You’re a lobbyist in Brussels and you’re perplexed by the European Union’s new rules on transparency. You long for the days when you could work in the shadows, chat up officials, take long liquid lunches. The days before Jean-Claude Juncker rode into the Berlaymont demanding greater transparency.
Don’t worry. In some ways the good, old days are still here. Despite the new rules, experts say there are still plenty of loopholes that can be exploited if you’re savvy enough.
Juncker promised during his campaign for the Commission presidency last year to tighten lobbying rules that were too easily abused. The focus on transparency came after a 2012 scandal that exploded after it was revealed that John Dalli, the commissioner for health, had held an unreported meeting in a Maltese café with a tobacco lobbyist when the Commission was drafting tobacco legislation.
Now, under Juncker, the once-dormant EU transparency register has been revived and toughened, with commissioners forbidden to meet with lobbyists who have not signed up. Political staff and top bureaucrats must report their dealings with those seeking to influence them.
But the new transparency register is far from perfect, according to lobbyists and lawyers who have already adapted to it. The Commission knows the rules need more teeth and is working on another round of reforms.
Until that happens, here are five ways that this town is still beating the system.
Hire a lawyer
You don’t need Perry Mason. What you need is a lawyer who is a lobbyist in all but name. They’re everywhere in Brussels — indeed, in many Brussels firms you don’t even need a law degree to have a senior role in the corporate affairs arm.
Why hire a lawyer and not a card-carrying lobbyist? Because lawyers can protect their clients’ identities while lobbyists can’t. Indeed, in many European jurisdictions lawyers could be disbarred for revealing any information about their clients’ case.
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Critics of the practice say lawyers are using attorney-client privilege to gain a competitive advantage, providing all of the services of lobbyists with none of the disclosure requirements.
Professional lobbyists know the trick, and they’re fuming. “We think there should be a level playing field and we believe that they should declare in the same way that we do,” says James Stevens, senior vice president and senior partner at FleishmanHillard, one of the largest lobbying firms in Brussels.
Lobbyists who speak off-the-record are less diplomatic — describing the situation as it stands as a “disgrace” that should be stopped. The EU transparency register’s criteria of what defines lobbying, they point out, are crystal-clear: “All activities designated to influence — directly or indirectly – policymaking, policy implementation and decision-making in EU institutions.”
Some lawyers in town have been grappling with the issue of transparency. They argue that the competitive advantage is there but their hands are tied due to European bar rules. The problem, they say, is the system itself.
“If there were a mandatory register which enabled us — or forced us — to disclose this information about clients, that would not be a problem,” says Andreas Geiger, managing partner of law firm Alber & Geiger. “Something like that would force all of the black sheep out of the market and that would bring us a lot more clients.”
What the EU needs, according to Geiger, is a similar disclosure regime to the US, where attorney-client privilege does not extend to lobbying. “The [Washington] DC model is a good blueprint for what we could do in Brussels,” he says. “In the US […] bar rules say that while attorney-client privilege can remain in place, lobbying is different. When lobbying, you have to disclose.”
A growing number of Brussels lawyers say they are ready to disclose, but want rock-solid guarantees they will not be disbarred as a result. For that, they need the 28 bar associations of EU member states to agree.
Don’t hold your breath.
The new transparency rules require that commissioners, their political staff and the most senior civil servants — departmental heads — report all of their interactions with lobbyists. But that leaves thousands of other people you can still meet without reporting it, and many of them have the power to help you.
NGOs monitoring lobbying in Brussels say that limiting transparency requirements to directors-general remains the Achilles’ heel of the new regime, and they have a point.
Chances are you were already going past the top staff in the various Commission departments. Email exchanges at the height of the tobacco lobbying efforts in 2011 and 2012 reveal just that: Directors-general, the top public servants, weren’t usually in the meetings (although they were often copied in on subsequent correspondence).
One prominent lawyer and former senior public servant told POLITICO that this is something lawyers understand but lobbyists don’t. “Lobbyists go straight to the director-general,” he says. “Why? Because they want to show their clients that they are meeting important people and — by implication — that they are doing their job well.”
Lawyers are working on a different level. They typically call the “desk officer” who is doing the policy drafting on a particular measure and most of the heavy lifting. “The director-general is unlikely to get involved in the case,” the lawyer said. “He or she will take the advice provided by those with greater levels of expertise. Anything else would be highly unusual.”
While carefully side-stepping the lawyer-versus-lobbyist trash-talk, FleishmanHillard’s Stevens says the suggestion that policy formulation is carried out by officials working on “little dossiers” that work their way up the chain is no longer relevant. Juncker’s proudly “political” Commission is totally top-down.
Nevertheless, many lobbyists say that time spent with rank-and-file civil servants is time well spent, provided they are in the right policy area.
Keep it casual
No, this is not a dress-code suggestion. It’s another easy way to dodge the transparency register: meet off-line.
The Commission’s decision on the mandatory reporting of meetings with lobbyists, which was approved in November 2014, describes a “meeting” as a “bilateral encounter organized at the initiative of an organization or self-employed individual […] to discuss an issue related to policymaking and implementation in the Union”.
But the regulation adds that “encounters of a purely private or social character or spontaneous encounters are excluded from this.”
The ‘spontaneity’ of an encounter gives lobbyists some wiggle room — particularly in their dealings with members of Commissioners’ cabinets, who are likely to get out and about more often. There will be conferences to attend — often held by industry groups — or catch-ups outside the office.
One lobbyist tells POLITICO these meetings do not have to involve lunch, dinner or even a coffee. An exchange of business cards on the sidelines of a conference — one contact in a commissioner’s cabinet — is all that is needed. The rest can be done by phone or email.
In fact, top lobbyists say they now monitor commissioners’ meetings closely to see what their competitors are up to. Too many meetings? You’re not having much luck. If your phone calls are being returned, face-to-face contact is a waste of time.
Your other option is to check the travel itinerary of EU foreign policy chief Federica Mogherini, whose office told POLITICO she is bound by the transparency rules when wearing her hat as vice president of the Commission, but not when she is abroad — or out of the office — as high representative for foreign affairs.
If you have the resources and the patience for it, the Council of the EU is yours for the taking. The Council, where important decisions are made by ministers from the EU’s 28 member states, offers little in the way of transparency and wants to keep it that way.
Internal documents have shown that the Council has no intention of signing up to the transparency regime or, if it is eventually forced to by public pressure, it will allow it to extend only to its officials.
For you, the lobbyist, that’s fine. Council officials don’t have any influence — and most lobbyists don’t bother getting in touch. The real “low-hanging fruit,” one lobbyist says, are the permanent representatives. These are the national offices of the member states whose ambassadors and their staff do most of the legwork ahead of Council meetings.
The larger “perm reps” are staffed by capable diplomats who know policy details inside and out. They are accessible and — more importantly — all in Brussels. Unless there is something controversial on the agenda, ministers usually just show up at Council meetings and sign off on whatever the perm reps put in front of them.
There’s your chance!
Comitology is the art of implementing EU policy that has been signed, sealed and delivered by the institutions. Lobbyists use the ‘c’ word sparingly, unless they want to impress clients. But they are increasingly taking advantage of the process.
The implementation of EU law is left to Brussels Eurocrats in the form of “delegated acts.” This gives officials some discretion in modifying directives to suit the legal or technical requirements of member countries. This is where legislative tweaking is done — what one lobbyist calls the “widgets-making” side of the process.
Delegated acts are opaque: there is no public register and no centralized website to see who does what. Which means that lobbyists need to find out which pieces of legislation will require the establishment of delegated acts; then, after identifying the right official to contact (a web search is usually enough), it is possible to have a real impact on the process.
Lobbyists often resent the suggestion that there is anything sinister about their involvement in this part of the process. They argue that this is simply a chance to offer the under-staffed departments some real technical expertise in the implementation of law — it’s all nerdy, techie stuff with no broader policy implications.
They may be right. But there is no way for outsiders to know.