The ‘Shrinking of Civil Society Space’ in Europe: Assessing Early Symptoms of Democratic Decline

Long considered a problem of ‘third countries’ (e.g. EP 2017), in times of perpetual crisis the ‘shrinking of civil society space’ within EU member states has been high on the agenda of practitioners for a while (e.g. EESC 2012; 2017; EC 2018; EP 2015; 2018; CoE 2013; 2018; FRA 2018). By now a growing number of studies indeed indicate that democracies in Europe increasingly restrict civil society organizations (CSOs) constituting the organizational fabric of democratic regimes through legal means (e.g. Buyse 2018; Swiney 2019; Bolleyer 2021; Chaudhry 2022). Still, academic research has remained fragmented. Studies have tended to focus either on legal regulation related to one particular crisis (e.g. terrorism, financial crisis, the pandemic), specific types of CSOs (e.g. human rights organizations) or developments in specific regions (e.g. Central Eastern Europe). This paper engages in the first encompassing assessment of this phenomenon based on the ‘Legal Change Dataset’ compiled by the ERC-funded CIVILSPACE project. We systematically coded changes in CSO privileges/obligations within legislation applicable to CSOs from 2000-2022 covering 12 EU countries across 13 legal domains. The 12 countries cover different EU regions, legal traditions as well as old and new democracies and have been run by governments with most different ideological orientations. The 13 legal domains cover privileges/obligations in the regulation of CSO basic rights (e.g. freedom of association, assembly, expression), access to state resouces (e.g. CSO tax benefits), core activities (e.g. lobbying) and infrastructures available to CSOs to challenge authorities (e.g. judicial protections, national human rights infrastructures). Conceptualizing legal restrictiveness as a multidimensional concept constituted by privileges and obligations embedded in legislation, we apply IRT models to assess the restrictiveness of CSO’s legal environments as a latent variable across countries, legal domains and over time. The inclusion of privileges in our data is critical as most of the debate has been concerned with the legal obligations imposed on CSOs only, thereby not allowing for legal domains moving in a permissive direction. Indeed, our analysis will show that several domains have moved in a more permissive direction across virtually all countries studied. Further moving away from an additive logic adopted by existing cross-national “restrictiveness measures” are based, we will assess whether legal obligations curtailing CSOs criticized in countries perceived to be in democratic decline are in fact part of the legal repertoire of EU democracies deemed resilient. Meanwhile, we can systematically identify those obligations that make countries ‘stand out’ and indeed might constitute symptoms of government attempts to curtail CSOs’ ability to play a meaningful role in the democratic process.