LOBBYING IN GERMANY

Authors: Friedrich Ludwig Hausmann and Mathias von Kaler (PricewaterhouseCoopers)

Constitution: The basic source of German law is the constitution, the Basic Law for the Federal Republic of Germany (the Basic Law), which does not contain explicit regulations on lobbying. However, it contains a charter of fundamental rights, such as the freedom of expression, freedom of occupation, freedom of assembly and the right of petition, which protect, inter alia, relevant aspects of a lobbyist’s professional activity, and that bind the legislature when creating new regulations, including those on lobbying and government relations. Furthermore, the Basic Law is the origin of the principle of proportionality, which applies to every legislative measure, stipulating that the measure must: have a legitimate objective; be suitable; be the only means necessary to achieve the intended legislative change (ie, that there is no less onerous alternative); and be reasonable, considering the competing interests of stakeholders.

Legislative system: Germany is a parliamentary, representative republic structured by the principle of federalism, which means that powers are shared between one central (or federal) government and a number of regional governments at two levels: the 16 federal states (the states); and the municipalities. The members of the central parliament (the parliament) are directly elected by the German people in free, equal and secret elections for a period of four years. The same applies to the parliaments of the states (the state parliaments). The parliament is one of two legislative bodies, the other being the federal council. The members of the federal council are not elected, but are delegated by the state governments, also for a period of four years. The head of state is the President. He or she is elected by the federal convention, an institution consisting of members of the parliament and an equivalent number of state delegates. The President is invested primarily in representative responsibilities and powers. The second-highest German official is the President of the parliament, who is elected by the parliament and is responsible for overseeing the daily parliamentary sessions. The third-highest official and head of government is the Chancellor who is appointed by the President after being elected by the parliament. The competence to adopt regulations on lobbying is entirely with the parliament, as it has not delegated this authority to any other institution thus far.

National subdivisions: In line with the concept of federalism, the federal government, the states and the municipalities have different tasks and responsibilities ruled by a complex system of checks and balances. The allocation of competence between the federal government and the states falls into three categories.

• Exclusive legislative competence of the federal government applies to defence, foreign affairs, immigration, transport, communication and currency matters.
• The federal and the state governments share concurrent powers, meaning that states are free to legislate where the federal government has not done so, in areas such as civil law, refugee and expellee matters, public welfare, land management, consumer protection, public health, and the collection of vital statistics.
• In the areas of mass media, nature conservation, regional planning and public service regulations, the federal government provides a legislative framework, wherein the states are free to issue more specific and detailed regulations taking into account their specific situation and requirements, in order to balance the aim of appropriate state autonomy with the need for equivalent nationwide standards.

Municipalities have the constitutional right to regulate all local affairs, unless federal or state law provides otherwise. The guarantee of self-government implies significant financial autonomy, including the right of municipalities to levy specific taxes and to determine the corresponding tax rates, for example on land transfer or local businesses. Furthermore, municipalities have stringent planning autonomy, with regard to, for example, what kind of buildings and physical structures are permissible in specific local areas or to prohibit specific types of use in these areas for the sake of, among other things, nature or environment protection.

When purchasing goods or services, all public authorities, irrespective of whether it is at the federal, state or municipal level, act as public contractors and have to observe public procurement law. Consequently, contracts exceeding specific thresholds must not be awarded directly but have to be put out to tender in order to establish fair, transparent and non-discriminatory competition.

Lobbying activities may take place at each of the three administrative levels. Although most major decisions are made at the federal level, state and municipal authorities are also endowed with significant decision-making power, making them potential targets of influence groups.

Consultation process: German law does not provide for Green or White Papers. However, the federal ministries’ rules of procedure provide for the states, the leading municipal associations and the national associations to be heard on every draft bill affecting their interests. These institutions usually take the opportunity to address comprehensive statements to the parliament and to delegate experts to the hearings, trying to influence the legislative process in their favour. Furthermore, there is some potential for informal influence on members of the parliament. German law does not prohibit lobbyists from approaching parliament members, nor does it require documentation of such contact. Accordingly, it is common practice for lobbyists to communicate with parliament members in order to define their position on a specific draft bill.

Judiciary: The judiciary as a whole, and every judge individually, are independent. Historically, this principle, firmly anchored in the Basic Law, has existed longer than German democracy itself. Almost every governmental action can be subjected to judicial review, giving the judiciary significant controlling power and an important role within the state. Judges are not elected by the people but chosen on their merits and appointed by the competent executive authority. An exception applies to judges of the Constitutional Court who are elected by the parliament and the federal council. There is no campaigning for candidates.

General: There is very little regulation of lobbying in German law. The few existing provisions on lobbying have been set forth by the parliament and, as a means of voluntary self-regulation, by several lobby associations. However, the codes of conduct set forth by the latter contain only general principles rather than detailed rules. The sole power to set forth binding regulations on lobbying remains with the parliament, which, so far and subject to a few exceptions, has refrained from doing so. However, German criminal law sets additional limits to the scope of lobbying, considering active and passive bribery a criminal offence .

Definition: German law does not provide any definition of the term lobbying. However, in political and legal context, lobbying is usually described as the planned representation of interests of an association, organisation or enterprise by making and keeping contact with representatives of political or administrative institutions, such as the parliament, government and ministries, in order to gain or exercise influence on decisions made by these institutions.

Registration and other disclosure: There is no compulsory lobby register. In 1972, the legislature introduced a voluntary registration of lobby associations and their representatives, however this register covers neither self-employed lobbyists nor entities governed by public law. Being registered is a necessary condition - but not a guarantee - for a lobbyist to be admitted to the premises and to sessions of the parliament. A maximum of two access passes are provided to each lobbying association, which are issued to representatives and are non-transferable (ie, only the specified representatives may use them).

Activities subject to disclosure or registration: There is no obligation to register communication. As to the disclosure of communication, a distinction must be made between legislative and executive officials. Members of the parliament are not obliged to disclose their communications with lobbyists, and there is no such obligation for lobbyists. Executive officials, as far as they are members of the government, can be subjected to enquiries based on the parliamentary right to question, usually initiated by opposition members or groups of parliament. The outcome of such enquiries varies greatly depending on the circumstances of a specific case, but it is a potentially suitable instrument for gaining a variety of information, including on lobbying. Furthermore, all executive officials are subject to the obligation to disclose information under the Freedom of Information Act or corresponding state regulations, granting every citizen and organisation the right to request specific information from administrations at all three levels. Depending on the individual case, such a request can result in substantial information on lobbying, unless certain exceptions apply. Where authorities refuse to provide information, requestors can take legal action before the competent administrative court - an option that is proving to be increasingly successful. However, the requested information will not be disclosed to the public but only to the requestor, leaving it to his or her sole discretion whether to publish it.

Entities and persons subject to lobbying rules: Disclosure obligations apply to executive authorities, such as ministries. There is no such obligation for individuals or private associations.

Lobbyist details: There is no obligation to register any information related to lobbying. An individual or an association may request such information based on the Freedom of Information Act, but owing to several exemptions, the prospects of success are usually quite poor. Enquiries to the government are likely to be more successful, however, owing to the parliamentary right to question. Depending on the individual case, a line of enquiry may lead to substantial information on lobbying activities.

Content of reports: There is no obligation to submit reports on lobbying activities. The voluntary record of lobby associations kept by the President of the parliament used to be published annually in the Federal Gazette. Since 2012, the register is kept and published solely online where it is updated on a more frequent basis. The data registered includes an association’s name and office location, telephone and fax number, email and internet address, members of the executive board and management, fields of interest, number of members and affiliated organisations, names of representatives, and address of branch offices at the parliament or Federal Council.

Financing of the registration regime: There is no binding lobbying register in Germany, but only a voluntary register kept by the President of the parliament. It is solely publicly funded, and there are no registration fees collected from the associations.

Public access to lobbying registers and reports: The voluntary register kept by the President of the parliament (the Public List of Associations registered with the parliament) is published on the internet in searchable PDF format, but without advanced database research features.

Code of conduct: There is no binding code of conduct that applies to lobbyists and their professional activity. Some associations, such as the German Society for Policy Consulting, have established codes of conduct, committing their members to certain values such as truthfulness, discretion, non-discrimination and respect. However, all of these codes provide for general principles rather than detailed rules, none of which are legally binding.

Media: The Interstate Broadcasting Treaty bans political, ideological and religious advertising in German broadcast media. Therefore, lobbyists cannot directly use the media for influencing political decisions. The Treaty provides for two exceptions:

• Upon request, the Protestant Church, the Catholic Church and the Jewish communities have to be granted adequate broadcasting time for religious programmes.
• Political parties have to be granted adequate broadcasting time when campaigning for their election to the parliament.

In either case, broadcasters can request to be reimbursed at cost. Political, ideological and religious advertising in print media is generally permitted, but the media is not obliged to publish such content. According to German press law, advertisements must be clearly recognisable as such or have to be explicitly labelled ‘advertisement’. As a consequence, all political advertisements in print and broadcast media are clearly designated as advertisements in order to avoid ambiguity between the party’s electoral message and journalistic content.

General: Political parties in Germany have four main sources of funding:

• membership fees;
• donations from individuals or corporate entities;
• contributions from the party’s office holders (who can be bound by the party’s statutes to pass on parts of their remuneration to the party); and
• grants from public funds.

In 2009 (an election year), the total revenue of all parties represented in the parliament (CDU/CSU, Bündnis 90/Die Grünen, FDP and Die Linke) amounted to €394 million, of which 32.5 per cent was public funds, 30.7 per cent membership fees, 22.8 per cent donations, and 14 per cent contributions from office holders. Political parties are also entitled to carry out business activities; however, this source of revenue is of minor significance.

Registration of interests: Political parties, as well as members of the parliament, must, to a certain extent, disclose contributions received, which applies to money and cash-value benefits . This is the only obligation that exists with regard to registering or declaring interests.

Contributions to political parties and officials: There are no limits on political contributions or other disbursements to parties. However, for the sake of transparency, which is a key principle of German legislation on party funding, parties are subject to certain disclosure obligations. Contributions of more than €50,000 have to be reported immediately to the President of the parliament who subsequently publishes the amount and donor’s identity on the internet. A contribution of €10,000 to €50,000 has to be published only in the party’s annual report. Contributions below €10,000 do not have to be published. Political parties are not permitted to accept donations from specific entities, such as corporate bodies regulated by public law, party-related foundations or parliamentary groups, or donations that are granted as an anticipation of or compensation for economic or political favours or advantages. Donations from abroad are, in principle, permitted, however, exceptions apply, inter alia, to donations from the assets of German citizens living outside Germany or an EU citizen. The same exceptions apply to companies that are majority owned by German or EU citizens and to companies that have their main office in the European Union. A member of the parliament is, in principle, allowed to accept contributions, but only for his or her personal use and not on behalf of his or her party. Contributions exceeding €5,000 per annum have to be reported by the member to the President of the parliament, who, if the amount exceeds €10,000 per annum, will additionally publish the amount and the donator’s identity. Members of the parliament are free to engage in external activities without limitation, but any income above €1,000 per month or €10,000 per annum has to be disclosed to the public, together with the identity of the principal or employer, whereas the amount does not have to be explicitly quantified but grouped in one out of 10 categories between €1,000 to €3,500 and more than €250,000.

Sources of funding for political campaigns: Only political parties are entitled to public funding of their campaigns in Germany. All political campaigns run by other organisations or individuals are subject to private funding, which is neither regulated nor limited. There are also no reporting requirements and, therefore, no searchable database on this information.

Lobbyist participation in fundraising and electioneering: The registration as a lobby association is voluntary and does not entail any specific restrictions or disclosure requirements with respect to candidate fundraising.

Independent expenditure and coordination: There is no specific regulation on political campaigning, independent of a candidate or a party. Such campaigning, as well as grass-roots campaigning, is, in principle, admitted. In fact, there have been some examples of wealthy individuals organising and financing such campaigns. In 1998, the German entrepreneur Carsten Maschmeyer supported Gerhard Schröder’s candidacy for chancellor with an advertising campaign in Lower Saxony. German law does not restrict such campaigns or provide for an obligation to coordinate them with the corresponding party’s campaign. However, it is unclear whether such campaigning has to be qualified as a contribution to the party (by means of a cash-value benefit), which would entail the obligation to disclose it. Even if this is the case, such campaigning is, in principle, permitted and not subject to specific regulations.

Gifts, travel and hospitality: The regulations on the acceptance of gifts, travel and hospitality by executive officials are quite strict. Based on criminal law and other considerations, executive authorities have issued decrees prohibiting their employees, to a wide extent, from accepting such benefits. Exceptions apply only to low-value gifts like plastic ballpoint pens or socially acceptable hospitality, such as providing a meal after a factory tour or during a conference. The rules for parliament members regarding the acceptance of such contributions are less restrictive. They are, in principle, allowed to accept free entry to conferences and other events they have been invited to in the exercise of their function, including catering and the refund of travelling and accommodation expenses. These contributions may be subject to disclosure obligations, as they are to be treated as donations for personal use . Members of the parliament are not permitted, under any circumstances, to accept contributions made in anticipation of or in return for a certain act that is part of their function.

Anti-bribery laws: Under the German Criminal Code it is deemed an offence to give or accept bribes or facilitation payments. Whereas some elements of criminal offences refer only to public officials, it is also deemed a criminal offence to give or accept bribes in trade where no office holders are involved. Executive managers can be held responsible for offences committed by representatives of their company they actively support or fail to stop acting. As of 2014, members of parliaments at all administrative levels are subjected to the criminal provisions of active and passive bribery in every aspect of their parliamentary mandate. Active and passive bribery relating to medical professionals is considered a crime. Offenders convicted of bribery face long-term imprisonment, a criminal fine and the confiscation of benefits obtained from the offence. Whereas the Criminal Code applies to individuals only, legal entities can be held responsible for corruption offences committed on their behalf under the Administrative Offences Act. Where a company owner or the management omit supervisory measures required to prevent criminal offences, maximum fines of €10 million for each intentional offence and €5 million for each negligent offence apply. However, the overall penalty can exceed these amounts without limitation as authorities are authorised to confiscate all benefits obtained from an offence. It is the public prosecutors’ competence (and duty) to investigate any potential offence that is reported to them by an authority, a company or an individual, enjoying comprehensive investigation rights, such as interrogations, arrests and house searches. If a public prosecutor comes to the conclusion that a suspect is reasonably likely to be convicted, he or she will commence a trial before the competent criminal court.

Revolving door: While the transition of public officials into the private sector (including lobbying) is not regulated in Germany, regulations exist regarding private--sector professionals being seconded to public bodies. Pursuant to the General Administrative Regulation, such secondments are permitted, but they are subject to some restrictions. Private-sector professionals are not permitted to be seconded to specific areas of the public sector or to accept positions that give them ultimate decision-making power or significant responsibility for, among others, drafting legislation or awarding public contracts. There is no obligation to disclose a secondment to the public, but the competent parliament committees can request to be informed on the secondment and its details. The General Administrative Regulation does not apply to fixed-term employment contracts, which some non-government organisations consider a loophole.

Prohibitions on lobbying: It is not possible to be barred from lobbying or engaging lobbying services. However, a lobbyist can have their access to the parliament revoked in cases of misconduct, such as repeated violation of the house rules.

Recent cases: Until 2016, it was not mandatory for lobbyists to register with the record of lobby associations in order to be granted access to the premises of the parliament (although it was considered helpful if they did so). In 2014, a citizen sued the parliament on the grounds of the Freedom of Information Act in order to obtain information on how many access cards had been issued and to which associations (including those not registered). The parliament had refused to supply this information because it considered the details to be confidential and wished to protect the independent exercise of its members’ mandates. However, the Berlin Administrative Court ruled in 2015 that the information requested was of a purely administrative nature and therefore ordered that it be disclosed to the plaintiff. This decision is considered to be one of the main reasons the parliament changed its policy in February 2016, making the (still voluntary) registration with the record of lobby associations a mandatory prerequisite for being admitted to the premises of the parliament. This change helped increase transparency insofar as the record now provides a complete and fully public list of all lobbyists frequenting the parliament.

Remedies and sanctions: As there are no obligations of lobbyists to register or report, no remedies or sanctions are provided for by law. However, associations that have failed to register with the list of lobbying associations will not be granted access to the parliament.