MANDATORY TRANSPARENCY REGISTER: EP DRAFT NEGOTIATING MANDATE

At its meeting on 11 April 2017, the EP Transparency Register Contact Group endorsed by a large majority the Draft Mandate hereafter. The purpose of the draft mandate is to define the European Parliament's priorities for negotiations with the other Institutions at political level, which reflects Parliament's previous calls for a mandatory Transparency Register.

The draft negotiating mandate sets out the framework for negiotiations according to three main principles, which should ensure that Parliament's negotiating goals are fully met, while building on and improving the current scheme so that it may function effectively. The three principles are:

1. The widest possible scope of application for EU institutions and other bodies, including meaningful participation of Council: The IIA should reinforce and improve the accountability of the EU Institutions to citizens, by way of a common commitment of the Parliament, Council and Commission to increase the transparency of their relationship with interests representatives.
2. A comprehensive and clear framework, without weakening the current system, for the regulation of interest representation activities: As with all EU decisions, legal certainty is of the essence for effective application. The Commission proposal comes in the form of a new IIA, despite Parliament's call for a legislative text. An IIA based on Article 295 TFEU would be binding on the three Institutions and not on interest representatives themselves, leaving the title 'Mandatory Transparency Register' open to misleading interpretations and making it difficult, if not impossible toimpose obligations on third parties.
3. Structures and resources that guarantee an effective implementation: The Parliament is committed to building on the existing scheme with the Commission and the Council and to making it an effective tool for increasing transparency of the EU decision-making process. A new IIA, including the Council, must fully respect each Institution's role and keep the Institutions on an equal footing with regard to decision-making in the framework of the common scheme. This mandate does not cover the financial aspects and will need to be complemented by a decision of the budget authority to this end.

At its core, the draft mandate retains and draws a clear distinction between conditions and incentives as regard registration by interest groups. In this way, it departs from the Commission's proposal which duplicates the model already implemented for Commissioners, their Cabinets and Directors General ùmoving from a system of incentives to a system of 'conditions' and makes registration unavoidable for certain interlocutors of the Institutions. While the Parliament favours a wide and inclusive approach to interest representation, it also welcomes the introduction of a stricter requirement for registration under certain conditions. The Parliament recognizes that interest representation towards the EU Institutions can take place on two levels. It therefore supports the need to move to a two-tier registration process where only certain activities would become conditional upon registration. A system providing both conditions and incentives would be in line with Parliament's preference to keep a wide definition of lobbying activities. Each Institution would determine what benefits it would provide to registrants and what interactions would be made conditional upon registration. Commitments with regard to Members of the European Parliament, political Groups or Members' staff, relating to their meetings with interest representatives, are to be determined by Parliament. Furthermore, while the Parliament's rules of procedures already recommend to Members to meet with registered interest representatives, it is clear that the Members' independence of mandate, as provided under primary law, cannot be compromised by such rules, nor by an IIA.

The advantages of the two tier approach are as follows

• an inclusive transpaerency policy;
• the possibility to maintain the wider definition of lobbying, covering both direct and indirect interest representation (as with the current system);
• the possibility of better scrutiny with regard to certain lobbying activities, according to each Institutions' needs;
• more flexibility in respect of Institutions' roles and structures;
• respect MEPs' independent mandate;
• in line with measures and provisions already adopted by the EP (thus easy to implement)

Any applicability to Intergroups, political groups and unofficial groupings organised by Members should be determined by the Parliament after it received a full opinion of the legal service on those issues. A legal opinion by Parliament's legal services may provide further guidance for the negotiators in the course of the negotiations.

Negotiating Goals

1. Meaningful participation of the Council, to include current and forthcoming presidencies ; coverage of the General Secretariat of the Council alone would be considered insufficient.
2. A clear preference to widen the scope of coverage of ‘participating institutions’, notably to include the European Council; a need to clarify legal principles beside Article  295 legal basis (such as the right of EU institutions to organize their cooperation) that can bind other signatory institutions.
3. The agreement to cater for other institutional actors who voluntarily want to adhere to the Register, such as regulatory agencies or Member State Permanent Representations.
4. Applicability to political groups to be determined by Parliament.
5. The IIA not to infringe on the competences or prerogatives of its signatories in terms of their respective internal organizational powers, with each Institution and body able to determine how to implement the scheme. The IIA will provide a framework for coordination.
6. All organized interests to be able to register their lobbying activities targeting EU decision-making, while taking into account how those organizations are regulated under national laws if appropriate.
7. Keeping a wide scope of the Register on the basis of a regulatory framework, to include both direct and indirect interest representation.
8. Precise and reliable definitions, including but not limited to a) activities covered; b) activities not covered; c) interaction; d) decision-making of the EU Institutions covered or not, notably internal decision-making.
9. Certainty that the proposed IIA will not hamper internal decision-making procedures, for example with regard to tenders nor create unnecessary bureaucratic burdens.
10. No requirement of registration for certain public services that the Parliament provides.
11. Any conditions introduced to fully respect the Institutions’ and their members’ respective roles, as provided for under the Treaties; this shall include in case of the Members of the European Parliament respect for the provision of the Statute which sets out the independence of the mandate; consequently applicability to Intergroups and unofficial groupings organized by Members should be determined by the Parliament.
12. Each Institution to be able to identify which interactions with interest representatives to be conditional on registration and which would be more appropriate as incentives.
13. Application of current Parliament rules which make access to its premises and the participation as speakers at its committee public hearings conditional upon prior registration for individuals or organizations covered by the scope of the register; speakers invited to provide evidence to the committees of inquiry and who do not fall under the Transparency Register rules, should be exempted only for that purpose.
14. Meetings of EU officials with interest representatives in participating Institutions from the Head of Unit level to the Secretaries-General to be conditional upon prior registration.
15. Identification of additional areas by Parliament of interaction with interest representatives to be made conditional upon prior registration.
16. Insistence that the Commission continue to make membership of its expert groups conditional upon prior registration in the Transparency Register.
17. Insistence that the Commission identify both incentives and conditions applicable for relations with interest representatives.
18. Clarity with regard to ‘bodies not covered’ by the IIA and ‘activities not covered’. While some actors are regular dialogue partners of the institutions (e.g. Article 17 TFEU for religious organizations or Article 152 TFEU for social dialogue) which are activities outside the scope of the Transparency Register, these same actors may still have interests which do fall under its scope. Article 4 should provide more clarity on if and when the bodies listed may be covered.
19. Revision of the classification of registrants in line with the wide approach.
20. Ensure the best possible quality of data and comparability, including by improving the registration form.
21. More precise information from registrants on the nature of the activities being performed and the exact subject, without creating excessive new requirements; intermediaries should provide a link between the subject matter and the client concerned.
22. Increased monitoring, at regular intervals, of the data provided by any entity registering for conditional interaction, on the basis of established criteria.
23. Requirement for more information on the sources of funding, in order to increase the transparency of membership and donations/sponsorship of organizations.
24. A proactive approach by the Institutions to provide clearer guidance for registration and a common communication strategy to raise awareness of the Register, its scope and its requirements.
25. Clarity to be provided to registrants on the activities that are to be made conditional.
26. Recognition of the right to remedies of any registrant subject to an administrative procedure in the framework of the Transparency Register, namely the role of the Ombudsman and the Court of Justice.
27. Each Institution to retain control over its own internal organization powers, notably with regard to decisions affecting access for registrants to certain types of interaction with the Institution (or from entering its premises). Any such decision, when taken unilaterally, will be communicated to the other parties.
28. Require registrants to cooperate with Parliament when summoned to a hearing or committee meeting or co-operate with its committees of inquiry, or face sanctions.
29. Additional legal clarity in the Code of Conduct (notably with regard to the terms ‘inappropriate behaviour’ and ‘sincere and constructive’ cooperation.
30. Any decisions on the structure and resources to be taken as part and parcel of the negotiations (nothing is agreed until everything is agreed).
31. Sufficient resources (human, administrative, technical and financial) as a prerequisite for the efficient functioning of the scheme.
32. Both political and administrative oversight to be ensured by each Institution, in order to steer the evolution of the scheme.
33. The management structure of the Transparency Register to benefit from an independent observer to ensure equal and fair treatment of all registrants and its proper implementation, as well as a rotating chair of the Management Board.
34. A common Secretariat at operational level, where co-ordination is ensured on a rotating basis by the Parliament, Council and Commission to allow for balance, rather than the Commission’s proposal to take on operations alone.
35. Decision-making at all levels should be based on consensus.
36. Review of the IIA to be undertaken within one year after the election of the Parliament’s bureau.
37. Reiterates its longstanding call to back up the EU Transparency Register through a legislative act.