Lobbying compliance: transparency in political decision-making: What’s Behind the New “Lobby Register”?

On March 25, 2021, the German Bundestag passed the “Act on the Introduction of a Lobby Register for the Representation of Interests vis-à-vis the German Bundestag and vis-à-vis the Federal Government – Lobby Register Act (LobbyRG)“. It comes into force on January 1, 2022 and includes innovations for associations and agencies, but also for companies.

The law regulates

• an obligation to register in the “Lobby Register” for those who represent interests vis-à-vis the German Bundestag and the Federal Government and thereby wish to exert influence on the decision-making process of these bodies (§§ 1, 2 LobbyRG);
• an obligation to subject interest representatives to the Code of Conduct of the German Bundestag or the Federal Government (Section 5 LobbyRG);
• fines as well as access restrictions in the event of breaches of duty (§§ 6, 7 LobbyRG).

Personal and material scope of application: Natural persons, legal entities and partnerships can be interest representatives if they carry out interest representation themselves or on behalf of others. If a company is active in its “own” interests vis-à-vis the Bundestag or the Federal Government, it is obliged to register in the lobby register. However, natural persons who formulate exclusively personal interests do not have to register, irrespective of whether they are also entrepreneurial interests, cf. 2 No. 1 LobbyRG. Thus, in the future, all companies in particular must also register their employees who “directly represent interests” in the lobby register § 3 Para. 1 No. 2 d) LobbyRG.

Enforcement, monitoring, sanctions: The obligations of the LobbyRG are monitored. Those concerned must therefore ensure that they register with the necessary information in the lobby register and actually comply with the requirements of the Code of Conduct. To verify compliance with the Code, there is an audit procedure cf. section 5 para. 8 LobbyRG. If a company violates the Code of Conduct, this may result in publication in the register. In addition, stakeholders, including companies, must update all information in the register annually and enter any changes in due time. If stakeholders do not comply with these obligations, an electronic reminder or transfer to a list of non-updated stakeholders will be sent.

Pursuant to Section 7 LobbyRG, it is an administrative offense to fail to comply with the relevant registration obligations or the updating requirements, at least through negligence. If a person required to register fails to register or update the information, or provides false, incomplete or untimely information, he or she is in violation of the law. Fines of between EUR 20,000 and EUR 50,000 are due for this, depending on the infringement. In addition, according to § 6 LobbyRG, the persons concerned can be denied access to the German Bundestag and participation in public hearings of the committees of the Bundestag.

The new requirements are considerable for companies: the main challenge here is likely to be the internal procurement and ongoing updating of the mandatory register content in accordance with Section 3 (3). 1 No. 5, 6 and 7 LobbyRG.

Activities “in the field of interest representation”: Both in determining the number of employees and in the concrete quantification of annual financial expenses, it is questionable what exactly is “in the field of interest representation” within the meaning of Section 3 (3). 1 LobbyRG means. In addition to employees who act directly vis-à-vis the Bundestag and the federal government, does this also include those who are active, for example, in clubs, associations on the board of directors or even occasionally in the working groups (cf. EU Transparency Register)? The explanatory memorandum to the law speaks “of extensions” in the sense of searchers or associates and does not help. When quantifying financial expenses, it is questionable whether only direct activities vis-à-vis the German Bundestag and the federal government are recorded or also memberships in associations and organizations.

Information on grants, subsidies and donations: When to disclose information with respect to a donor regarding individual government grants and contributions and individual gifts from third parties pursuant to Sec. 3 para. 1 No. 7 LobbyRG must be registered is unclear in parts. On the one hand, it is questionable who is meant as a “third party”. Does this include, for example, non-profit organizations, i.e. also political parties, environmental and employee organizations, private foundations or even individual “third parties”? Secondly, it is unclear how the maximum amount of EUR 20,000 triggering the registration obligation is to be determined. If, for example, three parties are to receive EUR 9,000 each, are these amounts then cumulated or does the maximum limit apply per donation or gift? This would have the consequence, for example, that there would not be a publication obligation under the Political Parties Act (Section 25 (3) Party Act), but there would already be one under the Lobby Register Act.

“Federal Government” within the meaning of sec. 2 LobbyRG: In addition to the federal government, the new regulations also apply to ministers, state secretaries, ministry officials, and even deputy department heads of federal ministries.

No “executive footprint”: The much discussed representation of all stakeholders involved in the legislative process, was ultimately not included in the LobbyRG.

Exemptions and special cases: Some professional groups are explicitly exempt from the transparency and registration obligation. On the one hand, because of professional confidentiality, including lawyers or churches in the course of their activities. On the other hand, because of the exercise of the “freedom of the mandate” protected by fundamental rights, which requires unhindered access to parliament and to members of parliament (e.g. in the case of personal or individual submissions to members of parliament, right of petition). However, the design of the special cases (e.g. the exception of the registration obligation in § 2 No. 15 LobbyRG “National Minority”, No. 16 “Human Rights NGO” or No. 11 “Intermediary Organization of Foreign Cultural and Educational Work”), is still necessary and constitutionally not quite simple.

Other regulations remain to be taken into account: The financial requirements applicable in particular to members of parliament (e.g. to members of parliament in the Party Act or the Members of Parliament Act, regulations in foundation law or in accounting law) and independence regulations remain unaffected. Criminal law norms, such as bribery (§334 StGB) or granting of advantages (§333 StGB) or (passive) corruptibility or acceptance of advantages apply unchanged in addition to the LobbyRG. Likewise, the international regulations of Art. 2 § 2 IntBestG, Foreign Corruption Practices Act or the U.K. Bribery Act. EU public procurement law and EU state aid law are also not affected by this.

Conclusion and outlook: The legislative process has shown that it is not easy to reconcile the democratically necessary independence of parliament, the necessary freedom of mandate and the protection of the core area of government on the one hand, and the need for transparent regulations and codes on the other.

Further clarifications are necessary regarding the registration obligation of national and international companies, organizations or foundations. Partial relief can be provided by the codes of conduct that are still pending. In particular with regard to a concretization of an activity as “representation of interests” in the narrower sense.

What is also needed is a digital form of the register combined with digital evidence of disclosure obligations. Registration and reregistration procedures must be effortlessly designed digitally, and recognition and exclusion criteria for the registration obligation must be clear and understandable. The same applies to the codes of conduct; these also need a modern, transparent form for the future.