Full text: Legal Study

12 Based on the foregoing it seems safe to argue that the EU has the competence to regulate lobbying activities aimed at EU organs and institutions engaged in legislative activities based on the understanding of the implied powers doctrine developed above. Such a competence might even include the competence to impose sanctions as indicated by the ECJ.34 The above conclusion raises the question about the applicable legislative procedure. Apparently this question has not yet been addressed in legal doctrine let alone by the ECJ. Since the Treaty of Lisbon, the answer would seem rather obvious: In the absence of any indication that a special legislative procedure is more closely related to the subject matter, the ordinary legislative procedure would be appropriate, because this procedure is the normal EU procedure. Hence, Art. 294 TFEU would apply requiring a proposal by the Commission and a joint legislative act of the Parliament and the Council, the latter acting on the basis of a qualified majority voting. 3.3. ARTICLE 352 TFEU Lastly, binding regulations could also be based on Article 352 TFEU. This provision enables the EU to legislate should it be necessary “to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers”. It can be argued that adopting a mandatory lobby register generally binding on lobbyists would be necessary to attain the objective of transparency as stipulated in Article 11 TEU and 15(1) TFEU. However, it should be noted that such measures require unanimity in the Council and only the consent of the European Parliament. This is due to the fact that Article 352 TFEU is usually employed if the treaties neither explicitly nor implicitly confer a competence on the EU, but its activities are nevertheless required to attain an objective mentioned in the treaties. The latter aspect usually leads to the conclusion that a lobby-register can only be based on Article 352 TFEU. In particular, this seems to be the view of the Legal Service of the European Parliament. In a Legal Opinion of 25 March 2010 the Parliament’s Legal Service recalled that Articles 11 TEU and 15 TFEU do not contain legal bases for a binding register and then focused on the issue of Article 352 TFEU alone.35 The Legal Opinion neither addressed the doctrine of implied powers nor the potential of Article 298 (2) TFEU. However, as shown above the EU has been given the power to regulate lobbying activities in a binding manner based on these legal principles. Recourse to Article 352 TFEU is therefore not necessary. 34 ECJ, Case C-176/03, above note 27, para. 48 35 European Parliament, Legal Opinion Re: Possibility and modalities of mandatory registration of lobbyists, 25 March 2010 (on file with author).

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