Full text: Legal Study

4 be conducted in the first half of 2013. One question to be considered in this process concerns whether and how the current register could be developed into a binding register.2 Transferring the current voluntary regime into binding rules has been a demand of the European Parliament since a number of years. In this context reference can be made to the European Parliament’s Resolution of 8 May 2008 on the development of a Framework for the activities of lobbyists in the EU institutions3 and the decision of the European Parliament accompanying the Interinstitutional Agreement establishing the Transparency Register of 11 May 2011.4 In the latter decision the European Parliament “[r]epeats (…) its call for the mandatory registration of all lobbyists on the Transparency Register and calls for the necessary steps to be taken in the framework of the forthcoming review process in order to prepare for a transition to mandatory registration.” It should be noted that the decisions of the European Parliament did not specify which legal basis could be used to adopt such a mandatory regulation. The present study provides an overview of the pertinent legal issues involved with a mandatory EU lobby register, discussing the legal basis, form and potential contents of such a register. The study assesses if there is a legal basis in current EU primary law to establish a mandatory lobby register. The question of the legal basis is of special interest, because the apparent lack of such a legal basis is a common argument against a mandatory register. In particular, the opposition of the European Commission against a binding register seems to be partly based on the assumption that the current treaties do not contain a sufficient legal basis for a register.5 The study will therefore also discuss how such a legal basis could be established if the treaties in their current form are not deemed to be sufficient. In addition, the study also addresses other possibilities to make the current regime more effective through stricter staff rules or codes of conducts of the European Commission or Parliament. 2.1. Approaches towards regulating lobbying Generally, three types of regulating lobbying can be distinguished in international practice: Professional self-regulation, institutional registers and mandatory legislation or other legally binding standards.6 Self-regulation refers to codes of conducts developed by professionals and their associations which contain voluntary standards of behavior.7 Compliance with these standards is ensured 2 Annual Report on the operations of the Transparency Registry 2012, p. 14, available at http://europa.eu/transparency-register/pdf/transparency_register_report_20121029_en.pdf. 3 OJ, 12 November 2009, C 271 E/48. 4 OJ, 7 December 2012, C 377 E/176. 5 Maroš Šefèoviè, Lobbyismus braucht Transparenz – Das neue Transparenz-Register des Europäischen Parlaments und der Europäischen Kommission, Recht und Politik 2011, 198 (201). 6 See also Valts Kalni?š, Transparency in Lobbying: Comparative Review of Existing and Emerging Regulatory Regimes, 2011, p. 15, available at http://www.pasos.org.

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