Full text: Legal Study

11 with Article 298 (2) TFEU would be adopted in the same way as regulations based directly on Article 298 (2) TFEU, i.e. through the ordinary legislative procedure.30 Another aspect of implied powers which is well accepted in the literature and in domestic legal systems, concerns a competence which is based on the recognition that the relevant matter can only be regulated by the EU, because a regulation of the subject by the Member States would be obviously useless.31 This competence – sometimes called competence based on the nature of the matter (Natur der Sache) – has so far not been used by the ECJ, but there is no indication that the ECJ might not accept it. This aspect of the implied powers doctrine seems particular relevant in the present context. It can be argued that the regulation of lobbying activities vis-?-vis the EU’s organs and institutions is a matter which by its very nature can only be regulated by the EU. Lobbyists or lobbying activities with a clear EU focus cannot be regulated by the Member States, because they have no competence for the regulation of genuine EU affairs. The same argument is accepted in German constitutional law doctrine concerning the regulation of lobbying activities at the federal level: Even though there is no express competence in the German constitution for the regulation of lobbyists, it is accepted that only the Federation and not the Länder (the States) can legislate on this matter.32 Usually this is based on the competence of the Federation to legislate on the federal state organs. Consequently, the Federation cannot legislate on lobbying activities at the Länder level. This parallels the situation at EU level: Only the EU has the inherent power to legislate about those lobbying activities which concern its organs. Accepting an implied competence of the EU to regulate lobbying activities at the EU level does not diminish in any respect sovereignty rights of the Member States. Member States remain free to regulate lobbying activities towards their organs and institutions in different manners.33 They are also free in adopting regulations addressing their nationals and companies engaged in lobbying activities for example through national taxation or company laws. Finally, Belgium as the country where most lobbyists have established themselves also remains free to regulate based on the principle of territorial sovereignty. Recognizing that an EU competence to regulate EU lobbying activities does not diminish regulatory competences of the Member States is a crucial aspect in the context of implied powers as there is always a danger that this doctrine could be used to broaden the scope of the EU to the detriment of the Member States. 30 See above a). 31 Nettesheim, above note 26, p. 412. 32 Helge Sodan, Lobbyregister als Verfassungsproblem, Landes- und Kommunalverwaltung 2012, 193 (197); Hoppe, above note13, p.140. 33 EU and Member State lobbying regulations may have an overlap regarding Member State’s governments. If these are lobbied in their capacities as national constitutional organs, the Member States remain competent. If Ministers are lobbied in their capacity as members of the Council of the EU, the competence of the EU exists.

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