Association of Accredited Public Policy Advocates to the European Union - Lobbying

ATTORNEY-LOBBYISTS’ COMMUNICATIONS IN THE U.S.

christian — Thu, 23 Oct 2014 16:37:14 +0000

The U.S. District Court for the District of Connecticut has ruled that Attorney-Lobbyists’ communications with corporate clients enjoy only limited protection under the Attorney-Client privilege. This decision joins similar rulings from federal courts in New York and Texas.

The court found that, despite the lobbyists being attorneys, many of the documents were not protected. Applying general privilege principles, the court held that “if a lawyer happens to act as a lobbyist, matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other circumstances give legal advice on matters that may also be the subject of the lobbying efforts.”

The court explained that in the lobbying context, the privilege protects legal analysis, such as interpretation or application of legislation to fact scenarios. However, the court held that documents that

do not provide analysis or interpretation of legislation,
are more in the nature of general lobbying updates, progress reports, or summaries of legislative meetings, or
reflect communications with public officials but offer no analysis, are not protected by privilege or as work product.

Lobbying is often a mixed bag of legal and business advice, and U.S. courts do not want all communications with lobbyists to be privileged.

The court relied heavily on the definition of Attorney-Client privilege, namely, whether the communication was intended to be and was kept confidential, and whether the communication seeks or provides legal advice. Although whether a communication seeks or provides legal advice appears to be a “bright line” rule at first glance, in the lobbying context, the rule may not be as clear as it first seems. With lobbying activities, legal analysis is often involved, though that analysis can be somewhat different than what litigators or courts are used to seeing.

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Attorney-Client Privilege

Lobbying

LOBBYING FOR AN EU-JAPAN FTA

christian — Tue, 02 Sep 2014 10:58:50 +0000

The EU –Japan negotiations for a Free Trade Agreement were officially launched on 25 March 2013. The negotiations aim at addressing, among others, a number of EU concerns, including non-tariff barriers which European companies encounter in Japan, as well as the further opening of the Japanese public procurement market.

Strong Proponents

European Confederation of the Footwear Industry (CEC) gathers national associations and federations from the European Union, which together represent approximately 87% of the European manufacturing. CEC’s overall purposes are to encourage the development of an environment in which European footwear manufacturing can be successful, as well as to reinforce the competitiveness and growth of the whole sector’s supply chain.
CECED represents the household appliance manufacturing industry in Europe.
Comité Européen des Entreprises Vins (CEEV) represents the wine companies in the industry and trade in the European Union
Cerame-Unie is the voice of the European ceramic industry. It creates and maintains a constructive dialogue with the EU institutions, international partners and the social and environmental stakeholders by providing expertise in such important fields as environment, health & safety, climate change and energy, trade, construction, raw materials and standardisation.
COCIR is the voice of the European Radiological, Electromedical and Healthcare IT Industry. Medical imaging and health ICTs are among the most innovative and dynamic industry sectors in Europe and globally.
Cosmetics Europe – the personal care association represents the interests of Europe’s cosmetic, toiletry and perfumery industry.
Confederation of National Associations of Tanners and Dressers of the European Community (COTANCE) is the representative body of the European Leather Industry.
DIGITALEUROPE represents the digital technology industry in Europe: IT, telecoms and consumer electronics companies and national associations from every part of Europe.
European Cultural and Creative Industries Alliance (ECCIA): Composed of the five major European luxury industry associations (Europe’s leading luxury brands covering 14 different high-end product and service markets.
European Diagnostic Manufacturers Association (EDMA) is an international, non- profit organisation representing the interests of the medical in vitro diagnostics (IVD) industry in Europe.
EFIC represents the furniture industries in Belgium, Denmark, Germany, Italy, Slovakia, Spain and Turkey, Portugal, Sweden, Austria, Russia, and Norway.
EFPIA represents the pharmaceutical industry operating in Europe.
EPIC – European Photonics Industry Consortium – is the industry association that promotes the sustainable development of organisations working in the field of photonics in Europe.
European Services Forum (ESF) is a private sector trade association that represents the interests of the European services industry in International Trade Negotiations in Services. (financial services, tourism, telecommunications, maritime transport, business and professional services, distribution, postal and express delivery, IT services, environmental services and the audio-visual industry.
Eucomed is the European medical technology industry association. Its mission is to make modern, innovative and reliable medical technology available to more people.
EURATEX is the voice of the European textile and clothing industry.
EUROCHAMBRES – The Association of European Chambers of Commerce and Industry represents over 20 million enterprises in Europe – 98% of which are SMEs – through members in 43 countries and a network of 1700 regional and local Chambers.
EuroCommerce is the leading representation of the retail, wholesale and international trade sectors in Europe.
European Fur Information Center is an umbrella organisation representing more than 50 national European fur farmer and fur retailer associations.
FESI, the Federation of the European Sporting Goods Industry represents the interests of approximately 1,800 sporting goods manufacturers (85% of the European market) through its National Sporting Goods Industry Federations and its directly affiliated member companies.
FoodDrinkEurope represents Europe’s food and drink industry, Europe’s largest manufacturing sector in terms of turnover, employment and value added.
FTA represents retailers, importers and brand manufacturers worldwide in the political arena and in public to achieve free trade and supports their international business by providing information and practical solutions.
IFPI (International Federation of the Phonographic Industry) represents the recording industry worldwide.
LightingEurope is an industry association of 32 European lighting manufacturers, national lighting associations, and companies producing materials used in lighting products.
MedTech Europe is an alliance of European medical technology industry associations. The Alliance was founded by EDMA, representing the European in vitro diagnostic industry, and Eucomed, representing the European medical devices industry.
spiritsEUROPE represents the interests of the spirits

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Lobbying

EU-Japan FTA

LOBBYING TOGETHER COALITIONS

christian — Tue, 26 Aug 2014 13:08:33 +0000

Broadly speaking coalitions include both formal alliances of ‘lobbying together’ as well as informal alliances whereby groups mobilize over the pursuit of some shared goal in the policymaking process. The mobilization of more groups amplifies the resources directed toward a common goal. Coalitions provide a low-cost way for groups to expand their lobbying efforts by sharing advocacy resources, both financial resources directed towards lobbying as well as non-tangible resources such as intelligence and expertise. Moreover, a greater diversity of actors involved brings a wider spectrum of resources to the lobbying table. Forming coalitions helps groups to amplify – or ‘leverage’ – their influence over the policymaking process, open new channels of access to policymakers, and increase the credibility of their claims.

Coalitions can undertake a wide range of specific advocacy and campaigning activities to achieve their goals. A key role for a coalition is to build a platform for these activities, to give advice and in some cases determine which actions will have the greatest impact at a given point in time on a given target.
Coalitions can exercise influence by acting as vehicles that focus the voices and actions of their many constituents and amplifying them.
Coalitions that are able to draw on and activate their individual members in many different capital cities have an advantage when it comes to lobbying a range of countries on a specific issue.
Coalition unity, not just a unified message but also a common sense of belonging, is very important. Bringing people together makes them feel they are part of a collective effort.
Within a coalition there will be many individuals with impressive personal credentials, experience and advocacy skills. Coalitions often work to make sure that these different individuals are used to best effect by setting up meetings that match their skills and profiles with the different individuals and organisations that the coalition is trying to influence.
Coalitions bring multiple perspectives. For any complex policy solution, multiple points of view bring a better solution and give credibility to the government and the public that the solution has been well thought out. Consequently, what comes out of the internal arguments concerning all the multiple perspectives, is hopefully a consensus and a cohesive group lobby effort. Consensus and cohesion is the number one requirement for any group wanting to successfully lobby government.
Resource sharing divides costs among all participants and makes expertise of all firms more broadly available. Engaging professional lobbyists, preparing communications materials and policy research studies are expensive. Sharing the cost across a wider base of participants makes economic sense. The contribution of expertise from across the membership base is also a very valuable factor to consider when forming an alliance.
Coalitions can address the power differences that can exist within any industry. Those without power can magnify their influence as part of their own coalition to address the dominant group. Or through formal coalition decision making and governance structures less dominant firms can magnify their influence to more effectively deal with industry power imbalances.
Coalitions offer a way of raising the public profile of an issue but not at the reputational expense of any one firm. Individual firms are often afraid to expose their brand image with government by taking leadership on an issue all on their own. A coalition gives participating firms ‘air cover’ within a broader group which gives the issue credibility and some brand protection to the individual firms who convene the coalition.
Coalitions greatly magnify the ability of members to communicate and mobilize the public and industry stakeholders – customers, suppliers, and employees. It is this aspect of coalitions that really makes a difference in dealing with government.
Coalitions elevate the advocacy issue beyond the level of a single firm. This gives the issue credibility without the taint of naked self interest. The more the coalition represents external interests and stakeholders, the more credibility it has. Naturally, there are limits to membership that need to be considered, but in general, engaging as many interests in the solution as practical will make the coalition much stronger in its ability to influence government.

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coalitions

GUIDANCE FOR GOOD GOVERNANCE IN LOBBYING

christian — Sun, 24 Aug 2014 16:12:26 +0000

The OECD member countries have adopted a Recommendation with Principles for Transparency and Integrity in Lobbying as guidance to decision-makers on how to promote good governance in lobbying. Public officials and lobbyists share responsibility to apply the principles of good governance, in particular transparency and integrity, in order to maintain confidence in public decisions.

Priority Checklist

1. Do all stakeholders have fair and equitable access to the development and implementation of public policies?

Public officials should preserve the benefits of the free flow of information and facilitate public engagement. Gaining balanced perspectives on issues leads to informed policy debate and formulation of effective policies. Allowing all stakeholders, from the private sector and the public at large, fair and equitable access to participate in the development of public policies is crucial to protect the integrity of decisions and to safeguard the public interest by counterbalancing vocal vested interests. To foster citizens’ trust in public decision making, public officials should promote fair and equitable representation of business and societal interests. It is important to find the right balance between regulating lobbying and ensuring that the right to lobbying is not reduced and that access to the development of public policies is increased

2. Do rules and guidelines on lobbying respect the socio-political and administrative context?

Countries should weigh all available regulatory and policy options to select an appropriate solution that addresses key concerns such as accessibility and integrity, and takes into account the national context, for example the level of public trust and measures necessary to achieve compliance. Countries should particularly consider constitutional principles and established democratic practices, such as public hearings or institutionalised consultation processes.

Countries should not directly replicate rules and guidelines from one jurisdiction to another. Instead, they should assess the potential and limitations of various policy and regulatory options and apply the lessons learned in other systems to their own context. Countries should also consider the scale and nature of the lobbying industry within their jurisdictions, for example where supply and demand for professional lobbying is limited, alternative options to mandatory regulation for enhancing transparency, accountability and integrity in public life should be contemplated. Where countries do opt for mandatory regulation, they should consider the administrative burden of compliance to ensure that it does not become an impediment to fair and equitable access to government

3. Are the rules and guidelines on lobbying consistent with the wider policy and regulatory frameworks?

Effective rules and guidelines for transparency and integrity in lobbying should be an integral part of the wider policy and regulatory framework that sets the standards for good public governance. Countries should take into account how the regulatory and policy framework already in place can support a culture of transparency and integrity in lobbying. This includes stakeholder engagement through public consultation and participation, the right to petition government, freedom of information legislation, rules on political parties and election campaign financing, codes of conduct for public officials and lobbyists, mechanisms for keeping regulatory and supervisory authorities accountable and effective provisions against illicit influencing.

4. Are the terms “lobbying” and “lobbyist” clearly defined in the rules and guidelines on lobbying?

Definitions of 'lobbying' and 'lobbyists' should be robust, comprehensive and sufficiently explicit to avoid misinterpretation and to prevent loopholes. In defining the scope of lobbying activities, it is necessary to balance the diversity of lobbying entities, their capacities and resources, with the measures to enhance transparency. Rules and guidelines should primarily target those who receive compensation for carrying out lobbying activities, such as Consultant Lobbyists and In-House lobbyists. However, definition of lobbying activities should also be considered more broadly and inclusively to provide a level playing field for interest groups, whether business or not-for-profit entities, which aim to influence public decisions.

Definitions should also clearly specify the type of communications with public officials that are not considered 'lobbying' under the rules and guidelines. These include, for example, communication that is already on public record – such as formal presentations to legislative committees, public hearings and established consultation mechanisms.

5. Is sufficient information on lobbying activities publicly available?

Disclosure of lobbying activities should provide sufficient and pertinent information on key aspects of lobbying activities to enable public scrutiny. It should be carefully balanced with considerations of legitimate exemptions, in particular the need to preserve confidential information in the public interest or to protect market-sensitive information when necessary.

Core disclosure requirements elicit information on In-House and Consultant Lobbyists, capture the objective of lobbying activity, identify its beneficiaries, in particular the ordering party, and point to those public offices that are its targets. Any supplementary disclosure requirements should take into consideration the legitimate information needs of key players in the public decision-making process. Supplementary disclosure requirements might shed light on where lobbying pressures and funding come from. Voluntary disclosure may involve social responsibility considerations about a business entity’s participation in public policy development and lobbying. To adequately serve the public interest, disclosure on lobbying activities and lobbyists should be stored in a publicly available register and should be updated in a timely manner in order to provide accurate information that allows effective analysis by public officials, citizens and businesses.

6. Can lobbying activities be scrutinised by stakeholders?

The public has a right to know how public institutions and public officials made their decisions, including, where appropriate, who lobbied on relevant issues. Countries should consider using information and communication technologies, such as the Internet, to make information accessible to the public in a cost-effective manner. A vibrant civil society that includes observers, 'watchdogs', representative citizens groups and independent media is key to ensuring proper scrutiny of lobbying activities. Governments should also consider facilitating public scrutiny by indicating who has sought to influence legislative or policy-making processes, for example by disclosing a 'legislative footprint' that indicates the lobbyists consulted in the development of legislative initiatives. Ensuring timely access to such information enables the inclusion of diverse views of society and business to provide balanced information in the development and implementation of public decisions.

7. Are there clear rules and guidelines of conduct for public officials on how to engage with lobbyists?

Countries should provide principles, rules, standards and procedures that give public officials clear directions on how they are permitted to engage with lobbyists. Public officials should conduct their communication with lobbyists in line with relevant rules, standards and guidelines in a way that bears the closest public scrutiny. In particular, they should cast no doubt on their impartiality to promote the public interest, share only authorised information and not misuse ‘confidential information’, disclose relevant private interests and avoid conflict of interest. Decision makers should set an example by their personal conduct in their relationship with lobbyists.

Countries should consider establishing restrictions for public officials leaving office in the following situations: to prevent conflict of interest when seeking a new position, to inhibit the misuse of ‘confidential information’, and to avoid post-public service ‘switching sides’ in specific processes in which the former officials were substantially involved. It may be necessary to impose a ‘cooling-off’ period that temporarily restricts former public officials from lobbying their past organisations. Conversely, countries may consider a similar temporary cooling-off period restriction on appointing or hiring a lobbyist to fill a regulatory or an advisory post

8. Do lobbyists comply with standards of professionalism and transparency?

Governments and legislators have the primary responsibility for establishing clear standards of conduct for public officials who are lobbied. However, lobbyists and their clients, as the ordering party, also 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.

To maintain trust in public decision making, In-House and Consultant Lobbyists should also promote principles of good governance. In particular, they should conduct their contact with public officials with integrity and honesty, provide reliable and accurate information, and avoid conflict of interest in relation to both public officials and the clients they represent, for example by not representing conflicting or competing interests

9. Is there a coherent spectrum of strategies and practices to ensure compliance with rules on lobbying?

Compliance is a particular challenge when countries address emerging concerns such as transparency in lobbying. Setting clear and enforceable rules and guidelines is necessary, but this alone is insufficient for success. To ensure compliance, and to deter and detect breaches, countries should design and apply a coherent spectrum of strategies and mechanisms, including properly resourced monitoring and enforcement. Mechanisms should raise awareness of expected rules and standards; enhance skills and understanding of how to apply them; and verify disclosures on lobbying and public complaints. Countries should encourage organisational leadership to foster a culture of integrity and openness in public organisations and mandate formal reporting or audit of implementation and compliance. All key actors – in particular public officials, representatives of the lobbying consultancy industry, civil society and independent 'watchdogs' – should be involved both in establishing rules and standards, and putting them into effect. This helps to create a common understanding of expected standards. All elements of the strategies and mechanisms should reinforce each other; this co-ordination will help to achieve the overall objectives of enhancing transparency and integrity in lobbying.

Comprehensive implementation strategies and mechanisms should carefully balance risks with incentives for both public officials and lobbyists to create a culture of compliance. For example, lobbyists can be provided with convenient electronic registration and report-filing systems, facilitating access to relevant documents and consultations by an automatic alert system, and registration can be made a prerequisite to lobbying. Visible and proportional sanctions should combine innovative approaches, such as public reporting of confirmed breaches, with traditional financial or administrative sanctions, such as debarment, and criminal prosecution as appropriate.

10. Is the functioning of rules and guidelines on lobbying periodically reviewed to ensure compliance?

Countries should review – with the participation of representatives of lobbyists and civil society – the implementation and impact of rules and guidelines on lobbying in order to better understand what factors influence compliance. Refining specific rules and guidelines should be complemented by updating implementation strategies and mechanisms. Integrating these processes will help to meet evolving public expectations for transparency and integrity in lobbying. Review of implementation and impact, and public debate on its results are particularly crucial when rules, guidelines and implementation strategies for enhancing transparency and integrity in lobbying are developed incrementally as part of the political and administrative learning process.

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guidance

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Lobbying

TRANSPARENCY INTERNATIONAL (TI) RECOMMENDATIONS RELATED TO LOBBYING

christian — Mon, 18 Aug 2014 11:16:46 +0000

Back in 2012, the TI-Liaison Office to the EU and TI-Secretariat published a Regional Policy Paper that was part of a series published in the framework of TI’s European National Integrity Systems study conducted in 25 European countries with financial support from the Prevention of and Fight against Crime Programme of the European Commission Directorate-General for Home Affairs, Norway Grants/EEA Grant and Svenska PostkodStiftelsen.

TI pointed out that measures are needed to implement regulations where they are missing and to close the gaps for laws that already in place, stressing that success will require action from all countries, the EU, businesses and citizens. TI recommended the following:

1. Introduction of Mandatory Registers of Lobbyists in all countries

For countries that have voluntary registers, these should be made mandatory and accessible online to the public. In the case of the European Union, its “Transparency Register” should be made mandatory for all interest representatives and cover all three institutions – the European Commission, European Parliament and European Council.

2. Adopt a broad definition of Lobbyists for Lobbying Regulations

Laws should extend their coverage to include public affairs consultancies, corporate lobbyists law firms, non-governmental organisations (NGOs) and think-tanks. Such a change is the only way to guarantee the complete listing of individual lobbyists. TI’s definition of lobbying, as set forth in TI’s 'Anti-Corruption Plain Language Guide' is the following: “Any activity carried out to influence a government or institution’s policies and decisions in favour of a specific cause or outcome. Even when allowed by law, these acts can become distortive if disproportionate levels of influence exist by companies, associations, organisations and individuals.”

3. Adopt Codes of Conduct for Lobbyists and Lobbied Persons (Including Public Officials)

These should be mandatory and include clear sanctions for failure to adhere to the established lobbying regulations. For public officials, measures should include how to address and prevent conflicts of interest.

4. Institute ‘Legislative Footprints’

These documents should provide information on the time, person and subject of a legislator’s contact with a lobbyist or stakeholder. This way, citizens will have more complete information about who their representatives are meeting with when drafting legislation. Such “footprints” should be used for parliaments at the national and local level as well as for European institutions.

5. Implement ‘Cooling-Off’ Periods

Measures should be applied in all countries that require reasonable time periods – at least two years – for individuals going through the “revolving door” between the public and private sector. For the European Parliament, its code of conduct should be amended to include a “cooling off” provision to create a firewall between Members of Parliament and the lobbying industry.

6. Mobilise Groups and Media Working to Track and Disclose Lobbying Activities

Such information can help to arm citizens and public interest groups with the knowledge to actively question their representatives and participate in public debates about how lobbying is influencing the country’s legislation

Update

Laying out his objectives as European Commission President for the next 5 year term, Jean-Claude Juncker has indicated he might be ready to take the Transparency bull by the horns. Outlining his agenda for 'democratic change', Mr Juncker has committed himself to enhancing transparency of lobbying around decision-making. He pointed out that EU citizens 'have the right to know with whom Commissioners and Commission staff, Members of the European Parliament or Representatives of the Council meet in the context of the legislative process'.

In making this commitment to transparency, Mr Juncker has positioned himself quite clearly on two key issues:

Transparency is not optional, it’s a right. Despite TI-EU’s advocacy efforts over the years to increase transparency on the activities of all institutions, the last review of the Transparency Register concluded with the activities of the Council remaining completely outside the scope of the Register. Mr Juncker has indicated he is ready to address Council opacity by demanding that it subscribe to the scope of a mandatory Transparency Register.
Transparency is not just a list of names. As the new Commission President also underlines, knowing who was met with in the context of the legislative process is a baseline for meaningful transparency. As it stands, the Transparency Register delivers limited insight to the public on exactly what meetings were linked to specific policy changes. The general public have access to a list of organisations and their general lobbying interests but have no way of seeing how many times lobbyists contacted institutions, on which specific piece of legislation they were in contact and whether their interaction was considered as impacting on the process or not. A more dynamic version of the current system is needed to give real effect to the current transparency tools of the EU and Mr Juncker has signalled he is perhaps willing to respond.

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Transparency International

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