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Briefing May 2016 EPRS | European Parliamentary Research Service Authors: Marie Thiel and Elisabeth Bauer Transparency Unit EN PE 581.950 EU Transparency Register SUMMARY Widespread lobbying in the EU institutions has led to criticism regarding the transparency and accountability of the EU's decision-making process. In response to these concerns, the Parliament set up its transparency register in 1995, followed by the Commission in 2008. The two institutions merged their instruments in a joint European Transparency Register (TR) in 2011 on the basis of an Interinstitutional Agreement (IIA). So far, the Council has remained only an observer to the system. The TR is a voluntary system of registration for entities seeking to directly or indirectly influence the EU decision-making process. It has grown at a rate of around 1 000 organisations a year, to reach over 9 000 organisations today. While it is very difficult to make estimates on the actual coverage of the register, an academic study in 2013 already found the register to cover 60-75% of lobbying organisations active at EU level. In line with the IIA, a political review of the system took place in 2013-2014. As a result, a new improved registration system was introduced in January 2015. Parliament has been calling for a mandatory register for lobbyists interacting with the EU institutions since 2008. It has argued that a mandatory register would ensure better standards for lobbying and more transparency. The topic has become increasingly prominent, especially since Commission President Jean-Claude Juncker put the issue on the political agenda, committing to introduce a proposal for a mandatory system by end 2016, as requested by Parliament. Furthermore, from 1 December 2014 onwards, the Commission publishes information on meetings of Commissioners, members of their cabinets and Directors-General with lobbyists. It is currently running a public consultation on the proposal for a mandatory register. Laws in Member States on lobbying regulation vary. Mandatory registration systems exist in only a few countries, with the most recent law being introduced in Ireland. This is an updated edition of a briefing published in December 2014. In this briefing:  What is the Transparency Register?  Legal framework for lobbying in the EU  Evolution of the Transparency Register  Towards a mandatory EU transparency register for EU institutions?  Transparency of lobbying in the Member States  Main references EPRS EU Transparency Register Transparency Unit Page 2 of 8 What is the Transparency Register? Widespread lobbying in the EU institutions has led to criticism regarding the transparency and accountability of the EU decision-making process. In response to these concerns, the Parliament set up its transparency register in 1995, and the Commission then set up its own register in 2008. The two institutions then set up a joint Transparency Register (TR) following an Interinstitutional Agreement (IIA) between the Commission and Parliament in 2011. It remains a voluntary system of registration for interest representatives seeking to directly or indirectly influence the EU decision- making process. The TR has grown at an average rate of 1 000 registrants per year, and now includes over 9 000 organisations. It covers all organisations and self-employed individuals, irrespective of their legal status, engaged in activities falling within the scope of the Register, including in-house lobbyists,1 trade and professional associations, professional consultancies, law firms, self-employed consultants, think-tanks, research and academic institutes. The recently adopted review of the IIA entered into force on 1 January 2015, and the entire system was updated. Legal framework for lobbying in the EU Definition of lobbying The term 'lobbying' comes from the word 'lobby' which designates a hallway where members of parliament can be approached before or after debates. It is essentially understood as a 'concerted effort to influence policy formulation and decision- making, with a view to obtaining some designated result from government authorities and elected representatives'.2 Lobbying thus falls within the broader scope of 'interest representation', but is limited to its legislative and executive aspects.3 The IIA on the Transparency Register does not use the term 'lobbyist' but refers to 'organisations and self-employed individuals engaged in EU policy-making and policy implementation'. The Agreement uses an activity-based definition (i.e. whether an entity is a lobbyist depends on what the organisation does, not on its legal status). Lobbying activities therefore cover 'all 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, irrespective of the channel or medium of communication'.4 The EU definition of lobbying also covers indirect lobbying, and has a very broad scope when compared to other similar systems.5 Lobbying and transparency in primary EU law The transparency of lobbying is not regulated in the Treaties. However, reference is made to the importance of consultation under Article 11(1) TEU, whereby the EU institutions are obliged to 'give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action'. Under point (2) of that Article, the institutions 'shall maintain an open, transparent and regular dialogue with representative associations and civil society'. The IIA gives the following non- exhaustive list of examples of lobbying activity: • contacting Members, officials or other staff of the EU institutions; • preparing, circulating and communi- cating letters, information material or discussion and position papers; • organising events, meetings or promotional activities and social events or conferences, to which Members, officials or other staff of the EU institutions have been invited; • voluntary contributions and participation in formal consultations on envisaged EU legislative or other legal acts and other open consultations. EPRS EU Transparency Register Transparency Unit Page 3 of 8 Furthermore, the Commission is specifically obliged to 'carry out broad consultations with parties concerned, in order to ensure that the Union's actions are coherent and transparent.' A specific Treaty article covers dialogue with religious groups (Article 17(3) TFEU). Therefore, lobbying as an activity in itself – understood as participation of interest representatives in dialogue with the EU institutions – has a clear legal basis in the Treaties as an element of participative democracy. The transparent character of this dialogue is explicitly formulated in Article 11(1) TEU ('open, transparent and regular dialogue'). Furthermore, the question of transparency is addressed in Article 15 TFEU, requiring that all EU institutions 'conduct their work as openly as possible' to ensure the accountability of the EU institutions and thus increase the possibilities for democratic control. Some argue, therefore, that there is a tension between the principle of transparency itself (requiring the disclosure of all contacts) and the principle of openness (requiring access to officials and members of the institutions).6 Evolution of the Transparency Register Situation prior to 2011 Initially, lobbying the EU institutions was not regulated at all. It was only in 1995 that the EP launched its register of lobbyists accessing Parliament. This register was in fact a list of interest representatives granted long-term access to EP premises. By May 2011, some 4 000 individuals were on the register, not all of whom were verified lobbyists. Only the names of the individuals were provided and their organisations. The Commission introduced a voluntary register of lobbyists in June 2008 after adopting a code of conduct for interest representatives a month earlier. The Commission's register was part of a wider European Transparency Initiative (ETI). Its register grew to list over 3 900 organisations by 2011. Joint Transparency Register (since 2011) In a resolution of 8 May 2008, the EP called for the establishment of a mandatory Transparency Register which would cover all the EU executive and legislative institutions (Commission, Parliament and Council). On 23 June 2011 an Interinstitutional Agreement between Parliament and the Commission on a Transparency Register was signed. Registration remained voluntary, but more data were required from lobbyists than with the previous registers. Registrants needed to provide an estimate of annual costs related to activities covered by the Transparency Register, the number of representatives involved, as well as disclose any EU funding received. The legislative files they wanted to follow should also be specified. Registration on this public database is done online, and registrants must update their data on an annual basis. A procedure exists for introducing complaints against any registrants who do not abide by the Code of Conduct. The IIA comprises a code of conduct which registrants agree to respect. Its 12 points cover the duty to identify themselves in relations with officials and members of the institutions, by disclosing their name and the organisation represented, as well as the interests, objectives and aims being promoted and, if applicable, disclosure of clients. Registrants also undertake not to obtain or try to obtain information or any decision in a dishonest manner, not to induce officials and members to contravene the rules and standards that are binding upon them, and to ensure that former EU staff employed as lobbyists respect duties of confidentiality. EPRS EU Transparency Register Transparency Unit Page 4 of 8 The Register is run by the Joint Transparency Register Secretariat (JTRS), made up of officials from both institutions. It monitors the entire database through a system of random checks to verify the quality of data, and checks all new registrants for eligibility. Registrants who do not provide the updates required, or do not cooperate with the Secretariat are removed from the system. The JTRS publishes annual reports, the most recent one being from 2014, providing statistics and an overview of activities. Figure 1 – Breakdown of entities registered in the Transparency Register Figure 1 shows the types of organisations and self- employed lobbyists found in the Transparency Register. Figure 2 shows the evolution of registrations since the joint register was launched in June 2011; there are currently over 9 000 registered. The Transparency Register is available online and can be freely consulted and downloaded in open government format. The database is searchable and its data can be filtered according to type of organisation, its representatives, access to the EP, whether they operate a Brussels office, and so on. Figure 2 – Evolution of registrations in the Transparency Register since its launch EPRS EU Transparency Register Transparency Unit Page 5 of 8 2013 revision of the Transparency Register High-level working group A joint EP/Commission high-level working group7 reviewed the IIA, adopting a draft provisional text in December 2013 with recommendations for technical and political revision. The main recommendations included clearer definitions (e.g. direct and indirect influence), a new provision whereby an entity is already expected to register as soon as the relevant activities are under preparation, more detailed provisions on relevant activities, giving real incentives to register, new provisions on alerts and complaints, and on requiring more detailed information (e.g. membership of high-level groups, consultative committees, expert groups, membership or participation in EP intergroups or industry forums, or other EU-supported structures and platforms). Finally, amendments have been made to the Code of Conduct to apply its principles to all interest representatives, not only to those registered.8 The code of conduct aims to prevent situations in which lobbyists could undermine the rules in place for members and staff of the institutions. In particular, lobbyists undertake to respect and avoid any obstruction to the implementation and application of all rules, codes and good governance practices established by EU institutions. They may not induce members or staff to contravene the rules and standards of behaviour applicable to them. Furthermore, if employing former officials or other staff (or assistants or trainees of members), lobbyists must respect the obligation of such employees to abide by the rules and confidentiality requirements which apply to them. Finally, lobbyists must observe any rules laid down on the rights and responsibilities of former members of the two institutions. Gualtieri report In Parliament the Constitutional Affairs (AFCO) Committee has been very active in the domain of transparency. Its report on modifications to the IIA (rapporteur: Roberto Gualtieri, S&D, Italy), was adopted in plenary on 15 April 2014, with the outgoing EP approving the newly revised IIA. Simultaneously, it reiterated its long-standing call for a mandatory register, asking the Commission to submit a proposal for a regulation by the end of 2016. The EP also highlighted the notion of a 'legislative footprint' to be annexed, on a voluntary basis, to reports drafted by MEPs detailing all the lobbyists who had a substantial impact on them. These issues are on the AFCO agenda again, as an own-initiative report on transparency and accountability of the EU institutions (rapporteur: Sven Giegold, Greens/EFA, Germany) is being prepared, and due to be submitted to plenary by summer 2016. The Transparency Register beyond 2015 The revised IIA applied as of 1 January 2015 and all registrants were thus required to update their data accordingly. The new system substantially improved the quality of data – through requesting more precise and up-to-date information from registrants, providing more targeted monitoring of the database and raising awareness of both the TR and the new requirements among stakeholders and the institutions. The system was strengthened considerably through incentivisation, to encourage registration by all relevant interest representatives. The main incentives up to now have been the possibility for registrants to Direct vs indirect lobbying The revised IIA on the TR includes a definition of direct and indirect lobbying (influencing policy-making):  'directly influencing' means influencing by way of a direct contact or communication with the EU institutions or other action following up on such activities  'indirectly influencing' means influencing through the use of intermediate vectors such as media, public opinion, conferences or social events, targeting the EU institutions. EPRS EU Transparency Register Transparency Unit Page 6 of 8 request access to the EP (there are currently over 6 200 individuals with accreditation to enter the EP), and to receive alerts from the Commission on forthcoming roadmaps and public consultations. Further incentives have been introduced. From the Commission side this includes differential treatment of registered organisations during public consultations as part of expert groups or advisory committees. Commission staff are encouraged to ask stakeholders whether they are registered before their meetings, and Commissioners, members of their cabinets and Directors-General will only meet with registered entities, when their activities fall under an obligation to register on the TR. Commission patronage will only be awarded to registered entities, again when their activities fall into such a category. Parliament's Bureau also introduced a new rule9 providing that speakers at EP Committee hearings must be from registered organisations when their activities would require registration in the TR. Furthermore, the accreditation procedures are being streamlined and improved, and a further package of incentives is due to be introduced regarding access to Parliament's information alerts and co-hosting of events. Towards a mandatory transparency register for EU institutions? Criticism of the current system The current system is voluntary; therefore it is not illegal to lobby the EU institutions without registering. According to research from 2013 the TR already covered approximately 75% of business-related organisations and 60% of NGOs active in lobbying the EU institutions. More recent statistics have yet to be produced. The EP called for the establishment of a mandatory register in 2008, 2011 and 2014. Numerous stakeholders support this call, among them the European Public Affairs Consultancies' Association and Transparency International. However, the OECD, whilst emphasising the importance of transparency and the need for enforcement, does not unequivocally recommend the introduction of mandatory registers. Political will of the Juncker Commission Commission President Jean-Claude Juncker promised that the Commission would lead by example on transparency, and entrusted First Vice-President, Frans Timmermans, with preparing a proposal for an IIA creating a mandatory lobby register covering the Commission, the Parliament and the Council. As of 1 December 2014, the Commission has undertaken to publish information regarding the meetings of the Commissioners, members of their cabinets and Directors-General with lobbyists.10 Problem of legal basis The EU may enact laws imposing duties on citizens and businesses only if it has 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 to 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, EP consent). The objective of the EU to be pursued would be that of transparency (Articles 1 and 15 TFEU, 10 and 11 TEU). It remains to be seen what a mandatory system based on an IIA would look like – as suggested by Commission President Juncker – as opposed to a mandatory system based on a regulation. EPRS EU Transparency Register Transparency Unit Page 7 of 8 Transparency of lobbying in the Member States Most Member States do not have any kind of lobby register. Mandatory transparency registers for lobbyists currently exist in six EU countries (Ireland, UK, Austria, Lithuania, Poland, Slovenia). Four countries have voluntary registers (France, Croatia, Germany, and Romania). Table 1: Lobbying regulation in EU Member States Member State11 Legislation on lobbying Code of conduct for lobbyists Register of lobbyists AUSTRIA Yes, since 2013 Yes, by legislation Mandatory CROATIA No No Voluntary, self-regulated CZECH REP. No Self-regulation No DENMARK No Self-regulation No FINLAND No Self-regulation (2012) No FRANCE National Assembly rules of procedure (1/1/2014) Approved by National Assembly Bureau Voluntary GERMANY Bundestag rules of procedure (1972) No Voluntary register for Bundestag lobbyists IRELAND Registration of Lobbying Bill 2015 Yes in the Lobbying Act Mandatory under Lobbying Act ITALY12 No No Regional initiatives LATVIA No Self-regulation (2012) No LITHUANIA Lobbying Act 2001 Lobbyist's Code of Ethics Mandatory NETHERLANDS Parliamentary rules of procedure (since 2012) No Mandatory register of en- tities accessing Parliament POLAND Legislation (7.3.2006) No Mandatory ROMANIA No Self-regulation (2010) Voluntary SLOVENIA Legislation (2011) Self-regulation Mandatory by legislation SPAIN No Self-regulation No SWEDEN No Self-regulation (2005) No UNITED KINGDOM Transparency of Lobbying Act (2014) No Mandatory only for public affairs consultancies Dark blue = regulation – Light blue = soft regulation – Pale blue = self-regulation. EPRS has also published a table outlining the legislation and/or other rules applicable to lobbying activities in each Member State. Main references Copeland N., Review of the European Transparency Register, EP Library Briefing (2013). Greenwood J. & Dreger J., 'The Transparency Register: A European vanguard of strong lobby regulation?', Interest Groups & Advocacy 2 (2013): pp. 139-162. Zibold F., Lobbying the EU institutions, EP Library Briefing (2013). Nettesheim M., Interest representatives' obligation to register in the Transparency Register: EU competences and commitments to fundamental rights, EP Policy Department C Study (2013). EPRS EU Transparency Register Transparency Unit Page 8 of 8 Endnotes 1 'In-house lobbyists' means companies or groups of companies (with or without legal status) carrying on in-house, for their own account, activities involving advocacy, lobbying, promotion, public affairs and relations with public authorities. 2 Council of Europe, doc. 11937, 5 June 2009, 'Lobbying in a democratic society (European code of conduct on lobbying)'. 3 M. Nettesheim, Interest representatives' obligation to register in the Transparency Register: EU competences and commitments to fundamental rights, EP Policy Department C Study (2013), p. 11. 4 Article 7, IIA. 5 J. Greenwood & J. Dreger 'The Transparency Register: A European vanguard of strong lobby regulation?', Interest Groups & Advocacy 2 (2013): 139–162, p. 3. 6 Cfr. Nettesheim, op.cit., p. 8. 7 The group was composed of Vice-President Rainer Wieland (EPP, Germany), Anni Podimata (S&D, Greece), Edward McMillan-Scott (ALDE, UK), Isabelle Durant (Greens/EFA, Belgium), Oldřich Vlasák (ECR, Czech Republic), Jiři Maštálka (GUE/NGL, Czech Republic) and EC Vice-President Maroš Šefčovič. 8 The revised code reads: 'The parties hereto consider that all interest representatives interacting with them, whether on a single occasion or more frequently, registered or not, should behave in conformity with this code of conduct.' 9 Rules on Public Hearings – Bureau Decision of 18 June 2003, last amended on 16 June 2014. PE 422.597. 10 See Commission Decisions of 25.11.2014 on the publication of information on meetings held between Members of the Commission and organisations or self-employed individuals, C(2014) 9051 final, and between Directors- General of the Commission and organisations or self-employed individuals, C(2014) 9048 final. 11 The remaining Member States – Belgium, Bulgaria, Cyprus, Estonia, Greece, Luxembourg, Malta, Portugal and Slovakia – have no legislation, code of conduct or register. Hungary did have legislation on lobbying and a register, but this was revoked in 2011. 12 In Italy, certain rules on lobbying exist at regional level, with Regione Toscana having a register of lobbyists. Disclaimer and Copyright The content of this document is the sole responsibility of the author and any opinions expressed therein do not necessarily represent the official position of the European Parliament. It is addressed to the Members and staff of the EP for their parliamentary work. 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