INTER-INSTITUTIONAL AGREEMENT (IIA) FOR A MANDATORY TRANSPARENCY REGISTER: WAIT AND SEE

Under its Work Programme for 2016, the European Commission states under ‘A Union for Democratic Change’ priority that it will bring forward a proposal for an Inter-institutional Agreement (IIA) on a mandatory transparency register for interest representatives seeking to influence policy making in the European Parliament, the Council and the Commission. The context of this political initiative follows on directly from the existing IIA signed between the European Parliament and the European Commission. The transition to a mandatory Register would represent a continuation and an upgrade of the current system, widening its scope of application to the Council and introducing additional administrative measures to make registration of interest representatives a pre-requisite to carry out activities which seek to directly or indirectly influence policy making

What are the main problems which this initiative will address?

The main problems with the current voluntary approach are perceived as the following:

- Despite a number of incentives offered by the EU institutions some relevant (and important) stakeholders have not joined the Register;

- Currently only the European Parliament and the European Commission manage the Register and Council participates only as observer;

- Sub-optimal overall data quality;

- Insufficient level of precision and legal certainty hampering an appropriate implementation of the system.

Who will be affected by it?

All stakeholders potentially engaged in activities carried out with the objective of directly or indirectly influencing the formulation or implementation of policy and the decision-making processes of the EU institutions.

Is EU action justified on grounds of subsidiarity?  Why can Member States not achieve the objectives of the proposed action sufficiently by themselves? Can the EU achieve the objectives better?

Lobbying is best regulated at the level at which it takes place and by the respective 'lobbied' party, i.e. the public authority that is the subject of lobbying. According to the principle of subsidiarity, Member States should themselves regulate lobbying conducted vis-à- vis national public authorities. This principle is enshrined in the IIA which states that the Register does not apply to Member States' government services and does not include activities directed at their Permanent Representations to the EU. If Member States were to regulate lobbying conducted vis-à-vis the EU institutions the risk is lack of common standards and uneven playing field. Such an approach would also not be cost-effective, neither for the Member States, nor for the stakeholders that would have to comply with different rules when carrying out their activities across different national jurisdictions.

What are the main policy objectives?

The objectives are to achieve:

 - Better coverage of interest representatives lobbying the EU institutions

 - Level playing field as all relevant stakeholders will have to register

- Greater transparency of the interest representation at the EU level

- Increase transparency and foster trust in the EU-decision making process on the part of citizens and stakeholders

(1)What are the policy options (including exemptions/adapted regimes e.g. for SMEs) being considered?

Option 1. A sanctions-based regime based on legislation, i.e. a Regulation or Directive. A legislative act on the basis of Article 352 TFEU (which requires unanimity in Council and the consent of the EP) is one option as it is binding in its entirety and directly applicable. It is the only available legal basis to establish direct requirements for lobbyists. Under this system failure to declare lobbying activities or providing wrong/misleading information could lead to administrative sanctions

Option 2. A 'privileged access' regime based on an Interinstitutional Agreement ( a sui generis instrument) covering the European Parliament, the European Commission and Council.  Registration under this system is a pre-condition in order to gain access to decision-makers, premises, committees and other similar structures, or to information, etc. The IIA can include a series of administrative measures established unilaterally by each EU institution

Option 2 seems more feasible than either variant of Option 1. In principle, the EU legislator could empower the institutions to impose administrative sanctions, including financial sanctions, in order to uphold the correct operation of the Register. However, this could be considered to be disproportionate, and would in any event require lengthy discussions. Even if Member States were to be given the enforcement task, this would require further implementation legislation (Directive scenario) which would equally be a lengthy and disproportionate political process at odds with the principles of Better Regulation of reducing administrative burden. In any event, unanimity in the Council would be needed for any of these approaches.

Main costs and benefits under a 'privileged access' regime

Costs

 - IT budget for development and maintenance to align to and to run the new mandatory scheme;

 - More staff available for the Joint Transparency Register Secretariat to ensure smooth transition to and management of the mandatory regime

Benefits

- Increase coverage of the 'Public Affairs' sector when a meaningful 'conditionality' is put in place (e.g. no meeting with Commissioner or no permanent access badge to the European Parliament for non-registered entities);

 - Common set of rules defined in the IIA and implemented coherently by the three main EU legislators. The implementation modalities can be introduced relatively swiftly through the institutions' Rules of Procedure/working methods or other similar administrative measures;

- improved quality of data as monitoring is strengthened;

- Faster tripartite Interinstitutional negotiation process with more realistic outcome compared to negotiations and unanimity requirement in Council;

Pursuing Option 1 is likely to have negative impacts on simplification, administrative burden and implementation arrangements for Member States and could lead to difficulties of transposition for some of them (Directive scenario).