Not cleared from scrutiny; further information requested; drawn to the attention of the Committee for Exiting the EU
Proposal for an Interinstitutional Agreement on a Mandatory Transparency Register
Article 295 TFEU and Article 106(a) EURATOM;—
Exiting the European Union
(38141), 12882/16 + ADD 1, COM(16) 627
6.1The Commission has proposed a mandatory Transparency Register for lobbyists (“interest representatives”) based on a new Interinstitutional Agreement (IIA) covering the European Parliament (EP), the Council and the Commission. This proposal, intended to be binding between the institutions, aims to strengthen and extend the existing voluntary scheme which did not cover the Council. The new arrangements would require lobbyists to register before certain interactions by lobbyists (“interest representatives”) to register before conducting particular meetings with decision-makers in the EU institutions. A code of conduct for registrants will accompany the register. The Commission has also proposed a number of changes to strengthen the monitoring and control of the data in the Register, with enhanced human and IT resources and better controls and enforcement of the rules.
6.2This initiative was first anticipated in the 2014 Political Guidelines of Commission President Juncker as one of the Commission’s priorities and then included in the Commission’s Work Programme for 2016.
6.3We commend the Minister for the comprehensive account of this document and the careful consideration of its policy implications in his Explanatory Memorandum.
6.4We would be grateful if he could confirm in due course whether it is likely that the register will take effect before or during Brexit negotiations. Whilst we recognise that “public authorities of the Member States (including their permanent representatives and embassies), at national and subnational level, are exempt from registration”, it seems clear that “interest representatives” either based in the UK or across the EU who want to lobby the institutions in relation to the Brexit negotiations would need to register. This might assist the transparency of those negotiations and possibly make it easier for Parliament to assess the extent to which influence is being sought on behalf of various sectoral interests with the institutions, particularly the Commission as the likely EU negotiator.
6.5We retain the document under scrutiny pending the Minister’s response. In the meantime we draw this chapter and document to the attention of the Committee for Exiting the EU, given its possible relevance to their inquiry on scrutinising the UK’s negotiating objectives.
6.6We have this year been engaged in two inquiries concerning transparency of the EU legislative process. We made a submission to the EU Ombudsman’s inquiry concerning the transparency of trilogues and we conducted our own inquiry into “Transparency of decision-making in the Council of the EU”. The former addressed the question of the transparency of lobbying. The Ombudsman concluded at paragraphs 27–28 of her Report:
“Lobbying” may also be problematic if it occurs at a time when public representatives require some space to deliberate and debate on proposed legislation. However, as will be addressed below, this makes the case even stronger for the appropriate and timely availability of information to all. Ultimately, public participation, in a manner which takes account of other legitimate needs, can only strengthen the democratic process and its outputs.
“The Ombudsman however does appreciate the concerns and challenges increased lobbying can present, and repeats her call for a strong, reliable and mandatory Transparency Register as a ‘central transparency hub’ around which several EU administrative systems would connect. Legislators and citizens both want to know who is lobbying in the EU and have a reliable and easy-to-use tool to find out the required background information on any interest group, and be assured that groups are fully compliant with the Transparency Register Code of Conduct.”
6.7The recitals outline the competing interests that the proposed IIA is seeking to address: transparency and accountability of the institutions are essential to maintaining the trust of EU citizens in the legitimacy of the EU but engaging with stakeholders enhances the quality of EU decision-making by allowing for input of expertise. Recital (4) states that “Transparency of interest representation is especially important in order to allow citizens to follow the activities and potential influence of interest representatives”. Article 1 states that the IIA “establishes a framework for a transparent and ethical interaction between interest representatives engaging in activities covered by this agreement and any of the three institutions”.
6.8The proposal is not simply aspirational. Article 7 says that “by registering, the registrants agree to abide with the[se] rules and principles” set out in the Code of Conduct. A failure to comply with the Code can result in investigations and a series of escalating measures from warning, to suspension and possibly removal from the register.
6.9The IIA covers the lobbying activities of “interest representatives” who promote certain interests by interacting with the three institutions’ members or officials to influence policy making, legislative implementation or the decision-making process of the institutions.
6.10Article 3(2) outlines the activities that are not covered by the IIA. These activities include:
6.11Bodies that are not covered by the IIA include:
6.12When interacting with the EP, interest representatives will need to sign the register to access the EP building, meet with members of the EP and senior officials, host events on Parliament’s premises, receive automatic notifications regarding EP activities, be invited to speak at committees as a guest, and be granted patronage to events they have organised.
6.13Interest representatives who wish to meet the Ambassador of the current or forthcoming Presidency of the Council of the EU and their deputies in the Committee of the Permanent Representatives of Governments, and the Council’s Secretary-General and Directors-General will need to sign the register. Likewise, if interest representatives wish to receive automatic messages about the Council’s activities they would also need to sign the register.
6.14Regarding proposals relating to the Commission, interest representatives will need to sign the register to meet members of the Commission, their cabinet members and Directors-General, receive automatic alerts about public consultations, be appointed to expert groups representing common interests in a relevant policy area, receive automatic messages about Commission activities and be granted patronage to events they have organised.
6.15The information needed to register as an applicant is detailed in Annex II of the proposal. This includes general information such as the name and contact details of the applicant, the number of full-time equivalent staff in the organisation the applicant is representing, the goals and fields of interest of the applicant, and membership of organisations or relevant networks that fall within the scope of the register.
6.16Other more specific information that applicants need to supply is covered in Annex II. This information includes the applicant’s links with the EU institutions, the costs of activities covered by the register and any revenue generated from their activities.
6.17Article 7 and Annexes III and IV of the proposal set out the code of conduct of the register and the process for investigating those thought to be in contravention of the code of conduct.
6.18The code of conduct in Annex III contains various responsibilities for registrants. These include: obligations to provide accurate and up-to-date information for the register, data protection rules, rules on interactions with MEPs and Commission staff, obligations surrounding cooperation with the Secretariat and investigations, and the agreement not to obstruct the work of the register.
6.19As well as outlining the investigation proceedings, Annex IV also contains the measures that can be taken against a registrant thought to be non-compliant with the code of conduct. Investigations are an administrative procedure and may be brought about when there is a failure to comply with the code of conduct. Registrants are required to cooperate fully with investigations and in exceptional cases may be removed from the public website of the register while an investigation is ongoing. When informed that they are to be investigated, registrants are to send a response within 20 working days to the Secretariat of the Register.
6.20Anyone may make a complaint in writing to the Secretariat about a registrant. When a complaint is made, the Secretariat will inform the complainant whether the complaint is admissible. Even in the case of an inadmissible complaint, the Secretariat may open an investigation at its own initiative if the complaint indicates a serious failure to comply with the code of conduct.
6.21If the registrant is found to fail to comply with the code of conduct the secretariat may seek a solution to mitigate or remedy the failure. If the registrant complies, the investigation shall be closed. The registrant will also have the opportunity to express their views before a decision is taken by the secretariat. If the secretariat establishes that a violation of the code of conduct has taken place, a formal warning is issued to the registrant. In some cases a suspension of some interactions covered by the transparency register may be imposed for a period of 15 days to one year. The secretariat may also completely remove the interest representative from the register for a period of 15 days to two years.
6.22Article 8 outlines proposals regarding the management board of the register. The board will consist of the Secretaries-General of the three institutions and will oversee the overall implementation of the register. This includes adopting the rules of procedure for the secretariat. The management board will also adopt the rules of procedure governing its own responsibilities.
6.23Article 9 covers the secretariat of the register. The secretariat will report to the management board. The secretariat will be composed of staff from the EP, the Commission, and the Council. They will be seconded to the secretariat of the register. An official in the Secretariat–General of the Commission will coordinate the secretariat. The mains tasks of the secretariat will be administrative in nature but will also include investigating and adopting measures regarding non-compliance with the code of conduct as outlined in Annex IV. Further information on staffing is available in Article 11.
6.24Voluntary involvement of other EU institutions, bodies, offices, and agencies is covered in Article 12. This states that other EU institutions, bodies, offices, and agencies are encouraged to use the framework of the register in their interactions. Should they wish to make certain types of interaction mandatory on signing the register they may also notify the secretariat. The types of conditionality required for registration will be posted on the register’s website.
6.25Article 13 establishes that Member States may also propose that certain types of interactions between interest representatives and permanent representatives to the EU be made conditional on registration. The management board will decide whether the proposed interaction put forward by Member States is consistent with the objectives of the register.
6.26Article 14 summarises the transitional provisions surrounding the IIA. Article 14(4) and 14(5) state those interest representatives who are already registered on the voluntary register will need to satisfy the terms of the new register. Also, any ongoing investigations surrounding complaints under the 16 April 2014 IIA for the voluntary transparency register shall be carried out under the new agreement.
6.27In an Explanatory Memorandum of 25 October 2016, the Minister of State at the Department for Exiting the EU (Mr David Jones), after repeating the usual statement about the UK’s continuing membership of the EU until Brexit, says that the Government is broadly supportive of the proposal. He then sets out its policy implications:
6.28On the Code of Conduct the Minister additionally says:
“The Government is content with the code of conduct as outlined in Annex III of the proposal, as it represents a proportionate and reasonable set of rules that are consistent with our domestic arrangements. However, further clarity is required as to what ‘undue pressure’ or ‘inappropriate behaviour’ mean in the context of these proposals.”
6.29On the overall question of subsidiarity, the Minister is content with the proposal. He explains that:
6.30On financial implications, the Minister says:
6.31Connected with this, the Minister says that if three institutions are to contribute equally to the functioning of the secretariat and the register, the seconded staff from each institution should also be equal in number.
37 “Interest representative”s are defined as any “natural or legal person, or formal/informal groups, associations or networks thereof, engaging in activities covered by this agreement”.
38 The IIA is not a “legislative” act under the EU Treaties and pursuant to Article 295 TFEU is to be made by “common agreement”. The Governments says that the Council Decision indicating its agreement will be by QMV.
39 See Article 7.
40 See paragraph 10 “ “I am also committed to enhanced transparency when it comes to contact with stakeholders and lobbyists. Our citizens have the right to know with whom Commissioners and Commission staff, Members of the European Parliament or representatives of the Council meet in the context of the legislative process. I will therefore propose an Inter-institutional Agreement to Parliament and Council to create a mandatory lobby register covering all three institutions. The Commission will lead by example in this process”.
41 The CWP is accessible
42 Article 4.
44 The “Decision of the European Ombudsman setting out proposals following her strategic inquiry 01/8/2015/JAS concerning the transparency of Trilogues” is accessible
45 See our Second Report of Session 2016–17, HC 128
46 On 23 June, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation”.
47 In his letter of 14 January 2016 to the House of Lords European Union Select Committee.
21 November 2016