Warsaw, 30 October 2017 Opinion-Nr.: POLIT-ESP/310/2017[JGe] www.legislationline.org OPINION ON LAWS REGULATING THE FUNDING OF POLITICAL PARTIES IN SPAIN based on unofficial English translations of the Law on the Funding of Political Parties, the Law on the General Electoral Regime, as well as the Law on Political Parties This Opinion has benefited from contributions made by Ingrid van Biezen (OSCE/ODIHR Core Group of Experts on Political Parties) Fernando Casal Bértoa (OSCE/ODIHR Core Group of Experts on Political Parties) Ömer Faruk Genckaya (OSCE/ODIHR Core Group of Experts on Political Parties) Barbara Jouan-Stonestreet (OSCE/ODIHR Core Group of Experts on Political Parties) Richard Katz (OSCE/ODIHR Core Group of Experts on Political Parties) Lisa Klein (Campaign Finance Expert) Alice Thomas (International Human Rights Expert) OSCE Office for Democratic Institutions and Human Rights Ulica Miodowa 10 PL-00-251 Warsaw ph. +48 22 520 06 00 fax. +48 22 520 0605 This Opinion is based on unofficial English translations of the laws submitted for review, which are annexed to this Opinion. Errors from translation may result. The Opinion is also available in Spanish. However, the English version remains the only official version of the document. OSCE/ODIHR Opinion on Laws Regulating the Funding of Political Parties in Spain TABLE OF CONTENTS I. INTRODUCTION ......................................................................................... 3 II. SCOPE OF REVIEW ................................................................................... 3 III. EXECUTIVE SUMMARY ........................................................................... 4 IV. ANALYSIS AND RECOMMENDATIONS ............................................... 5 1. International Standards on Political Party Regulation and Political Party Financing ......................................................................................................................... 5 2. General Remarks ............................................................................................................ 6 3. Public Funding ................................................................................................................ 7 3.1. Means of Public Funding ................................................................................................. 7 3.2. Allocation of Funds .......................................................................................................... 8 3.3. Public Support of Election Campaigns ............................................................................ 9 4. Private Funding ............................................................................................................. 10 4.1 Sources of Private Funding and Limitations .................................................................. 10 4.2 Exceptions for Certain Types of In-Kind Donations ...................................................... 11 4.3. Regulation of Foundations and Entities Linked to or Dependent on Political Parties .. 11 4.4 Foreign Donations ......................................................................................................... 13 4.5. Other Issues related to Private Funding ........................................................................ 14 5. Expenditures .................................................................................................................. 14 6. Recordkeeping, Reporting and Disclosure ................................................................. 15 7. Effective Oversight ....................................................................................................... 17 8. Sanctions ........................................................................................................................ 18 9. Dissolution ..................................................................................................................... 20 10. Other Remarks ............................................................................................................ 21 Annex: Law on the Funding of Political Parties of Spain ([excerpts] last amended in 2015) Law on the General Electoral Regime of Spain ([excerpts] last amended in 2016) Law on Political Parties of Spain (last amended in 2015) 2 OSCE/ODIHR Opinion on Laws Regulating the Funding of Political Parties in Spain I. INTRODUCTION 1. On 18 May 2017, the President of the Committee for Auditing Democratic Quality, the Fight against Corruption and Institutional and Legal Reforms of the Congress of Deputies of Spain sent to the OSCE Office for Democratic Institutions and Human Rights (hereinafter “OSCE/ODIHR”) a request for legal review of the framework for financing political parties in Spain, namely, the Law on the Funding of Political Parties (hereinafter “the Political Party Funding Law”1), the Law on the General Electoral Regime (hereinafter “the Electoral Law”2) and the Law on Political Parties.3 2. On 6 June 2017, the OSCE/ODIHR responded to this request, confirming the Office’s readiness to prepare a legal opinion on the compliance of these laws with OSCE commitments and international standards. This Opinion was prepared in response to the above request. II. SCOPE OF REVIEW 3. The scope of this Opinion covers only the legal framework of financing political parties in Spain, as covered by the Political Party Funding Law, the Electoral Law and the Law on Political Parties submitted for review. Thus limited, the Opinion does not constitute a full and comprehensive review of the entire legal and institutional framework governing the regulation of political parties in Spain. As the financing of political parties is also influenced by other factors and by the choices made by the legislator in its regulation of political parties, this Opinion also mentions some of the afore-mentioned factors and makes recommendations on how to bring them in line with OSCE commitments, international obligations and other standards. 4. The Opinion raises key issues and provides indications of areas of concern. In the interests of conciseness, the Opinion focuses on those provisions that require improvements rather than on the positive aspects of the respective legislation under review. The ensuing recommendations are based on OSCE commitments, international obligations, standards and good practices related to political party regulation. The Opinion will also seek to highlight, as appropriate, good practices from other OSCE participating States in this field. Moreover, in accordance with the 2004 OSCE Action Plan for the Promotion of Gender Equality and commitments to mainstream a gender perspective into OSCE activities, the Opinion analyses the potentially different impact of the respective legislation on women and men.4 5. This Opinion is based on an unofficial English translation of the laws submitted for review, which are attached to this document as an Annex. Errors from translation may result. 6. In view of the above, the OSCE/ODIHR would like to make mention that this Opinion does not preclude the OSCE/ODIHR from formulating additional written or oral 1 Last amended in 2015. 2 Last amended in 2016. 3 Last amended in 2015. 4 See par 32 of the OSCE Action Plan for the Promotion of Gender Equality adopted by Decision No. 14/04, MC.DEC/14/04 (2004), available at http://www.osce.org/mc/23295?download=true. 3 OSCE/ODIHR Opinion on Laws Regulating the Funding of Political Parties in Spain recommendations or comments on the respective legal acts or related legislation of Spain that the OSCE/ODIHR may wish to make in the future. III. EXECUTIVE SUMMARY 7. At the outset, it is noted that the current legal framework of political party financing in Spain, especially following the latest round of legal reforms pertaining to the Political Party Funding Law, presents a significant improvement over earlier legislation and contains many positive additions. If adequately implemented, these additions will help contribute to fighting corruption, increasing transparency and leveling the playing field for political parties. 8. However, there remain areas of concern that should be enhanced in order to ensure that the relevant legislation effectively closes potential loopholes that could be used to circumvent regulations on party funding. Additionally, the balance between public and private funding could be reviewed and the legislator should ensure that the system of public funding of both statutory and campaign-related activities of political parties does not disproportionally favor larger, established parties to the detriment of smaller and/or new political parties. In some areas, the legislation could be rendered more accessible and contradictions and overlaps resulting from regulation of the same topic in different pieces of legislation should be eliminated. 9. More specifically, and in addition to what was stated above, OSCE/ODIHR makes the following recommendations to further enhance the reviewed laws: A. To make sure that the legal framework governing the financing of political parties is consistent and clear, in particular with regard to private donations, reporting deadlines and financial oversight; [pars 17, 34, 52, 59] B. To consider reviewing the relevant legislation with a view to create an improved balance between public and private funding; [pars 18-21] C. To ensure that bigger parties are not placed at a disproportional advantage in the allocation of public funding and other forms of public support; [pars 22-30] D. To more strictly