Full text: Legal Study

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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