According to the parties legal advisors, the provision of services cannot be a unilateral action.

The ERJK's decision requires the Reform Party, Eesti 200 plus the Social Democratic Party (SDE) and the Center Party, to share the costs of the consulting services provided by SALK which amount to €92,572.

The consulting is considered to be a free donation as well as free research and access to research data which SALK provided to the four aforementioned parties ahead of the 2023 Riigikogu elections.

The ERJK found the Reform Party, Eesti 200, and SDE received prohibited donations from the foundation amounting to €26,449 each, while the Center Party received the same to the sum of €13,225.

Law firm: A donation cannot be unilateral

Law firm TGS Baltic, acting for the Reform Party, issued a response to the ERJK letter in which the latter stated it is considering issuing a directive against the Reform Party in respect of the alleged prohibited donation from SALK.

The firm stated that SALK had not provided the Reform Party with any services which could be considered a prohibited donation and that the Reform Party had not commissioned any research, advertising, or other services from SALK, nor had it made any demands relating to the foundation's activities.

The firm argued that the provision of services could only be considered if the foundation had acted on behalf of the Reform Party by conducting and sharing research for that party.

The firm stated: "In the current case, SALK did not act on behalf of the Reform Party, since the party itself consistently commissioned research and paid for it during election preparations, including conveying its research requirements to the research providers."

The firm emphasized that SALK representatives met with Reform Party members on their own initiative and shared research reflecting societal views and attitudes that were already known to the Reform Party. This activity, they argued, cannot be considered service provision to the party, as the party had already extensively prepared for the election campaign and commissioned its own research from various individuals, for which it paid.

The law firm also stressed that a donation cannot be unilateral; it requires the recipient party's intention to accept it.

To constitute a prohibited donation, it must be proven that the Reform Party had requested the services rendered. If not, the party could for instance be held responsible for receiving a donation against its will, the firm noted.

"Simply making certain information available to the Reform Party does not constitute enough grounds for this claim, especially when this was done during meetings initiated by SALK, without any active request from the Reform Party's side," the statement continued.

The law firm further highlighted that interaction with representatives of civil society is part and parcel of a political party's normal activities and of democratic processes.

It also argued that providing services to a party is not considered a prohibited donation if the services are available to others under the same conditions, adding that SALK did not offer any special favors to the Reform Party.

Even if SALK had provided services to the Reform Party, the monetary value of those services should be determined by experts, the firm added.

Eesti 200 stresses did not order or benefit from services

Law firm DEM, acting on behalf of Eesti 200, also presented arguments to the ERJK, stressing that its client did not order any services from SALK and therefore did not receive any financially assessable benefit.

The firm noted that Eesti 200 had clearly communicated to the foundation that it did not wish to receive or order the offered services.

At the same time the firm also referred to the court ruling cited by the ERJK in its decision, noting that the primary criterion for considering a benefit a donation is exclusivity. This means the benefit is provided to a single party or candidate, in so doing providing them with an advantage over others.

However, Eesti 200 did not receive such an advantage, the firm stated.

According to the lawyers, Eesti 200's leadership met with SALK on three occasions.

"The purpose of the meetings was SALK's desire to offer its services to Eesti 200. Essentially, these were meetings where SALK showcased its objectives as an organization. In the first meeting, SALK provided a general overview of its activities, in the second, it presented the results of research on party support and voter overlap; in the third, the importance of various topics to different target groups was discussed," the firm outlined.

"While this research was compelling, Eesti 200's leadership did not see any added value for itself and therefore declined SALK's consulting services and the drafting of a 'recommendation paper.'"

"Eesti 200 commissioned more suitable research for its election campaign from Kantar Emor, and used the data from those studies to plan the various stages and activities of the campaign," the firm added.

Lawyers: ERJK interpretation poses a threat to democratic rule of law

The firm argued that the interpretation requiring the return of a prohibited donation, even if the party did not request or want it, is incorrect, and could pose a threat to the democratic rule of law.

A party whose financial resources and methods of generating same are strictly limited must be able to foresee and plan its campaign expenses, the firm added.

The interpretation that a legal entity not contracted by a party can unilaterally decide to provide services to that party and thus create a financial obligation for the party without its consent allows for the easy sabotage of a political party's operations, be it by domestic or external forces, the firm concluded.

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