C Explanatory memorandum by Ms Chiora
Taktakishvili, rapporteur for opinion
1. The report presented by the
Committee on Legal Affairs and Human Rights provides a very comprehensive
overview of the current ethical framework within which European
institutions generally operate, in particular with regard to lobbying
and interaction between decision-makers and lobbyists, and echoes
recent key findings, conclusions and recommendations made to further
improve the set of rules and mechanisms at European Union level.
However, the rapporteur for opinion would like to provide additional
information on a number of issues that require closer examination.
1 Regulation of
lobbyist activities and transparency registers
2. The draft resolution presented
supports the improvements made to the Joint transparency Register
set up in the European Parliament and the European Commission and
advocates the introduction of transparency registers in member States.
However, experience at European Union level shows that the mere
fact of having such registers would not prevent conflicts of interest
or boost transparency immediately, as if by magic.
Note Disclosure
of data requested by the regulations on lobbying, including obligatory
registration of lobbyists and the “cooling-off” period, will only
alleviate problems, not change distribution of resources; such measures
are not sufficiently substantive to help ensure equal access and
participation in decision-making. As underlined by Transparency
International, “regulation is only one element of a strategy to
ensure fair lobbying, … enforcement of any regulation, but also
a broader willingness by all actors involved to act ethically, will
be crucial to creating an environment of ethical and fair lobbying
and public decision-making”.
Note It is therefore
for civil society to make these regulations an effective instrument
ensuring
de facto transparency
and fair decision-making.
3. A European Union public consultation is being held in order
to gather views on the functioning of the current Joint Transparency
Register and its future evolution towards a mandatory scheme covering
the European Parliament, the Council of the European Union and the
European Commission, as announced in President Juncker’s Guidelines.
The contribution made by Transparency International to the public consultation
Note contains some recommendations, in
particular:
- the possibility
of an equal input by citizens, interest groups and corporate bodies
into legislative items under consideration by means of a more balanced
composition of expert groups – which means that clear targets for
a balanced composition of the European Commission’s expert groups
should be set;
- the introduction of a legal requirement on public bodies
to publish the results of consultation processes, including the
views of participants – which would imply that deliberations of
European Commission’s expert groups should be published;
- the opening of all calls for applications to sit on advisory/expert
groups.
4. For the Council of Europe and its Parliamentary Assembly,
there will be lessons to be learned from the results of the ongoing
European Union assessment of ways of improving informed decision-making.
Therefore, it seems more relevant, instead of conducting a comparative
study on the regulation of lobbyist activities in Council of Europe
member States (which has already been partly done in the framework
of the Committee of Ministers draft recommendation under preparation
on the legal regulation of lobbying activities in the context of
public decision-making), to request the Committee of Ministers to
conduct an impact assessment of the regulation of lobbying in Council
of Europe member States. The outcomes of such an analysis would
allow the identification of complementary measures to be taken to
reinforce informed decision-making in addition to establishing transparency
registers.
2 Oversight mechanism
of the Council of Europe and the Parliamentary Assembly
5. Within the Council of Europe,
the Directorate of Internal Oversight is responsible for assessing governance
processes and, within this framework, it is in charge of prevention
and detection of fraud and corruption of staff, including senior
staff. Rule No. 1327 of 10 January 2011 on awareness and prevention
of fraud and corruption applies to all members of the Council of
Europe Secretariat and also to specially appointed officials and
persons who are not Council of Europe Secretariat members but who
participate in the Council of Europe’s activities,
Note wherever
they may be held. The Rule gives a definition of the terms “corruption”
and “fraud”. It also foresees a protection for individuals who report
reasonable suspicion of fraud or corruption. There are also special
rules on the declaration of interests in the context of procurement.
Note
6. Turning to the Parliamentary Assembly, with the adoption of
the code of conduct for members of the Parliamentary Assembly,
Note which
contains various rules on avoiding conflicts of interest and promoting
good conduct of members, the Assembly now has a solid regulatory
framework. A draft report on “The follow-up to
Resolution 1903 (2012): promoting
and strengthening transparency, accountability and integrity of Parliamentary
Assembly members” (rapporteur: Mr Ian Liddell-Grainger, United Kingdom,
EC) is under preparation in the Committee on Rules of Procedure,
with the objective to assess the current regulatory framework with
regard to the implementation of the principles of transparency,
accountability and integrity promoted thereby. It is certainly not
for the Assembly to adopt new rules, but to consolidate the rules
of conduct applicable to members, in particular to review the registration
of gifts or similar benefits that members accept while performing
their duties as Assembly members. Practical steps, like the organisation
of information seminars, have also to be undertaken to give the
current regulatory framework an effective implementation.
7. A number of instruments are already in place and it would
not be difficult to request the Council of Europe to adopt additional
measures without additional resources being granted. By comparison,
as it has extensively been explained in the report, the European
Union transparency and oversight system is composed of the European
Court of Auditors, the European Anti-Fraud Office (OLAF) and the
Ombudsman. To carry out their functions these three institutions
are granted individual budgets. For instance, the 2014 OLAF annual
ordinary budget was €57 million to which we could also add special
budgets dedicated to various training programmes for national partners.
Note The Ombudsman office receives €10 million
per year to run its activities
Note and the European Court
of Auditor’s annual operating costs exceed €100 million.
Note Consequently,
the three oversight institutions have a common annual budget exceeding
a half of the Council of Europe’s ordinary budget.
Note To this
organisation architecture we could also add costs linked to the
functioning of the Joint Transparency Register Secretariat which
is pointed to as under-staffed and under-funded in the light of
the ambitious tasks which the Transparency Register is expected
to fulfil.
3 Extra-institutional
actors
8. As the report rightly mentions,
the European Union institutions are particular targeted by different
interest groups given several big files they are dealing with such
as TTIP, the Energy Union, the digital single market, new data protection
laws, etc. The European Union legislative powers in implementing
the internal market affect both consumers and economic actors. The
Council of Europe also works with several extra institutions though
the intensity of their involvement is different and the pressure
exercised by lobbying groups is generally not the same as in Brussels.
3.1 Type of extra-institutional
actors involved in Council of Europe activities
3.1.1 Economic actors
9. Notwithstanding the human rights
– rather than economic – profile of the Organisation, the Council
of Europe deals indirectly with several matters which could seriously
impact existing business models. For instance, Committee of Ministers
recommendations regarding the way of handling personal data, especially on-line
collection of data, may affect the multi-billion industry of online
advertising. Recommendations made with regard to the Internet, including
on filtering, blocking and taking-down of illegal content, may result
in additional and costly obligations for Internet providers. The
Council of Europe’s work on bioethics, focusing on the protection
of the individual’s rights, identity and dignity, affects the field
of biological and medical research and developments in health technology
(genetics, transplantation, biobanks, emerging technologies, new genome
editing technologies, etc.), in which there has been substantial
investment by the private sector.
10. There is also some interest from industry and business lobbies
for the Assembly’s work. For instance, the report “Handling of the
H1N1 pandemic: more transparency needed”
Note or the report on “The potential dangers
of electromagnetic fields and their effect on the environment”
Note have been subject to numerous comments
by, respectively, pharmacological and information technology lobbyists.
Given its large mandate to deal,
inter
alia, with biodiversity, natural resources, energy, transport,
tourism, health, food security, pollution or technological disasters,
members of the Committee on Social Affairs, Health and Sustainable
Development are more likely to be contacted by industry and business
lobbies.
3.1.2 Non-economic
actors
11. The Parliamentary Assembly
and almost all steering committees and monitoring bodies of the
Council of Europe have some form of co-operation with (international)
non-governmental organisations ((I)NGOs). (I)NGOs are often referred
to as natural allies of the Council of Europe given that they usually
share fundamental values and general objectives with the Organisation.
(I)NGOs are usually understood as organisations driven by the public
interest and not funded by a State or a single sponsor. Besides
contributing in terms of information, (I)NGOs could also adopt a
proactive approach whether this concerns the drafting of a legal
document or the dissemination of Council of Europe standards. For
instance, the drafting process of the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic
Violence (ETS No. 210, “Istanbul Convention”) was triggered by NGOs
which mobilised various Council of Europe actors – notably permanent
representations, the Parliamentary Assembly and the Steering Committee
on Human Rights – to start the process and are now very active in
monitoring the implementation of the Convention provisions.
3.2 Developments
of common criteria and procedure for the selection of partner (I)NGOs
12. The current co-operation between
different Council of Europe bodies and (I)NGOs could be qualified
as successful. However, the department of Internal Oversight of
the Council of Europe has recently issued some recommendations on
how to improve (I)NGOs’ input into the Organisation’s activities
and suggested establishing common procedures for the selection of
partner NGOs
Note: “In order
to durably secure high added value of NGO contributions, the Council
of Europe must therefore optimize its selection of NGOs, utilise
good practices for co-operation with NGOs in a flexible manner,
and facilitate the contribution of NGOs by easing access to information
and reaching out to NGOs”. The lack of geographical balance has
been reported too as well as the difficulty in involving youth organisations
in monitoring due to lack of information on both sides.
13. The selection of NGOs depends on the type of activity carried
out by a given Council of Europe intergovernmental body. The standard
setting, which works on common standards, would rather call for
big international NGOs able to provide a consolidated position or
to carry out a comparative analysis. The monitoring mechanisms would
rather call for national NGOs with a country-specific knowledge.
The Parliamentary Assembly criteria in choosing (I)NGOs would be
similar to those used by the intergovernmental sector and would
very much depend on the report under elaboration. The Assembly committees’
exchanges with NGOs are announced on committees’ agendas, minutes
are often published and final reports themselves often mention external
actors who have contributed to their elaboration.
14. A recent proposed action by the Secretary General to revise,
in consultation with the Conference of INGO, the guidelines on the
participatory status for INGOs
Note within
the Council of Europe could provide a good opportunity to structure
the Council of Europe’s relations with NGOs.
3.3 Access to the
Council of Europe premises for extra-institutional actors
15. The equivalent of the Joint
Transparency Register does not exist in the Council of Europe probably
due to the low scale of involvement of professional lobbyists and
the Organisation’s working methods. Representatives invited to attend
steering committee meetings and meetings of intergovernmental monitoring bodies,
in which they may sometimes have the status of observer, receive
a temporary badge. In the Parliamentary Assembly, the problem of
“interest representatives” acting on behalf of private entities
or a State, seeking contacts with members within the Palais de l’Europe
during sessions was raised in the context of the report on a Code
of conduct of members of the Parliamentary Assembly. In its
Resolution 1903 (2012), the Assembly considered that “clear and transparent
procedures” should be introduced to regulate their access to the
Assembly and it invited the Bureau of the Assembly to revise the
rules governing access to the Palais de l’Europe and the use of
the premises. The Bureau of the Assembly should be invited, in consultation
with Assembly’s committees, to continue reflecting on ways to keep
track of the contacts that members have with various external interlocutors,
including NGOs and other groups during part-sessions.
4 European Union
membership in the Group of States against Corruption (GRECO)
16. The need for more synergy between
the European Union and the Council of Europe in the field of the fight
against corruption has been proclaimed several times by both the
Secretary General of the Council of Europe and the President of
the Assembly. Formal participation of the European Union in GRECO
has reappeared on the agenda since the adoption by the European
Union of the 2010 Stockholm Programme and publication of the European
Commission’s “Anti-corruption package” in June 2011. This has been
welcomed by GRECO whose statute has provided for such participation
from the outset. However, a controversy was triggered at EU level
by the 2012 Commission Communication on participation in GRECO where
the European Commission proposed a two-stage approach requesting
firstly “a full participation status” which would grant the European
Union involvement in the evaluation of its member States and/or
candidate countries without however being itself subject to GRECO’s
evaluation procedure.
17. This issue has to be resolved soon so that both organisations
can start concrete talks on the precise format and content of such
participation. Participation of the European Union in GRECO would
contribute to more co-ordinated anti-corruption policies in Europe
and strengthen the impact of the European Union’s and GRECO’s respective
anti-corruption endeavours. The Assembly already asked the Committee
of Ministers in 2013 to consolidate further the co-operation within
the European Union in particular by inviting the European Union
to join the Criminal Law Convention on Corruption (ETS No.173) and
speeding up the negotiations on the participation of the European
Union in GRECO.
18. The Juncker Commission’s determination to bring more transparent
and balanced interest representation,
Note increase the transparency of decision-making
and reduce conflicts of interest provides an excellent opportunity
to restart talks.
5 Proposals
19. In the light of the above,
the Committee on Rules of Procedure would like to complete the draft
resolution and the draft recommendation submitted by the Committee
on Legal Affairs and Human Rights as follows:
- a reference to the involvement of NGOs and media to ensure
the accuracy of transparency registers should be added;
- the contribution by (I)NGOs to standard setting and monitoring
bodies of the Council of Europe and to the work of the Parliamentary
Assembly should be welcomed and a call to provide for some criteria
and procedure of selection in order to grant the most varied, representative
and relevant participation possible should be formulated;
- the Assembly’s commitment to reflect on further consolidation
of the Assembly’s integrity system is to be added. The Bureau of
the Assembly should also to be invited to reflect, in consultation
with the Assembly committees, on ways to keep track of the contacts
that members have with various external interlocutors, including
NGOs and other groups during part-sessions, to provide for more
transparency;
- the proposal to conduct comparative studies on the regulation
of lobbyist activities in Council of Europe member States should
be replaced by a request for a regulatory impact assessment in relation
to the regulation of lobbying in member States, with the aim of
identifying complementary measures to be taken to reinforce informed
decision-making;
- the urgent character of restarting negotiations on European
Union accession to the Criminal Law Convention and participation
of the European Union in GRECO in order to contribute to more co-ordinated
anti-corruption policies in Europe and strengthen the impact of
the European Union’s and GRECO’s respective endeavours shall be
underlined.
