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EU Lobbying, Ethics and Transparency: “Do’s and Don’ts” Please note that the following transcript has been edited to make reading easier and may slightly differ from what was said in the webinar recording. Disclaimer: We aim to ensure a high level of accuracy, but the webinar and the transcript are for information purposes only and they cannot be considered as legally binding.

Speaker: Robert Mack (moderator: András Baneth) Robert Mack is the Chairman of B Burson-Marsteller’s EMEA Public Affairs practice. practice As you might be familiar with Burson-Marsteller, Marsteller, they are one of the largest and the most professional public affairs companies in Brussels dealing with a large scope of activities and policies in the EU arena. are I am András Baneth, Director off the European Training Academy. We run training courses on EU decision-making, making, EU regulatory affairs and related topics. (There’s an important mportant seminar coming up soon on Impact Assessment so if you are interested in any of these topics, topics make sure to check our site.) Here I would pass the word to Robert and he will actually go into the presentation itself. Please enjoy, take notes and feel free to ask questions. Thank you.

Brussels and Transparency Thank you for your ur interest in this topic today and for taking the time to be with us during the remainder of the hour. You should see on your screen now the sort of topics that we are going g to be covering today. I’m going to start by trying to give a little bit of historical background to how Brussels has becomee so focused on transparency which, to be very clear on the outside, I think is a very, very good thing. We will look a little bit into Institutional Rules on Lobbying and particularly that focuses notably on the EU Lobbying register. I am not go going to go into nuts and bolts of how the register works but I will talk a little bit about the principle principles behind it. And then we will get into Institutional Codes of Conduct because they set requirements requirement on the behaviour of politicians and officials inside the institutions which, of course, impacts i what we do as lobbyists. And then a brief word on the point about Access to Documents and then trying to wrap up some conclusions for or all of us practitioners practitioners.

Mr. Santer, a French lady and her dentist: the story starts in 1999 Our story starts maybe in 1999 with the Santer Commission which had to resign over issues and allegations of improper behaviour behaviour. It all had to do with a man from Luxembourg, urg, Mr. Santer, a French woman, the Commissioner Edith Cresson and her dentist. I won’t go into the

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


background but it basically had to do with accusations of what can be called Nepotism or giving contracts and business to close allies who shoul shouldn’t have that kind of thing. The important point is that it triggered a whole set of activities and reforms inside the EU institutions to ensure that they operate much more professionally and transparently today.

Public service ethics since 1999 You see on the next slide the kinds of things that have been done since 1999 1999:: during this period there has been an increased focus on ethical issues. There’s been work on access to documents; there have been a number of databases on consultative bodies and expert exp groups which have been put out and indeed even in 1999, they established OLAF, the anti-fraud anti office which has become increasingly well known. They have done a number of things to improve stakeholder consultations consultation and impact assessments. This is the work that goes on today in fact as the EU and the institutions continue to try to make sure that they improve the way they consult with stakeholders about their policy. And of course this is something we’ll come on too a little bit later, Codes related to behaviour of Commission staff.

Stakeholder consultations But before I go forth, I think it is important to mention in particularly this idea of stakeholder consultation because what we are talking about here, lobbying, is a way by which EU institutions gain in information from a wide range of external stakeholders stakeholders.. They T need that information to make good policy decisions and indeed the Treaty on European Union obliges (I think it is article 11 if memory serves me well)) obliges the institutions to seek the input of stakeholders when they form policy on the basis of having an understanding of how it may impact a wide range of stakeholders. In general, what we are talking about here today is the ethical standards of lobb obbying. It’s a good thing for policy development and for the democratic system and it needs a strong rule-based rule system.

Institutional Rules on Lobbying What I’d like to do now is take a few minutes to talk about the Institutional Rules on Lobbying. If you see ee on the slide, in November 2005, the European Commission launched what has become known as the European Transparency Initiative Initiative.. What they decided to do is to focus really on three areas. 1. One was further information on the management of community funds, so making it very clear how community funds are spent. 2. The second was professional ethics within the EU institutions and th the one we’ll come back to a little bit later today.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


3. The third was the framework rules for lobbyists. That’s really where we are going to start now.

The European Transparency Initiative The European Transparency Initiative led to the establishment establishment, in June 2008, of what became known as the Commission’s Register of Interest Representatives. There are few points to make about this. This is basically a process of voluntary registration but it was widely encouraged by the Commission. While it treats lobbyists in different categories, they have slightly different steps they have to go through to register, different kinds of information, different ways to share that information.

The definition of "lobbying" The common theme between all the differ different ent categories is the importance of knowing who is lobbying and the level of resource resources that are being deployed. The he nuts and bolts are a little different for different categories and the point of today is not to go into the nuts and bolts of how to register, but it is important to understand that there’s a very wide definition of lobbying. So basically lobbying obbying has been defined as "actions actions initiated with the aim of influencing European policy formation or decision making processes processes", irrespective of the communication channel or medium it is using. So the Commission tried to cast the net very wide. For those of you who have followed this debate closely, you maybe recogni recognise that definition is the newer one that was modified after some updates following the first ye year of the implementation of the register, so I did want to use the current definition ion as it was clarified.

Code of conduct of EU lobbyists When participants in the register join join, they do have to agree to the Code of Conduct C that says that they will behave ethically. W We’ll come back to the Code of Conduct onduct in a minute. The he other important point to remember of the Registry is that the rules including that very wide definition of "what is lobbying" have been intentionally vague. This is I think has caused since then differences on how individual lobbyist go about registration, which can be confusing. One of things I always believe in very strongly, and Burson-Marsteller has actually always been in favour of, is the mandatory register register. But ut in addition to that, I think one of the reasons for a mandatory register is that it make makes sure the rules are very clear, they applied equally and fairly to all people and everybody has to comply with them. That’s not really where we are today and again that could be a debate for another day.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


Lobbying and the European Parliamen Parliament The other point to make is that on the side of the European Parliament, going back as far as 1996, they had a rule about dealing with lobbyist lobbyists and in fact the EP therefore was pretty far ahead of the game when you compared them to the Commission. Their heir goal was to really have a very open Parliament arliament where they would let people into the Parliament, let them be able to observe the Parliament’s committees and other business and keep a list of the people who choose to avail themselves of that right of access ac to the Parliament. Then, in exchange for being able to do that, they would have to comply with some rules about basic principles,, about good ethical interaction with the Institution.

Joint Transparency Register Then in June 2011, we got to where we aare re basically today where there is an establishment of a Joint Transparency Register between both the Commission and the European Parliament so it applies collectively to the two Institutions. Registration is required for access to the European Parliament Parliament,, a badge for going into the European Parliament so in this sense what was once considered a voluntary register has been considered to become quasi mandatory in the sense that in order to have access to the European Parliament on a regular basis, a badge tthat hat allows you the ability to go in more or less when you want and you don’t have to sign in each time. You have to be registered to have that. It also did a number of things to address problems from the old register. Again, I think it may be a little bit too specific for this discuss discussion today but it is important to understand that there were problems and that efforts have been made and are continuing to be made to try and sort this out and make the register function more effectively.

Ad hoc groups and coalitions One of the points I think is important to underline here (because se I think it is one area where broadly speaking a few issues have come up about transparent lobbying)is the issue of ad hoc groups and coalitions. When you set up an ad hoc group or coalition on a specific issue or is set up to bring a handful of interested parties together to create a coalition or group of some kind of specific issue, it is important to know that those groups should be registered and that you should name an individual dual as the responsible party for those. That’s an important thing and I think there’s nothing wrong with having these groups because for any number of reasons it is important and sometimes necessary to bring together interests interest in a way that differs from a sort of standard trade association or standard NGOss, a more narrow group of like-minded minded individuals or sometimes even a bigger coalition of many associations or

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


NGOs want to get together to do something something. Itt is important that when those kinds of groups are ar set up, they are transparent and that they also participate in the Register.

Common code of conduct and Joint Register Secretariat The other two new features of the Joint Register is the establishment of the common code of conduct and also the establishment of the Joint Register Secretariat Secretariat. This his principle more focused on enforcement and makes sure that people are complying with the rules as they participate in the Register. On the next slide, you see the Code of Conduct of the Joint Transparen Transparency cy Register. It is very similar to the earlier Codes of Conduct that existed and it talks about the range of activities that you can and cannot have, basic basically an ethical interaction with the institution that talks about how you identify yourself, what kin kinds of ways you can interact with the various people, what w you can do about employment, how they’ve been doing work inside the EU institutions and that kind of thing. It is easily accessible online so you can have a look at it in more detail. The important point is to know that is now has replaced the old Code of Conduct in the European Parliament and applies both to the Commission and the Parliament.

Question: What do you mean by saying that EU lobbying rules intentionally vague? Thank you for that question. It is a very good one.. What I mean to say is that when the European Commission established first register (and and the main features of that were obviously duplicated in the new register), ), tthey didn’t spend a lot of time being very clear about exactly how people should record financial information or exactly how they should describe various components of what they put in there in the registration. And in fact, if you spend a little time goi going through the listings in the Registry, egistry, you y will see there’s a great variation in the way in which individual registered organisationss have responded. The reason that there’s a great variance in the way people have responded is because they aren’t very clear in specific guidelines about what you have to do to reply and to fill that in. It also goes back to the broad definition of lobbying that I referred to, that could rage a number of questions about what lobbying really is. In fact, the Commission Commission’s intention in which it was taken up in the agreement reement between the Commission and Parliament was really to cast the net as widely as possible. So anything you do to influence EU institution institutions, whether it be in a face-to-face face meeting with officials or elected politicians or whether it be staging an eventt or putting an ad in the newspaper or on a website, or whatever it happens to be, all these things are considered to be lobbying.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


So the Commission realised d pretty early on they didn’t want to try and get in the sort of slippery slope trying to regulate all these stuff. They just kind of wanted to say “anything anything that you are trying to do to influence should be considered lobbying for the purposes of register” register and particularly for the purpose of the financial declaration and therefore, they didn’t go down the t path of trying to make the rules very specific. In some cases cases, that has meant that the way that people go about registering is very different.

Institutional Codes of Conduct The point I’d like to make here is that clearly the Commission started first with ith trying to put in place the Register, really focusing on the conduct and behaviour of all of us, the lobbyists lobbyist and the more recent years they’ve spent a little bit more time going back and looking at the issue of Codes of Conduct onduct for people working inside the Institutions. I think this is very good because I thi think if we are honest, there haven’t ’t been that many real problems with the behaviour of what I would call the sort of “well well established ethical and transparent lobbying community community” in Brussels. There have been a few cases that have gotten a lot of attention and publicity. If I you take for example the Sunday Times scandal a couple of years ago that triggered a whole reflection process cess in the European Parliament: what basically happened was that some som undercover journalistss approached some M Members in the European Parliament (not not involving any real lobbyist whatsoever). I think one of the conclusions of what came after that particular event was that we need to pay very careful attention to actual behaviour of the people working inside the Institutions themselves.

Code of Conduct for European Commissioners So I want to touch on three points here. The first is the Code of Conduct for European Commissioners. I should also make the general point that for us collectively as a lobbyists, we have to understand what are the obligations and rules that apply to people inside the Institutions because that impacts the way we can do our business business. A lot of this is common sense, a lot of these goes to the issue of gene general ral ethical conduct but still it is important to understand the details, understand the debates inside the EU institutions so that we make sure that we can respect those rules but also that we understand the pressures that they are feeling inside the Insti Institutions. The Code of Conduct for European Commissioners has been in place for a while but was revised in 2011 and it is based on Article le 245 in one of the EU Treaty, which sets out the responsibilities of European Commissioners. It makes another point, which I think seem pretty obvious, is that European Commissioners cannot engage in any other professional activity. They can hold honorary post and be politically

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


active within their political parties parties, although particularly with the latter ter point there are a number of conditions about how they do that.

Declaration of Interests It does a lot in terms of requiring declarations of interest. One declaration that they have to t do is about all their activities over the last ten years. There’s also probably a more well-known sort of declaration: their financial interest interest, which also includes their spouses, so if their spouse has some professional activity which could be deemed to create ethical chal challenges lenges, they have to declare it.

Cooling off period after European C Commissioners’ mandate It talks about the obligations of European Commissioners at the end of their mandate: mandate what they can and cannot do afterwards afterwards, notably the conditions about an 18 months month cooling off period”. They hey should not take on certain assignments; let’s say to lobby directly the services they were responsible for. And one which could potentially have a more practical invocation is that they cannot accept a gift if the value is greater than €150 150 and this also has to do with the hospitality, but I’ll come on to do that a little bit more specifically in the next slide.

Guidelines on Gifts and Hospitality The he Commission has also recently issued “Guidelines on Gifts and Hospitality”.. These guidelines take on board a number of principles that are already in place in the Staff Regulations of the European Communities. They come from a starting point of “basically nothing is allowed”,, no gifts are allowed except for a few issues, and they define the gift as being either money, or it can be a physical phys object, it can be free participation in events or other advantages such as travel. And perhaps the most interesting (and probably the most common)) topic I think is the whole issue about hospitality, about the “business lunch” so to speak. And so what they’ve done is they put in some place some principles that if the value of the gift including hospitality is less than €50 50 then it’s considered to be automatically accepted. The Commission doesn’t want to get into the game of sortt of having to approve every little lunch or whatever. The approval is required if it is greater than €50 value but less than 150, and if it is over €150 value, the gift is deemed to be not allowed allowed. Within this context, and that should be cleared all the way up to the €150 150 level, appropriate hospitality is presumed to be granted. granted The Commission does not get in the business of pre pre-approving every lunch somebody has, has and so it is important to understand the gener general guidelines that are in place but a normal business b lunch or an appropriate meeting that involves providing some nourishment to an official or politician is not considered inappropriate.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


That being said, you can encounter I think more strict rules and in fact, this has happened to me on a number off occasions where you encounter an official working in the Institutions who will, will for whatever reason, will just simply say ‘No, I don’t do lunches with outside representatives. It’s just not something I do.’ So they might go farther than what the rules strictly require. require So that is something you have to keep an eye out for.

Missions and guest invitations It’s also important to know that there’s another general principle (and and perhaps more common) common about when Commission officials can go on “mission”. If you invite a Commission official to speak att the European meeting of your ttrade rade association for example which might be perfectly acceptable to do, that Commiss Commission official has to get approval for that and the basic test that has to be met is whether or not th the mission is “useful useful to the discharge of the official’s duties” duties and responsibilities. And so that is really the test to bear in mind. Now the other priority madee is that most of these rul rules es are somehow outlined in the Staff Regulations egulations of the EU so that m means they are also relevant to European uropean Parliament staff including EP assistants, who now fall under the Staff R Regulations of the EU.

Question: should European Commission officials be required to have a cooling off period of 3 years before working for an organisation they had contacts with? I think this is an issue that requires careful consideration. The he European Commission is an organisation that employs people with lots of different level levels and staff. I think we all agree that if you were a junior employee or trainee trainee,, you probably shouldn’t have to wait three years to find a job outside the Commission. And I think you can even have younger professionals for whom it doesn’t make sense to put restrictions on their future employment. I think that for senior levels of the Commission, it’s appropriate to have some rules in place. I know that the Commission has its own system for making sure that there aren’t conflicts between the subsequent employment and what an official icial has been doing previously. Then T of course there’s the issue of European Commission Commissioners, something which we’ve looked at already. I think this is a perfectly valid area of discussion. I don’t have a view on exactly what the timeline should be. I mean we,, at Burson-Marsteller, have our own restrictions when we’re hiring people or working with people that come out at those kinds of positions. I guess in terms of the specific length,, that’s something that really needs to be debated and talked about in more detail.

Code of Conductt for the Members of the European Parliament I guess we now go on to the Code of Conduct for the Members of the European Parliament. Now, a little earlier there was the Sunday Times scandal, I think that was in 2010 (if memory serves me well) and as a result lt to that that, there was a group set up under the Chairmanship of the

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


then President of the European Parliament, Mr. Bužek. They hey got together and there the was a lot of internal consultation and indeed some consulta consultation tion with external stakeholders that I was able to participate in, and eventually they came out with a Code of Conduct for Members of the European Parliament. This his Code of Conduct lays out some sort of general principle principles of integrity and honesty. It imposes a declaration of financial interest of the Members of the European Parliament and a big issue that I recall being discussed quite a bit during the consultative period is the issue about bout other remunerated activity. TThere here are some who are saying that the European Parliament should have no other remun remunerated erated activity, others were saying that it should be some low levels of remunerated activity or they should be allowed as long as they’re not in sort of direct conflict with the mandate of an MEP. That’s really the motto where they seem to have come down now and said you can have other remunerated activity if it’s low level level, it doesn’t have to be declared. If it’ss greater than €5000 per year ear in terms of revenue to the M Member, then it needs to be declared. Their concern there was really about about, for example, if I’m a doctor who has become a Member of the European ean Parliament and I still want do some things that are related to my previous career as a doctor, then I should be able to do that that… or if you are an author, for instance. instance

The Parliament’s rules So people ple focused on a number of different things that could come up up, that could be legitimate and so they preserve that right right, but they are trying to put it in a framework of some clear restrictions in terms of ethical, appropriateness and conflict of interest. The other point is that (and we’ve seen this number before) the Members of the European Parliament cannot accept a giftt if its value is greater than €150. 150. This includes hospitality; this includes the business lunch or business dinner, whatever you would like to call it. There was a little bit of debate about this and the implementing measures just were adopted, adopted but that is now clearly in place.

Attending events, former Members of the European Parliament and other rules Two other interesting points: now Members of the European Parliament have to declare all events that they attend or they will will, I think, from the 1st of July. Also mentioned in the Code of Conduct for Members of the he European Parliament, former M Members embers who lobby, lobby have to give up the benefits thatt are normally given to former M Members, including the access badge. badge This I think makes perfect sense because ecause if you’re former Member ember of the European Parliament, then you get into the Parliament on the basis of that status, you shouldn’t be able to use that sort of access and lobby with former colleagues.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


Question: MEPs themselves don’t have to declare who they meet with. What about bilateral lateral meetings? Doesn’t this create a grey area for potentially abusive contacts? Well you’re absolutely right that the members don’t have to declare every meeting that they take and this was a part of the points I remember being discussed when I was involved in a consultation with the Parliament. The bottom line is that Members of the European Parliament feel that their elected representatives deserve a role if somebody wants to be able to meet with them privately about something for whatever ver reason, then they should be able to do do. They, as a Member of the European Parliament, should be able to have a private meeting meeting, which is a legitimate interest so it does not require that they list every meeting. That being said, there is a difference fference between what is required and what is done in practice. practice What I think is the key point for all of us lobbyists is that you have to be aware that what actually happens in practice is that any individual Member of the European Parliament can often go beyond what at is required by the rules rules, and many MEPs will list who they meet. Many political groups list meetings that they have with stakeholders. It’s more often done by different national delegations than within political groups, but it’s starting to happen. happen So what you need to be aware of is that there is a high level of transparency. Well, it’s not required for them to list all those meetings. But m many of them actually choose to do so.

Access to Documents Now moving on to the subject Access to Documents. I don’t want to go into great detail here but it iss important that if you’re going to send information into EU Institutions Institution as part of your efforts to make your case on an issue, you should know that the current rules on access to documents allow just about anyone to request information on just about anything covering any form of written communication received by an EU Institution Institution. This could include emails or any sort of documents you send in when you’re lobbying.

Absolute and relative exception exceptions Now, there are some exceptions to this, you know there are the absolute exceptions exception that deal with things like public security,, defenc defence e and military matters, international relations, financial, financial monetary or economic policy, and those kinds of things things, as welll as privacy and integrity of the individual. And then there are also a number of relative exceptions, and the relative exception has to be denied if there is an overriding public interest and exposure, and this includes things like commercial interest such as intellectual property rights, implication of legal rights or legal proceedings, or if it would in some other way undermine the EU decision-making making processes.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


Confidentiality If you are submitting information to the EU Institutions, you need to be aware that even if you think you got their absolute agreement to keep certain information confidential, it has to really fit in with the conditions of the access to documents regulati regulation: if it doesn’t, then it will be hard for the institutions to not allow that information to be shared if a third party requested it.

If you are the submitting party That being said, for you as the submitting party, if the information you share with the institution is subject to an ‘access access to documents documents’ request, you will get the opportunity to explain why you think it shouldn’t be shared or to say that you are probably happy for it to be shared. But if you are going to make a case why it shouldn’t be, then you need to do so in a way that meets the specific criteria in that legislation.

Question: when MEPs meet someone or whether there are events that they attend, is it a kind of list that is publicly available and if it is not, do you think it should be? My understanding about this new idea idea, which I think it was just literally last week (end of April 2013) that they agreed, is about listing all the events that the MEPs attend. My understanding is that it is intended to be public. I’m not quite sure yet exactly how it’s going to work, if it’s going go to be a centralized list or if it’s something that MEPs are just expected to put on their own websites and share, but in any case, the principle is going to be that this information is intended to be publicly available.

Question: Regarding access to documents, what hat is the time in which a request reque for information is handled? Let’s see. The he access to documents regulations sets out specific deadlines and I think the first deadline is something like two or three weeks (in fact, 15 days). There’s here’s an opportunity for them to ask to extend that by little bit and usually they do so because they have rather high level of demands and they’ve increased the staff to do this but still there is quite a number of such requests.

Key Conclusions for the EU Public Affairs Practitioner I just wanted to draw a few conclusions for all of us who are working as lobbyists and I think this really summarizes things that have been said, so I run through them quickly.

Transparent behaviour ur is non non-negotiable The first is that transparent behaviour is non-negotiable. I’ve been working in Brussels as lobbyist for 21 years and clearly clearly, in my view, things have become much, much more transparent over that timeframe and there’s much greater expectation for transparent behaviour and simply, as I said, on the slide slide, it is non-negotiable.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


Registration of lobbyists, while technically voluntary voluntary, is expected. ed. I think it is becoming increasingly believed that ethical ethical, transparent lobbyists will register and so even if it’s a voluntary register, the expectation is there. The Commission and the Parliament together, together as part of their review of the work of the Transparency Register, are looking for ways to make that clear. The behaviour of officials or M MEPs as they deal with lobbyists: I think increasingly they will begin asking if you are registered when you are looking to get a meeting or have some sort of contact with them, so in fact as we’ve seen, there’s a greater focus on institutional behaviour through the Codes of Conduct onduct but also this is really a key point.

What the European Commission does to improve staff ethics European Commission Vice President Sefčovičhas has outlined in a recent speech a number of steps that they are trying to take to train EU officials on how to deal with lobbyists lobbyist when they approach them and what they should be doing. It is part of the training that the Commission gives for all the new joiners, but there’s a whole process in the program of training of officials of who are already in place. While hile I think it is everybody’ss experience that it is not uniform and not happening everywhere. There is a great effort being made to really ensure that the officials do more.

Single standard, varying execution But that does lead to the fact that the standards of behaviour do very greatly within the EU institutions. In fact, as I said earlier, you can even encounter more strict requirements amongst certain officials who choose, for whatever personal reasons reasons, to be more careful how they interact with lobbyist, so beware that if you think you understand the standard broadly, you may still run into some situations where others behave differently than you may have expected. The issue that we’ve talked a bit about invitations to officials and I guess Members of Parliaments liaments as well to conferences, site visits etc… they can be accepted but that would very much depend, particularly in the case of Commission officials officials, on the context,, its relevance to their responsibilities, so in some situations can be perfectly appropriate but it could be deemed inappropriate in others.

Communication with and from EU institutions We’ve talked about the fact that increasingly the way you communicate, the way we communicate with the EU institutions is out there there. Responses esponses to public consultations cons are published, and things that you submit can be requested through access to documents. documents The issue is about wanting to protect confidential information information, and it is something you have to assert in events for commercially sensitive information when yo you u submit it. You need to make sure that you fall well within the guidelines.

Never assume privacy The last two points is that never assume privacy. As we talked about MEPs MEPs, some officials may publish names of people they meet or the materials they re receive, or they may do things that you are not expecting: MEPs increasingly TTweet weet about the meetings they had, put it on their

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


Facebook page or their websites websites, so the assumption needs to be that your contact with the EU institutions are never private and you sh should conduct them in a way that you would be comfortable knowing that others find out about them them, what you are saying and the positions that you are representing.

Rules and expectations are changing The final point to make is that the rules and expectations are changing. There are a number of groups, some of them are even participating in the session today today, who are pushing for the EU to continue to improve the way it deals with issues related to ethics and transparency. transparency As we’ve touched on briefly, there’s ’s an ongoing debate about “revolving doors” and other issues, issues so it’s fair enough to expect there’s a review underway rway of the functioning of the Joint Transparency Register. That’s happening at the moment moment, so it is fair to say that the rules and expectations are changing, and all of us as lobbyists need to be aware of this this: not only we have to know about specific issues we are lobbying on on, but we need to make sure we know about what’s going on in this general area about the relationship between lobbyists and the EU institutions.

Q Questions & Answers Question: How has lobbying changed in the past 21 years? Is it more aggressive than it used to be?’ I don’t think I would use the word more “aggressive”,, I think the whole system has become much more transparent.. I think the number of issues that are being lobbied has greatly increased. I think it has partly increased because of competencies of the EU institutions institution have increased. In particular the compete competency of the European Parliament has increased, increased and if they’re dealing with a lot of issues that have huge impact on a wide range of stakeholders, stakeholders it’s normal I think that there’s an incre increased level of lobbying. I’m not sure that it is easy to say whether lobbying bying is more aggressive, so if anything, I would say it become much more professional.. I’d say over that time period the professional lobbying has grown up just like the EU institutions have grown up. There’s more people here doing it it, and they are doing it more professionally, so I think, if anything anything, the quality of lobbying has improved in that timeframe.

Question: what are the differences ifferences between lobbying in Brussels and lobbying in other EU capitals like also in Strasbourg but also in a given Member State’s government? Let me first do something on una unabashedly commercial here and make a plug for our lobbying survey. Some of you may know that Burson-Marsteller has regularly done a lobbying survey the past few years. I think we’ve done four more already w where here we do polling of EU officials and politicians inside institutions and get the views on all of us and the lobbyists lobbyists, and what makes the good lobbying, bad lobbying lobbying, and that kind of thing: we are renewing that survey.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


The last survey was published in 2009 and the 2013 edition will ill be launched in early June if my nd memory serves well, about the 2 of June. We will have some new data to look at, but what is fair to say is that the nature of lobbying is different in differen differentt countries, in different d Member States. It reflects, I think,, cultural differences and in some places the word “lobbying lobbying” itself is a hang-up for a lot of people, while the word “lobbying” maybe viewed as a positive or negative thing in a number of places. The he practice of what we all understand to be lobbying is really common across EU Member States tates, in terms of the recognition of the need of the stakeholders to talk to elected politicians and officials about different policies. There are clearly things thi that work better in somee Member States and worse in other Member SStates. The debate about lobbying regulation is increasing all over Europe. I think that is generally a good thing. I think it helps all of us to conduct an open and transparent dialogue dialogu with EU institutions if the framework for that is clearly defined in law and is allowed and is understood what good, open dialogue is, cause it is helpful also to make sure that the corrupt and inappropriate forms of dialogue are not allowed. That’s a ver veryy important point. Anybody who is involved in lobbying, whether you are from business, NGOs or whatever, it is important that what we do is done in a professional professional, transparent way and it is respected and has a framework of law - something I believe in per personally. But I do think also that good lobbying practice reflects different cultures. Any good lobbyist will wi understand not only the policy he or she is lobbying on but the protocol procedures p and processes of the Member States, tates, the politics, the politic political al environment in which your issue is just one thing happening… and of course the personality of the people you are trying to talk to. And I think they are very different in di different Member States, and more varying in other countries, and so it’s important to really understand not just the nuts and bolts of the issue but the sort of advocacy or context in which it is being considered in different places.

Question: If you could discuss shortly the role of media and pr press ess in lobbying in i an EU context? I think the media plays a very important role in Europe and the discussion of European issues. Many of the issues that policy makers care about are discussed in the media and debated in various media, and so its normal if your set of inter interest, est, a position in one of those issues, you might like to see your position reflected in the media coverage for that issue issue.. You Yo will see all the time stories are written and they talk about the position in different groups and different sets of interest, so I think that effective media relations is a very important part of good lobbying. In fact, when we tend to talk about effective engagement wit with h the EU institutions, the face-toface face meeting or the direct meeting with politicians and officials, it is jus justt one very small part of it. You would also want to ‘worry worry’ about how you deal with other stakeholders, or building bigger coalitions is often important becau because se in a complex Europe with 27 Member States, S it’s very hard to carry the day just by yourself.

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


The he media relations point and other dialogue with experts and getting expert opinion are vital. So effective lobbying involves many different components components, and media relations would certainly be an important one of those. I would like to just simply wrap up and thank you very much for everybody’s participation. participation

EU Lobbying, Ethics aand Transparency: “Do”-s and “Don’t”-s


Questions & Answers not covered at the live event Q: The EU is still not subject to the Laws on Free Access to Information? A: On 3 December 2001, Regulation (EC) No. 1049/2001 regarding public access to Parliament, Council and Commission documents entered into force. Its main objective was to introduce greater transparency into the work of the EU institutions by creating a process through which any citizen of the Union or any natural or legal person residing in or having its office in the EU could request access to documents of the Parliament, Commission and the Council. I think this is similar to what you speak of. More generally, it is important to note that the EU institutions have taken a number of different steps to provide access about their activities online. Q: The Register requires potential lobbyists to apply. But MEPs themselves don’t have to declare who they meet with. Doesn’t this create a grey area for potentially abusive contacts? A: While some MEPs choose to list all their meetings on websites and/or tweet or communicate about meetings in other ways, many MEPs also feel that as elected representatives they have the right to meet with any legitimate interest and to do so confidentially if it makes sense. There are a number of ways to fight potentially abusive contacts, including the idea of a legislative footprint and strong codes of conduct on the behavior of elected officials. Q: Any sanctions/penalties foreseen for not complying with the code of conduct? A: Non-compliance with the code of conduct may lead, following an investigation to such measures as suspension or removal from the register and, if applicable, withdrawal of EP access. A decision to apply such measures may be published on the register's website. Anyone may lodge a complaint, substantiated by material facts. For further information see: http://europa.eu/transparencyregister/complaints/complaint-mechanism/index_en.htm. Q: Has the Commission ever tried to ‘regulate’ lobbying, rather than just make it transparent? A: No. The Commission has from the outset always pursued the “carrot and stick” approach of a voluntary register, citing the absence of a legal base in the EU Treaties to make it mandatory. Q: Are there strictly defined procedures for Commissioners when they break the code of conduct? Or is resignation the only punishment? A: The Final Provisions of the Code of Conduct for Commissioners defines these procedures. That said, the Code of Conduct does give the President of the European Commission the right to demand the resignation of a Commissioner. Q: Do you think that 18 months rules should be extended to the Commission’s hierarchy down to Head of Unit level? A: No. I do not think it makes sense to have the same restrictions on Heads of Unit as on European Commissioners. Q: For the MEP code of conduct: would it be possible to have the latest doc which includes these implementing rules please? A: The implementing rules for the MEP code of conduct were only adopted in mid April and I do not have them to hand. See http://www.europarl.europa.eu/news/en/pressroom/content/20130416IPR07396/html/Code-ofConduct-implementing-measures-adopted for more information.


Q: What will happen if MEPs don’t follow the rules? A: The link above addresses the issue of sanctions. Q: Is this list (who MEPs meet with) publicly available, if not, do you think it should be? If yes, where we can we find it? A: It is currently not required of MEPs. Some MEPs, or delegations, do so voluntarily and this information is usually shared on their respective websites. Q: Thank you for answering my question. Follow up: indeed many MEPs do declare who they meet with, but it seems that they are always a couple of the same MEPs, the same “bad apples” who don’t comply? A: I have not analysed carefully who does this and who does not. It is important to note, however, that some MEPs who do not share such information would not necessarily consider themselves “bad apples”. Q: How do you think the transparency can be further improved, Mr. Mack? A: For me, the biggest problem with the current register is that it is not mandatory for all and there is significant under-participation by certain categories of lobbyists (the lawyers are often cited in this respect). It is the position of Burson-Marsteller and my view that the register should be mandatory and applied equally to all lobbyists whether consultancies, NGOs, lawyers, associations or anything else. Lobbying is an activity and anyone who does it is a lobbyist. It is also not yet systematically enforced and there is a wide variation in the quality of information provided in the register. This should not be the case. Q: What is the grade of appreciation of transparency rules inside lobbying organizations? A: I am not sure I understand this question, but I can state that I regularly advise clients that they should be aware of the transparency rules and it seems that awareness of these rules is growing. I think established lobbyists in Brussels are well aware of the rules. Q: What about non-registration of law firms that offer lobby services? A: As stated above, it is the position of Burson-Marsteller and my view that the register should be mandatory and applied equally to all lobbyists whether consultancies, NGOs, lawyers, associations or anything else. Lobbying is an activity and anyone who does it is a lobbyist. Q: Are there any specific Codes of Conduct? (except those for Commissioners or MEP) which apply to other EU officials? A: As presented, there are the Guidelines on Gifts and Hospitality and the relevant provisions of the Staff Regulation of Officials of the European Communities. Q: These conditions apply to lobbyists. What about meetings with national regulators and governments, is there an exception for officials to declare these meetings? A: Meetings with national regulators and governments are for the moment subject to the laws and codes of individual member states. It is fair to say that this issue is being discussed and debated in many member states at the moment. Q: Aggregating multiple interests has always been a problem for lobbying success. Many people think they know how to lobby even though they have never studied or experienced it. How would you


advise to create a space for the need for a professional lobbyist and especially show how complementary it is to the actual content of the interest it aims to represent? A: I am not sure that I understand your question. That said, I think that ethical, transparent lobbying is an important part of the democratic process. I wrote in a book on EU lobbying published in 2011 that “the EU institutions have become more sophisticated in their dialogue with interested stakeholders. In 2011 there is genuine recognition that stakeholder dialogue is an essential component of policy development and following the entry into force of the Lisbon Treaty, it is even recognised as a democratic principle in Article 11 of the Treaty on European Union, which states that ‘the institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’. In other words, good balanced policies cannot be developed without input from interested stakeholders.” Q: Can you give us some examples of active, successful lobbyists’ groups/lobbyist leaders? A: I am not sure where to start. There are a wide range of groups, representing a wide range of interests, who are effective. I would be happy to answer specific questions via direct dialogue. Q: Should people lobbying member-state governments only about EU policy also register on joint register? A: It is not required by the current system, which only applies to the Commission and the Parliament. Discussions are underway with the Council about it joining the register but, even so, it is likely that lobbying member state governments will be subject first and foremost to the relevant national laws, no matter what the subject of that lobbying. Q: What about the system of sanctions for breach of the rules of conduct? A: Non-compliance with the code of conduct may lead, following an investigation to such measures as suspension or removal from the register and, if applicable, withdrawal of EP access. A decision to apply such measures may be published on the register's website. Anyone may lodge a complaint, substantiated by material facts. For further information see: http://europa.eu/transparencyregister/complaints/complaint-mechanism/index_en.htm. All views expressed are the personal views of Robert Mack unless otherwise noted above.

EU Lobbying, Ethics and Transparency: “Do”-s and “Don’t”-s Transcript + Q&A  

http://www.eu-academy.eu/freeresources/eu-lobbying-ethics-and-transparency-do-s-and-dont-s/ The European Transparency Register and EU lobby...

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