THE PROBLEM OF INTRODUCING A MANDATORY EU TRANSPARENCY REGISTER

Back on 15 April 2014, the so-called Gualtieri report (AFCO Committee : Rapporteur Roberto Gualtiery, S&D, Italy) was adopted by plenary. The report reiterated the call for a mandatory register, asking the Commission to submit a proposal for a regulation by end-2016.

Problem of Legal Basis

The EU may enact laws imposing duties on citizens and businesses only if it has an explicit competence to do so. Article 298 (2) TFEU) allows the Parliament and Council to establish, using the ordinary legislative procedure, provisions ensuring that the EU institutions carry out their missions with the support of an open and independent European administration. However, this would allow the EU to regulate the issue of transparency only with respect o EU officials, not with regard to lobbyists.

Therefore, the only legal basis which could be used is the flexibility clause of Article 352 TFEU. It provides that if EU action is necessary in order to attain one of its objectives, and there is no specific legal basis in the Treaties, the appropriate measures may be adopted using a special legislative procedure (unanimity in Council and EP consent). The objective of the EU to be pursued would be that of transparency (Articles 1 and 15 TFEU, 10 and 11 TEU). Given that the establishment of a legally mandatory register would require a unanimous decision by the European Council and approval by the national legislatures of various EU member states, such legal changes seem unlikely, at least in the short term. As a result, it may be more likely that other European bodies, such as the Parliament, will echo the Juncker Commission’s policy-based approach, and require registration as a predicate to access.

It remains to be seen what a mandatory system would like based on an Inter-Institutional Agreement as suggested by Commission President Juncker, as opposed to a mandatory system based on regulation.