Who to blame when you can't blame Brussels?

But who do you blame when you cannot blame Brussels because you ‘are’ Brussels? The current negotiations for a mandatory EU lobbying register provide an interesting answer to that question.

Let’s have a quick look at what these negotiations entail.

For years, citizens have asked for more transparency and better rules around lobbying in Brussels. Millions of citizens have protested, petitioned or otherwise voiced their concerns over the lack of transparency and the hidden influence of corporate lobbyists in Brussels.

Rightly or wrongly, it has played an important role in almost any major debate, be it on TTIP, Brexit or ongoing attacks by eurosceptics. Lobbyists themselves strongly support stricter rules and more transparency.

In this context, the European Commission proposed a "mandatory lobbying register" almost one year ago.

A quick fix

Fearing that a legislative proposal would not find the necessary majorities, the EU commission suggested a quick fix based on an agreement between the three decision-making institutions: the European Parliament, Council of the EU, where member states sit, and the commission.

The mechanism to make the register mandatory was that the institutions would agree to refuse access to lobbyists that are not willing to register.

Indeed, the EU commission of current president Jean-Claude Juncker made an important step in that direction in 2014 by introducing rules for the commissioners and their closest advisers.

The basic idea now was to extend this rule of “no registration, no meeting” and the publication of those meetings by the commission to the council and parliament. The council has so far abstained even from the voluntary register.

Parliament has traditionally been the strongest supporter of a mandatory register. But both institutions, the council and parliament, have been discussing their position on the proposal and things are not looking too promising.

The council knows that some progress is necessary and that it needs to be more transparent. When it comes to the details, however, its reservations persist.

The main lobby targets in the council are the representations of member states, governments back in the capitals across Europe, and the 6-month rotating presidency, in particular.

The new rules covering anything beyond the council secretariat, which is probably the least lobbied part of the EU institutions, does not seem to find support. Many point to the fact that everything beyond the secretariat falls under national competence and would have to be done by member states.

The EU parliament is ambitious in asking for more transparency of the other institutions.

Applying the “no registration, no meeting” rule to MEPs, however, seems to pose problems as the chief negotiators outlined in an op-ed for EUobserver.

In December last year a majority of MEPs voted to introduce the mandatory publication of lobby meetings for all MEPs.

Unfortunately, however, the majority was not strong enough to change the parliament’s internal rules. Now its legal service has issued an opinion which indicates that both preventing meetings with unregistered lobbyists, or making publication of meetings mandatory, would be in violation of the MEPs' so-called "free mandate".

Bring in the lawyers

So, when citizens strongly support lobbying transparency, when Brussels lobbyists are all in favour of a better register, but your EU institution does not seem to want to create the dearly-needed mandatory EU lobby register, who do you blame? The lawyers.

The legal services of the EU parliament and council have come up with "national competence" and "free mandate" excuses, which prevent any meaningful progress.

Parliament’s legal analysis conveniently finds that such transparency rules should indeed apply to assistants, political advisers and civil servants, but not the main target of lobbying: the MEPs themselves.

In their view, it might somehow hinder them from exercising their mandate freely.

But doubts have already been cast on the legal reasoning of the institutions. If these assessments are maintained, and both MEPs and most of the council exclude themselves from any lobby transparency rules, the commission’s plan for a ‘quick fix’ will have failed.

In both cases – national politicians blaming Brussels and Brussels politicians blaming legal challenges – what is really is at hand is a lack of political will and leadership.

We have seen many examples over the last years where even contradicting treaty rules did not prevent or slow down decisions that had full political backing, be it the “no bailout clause” or the setting up of an entire crisis-response institutional structure outside the EU treaties.

The mandatory lobbying register was the main proposal of the Juncker commission to make the EU more democratic, more accountable and more transparent. This important project must not fail.

Rather than deploying lawyers to find obstacles, we need politicians to lead the way to more lobbying transparency. Under their guidance, lawyers will find a way to word the new regime in a way that will not contradict existing rules.

Daniel Freund is the Head of Advocacy for EU Integrity at Transparency International EU.