Should MEPs Be Lobbyists at the Same Time?

 

 

 

 

 

 

Should Members of the European Parliament Be Allowed to Have Side Jobs?

Implausible as it may sound, today Members of the European Parliament (MEPs) are allowed to carry professional activities while representing the interests of their constituencies in Europe. We therefore have MEPs working as medical doctors, lawyers, consultants as well as…lobbyists as they sit on the Parliament’s benches.

Really? Yes, really.

Hundreds of MEPs (170 according to Integrity Watch) currently work part-time as elected representatives and then monetize their status to draw other jobs.

But being an MEP isn’t that a full-time job? How do the electors feel about having ‘part-time’ representatives? Isn’t there the need to insulate MEPs from obvious situations of conflict of interest? Today, for instance, nothing prevents an MEP from sitting on the Committee on Industry, Research and Energy (ITRE), while at the same time being on the board of an energy company.

At a time of disenchantment with electoral-representative democracy and growing distrust for the EU, one might expect virtually all MEPs to agree: a Parliament without outside interests would make a stronger, more legitimate Parliament.

Unfortunately, only a minority of MEPs shares this perspective. Hence, the on-going, divisive debate about whether incompatibilities – or at least some restrictions – should be introduced. Paradoxically, some of the MEPs who resist change are the very same who – in the aftermath of the Barrosogate – asked the EU Commission to tighten its ethical codes on the EU Commissioners.

As of today, what MEPs can’t do while in office is to accept public jobs, such as that of parliamentary and governmental jobs at the national level and top jobs at the EU level, such as EU Commissioner, Judge, Advocate General of the CJEU, member of the Court of Auditors, member of the Board of Directors of the ECB, member of the EESC and CoR, and EU Ombudsman.

The question is whether these incompatibilities should be extended to side jobs in the private sector.

The moment of truth is this week as the European Parliament is called upon to vote of new rules of procedure that might introduce some broader – yet suboptimal – restrictions on side jobs.

Background

The Green MEP Sven Giegold’s own initiative started the battle to eliminate side jobs and shed light on their existence, but did not win the war (yet). As a result, some of his proposals are now feeding into an existing file: the revision of the EP Rules of Procedure (entrusted to the seasoned hand of MEP Richard Corbett). The original amendments proposed by Giegold would have been quite disruptive of the status quo as they would have prohibited MEPs from working as lobbyists or consultants with companies influencing EU legislation; required full financial disclosure including what MEPs earn outside the Parliament; introduced, once they leave, a cooling-off period up to 24 months preventing former members from holding lobbying jobs (at the moment there is none). In the absence of a political agreement.

The proposed incompatibilities rules

The following are the proposed amendments to the Rules deriving from discussions around the draft Giegold report that will be subject to the EP vote plenary vote this week. They include notably:

  • prohibiting MEPs from having paid lobbying jobs;
  • allowing rapporteurs to attach a “legislative footprint” to their reports (in line with EP Bureau’s legislative footprint decision);
  • a more detailed breakdown for MEP’s declarations of financial interest;
  • verification that declarations of financial interest are kept up to date and accurate;
  • former MEPs to inform the EP when they take up a new (lobbying) job;
  • removal of badges for registered lobbyists who do not comply with rules; and
  • greater transparency for Intergroups.

Yet introducing those rules is a complicated undertaking insofar as the status of parliamentarians in the EU is highly fragmented and is regulated by various sources. The most significant is the Statute for the Members of the European Parliament governing the exercise of the parliamentary mandate, ineligibility and incompatibility, and privileges and immunities as well as rules with respect to conflicts of interest. This document, which is further operationalized by the Rules of Procedure and the Code of Conduct, is however not fully harmonised at European level and to a large extent refers to national law.

The fragmentation of the status of parliamentarian has to do with the way in which members of the European assembly were originally seen in the treaties: they wer tied to national settings, not to a European political area.

It is against this backdrop that the introduction of rules prohibiting or restricting the ability of MEPs to engage into side jobs must be examined.

Can the EP Rules of Procedure prohibit side jobs?

Upon the request of MEP Corbett, the EP Legal Service released a controversial legal opinion (that was leaked) questioning whether the new Rules of Procedure, and in particular the Code of Conduct, may introduce such limitations. The opinion considered both unconditional prohibitions of side activities (such as those existing in several EU Member States) and those banning those activities that risk entailing a conflict of interest in the context of the exercise of the parliamentary mandate (along the lines of those subject to the plenary vote this week).

Although convoluted and dipped in the usual legal jargon, the memo is clear on its conclusions: there is no room for introducing incompatibilities of MEPs via the Rules of Procedures and/or Code of Conduct. As a result, not even the Giegold amendment that was favorably voted by the EP Constitutional Affairs Committee (AFCO) on November 8 – prohibiting MEPs from having paid lobbying jobs – could survive legal scrutiny.

Why so?

The memo reached this conclusion, but it failed to explain:

  • why the Rules of Procedure / Code of Conduct cannot – on the basis of Article 232 TFUE – lay down incompatibilities for MEPs (insofar as Art 2 b Code of Conduct already does so) (legal base), and
  • why the proposed incompatibilities would not be proportionate (proportionality).

Unfortunately, the memo’s analysis schizophrenically switches from these two issues – that of legal base to that of proportionality – thus contributing to render particularly illogical the whole reasoning.

Let’s make some order.

Legal base

The memo confirms that Article 232 TFEU is the correct legal base for laying down the rules of procedure and the code of conduct. But it argues that this Treaty provision being limited to laying down “appropriate measures to ensure the due functioning and conduct of its proceedings” cannot be used to introduce prohibitions. Should it be the case, this would circumvent another provision Article 223 TFEU that allows the EP to determine the Statute of the MEPs, i.e. “the regulations and general conditions governing the performance of the duties of its Members”.

Why this matters?

Simple: different voting rules depending on whether you adopt/amend the Rules of Procedure/Code of Conduct or the Statute. While the former requires the majority of EP members, the Statute is adopted under a special procedure involving both the Commission and the Council.

Yet this interpretation of what can be done under the Statute and what under the Rules of Procedure challenges what the existing Code of Conduct already does: it expressly requires MEPs to “not solicit, accept or receive any direct or indirect financial benefit or other reward in exchange for influencing, or voting on, legislation, motions for a resolution, written declarations or questions tabled in Parliament or any of its committees, and shall consciously seek to avoid any situation which might imply bribery or corruption” (Article 2 b).

Either the legal opinion is incorrect or the code of conduct is illegal (being ultra vires). For those who like Latin, Simul stabunt, simul cadent.

The idea underpinning Giegold’s amendments is to strengthen such a prohibition of the Code of Conduct so as to turn it into an incompatibility with certain jobs that may inherently lead MEPs to breach such duties. By the way, how can an MEP-lawyer or an MEP-consultant advising a client on a file pending before the EP not find him- or herself per se in a situation of conflict of interest? Will this situation be qualified as “paid professional lobbying directly linked to the Union decision-making process” (Amendment 259 – Article 2 (ba))?

The EP legal service’s opinion de facto prevents the EP from drawing a logical conclusion from an already existing provision and it does so by denying the existence of an appropriate legal base justifying the existence of the latter.

Proportionality

The opinion also argues that regardless of the issue of legal base any incompatibility between MEPs and side jobs would be disproportionate. However, to verify the proportionality of any measure one must identify the aim pursued by that very measure.

The memo fails to do so by merely indicating that the rules of procedure should merely aim at ensuring the functioning and conduct of Parliament’s proceedings’. That’s what it calls the self-organisational powers.

Yet Article 232 as interpreted by the CJEU refers to ‘due functioning’. This goes beyond what the memo call ’self-organisational powers’. In particular, since the EP must act as openly as possibly to citizens it can be argued that ‘due functioning and operation includes and operationalizes the concept of openness  (the memo concedes this very same idea and this principle is enshrined in primary law) and MEP’s independence.

Moreover, in the absence of a system of declarations of ALL activities it is not possible to know whether MEPs may incur in conflict of interests while exercising their functions. In other words the effet utile of Article 232 as interpreted by the Court could be questioned in the absence of a list of incompatibilities.

I believe to have provided an alternative – and possibly more plausible – reading of Article 232 TFEU (and its relationship with Article 223 TFUE).

The Rules of Procedures and Code of Conduct may both accommodate not only the proposed amendments in relation to lobbying restriction by MEPs but also stricter incompatibilities along the lines of those put forward by Giegold.

Conclusions

While this week’s vote won’t pre-empt the adoption of the Giegold report, it will test the EP’s political commitment to strengthen its rules governing inter alia situations of conflict of interest. As such it will determine the new regulatory framework applicable to MEPs. Even if adopted, the new rule prohibiting MEPS from engaging “in paid professional lobbying directly linked to the Union decision-making process” is likely to reveal inadequate. This is true for at least two reasons:

  • the scope of this provision appears quite narrow and difficult to define and, in any event,
  • its enforcement will remain to the entire discretion of the next President of the EP.

Considering that one of the most likely contenders for EP President, Guy Verhofstadt, is the third highest-earning MEP by virtue of high-paid side jobs, one cannot but remain largely unimpressed by the EP’s desire to inject more integrity via its rules of procedures.