THE VENICE COMMISSION OF THE COUNCIL OF EUROPE

The European Commission for Democracy through Law - better known as the Venice Commission as it meets in Venice - is the Council of Europe's advisory body on constitutional matters. The role of the Venice Commission is to provide legal advice to its member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law. It also helps to ensure the dissemination and consolidation of a common constitutional heritage, playing a unique role in conflict management, and provides “emergency constitutional aid” to states in transition.

The Commission has 59 member states: the 47 Council of Europe member states( Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom), plus 12 other countries (Algeria, Brazil, Chile, Israel, Kazakhstan, the Republic of Korea, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia and the USA). The European Commission and OSCE/ODIHR participate in the plenary sessions of the Commission.

Its individual members are university professors of public and international law, supreme and constitutional court judges, members of national parliaments and a number of civil servants. They are designated for four years by the member states, but act in their individual capacity.

The Venice Commission works in three areas:

• democratic institutions and fundamental rights;
• constitutional justice and ordinary justice;
• elections, referendums and political parties.

Its permanent secretariat is located in Strasbourg, France, at the headquarters of the Council of Europe. Its plenary sessions are held in Venice, Italy, at the Scuola Grande di San Giovanni Evangelista, four times a year (March, June, October and December).

The Venice Commission’s Activities

Opinions and Studies

The Venice Commission’s primary task is to provide states with legal advice in the form of “legal opinions” on draft legislation or legislation already in force which is submitted to it for examination. It also produces studies and reports on topical issues. Groups of members assisted by the secretariat prepare the draft opinions and studies, which are then discussed and adopted at the Committee’s plenary sessions.

On 23 June 2010, the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1744 (2010) on “Extra-institutional actors in the democratic system”. The Resolution underlined the potentially beneficial role of extra-institutional actors’ participation in the political process, as an expression of political pluralism, but also noted with concern the risks involved for democracy. The Resolution considered that “the influence of extra-institutional actors on political decision making needs further examination” and invited the Venice Commission to study the issue, in particular with regard to:

• the scale of the involvement of extra-institutional actors in the political process in the Council of Europe member States, as well as at the international level;
• the impact of these actors on the functioning of democratic institutions and on the legitimacy of the democratic political process;
• the existing legal framework for such activities in the Council of Europe member States and the appropriateness of taking additional standard-setting measures at national and European levels.”

On this basis the Venice Commission decided to undertake a study on “the role of extra-institutional actors in a democratic system”, in order to provide the Parliamentary Assembly with an analysis which could assist it in reconsidering the issue on the basis of the findings of the Venice Commission.

The Venice Commission came up with the following definition of lobbying:

“Lobbying can be broadly defined as “the oral or written communication” by private individuals or groups, each with varying and specific interests, “with a public official to influence legislation, policy or administrative decisions”. The attempt to influence may or may not be successful – it is the act of private actors attempting to influence public actors that is essential.

To further refine this definition, and thus distinguish lobbying from activities that do not raise the same concerns and are rather an integral part of the representative or institutional process, Commission noted  two additional specifications that may be usefully apposed:

(a) lobbying is carried out by an “extra-institutional” actor, i.e. an entity or person who is not, in doing so, exerting public authority or fulfilling a constitutional mandate. This criterion can exclude or include the activities of the same person or entity depending on the context. A professional order may be exerting public authority when it discusses deontological regulation (and thus, can potentially be lobbied), but it is lobbying when a bill affecting the profession is pending before government or Parliament and it aims to influence that decision, in the absence of a formal advisory role. Economic and social councils, which have been created throughout Europe and all over the world, usually exercise such a formal advisory role and, whatever their composition, do not engage in “lobbying” under this definition. Political parties may be private, “extra-institutional” actors strictly speaking, but generally they have a constitutional mandate to help in articulating the public interest . Their role in formulating policy that is then debated in public decision-making bodies does not fall under the definition of “lobbying”, but constitutes the expression of representative democracy.

b) lobbying usually involves the lobbyists receiving directly or indirectly consideration for their services to attempt to influence political decisions, i.e. pursuing this activity on a “professional” basis. This criterion is intended to exclude from the definition of lobbying forms of participatory democracy such as petitions to Parliament or the actions of everyday citizens who may seek to discuss matters of importance with their representatives.

The Commission refers to “interest groups”, “lobbyists” and “extra-institutional actors” interchangeably and consider the European Commission’s register listed categories of extra-institutional actors/interest groups/lobbyists as applicable : professional consultancies, law firms, in-house corporate lobbyists (lobbyists that work in businesses and industries), professional associations, trade unions, NGOs and organizations (such as human rights groups and environmental protection groups), think tanks, academic organizations, representatives of religious organizations. For the Commission all such actors are relevant in that they share the abovementioned features of being extra-institutional actors who aim to influence policy, on a professional basis, without thereby executing a constitutional mandate.

As for the ‘targets’ of “lobbying” – that is, those who are lobbied – these include politicians and civil servants and the concerned public institutions.

AALEP Comment

Out of the 59 member states that participate in the Venice Commission, less than a dozen member states have established a legal framework for  the conduct of such activities. The majority of member states have not considered the appropriateness of taking additional standard-setting measures at their national level.  

Council of Europe member states should give consideration to the following principles:

• Adopting a very clear definition of lobbying;
• Enhancing transparency in the field of lobbying;
• Laying down rules applicable to political officials, civil servants, members of pressure groups and business undertakings;
• Setting up registers of all persons involved in lobbying activities;
• Holding prior consultations with lobbying organisations on any proposed legislation in this field;
• Encouraging well-defined, transparent, honest lobbying which could raise the public profile of persons involved in these activities.

Citizens have a democratic right of access to political decision-makers so as to provide them with information and attempt to influence their decisions. However, this access or this lobbying possibility must be fair and equal, completely transparent and governed by clear, democratic rules. If citizens do not believe that they can have a real influence on political decision-makers, democracy may be undermined. In recent decades we have seen a dramatic decline in public confidence in politics in many Council of Europe member states. The dearth of transparency in political lobbying activities can be deemed to constitute one of the causes of this.