Regulation of lobbying

General

Is lobbying self-regulated by the industry, or is it regulated by the government, legislature or an independent regulator? What are the regulator’s powers? Who may issue guidance on lobbying? What powers of investigation does the regulator have? What are the regulators’ or other officials’ powers to penalise violators?

On 20 May 2021, the European Parliament, the Council of the EU and the European Commission have adopted an inter-institutional agreement (IIA) on a ‘mandatory transparency register’. The IIA marks the latest stage in an evolution of the EU Transparency Register (EUTR) towards a more compelling framework for interest representation regarding EU institutions. The EUTR does not have a formal basis in EU treaties. Therefore, EU institutions have chosen to agree between themselves by means of IIAs to make certain activities of interest representation conditional upon registration. Although the registration itself remains voluntary, the EUTR is mandatory to the extent that interest representatives will not be able to carry out certain activities regarding EU institutions unless they are registered.

EU institutions recognise that engaging with stakeholders enhances the quality of decision-making. However, transparency and accountability in this dialogue are essential for maintaining the trust of the EU citizens in the legitimacy of the political, legislative and administrative processes of the EU.

The EUTR is managed by a joint transparency register secretariat (JTRS), in which the three EU institutions participate on equal footing. The JTRS publishes a regularly updated practical guide for registrants, the implementing guidelines, but it can by no means be considered a regulator. A new version of these implementing guidelines was published on 1 September 2021. The JTRS is led by a management board, consisting of the secretaries general of the three institutions.

Non-compliance with the scheme does not give rise to any sanctions other than removal from the register by the JTRS, with some eventual naming and shaming.

Definition

Is there a definition or other guidance as to what constitutes lobbying?

One of the distinctive features of the EU Transparency Register is that it follows an activity-based approach and has a very broad definition of the activities that it covers.

The IIA defines these covered activities as any activities carried out by interest representatives with the objective of influencing EU policy or decision-making.

The IIA further clarifies that the following activities are, for example, included in its scope:

  • organising or participating in meetings, conferences or events, as well as engaging in any similar contacts with EU institutions;
  • contributing to or participating in consultations, hearings or other similar initiatives;
  • organising communication campaigns, platforms, networks and grassroots initiatives; and
  • preparing or commissioning policy and position papers, amendments, opinion polls and surveys, open letters and other communication or information material, and commissioning and carrying out research.

 

The IIA excludes the following legal and other professional advice from covered activities:

  • advice that consists of representing clients in the context of a conciliation or mediation procedure aimed at preventing a dispute from being brought before a judicial or administrative body;
  • advice on the compliance of a client’s activities with the law; and
  • advice that consists of representing clients and safeguarding their fundamental or procedural rights, and includes activities carried out by lawyers or by any other professionals involved in representing clients and safeguarding their fundamental or procedural rights.

 

However, legal or other professional advice is included to the extent it is intended to influence decision makers either by means of providing argumentation and drafting or by providing strategic advice.

The following are generally excluded from covered activities:

  • submissions as a party or a third party in the framework of a legal or administrative procedure established by EU law and submissions based on a contractual relationship with any of the signatory institutions or based on a grant agreement financed by EU funds;
  • activities of the social partners as participants in the social dialogue (trade unions, employers' associations, etc);
  • activities in response to direct, individual and specific requests from any of EU institutions, their representatives or staff , such as ad hoc or regular requests for factual information, data or expertise;
  • activities carried out by natural persons acting in a strictly personal capacity; and
  • spontaneous meetings, meetings of a purely private or social character and meetings taking place in the context of an administrative procedure established by the Treaty on the EU or Treaty on the Functioning of the EU or legal acts of the EU.
Registration and other disclosure

Is there voluntary or mandatory registration of lobbyists? How else is lobbying disclosed?

Registration with the EUTR is in principle voluntary, but incentives to register have steadily increased over the past years. Therefore, it has become increasingly difficult to practise as a lobbyist without being registered.

The principal consequence of registration is the obligation to enter information into the online database where it can be viewed by the public. Since July 2021, entities’ registrations are verified before they are posted online. This must improve the quality and reliability of information in the EUTR. There is also a system of alerts and complaints to tackle inaccurate registrations.

Incentives to register with the EUTR had gradually increased under the prior scheme. Under the currently applicable IIA, a distinction is made between ‘conditionality measures’ and ‘complementary transparency measures’. EU institutions may adopt conditionality measures when they decide to make certain interest representation activities subject to prior registration in the EUTR. Registration thereby becomes a prerequisite for carrying out the activity in question. EU institutions may also adopt complementary transparency measures that are mere incentives for registration.

Most importantly, since 2014, interest representatives must register to be able to meet with the European Commission’s high-level decision makers (commissioners, members of Cabinet and directors general). Civil servants at lower levels within the European Commission are generally advised to check whether interest representatives are registered before accepting an invitation to a meeting or to an event. Registration is also required to be appointed to certain expert groups.

Since September 2021, the Rules of Procedure of the European Parliament require its members to ‘adopt the systematic practice’ of only meeting interest representatives that have registered in the EUTR. 

Since July 2021, interest representatives must also register to be able to attend meetings with the Secretary-General and Directors General of the General Secretariat of the Council of the European Union.

Complementary transparency measures include access passes to the premises of the European Parliament and the General Secretariat of the Council of the European Union and eligibility to be a speaker at public hearings held by parliamentary committees. Registrants are also kept informed of any upcoming legislative initiatives.

Since 1 December 2014, the European Commission’s high-level decision makers (commissioners, members of Cabinet and directors general) must publish lists of all meetings that they have with interest representatives. Since 31 January 2019, rapporteurs, shadow rapporteurs and committee chairs within the Parliament must also publish, for each rapport, the list of all scheduled meetings with interest representatives. Since September 2021, individual members of the European Parliament must also make these publications.

Activities subject to disclosure or registration

What communications must be disclosed or registered?

The disclosures that registrants must make differ according to the category they belong to, whether professional lobbying consultants, in-house lobbyists or other interest groups. 

All registrants must provide information on their organisation, goals, fields of interest and which of their activities are covered by the EUTR. Furthermore, they must indicate the number of full-time equivalents involved in activities covered by the EUTR, their memberships and information on their members.

All registrants must furthermore reveal the amount of EU funding that they receive and the annual amount spent on activities covered by the EUTR. The latter includes, among other things, any staff, representation and administrative costs as well as fees paid to lobbyists and subcontractors and membership fees.

Professional consultants, law firms and self-employed consultants must make more detailed disclosures. They must, in addition to the above, provide turnover figures (according to predefined thresholds) for representation activities per client, and they must also list the names of these clients. The clients themselves are also expected to register.

Not-for-profit organisations must provide information on their sources of funding.

Registrants are expected to update the information on an annual basis.

Under the EU Transparency Register scheme, there is no obligation for registrants to actively disclose individual communications with officials. However, the members of the European Commission, their Cabinet members and directors general are expected to disclose all meetings held with lobbyists on any matter related to EU policymaking and implementation. Since 24 July 2018, a list of all such registered meetings is automatically reproduced on each registrant’s EUTR page. Similarly, individual members of the European Parliament must publish online all meetings with interest representatives. Rapporteurs, shadow rapporteurs and committee chairs must also publish, for each rapport, the list of all scheduled meetings with interest representatives.

Entities and persons subject to lobbying rules

Which entities and persons are caught by the disclosure rules?

The EUTR is addressed to professional consultancies, law firms, self-employed consultants, in-house lobbyists, and trade, business and professional associations. Think tanks, research and academic institutions, non-governmental organisations, organisations representing local, regional and municipal authorities, and some other public or mixed entities are also expected to register. However, public authorities of member states, including their permanent representations and embassies are not eligible for registration.

Although churches and public authorities are not eligible for registration, organisations representing them are not. Individuals following EU law or policy developments or exercising their rights are not eligible for registration.

There are no minimum thresholds for registration.

There is a difference between entities and persons lobbying on behalf of themselves and those that lobby for third parties. Although the EUTR is in principle addressed to both groups, the latter have additional disclosure obligations in relation to the activities they perform for their clients.

Typical activities of law firms are expressly excluded if they remain within the framework of specific legal or administrative procedures or if they relate to advice on the current state of the law or compliance with it. However, lawyers cannot rely on client confidentiality in relation to those activities that are covered by the EUTR. This has led to sharp criticism from European bar associations. However, a significant number of law firms have chosen to register and be transparent about their lobbying activities.

Lobbyist details

What information must be registered or otherwise disclosed regarding lobbyists and the entities and persons they act for? Who has responsibility for registering the information?

The information that the registrants must provide is divided into three categories: general information, information on links to EU institutions and financial information.

General information concerns the contact details and the characteristics of the organisation, such as the form of the entity, its goals, its geographical level of engagement, its fields of interest and which of its activities are covered by the EUTR. Furthermore, they must indicate the number of full-time equivalents involved in those activities and their memberships, as well as any affiliation of the organisation with relevant networks and associations.

Information on links to EU institutions consists of, inter alia, EU legislative proposals, policies or initiatives targeted by the covered activities, membership of Commission expert groups and other EU-supported platforms, and other unofficial grouping activities organised on the Parliament’s premises.

All registrants must furthermore reveal the amount and source of EU funding that they receive to cover their operation costs and an estimate of the annual amount spent on activities covered by the EUTR, such as staff costs, office and administrative expenses, fees for consultants and subcontractors, the cost of media and public affairs campaigns, and membership fees in trade associations and similar lobbying entities. Professional consultants, law firms and self-employed consultants must, in addition to the above, also provide turnover figures (according to predefined thresholds) for representation activities per client, and they must also list the names of these clients.

A list of all meetings with commissioners, members of their Cabinet and director generals is automatically generated by the EUTR.

Content of reports

When must reports on lobbying activities be submitted, and what must they include?

Registration occurs online, and a registrant’s information will be included in a searchable online database. All of a registrant’s information must be updated on an annual basis, effectively instituting an annual reporting obligation. This information includes the estimate of annual costs and, for lobbyists lobbying on behalf of third parties, turnover and client information.

Financing of the registration regime

How is the registration system funded?

There is no registration fee. The three signatory institutions co-finance the scheme, ensuring the necessary resources.

Public access to lobbying registers and reports

Is access to registry information and to reports available to the public?

A registrant’s information will be included in a searchable online database, accessible to the public. 

The JTRS monitors the accuracy of the information provided by registrants by verifying the quality of the data of new registrations and by performing regular checks. When the JTRS finds potential inconsistencies, errors or omissions, it will contact the registrant requesting an update or an explanation.

There is a system of ‘alerts’ whereby third parties can notify the JTRS of potential factual inaccuracies or ‘complaints’ whereby third parties can notify the JTRS of potential breaches of the Code of Conduct. The JTRS may also carry out investigations at its own initiative.

Code of conduct

Is there a code of conduct that applies to lobbyists and their practice?

Registration also implies a commitment to comply with the Code of Conduct, a one-page document with some essential ethical principles laid out in Annex I of the IIA of 20 May 2021. Most importantly, the Code requires that interest representatives identify themselves, disclose who they represent and declare the interests and objectives they promote. Registrants may also not try to obtain information dishonestly, exert undue pressure, abuse their registration or damage the reputation of the register. Furthermore, they must allow EU officials and former officials to respect the rules and standards that are applicable to them, such as the rules on conflicts of interests and revolving doors.

Media

Are there restrictions in broadcast and press regulation that limit commercial interests’ ability to use the media to influence public policy outcomes?

Not applicable. See www.lexology.com/gtdt.