Plans to shine a light on lobbying in Brussels are facing pushback before discussions have even begun.
Negotiations on setting up a mandatory transparency register, which lobbyists and activists would have to sign up to in order to meet with MEPs and senior EU officials, are to begin behind closed doors in the coming months. But lawyers from the Council of the EU, representing governments, have already raised questions about the legality of the plan.
As of Thursday, 11,191 organizations — including consultancies, trade associations and NGOs — had voluntarily signed up to the existing register, set up in 2011 by the European Commission and European Parliament. The idea is to expand that register, make meetings with senior EU officials conditional on being signed up to it, and give it more staff and resources.
However, attempts to include the Council in the new register have fallen foul of the institution’s lawyers. In a legal opinion obtained by POLITICO, they say the Commission’s decision to regulate lobbying by using a so-called inter-institutional agreement is problematic — and possibly not legal. These agreements are normally only used to define how the institutions deal with each other, not with the outside world.
They argue the register would only be mandatory for the EU institutions, not for the lobbyists themselves. “The word ‘mandatory’ is perhaps a source of confusion,” the lawyers wrote, since the draft agreement “merely defines a set of conditions which interest representatives need to fulfill if they wish to benefit from preferential access” to the EU institutions.
And plans to include EU countries’ embassies in Brussels in the register, even on a voluntary basis, are a non-starter, the lawyers said, as doing so would create a “legal clash” with national laws.
In March last year, a study by the watchdog Corporate Europe Observatory found that only four of the 28 EU countries’ permanent representations to the bloc had rules for interactions with lobbyists. At least six EU embassies did not keep any records of who was meeting with their staffers.
While the plan “was meant to persuade the most reticent EU institution — the Council — to introduce a regulatory framework governing lobbying at its premises, it was soon revealed to be short-sighted,” said Alberto Alemanno, a professor in EU law at HEC Paris.
“Clarity is absolutely needed so there’s no suspicion [about lobbyists],” Danuta Hübner, chair of the Parliament’s Constitutional Affairs Committee, who will be one of two MEPs representing the institution in the negotiations, told POLITICO. “Nobody questions the biggest change, which is this [proposal’s] mandatory character.”
MEPs on board
The Parliament was the first institution to introduce transparency rules for lobbyists, in the mid-1990s — and is set to push EU governments hard to sign up.
“So far, we never got the Council on board,” said Hübner. “We never managed to have the three institutions on board and we never managed to make it obligatory.”
Unlike many of her colleagues, Hübner publishes online all the meetings she has with lobbyists.
“I wouldn’t meet people if I couldn’t say that I had met them,” she said, even though her political group, the center-right European People’s Party, rejected a proposal last year to force MEPs to disclose all meetings they held with lobbyists.
She said the definition of lobbying was a particularly sensitive issue. At the moment, the Commission proposal would only apply to lobbyists who “promote certain interests by interacting with any of the three signatory institutions, their members or officials, with the objective of influencing” the lawmaking process.
Transparency campaigners argue this doesn’t go far enough, saying any activity that provides services or support to lobbyists, in particular consultancy and legal advice, should be included. Not doing so would risk “creating a sizable loophole and encourage organizations to hide the real extent of their lobby activities,” according to Transparency International.
In 2013, when the Commission decided to tighten the levels of a toxic metal — cadmium — contained in fertilizers, the Office Chérifien des Phosphates, a Moroccan state-owned monopoly with ties to King Mohammed VI, hired the London-based law firm Dechert to make its case.
For the past three years, the firm has been in regular contact with Commission officials and MEPs dealing with the regulation, as well as permanent representations. Despite having regularly lobbied officials in each of the EU institutions, Dechert is still not on the transparency register and did not respond to a request for comment.
Lobbyists (mostly) supportive
Parts of the lobbying community have been pushing to strengthen the register for years, saying they have nothing to hide.
“It’s a question of putting the level of ethics as high as possible,” said Vincent Navez, a director at the European Chemical Industry Council, who said his organization is already in line with much of what the new proposals would require.
Some are even arguing it should go further.
Karl Isaksson, chairman of the European Public Affairs Consultancies’ Association, argued the obligation to only meet registered lobbyists “should apply to all staff, not only the most senior ones.”
However, there are concerns about the implementation of the rules. “Some of the proposals will not lead to further transparency, but only create more bureaucracy and frustration among registrants,” said Markus Beyrer, director general of BusinessEurope, Europe’s largest business lobby.
Lobbyists also complain about the proliferation of national rules that overlap with the EU’s initiative. Ireland, for example, introduced its own register in 2015 which covers meetings with MEPs as well as national politicians.
“Obviously it would be easier and better to have a proper European register that covers everything,” said Transparency International’s head of advocacy, Daniel Freund. “Otherwise we risk ending up with a situation where lobbyists in Brussels have to sign up to 29 registers if they work with [EU policymakers].”
Quentin Ariès and Giulia Paravicini contributed to this article.