finanțare ONG-uri – APADOR-CH

The National Office for the Prevention and Control of Money Laundering published a draft law on the prevention and fight against money laundering amending several normative acts, including the « Law of NGOs » (Government Ordinance No. 26 / 2000) ^[1].

The pretext of these legislative amendments is the implementation of the European Directive no. 2015/849 / EU of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.

The Government wants to oblige associations and foundations to report periodically to the Ministry of Justice ^[2] (annually and whenever new situations occur) numerous data and information, including the names and identification data of each person with whom the association or foundation gets in touch or to whom provides support in any way in the course of their work. Nevertheless, the European Directive does not expressly request this and leaves a margin of discretion to each state.

In case of non-compliance with the obligation to report this data or other information, the draft law proposes sanctions ranging from a significant fine (up to 5,000 lei) ^[3] to the dissolution of the association/foundation ^{[4 ]} .

Given the unclear, confused and disproportionate categories of data and information to be reported by NGOs listed in the draft law, it is obvious that the Government is seeking to introduce burdensome legal obligations which, objectively, will not be able to be met by NGOs. And the final sanction for failure to meet this reporting obligation is manifestly disproportionate, namely, the « supreme » sanction of dissolution.

APADOR-CH points out that the Parliament is currently debating a draft bill proposed by the ruling party, providing for the dissolution of NGOs in case of non-compliance with the burdensome request of reporting any financing grant (regardless of its value). Also, the Ministry of Public Finance is preparing, upon recommendation from the Court of Auditors, a draft law which will allow NGOs to be scattered with targeted fiscal control pretexting monitoring the use of the 2% tax rate that can be redirected to NGOs.

The government is already adopting a « modus operandis » toward NGOs, which has two components:

the introduction of bureaucratic, confusing and burdensome obligations for NGOs (mostly in the form of excessively detailed and frequent reports);
the provision of manifestly disproportionate sanctions (dissolution of the NGO) in the event of failure to meet these bureaucratic obligations, which in reality cannot be fulfilled.

So instead of focusing on their work and their mission purpose, associations and foundations will dedicate their time and energy to drafting reports and sending them to the different public entities. The latter will not be able to process that much information (there are sufficient precedents of such institutional incapacity, for example, the catastrophic monitoring by ANAF (the national fiscal administration agency) of of payment of health contributions). But if an NGO is too loud or critic of the governing authorities, it could be put under scrutiny for some forgotten report out of dozens of reports requested or for missing a date on the requested information, leading to its dissolution.

APADOR-CH reminds that for associations and foundations; the dissolution is a sanction comparable to the death penalty for the individual. However, if the “death penalty” can still apply to (legal) entities in the EU, at least the conditions for its application must be sufficiently clear and restrictive, and should be limited to truly exceptional cases to prevent abuse.

APADOR-CH appeals to the Government to temper its increasingly brutal attempt to retaliate against the criticism coming from civil society by introducing legal regulations that prevent normal functioning of associations and foundations.

^[1] At:http://www.onpcsb.ro/pdf/PROIECT%20LEGE%2031%20%20IANUARIE%20CU%20OBS%20MJ%20FINAL.pdf

^[2]Point 18 of the draft law introduces the obligation to communicate to the Ministry of Justice the identification data of « real beneficiaries ». And, in the case of associations and foundations, art. 4 al. 2 lit. c of the draft Law on the Prevention and Control of Money Laundering and Terrorist Financing, the notion of « real beneficiary » also includes « natural persons … in whose main interest the association or foundation was established or is operating ». Because the notion of « main interest » used in the bill is not defined anywhere, it can refer to anything, including the interest of individuals in being supported by an association/foundation. For example, an association for consumer protection or patient protection was set up in the interests of consumers or patients. The consequence of this bill is that the name and other identification data of consumers or patients coming into contact with such associations should be reported to the Ministry of Justice. According to the draft law, each person will have to be identified and reported to the Ministry of Justice by the association/foundation. If this obligation is not respected, the association/foundation will be dissolved (abolished).

^[3] Point 18 of the draft law

^[4] Point 24 of the draft law

Translated by

Two Romanian MPs from PSD (the Social Democrats), the ruling Romanian party, have submitted a law proposal which is to be discussed through an emergency procedure and which proposes important amendments to the Romanian law regulating the work of organizations and foundations. The proposals include obliging NGOs to publish in the Official Monitor, twice a year, information on their revenues and expenses, with details on the persons bringing the revenues and the activities they are being spent on. Otherwise they would risk being closed in 30 days.

Together with several Romanian non-governmental organizations, APADOR-CH submitted to the Parliament and the Government a protest letter, urging them to stick to the transparency they are demanding from the non-governmental sector and to organize public debates before operating such legislative changes.

The criticism of the law proposal includes the fact that NGOs anyways have the same tax obligations as any other private entity in the country, and arbitrarily imposing on them new obligations seems to suggest the creation of a form of political control over the non-governmental sector. In addition, the explanatory statement of the legislative proposal is based on some false premises.

The law proposal also seems to introduce instruments of censorship on possible criticisms made by organizations regarding politicians and public functionaries. It states that public utility organizations should be prohibited to engage in “campaigns of […] opposition to a political party or candidate for a public office in which they can be named or elected”; the formulation of the provision is vague, being able to lead to abusive interpretations.

Another problem is that the Ministry of Public Consultation and Social Dialogue has organized in the last few months several debates with NGOs, on the subject of amendments requested by some organizations to the same law. In these meetings however there were never discussions about the PSD law proposal, although the Senate had asked for a point of view from the Government on it.

This is not the only legislative proposal submitted by the current government in relation to the functioning of the non-governmental sector. A draft law on the regime of non-reimbursable public funding for non-profit-making activities is published for public debate on the website of the Ministry of Justice. During the electoral campaign of 2016, as well as during the massive protests that took place in Romania this winter, there were quite a few politicians making statements through which they were insinuating that some NGOs might be having some hidden interests in “destabilizing the country.” And some of the proposed legislative reforms seem to be inspired by models recently adopted in neighboring countries such as Hungary or Russia.

The protest letter

To:

PSD President, President of the Romanian Chamber of Deputies, Mr. Liviu Dragnea

President of the Romanian Senate, Mr. Călin Popescu Tăriceanu

The Romanian Prime Minister, Mr. Sorin Grindeanu

The Minister for Public Consultation and Social Dialogue, Mr. Gabriel Petrea

CC: PSD Deputy, Mr. Liviu Pleșoianu

Ref: L140 / 2017 of 21.03.2017 – Legislative proposal for amending and supplementing the Government Ordinance no.26/2000 regarding associations and foundations

Esteemed Representatives,

We are deeply concerned that the discourse on non-governmental organizations from the 2016 electoral campaigns begins to materialize in a persecution of civil society in Romania. We have noted that, under the pretext of increasing transparency, deputy Pleşoianu’s proposal to amend the essential legislation for the functioning of Romanian NGOs imposes unnecessary administrative burdens and levers of political control of non-governmental organizations. The only clear effects of this proposal are an increased state control over NGOs operating legally in Romania and a deterrence of citizens from associating in non-governmental organizations. We should mention that the proposed changes at least:

– Impose on organizations a profoundly discriminatory treatment compared to the rest of the private entities in the country, through the obligation to report all sources of income and expenses twice a year under the threat of dissolution within 30 days. Non-governmental organizations are already subject to the same reporting obligations and the same verification criteria from the tax authorities as other private entities;

– For the first time, they set up censorship tools for criticisms that organizations sometimes bring to politicians and public elected officials, prohibiting public utility organizations from engaging in “campaigns of […] opposition to a political party or candidate for a public office, in which he/she can be nominated or chosen “, an unfortunate phrasing that can lead to abusive interpretations;

On the other hand, it is regrettable that the initiator’s explanatory statement is based on an inaccurate statement, which is more and more common in the public discourse, namely that public utility associations or foundations have access to budgetary financial resources based on this public utility status. We remind you that Article 41, letter b) of GO 26/2000 was abrogated by Law 246/2005, at the initiative of a part of the current letter’s signatory organizations. Our argument underlying this repeal was that public funds must be awarded based on open competition for projects and not by virtue of a specific status.

Since the proposal for these amendments claims to be based on transparency, we ask you to hold a real public debate on this legislative proposal, rather than debate it through an urgent procedure, as requested in the Senate. We consider ironic and counterproductive the meaning of the public debate used by the Ministry of Public Consultation and Social Dialogue, which organized no less than six meetings with NGOs (only in Bucharest, in addition to others organized in the country) about their desires related to the modifications of OG 26, during April 11 – May 19, 2017. However, in none of these meetings, the ministry asked for the opinion of the participants regarding the amendments proposed by PSD, through Mr. Pleşoianu, although the Senate requested the Government’s opinion on these Changes since March 28, 2017.

Dear Officials/Representatives,

We stand at a turning point. The Romanian authorities have to decide whether, in relation to civil society, they are joining the principles that have underpinned and maintained the functioning of the European Union, or, on the contrary, they belong to Russian or Hungarian style of government, through which NGOs are thrown into a situation of dissidence.

We are awaiting your decision with genuine interest,

Fundația pentru Dezvoltarea Societății Civile/Civil Society Development Foundation

ActiveWatch

APADOR-CH, Asociaţia pentru Apărarea Drepturilor Omului în România, Comitetul Helsinki/ The Association for the Defence of Human Rights in Romania – the Helsinki Committee (APADOR-CH)

Asociația pentru Relații Comunitare/Association for Community Relations

Centrul de Resurse Juridice/ Centre for Legal Resources

Centrul de Resurse pentru Comunitățile de Romi/Resource Center for Roma Communities

Centrul pentru Inovare Publică/ Center for Public Innovation

Centrul pentru Jurnalism Independent/Center for Independent Journalism

Centrul pentru Legislație Non-Profit/Center for Non-Profit Legislation

CeRe – Centrul de Resurse pentru participare publică/ The Resource Center for public participation

Expert Forum

Federația Asociațiilor de Părinți care au Copii cu Dizabilități (10 organizații membre)/ Federation of Parent Associations with Children with Disabilities (19 member organizations)

FONSS – Federația Organizațiilor Neguvernamentale pentru Servicii Sociale (27 organizatii membre)/ The Federation of Social Service NGOs (27 member organizations)

Fundația Alături de Voi România

Fundația pentru Parteneriat/Romanian Environmental Partnership Foundation

Funky Citizens

Institutul pentru Politici Publice/Institute for Public Policies

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