Response to the “European Transparency Initiative” as presented by the European Commission on May 3, 2006
Response to Section II “Transparency and Interest Representation (Lobbying)”
Do you agree to consolidate the existing codes of conduct with a set of common requirements? Who do you think should write the code?
Reviewing the current situation of the various “codes of conduct” adopted by umbrella organisations of professionals in Brussels, the Green Paper states that:
Up to now no cases of misdemeanour have been reported in the context of these voluntary codes of conduct. Another important point to note is that only consultants adhere to such codes. Neither lobbyists who are permanent employees of interest groups nor other groups of interest representatives who occasionally engage in lobbying activities (e.g. law firms and think-tanks) fall within the scope of such voluntary codes of conduct. Compared to the whole lobbying community in Brussels, the coverage of the voluntary codes has consequently been limited. Furthermore, as the current system relies on self-discipline it appears necessary to consolidate the existing codes and put in place a common enforcement and sanction system trusted by all. This could include a common code of conduct, applicable to all lobbyists, monitored by a special umbrella organisation and possibly coupled with a Commission-led registration system. It has also been suggested that the EU institutions should be willing to impose formal sanctions on any lobbyist breaking the code of conduct.
Since a registration system needs to encompass all actors involved in lobbying the European institutions its inherent principles for consultation and participation are the basis upon which a common set of minimum requirements has to be built.
Because the participation of civil society in decision-making processes delivers mutual benefits to all participants, we agree that it is an important task to formulate those principles and minimum requirements in the format of a common code of ethics.
Such a code of ethics would equally apply to all actors involved. It should on the one hand relate to staff regulations within the institutions and on the other hand to codes of conduct of the respective associations or umbrella organisations.
The process used to develop a common code is as important as the code itself. A review of the codes developed by the different professional societies (AALEP, SEAP, EPACA)
could be as useful as a summary of requirements derived from staff regulations and consultation principles to provide a starting point.
A committee of practitioners from all sides should then be summoned to formulate a common code of ethics which in turn could then be incorporated into the different codes of conduct. A distinction between code of ethics and codes of conduct is of major importance, because the overall ethical principles of the collaboration between institutions and civil society need to be uniformly accepted. While codes of conduct, although to be written within the guidelines of the code of ethic, may be specified and tailored to serve different groups of actors who might have a different self-conception of their respective role in the process.
Such a code of conduct should in our view among other things demand that lobbyists:
- specify the identity of his/her clients and the goal of their actions to the EU public office holder;
- do not encourage an EU public office holder to disobey the rules of conduct he/she is expected to observe;
- avoid putting undue (exaggerated, abusive) pressure on an EU public office holder;
- ensure the accuracy and validity of the information given;
- respect the public’s right to have correct information in any of its communication aimed at influencing public opinion;
- avoid making false or misleading statements to an EU public office holder or lead anyone into error or purpose;
- take the public interest into account when making statements;
- act with professionalism, honesty and integrity;
- avoid placing himself/herself in a conflict of interest or representing clients with
- competing or divergent interests without the permission of the people whose interests are at stake;
Do you agree that a new inclusive external watchdog is needed to monitor compliance and that sanctions should be applied for any breach of the code?
With regard to our views on question 3, the answer to questions 4 needs to be qualified.
First of all, for a code of ethics, monitoring compliance is difficult since un-ethical actions are not necessarily apparent. Furthermore, the proposed code of ethics serves as an overall ethical standard for all conduct and therefore for the different codes of conduct of different groups of actors and stakeholders.
Thus a distinction is needed:
1. Compliance with the code of ethics…
…needs to be “monitored” by each and every person involved on either side of civil society consultation and participation in the political process of the European Union. In cases of unethical behaviour sanctions can only be applied by a process of “naming and shaming”. Since his or her reputation is the prime asset for each lobbyist, such a sanction mechanism is sufficient and may be strengthened by the establishment of a pillory. The pillory should be governed by an impartial and independent authority, which ensures that denunciations are only published if a complainant reveals his/her identity. The same would also apply for officials, who might face press coverage as well.
2. Compliance with the provisions of the registration system…
…needs to be monitored by the management authority of the registration system according to applicable regulations and connected services. Sanctions need to be defined by the institutions which use the registration system. Enforcement of sanctions also depends on the service and/or right which is granted upon registering and thus can only be done by the respective institution. A close cooperation between the institutions and the managing authority is therefore needed. Albeit, sanctions can only be enforced by the institution affected by the violation of the provisions.
3. Compliance with the code of conduct of a certain group…
…needs to be monitored by the respective group itself. Within the proposed framework, self-regulatory system of monitoring and sanctioning are sufficient. The code of ethics and the registration system provide for a sufficient behavioural corset for anyone who wants to be a reliable and responsible participant in the political process. Group-based codes of conduct thus are of great importance for the self-conception of different groups so that monitoring and credible enforcement mechanisms are in their own self interest. In addition groups should be encouraged to document their rules and procedures for public scrutiny and comparison in a common location, such as the online registration database or a related webpage run by its management authority.
In addition to the hitherto stated views, we would strongly support the constitution of a new impartial independent and non-profit organisation committed to enhance transparency and democracy.
As mentioned in the introduction, we regard the “European Transparency Initiative” as a valuable starting point to improve the public image of our profession. But it is just that – a beginning.
To expect the Commission to be able to solve this important problem borders on wishful thinking. How can the actors involved with representing interests raise the public perception of their business solely by being subjected to governmental regulations?
As valuable as the current discussions among stakeholders are now is the time to go one step further. Whatever the results of the consultation and indeed what the ETI will look like in a few years, there is a clear need for something lasting and firmly based within the European civil society: an impartial independent non-profit organisation committed to enhance transparency and democracy in the European Union.
We therefore urge every citizen committed to legitimacy of interest representation toward political institutions and the transparency of the political process to join our effort to establish a European Foundation for Transparency and Democracy (EFTD). And we call upon the stakeholders to support the EFTD in its endeavour to
- support the European integration process by raising awareness for its uniqueness and complexity;
- serve the European citizens by advancing the knowledge about governance structures and processes on the European level;
- establish a civil society Foundation from citizens for citizens, independent from the EU institutions;
- build a permanent body to address issues of transparency in the EU in an impartial independent manner for European citizens.
The EFTD’s activities should be underwritten by donations and endorsed by the European institutions. One of the first activities of the EFTD should be the launch its web page as a multi-lingual portal serving as a gateway for anyone who seeks information about lobbying in the European Union.
Initially the portal should pursue a two-tier approach: directory & information portal. It should serve as premier of source of information about EU-level interest mediation written by scientists, practitioners and stakeholders, all of which will be subjected to an open system of peer-review via a forum application.
The directory should contain a structured overview and short abstracts for the large amount of web resources of information concerning the process of interest mediation in the EU, both from within and outside the EU institutions.
Lobbying activities should be public, transparent and, above all disclosed in a central register.
We do not see any problem in opening up the activities of lobbyists to public scrutiny.
A coherent multilevel regulatory framework can serve as a guide to lobbying for citizens and citizens groups, thus contributing - as a real catalyst – to opening up and broadening access to law-makers.
We recommend an approach which sees regulation as the beginning of a process which will help to reinvigorate democracy to the extent that it widens participation and demystifies commercial lobbying activity.
A centralized register would provide a public record of information about people and organisations shaping public policy at EU level. At present, the principles of openness and transparency that the European Institutions embrace lack a coherent concrete form and the present registers and databases are insufficient.
A register of lobbyists and their clients would be a very effective way of auditing the activities of outside interests who seek to influence policy making. One of the recurrent problems in trying to understand the nature and scope of lobbying activity has been the absence of any reliable data on what lobbyists actually do, and what resources are devoted to influencing policy.
The drawbacks of regulations are, in our opinion, more imagined than real. There is evidence from the United States and Canada that registration systems can be administered easily and efficiently, especially in electronic form, which has the advantage of being relatively cheap and accessible. There certainly is a concern in some places (such as the US) that the systems of regulation in place are subject to loopholes and that corporations and lobbyists have found ways to get round them. In our view this is only an argument for having more, not less, effective regulation.
For a central registration scheme to have the full confidence of the public, the European Parliament, and the lobbying community, it should be administered by an independent authority such as the European Ombudsman.
The fundamental issue at stake here is the question of our democracy and how it operates. That democracy must be seen to be transparent and open and anyone who wishes to discover the identity of a person lobbying in favour or against should be able to do so by consulting the register of lobbyists.
Lobbying is a good aspect of the political process and it must be regulated. Unfortunately the Commission Green Paper shows only inconclusive commitment to introduce real legislation in this area. In all professions people do their business openly and they are subject to regulation. Part and parcel of the development of any profession is that it goes down the path of regulation.
We are not advocating draconian measures to demonise or penalise people engaged in the lobbying profession nor are we proposing burdensome bureaucratic measures. What we are proposing is to put in place structures and principles of conduct.
Professional lobbyists have nothing to fear about revealing who they are, whom they represent and why they are lobbying. It is after all both in the public interest and for the future development of the profession.