To See, or Not to See?

 

That is the question. Whether ‘tis nobler in the mind to suffer the bungs and sorrows of outrageous fortune seekers, or with a bold ruling end them? Badness in great ones must not unwatched go. 

The EU has many examples of absurd regulations, for example the Germans can’t label their jam as ‘marmalade’ in case it confuses the British (unless it contains at least 20% citrus). More serious are the anti-competitive rules introduced as a result of hidden, corporate lobbying in Brussels. We have commented on this before (see Shorties-8 Taking Back Control).

On July 4 EUObserver published an article by Alberto Alemanno* outlining the long-running controversies over corporate and other lobbying that subject EU decision-makers to a range of external pressures. Lobbying-1

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.”

Eight EU states have established transparency registers and others are considering doing so. But the EU itself cannot agree among the three senior institutions how to do this.

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.”EU Council

At present the EU’s transparency register is voluntary and the European Council does not participate. The European Commission has proposed making the register mandatory and including the Council. The register would impose requirements on both lobbyists and on decision-makers, who would be able to meet only registered lobbyists (see their press release).

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

This idea is being resisted not only by the Council but also by MEPs, who argue that they are, and should remain, free to meet whoever they wish. The author disagrees with this argument, “On the contrary, it protects their [MEPs’] ability to act in the public interest, by ensuring…that the public knows who they meet in their process of will-formation.”

Legal services-1He argues that it is questionable to seek the support of the EU’s legal service to say that the proposed Inter-Institutional Agreement (IIA) cannot be legally enforced because it restricts MEP’s freedom of action. 

Indeed, “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.”

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.”

Here we feel that the author is being over-optimistic. Transparency-1The EU’s undemocratic structure requires that voters cast their votes, not for an MEP, but for a party. Thus EU citizens are not directly represented in the EU Parliament. MEPs owe their positions, salaries and pensions to their party, with predictable results. A mandatory transparency register may perhaps slow the decline in trust but we know of no process that can ‘regain’ trust in a democratic process that doesn’t exist. Such a register would be an important measure in its own right but would not offset the missing democracy.

On July 11 EUObserver published another article on the same subject, by Daniel Freund**

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.”

Even some lobbyists support a mandatory lobbying register as proposed by the European Commission in its draft Inter-Institutional Agreement (IIA). Concerned that it wouldn’t get enough internal support to implement the full proposal, the Commission has suggested that in the interim the Commission, the Council and the Parliament should accept a rule that unregistered lobbyists should not get meetings with representatives from the three institutions and meetings that do take place should be minuted and those minutes published. Lobbying-5

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’.”

In the view of the EU’s lawyers, to impose a mandatory register would restrict MEPs right to act freely and independently and not under any instruction. This gives them excuse to avoid changing current practice. The author points out that when it suits them the EU institutions are willing to make decisions that clearly breach even treaty obligations, such as allowing Germany and France to exceed the deficit rules and overriding the no-bailout clause. Doing nothing

This strongly suggests that MEPs and Council members are keen to continue to be influenced by lobbyists, as long as such influence does not become public. Even the Commission, which proposes to change the rules, can be criticised for avoiding more fundamental reforms by claiming that the changes would make the EU more democratic, more accountable and more transparent.

*Alberto Alamanno 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)
**Daniel Freund is the Head of Advocacy for EU Integrity at Transparency International
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