THE RISK OF INFLUENCE-PEDDLING

Undue influence occurs when particular individuals or groups gain an unfair advantage over public decision-making at the expense of the public interest. This can particularly occur when decision-making is opaque, when public officials or third parties act unethically, or when access to political system is skewed in favour of select interests.

Lobbyists must refrain from knowingly abusing their influence to obtain a decision from those with decision-making power . There is a risk of influence-peddling whenever a lobbyist by virtue of the significant resources at his/her disposal for lobbying activities and/or because of his/her close relationships with public officials could have disproportionate access to the decision-making process and thus exert excessive and fraudulent influence over a decision-maker. Influence peddling is a criminal offense in many countries and carries heavy sanctions. The criteria for determining whether an act constitutes influence-peddling are as follows: materiality of any kind in the act or, above all, in the outcome of the act, intent, which can be proven by simply demonstrating that the representative knowingly used or caused his/her influence to be used illegally, and directly or indirectly wanted to obtain a favourable decision from the decision-making authority.

The key factor is measuring the influence, real or presumed, exercised through the lobbying activity: irrespective of the materiality of the facts or the outcome, the practice is illegitimate if it can be proven that the lobbyist knowingly used his/her influence illegally to obtain a decision favourable to the client’s interests. The lobbyist must take various steps to clarify his/ her activities: comply with applicable legislation and practices in the country concerned, be informed and seek an opinion, if in doubt, from his/her direct manager and act on a day-to-day basis with professionalism, rigour and integrity, in compliance with the law and with ethical guidelines, in order to assume responsibility for his/her decisions.

Avoiding conflicts of interest

Lobbyists must avoid putting themselves in situations that could involve conflicts of interest . A conflict of interest arises ‘‘when a person in a decision-making position [an individual, company, administration, media outlet or NGO] is confronted with choosing between the duties and demands of their own private interests’’. Conflicts of interest arise spontaneously and must be avoided whenever they could spill over into a practice that might be construed as influence-peddling.

No regulation can provide an appropriate response to each situation. The lobbyist must take the final decision based on common sense, experience and professionalism. He/she must exert influence without taking risks, on the contrary, lobbying activity calls for as much transparency and visibility as possible.

Principle 8 of the OECD Recommendation(9) is addressed specifically at lobbyists and encourages them to: ‘‘ comply with standards of professionalism and transparency ’’, ‘‘ foster a culture of transparency and integrity in lobbying ’’. They ‘‘ bear an obligation to ensure that they avoid exercising illicit influence and comply with professional standards in their relations with public officials, with other lobbyists and their clients, and with the public ’’. They should also ‘‘ promote principles of good governance ’’, and in particular: conduct their contact with public officials with integrity and honesty, provide reliable and accurate information, avoid conflict of interest in relation to both public offi cials and the clients they represent.

Trading in influence: notes on conventions and some laws

The criminalisation of trading in influence (also known as ‘influence peddling’) is an international concept covered in the United Nations Convention against Corruption and the Council of Europe Criminal Law Convention on Corruption which include provisions criminalising trading in influence. The OECD Convention does not cover trading in influence. 

UNCAC

Article 18. Trading in influence

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

1. The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person;
2. The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.

Council of Europe Criminal Law Convention on Corruption

The Convention covers a broad range of offences, including the active and passive bribery of domestic and foreign public officials, bribery in the private sector and trading in influence.

Article 12 – Trading in influence

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision-making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result.

OECD Convention on Combating Bribery of Foreign Public Officials

No reference to trading in influence.

EU countries

Illicit traffic of influence (or trading in influence) is an offence in most European countries (with the exception of, for example, the United Kingdom, Germany and, to a certain extent, Denmark and The Netherlands). In most jurisdictions, except for those where lobbying activities are clearly regulated (as is the case in the United Kingdom), it is not easy to set a clear-cut separation between lawful activities of advocacy groups aimed at legitimately influencing the decision-making process by legislators or regulators and unlawful abuse of influence.

Italy

Illicit traffic of influence (Article 346-bis, Criminal Code) is meant to bring Italian legislation in line with the UNAC Convention (Article 18) and the Strasbourg Convention (Article 12). It provides that, unless the conduct involves the more serious crime of complicity in corruption offences under Article 319 and Article 319-ter of the Criminal Code, it is an offence for a:

• Person to take advantage of his or her existing relationship with a public officer or a person entrusted with a public service, for purposes of unduly receiving the promise or the giving, for himself or others, of undue money or other economic advantages as compensation in exchange for his or her unlawful mediation, or as compensation for the public officer or servant, in relation to the public officer or servant:
  • performing an act contrary to his office; or
  • failing or delaying to perform an act of his office.
• Person to unlawfully give or promise money or other advantage in exchange for the unlawful mediation.

The crime is punished with imprisonment of from one to three years and is increased when the mediator is himself a public officer, and when the conducts are performed in respect of judicial duties.

France

French legislation on illicit traffic of influence is quite detailed. France has been one of the first civil law jurisdictions to introduce such an offence. Various forms of traffic of influence are prohibited under French law, including:

• Active traffic of influence by a private party (Article 433-1, paragraph 2, French Criminal Code) (FCC).
• Passive traffic of influence by a private party (Article 433-2, FCC).
• Active or passive traffic of influence by public officers (Article 432-11, FCC).
• Active and passive traffic of influence by judicial personnel (Article 432-9-1, FCC).
• Traffic of influence involving public officer of foreign states or international organisations (Articles 435-2 and 435-4, FCC) and foreign judges or judges of international courts (Articles 435-8 and 435-10, FCC).

Spain

The Spanish legislation on illicit traffic of influence only:

• Considers passive behaviours.
• Focuses on the conduct of private or public officers aimed at obtaining an economic advantage (which does not necessarily need to be the consequence of an unlawful or unjust decision by the public officer).