVIL LIBERTIES – A NEW ATTACK ON CIVIL RIGHTS
Context
Draft Law on Registration of Foreign Agents in Bulgaria –
in summary and with examples
Arguments used by the "Revival" Party to promote the
Foreign Agents Registration Act
BACKGROUND
In recent years, countries around the world have passed laws to create foreign influence registries. They impose designation requirements or other administrative burdens on those who fall under these laws.
Transparency of foreign influence – this is the main justification behind the adoption of such laws. However, many of them have vague wording that allow too broad of an interpretation, as well as excessive regulatory requirements that are used by governments and political actors to burden, stigmatise and criminalise civil society organisations. In other words, in some countries (such as Russia, Georgia, Nicaragua, etc.) such laws make the work of CSOs that receive foreign funding illegal.
Variants of such laws exist in Nicaragua (since 2022, led to the closure of at least 150 civil society organisations), Georgia (2024, after mass protests against it), Hungary (2017, later repealed after a CJEU ruling), Israel (2016), Kazakhstan (2016), Kyrgyzstan (2024), Ukraine (2014, later repealed). Recently, the ideas of adopting such laws have been widely promoted in Slovakia and Republika Srpska (Bosnia and Herzegovina). Full list and further information[1] – here.
In Bulgaria, attempts for such restrictions and violation of civil rights and freedoms through the adoption of a Foreign Agents Registration Act have been made for several years, with more serious attempts in 2022 and 2023. Following the adoption of amendments to the Law on Pre-School and School Education banning "propaganda of non-traditional sexual orientation in schools", the populist rhetoric for the adoption of a "Foreign Agents Law like the one in the USA" has once again intensified.[2] . Thus, in September 2024, the Foreign Agents Registration Bill was once again introduced in the National Assembly with content almost identical to the previous two bills.
The draft Law on the Registration of Foreign Agents in Bulgaria (the FARA Bill), modelled on the 2012 Russian law on the registration of foreign agents, is clearly aimed at attacking and suppressing civil society organisations, the media, individuals, and in some cases commercial entities, in order to limit civic participation, independent control and monitoring, and civil liberties. The subject matter of the draft law negatively affects all spheres of life, from political and civil participation and pluralism, to the protection of human rights and, in particular, the rights of minorities, to culture, education, academia and business.
Over the past few years, the space for critical voices and independent activism has been steadily shrinking, which is why the draft Foreign Agents Registration Act could have a cascading negative effect on social progress, good governance and human rights.
NB: "Foreign agent" is usually associated in Bulgaria with the term "foreign spy" and/or "traitor" and thus carries a negative connotation or stigma. Therefore, even the very proposal of the FARA Bill is harmful for the civic space in Bulgaria as it serves as a smear campaign.[3]
WHAT WILL HAPPEN IF THE LAW ON REGISTRATION OF
FOREIGN AGENTS IN BULGARIA IS PASSED?
On the 10th of September 2024, a draft law was introduced in Parliament which:
- Defined as a foreign agent:
"… a natural or legal person who receives cash or other material assistance from foreign sources, directly or indirectly in connection with an activity [of the receiver of the funding] from which it is derived:
– the exercise of influence over the free formation of opinions and/or beliefs of members or groups of society;
– forming public opinion;
– the public dissemination of an opinion or position;
– publicly presenting or defending foreign ideologies.
The same shall be deemed to be domestic entities with foreign financial assistance" (§1, .2 of the Draft Law).
Any person who has received more than BGN 1,000 from a foreign source, except for funds received from commercial transactions, gambling or from the European Union, may be considered a "foreign agent. "Only religious organizations, sports clubs and the types of commercial companies specifically listed in Article 3(2) (insurance companies, financial institutions and commercial companies engaged in a professional activity or occupation subject to a licensing regime outside that of the Broadcasting Act) are expressly excluded from the scope of the law. The covering of costs of "training, seminars and educational courses and programmes, social activities or projects" is also considered funding for the purposes of the FARA Bill.
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FREQUENTLY ASKED QUESTIONS Q: Is the FARA Bill only targeting civil society organisations? Answer. The law defines as "foreign agents" all natural or legal persons who have received funds, material assets or services exceeding BGN 1,000 related directly or indirectly to the dissemination of information, the performance of any non-profit activity, the provision of consumer or social services, the organization of campaigns, training, etc., as well as the implementation of projects aimed at particular social groups. This means that private companies, media, universities, hospitals and individuals could also be considered as foreign agents[4] . Civil society organizations, along with political parties, as well as the media subject to licensing, are specifically mentioned in the bill as possible foreign agents. The only exceptions are sports clubs, religious organisations and companies subject to licensing (a vague definition that allows for different interpretations), with the exception of media companies. However, the bill is usually promoted and presented as a measure against foreign-funded civil society organisations. Q: Is the FARA Bill aimed at the private business sector and will it affect the work of US and European companies? A: Yes, because the draft law is extremely ambiguous and subject to wide interpretation. For example – although the FARA Bill specifically excludes funds derived from commercial transactions, it is specifically applicable to "consumer or other services". In addition, there are many cases where commercial companies transfer funds on grounds other than commercial transactions. This would be the case, for example, where companies organise joint forums or conferences or provide a university with funding to develop education for certain professions needed in the market. Q: Are only entities funded by foreign governments "foreign agents" / Are only entities funded by non-EU sources "foreign agents"? Answer. All foreign sources of funding for entities and individuals, except for funds from commercial transactions, gambling and the EU itself, are covered by the FARA Bill. Moreover, even the provision of tangible goods or the payment of expenses such as participation in "training, seminars and educational courses and programmes, social activities or projects with an equivalent of at least BGN1,000 in a financial year" from any foreign source will make the recipient a "foreign agent". Q: What percentage of a CSO's funding must be foreign in order for the organization to be designated a "foreign agent" under the FARA Bill? / What additional conditions of the legal relationship between the foreign donor and the recipient organization or individual are in the FARA Bill for an organization or individual to be designated as a "foreign agent"? A: Some versions of the FARA Bill around the world require a certain percentage of an organization's annual funding to be of foreign origin in order to be considered a "foreign agent" – for example, the Georgian FARA requires 20% of funding to be foreign. Bulgaria's draft Foreign Agents Registration Act only requires that the organisation or individual receives funding or other goods from a foreign source in excess of BGN 1,000 in a financial year. |
- It defines 'natural persons associated with foreign agents' as 'the founders, representatives and members of the management of organisations designated as foreign agents, as well as the owners, partners, representatives and persons on the governing bodies of companies designated as foreign agents, and those receiving payments or material grants from persons designated as foreign agents for the purpose of financing an activity carried out by them under the first paragraph of Article 3',
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FREQUENTLY ASKED QUESTIONS Q: Does the FARA Bill imposes restrictions only on "foreign agents"? Answer. Restrictive measures also apply to individuals associated with "foreign agents". According to the FARA Bill, these are the founders and management of organizations designated as foreign agents, as well as the owners, partners, representatives and persons on the governing bodies of companies designated as foreign agents. Q: Can the FARA Bill be applied retroactively? A: Generally, laws do not apply to circumstances that occurred prior to their enactment[5] . In this case, the FARA Bill covers foreign funding received up to 5 years before its enactment. Also, the bill defines individuals associated with foreign agents along with "founders of foreign agents." This means that founders of foundations or associations registered as foreign agents will be subject to the restrictions regardless of their current affiliation, or lack thereof, with the organization. |
- Creation of a publicly accessible de facto blacklist of foreign agents maintained by the Ministry of Justice (a concept well known from the Hungarian Transparency Act, declared contrary to EU law) and sanctions if the persons concerned, according to the vague definitions in the draft law, do not declare their inclusion in it. The list will include information on all addresses of individuals deemed to be foreign agents, as well as a declaration of what political activities the foreign agent is carrying out or intends to carry out. The condition for an individual to be removed from this list is that they have not received foreign funding for a period of 5 years.
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FREQUENTLY ASKED QUESTIONS Q: What is the problem with the Foreign Agents Register if it is only intended to provide transparency? A: Bulgaria already has a number of transparency rules for legal entities, such as the obligation for all operating legal entities to file an annual financial report with the Registry Agency, and the obligation for most legal entities, such as non-profit public benefit entities (NPOs), to file a detailed annual narrative report on their activities. These reports are publicly available and anyone can access them. They include information on donors, funding sources, the purpose of the funding, the impact achieved by the funding. Under the legislation and measures against money laundering and terrorist financing, NPOs with a turnover of more than BGN 50 000 have additional obligations for control, risk assessment, etc., unlike ordinary companies in Bulgaria. On the other hand, information on ordinary people is protected under data protection legislation and should not be public in principle. In addition, the proposed register in the FARA Bill goes well beyond the purpose of providing financial information, as registrants must provide information on all addresses in Bulgaria and abroad that they might inhabit, as well as a "comprehensive" statement of all activities of a political nature that the entity carries out or intends to carry out. |
- Obligation for any "foreign-assisted person" to indicate that they are a "foreign agent" on printed matter and other publications, as well as on photographs, business cards, printed samples, engravings, etc. (the list of forms of expression to which the rule applies is long and is contained in Article 12 of the bill). This requirement generally covers any form of expression by the "foreign agent," from emails and social media posts to any type of physical material produced by the "foreign agent," from brochures to photographs.
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FREQUENTLY ASKED QUESTIONS Q: Apart from the obligation to register as a foreign agent, are there any other administrative burdens provided for in the FARA Bill? A: Yes, foreign agents should be subject to a mandatory annual financial audit under the Bill. It is not clear how this could be done with respect to individuals. |
- Prohibition for foreign agents and persons related to them to exercise activities in schools, kindergartens, public and private universities, the Ministry of Interior and the Ministry of Defence, the Bulgarian Academy of Sciences, etc., as well as restrictions on political rights (participation in political activities, agitation, any kind of influence on society in matters of domestic or foreign policy). One of the many internal contradictions in the draft law is that Article 11(2) prohibits foreign agents from "engaging in political activities", while Article 7(2)(3) requires them to submit "a detailed declaration of any activity of a political nature that the declarant carries out or intends to carry out". As it is not clear what constitutes 'political activities', this could include any number of actions (including signing petitions against the FARA Bill itself).
- Penalties for non-compliance – for the first offence BGN 1,000 – 5,000 and for the second offence
BGN 5,000 – 10,000 for individuals, and for the second offence BGN 5,000 – 10,000 and BGN 15,000 – 20,000 respectively. - In all cases, offenders are subject to inspection by the National Revenue Agency.
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FREQUENTLY ASKED QUESTIONS Q: Which areas of public life will be affected by the FARA Bill? Ans: Given the extensive restrictions that will be imposed on foreign agents, all walks of life will be affected – education, academia, political and civic participation, as well as the economy in general, as transactions from abroad will be restricted. |
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EXAMPLES OF THE APPLICATION OF THE FOREIGN AGENT REGISTRATION LAW
A woman from the UK decides to donate new beds to a social care facility in Bulgaria after watching a BBC report about the appalling living conditions there. If the social facility accepts the donation, it will have to register as a foreign agent, as the value of the beds will exceed BGN 1,000. From this moment on the management of the facility will be banned from participating in the political life, the facility itself will have to audited and will have to put a notification “Foreign agent” on all its communication materials.
International companies finance the organization of a conference in Varna to develop business relations between Bulgaria and foreign companies. As international companies cover the cost of accommodation for 3 days worth more than 1000 BGN, all business representatives attending the conference will be considered as foreign agents. This means that if the heads of Bulgaria's major business associations, such as the Bulgarian Industrial Association or the Bulgarian Industrial Capital Association, attend this conference, they will be prohibited from influencing Bulgaria's domestic policy and, as such, will not be able to continue to participate in meetings of the National Council for Tripartite Cooperation, for example.
A professor from the Bulgarian Academy of Sciences is invited to the University of Malmö to receive an honorary degree for his contribution to science and to give a public lecture broadcast on television. The Swedish university covers the accommodation and travel expenses of the Bulgarian professor. As these costs exceed 1000 leva and he will be publicly disseminating information, the Bulgarian professor will have to register as a foreign agent and as such will be banned from working at the Bulgarian Academy of Sciences or any public or private university in Bulgaria.
A foundation providing social services to people with physical disabilities was founded in the 1990s by a businessman after a family member suffered an accident. The businessman, as founder, provided the initial donation to establish the foundation, but has not been involved in its management or operation since then, but has run for office and begun a political career. After the passage of the FARA Bill, this foundation will have to register as a foreign agent because it receives donations and grant funding from multiple foreign donors. As the founder of the foundation, the businessman would fall within the definition of "individuals associated with foreign agents." As such, he will be disqualified from any political activity, despite the fact that he has not been involved in the work and decision-making of the Foundation for years and has not supported it in any way.
The Friedrich-Ebert-Stiftung organizes a working visit to Berlin, inviting members of Bulgarian political parties. The Friedrich-Ebert-Stiftung covers the costs of flights and accommodation for the Bulgarian guests. As these costs will exceed BGN 1000, the political parties that have sent representatives will have to register as foreign agents. As such, under the draft law on registration of foreign agents, these parties will be prohibited from conducting any political campaign or activities that could influence Bulgarian domestic or foreign policy. In principle, the registration of a political party as a foreign agent will mean the termination of its activities. |
[2] During a discussion after the adoption of the legislative proposals (a joint plenary session of two parliamentary discussions, which met to consider the request for "Single Steps", 14.08.2024), a group of civil society organizations themselves proposed to the Renaissance Party that this law be adopted. The link being made is along the following lines, "LGBT+ propaganda in schools is being carried out by NGOs, these NGOs are funded from abroad – therefore we need to shine a light on them."
[3] As the Venice Commissionclaims.
[4] §1, item 2 of the bill.
[4] In accordance with Article 1 in conjunction with Article 6 of the Bill.
[5] Anticipation of the operation of a statute for a past period is extremely rare.