LEGAL BASIS FOR AN EU MANDATORY LOBBY REGISTER

The establishment of a mandatory lobby register at the EU level would require the adoption of a regulation through the ordinary legislative procedure or the special procedure provided in Article 352 TFEU. In both cases, the European Commission would need to propose such a regulation and the Council would have to approve of it (unanimously) and only with the consent of Parliament in Article 352 TFEU and acting on the basis of a qualified majority vote as co-legislator with Parliament in the ordinary legislative procedure. Given the reluctance of the Council to adopt rules on transparency and the length of legislative procedures in the EU, options to aim at a de facto binding character should be considered.

In this context, it is worth pointing to the possibility of regulating the behavior of the staff of the EU’s institutions through the Staff Regulations. The legal basis for staff regulations can be found in Article 336 TFEU. It stipulates that Parliament and Council can enact Staff Regulations of Officials of the European Union and the Conditions of Employment of other servants of the Union based on the ordinary legislative procedure. There are no relevant restrictions regarding the competences of the EU institutions concerning rules which only apply to their own personnel when they interact with lobbyists. For example, rules requiring Commission staff to only speak at events organized by registered organisations or to only meet with lobbyists from registered organisations could be incorporated into the Staff Regulations. However, it should be noted that these Staff Regulations are binding on the staff only and not on lobbyists. Already under the Working Methods of the Juncker Commission, Commissioners can no longer meet with any organisations which are not listed in the Transparency Register and all meetings between interest representatives and the Commissioners, their Cabinets and Commission Directors-General must be published within two weeks of taking place. The introduction of this new system has effectively made entry on the Transparency Register a mandatory requirement for anybody who wants to meet the most senior EU decision-makers and officials.

Furthermore, registration requirements and standards of conduct could be incorporated into or annexed to the Rules of Procedure of the relevant bodies (The legal bases for the Rules of Procedure are Art.232 (1) TFEU (Parliament) and Art.249 (1) TFEU (Commission). They could regulate such elements as meetings with EU officials (MEPs, Commission staff etc.), access to EU facilities (buildings, official meetings, workshops and other events), membership in expert working groups, speaking in front of EU institutions or at meetings organized by them. Requirements that only registered organisations can receive EU subsidies or contracts with a link with EU policies and lobbying could be included in the EU  budget or the Commission and European Parliament guidelines for grants and contracts. As such rules would only regulate the internal organisations and decision-making process, they would only be formally binding on the institutions. Hence, Rules of Procedure can only include requirements for lobbyists when they interact with the institutions.

The factual impact of such rules depends on their contents and the strictness of their implementation. Generally, such rules can be considered as de facto binding on lobbyists if the latter have to comply with them if they want to interact with the respective institutions. Since this is the primary goal of most lobbyists, such rules would target a significant portion of lobbying activities. However, if lobbyists chose not to have direct contact with the institutions, Rules of Procedure cannot compel them to register. In addition, Rules of Procedure could not impose any penal sanctions for non-compliance. Non-compliance with the requirements of the register could only lead to exclusion from the register and refusal of further interactions.

The interinstitutional agreement upon which the current system is based is a sui generis instrument, but it also addresses the behavior of those lobbyists which are in contact with the Commission and Parliament. (“Privileges” attached to registration make registration de facto mandatory, since it conditions access to input to and interaction with the European Parliament and the European Commission, including:

• meeting with Commissioners, cabinet members and Directors-General;
• access to public consultations initiated by the Commission;
• participating in expert groups ran by the Commission DGs;
• receiving alerts about Commission activities or initiatives (inclusion in mailing lists on topics of interest to the organisation);
• contacts with EU civil servants (contact with non-registered organisations being restricted);
• being invited as a speaker at public hearings held by EP committees.

Furthermore Registrants sign-off to the Code of Conduct attached to the Register, and agree to be submitted to the complaint mechanism and measures to be applied in the event of non-compliance with the Code of Conduct, including the procedure for investigation and treatment of complaints).

The Interinstitutional agreement has similar consequences as the Rules of Procedure. They are binding on the institutions and can therefore have similar factual binding effects on lobbyists if they interact with the respective EU bodies. However, the current system is only voluntary and the EU institutions could strengthen the agreement by including rules which are binding on themselves.

Conclusion

A binding regulation on lobbying activities at the EU level including the requirements to register and adhere to certain standards of behaviour would be the most effective way of regulating these activities. Examples, in the EU, but also in third countries (U.S., Canada) show the variety of such mandatory approaches, but also their feasibility.

In 2015 the European Commission committed to consider the option of a mandatory lobby register for all organisations wishing to contact the members of all three EU institutions – the EP, the Commission and the Council . However, at least two problems remains about the adoption of a mandatory register, the first being of legal nature, whereas the second is political. As for the legal basis to fund the new register, the main concern is the absence of an explicit competence of the EU in enacting laws imposing duties on citizens and businesses. In fact, Article 298(2) of the TFEU allows the EP and Council to establish provisions ensuring that the EU institutions carry out their missions with the support of an open and independent European administration. Based on the implied power doctrine, the EU’s competence could be extended to cover all activities addressing EU bodies and institutions engaged in administrative as well as legislative tasks.  According to this system, however, the EU would be able to regulate the issue of transparency with respect to EU officials, not with regard to lobbyists. A 2014 study commissioned by the EP examined whether the EU is entitled to apply regulations that oblige interest representatives to register in ETR. The study concluded that such an obligation could be established on the basis of Article 352 of the TFEU. Article 352 permits the use of a special legislative procedure in the case in which EU action is necessary in order to attain one of its objectives, and there is no specific legal basis in the Treaties. It is assumed in the study that transparency could be the objective to be pursued by the EU. As an alternative (or complementary) solution to the transformation of the ETR from a voluntary into a mandatory register there is the creation of a “legislative footprint” for EU-level lobbying. This idea suggests that a detailed record of the contacts and inputs from lobbyists in the making of legislation and policy from EU institutions may greatly benefit the accountability of EU institutions. Concomitant with the discourse over the legal basis for adopting a new mandatory register, there is a political problem. Not only the idea to put further constraints on citizens and business’ representatives is not shared by all political forces in Brussels, but also there are concerns that a mandatory register may not offer a definitive solution. Mandatory registers, in fact, do not escape criticism. In the United States, for instance, many lobbyists have cancelled their registration to the federal register (while in fact still working as lobbyists) when the federal government decided to tighten up the rules governing the transparency of lobbying. Following the federal government decision to tighten up the rules governing the transparency of lobbying, there was a precipitous drop in the number of registered lobbyists (-25% between 2007 and 2013). It is estimated that more than 46% of lobbyists who were active in 2012 – but not in 2013 – continue to work for the same employers. This seems to suggest that many lobbyists have simply avoided the reporting limits while still contributing to lobbying efforts.

Until a binding regulation is adopted, each EU institution can amend its own staff regulations to address the bahaviour of its own staff vis-à-vis lobbyists to these bodies. This might then have a factually binding character.