BLOG: The Transparency Register's code of conduct for lobbyists - more than a tick-box exercise?

When lobby groups sign up to the EU's voluntary lobby register(1) they agree to a code of conduct for lobbyists. This code however is currently weak and vaguely-worded, and in practice is treated by registrants as little more than a 'tick-box' exercise. It bans “undue pressure” and “inappropriate behaviour”, but provides no guidance on what this actually is. ALTER-EU, on the eve of the two-year review of the lobby register – and accompanying code of conduct – has been investigating inappropriate lobbying behaviour in Brussels. We've looked at lessons from the tobacco lobby scandal Dalligate, asked for input from those experiencing unethical lobbying, namely Members of European Parliament (MEPs), and started to test what the register's overseers interpret as (in)appropriate lobbying.

Inappropriate lobbying in the Dalligate scandal

The lobbyists' code of conducts states that“registrants shall not obtain or try to obtain information, or any decision, dishonestly, or by use of undue pressure or inappropriate behaviour.” But inappropriate behaviour – or undue pressure – are not elaborated on or clarified in any way, making it unclear what would constitute a breach of this rule.

The lessons we've learned from'Dalligate', the tobacco lobby scandal surrounding the resignation of former health Commission John Dalli last October, have led ALTER-EU to conclude that inappropriate behaviour should include (but not be limited to) actions or activities by lobbyists which:

• infringe on the private sphere or personal life of a policy-maker in attempts to exercise influence or for political gain, for example, send gifts to or phone their home residence, or seek out and contract their personal acquaintances;

• circumvent the rules of the transparency register about client and financial disclosure, by employing unregistered lobbyists or other “middlemen” to engage in lobbying activities on their behalf; ... et al

Beyond this however, it is clear that the people in the best position to give examples of undue pressure and inappropriate lobbying behaviour are those who experience it: the policy-makers and politicians on the front line. ALTER-EU below presents the input of a handful of MEPs who told us what they have experienced as unethical or aggressive lobbying, which they would like to see covered in a revised code of conduct for lobbyists.

MEPs' experience of undue pressure and inappropriate behaviour

A number of MEPs have told ALTER-EU that they felt they had, on several or more occasions, experienced "undue pressure" from lobbyists trying to influence their views/decisions, or the European Parliament's decision-making more generally. These experiences included:

• lobbyists pretending to MEP assistants that their MEP has agreed to see them, lobbyists turning up to an MEP's office without appointment and thereby putting assistants in a difficult position, or being approached or addressed by lobbyists in the corridors;

• public accusations that if an MEP does not follow the lobbyists recommendations, that MEP is “killing the industry and jobs in their country”, “is unpatriotic”, “should pay billions of damage of compensation because of the economic harm they are causing to their country”, etc;

• MEPs receiving mail from lobbyists at a private home address, sent by people living and working in their neighbourhood but in fact written by industry lobbyists.

Several MEPs also felt that they had, on several occasions, experienced "inappropriate behaviour" from lobbyists, such as:

• lobbyists refusing to say for whom they are lobbying i.e. who pays their bill;

• lobby tactics that encourage email or social media campaigns by citizens based on false arguments or lies, for example, companies spreading the claim that the EU is banning herbs, or that the EU is planning to ban electronic cigarettes;

• the offering of major gifts, such as all-expenses paid trips to other countries and continents.

These reports offer some examples of the kind of undue pressure or inappropriate behaviour that should be covered by the code of conduct for lobbyists. Beyond the inappropriate nature of some lobbying, it is also revealing to get an idea of the scale of lobbying that an MEP office experiences. One MEPlists all the invitations to lobbying events that his office has receives. For example, in May 2013, the MEP received 112 invitations to lobby events, and a total of 1427 lobby attempts in only two years, including 315 requests from lobby groups for specific voting behaviour.

What do the lobbied think the rules for the lobbyists should be?

ALTER-EU has also received several suggestions from MEPs about how the rules around lobby transparency, and particularly the code of conduct for lobbyists, should be strengthened in the two-year review of the Transparency Register, beginning this June, to help avoid problematic lobbying practices. These suggestions include:

• Making the lobby register mandatory - binding and obligatory - with no entrance to EU institutions without registration;

• Sanctions for breaking the rules, including giving false information;

• Ensuring that data provided by lobbyists is complete and up-to-date, and weeding out misleading or incorrect information;

• Explicitly forbidding lobbyists from infringing into MEPs'private lives;

• Ensuring that exhibitions and meetings in the European Parliament are done only in conjunction with registered lobbyists;

• Making it obligatory for all types of lobbyists to be clear about their funding sources.

Another suggestion that we repeatedly hear from MEPs, and which ALTER-EU campaigned for in the 2011 discussions about the new MEP code of conduct, is that of a legislative footprint. The idea, one MEP elaborated, is that in order for the Transparency Register to work properly, MEPs must also indicate which lobbyists had a substantial influence on a particular report. A legislative footprint could require a) everybody who sends a proposal for legislative amendments to MEPs to also send the proposal to a public register, and b) any MEP who tables an amendment written by a stakeholder outside the institution to state the source in an explanatory statement, with sanctions for non-compliance. Similarly, the Commission should indicate which lobbies had a substantial influence on a particular proposal. Only with this dual approach can a comparison be made between what lobbyists say about their activities in the Transparency Register and what the EU institutions have recorded as their activities.

ALTER-EU complaints about “inappropriate behaviour”

There are clearly many kinds of behaviour by lobbyists that could be construed as inappropriate, as the input from MEPs above illustrates. This is one reason why the use of vague terms like “inappropriate behaviour” require some (non-exhaustive) clarification in order to be meaningful and enforceable. Otherwise, it is entirely at the discretion of those responsible for overseeing the register and code of conduct to decide how to interpret them.

In order to test how the register's overseers – the secretariat – are approaching the ban on dishonesty, undue pressure and inappropriate behaviour, ALTER-EU groups have made a number of complaints to the lobby register secretariat. Our conclusion so far? It is slow progress.

Tobacco: Swedish Match

Much remains unclear in the wake of the tobacco lobby scandal surrounding the resignation of former health Commission John Dalli last October. But what we do know is that the tobacco company involved, Swedish Match, was engaging in what ALTER-EU believes is inappropriate lobbying behaviour, by trying to use personal links with a Commissioner to further their agenda and by employing unregistered lobbyists to lobby for them.

The Dalligate scandal began with a complaint from Swedish Match to the European Commission, alleging that Silvio Zammit, a Maltese acquaintance of Dalli, offered to arrange meetings with him, leading to a reversal of the EU ban on snus, in return for €60 million. A Maltese court case against Zammit is ongoing, but regardless of the outcome, it is already clear from Swedish Match's statements and interaction with the European Parliament, that Swedish Match engaged in inappropriate lobbying behaviour in two ways.

First, Swedish Match sought access to persons with private contacts with Dalli, to get better access to him and influence over his decisions. After failing to achieve their lobbying goals via appropriate procedures in Brussels (e.g. responding to Commission public consultations, meeting officials, including in Dalli's cabinet), Swedish Match sent a representative, Johan Gabrielsson, to Malta to facilitate contacts with friends and acquaintances of the Commissioner, and ultimately with Dalli himself. Infringing on the personal sphere of a Commissioner in this way, in pursuit of lobbying goals, is, ALTER-EU believes, inappropriate behaviour in the context of lobbying.

Second, Swedish Match employed Gayle Kimberley, a Maltese lawyer, to engage in interest representation work, including to meet with Commissioner Dalli. Kimberley is not in the Transparency Register, thus enabling Swedish Match, a signatory of the register and bound by its code, to circumvent the requirements for transparency. This is inappropriate behaviour for a registered lobbyist who has committed to be bound by the rules of the Transparency Register.

On the basis of these activities, in March this year an ALTER-EU group submitted a complaint about Swedish Match to the lobby register secretariat. In May, the secretariat informed us that the evidence was sufficient for the complaint to be “received and examined,” but that the ongoing court case in Malta meant“a number of the elements contained in the complaint are currently challenged and sub judice”. They therefore concluded that a decision on a possible violation of the lobbyist code of conduct must be suspended until completion of the Malta court case against Zammit.

This response seems unduly restrictive for the very simple reason that nothing in our complaint is about alleged illegal activities (e.g. entrapment, bribery, corruption, etc) – it is solely about Swedish Match employing an unregistered lobbyist (Gayle Kimberly) and traveling to Malta to facilitate contacts with the Commissioner. Neither of these points are under dispute or waiting to be determined by the court case.

Oil and gas: PGNiG

In April 2012 ALTER-EU groups submitted a complaint about Polish oil and gas company PGNiG's inappropriate lobbying behaviour. PGNiG funds the Coalition of Citizens towards Responsible Energy (CC-RE), a front group(2) that lobbies on behalf of their commercial interests, including at prominent events in the European Parliament.Whilst this is not listed in their registration, CC-RE – itself unregistered – hosted an exhibition and reception entitled “How shale gas will transform Europe?” on 20 November 2012, inside the parliament building in Strasbourg - directly outside the plenary room - on the day of a key plenary vote that had serious implications for the future of shale gas in Europe. The promotional material and flyers advertising CC-RE's event did not namePGNiG.

ALTER-EU believesthat PGNiGengaged in inappropriate behaviour by promoting its commercial interests in a dishonest and opaque way through a “citizens front group” - which according to the rules of the register, should have signed up - that PGNiG was funding to represent its interests. PGNiG thus circumvented the rules of the transparency register about client and financial disclosure by using an unregistered lobby group (CC-RE) to engage in lobbying activities on its behalf. It was furthermore inappropriate that CC-RE, funded by PGNiG, put on an event thatlikely broke the Parliament's rules, which state that exhibitions should “under no circumstances have a commercial purpose” or “serve to advertise and promote individual companies or for-profit organizations.”(3) Yet CC-RE's event served the commercial interests of the three companies that fund CC-RE, namely to avoid Europe-wide legislation of shale gas activities that could have an impact on the financial performance of these companies.

The register secretariat accepted our complaint as receivable in May, butafter a number of delays, we are still waiting for an assessment of the case. As such, the delays our complaints have faced mean we do not yet know how the register secretariat will interpret theban on inappropriate behaviour and undue pressure in the code. The secretariat's acceptance of our complaint is promising, and we hope that their assessments, conclusions and the consequent actionstowards the registrants will live up to this promise.

What next?

The lack of clarity in the code of conduct, particularly about what constitutes “undue pressure” or “inappropriate behaviour” for lobbyists – alongside the absence of monitoring and enforcement – have resulted in the code of conduct for lobbyists being treated as merely a 'tick box' exercise for most registrants. ALTER-EU believes that the experience of the lobby register's first two years, particularly the continuing high – and – low profile lobby scandals, demonstrate that the code requires an overhaul in order to become an enforceable, comprehensive and effective ethics code for lobbyists, as part of the imminent two-year review process of the Transparency Register. You can read more about our recommendations in the ALTER-EU briefing on the code of conduct for lobbyists.