Transparency, one thought, many ways to get there. A Transparency Register that leads to more transparency in the EU is a matter of perception

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1 Faculty of Humanities, European Studies

Transparency, one thought, many

ways to get there

A Transparency Register that leads to more

transparency in the EU is a matter of perception

W.G. Bouman (10251219)

Dr. J.B.M.M.Y. Shahin

Dr. A. van Heerikhuizen

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2 1. Introduction ... 4 2. Transparency ... 6 2.1. Definition ... 6 2.2. Quantity of information ... 6 2.3. Quality of information ... 8

2.4. Value of the Transparency Register for transparency ... 10

2.5. In summary ... 12

3. Methodology ... 12

3.1. Multiple case study ... 13

3.2. Semi structured interviews ... 14

3.3. Official documents ... 15

3.4. Qualitative Content Analysis ... 16

3.5. Reliability and validity ... 16

4. Origin of the Mandatory Transparency Register ... 17

4.1. Governance White Paper ... 17

4.2. European Transparency Initiative ... 18

4.3. Voluntary Transparency Registers ... 20

5. Proposed Mandatory Transparency Register ... 23

5.1. Content ... 23

5.1.1. Who is registered? ... 23

5.1.2. The code of conduct ... 25

5.1.3. The Council of the European Union ... 25

5.1.4. IIA ... 26

5.2. Differences with the Voluntary Transparency Register ... 26

5.3. The characteristics of the proposed Transparency Register... 29

6. Transparency is not a goal in itself ... 30

6.1. Institutions ... 31

6.1.1. European Commission ... 31

6.1.2. European Parliament ... 33

6.1.3. Council of the European Union ... 34

6.2. Registrants ... 36

6.2.1. Public interest groups ... 36

6.2.2. Corporate Interest groups ... 38

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7. The Commission is (not) going far enough ... 42

7.1 Institutions ... 42

7.1.1. European Commission ... 42

7.2.1. Public Interest Groups ... 50

7.2.2. Corporate Interest Groups ... 54

7.3. In summary ... 57

8. The thoroughness and adequateness of the information ... 58

8.1. Institutions ... 58

8.1.1. European Commission, ... 58

8.2.1. Public interest groups ... 64

8.2.2. Corporate interest groups ... 68

8.3. In summary ... 71 9. Conclusion ... 72 10. Bibliography ... 73 10.1. Literature ... 73 10.2. Sources ... 76 11. Annexes ... 84

11.1. Topic list Interview ... 84

11.2. Interview Council, 2017. ... 85

11.3. Interview VNCI, 2017 ... 86

11.4. Interview BOVAG, 2017 ... 86

11.5. Interview Eumedion, 2017 ... 88

11.6. Interview ECDPM, 2017 ... 89

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1. Introduction

“We must be more open in everything we do. Today's proposals for a mandatory Transparency Register covering the Parliament, Council and Commission are an important step in the right direction. Citizens have the right to know who tries to influence EU law-making. We propose a simple rule: no meeting with decision-makers without prior

registration. Through the Register, the public will see who is lobbying, who they represent and how much they spend" (European Commission 3, 2016).

This quote of the Commission Vice-president Timmermans was made when the European Commission proposed a new mandatory Transparency Register to replace the existing voluntary Transparency Register. It can be seen as one of the key tools to implement the Juncker Commission's' commitment to greater transparency, that was set out in the Political Guidelines that were the basis on which president Juncker was elected by the Parliament. Here was mentioned explicitly that the Commission wanted to enhance transparency in the EU. Specifically when it comes to contact with stakeholders and lobbyists, as a means to make the EU more democratic and bringing it closer to its citizens (Juncker, 2014). The proposed Transparency Register can also be traced back as an expression of good governance by the Commission. Since the EU identified in early 2000 that it was necessary to reform European governance to connect more with the citizens of the EU. In 2001 a White Paper on European governance was made and it contained some proposals of reforms for European governance to bring citizens closer to the institutions. These proposals rest on five principles that are the basis of good governance, namely openness, participation, accountability, effectiveness and coherence (Commission of European Communities, 2001:32). Especially one of the proposals, better involvement, is interesting and relevant with regards to the Transparency Register. With this proposal is meant that the policy-making process in the EU should be opened up, to get more people and organizations involved in shaping and delivering EU policy. To reach this goal, the EU should be more open, more accountable and more responsible for those involved. So how EU policy is prepared and adopted must be more open and easier to follow and understand for the citizens (Commission of European Communities, 2001:3-4). The Transparency Register can therefore be seen as a consequence of this, as will be explained in section 4.1.

The Commission believes that the Transparency Register will lead to more transparency about the EU-decision making process. However there is also a lot of critique of the Transparency Register of actors that claim that it will not lead to more transparency. This critique is not only aimed at the current voluntary Register, but also at the proposed mandatory Register. It is even claimed that the proposed mandatory register can be seen as a

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5 step backward (ALTER-EU 2, 2016:1). I expect that the different reactions on the proposed Transparency Register can be explained as a different understanding of ‘transparency’ by the different actors. Therefore, I will try to find out if this is true by focusing on the proposed Transparency Register, to see if the different actors understand transparency differently. The main question of this research will therefore be: ‘’to what extent is transparency understood differently with regards to the proposed Transparency Register by the different involved actors?’’ With this question I will try to contribute to the larger question of whether the proposed Transparency Register will lead to more transparency or not, because when transparency is perceived differently by all the actors, it will be hard to determine if the Register will lead to more transparency or not.

To answer my main question I will first explain what is meant with the term ‘transparency’. I will argue that this term consists out of two dimensions that determine the ultimate degree of transparency, respectively the quantity and quality of information. Both dimensions do not have a fixed degree that leads to transparency. So a different degree of each dimension can lead to a different understanding of transparency for each of the actors involved with the Transparency Register. These actors will be the European Institutions (The European Parliament, The European Commission and the Council of the European Union) and the registrants (public and corporate interest groups). To find out whether the different actors understand transparency differently with regards to the proposed Register, an overview of the origin, current status and proposed changes of the Transparency Register will be given first. This will lead to the selection of six characteristics of the proposed Transparency Register in section 5.3. Each of these characteristics will be linked to one of the two dimensions of transparency and this will help to determine, on the basis of various questions, what the effect of each characteristic on the Register and on the transparency of the EU decision-making process will be, according to the various actors. These questions will be introduced in section 6, 7 and 8. All in order to provide an overview on how different actors differ from each other in their opinion on the necessary degree of the two dimensions of transparency in order to ensure that the Register leads to more transparency; and to what extent the different actors differ from each other in their understanding of transparency. So whether transparency is indeed understood differently by the various actors. Finally, a conclusion will follow, where the main question will be answered.

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2. Transparency

2.1. Definition

Transparency is defined in different ways throughout academic and grey literature, and so there is no single definition of what constitutes transparency. It is a contested concept. However, it seems like there are some common elements in all of them, such as the disclosure of information and the access, comprehension and use of this information by the public. Overall, it seems to be that transparency refers to how willing an organization or government is to allow citizens to monitor its performance and to participate in its policy processes (Drew and Nyerges, 2004:36; Welch et al, 2005:379; Ginsberg et al., 2012; Grimmelikhuijsen, 2012:53; Grimmelikhuijsen and Welch, 2012; Roberts, 2012:130; Fung, 2013:187; Grimmelikhuijsen and Meijer, 2014:139; Piotrowski, 2014:183; Chen and Ahn, 2017). One of the definitions is the definition of Grimmelikhuijsen and this is a very comprehensive definition. It seems to incorporate the above-mentioned elements into one definition of transparency. While also the willingness of an organization or government to allow citizens to monitor its performance and to participate in its policy processes seems to be an important element in its definition. Grimmelikhuijsen defines transparency as:

‘’The availability of information about an organization or actor which allows external actors to monitor the internal workings or performance of that organization or actor’’ (Grimmelikhuijsen, 2012:53;

Grimmelikhuijsen and Welch, 2012; Grimmelikhuijsen and Meijer, 2014:139).

This is the definition of transparency that will be used in this thesis as well. I argue that this definition, and therefore transparency, consists of two different parts or dimensions. Both parts help to determine the ultimate degree of transparency, each in its own way. These two dimensions are, respectively the quantity and the quality of information. In short, this means that the quantity of information implies that a certain amount of information is needed in order to be transparent, while the quality of information means that thorough and adequate information is needed in order to be transparent. I will argue that the various involved actors of the Transparency Register seem to measure with different sizes with regards to these dimensions in order to determine whether the Transparency Register will lead to more transparency or not. These two different dimensions will now be explained more in detail.

2.2. Quantity of information

This dimension concerns the first part of the definition: ‘’the availability of information about an organization or actor’’. This part seems to imply that the amount of available information matters for the degree of transparency, and will be called the quantity of the

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7 available information. So, when there is not much information available about an organization or actor, the degree of transparency is low and when there is much information available about an organization or actor, the degree of transparency is high. Most definitions use this element of the extent to which an actor reveals relevant information about its decision processes, procedures, functioning and performances (Drew and Nyerges, 2004:36; Ginsberg et al., 2012; Grimmelikhuijsen, 2012:52; Grimmelikhuijsen and Meijer 2014:139; Fung, 2013:191).

However, Grimmelikhuijsen mentions another important dimension of transparency with regards to the availability of information as well, comprehensibility. More available information does not always mean more transparency, since it is important too that the available information must be presented in a comprehensible manner (Grimmelikhuijsen, 2012:53; Grimmelikhuijsen and Meijer, 2014: 141; Fung, 2013:191). Comprehensibility means that the available information must be understood quickly and that the disclosed information is simple and clear (Drew and Nyerges, 2004:37; Grimmelikhuijsen and Meijer, 2014:141). If there is a lot of information available, but it is difficult to comprehend for external actors, the organization or actor is not truly transparent, but ‘pseudo-transparent’. This refers to situation where actors appear to be transparent, for example by publishing a lot of information. However, this does not mean more transparency per se, since a great deal of information can create a flood of misinformation as well (Grimmelikhuijsen, 2012:53). So besides too little available information, too much available information seems to affect the degree of transparency in a negative manner as well, as illustrated in the graph below.

It might be desirable for external actors to have as much information as possible to monitor the internal workings or performance of an organization or actor. Though, it is also not possible for organizations and actors to collect and publish all of the desired information, even though it has been made easier by digitalization. However, it remains to be costly and

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8 also for security reasons it is not always desired to share and publish everything (Fung, 2013:192). Certain records may need to be kept secret to protect national security, personal privacy, or economic security for example. That is why transparency and secrecy are oftentimes in tension with one another (Ginsberg et al., 2012).

With regards to the proposed Transparency Register this dimension will focus on the amount of available information that the proposed Transparency Register will reveal, and whether or not this amount is enough to monitor for the public who is lobbying, who they represent and how much they spend.

2.3. Quality of information

The second dimension refers to the second part of the definition, what Grimmelikhuijsen calls, the “inward observability”. This is the ability of individuals and groups outside of the organization or government to monitor activities and decisions undertaken within the organization (Grimmelikhuijsen and Meijer, 2014:139). Therefore, information is required and as stated in the definition this part concerns the degree in which the external actors are allowed ‘’ to monitor the internal workings or performance of that organization or actor’’ with the available information. The first part of the definition was primarily about the amount of the available information, while the second part seems to relate more to the quality of the available information, where the aforementioned comprehensibility tension, already tended to this. Here, the emphasis seems to be on questions like: ‘is the available information correct and thoroughgoing?’ and/or ‘is the available information also the adequate information for external actors to monitor the internal workings or performances of the organization?’

Besides a certain amount of available information, there is also a certain type of information required to monitor the internal workings or performance of an organization or actor. Therefore, Fung came up with a regulative principle to establish informational priorities: proportionality. He stated that:

‘’Information about organizations should be publicly available in proportion to the extent that the actions of those organizations threaten and create risks to citizens’ vital interests’’ (Fung, 2013:192). Since, transparency is focused on the relationship between citizens and the organizations and governments upon which they depend. These organization and governments pose threats to citizens and citizens should therefore secure the information from them that pose the greatest threats. According to Fung there are some forms of information that has to be available to the public and this is determined by the risks that the public face because of the organizations or actors when this information is not available (Fung, 2013:192-193). Initially,

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9 this principle seems to be designed for organizations and governments that can be dangerous for citizens in a physical way, for example with production methods that can be dangerous for the public health. However, Fung argued that political freedom can also be seen as a vital interest for citizens. He mentions that governments and large organizations can form some sort of domination risk. They can create laws and regulations that order the life of the citizens. Therefore, citizens can face the risk of domination. This means that:

‘’The order under which they live is neither one that they chose to live under nor one that serves their interest’’ (Fung, 2013:194).

This implies, according to Fung, that since political freedom is a vital interest, the proportionality principle directs attention to collecting the kinds of information that can help citizens assess and guard against the domination risk. To do this, there are four different kinds of information relevant, according to Fung, of which the first, transparency of the actors who influence the political process, is the most interesting one with regards to the Transparency Register (Fung, 2013:194). Citizens must be able to know who is trying to influence the governance processes and what the character is of their political activities. These actors create a domination risk for the citizens, since they try to impose their views upon the whole society through the political process. Therefore, there is thoroughgoing and adequate information for the citizens required to understand and defend against that risk (Fung, 2013:194-195). So not only is there enough available information required to monitor the internal workings or performance of an organization or actor, it has to be thoroughgoing and adequate as well. This is also why the availability of information, as mentioned in the first part of the definition, alone is not enough. Since, that part seems to ignore the idea about what sorts of information are desired and/or more or less important for the public and external actors.

With regards to the Transparency Register this dimension will focus on the thoroughness and adequateness of the available information that the proposed Transparency Register will reveal, and whether or not this is enough to monitor for the public who is lobbying, who they represent and how much they spend. However, none of the dimensions of transparency has a fixed degree that leads to transparency. So every actor can differ in their demands for the extent that each dimension should have in order to see something as transparent. In this thesis this will be the proposed Transparency Register. Since, the various actors might differ in their opinion about the question whether or not the Register will lead to more transparency or not, due to the different desired heights for the two dimensions of transparency.

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2.4. Value of the Transparency Register for transparency

Since this thesis will be about the quality and the quantity of information with regards to the proposed mandatory Transparency Register. It might be interesting at this point to see what the value of the Register might be for the transparency of the EU. It is desired by the EU to improve their transparency by being more open and accountable for the public, since this can be seen as a part of good governance. This will be made clear in section 4.1. The Transparency Register is seen as a means to do this and it will be full of information with the goal of making the EU more open, more accountable and more responsible for the public. Commission Vice-president Timmermans already stated that the public will see who is lobbying, who they represent and how much they spend through the Register (European Commission 3, 2016). However, it is still unclear if a Register can actually enhance transparency. Therefore it is interesting to see what is written about the usefulness of a Register of any sort for enhancing transparency.

In the literature, one agrees that a Transparency Register as such can definitely enhance transparency. In order to do so, however, there are several important elements that are important for a Register as such. First of all should it be mandatory to register for the lobbyists. Voluntary Registers fare poorly in capturing most lobbyists and lobbying organizations. This is however very important for the Register in order to reflect the reality of money and influence peddling, while it also helps forcing the registrants to provide the correct information (Kanol, 2012:524-525; Holman and Luneburg, 2012:99). Second, it must be precisely defined who must register and who not, because otherwise it will be possible for those who want to evade disclosure to argue that they do not meet the registration requirements. This judgment should not be in the hands of the persons whose activities should be subject to scrutiny. This definition should also cover both lobbyists, who are employed by an entity to lobby on its behalf, and lobbyists, who work alone or with others in a lobbying firm to advance the interests of third-party clients for compensation (Holman and Luneburg, 2012;99-100; Kluger Dionigi and Martens, 2016:2). Third, the information in the Register and the periodic reports must contain useful information. This can help the public understand who is trying to influence whom and on what issues, such as individual lobbyists; their employers; their clients; specific issues lobbied; legislators and executive officials contacted and income earned by lobbying firms and their expenditures for lobbying (Holman and Luneburg, 2012:100; Kluger Dionigi and Martens, 2016:4). Fourth, the information in the Register must be available on the Internet in a searchable, sortable and downloadable format for the public. By making it available for the public, it also complements enforcement, because the public provides critical backup for monitoring compliance with the law (Holman and Luneburg, 2012:100-101). Fifth, the Register should be enforced by an independent

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11 governmental agency that can effectively address misbehaving lobbyists (Holman and Luneburg, 2012:101; Kluger Dionigi and Martens, 2016:2).

At first glance, it seems that the proposal for a mandatory Transparency Register is able to meet many of the above conditions, as will be further demonstrated in section 5.1 and 5.2. The Register can therefore also be seen as a reform for actual transparency, since it will effectively try to make the EU more open by making a lot of information online available about the contacts and meetings between the registered interest groups and EU officials. This information will allow external actors to monitor the internal workings or performances of the participating institutions better (De Fine Licht, 2014:325). However, the Register may improve actual transparency, but it will never reveal the complete truth, since there is no such thing as the as the instantaneous and complete revelation of the truth (Grimmelikhuijsen, 2012:301; Roberts, 2012:130). Before the information in the Register can reveal anything it has to be distilled first, in order to make it useful. This is something that will not be done by the citizens themselves but by other actors, such as the civil society and the media. As it is difficult, time-consuming and unpleasant to actually investigate the information provided by transparency reforms, the citizens will have it done by others who are thought to be in a good position to do it. The statements that these other actors will make about the Register will form the public perception of transparency. The public will not make an independent evaluation of the available information, but their perception of transparency will be formed by others (Roberts, 2012:130; De Fine Licht, 2014:315). The Transparency Register must help ensuring that EU decision-making is carried out in a transparent way, but even though it might actually achieve this due to the reform, the perception of the public that EU decision-making is carried out in a transparent way seems to be more important, than the knowledge if EU decision-making is actually transparent. This knowledge is only partially important, since actual transparent procedures can also be perceived as not transparent. It is very difficult to affect the public perception of transparency by means of an actual transparency reform, such as the proposal for the mandatory Transparency Register. Even though actual transparency does raise public perceptions of transparency a bit, ideas and perceptions about what an actor does and whether it is transparent or not seem to be far more determining (Gerring and Thacker, 2004:303; Welch et al., 2005:372; Grimmelikhuijsen, 2012:50; De Fine Licht, 2014:309). So it seems like the mandatory Transparency Register can definitely enhance transparency by having the above-mentioned elements in it, but it is also very important and maybe even more important, that it is perceived by the citizens that it will enhance transparency. This can be achieved through other actors, such as the civil society. However, this might be hard to pursue if there is no unambiguous thought about what transparency is, with respectively the quantity and quality of information, between all the actors.

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2.5. In summary

So in summary, transparency is defined as ‘’ the availability of information about an organization or actor which allows external actors to monitor the internal workings or performance of that organization or actor’’ (Grimmelikhuijsen, 2012:53; Grimmelikhuijsen and Welch, 2012; Grimmelikhuijsen and Meijer, 2014:139). I argue that this definition, and therefore transparency, consists out of two dimensions, which are used by different actors to look differently at transparency. On the one hand there is the quantity dimension of transparency, what will be called the quantity of information. This dimension mainly looks at the amount of information available to the public about an actor, where more available information seems to be better to the degree of transparency, provided that it is comprehensible. With regards to the proposed Transparency Register this dimension will focus on the amount of available information that the proposed Transparency Register will reveal.

On the other hand there is the quality dimension of transparency, what will be called the quality of information. This dimension looks mainly at the degree in which the available information is also the suitable information for external actors ‘’ to monitor the internal workings or performance of that organization or actor’’. This is the so-called “inward observability” (Grimmelikhuijsen and Meijer, 2014:139). So besides a certain amount of available information, there is also a certain type of information required to monitor the internal workings or performance of an organization or actor, because of the risks that the public will face when that information is not available. This information has to be thoroughgoing and adequate to understand and to defend against those risks. With regards to the Transparency Register this dimension will focus on the thoroughness and adequateness of the available information that the proposed Transparency Register will reveal.

With regards to a Transparency Register as a whole it seems to be that a mandatory Transparency Register can definitely enhance transparency, but it is also very important and maybe even more important, that it is perceived that it will enhance transparency. This can be achieved through other actors, such as the civil society. This emphasizes the importance of this research since this might be hard to pursue if there is no unambiguous thought about when something is transparent or not, between the various involved actors of the proposed Transparency Register, with regards to the quantity and quality of information.

3. Methodology

At the moment, there has been little or no research taken place on the extent to which different actors understand ‘transparency’ differently with regards to the quantity and quality of information and whether this can help explaining if a Transparency Register will

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13 lead to more transparency or not. Therefore, there is little or no existing literature from which any expectations can be drawn up and that is why a more exploratory attitude will be taken in this thesis. This is also the reason why there will be no hypotheses drawn and tested and also one of the reasons that a qualitative research method will be used in this research. In contrast to quantitative research, qualitative research is more aimed at generating than testing a theory. In addition, qualitative research has a relatively inductive approach to the research process, which provides more room for generating a theory (Chesebro and Borisoff, 2007:10; Bryman, 2008:26).

In this section, I will now first explain why I chose a multiple case study as research design and what these cases are. Next, I will clarify the research method that I will use to obtain my data, where my results will come from. This will be done by means of semi-structured depth interviews and a qualitative content analysis of obtained documents.

3.1. Multiple case study

This research will attempt to work inductive and therefore a ‘multiple case study’ has been selected as research design. When two or more cases are compared, it will be ultimately easier to determine the circumstances in which a theory will or will not survive. In addition, the comparison itself can already provide possible concepts that are relevant to the emerging theory (Chesebro and Borisoff, 2007:10; Bryman, 2008:60). Also, the distinguishing features between the different cases can serve as the basis for theoretical considerations of contradictory findings in a comparative design (Bryman, 2008:61). A ‘multiple case study’ tends to pay less attention to the specific context of the cases, but is more focused on bringing the cases to the opposite of each other (Bryman, 2008:61). This is another reason for using a qualitative research method in a multiple case study, as this allows for relatively more contextual insight than quantitative research. Since this approach will be relatively less structured, it may obtain information that would not be found in a more structured approach. More about this will be mentioned in section 3.2.

A multiple case study needs to use cases that are similar in some ways in order to classify them into groups. This will make it possible to compare the different groups in order to examine what is similar and different about them. The cases in this research are so-called ‘typical cases’. These cases belong to a wider category, which they represent. They are not chosen because they are extreme or unusual in a particular way, but because they embody a broader category of cases (Bryman, 2008: 56). Also, since this research will attempt to build a theory, which hopefully will say something about the usual situation, extreme or unusual cases are less relevant.

The wider categories in this research are formed by their relation with respect to the Transparency Register, respectively the institutions and the registrants. The three

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14 institutions for whom the proposed Transparency Register should apply, belong to the ‘Institutions’, respectively the European Commission, the European Parliament and the Council of the European Union. While the organizations that will be part of this Register, belong to the ‘Registrants’. This second group is much larger and more divided than the first group. Therefore it may have been an idea to conduct a group survey in this group, since this might have been stronger for the external validity (Bryman, 2008:377). However, since it was desired to have a unity of method between the different categories, I have chosen not to conduct group surveys. Though it remains to be hard to conclude something about the registrants of the Register as a whole, since there are over 10.000 entries (Website Transparency Register). Therefore, I have chosen to subdivide this second group into two different groups. So that in addition to a comparison between the larger groups, a comparison can be made between the smaller groups, but also because the different organizations in this group differ so much in characteristics, such as size, interest and budget. Therefore it seemed just logical to make a difference in this group as well.

The distinction made is based on the represented interest of the organization. On the one hand, this is the public interest at the so-called ‘public interest groups’, which includes: the Alliance for Lobbying Transparency and Ethics Regulation (ALTER-EU); Access Info Europe (AIE), Friends of the Earth Europe (FOEE) and Corporate Europe Observatory (CEO). These groups are all centred on the same theme, the necessity of transparency in the EU. On the other hand this is the corporate interest at the so-called ‘corporate interest groups’, which includes: Burson-Marsteller; the Dutch Banking Association (DBA), European Public Affairs Consultancies’ Association (EPACA); European Coil Coating Association (ECCA); Dutch Organisation for Agriculture and Horticulture (LTO Nederland); Gasunie; Association Of Automobile Dealers and Garage Holders (BOVAG); Eumedion; European Centre for Development Policy Management (ECDPM) and the Association of Dutch Chemical Industry (VNCI). It was harder to centre this group on the same theme, due to the lack of responses of the various corporate interest groups. However, it is still possible to say at least something about this group. This makes it not only possible to make a comparison between the ‘institutions’ and the ‘registrants’ as a whole, but also to make a comparison between the various institutions and the various registrants mutually. This will hopefully give an even broader picture of how the different actors see transparency.

3.2. Semi structured interviews

The manner, in which the final data and results will be obtained, will be, inter alia, by means of semi-structured interviews. A fully structured interview would not have been useful in this case. This is primarily suitable for testing established concepts from theory to empiricism (Bryman, 2008:193-194). This research, however, attempts to build on a theory based on

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15 empiricism. Though, any structure in the interviews is beneficial for a multiple case study in order to compare the cases and therefore semi-structured interviews are chosen (Bryman, 2008:440). In the interviews, a list of questions and rather specific topics were dealt with and discussed. These topics and questions relate to the ideas and concepts that emerged in the theory and can be found in the appendices. The first question that was asked during the interviews was always the same one and subsequently the topic list was followed according to the course of the interview. Therefore, the questions and topics do not have to be treated in a fixed order while questions that are not written, but occurred to the interviewer during the interview, can also be treated (Bryman, 2008: 438; Harrell and Bradley, 2009:27).

By following the topic list, the different ideas that are and will be mentioned in the theory were discussed during the interview. However, there was still enough room for the respondent to come up with other interesting points. Semi-structured depth interviews allow the emergence of rich detailed information. Insights can be gained in what the interviewee regards as relevant and important, since a semi-structured depth interview can be done off the beaten track. In addition, the interview is flexible, as it is answered in the direction where the interviewees want to go, with the interviewer possibly shifting and adjusting some accents when important points emerge during the interview (Marshall and Rossman, 2006:101-102; Bryman, 2008:437; Harrell and Bradley, 2009:27). Consequently, relatively more contextual insight can be gathered than in quantitative research, which is a bit more structural. Finally, all the conducted interviews will be provided as an audio file or through the publication of the mutual e-mails, as some information could be obtained from this as well. These can all be found in the appendices.

3.3. Official documents

The second manner, in which the final data and results will be obtained, will be by means of documents as sources of data. Besides the semi-structured depth interviews, I will also analyse documents that have not been produced at the request of the researcher. All these documents are materials that: can be read; have not been produced specifically for the purpose of research; are preserved so that they become available for analysis; and are relevant to the concerns of the researcher (Bryman, 2008:515). These documents are respectively official documents derived from the state and from private sources. In this case is the state the European Union and are the documents textual material derived from its various institutions, such as official reports (Bryman, 2008:521). While the private sources are the various registrants and the documents are textual materials derived from this group such as mission statements, press releases and public relations material (Bryman, 2008:522).

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16 According to Bryman, should these documents be subject to a number of criteria. These criteria are: authenticity, which means that the document has to be genuine and of unquestionable origin; credibility, which means that the document has to be free from error and distortion; representativeness, which means that the document has to be typical of its kind, or when it is not its untypicality has to be known; and meaning, which means that the document has to be clear and comprehensible (Bryman, 2008:516). The documents derived from the state and from private sources are likely to be authentic and meaningful, according to Bryman (Bryman, 2008:521-522). However, issues of credibility and representativeness require somewhat greater consideration. Though, documents that reveal some biases may be interesting for this research as it may show that transparency is interpreted differently. While the issue of representativeness is complicated because materials like these are in a sense unique, and it is precisely their official or quasi-official character that makes them interesting in their own right (Bryman, 2008:521-523).

3.4. Qualitative Content Analysis

The approach with which these documents and the interviews will be interpreted is a qualitative content analysis. This is one of the most prevalent approaches to the qualitative analysis of documents and it comprises a searching-out of underlying themes in the materials being analysed (Bryman, 2008:529; Elo et al., 2014:7). The interpretation of the researcher is very important, since it is an approach to documents that emphasizes the role of the researcher in the construction of the meaning of and in texts. It allows the researcher to form various categories out of the data. This is important to really understand the meaning of the context in which an analysed document and the categories that are derived from it, appeared (Bryman, 2008:542; Elo et al., 2014:7). These different categories will be announced in paragraph 5.3. With these categories some indexes will be constructed, which will be represented in a matrix. The categories are essentially recurring motifs in the text that are applied to the data and are a product of a thorough reading of the data (Bryman, 2008:554).

3.5. Reliability and validity

Qualitative research focuses usually more on the depth of one or more cases in contrary to the broader quantitative research. Therefore, it is often more difficult to determine whether the obtained results are generalizable and thus externally valid (Bryman, 2008:377; Elo et al., 2014:5). Therefore, I have tried to describe the findings and results as thorough as possible in a so-called ‘thick description’. By doing this I have tried to give others the opportunity to judge to what extent the findings are transferable to other cases or not (Bryman, 2008:378).

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17 Furthermore, I have also tried to ensure the best external reliability of the research as possible. The degree to which a research can be replicated is always a difficult issue in qualitative research because it is impossible to create a similar social setting and the same circumstances at a later date (Bryman, 2008: 376; Elo et al., 2014:2). However, by including the topic list that has been used in the interviews, it has been attempted to make it as clear as possible how the data has been collected and how it has been decided to what the extent the different actors understand ‘transparency’ differently with regards to the quantity and quality of information and whether this can help explaining if a Transparency Register will lead to more transparency or not. This makes it possible to replicate this research by using the same topic list.

4. Origin of the Mandatory Transparency Register

4.1. Governance White Paper

In 2001, the European Commission acknowledged that the people increasingly distrust institutions and politics, or are not interested in them. Especially in the European Union, since European citizens were losing confidence in the EU system. It was poorly understood; complex; seen as remote and too intrusive. However, the people did expect action from the EU. Therefore they wanted the EU to act more visible and that is why the EU tried to connect more with its citizens, by identifying the reform of EU governance as one of the four strategic objectives in early 2000 (Commission of European Communities, 2001:3). In a White Paper on European Governance in 2001, about the way in which the EU uses the powers given to them by its citizens, the European Commission proposed some reforms for European Governance to bring citizens closer to the European institutions. These proposals rest on five principles, namely openness, participation, accountability, effectiveness and coherence (Commission of European Communities, 2001:32)

These five principles are supposed to be the basis of good governance. Openness stands for the idea that European institutions should attach more importance to transparency and communication in the decision-making process. When the institutions are open, they are transparent, properly accessible and responsive. With participation is meant that citizens should be more systematically involved in the drafting and implementation of policies. Accountability is the necessity of clarifying the role of each party in the decision-making process, whereby each involved actor should assume responsibility for the role given to them. Subsequently effectiveness, which is the need to take decisions at the appropriate level and time and deliver what is needed. And finally coherence, this is the idea that the EU

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18 conducts extremely diverse policies which need to be pursued coherently (Commission of European Communities, 2001:10).

Based on these principles, the European Commission proposed four changes for their governance: better involvement; better regulation; contribution to global governance; and redefining the political strategy of the institutions. These changes had to take place in the existing treaties, by adapting the institutions of the EU and establishing more coherence in the EU policies so that it is easier to see what it does and stands for. However, also in the new policies. For this thesis is especially the first change, better involvement, interesting. The European Commission proposed in its White Paper that the policy-making process should be opened up, to get more people and organizations involved in shaping and delivering EU policy. To reach this goal, the EU should be more open, more accountable and more responsible for those involved. With these points the people in the EU should be able to see better how the EU and the Member States are able to tackle their concerns more effectively (Commission of European Communities, 2001:3). It is the purpose that policy-making will be more open so that more involvement and a clearer view of the responsibilities will emerge. A better use of the powers should connect the EU and its citizens more and make the policies more effective (Commission of European Communities, 2001:8). So, by making the EU more transparent and by increasing the citizen knowledge of government processes and performance, the EU will try to increase understanding and trust and this positive effect has been debated widely in the literature (Hood, 2006; Cook et al., 2010; Grimmelikhuijsen et al., 2013).

The ways in which EU policy is prepared and adopted must be more open and easier to follow and understand, according to the Commission. Therefore it will provide online information on preparation of policy through all the stages of the decision-making process, which is up-to-date. Also, the Commission will try to achieve a stronger interaction with the civil society. Member States will bear the principal responsibility for achieving this, but the Commission proposed a few changes for its part as well. It will establish, for example, a more systematic dialogue with representatives of these actors at an early stage in shaping policy. The Commission will also bring greater flexibility into how the legislation of the EU can be implemented in a way that takes account of regional and local conditions. Also the publication of minimum standards for consultation on EU policy will be established (Commission of European Communities, 2001:4).

4.2. European Transparency Initiative

This White Paper led towards multiple actions by the European Commission in the following years. The Commission introduced for example a database named: Consultation, the European Commission and Civil Society (CONECCS). Its objective was to provide

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19 information on the committees and other Commission frameworks through which the organizations in the civil society are consulted in a formal or structured way. This information was also available to the public and it was intended as a source of information and not as a means of accreditation, while it was hoped that CONECCS would improve the openness and accountability of the policy deliberations and decisions in the Commission (Commission of the European Communities, 2002:7; Anttiroiko, 2007:764).

In 2005, subsequently, the Commission launched the European Transparency Initiative (ETI), since a ‘’high level of transparency’’ is very important for the EU, according to the Commission. This Initiative was launched to ensure that the EU is ‘’open to public scrutiny and accountable’’, because high levels of transparency are part of the legitimacy of a modern administration (European Commission, 2006; European Commission, 2007; EPRS, 2014:3). The ETI encompassed three action areas, while it should overall increase openness and accessibility of the EU institutions. The first action area concerned more information about the management and use of Community funds, whereby it should raise awareness over the use of the EU budget. The second area concerned the professional ethics within the European institutions and the third area was the framework within which lobby groups and civil society organisations operate. Especially the third action area is interesting for this thesis, while the issue of lobbying was also a central point in the ETI debate (European Commission, 2006; European Commission, 2007). At the launch of the ETI, Commissioner Kallas stated:

“Lobbyists can have considerable influence on legislation, in particular on proposals of a technical nature (…) but their transparency is too deficient in comparison to the impact of their activities”

(Kallas, 2005).

Lobbying and interest representation is something that happens at all the levels of the European Union. It is an integral part of democracy and also included in the Treaty of the European Union. In Article 11 (1), (2) and (3) is stated that the European Parliament, the Council of the European Union and the European Commission all want to have an open, transparent and regular dialogue with representative associations and the civil society. By consulting them, the European institutions want to ensure that the actions of the EU are coherent and transparent. Lobbying makes it possible for everyone to express their interests and also to enhance the quality of decision-making, since it provides channels for the input of expertise on technical issues as well. By involving these actors, they can also help to ensure that proper account is taken of the concerns of the citizens and all interested parties (Commission of the European Communities, 2002:3-4; Commission of the European Communities, 2006: 1-2; EPRS, 2014:2-3). However, all these parties that are interested will

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20 only have a voice and not a vote. They can be heard, but they can never decide. So, interested parties can only supplement and never replace the procedures and decisions of the institutions (Commission of the European Communities, 2001: 15-16; Commission of the European Communities, 2002:4-5). So it is important for the EU to involve interested parties as much as possible in the decision-making process to ensure that the process and the eventual decision are as good as possible.

The policies in the third action area of the ETI rested on two kinds of measures. On the one hand, there has to be more information provided to the citizens of the EU about the relations between interest representatives and the Commission in order to allow outside scrutiny. On the other hand, there were rules needed on integrity, which should ensure that both parties interact properly with each other. So, those being lobbied and the lobbyists themselves (Commission of the European Communities, 2006; EurActiv, 2009). To achieve this, a voluntary lobby register was proposed, since a mandatory registration system was not seen as an appropriate option by the Commission. That is why the Commission started to research the possibility of developing and managing a web-based voluntary registration system for all interest groups and lobbyists who wish to be consulted on EU initiatives. To register, the entities would have to provide information about who they represent; what their mission is and how they are funded. Finally, the also had to sign up to a code of ethics (Commission of the European Communities, 2006; European Commission, 2007).

4.3. Voluntary Transparency Registers

This lead to the launch of a voluntary register of lobbyists in 2008 and this can be seen as the forerunner of the Transparency Register for the Commission. This register was launched, with the goal of enhancing the general transparency in relations between the Commission and the interest representative and a Code of Conduct for interest representatives was also adopted (Communication from the Commission, 2008:4; Copeland, 2013:1-2). This voluntary register was seen as a great step towards more transparency in the sense that it offered an online database with a:

‘’user-friendly access both to interest representatives for their online registration and subsequent updates and to the public at large, for the consultation of its content’’ (Communication from the

Commission, 2008:2).

With this, the contributions to public consultations of the registered entities were published together with the identity of the entity. Also, the registered entities have signed the Code of Conduct as was mentioned in the ETI as well (European Commission, 2006; Communication

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21 from the Commission, 2008:7). Still, the register was only voluntary and it included only the European Commission. Since it was only a voluntary register, it was only ‘’expected’’ of organizations that carried out activities ‘’with the objective of influencing the policy formulation and decision-making processes of the European institutions” to register (Communication from the Commission, 2008:3). Registration was seen by the Commission as an important contribution to transparency. Therefore the staff was encouraged to use the Register as a reference for contacts, but it was not forbidden to meet with non-registered entities. Though, the Commission staff was encouraged to invite them to register (Communication from the Commission, 2008:5). Also the register applied only for the interest representatives in their dealings with the Commission. Therefore the Commission wanted to examine if there was closer cooperation possible with other institutions, and the European Parliament responded positively (European Commission, 2007; Communication from the Commission, 2008:5). This was also already mentioned in the ETI, because it was thought that this would encourage stakeholders to register (European Commission, 2007). At that time the European Parliament already had its own lobby register. It was launched in 1995 and therefore already active, when the Commission came with the White Paper on European Governance. It consisted of a list of all the interest representatives that had access badges to the buildings of the Parliament. In order to get these badges, they had to sign a code of conduct and a publicly accessible register. The information requirements were very limited though. The interest representatives only had to provide their names and the organisation that they represented (Copeland, 2013:1; EPRS, 2014:3). There was for example no information available about their objectives and interests; and an estimate of their annual costs and revenues related to their activities.

In 2008, the European Parliament called for the establishment of a common mandatory Transparency Register, just months before the launch of the voluntary Register of the Commission. This common Register should cover the Commission, the Parliament and the Council. However, it only lead, after years of discussion between the first two institutions, to the joint Transparency Register of the European Commission and the European Parliament in 2011 (European Parliament, 2011; EurActiv, 2011). Since then, the Commission and the Parliament have an Interinstitutional Agreement (IIA) that is a product of the two separate lobby Registers of the Parliament and the Commission that existed before. This is the so-called voluntary Transparency Register and it was seen as an enhancement to transparency, because it made it possible for European citizens to find all the information on lobbyists and interest groups that are talking to these two institutions in one place (European Parliament, 2011). As mentioned before, the Council did not take part in the IIA and it did also not have similar initiatives as the Commission and the Parliament with regards to the Transparency Register. The Council of the European Union does see

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22 transparency as a very important principle of the EU, since the institutions should work as open as possible to promote good governance and civil society and it remains committed to giving the fullest possible effect to the transparency principle. (Council of the European Union, 2011:1). In 2006, they published for example a booklet where they underlined the need for further increasing openness and transparency as a means to strengthening the confidence of the EU citizens. The Council agreed on a policy to open up the work of the Council by making many documents, background notes and debates open for public on a website. However, this did not include any information about the interactions with interest representatives (Council of the European Union, 2006:2-3). Though, in 2011, the Council stated that it welcomed the initiative of the Commission and the Parliament and it wanted to consider to have a role in the Register or at least to discuss the possible modalities with the Parliament and the Commission. Since it thinks that the relations and contacts with interest groups should be guided by transparency and the Register provides a useful basis to do so (EurActiv, 2011; Council of the European Union, 2011:1). Though, eventually the Council did not participate in the Register just as it did not in 2014 when the Register was evaluated and the Council was invited again (Council of the European Union, 2011:1).

So it is important for the EU to involve interested parties as much as possible in the decision-making and the EU also believes that it must be very transparent to ensure that it is open to public scrutiny and accountable for its work. According to the EU are high standards of transparency part of the legitimacy of any modern administration as has been stated in the Governance White Paper as well (Commission of the European Communities, 2006:2). It is essential to maintain the trust of the citizens in the legitimacy of the political, legislative and administrative processes in the EU. That is also one of the reasons for this joint voluntary Transparency Register. This voluntary Register made it optional for lobbyists in Brussels to register, even though the Parliament preferred this to be mandatory (European Parliament, 2015). However, it was claimed that the agreement for a voluntary joint Register provided strong incentives for registration, since one could not have access to the Parliament without being registered anymore, for example (European Parliament, 2011; AIE, 2014; Juncker, 2014:12; European Ombudsman, 2015; Eriksson, 2016; White, 2016). This voluntary Register was evaluated in 2014, where after some adjustments were made, like a clearer division between the different interest organizations; more incentives for organizations to register and a strengthening of the code of conduct. In the evaluation was also decided that registration in the Register remains voluntary, because there is no simple and clear legal basis for a mandatory register and because the Commission and Parliament both want to keep open dialogue with all interested parties, regardless of their status (European Parliament and European Commission 1, 2014).

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23 However, the call for a mandatory Register continued and in 2016 the Commission proposed a mandatory Transparency Register, what was welcomed by the European Parliament (European Parliament 1, 2016). The rationale for this proposal is described below.

5. Proposed Mandatory Transparency Register

5.1. Content

So in 2016 the Commission proposed a mandatory Transparency Register. This IIA is considered as a better means for the EU to become more transparent, since it was claimed that the voluntary Register was riddled with inaccurate and/or misleading information (ALTER-EU 1, 2016:1). Also, the mandatory Register can be seen as part of the broader commitment of the president of the Commission, Juncker, towards greater transparency of the EU. The voluntary Register is not compulsory yet, but the mandatory one should make the processes within the EU as transparent as possible, according to the Commission, since the EU will be more open and more accountable (Juncker, 2014:12; European Commission 1, 2016:2-3; European Commission 3, 2016). As stated by Commission Vice-president Timmermans:”citizens have the right to know who tries to influence EU officials,” and transparency is ‘’one of the few tools we have to reconnect with very sceptical citizens’’ (Juncker, 2014:12; European Commission 1, 2016:2-3; Eriksson, 2016; White, 2016). With the proposed mandatory Transparency Register it will be ensured that certain forms of interaction with the institutions will be conditional upon prior registration. While it will also ensure that all the interest representatives that interact with the institutions, respectively the Commission, the Parliament and the Council, will be visible for everyone on a website. This makes registration to the Register a de facto precondition for interest representation, and it also ensures that this representation occurs according to the agreed rules and principles. The mandatory Register makes is possible for the European citizens to know with which rules and procedures the interest representatives, who talk to the institutions, must comply. Furthermore, all legal interest representatives that can interact with the institutions can be detected by everyone due to the online Register (European Commission 1, 2016:2-3 & 6-7; European Commission 2, 2016-7-8).

5.1.1. Who is registered?

With the interest representatives that should be in the Register are meant:

‘’any natural or legal person, or formal/informal groups, associations or networks thereof, engaging in activities covered by this agreement’’ (European Commission 1, 2016:3).

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24 However, there are a few exceptions mentioned in the proposal and these bodies are not covered by the IIA. These bodies are all exempt from registration and are respectively: political parties; churches and religious organizations; the public authorities of the Member States, including their permanent representations and embassies; the public authorities of third countries, including their diplomatic missions and embassies; and intergovernmental organizations, including agencies and bodies emanating from them (European Commission 1, 2016:5).

The activities that are covered by the agreement are:

‘’activities which promote certain interests by interacting with any of the three signatory institutions, their members or officials, with the objective of influencing the formulation or implementation of policy or legislation, or the decision-making process within these institutions’’ (European Commission

1, 2016:4).

Mentioned examples of these forms of interaction in the proposal are access to Parliamentary buildings; speaking at committee public hearings; attending meetings with MEPs, the Secretary-General, Directors-General and Secretaries-General of political groups; hosting events in buildings of the EP; attending meetings with members of the Commission, their Cabinet members and Directors-General; receiving notifications about activities of the institutions; being appointed in expert groups; receiving information about public consultations; and granting of patronage to events organised by interest representatives. These types of interaction are conditional upon prior registration of interest representatives (European Commission 1, 2016:5-7). A few other activities are explicitly not covered by the agreement. These are the provision of legal advice and other professional advice in the context of a client-intermediary relationship; submissions that are made as a party or a third party in the framework of legal or administrative procedures and the communication of citizens that act solely in their personal capacity (European Commission 1, 2016:4-5).

Another element that is important to mention concerns the expert groups. These are consultative bodies with experts from the public and private sector that can provide specialist advice to the Commission or its departments for policy making. This is another instrument of influencing the policy making process of the EU, but this is about expertise instead of interests. It is important that not all of these members have to be registered in the Transparency Register, since these members can be of different types. Only if the members are individuals appointed to represent a common interest or if the members are organisations, they have to be registered. However, if the member is an individual appointed in a personal capacity, in the sense that it acts independently and it expresses its own

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25 personal views, it does not have to be registered, though it still can influence EU policy making. So the Transparency Register is not a means by which one can see every single interaction of the Commission with the outside world (European Commission 1, 2016:4; Website Register of Commission Expert Groups).

5.1.2. The code of conduct

The rules and principles where the interest representatives must comply with are in the so-called code of conduct. This is an element of the proposal that interest representatives have to agree with in order to come in the Register. Besides providing specified data about the name of the office where they work they have to provide their objectives and interests; any memberships of several groups and organizations; and an estimate of their annual costs and revenues related to their activities covered by the Register. The code of conduct includes the following points as well: First, the information that is published about the interest representatives in the Register must be accurate at all times. Second, the registrants have to be able to identify themselves at all times too, including the entities and clients they represent. They also have to declare their interests and objectives. Interest representatives cannot obtain information in a dishonest manner, or even try to do so. Also the information they will obtain cannot be sold to a third party. Furthermore they must respect the rules of conduct, standards and obligations that are valid for other persons, like MEP’s, commissioners or employees, while they cannot induce them to infringe upon these rules of conduct, standards and obligations. Finally, the registrant must also be able to justify at all time and those with whom they work should also be aware of all the points in the code of conduct (European Commission 2, 2016:7-8).

5.1.3. The Council of the European Union

As mentioned, the proposal also invites the Council to join the Register. In a reaction the Council stated that it remains to be committed to giving the fullest possible effect to the principle of transparency. Therefore, the Council will be represented in the High Level Working Group by its Presidency for the negotiations of the proposed IIA (Council of the European Union, 2016:2). The possible inclusion of the Council was welcomed by the civil society, since this had not happened before even though it had been demonstrated that a lot of lobbying takes places towards the permanent representations of the member states in Brussels. They are very important in the decision-making process, but this is for a big part under the radar. Therefore, they are a target for lobbyists to promote their agendas. Though, this is not transparent yet, according to civil society organizations, since there is a lack of monitoring and record-keeping by the permanent representatives about who lobbies them. In turn, this public access to, and scrutiny of, information about the lobbying around the

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26 decision-making processes in the EU is prevented (ALTER-EU 2, 2016:5; ALTER-EU 3, 2016:2). It is proposed to include the Ambassador of the current and forthcoming Presidency of the Council of the EU, as well as their deputies in the Committee of the Permanent Representatives of the Governments of the Member States to the European Union, the Council's Secretary-General and Directors-General in the Transparency Register (European Commission 1, 2016:6).

5.1.4. IIA

It is interesting to point out that the Commission initiated an IIA instead of a legislative proposal. The reason for this will be further elaborated in section 7.1.1. This means that the mandatory Register will not have any legal powers to take action against organizations that do not comply with the rules. Without a legally-binding lobby register, authorities cannot for example levy fines or mount criminal investigations. An IIA cannot impose rules on third parties, but only on EU institutions. So lobbyists and interest organizations that will not follow the rules cannot face any legal sanctions in the proposed mandatory Transparency Register (ALTER-EU 2, 2016: 1-4). There can be an investigation by an independent governmental agency though, specifically by the Secretariat General (European Commission 2, 2016:9). In that case, it may be decided to remove the interest representative temporary from the website of the Register, in order to avoid loss of reputation of the EU, the Register or third parties. This depends on the severity of the alleged offense (European Commission 2, 2016:10-11). If the eventual examination reveals that there actually had been a violation of the code of conduct, one can take three measures. First, one can give the interest representative a formal warning. Second, one can suspense the interest representative for one or more forms of interaction that were available for the interest representatives, according to the agreement, for a period of 15 days to 1 year. Third, the interest representative can be removed from the Register for a period of 15 days to 2 years (European Commission 2, 2016:12-13).

5.2. Differences with the Voluntary Transparency Register

Compared to its predecessor, the voluntary Transparency Register, a few things are striking about the mandatory Transparency Register. Both registers are IIA’s and they might not seem to differ very much from each other substantively, but there are definitely some important differences between the two.

First of all, the proposal comprises the three institutions of the EU instead of only two, so the Council is included. This is a big difference compared with the Voluntary Register, since that one only comprised two institutions, respectively the Commission and the Parliament. This would be the first time that all three institutions will be subject to the