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The Concept of Chilling Effect Its Untapped Potential to Better Protect Democracy, the Rule of Law, and Fundamental Rights in the Eu

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THE CONCEPT OF CHILLING EFFECT ITS UNTAPPED POTENTIAL TO BETTER PROTECT DEMOCRACY, THE RULE OF LAW, AND FUNDAMENTAL RIGHTS IN THE EU Author: Laurent Pech © 2021 Open Society Foundations uic b n dog. This publication is available as a PDF on the Project website under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. opensocietyfoundations.org March 2021 CONTENTS 2 EXECUTIVE SUMMARY 4 1. WHAT IS CHILLING EFFECT? 6 2. CHILLING EFFECT IN ECHR AND EU LAW: SCOPE OF PAPER AND MAIN OBJECTIVE 8 3. CHILLING EFFECT IN ECHR LAW: A WELL-ESTABLISHED CONCEPT 15 4. CHILLING EFFECT IN EU LAW: A CONCEPT RIPE FOR INCREASED USE IN FUNDAMENTAL RIGHTS/EU VALUES CASES 25 5. THE UNTAPPED POTENTIAL OF THE CONCEPT OF CHILLING EFFECT TO HELP PROTECT DEMOCRACY, THE RULE OF LAW AND FUNDAMENTAL RIGHTS IN THE EU 1 The concept of chilling effect Its untapped potential to better protect democracy, the rule of law, and fundamental rights in the EU EXECUTIVE SUMMARY ECHR Law: Chilling effect is a well-established measures: (i) national measures whose vague or concept in the case law of the European Court of ambiguous content, specific or combined effects Human Rights. In practice, this concept has been and/or arbitrary application can dissuade natural predominantly used in freedom of expression- and/or legal persons from exercising their EU rights for related cases where the applicants were journalists. fear of falling foul of these measures and (ii) national More recently, the Strasbourg Court has received measures which are adopted and/or applied with the an increasing number of applications from judges, aim to dissuade natural persons from fulfilling their in which it has been argued that the threats and/or professional obligations, as for instance in the case of sanctions imposed on them have had a chilling effect. judges, prosecutors and lawyers. EU Law: Chilling effect is usually known as Dassonville-like enforcement approach: The dissuading or deterrent effect in EU law and has long European Commission should adopt a Dassonville- been used, implicitly or explicitly, in areas such as like enforcement approach to better protect competition law or free movement law. However, fundamental rights/EU values. In other words, the case law of the CJEU has traditionally shown the Commission should pay special attention to a very limited use of the notion in “fundamental all measures enacted by member states which rights/EU values” cases. This changed in 2020 are capable of dissuading, directly or indirectly, following the judgments issued in Joined Cases actually or potentially, natural or legal persons C-558/18 and C-563/18, Miasto Łowicz and Prokurator from exercising their EU rights or fulfilling their Generalny, and Case C-78/18, Commission v. Hungary EU obligations even where these measures are not (Transparency of Associations). applied/enforced. In this context, the European Commission must not only have regard to the Article 2 TEU values: Democracy, the rule of law content of the relevant measures but also consider and fundamental rights are interconnected and their indirect, potential and combined effects. mutually reinforcing values, which is why it would Doing so will enable the Commission to more easily be misguided to seek to limit the use of the concept construe these measures as falling within the scope of chilling effect to “fundamental rights” cases, of EU law, which can be the subject of infringement narrowly understood. The concept of chilling effect actions. In this respect, one must stress that the should therefore also be used to protect the exercise longer the Commission waits to act, the more of procedural rights and procedural obligations. irreparable damage is done. Main problematical national measures: To Protecting the right to freedom of association, help prevent autocratic-minded authorities from and more broadly Europe’s civic space: The achieving their self-censorship goals, the concept of Commission (or individual member states) should chilling effect should be systematically considered build on the Court of Justice’s ruling in Transparency and explicitly used to politically and, where possible, of Associations and challenge inter alia the chilling legally challenge two main types of national effect of any national measure, broadly understood, 2 March 2021 which interferes with the exercise of Charter rights Smear campaigns targeting journalists: and in particular freedom of association, if the mere Regarding SLAPPs, the best course of action may be existence of “regulatory constraints” or the mere a revision of the Rome II and Brussels Ia Regulations. prospect of the potential application of any national More ambitiously, an entirely new EU anti-SLAPPs measure can have a negative impact on donors and/ regulation or directive could be put forward by the or the activities of a civil society organisation. Commission. Regarding smear campaigns, it is proposed to explore short term action in the form of Smear campaigns targeting civil society an infringement case based on Directive 2019/1937 organisations and human rights activists/ once its implementation period comes to an end on defenders: The Commission (or individual member 17 December 2021. states) should consider launching infringement actions based on the concept of chilling effect, to Negative and positive obligations: Article 2 TEU the extent that smear campaigns—regardless of values, as concretised in different provisions of the whether they originate from “public authorities” Treaties and the EU Charter, must be interpreted broadly understood or proxies—can be construed as as imposing on the EU institutions and its EU unjustified restrictions on the exercise of freedom of member states negative as well as positive obligations. association, in breach of EU law. Negatively, Article 2 TEU must be construed as imposing an obligation to refrain from creating a Smear campaigns targeting judges: The climate of distrust, fear or stigmatisation and taking Commission (or individual member states) should measures which can have a chilling effect on specific also consider launching infringement actions on categories of natural or legal persons or on society the sole basis of the chilling effect smear campaigns in general by discouraging the legitimate exercise (such as the Polish publicly financed billboard of the rights provided for by EU. Positively, Article 2 campaign in 2017) have on the EU principle of TEU must be construed as imposing an obligation to judicial independence. It is further submitted that create a favourable environment for the fulfilment of Article 19(1) TEU offers a bridge through which the the values provided for in this Treaty provision, as European Commission could pursue the Council of well as an obligation to react when threats, attacks, Europe’s judicial and non-judicial findings in relation smear campaigns, etc., aim to discourage journalists, to threats or violations of the principle of judicial judges, lawyers, etc., from exercising their rights and/ independence, as well as threats and/or violations or fulfilling their professional duties. of judges’ human rights which in turn undermine judicial independence. 3 The concept of chilling effect Its untapped potential to better protect democracy, the rule of law, and fundamental rights in the EU 1. WHAT IS CHILLING EFFECT? In the European Commission’s first Rule of Law From a legal point of view, chilling effect may be Report and connected country chapters published defined as the negative effect any state action has on on 30 September 2020, the concept of chilling effect natural and/or legal persons, and which results in is mentioned 20 times in relation to legal measures, pre-emptively dissuading them from exercising their political attacks, smear campaigns, abusive lawsuits rights or fulfilling their professional obligations, for and threats targeting journalists, civil society, fear of being subject to formal state proceedings judges and prosecutors.1 For the Commission, these which could lead to sanctions or informal developments can inter alia negatively affect public consequences such as threats, attacks or smear debate, media freedom as well as public trust in campaigns. State action is understood in this context the judiciary and therefore its independence, not as any measure, practice or omission by public to mention threaten the physical safety of those authorities which may deter natural and/or legal being targeted. In several instances, the European persons from exercising any of the rights provided to Commission refers to chilling effect in relation to them under national, European and/or international developments already denounced by bodies of the law, or may discourage the potential fulfilment of Council of Europe. Chilling effect is however never one’s professional obligations (as in the case of defined in either the Commission’s transversal report judges, prosecutors and lawyers, for instance). or the country chapters, which is why this paper will attempt to offer a definition below, before outlining its scope and primary objective. 1 The European Commission communication, 2020 Rule of Law Report – The rule of law situation in the European Union, COM(2020) 580 final and the 27 country chapters are available online. The chilling effect is mentioned
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