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Loopholes and smoke rings: the EU has a long way to go


The great Brexit debate of 2016 lent the pulpit to countless critics of the EU, with the opacity surrounding the institution’s lawmaking emerging as a major sore point both in Britain and beyond. To many, the EU remains a closed-door club of elitists tasked with shaping the legal, economic, and social landscape of an entire continent, with little to no accountability to the commonfolk.

At a time when populist movements are gaining traction across the globe, the bloc’s popularity level is lower than ever before – and stalling.  

Now, a new push to increase the transparency of Brussels’ legislative process has the potential to dramatically improve public perceptions of the bloc.

Sunlight is the best disinfectant

Since 2011, a voluntary lobbyists’ register has been in place for both the European Parliament and Commission. Last week, EU member states agreed to upgrade the existing register of lobbyists to a mandatory list, requiring members to publish details of clients and fees received in return for access to “senior staff” in the Council, Commission and Parliament. Policed by a new secretariat, armed with the staff and authority to inspect documents, non-compliance could see individual staff banned for up to 12 months; whole firms face removal from the register for up to two years.

This month, the European Council is also set to take a decision on a separate proposal to reform the lobbyists’ register made by Commission First Vice President Frans Timmermans; he had suggested extending a mandatory register to the Council, the most opaque of the EU institutions, which currently holds its meetings in complete secrecy.

If the Council approves Timmermans’ proposal, then both reforms would be a victory for those across Europe who are concerned about the “black box” that constitutes so many steps of the EU negotiations process. Nevertheless, with considerable evidence that lobbyists still retain too much sway over public policy, the registry needs to go much further if the confidence of the public is to be won.

For one thing, the definition of  “senior staff” limits monitored meetings to those with the Council’s secretary general and the internal bureaucracy’s directors general. For transparency’s sake, it is vital that the “no registration, no meeting” rule be extended to include lower level officials as well. From January to July 2016, DG FISMA hosted 519 lobby meetings; only 16% of these were held by top officials, the remaining 81% being hosted by civil servants ranking below this level. Any attempts to limit monitoring to the upper echelons of EU decision-making is clearly a major blindspot, doing little to reform the system as it currently exists.

Critics have also pointed to the need to require more comprehensive disclosure of meeting minutes between lobbyists and lawmakers – an issue that is particularly relevant for the tobacco industry, long known for its deep and insidious penetration into the EU’s decision making process. Thus far, the Commission has not been nearly consistent enough about publishing the details of meetings with tobacco industry representatives across all of its directorate generals (DGs). Only DG Health has acted proactively in this regard, publishing meetings and minutes by all its staff. 

Smoke-filled rooms

Such inconsistencies have rightfully drawn scrutiny from the EU’s public watchdog, which warned the European Commission that it should more fully disclose the details of its meetings with lobbyists. Yet the Commission pushed back, saying that it is normal for its services to have different rules for meeting with lobbyists and that its current transparency laws are perfectly sufficient.

The dangers of these shortfalls, however, are vividly illustrated by concerns over the Commission’s draft secondary legislation proposals for an EU-wide track-and-trace system to combat the illicit tobacco trade by slapping unique identification codes on each pack of cigarettes. According to critics, despite efforts to curb industry influence, the proposals are still covered with the fingerprints of Big Tobacco – showing that lobbyists have continued finding ways to wriggle around the rules.

Previously, the EU had run a number of anti-counterfeit and anti-smuggling agreements with Philip Morris International (PMI) and other tobacco firms. But the European Parliament’s March 2016 vote to axe the deal with PMI energized lawmakers and campaigners, who have been calling for a new deal free from industry interference, arguing that Big Tobacco has been complicit in the trade of counterfeit cigarettes since its conception in a bid to evade taxes and boost sales. Indeed, as recently as 2014, British American Tobacco (BAT) was fined £650,000 by the UK Revenue and Customs for dumping stock in Belgium and diverting goods to the UK – charges it vehemently, and disingenuously, denied.

Yet as it stands, there are serious concerns that the Commission’s proposal still does not comply with the United Nations WHO Framework Convention on Tobacco Control (FCTC) and its first Protocol to eliminate illicit trade in tobacco products, and leaves a number of loopholes for the tobacco industry to continue benefiting from illicit sales, which rob governments upwards of €10 to €20 billion in annual tax revenue per year.  

French Socialist MEP Gilles Pargneaux is among those who originally expressed serious doubts about the proposal. As he underlined in a recent discussion about the new track-and-trace system’s impact assessment, the only way to ensure independence of the new system would be to delete the options that offer the tobacco industry any role and embrace instead a system governed by a third party. Yet so far, a system that relies at least in part on industry involvement remains on the table: Codentify, a solution developed by tobacco industry experts and chaired by Philippe Chatelain, a decades-long PMI executive who only left the company in 2016. 

The move to tighten the voluntary lobbyists’ registry, and to extend it to the Council, are thus welcome moves. But at a time when even the most restricted of lobbyists continue putting a finger on the scale, it is crucial that the EU go much further in its transparency drive and shine some sunlight on its efforts to regulate the most predatory industries. 

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