LOBBYING LANDSCAPE IN GERMANY

The lack of legal regulation of lobbying is a complex deficiency in the German political system, and measures relating to the regulation and transparency of lobbying need to apply for both the policymakers (the party being influenced) and the influencer (the lobbyist).

It is difficult to precisely define the scope and intensity of lobbying in Germany, as no reliable figures are available. One difficulty lies in the fact that there is still no clarification as to who can be called a lobbyist. This is the challenge faced by future legal regulations regarding the registration, transparency and codes of conduct for lobbyists.

 The following estimates can be assumed:

• 4,000 nationwide associations with 3 to 120 staff
• 120 company offices in Berlin, with an average of 4 staff
• 90 public affairs agencies with a total of some 1000 staff
• 50 think tanks based in Berlin
• 20 law firms that also engage in lobbying
• 200 scientists on advisory boards or as experts
• 30 business consultancies
• 30 scientific institutions and universities
• 25 foundations advising policymakers
• 300 individual lobbyists/political advisors

There is no reliable information on the financial expenses/sales turnover earned through lobbying.

Lobbying continues to be dominated by the work of the associations, which make up approximately 80 percent of lobbyists. One form of “volitional lobbyist influence” are the hearings organised by the ministries and Bundestag committees as part of legislative processes. These hearings occur relatively late in the legislative process and are supplemented with personal discussions held directly at the officials’ or staff members’ offices at the ministries. In addition to these are numerous events cultivating informal contacts. The most important political fields for lobbying continue to be those in which the state has heavy regulatory involvement: energy policy, industrial policy, health, financial markets and banks, transport and defence. For areas in which the state is itself a customer (e.g. defence), procurement involves lobbying.

Self-regulation of lobbying has not been extensively developed in Germany. There is no generally binding code of conduct for all lobbyists in Germany. The deficiencies in self-regulation tie in with a lack of organisations created by and for lobbyists.Germany only has two organisations which fit the bill: the Deutsche Gesellschaft für Politikberatung e.V. (degepol) and the Deutscher Rat für Public Relations (DRPR).

degepol’s members (140 individuals, 20 corporate members) are active in the fields of public affairs, campaign consultancy and policy advice in various European countries. They work in agencies, companies, organisations, parties or independently. degepol has formulated a brief, binding code of conduct for its members, which defines integrity as “compliance with democratic rules and respect for basic democratic order”. The code of conduct includes rules on truth, discretion, respect and the separation of professional work and political posts. 

Deutscher Rat für Public Relations (DRPR) plays a crucial role for the effectiveness of degepol’s code . The DRPR is supported by four organisations: Deutsche Public Relations Gesellschaft (DPRG), Gesellschaft Public Relations Agenturen (GPRA), Bundesverband deutscher Pressesprecher (BdP) and Deutsche Gesellschaft für Politikberatung (degepol). It bears responsibility for general public communication, and makes decisions on cases of misconduct submitted to it. This is based on the communication industry’s codes of conduct, as well as seven advisory guidelines establishing the behavioural standards of the communication industry (dealings with journalists; media co-operations; handling guarantees; cultivating contacts in the political sphere/lobbying; ad-hoc publicity; PR in digital media and networks; subliminal advertising). Since 2012, the DRPR has also a communications code. The DRPR guidelines on cultivating contacts in the political sphere, which have been in effect since 2004, are of particular importance to establishing lobbying rules. These guidelines call for 'consistent transparency', which includes disclosing clients to target audiences in politics as well as the public sphere, and the honesty obligation. Public openness is an important reference for evaluating the actions of lobbyists and public affairs stakeholders under these guidelines. Although there is a professional duty of non-disclosure, lobbyists’ actions must, in principle, be suitable for public exposure. The scope of these guidelines is particularly significant, because they also apply to non-members of the DRPR’s supporting organisations. The scope therefore includes 'all organisations operating in the political sphere', and relates to PR specialists, lobbyists, political advisors and lawyers. Staff of agencies, consultancy offices and associations are thus governed by these guidelines. Boards of appeal are set up to examine the complaints; they study the respective case, listen to the affected parties, and reach a verdict (reprimand, warning, acquittal), which is justified and announced publicly.

The key element of corporatism in Germany is the involvement of associations in the political process. It is common legislative practice for the associations to receive the draft bills beforehand, asking for their comments. The so-called association list of the German Bundestag is another element when it comes to regulating interest groups. This list has existed since 1973, and the latest version (May 2014) contains 2,178 associations with national goals. The list is managed by the President of the German Bundestag, updated several times a year, and has been accessible online/electronically since 2012. Entries are voluntary, and very little information is required: Association name and address (telephone number, email addresses, executive board and management, interests, member numbers, number of affiliated organisations, lobbyists and address in Berlin). The budgets of the individual organisations and the objectives of the lobbying work are not recorded.

As the German Bundestag’s list of associations and other lobbyist registers have so far not contributed much to the regulation of lobbying, calls for a mandatory lobby register are becoming increasingly vocal. The top priority of such a register would be to create transparency. The demand for a mandatory register cites the experiences gained with the EU Commission’s voluntary register. A lobby register would therefore not only have to be managed by the German Bundestag, but also by the federal government, as both institutions are strictly separate as a result of political division of power.

Another instrument which could tie in with a lobby list is known as the legislative footprint, which involves documenting, in a draft bill’s grounds, how the bill came about, i.e. which items were for or against it in the individual paragraphs. This would mean disclosure of who contributed to which acts, particularly in the ministries. This requirement should be included in the Joint Rules of Procedure (GGO). The influence of interests on the draft bill should be discussed in the first reading of the bill.

Germany does not have a robust ethical set of rules for lobbyists or lobbying. In particular, there is a lack of comprehensive, binding, transparent, punishable (behavioural) rules that apply to everyone. There are, however, codes of ethics, conduct and compliance for various groups and areas. Ministers, officials and parliamentarians each have their own integrity measures.

One possible option for development could be to further expand behavioural rules for individual groups and areas, because conduct requirements differ so greatly, and existing rule systems are so strong, that there is little possibility of standardisation. There is a series of behavioural regulations for political decision-makers, who are often the targets of lobbying activities.

Another important issue is that of ministers and parliamentary state secretaries moving to areas relating to their previous work. It has often been observed that retired politicians tend to become lobbyists. There have so far not been any rules for ministers or parliamentary state secretaries in this respect, but there are numerous proposals, so-called cooling-off periods, to avoid the risk of ministers and parliamentary state secretaries making decisions for which they are remunerated “later on”, and favouring interest groups as a result of this move. A 5-year cooling-off period applies to ministerial administration officials (another major group of stakeholders in the political process) in the form of an approval proviso. Apart from this, there are no explicit behavioural rules for dealings with lobbyists, which is particularly astonishing because ministerial bureaucracy is the main target of lobbyists in the early stages of the political process. There are, however, regulations on corruption prevention.

Recommendations (TI)

1. Introduction of a mandatory lobbyist register together with a code of conduct and sanctioning options by an officer for transparency and lobby control.
2. Officer for transparency and lobby control to manage and supervise the lobbyist register, and monitor the legislative footprint
3. Transparency of the ancillary income earned by members of the Bundestag with mandatory publication in Euros and cents.
4. Further development of behavioural rules by introducing a limit of 150 Euros for third-party monetary allowances, and a ban on accepting direct donations.
5. Transparency in party donations and sponsoring and equal treatment of party donations and sponsoring.
6. Legislative footprint in government drafts documenting which external expertise was involved with preparing the draft bill and at which stages.
7. Better regulation of external contributions by guaranteeing fair access to all social interests and publishing them in an annual report.
8. Transparency when forming advisory committees by using an interests register which discloses financial interests, as well as primary and secondary employment for up to the last five years.
9. Grace periods when stepping down from office legal grace periods of three years for administration officials and parliamentary state secretaries if their previous work relates to a role they intend to take up after stepping down from office.
10.  

    Collective claims for civil society organisations in the event of unauthorised exercise of influence verification; the right to sue may be based on breaches of the principle of non discrimination, public view and balance when preparing binding political decisions.