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Are lobbies legal in Europe?

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In Expansión Isabel Martínez analyses the change in the law which is being processed in the rules of procedure of the Congress to regulate the scope that these interest groups can reach in the decisions of the Lower House

Lobbies, or interest groups, can play an intermediary role for the legislator to regulate certain issues in a more concrete and precise way. However, experts believe that this approach must be carried out in full transparency and with clearly defined rules of the game from the outset.

In any legislative decision, however, the general interest must be paramount. As highlighted by Isabel Martínez Moriel, partner in Andersen, only the common good should be pursued in this process, "at the risk of otherwise jeopardising the foundations of democracy itself”.

According to the lawyer, a change in the Congress' rules of procedure is currently being processed, which seeks the addition of a new Title XIV under the name of "Interest Groups", which will regulate the scope that lobbies can have in the decisions of the Lower House.

"It also provides for the creation of a registration register and the drafting of a code of conduct, which could be based on the code of conduct set out in Annex I of the Interinstitutional Agreement of 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register," she explains.

The regulation of lobbies, the expert explains, could include matters relating to fundamental rights and public freedoms, in which case, it would need to be regulated by an organic law, which would require an absolute majority in Congress, and this could lead to difficulties when it comes to its approval, given that there are already several political groups that are not very favourable to the regulation of lobbying.

In Martínez Moriel's opinion, both the European regulatory framework governing lobbyists' interaction with the European institutions and the new proposal for the Congress' rules of procedure are insufficient and there should be a single, more homogeneous framework at European level.

"It is also foreseen to incorporate publicity and registration rules, duties and obligations for members, and stronger limitations for people who have held public office, to avoid the famous revolving doors. In this sense, it is important that the limits and situations are well defined, which, in any case, should always be considered incompatible," the lawyer points out.

Despite the relevance of these issues, the Andersen partner stresses that there are clearly aspects that could be improved, such as encouraging the so-called white papers, which exist within the European Union, so that society not only has the possibility of submitting different sensibilities or plausible solutions to a problem, but also of publishing the proposals presented by all interest groups.

"The establishment of effective controls and the sanctioning regime in case of non-compliance must also be enriched. From the point of view of the effectiveness of controls, it is necessary to introduce the principles of accountability, which go beyond transparency. From the point of view of the sanctioning regime, it would be necessary to include the possibility of private application of this regulation, including, among others, the possibility of claiming damages from the individual person who, having breached the regulation, has benefited in a particular and interested way from a legislative or administrative decision in whose adoption he or she participated," Martínez Moriel concludes.

Should the so-called legislative footprint be established?

For the lawyer, this is a very good idea, if this legislative footprint includes each one of the actions that may have been subject to lobbying.

In this sense, the expert points out that "it would be necessary for the regulation to include the obligation to publish all information on legislative initiatives and other public policy-making processes in order to establish a publicly accessible legislative footprint in harmony with the Law on Transparency, Access to Public Information and Good Governance (LTBG) that includes, as a minimum, meetings with pressure groups, the background of the issue, public participation and the process that has been followed".

What are the differences between the CNMC's voluntary lobby register and the future Congressional regulation?

The congressional register of lobbyists seeks to bring political dialogue and influence in parliamentary proceedings closer together and is mandatory, while the CNMC's voluntary register is aimed at dialogue and influencing CNMC decisions that promote market efficiency and the welfare of consumers and businesses. The registers are not incompatible, but complementary. "In this way, interest groups could direct their power of influence in two directions, which is interesting," she says.

What are the reference regulations on lobbying in the world?

Isabel Martínez Moriel points out that the US regulation establishes very interesting measures such as quarterly reports on their activity and income; the maintenance of a public and free database with certain information on lobbies and their composition, or the publication of activities that have been financed by lobbies.

"It establishes a two-year period in which it is forbidden for a high-ranking official, member of Congress or senior administration to contact anyone related to the lobbyist since the end of his or her term of office. And something that would be highly topical in Spain, it expressly prohibits the use of public funds to finance the private defence of political representatives and legislators in causes unrelated to the exercise of their office or in violation of their office and the prohibition of using public funds for political promotion of political parties", adds the lawyer by way of conclusion.

The full article can be read in Expansión

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