LOBBYING LANDSCAPE IN AUSTRIA

There are between 3000 and 4000 people professionally engaged in lobbying in Austria: 60% of them work in the chambers, an estimated 15% work in-house, about 15% work for associations and the remaining five to 10% are self-employed „agency lobbyists“. A 2014 survey of 357 members of the Economic Forum of Managers (WdF) showed that 62.2% of the Austrian companies surveyed practice lobbying. Most lobbying activity takes place in Vienna . Due to the federal structure of Austria, the number of contacts at state and local level involved in direct corporate lobbying is particularly high.

In Austria, there are two organisations that represent the interests of lobbyists: the Austrian Public Affairs Association (ÖPAV) and the Austrian Lobbying and Public Affairs Council (ALPAC). ÖPAV and ALPAC each have a code of conduct for their members, which can be found on their respective websites. Both the ÖPAV and the ALPAC require their members to comply with their code of conduct. The ÖPAV counts both individuals and companies among its members. Currently, it has nine institutional members and 108 individual members, who are listed on the website. The ALPAC membership is basically open to all independent advisors and partners of consulting companies who are full-time employees in lobbying and public affairs and other forms of policy advice. In addition to the code of conduct, the implementation of the ALPAC compliance directive is mandatory for all members. ALPAC publishes no names or number of its members on its website.

The first Austrian lobbying and interest representation law came into force on January 1, 2013. The law established a lobbying register and the explicit prohibition of acting as a lobbyist for public officials and politicians. Both these developments are certainly positive.

 Registration before engaging in lobbying activities is mandatory for the following four groups

A. Lobbying companies: Companies that lobby for clients in return for payment.

B. Companies: Companies that employ corporate lobbyists, provided no more than 5% of their time are used for lobbying activities.

C. Self-governing bodies: Legally established professional interest groups and other legally established self-governing bodies. Self-governing bodies include the Economic and Labour Chamber, as well as trade associations, provided lobbying is the sole or at least predominant activity.

D. Interest groups: Private legal association of individuals, provided that lobbying is the sole or at least predominant activity. This includes association members, NGOs (with restrictions).

The following groups are completely excluded from the scope of the Lobbying Act (and are not obliged to join the register): Political parties and their party-affiliated organisations;  Religious groups; Austrian towns and municipalities, whose social security institutions including their main association‘s interest organisations which do not employ staff for lobbying purposes.

Moreover, the following activities are not explicitly stated in the Lobbying Act: Activities of officials; Representation by lawyers, notaries, business trustees, trustees of clubs, patient advocates, debt counsellors; Exercise of non-entrepreneurial self-interests; exercise/representation of the interests of a party in administrative or judicial proceedings;  Foreign policy interests; Activities at the request of an official (e.g. attending an expert group by invitation).

On September 29, 2014, almost two years after its launch, the Austrian lobbying and interest representation register comprised 245 entries from companies, organisations and other stakeholders.

Analysis

• The general public cannot view the register of lobbyists de facto, nor do they have the option to find out who, when, by whom, what for or for what amount has been invested in lobbying. This is virtually impossible in the current form of the register, and in this respect the register of lobbyists does not exhibit sufficient transparency.
• The public only has access to the company name and the names of (in groups A – lobbying firms and B – companies) lobbyists registered for the respective company. In groups C (self-governing bodies) and D (interest groups) only the name of the registered institution is available.
• Although lobbying agencies with expenditures of € 100,000 or more (in the previous year) must report such expenditures in the lobbying register, the information they submit remains inaccessible to the public. The most open of lobbying agencies are reluctant to provide an average amount on the grounds that their clients‘ contracts differ too greatly.
• The public is not able to access information on who actually has contact to officials and what the objectives of these relationships are.
• While lobbying/ public affairs/consulting agencies must list their clients upon joining the register, such information is not accessible to the public.
• Self-governing bodies and interest groups have been conferred a special status as they are eligible for greatly reduced disclosure requirements and they are also exempt from the penalties for non-compliance.
• Officials are not obliged to report which lobbyists they consulted, or the topic of their discussions. In addition, regarding the legislative footprint, the transparency of the formulation of a law is not very clear. On the parliament website, there are bills and comments submitted in writing to the parliament during the review period as well as the final legal text. However, if an individual was involved in the original draft or provided input during a personal discussion there is absolutely no detailed documentation available, unless voluntarily provided by the respective officials.
• There are no regulations governing the revolving door. The Lobbying Act states that politicians are not allowed to be politicians and lobbyists at the same time. Nor may State employees work part-time for lobbying companies. However, they can work in other private companies, even if the position is in their lobbying department. Both groups must report additional incomes.

Possible Remedy

Since the introduction of the lobbying law and lobbying register, Transparency International-Austrian Chapter has criticised the current regime for not creating more transparency. Lobbyists themselves complain about the lack of transparency in the current system and point to much needed improvements. To this end, both lobbyists and interest groups in Austria are calling for an appropriate tightening of the system. Standardisation is urgently necessary. The industry complains that there is a need for change on many points in order to improve the law and the register, and equal treatment and legal certainty for all stakeholders. Clear formulations and equal treatment of all professions, closing of loopholes and workarounds as well as the abolition of the distinction between lobbying and advocacy.

Addendum

The Austrian regulation presents the following characteristics:

1. The definition of lobbyist: Article 4 of the law introduces a set of definition aimed at clarifying the concept of lobbying activity by establishing the boundaries of the application of the legislation. The legislation affects lobbying consultancies (Lobbying Agenturen), corporate groups (Unternehmenslobbyisten), professional groups (Kammern) and public groups (Verbände). All interest representatives hired by these actors are subjected to the established rules when trying to influence public officeholders. Given these categories of actors, lobbying is defined as “any organized and and strutured contact with public officeholders aimed at influencing decision-making in the interest of a principal (Article 4, paragraph 1; 2012). The legislation coversboth, legislative and executive body, also including bureaucratic staff and public officeholders of subnational governments. Despite the extended coverage of the rules, the law presents a wide range of exceptions. In fact, religious and territorial interest groups, and law firms are exempted. Social partners are subjected to a limited set of registration requirements, which involve limited registration requirements and the exemption from the provisions on sanctions and role-accumulation (Article 2, paragraph 2-4).
2. Procedures of individual registration: The regulation establishes different registration requirements according to the nature of the interest group. Section A (divided in A1 and A2) is dedicated to lobbying consultancies. Section B to in-house lobbyists of firms, while section C and D respectively to professional associations and public interest groups. Social partners are subjected to special provisions. In Section A lobbying consultancies and consultants have to register before establishing the contacts with public officeholders by providing the following details about the lobbying firm: name, business number, address, website and begin of the business year. A brief description of the activities and the mission of the company are also requested. In addition, the lobbying firm has to adopt an internal code of conduct, declare the volume of turnover  of the previous business year, disclose the number of lobbying contracts accepted and provide the name and the date of birth of the lobbyists. In Section A2 lobbying consultancies have to disclose their lobbying contracts by declaring the name, the business number, the address, the website and begin of the business year of the principal/client. The subject matter of the lobbying contract has to be declared. Section A2 is not public, and that the Minister of Justice has exclusive access to the information. Third parties are allowed to gain access to this data previous permission by the principal and the consultant. Section B requires in-house lobbyists of firms to register before establishing contacts with public officeholders by providing the following details: The name of the company, business number, address, website and begin of the business year, a brief description of the activities and the mission of the company, the name and the date of birth of the lobbyists. Firms have also to disclose costs related to lobbying activity during the previous business year if these exceed the amount of 100,000€. Firms have to adopt an internal code of conduct for in-house lobbyists. Section C and D requires professional associations and public interest associations to register before establishing the contacts with public officeholders by providing the following details: The name, the address and the website of the organization, the number of active interest representatives and the estimated costs related to interest representation activities. Contrarily to lobbying consultancies and in-house lobbyists of firms, professional associations and public interest associations do not have to provide any sort of personal information. The registration requirements are limited to the provision of general and contact information of the association. This represents a major difference in terms of transparency, since lobbying consultancies and firms have to disclose a superior amount of information.
3. Individual and employer spending disclosure: The regulation does not involve the regular submission of spending reports. Lobbying consultancies have to state the annual volume of turnover related to lobbying under section A1 and firms have to state if the costs related to lobbying exceeds 100,000€ under section B.
4. Electronic filing and public access to the register: The Austrian Ministry for Justice, which represents the enforcing authority, provides interest groups and lobbyists with online registration. The access to the register is public for section A1, B, C and D. Section A2 containing information on the lobbying contract between principals and consultancies is searchable only by the Ministry of Justice. The access to this section is extended to other parties previous authorization of the registrants. This exemption is legitimized by the legislator through the need to protect privacy and the economic interests of the clients, which may face potential economic losses from the spread of information. This provision reduces the scope of the transparency initiative. First, it gives to principals and lobbying consultancies strategic advantages over competing interests, since none of the available information regards the nature of the represented interests. Secondly, the responsibility over monitoring on suspect lobbying contacts burdens on the sole Ministry of Justice.
5. Mechanisms of Enforcement: The Enforcing Authority is represented by the Ministry of Justice, which has the power to impose sanctions. Who performs lobbying without being registered incurs in monetary penalties of €20,000 or €60,000 for reiteration. The sanctions for non-compliance with the rules are €10,000 or €20,000 for reiteration. These apply also to principals, which are co-responsible for guaranteeing the correct maintenance of the registered information. The Minister of Justice has, in addition, the power to delete registrants from the register in cases of non-compliance or misbehaviour. The dismissal precludes lobbyists from registering for three years. It has to be underlined that special provisions exempt social partners from the enforcement of sanctions. This particular provision drastically reduces the scope of the legislation in terms of accountability when it comes to activities pursued by social partners.
6. Revolving-door provisions: The legislators have decided to keep revolving-door issues unregulated. However, the legislation does deal with role-accumulation. Article 8 states the incompatibility between the status of public officeholder and professional lobbyist. The scope of the revolving-door provision is however limited. Given the exemptions provided by the law, this article only involves a limited category of lobbyists. It does not apply to in-house lobbyists, and interest representatives of professional associations, public groups and social partners. Role-accumulation of MP and interest representative of business associations or trade unions is very common in Austria. Extending this provision to social partners could have been affecting many members of Parliament.

 In sum, the Austrian legislation represents a regulation which focuses on lobbying consultancies and firms, providing less disclosure requirements for professional and public groups, and almost no requirements for social partners. The different sections A B, C and D have evidenced the presence of a variation of strictness of the legislation between interest-group types in terms of the amount of information that has to be submitted. This is even more evident if the social partners are considered.