DISSENTING OPINION OF JUDGE ROZAKIS

Regretfully I am not in a position to follow the Court ’ s majority in finding that in the circumstances of the present case there has been no violation of Article 11, for the following reasons.

1. I cannot dispute the wisdom of Article 4 of the 1958 French Constitution, when it provides that political parties and groups “ must respect the principles of national sovereignty and democracy ”. States and the democratic societies living within them have the inalienable right and interest to preserve these two fundamental values, respecting, at the same time, the rights and interests of those segments of society which do not belong to the national and social mainstream .

Equally, I cannot dispute the wisdom of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), which determines the arrangements for the financing of political parties. Political parties do not only aspire to take control of the reins of a State, but also, even when they do not have governance over the State, exert significant influence on political life and an impact on the fate of the State and society. There is a legitimate interest on the part of the latter in having a clear, transparent picture of the financing of political parties, and in scrutinising their sources of income, conditions which act as safety valves for the parties ’ independence and as a safeguard against abuses resulting from partiality and corruption.

Lastly, I can also understand that scrutiny of the funding of political parties may be stricter when funds come from a foreign State – there one can readily accept that a total prohibition may be imposed – or foreign entities, including foreign political parties. Yet in so far as foreign political parties are concerned, a general unconditional prohibition on financial transactions and assistance should be applied with caution, taking into consideration modern trends and tendencies and political realities existing in some parts of the world, particularly in the closely integrated environment of the European Union.

2. Section 11 -4 of the Act in question deals with the financ ing of political parties from foreign sources. It provides: “No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.”

Section 11 -4 of the Act is complemented by s ections 11- 5 and 11- 6 of the same Act . It clearly transpires from the se provisions that the Act does not impose a ny preventive control s on the establishment of a funding association of a political party, but provides for sanctions in the event of transgression of the general rule, which may entail revocation of the authorisation already granted for the association to operate, or the punishment of anyone “ who makes or accepts donations in breach of [ section 11-4]”. One should also underscore that section 11-4 does not make specific reference to “foreign political parties”, but speaks of a “legal entity” ( personne morale ), thus leaving some room for the authorities implementing it to consider in individual cases whether the prohibition also applies to foreign parties or groups.

3. I would hence conclude that the law, as it stands alone, cannot be regarded as violating freedom of association, as provided for by Article 11 of the Convention. It does not prevent the establishment of an association – a matter which constitutes in the eyes of the Convention ’ s case-law the gravest of interferences – and it limits the prohibition to another State ’ s financing of a political party – something which, to my mind, is readily justified by paragraph 2 of Article 11 – leaving the matter of the financing of a political party by a foreign political party to be determined on the basis of an interpretation of the broad term of “ personne morale ”, which may or may not necessarily cover foreign political parties. This interpretation may depend on the circumstances of a particular case or on societal developments at local, national or international level.

4. What seems questionable in the circumstances of this case is the interpretation which was given by the national courts of sections 11-4 to 11 ‑ 6 of the French Act, following the dicta of the Conseil d ’ Etat in the Aldana Barrena case. The “pragmatic” approach which had been enunciated by the Conseil d ’ Etat and adopted by the national courts in the present case, justifying the decision of the National Commission on Election Campaign Accounts and Political Funding , entails a blanket preventive prohibition on the very establishment of a funding association. Such a blanket prohibition, apart from the fact that it imposes an unbearable burden on the party concerned, does not allow any flexibility to an authority or a judge in ruling on financing in a particular case on the basis of wider considerations than the mere fact of the origins of the funding. It would be consonant with the requirements of the Convention if the authorities could rule on the legality of a source of funding, after the establishment of the association, on the basis of various factors, such as the circumstances surrounding the funding (its amount, its use, transparency of the transactions, sphere of activity of both the offering and the receiving entities, etc.). The law itself, providing for repressive measures rather than preventive measures, allows for such supervision to be carried out after the association has been established.

5. The above considerations constitute, to my mind, an interpretation of sections 11-4 to 11-6 of the French Act which brings that Act into line with the requirements of Article 11 of the Convention. We should not lose sight of the fact that, while Article 11 § 2 of the Convention, which provides for limitations to freedom of association, leaves a margin of appreciation to the States Parties to determine certain practicalities of that freedom, in the circumstances of the present case there are two elements which, I believe, have gone beyond a permissible and acceptable margin.

The first is the use of preventive controls which interfered with the very establishment of the association, despite the fact that the authorities would have had the possibility, by applying the domestic law in a qualified manner, of imposing measures and sanctions on an association that had already been established. The second is the total disregarding of the fact that both parties function within the domain of the European Union. This latter element is of primordial importance, and fundamentally changes the parameters of this case in relation to the relevant parameters of other cases, where the financing of a political party by a foreign party takes place in an “unorganised” international environment. In the present case, both the French and the Spanish parties are entities which lawfully work within their respective States, France and Spain, both members of the European Union. Although one may share the reticence of various quarters, including the Council of Europe, when they recommend strict controls on foreign funding of political parties – which may amount to a total prohibition – because of the dangers that that may entail for the proper operation of a political party, the situation changes when we are faced with two European Union parties, working within the integrational landscape of the twenty-seven members. Admittedly, even in that context controls and prohibitions may still apply, and section 11-4 of the French Act still has a valid place; however, what seems to me to be unacceptable and to have a direct impact on the extent of the limitations allowed by the second paragraph of Article 11 of the Convention is the total disregard, by those who have applied the national law, of the specificity of the case of two parties working within the context of the European unification process.