August 2, 2010
The European Commission launched in 2008 a voluntary register for lobbyists seeking to influence its policymaking. Interest representation is a legitimate part of a democratic system. The register was established in a Commission effort to enhance public confidence. The accompanying Code of Conduct is intended to bring more transparency to interest representation, its actors and their activities.
The Commission considers the register to be a success but this is not necessarily a widely held view. There are currently discussions between the Commission and the European Parliament on agreeing a joint register of interest representatives. The inter-institutional High Level Working Group, composed of MEPs Diana Wallis (Chair), Isabelle Durant, Jo Leinen, and Carlo Casini and Commission Vice-President Maros Sefcovic meets regularly.
The present Code contains seven basic rules, specifying how interest representatives should behave when representing their interests. Registrants agree to abide by this Code or declare that they already abide by a professional code that has comparable rules.
Unfortunately, while law firms were included among the target groups from the very beginning, they are, in the words of the Commission, “still largely hiding behind the bar claiming registration is against the bar rules.”.
While criticisms can be levelled at the details of the scheme, the underlying objective is to be applauded. It is part of the exercise in building trust in the EU and thus increasing its legitimacy. The issue being addressed should be seen as a common challenge for the institutions and stakeholders to build a system that citizens can trust.
It is disappointing but not surprising that lawyers consider themselves above this exercise. The relevant provisions in the Code state:
“Interest representation” activities for which registration is expected are defined as “activities carried out with the objective of influencing the policy formulation and decision-making processes of the European institutions”.
“This definition does not include: activities concerning legal and other professional advice, in so far as they relate to the exercise of the fundamental right to a fair trial of a client, including the right of defence in administrative proceedings, such as carried out by lawyers or by any other professionals involved therein; “
It is obvious that lawyers sometimes seek to influence EU policy formation and decision making. Indeed many of them hold themselves out as carrying out lobbying. Legal advice is expressly excluded by the Code.
There needs to be a level playing field for all lobbyists; lawyers cannot be excluded. My experience as an officer of the CCBE (Consultative Council of the Bars & law Societies of the European Union) and President of SEPLIS (European liberal professions) began with some European bars arguing that avocats were exempt from the free movement provisions of the Treaty of Rome. It took two decisions of the Court of Justice to convince them otherwise.
Lawyers are not made in heaven. There are good ones and bad ones and dishonest ones, as there are with lobbyists and other professionals. Lawyers tend to seek protection for themselves and not necessarily for their clients. Given goodwill, a way can be found for lawyers to register while respecting the bar rules and protecting their clients’. .Author : Stanley Crossick