Tougher Integrity Rules for the European Parliament
In 2011, several MEPs were caught on camera offering to propose amendments to European legislation in exchange for 100,000 EUR. “Of course, I am a lobbyist,” one MEP stated when agreeing to the bribe offer by journalists posing as lobbyists during the sting operation. Such flagrant corruption at the most influential legislator globally did not remain an isolated incident: In December 2022, the Vice-President of the European Parliament was allegedly caught with bags of cash around her, at least 750,000 EUR in total, allegedly paid by Morocco and Qatar. European politicians were quick to reaffirm the importance of strict integrity measures at the Parliament. Going through the demands of various stakeholders, three points are striking:
- Publishing lobbying contacts with third-country diplomats or governments, while being an understandable demand in light of the recent scandal, would be a globally unprecedented step.
- The calls for “tougher” sanctioning fail to recognize that the EU has no competence for adopting any significant sanctions on lobbyists.
- Surprisingly, the option of toughening the outstandingly weak disclosure system of finances and interests of MEPs does not seem to be on the table.
Should foreign governments influence parliament at all?
At least 23 countries worldwide have a specific statutory or sub-statutory regulation on lobbying. None of these, to the best of my knowledge, applies to representatives of foreign governments. On the contrary: Explicit exceptions are the standard for “public officials in the course of their duty” or for “the pursuit of foreign policy interests in diplomatic or consular dealings”.1) At first glance, this exception seems surprising. Why should questionable stakeholders such as Azerbaijan or Qatar have the privilege of unfettered lobbying, while Facebook or Philipp Morris have to register and disclose? The answer lies probably in the overly uniform approach of most lobbying laws, covering executive and legislative activities by the same standards, while in fact, both are different.
In the executive branch, contacts between domestic and foreign officials are a necessary daily routine. It would be practically impossible to register or disclose the thousands of weekly contacts between numerous ministries and agencies on all levels of hierarchy, and with all sorts of countries (and international organisations). Furthermore, many, if not most of these contacts would be pointless if they were to be disclosed to the public: preparing future cross-border data exchange with banks and tax authorities in Switzerland, to name but one example, or protecting maritime traffic around the Horn of Africa, or preparations for a possible official visit by Taiwan’s President. At the same time, information would not be of much use, as it is a matter of course that prosecutors cooperate on criminal cases, and health ministries coordinate measures in a pandemic.
For legislation, the situation is different: In contrast to governments, parliaments are not mandated by the constitution and international law to represent the state towards foreign governments. Parliamentarians and legislation shall represent the will and interests of the domestic electorate, not the will of foreign governments (see for example Art. 20 para. 2 and Art. 38 para. 1 German Constitution). Allowing foreign governments to influence domestic legislation, for example through political donations, would erode national sovereignty. Thus, prohibiting foreign governments to donate to domestic political parties (or parliamentary factions) is an international standard (OSCE/ODIHR/Venice Commission Guidelines on Political Parties at no. 172 “Contributions from foreign sources are generally prohibited”). Similarly problematic is legislative lobbying by foreign governments. In light of this, the current scandal at the European Parliament might trigger an overdue discussion: Foreign officials should be either prohibited to lobby on legislation or be subject to rigorous disclosure rules.
No competence, no sanctions
It takes two to tango (or to lobby): a public official and a lobbyist. International organisations such as the Council of Europe, the OECD, or the United Nations have the power to draw some boundaries for their own representatives and staff when coming into contact with lobbyists. However, they have minimal power to impose binding obligations on lobbyists: They can deny lobbyists access to their premises or publish violations, as is foreseen in the European Union’s “Interinstitutional Agreement of 20 May 2021 on a mandatory transparency register”, Annex III no. 8 (and Annex II no. II lit. d footnote 3). Otherwise, the regulatory power of international organisations is limited: They have no regulatory competence for any administrative or criminal fines, and they cannot even impose obligations on lobbyists outside their premises.
As for the EU, it could aim for sanctions in national criminal or administrative legislation, based on future EU legislation on lobbying transparency at EU institutions (for example based on Article 298 of the Treaty on the Functioning of the European Union (“In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration.”). Or, member states include “their” MEPs in national legislation on lobbying. So far, Ireland is the only country worldwide that has included at least some representatives of international organisations in the scope of its lobbying law: “members of the European Parliament for constituencies in the State” of Ireland (Section 6.1.c). Still, this provision misses several constellations: If an Irish lobbyist contacts an official of the European Commission or a member of the European Parliament for a constituency from outside Ireland, no lobbying regulation applies. Plus: Only about a quarter of EU-member states so far have any statutory lobbying regulation at all (AT, DE, FR, IR, LT, PL, SL).
Obviously, lobbying an international organisation often occurs outside the premises of the organisation itself. Thus, lobbyists can influence representatives within the premises of international organisations without real, deterring sanctions in case of any misconduct, or contact them outside the premises without even any obligations having a binding effect on them.
A feasibility study for the Council of Europe preparing the adoption of the “recommendation on the legal regulation of lobbying activities” identified this problem of international organisations already in 2014 (at 4.6 lit. f) and proposed an international standard according to which “obligations and sanctions under national laws targeting transparency and ethical conduct of lobbyists should extend to lobbying of international organisations” (at B.8). Unfortunately, the recommendation adopted by the Council of Europe in 2017 remains silent on lobbying of international organisations – a rather awkward achievement for an international organisation caught in an undignified lobbying and bribery scandal (“caviar diplomacy”), whose Parliamentary Assembly received a scathing integrity review by GRECO in 2017. 2)
How much disclosure fits on a fig leaf?
Compared to advanced systems in member states such as France, Lithuania, Poland, or Romania, the system of publicly disclosing personal and financial interests of MEPs (and other EU politicians) is strikingly weak. First, the European Parliament represents the interests of all European citizens. Therefore, publicly disclosing personal and financial interests requires that the European public can actually understand the disclosures. If one looks up the respective disclosures of the (now former) Vice-President on the European Parliament’s website, one finds links to pdf documents in the Greek language (only). This is an amazingly low standard, given the multilingualism principle of the EU and given how important (and transparent) integrity of its legislators should be. Second, even if one understands Greek, the disclosures contain superficial information at best. The leading NGO in Europe for access to information deplored already in 2012 the poor state of financial disclosure at the European Parliament. Nonetheless, recommendations such as for a “central searchable online database”; a “translation of declarations into at least one ‘procedural language’”; and for “proactive monitoring” of the declarations fell on deaf ears. At the same time, the ECJ, in the summer 2022, followed the ECtHR and confirmed that rigorous systems of public financial disclosure are in principle in line with the right to privacy: Thus, if the European Parliament was serious about stricter disclosure of finances and interests, it would have the backing of the ECJ.
|↑1||Austrian Lobbying Act, § 2; see also the exceptions in the laws in Canada, Section 4 para. 1 lit. e and f, for “diplomatic agents, consular officers or official representatives in Canada of a foreign government”; Germany, § 2 para. 2 no. 6, for “public offices or mandates”, and para. 3 no. 5, for “diplomatic or consular activities”; Ireland, Section 5.5.b-c, for “communications by or on behalf of a country or territory”|
|↑2||Recommendation vi of that review remains largely unaddressed in the new code of conduct of 2022: “to introduce a robust and consistent set of rules for PACE members on how to engage in relations with lobbyists and other third parties seeking to influence the parliamentary process”|
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