Wednesday

26th Jul 2017

Opinion

Lobbying transparency enhances MEPs' freedom

  • After years of fierce debate, the EU still lacks a proper regulation of lobbying. (Photo: Daniel Huizinga)

As the EU continues to take decisions affecting millions of European citizens, there is a growing expectation that it must ensure full transparency for the ones shaping those decisions, by regulating lobbying.

Amid corruption scandals and instances of revolving doors - where politicians take high private sector salaries after leaving office - there has been a realisation that decision-makers are subject to a panoply of external pressures that shape their political behaviour.

If lobbying is increasingly favoured today, insofar as it offers anyone the possibility to inform and shape decision-making, its social acceptance remains low.

In this context of increasing institutionalisation - yet of growing suspicion - citizens and civil society organisations, and also professional lobbyists, call for the EU to adopt strict lobbying transparency regulation.

Only eight EU member states have established transparency registries to keep track of interest representatives lobbying decision-making, but a number of other states are considering embracing such a model.

Yet, after years of fierce debate, the EU still lacks a proper regulation of lobbying.

As a result, citizens do not know what interests are being represented at EU level, who represents them, on whose behalf and what budgets are being mobilised to persuade our elected representatives to vote in favour or against a given policy or decision.

That is exactly what lobbying regulation is about: to mandate disclosure, so as to foster trust in the political process. Isn’t that what the EU is in desperate need of?

Since 2012, individuals and organisations who try to influence the EU policy process can enlist on a transparency register. Yet, this registration is only voluntary and applies to only two - out of the three - institutions involved in EU decision-making (the European Commission and European Parliament).

To remedy those flaws, the EU commission has proposed an Inter-Institutional Agreement (IIA) with the dual aim of making the registration mandatory in nature and extending it to the Council of the European Union, where representatives of member states sit, as well as other EU bodies.

To achieve these objectives, the new regime does not only impose requirements on lobbyists, but also on decision-makers themselves, who can meet stakeholders provided they have registered.

Takes two to tango

This provision suggests a paradigmatic shift in the EU approach to lobbying regulation insofar as – as the saying goes – "it takes two to tango".

In other words, one cannot realistically regulate lobbying by tackling only one side of the equation (lobbying actor) and not the other one (the lobbying target).

This is all the more so when citizens expect their decision-makers to be more open, not only in their political behaviour (i.e. how they voted), but also in their will-formation (i.e. who and what led them to that vote).

Aren’t we all entitled to know which lobbyists decision-makers have met before they cast a vote on our behalf?

Historically, it has been the Council and its representatives from the member states who have resisted the idea, but now the EU parliament is home to the strongest opposition to such a reform.

The argument raised by the parliament's responsible lead negotiators, Sylvie Guillaume and Danuta Huebner, in their opinion article published on EUobserver, is that it is their "free and independent mandate" to contest such a restriction on MEPs’ ability to meet unregistered lobbyists.

While it is true that MEPs must not be bound by any instructions, their freedom cannot be conceived of in absolute terms. This is more so the case when the restriction is justified by another equally important, Treaty-sanctioned goal: the openness of EU decision-making.

Seen from this perspective, requiring MEPs only to meet with lobbyists who have entered the Transparency Register does not jeopardise the free mandate of MEPs, who remain free not only to meet any interest representative they want, provided they fill out a form, but also to seek information proactively.

On the contrary, it protects their ability to act in the public interest, by ensuring – in a proportional way – that the public knows who they meet in their process of will-formation.

At best, it appears legally questionable for Guillaume and Huebner, with the support of the legal service of the EU parliament, to rely on largely formalistic arguments to prove the impossibility of the IIA to introduce such mandatory requirements.

Escaping a new zeitgeist

At worst, it is an attempt to escape a new Zeitgeist, which citizens seem to feel is more unrelenting than their elected representatives do.

As I had the chance to analyse in a legal opinion, the proposed IIA intends to develop and complement obligations of primary law, such as the duty of openness and transparency that already govern the Statute for MEPs and its interpretation, without compromising the substantive rights and obligations provided by the former.

These obligations of primary law already put limits on the freedom and the independence of MEPs, enshrined in Article 2 (1) of the Statute, as well as that of other internal actors.

Additionally, the proposed mandatory Transparency Register also allows Members to easily recognise the identity of interest representatives they meet, thus enhancing the MEP's ability to inform themselves and eventually act freely.

In other words, the "freedom of the mandate" is actually enhanced – not weakened – by better lobbying transparency.

Lobbying regulations, including transparency registries, are no panacea. It would therefore be naive to expect any set of lobbying rules to eradicate undue influence.

Rules are often made to be circumvented. Yet, like any other form of regulation, lobbying transparency rules trigger subtler effects on human conduct.

As such, they carry an important habit-forming effect: they set a new social standard against which to judge human and political behaviour; a new standard to strive for in the future.

There has never been a better time to capitalise on the elected representatives' heightened sensibility to the electors’ expectations. That is where the most powerful potential of lobbying regulations and in particular, lobbying registries, lies today.

Lobby transparency rules may change the defaults. The new normal will be to know who your politician has met before casting a vote on your behalf.

This may clear much suspicion surrounding political action today and contribute to regaining the trust in the democratic process.

Alberto Alemanno is Jean Monnet Professor of EU Law at HEC Paris and author of ‘Lobbying for Change: Find Your Voice to Create a Better Society’, Iconbooks, 2017.

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The European Parliament is currently fine-tuning its negotiating position on the Commission's proposal from September 2016 for a mandatory transparency register. Sadly, so far it seems to prefer empty statements to bold action.

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Big lobbying groups representing lawyer bars, consultants, and EU public affairs professionals all support plans to set up a mandatory joint lobbying register in Brussels.

MEPs agree crackdown on lobbying

Starting next year, MEPs will no longer be able to work as paid lobbyists trying to influence the European Parliament.

Who to blame when you can't blame Brussels?

Lawyers at the European Parliament and the Council of the EU are finding ways to work around renewed transparency initiatives. The lack of leadership and political will makes the task for greater transparency even more difficult.

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