Faculty of Economic, Social and Political

Sciences and Solvay Business School

Course: Public Policy Analysis
Dr. Mihnea Tanasescu

Lobbying in Europe:
The Non-Compulsory Character of
the European Transparency Register
Daan Vertongen

Master Political Science

2014-2015

I.

Introduction

When the Joint Transparency Register was launched in June 2011 in its drive towards more
participatory governance, Commissioner efovi, responsible for the inter-institutional
portfolio, declared the register would be de facto mandatory and would include new
information from registrants such as the number of lobbyists and the legislative proposals they
lobby on. The register secretariat would be strengthened to be very serious about verifying all
financial disclosures (Moss, 2011). Three years later, however, we notice that more than 30 per
cent of major corporations, consultancies and lobby groups have not subscribed to the register
yet and that there is a serious lack of qualitative information about the budget and working of
these lobby groups (Greenwood, 2011; ALTER-EU, 2013). The voluntary approach is therefore
questionable with regards to securing lobbying transparency.
In light of the recent appointment of the new European Commission, the question whether the
Transparency Register should be reformed to a mandatory register, emerged again. The
European Parliament voted in April 2014 in favour of a mandatory register and insists that the
Commission proposes such a reform by the end of 2016 at the latest. The whole process of
evaluating the ETR should be ended by 2017 (European Parliament, 2014). At the same time, the
newly elected Commission President Jean-Claude Juncker announced transparency would be
one of ten priorities for the next legislature (Juncker, 2014).
In light of this review, I would like to formulate some recommendations to the Commission, in
order to ensure greater transparency. I will first give the necessary background information,
define what transparency is, and where the ETR stands for. I will then sketch the history of the
initiative very briefly, as well as present the most important stakeholders involved in the process.
In the end, I will define possible further steps in the review process.
II.

Background

Transparency defined

The European Transparency Initiative, originally introduced by Commissioner Kallas in 2006,

contains three parts, of which lobby regulation is one. Interest representation or lobbying1
covers activities carried out with the objective of directly or indirectly influencing the
formulation of implementation of policy and the decision-making processes of the EU
institutions (JTRS, 2012; European Parliament, 2014). The underlying goal of the transparency
initiative, however, is to protect and advance public legitimacy through transparency (European
Commission, 2007; Greenwood, 2011). This system of transparency was particularly needed
given the extent of dependence by the EU upon its exchanges with organized civil society. In
order to secure their consent, the Commission is in need of policy-relevant information, citizensupport, and the backing of economically powerful actors (Klver, 2013). A regulatory
framework including engagement with civil society is particularly important for the EUs
democratic legitimacy, as some sort of compensation for structural weaknesses and the lack of
public space in its system of representative democracy. Interest groups are thereby believed to
bridge the gap between citizens and decision-makers since they can simultaneously improve the
efficiency of policy-making by giving information and expertise, and assure citizen participation
1

According to the Inter Institutional Agreement between the Commission and the EP with regard to the
establishment of a European Transparency Register (2011).

Daan Vertongen

(Kohler-Koch, 2007; Klver, 2013; Greenwood & Dreger, 2013). The 1992 Maastricht Treaty
already stated that transparency of the decision-making process strengthens the democratic
nature of the institutions and the publics confidence in the administration. Protocol 7 of the
Treaty of Amsterdam (1997) stipulated that the Commission should consult widely before
proposing legislation, and, wherever appropriate, publish consultation documents(Greenwood,
2011: 209). This is now constitutionalized through article 11 of the Lisbon Treaty on
Participatory Democracy. Improved access to information would therefore bring the public
closer to the institutions and would stimulate a more informed and involved debate on policy
matters. Transparency is therefore seen as a precondition for the operation of democratic
mechanisms (Harlow, 2002; Greenwood, 2011).
Influencing policy-making is most promising during the early stages of the policy-making
process (Klver, 2013). On top, the structural role for participatory democracy makes the EUs
systemic dependence upon organized civil society interests unusually high, relative to that of
other political systems. Because of the rather self-interested nature of these organizations, aiming
at specific advantages for specific groups in society, there is a particular urge for transparency,
ensured by legal standards for the behaviour of these lobbyists (Greenwood, 2011; European
Commission, 2014c). Several stakeholders, as well as the European Parliament itself stated that a
mandatory register is thereby the only solution to bring the maximum level of transparency and
create equal conditions for every interest group during the decision-making process (JTRS, 2012;
ALTER-EU, 2013; European Parliament, 2014).
From self-regulation to ETR

As the history of lobby-regulation goes back to the early 1990s, in this section I will give a very
brief overview of the regulatory measures taken by several EU institutions. Register opponents
mainly argue that there would be no need for regulations, since self-regulation would become the
norm and fixed legislation would be a barrier of free exchange of views (Greenwood, 2011).
Several actors established a set of self-regulatory measures during the 1990s. The main point of
criticism, however, concerns the absence of real sanctions and of structural independence from
the industry, leading to an inability to satisfy regulatory demands (Greenwood, 2011;
Greenwood & Dreger, 2013). The first self-regulatory scheme was operated in 1994 by the
public affairs practitioners (PAP), that evolved into the present European Public Affairs
Consultancy Association (EPACA). EPACA developed a code of conduct that members of the
association have to follow, and was thereby a predecessor for many to follow. The Society of
European Affairs Practitioners (SEAP), an organization with a much wider embrace of
membership, also established a code in the second part of the 1990s (Greenwood, 2011; SEAP,
2014).
However, beginning with the 2001 Regulation on Access to Documents2, an era of interinstitutional agreements emerged between the Commission and the Parliament. The Access to
Documents Regulation provides rights of access to most documents, supported by open access
internet-searchable document registers, and by facilitation mechanisms and vigorous
enforcement procedures (Greenwood, 2011). On top, both the Commission and the EP expressed
their concern through the inclusion of transparency measures in their Staff Regulations 3 (EC) and
2
3

http://www.europarl.europa.eu/RegData/PDF/r1049_en.pdf
http://ec.europa.eu/civil_service/docs/toc100_en.pdf

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the Rules of Procedures from the EP4 (cfr. art. 12). The EP further developed the PAPs code
into an incentive-based regulatory scheme. The incentive for registration was that those who
signed the code of conduct, received a 1-year permit to access the Parliaments buildings, instead
of needing an invitation. Like the Parliament scheme, the Commissions version is an
incentivized non-mandatory scheme, such as automatic early consultation alerts for nominated
interest areas, which has little impact in practice because all intentions to legislate are publicly
announced (Greenwood, 2011; Greenwood & Dreger, 2013).
While these two schemes remained in place, the European Commission developed a European
Transparency Initiative (ETI) as a concrete outcome of their White Paper on Governance (2001),
that resulted into the European Transparency Register (ETR), through which the principal
regulatory instruments shifted from self-regulation to regulation operated by EU institutions. The
announcement of the lobby regulation scheme in February 2005 by Commissioner Kallas was
therefore a turning point in legitimizing relations between EU institutions and civil
society/interest groups (Greenwood, 2011).
The ETR is a public database with disclosure for organizations, rather than individuals, that seek
to influence public policy. These organizations include NGOs, think tanks, lobby firms, etc. The
registration requires organizations to:

provide general information about their lobbying efforts and costs on an annual basis,
including the legislative dossiers they are following, budget for representation activities
and the number of people involved. Organizations must also declare any EU funding they
receive.
sign up the Code of Conduct5, which includes a commitment to provide accurate and upto-date information. Sanctions are foreseen for any breaches of this code, through a
complaint procedure which can lead to suspension or deletion from the register, with a
naming and shaming clause in worst case scenarios (Copeland, 2013).

For the technical operation and to improve the quality and the accuracy of the data in the
register, the EP and the Commission set up a Joint Transparency Secretariat (JTRS). This
Secretariat establishes guidelines for registrants, updates the register when necessary, does
reviews and handles complaints and alerts received (Copeland, 2013; JTRS, 2012, 2013). The
JTRS is also responsible for raising awareness of the activities of the register and thereby plays
an important role in the correctness and familiarity of the register (European Commission,
2014a).
All organizations and self-employed individuals engaged in EU policy-making are expected to
sign up the register. Organizations with certain activities, such as the provision of legal advice,
and social partners engaged in the Social Dialogue are nog required to sign (Copeland, 2013). On
the 13th of December 2014, there were 7212 persons and organizations included in the register.
4481 of them are professional lobbyist, in-house lobbyists (trade unions, professional
associations, etc.) and profit-oriented firms. More than 2000 other lobbyists represent academic
think tanks, NGOs and other regional or local representations (ALTER-EU, 2013; European
Commission, 2014a, 2014b).
4
5

http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=TOC
http://ec.europa.eu/transparencyregister/info/about-register/codeOfConduct.do?locale=en

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The Review Process

The EP resolution6 of 11 May 2011 already indicated several issues that required further
discussion or clarification. This resolution was followed by an inter-institutional agreement (IIA)
between the Commission and the EP on 23 June 2011 that officially set up the JTRS, as
described above. This agreement was recently reviewed by a high level group co-chaired by the
former Commission Vice-President efovi and the former EP Vice-President Wieland
(European Commission, 2014b). The result was a revised IIA on the 15th of April 2014, with a
review scheduled in 2017. The revised agreement includes a number of improvements and
clarifications including:

Clarifying the different sections, enabling registrants to select the correct category more
easily. Because regulation was stricter in some of the categories (e.g. financial
businesses), this was a source of abuse.
Strengthening the Code of Conduct by adding two new points.
Committing to introduce more incentives to encourage registration.
Explaining better the scope of covered activities thereby encouraging the registration of
law firms.

Figure 1 - Evolution ETR (European Commission, ETR Statistics 2014)

Apart from these smaller technical aspects, there are some more fundamental issues to discuss.
As already mentioned in the part about Transparency, there is a serious discussion going on
about the voluntary character of the register. At the date of 15 April 2014, an estimated 75% of
all relevant business-related entities and around 60% of NGOs operating in Brussels have
6

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-20110222+0+DOC+XML+V0//EN

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registered (European Commission, 2014b). On figure 1, there is an illustration of the

registrations per category. Therefore, the Commission estimates there are currently 32.500
interest representatives that are not included in the ETR. I will explain and argue my view on a
mandatory register in the section Next steps. Secondly, there is the question if the Council will
participate, although it maintains that it has little contact with lobbyists and NGOs, and that
member states are lobbied in national capitals rather than in Brussels. On top, with the presence
of Permanent Representations, it is not easy to decide which part of the Council could be covered
by the registers scope. Taking into account the limited scope of this briefing note, I will leave
this last question open for further research.
On 16 November 2014, the Commission announced a new public disclosure regime (starting on
1 December 2014) whereby Commissioners, their cabinet members and directors-general are
now obliged to publish on the Commissions website a record of their meetings with lobbyists.
Meetings can only be held with those people or organisations that have signed up to the EUs
transparency register. Commissioner Timmermans, responsible for better regulation and interinstitutional affairs, even declared to take further measures to make EU lobbying as transparent
as possible (Juncker, 2014; Gentili, 2014). The register knew a rush on registrations since the
launch of the new Commission working method. New registrations include several big-name
financial institutions such as HSBC Holdings, Goldman Sachs, the London Stock Exchange and
the Royal Bank of Scotland.
Stakeholders views

Apart from the EU institutions, there are some other important actors to mention:
ALTER-EU is a coalition of NGOs that campaigns for greater transparency in EU policymaking. They have identified several flaws in the current register, and recently wrote a letter to
the new Commission President Juncker with their recommendations in light of the review
process. Their most important concern is to make the register mandatory for all lobbyists who
earn or spend above a certain threshold. This mandatory register should include upgraded
disclosure requirements and stronger enforcement (Copeland, 2013; ALTER-EU, 2013).
EPACA, which represents public affairs consultancies, has called for more regulation and a more
level playing field for organizations involved. They also want to see the institutions enforce the
system better (Copeland, 2013). EPACA thus welcomed the EPs support of establishing a
mandatory register and looks forward to both the implementation and the strengthened incentives
for registrants (Public Affairs Networking, 2014).
SEAP has expressed its support for a voluntary register. Nevertheless it has called for clearer
guidelines on what is expected of registrants to avoid complaints about misinterpretations and as
a consequence of the lack of clearly defined concepts (Copeland, 2013). They believe the
register should be about the choice to do the right thing to be transparent and should not be
about coercion and compliance (Public Affairs Networking, 2014).

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III.

Next Steps: Policy Options

Mandatory of Voluntary?

There is still considerable debate going on whether to move to a mandatory system, similar to
those in the USA and Canada, or remain with the current voluntary one. The European
Parliament and several stakeholders are clearly in favour of such a mandatory system. However,
some see an obligation to register as a mean of coercion. I would recommend to make a
mandatory system for all organizations and individuals - influencing EU policy - that earn or
spend a certain amount (for instance 20.000) as a consequence of lobbying activities. Such a
system is indeed widely considered to be more effective because of the sanctions involved in
cases of breaches of the code of conduct. Further, it is of great importance to define all concepts
and terms in detail, to avoid misinterpretations of the code. Therefore, the Commission should
define what inappropriate behaviour is and make clear when this behaviour is infringed. On
top, sanctions should be clearly defined and should harm the organization or individual in
question.
To make a mandatory registration meaningful for all actors involved, there should be more
incentives included. The Commission has already set a good first step by encouraging their
stakeholders and expert group members to register, and to encourage their Commissioners and
civil servants to attend only events from registered organizations. This should, in my opinion,
become an obligation.
Role of the Joint Secretariat

To control and coordinate the register, the role of the JTRS should be strengthened. The JTRS
has no means to undertake routine checks of the registration entries because of a European
Commission preference to avoid overtones of accreditation, as well as a lack of resources to do
so (Greenwood & Dreger, 2013). The strengthening of the JTRS would automatically increase
the quality of the data included in the ETR. On top, problems with the categorization of certain
firms or other organizations would disappear as a consequence of the increased authority of the
JTRS. However, the JTRS is still judge and jury at the same time. I would therefore call for a
joint committee, that exists out of an equal number of MEPs and Commissioners (or
Commission cabinet members) to decide which sanction would be imposed.
IV.

References

ALTER-EU (2013) Rescue the Register! How to make EU lobby transparency credible and reliable.
http://www.alter-eu.org/sites/default/files/documents/Rescue_the_Register_report_25June2013.pdf,
accessed 10 December 2014.
Copeland, Nic (2013) Review of the European Transparency Register. Library of the European
Parliament, 5 p.
European Commission (2007) Follow-up of the Green Paper European Transparency Initiative.
http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/ai0003
_en.htm, accessed 11 December 2014.

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European

Commission

(2014a)

Transparency

Portal

JTRS.

http://ec.europa.eu/

transparencyregister/info/about-register/jointSecretariat.do?locale=en, accessed 10 December 2014.

European Commission (2014b) The revised Transparency Register: more information, more incentives,
tougher on those who break the rules. http://europa.eu/rapid/press-release_MEMO-14-302_en.htm,
accessed 9 December 2014.
European Commission (2014c) Transparency Portal - Civil Society. http://ec.europa.eu/transparency
/civil_society/index_en.htm, accessed 10 December 2014.
European Parliament (2014) Report on the modification of the interinstitutional agreement on the
transparency

register.

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML

+REPORT+A7-2014-0258+0+DOC+PDF+V0//NL, accessed 12 December 2014.

Gentili, Andrea (2014) Registration is not yet mandatory but transparency is. http://www.european
publicaffairs.eu/registration-is-not-yet-mandatory-but-transparency-is/, accessed 10 December 2014.
Greenwood, Justin & Dreger, Joanna (2013) The transparency Register: A European vanguard of strong
lobby regulation?. Interest Groups & Advocacy, Vol. 2, No. 2, p. 139-162.
Harlow, C. (2002) Accountability in the European Union. Oxford, Oxford University Press.
JTRS (2012) Annual Report on the operations of the Transparency Register 2012. http://www.europarl.
europa.eu/pdf/meps/transparency_2012.pdf, accessed 10 December 2014.
JTRS (2013) Annual Report on the operations of the Transparency Register 2013. http://www.europarl.
europa.eu/pdf/meps/transparency_2013.pdf, accessed 07 December 2014.
Juncker, Jean-Claude (2014) A new Start for Europe: My Agenda for Jobs, Growth, Fairness, and
Democratic Change. http://ec.europa.eu/priorities/docs/pg_en.pdf, accessed 10 December 2014.
Kluver, Heike (2013) Lobbying in the European Union. Oxford, Oxford University Press, 278 p.
Kohler-Koch, Beate & Barbara Finke (2007) The Institutional Shaping of EU-Society Relations: A
Contribution to Democracy via Participation?. Journal of Civil Society, Vol. 3, No. 3, p. 205-211.
Moss, Martha (2011) Joint Transparency Register - Open for business. Parliament Magazine, Vol 27, p.
2226.
Public

Affairs

Networking

(2014)

EP

votes

for

mandatory

register.

http://www.publicaffairsnetworking.com/news/european-parliament-votes-for-mandatory-transparencyregister, accessed 10 December 2014.

SEAP (2014) About SEAP. http://www.seap.be/history-objectives-of-seap/, accessed 14 December
2014.

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