THIRD COUNTRY LOBBYING AT EU LEVEL

The EU is being influenced by foreign actors. The EU currently shapes policy in areas such as data privacy, consumer health and safety, environmental protection, competition, and online hate speech. Lobbying is an important way for third country actors, both public and private, to influence in these same areas. The EU’s chemical policy is one policy area where non-EU actors have actively attempted to shape the making of EU’s chemicals law and policy. Another recent example is Big Tech, the largest lobbyist in the EU measured by spending. Vodafone, Qualcomm, Intel, IBM, Amazon, Huawei, Apple, Microsoft, Facebook and Google spend more than €32 million on lobbying in the EU. Of all the companies lobbying the EU on digital policy, 20 per cent are US based.

Third country lobbying is a normal part of EU decision-making. The EU’s global reach has only grown in the past decade, and it is natural that for instance industries whose activities are affected by proposed EU rules will try to make their voices heard and given consideration by EU policy-makers.

Third country lobbying is undertaken by a variety of actors, both governmental and private actors. Often third country lobbying involves private businesses, and   already in the early 2000s when the EU’s ambitious chemicals regulation REACH was being prepared, the U.S. government lobbied EU policy-makers together with its business sector. It is likely that Big Tech lobbyists have also enlisted their governments to help lobbying the EU.

Third country governments are also buying lobbying and consultancy services in order to be able to lobby EU policy-makers and shape public opinion in Europe. The EU has been aware of third country lobbying, and the interest and involvement of foreign governments in its policy-making processes is not a surprise.

The European Parliament’s (EP) Special Committee adopted a report on foreign interference in March 2022. In the report, the EP described how “malicious actors who seek to interfere in electoral processes take advantage of the openness and pluralism of our societies as a strategic vulnerability to attack democratic processes” . The EP portrays openness and transparency – two fundamental values to the EU – as making the EU weak and vulnerable to malicious foreign actors.

Taking up specifically the topic of third country lobbying, the EP states that there is a reason to be “concerned about integrated lobbying strategies combining industrial interests and foreign political goals, in particular when they favour the interests of an authoritarian state” . The EU has not considered how countries such as “China and Russia, Qatar, the United Arab Emirates and Turkey, have invested heavily in lobbying efforts in Brussels”.

The  EU increasingly sees itself as a vulnerable victim against which malign third countries try to attack. Third country lobbying is articulated as a security risk particularly in connection with repressive and/or authoritarian states.

The framing of third country lobbying as a security risk is also manifest from the fact that the EP considers the EU’s ‘normal’ response to lobbying, that is, the European Transparency Register to be deeply deficient. One sign that a certain issue is securitised is that it cannot be dealt with through ‘normal’ politics or that policy instruments which would usually apply to the situation are suddenly impractical or unavailable, and special measures are needed.

The EP lambasts that there is a ‘serious lack of legally binding rules and enforcement of the EU’s lobbying register, which makes it practically impossible to track lobbying coming from outside the EU’. The EP flags the softness of the lobbying register as particularly relevant to monitoring foreign lobbying, although deficiencies of the non-binding register have been documented in relation to internal EU lobbying, too.

In order to underline the importance of specifically regulating third country lobbying, the EP suggests that Australia’s Foreign Influence Transparency Scheme would be ‘a good practice to follow’ in the EU .

Third country lobbyists should register and provide information about their lobbying activities and expenditures in the EU’s lobbying register.

Parts of third country lobbying are already registered in the lobbying register. Third country actors such as businesses, trade associations or non-governmental organisations from outside the EU must register just like their EU counterparts.

The IIA on which the EU’s Transparency Register is based exempts from its scope the governments of third countries as well as Member States’ public authorities, intergovernmental organizations and their diplomatic missions, including offices and agencies emanating from them. This is known as the diplomatic exception.

Following an amendment to the IIA in 2021, the scope of this diplomatic exception was limited. When third country governments “are represented by legal entities, offices or networks without diplomatic status or are represented by an intermediary”, such representation must be registered. This means that consultancies or law firms with third country governments as clients need to disclose the work they do for them.

The EU’s lobbying regulation does not only involve the EU’s lobbying register. Meeting diaries are an important part of the EU’s lobbying regulation. EU Commissioners and Directors-General of the Commission are required to provide information about meetings held with lobbyists. According to the EP’s Rules of Procedure, MEPs must also publish all lobby meetings related to a report for which they are responsible as rapporteurs, shadow rapporteurs or committee chairs on Parliament’s website.

But because third country governments do not currently count as interest representatives in the meaning of the IIA, meetings with them are not subject to the publication obligation, neither in the Commission nor in the Parliament.

Meeting diaries that policy-makers use to disclose information about their meetings with lobbyists should include information about third country governments. While the Commission decisions and the Parliament’s Rules of Procedure rely on the definition of an interest representative in the IIA, the link could be severed, and the Parliament’s Rules of Procedure and the Commission decisions could be amended to include an obligation to publish meetings with third country governments. This should be easier than opening up the tripartite IIA revision. This way, meetings of MEPs, Commissioners and Commission’s Directors-General with representatives of third countries could be made public.

Any such amendments should be followed by a concerted effort to fix the control and enforcement deficit. Transparency International EU analysed more than 28,000 lobby meetings that were published by MEPs between June 2019 and July 2022. During this period, just over half of MEPs used the Parliament’s publication system.

The EU has considered introducing legislation to increase the transparency of foreign lobbying. Such laws currently exist in the United States (Foreign Agents Registration Act, FARA) and Australia (Foreign Influence Transparency Scheme Act, FITSA). The UK has recently released a draft bill for Foreign Influence Registration Scheme. Such legislation may bring with it new problems. First, these laws are easily conflated with foreign interference laws, and if no clear distinction is made between foreign interference and foreign lobbying, the law may become hindrance to legitimate third country lobbying. Second, especially Australia’s law as well as the UK’s draft bill have been criticized  for targeting foreign actors too broadly.

To summarize, the EU should resist the temptation to pose as a gullible victim of foreign forces and to portray third country lobbying as a security risk. Third countries have lobbied, are lobbying and will lobby the EU in a range of fields, and the more powerful the Brussels Effect becomes, the more intense lobbying will be. This should not downplay the importance of making sure that everything possible has been done to prevent such a thing from happening again.

The EP is enveloped in a culture of non-accountability, and it currently seems to think that the freedom of mandate gives it also a freedom from transparency. This culture needs to be rooted out. But a cool head is needed so as not to close the EU to third countries’ legitimate lobbying.