7 
3.  LEGAL BASIS FOR A MA NDATORY REGISTER  
 
A mandatory lobby register at the EU level would require the adoption of EU legislation, i.e. 
a binding EU regulation or directive. The first question in this context is which legal form 
such a mandatory register should take. Arguably, the adoption of an EU regulation would be 
the preferred option. As stated in Article 288 TFEU, a regulation is binding in its entirety 
and directly applicable. It can therefore establish direct requirements for lobbyists and would 
not need any further implementation legislation. The crucial point is on which legal basis the 
EU could adopt such a regulation.   
 
According to the principle of limited conferral of powers, the EU can only legislate if the 
treaties contain a legal basis for the respective act. There is no provision in the treaty which 
contains an explicit competence of the EU to adopt binding rules for lobbyists. Articles 11 
TEU and 15(1) TFEU which contain the general rules on transparency do not contain a 
legislative competence. These provisions only establish general principles, but lack a specific 
conferral of powers to the European legislator to adopt binding rules for lobbyists.18 
However, there seem to be at least three potential legal bases for an EU regulation 
containing mandatory rules for lobbyists: Article 298 (2) TFEU, the doctrine of implied 
powers and Article 352 TFEU. 
 
3.1. ARTICLE 298 (2) TFEU: OPEN, EFFICIENT AND INDEPENDENT EUROPEAN 
ADMINISTRATION 
 
Article 298 (1) TFEU stipulates that �[i]n carrying out their missions, the institutions, bodies, 
offices and agencies of the Union shall have the support of an open, efficient and 
independent European administration�. According to Article 298 (2) TFEU, �the European 
Parliament and the Council, acting by means of regulations in accordance with the ordinary 
legislative procedure, shall establish provisions to that end.� 
 
This legal basis was newly introduced into the EU treaties by the Treaty of Lisbon. It allows 
the EU to enact general rules and regulations concerning administrative procedures with the 
objective to establish and ensure the openness, efficiency and independence of a European 
Administration. This legal basis has not yet been used in EU legislation and there is no case 
law on this provision yet. Accordingly, an interpretation of this provision can only be based 
on the standard methods of interpreting EU Law. 
 
                                                     
18 This is also clearly stated in a Legal Opinion of the Legal Service of the European Parliament on the issue. 
See European Parliament, Legal Opinion Re: Possibility and modalities of mandatory registration of lobbyists, 
25 March 2010 (on file with author).
        

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