Disclaimer: Essay written on December of 2024
Abstract
Lobbying, a significant corporate activity, often involves influencing policymaking to delay or weaken environmental regulations, posing challenges to the EU’s sustainability goals. While the EU has introduced transparency and accountability measures, gaps remain in aligning lobbying practices with ESG criteria and public interest objectives. This article examines the intersection of corporate ethics, ESG criteria and lobbying practices within the EU, emphasizing the need for stringent regulatory measures to ensure ethical and sustainable corporate behavior. The analysis highlights the inadequacies of current regulations and underscores the role of corporate governance in aligning lobbying efforts with sustainability commitments, proposing reforms. By integrating ESG principles into lobbying regulations and corporate governance frameworks, the EU can improve transparency, accountability and public trust in policymaking processes.
Introduction
Empirical studies often focus on the financial environmental aspects of firms, but tend to neglect an important aspect of corporate behavior: ethics. Ethics is a key factor when analyzing sustainability and long-term success, thus, it is a crucial aspect to analyze for firm’s commitment to ethical principle to get a better appreciation of how it manages environmental and societal issues.[1]
In recent years, Environmental, Social, and Governance (ESG) criteria have become critical benchmarks for evaluating corporate performance beyond financial metrics.[2] ESG factors reflect a company’s commitment to sustainable and ethical practices, including how they manage their environmental impact, their relationships with stakeholders, and their internal governance structures. One significant area where corporate ethics and ESG criteria intersect is in the practice of lobbying.
There is a common understanding that lobbying is an important part of a corporation’s activity, as it involves advocating for regulations and policies that can impact a firm’s operations and industry.[3] Today investors place a strong emphasis on companies’ climate performance, tracking their progress in sustainability initiatives and green innovations. However, firms face considerable uncertainty regarding the direction of future regulations. Lobbying provides a mechanism for companies to delay the implementation of environmental laws, thereby protecting their business interests in the short term.
This paper’s objective is to evaluate whether the current regulations on lobbying in the European Union are sufficient to ensure responsible practices and accountability, or if more stringent measures are needed. Lobbying, in general, refers to activities aimed at influencing public officials and policymakers in favor of specific interests. Environmental lobbying focuses specifically on influencing policies related to environmental protection and sustainability.
To address this objective, the paper examines lobbying activities carried out by private sector entities and NGOs, particularly those occurring outside government corridors, with a focus on their transparency, accountability and alignment with the public interest. Furthermore, the paper explores the integration of ESG criteria – which assess the environmental, social and governance practices of companies – into the regulation of lobbying activities.
Lobbying within the European Union
Under Article 11 of the Treaty on European Union “The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action”. In addition, “The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society”. Lobbying, as an essential component of political decision-making process in a pluralistic, democratically organized society, involves efforts by individuals or groups to influence decision-making within public institutions. The European Union understands lobbying as an activity carried out by persons outside the European institutions, bodies, offices and agencies, who, in an associated or non-associated form, seek to influence, directly or indirectly, the administrative and political apparatus of the EU involved in the European policy-making process.[4]
The specific structure of the EU, with its complex decision-making processes that are sometimes difficult for the (average politically interested) observer to understand, represents a favorable opportunity structure for interest representation and, within the European Union, lobbyists represent a wide array of interests, including businesses, labor unions, non-profits, and advocacy groups with their activities ranging from direct interactions with policymakers (cultivating relationships; providing expertise to the government; engaging with law firms; through the revolving door phenomenon; with gifts and hospitality or buttonholing) to more indirect means such as allying with market competitors, publicly warning the effect of a proposed measure on the market, funding industry-friendly research or discredit scientific findings opposed to their interests, through thinktanks, front groups and astroturfing or via political contributions.[5]
The existing literature highlights several concerns with current lobbying practices, including the disproportionate influence of corporate interests[6], lack of transparency[7], and insufficient accountability mechanisms. While some regulations exist, they often fall short in ensuring that lobbying activities align with broader public interest goals and ESG criteria, thus, it is crucial to analyze the current regulations on lobby and how corporations themselves could become more accountable, self-regulating it.
EU Regulations on Lobbying
The regulation of lobbying in the European Union has been a subject of considerable debate. In the European decision-making process, the importance of transparency and adherence to formal and egalitarian principles, ensuring that lobbying activities are conducted openly and fairly is crucial when regulating lobbying, as maintaining the integrity of EU institutions and fostering public trust are a sine qua non requirement for the guarantee of the system and, specifically, to socially legitimize the exercise of professional lobbying as part of the system.
Recognizing the necessity for lobbying due to the highly complex nature of European acts, the EU has established several regulations over time. In 2002, the White Paper on “European Governance”[8], committed EU institutions to strengthening consultation and dialogue with interested parties.[9] The 2006 Green Paper “European Transparency Initiative”[10], aimed to foster a more transparent, accountable and open EU by improving lobbying transparency, public access to information and ethical standards within EU institutions, laying the foundations for current regulations. Additionally, the 2009 Lisbon Treaty affirmed the principle that decisions at EU level should be taken “as openly as possible and as closely as possible to the citizen” (Article 1 and Article 10.3 of the Treaty on European Union).
Within the framework of the European Union, lobbying is a crucial part of the legislative process, that normally provides for the involvement of the European Commission, the Council and the Parliament for the adoption of an act of general application. According to Article 16, Article 17.2 of the Treaty on European Union, Article 289.1 and Article 294 of the TFEU, the Commission normally has the power to propose the act, whereas the Council, alone or jointly with the European Parliament, has the power of decision.[11]
Despite the involvement of all European institutions in the European legislative process, it is evident that interest representatives primarily focus their attention on the European Commission, as the initiator of the proceedings. As such, “in order to take account of the experience gained in its application [2011 Code of Conduct] and be up to the high ethical standards that are expected of Member of the Commission”,[12] the Code of Conduct for Members of the European Commission came into force on February 1st 2018. This Code, in addition, to the declaration of interests, for the first, specifies when a conflict of interest may arise, establishing that the Commissioner is obliged to avoid both actual and perceived conflicts of interest (Article 2 of the 2018 Code of Conduct). In such case, the Commission President, advised by the independent ethics committee, can take measures such as reassigning responsibilities or requiring financial interests to be sold or placed in a “blind trust” (Article 4(4) (a) and (b) of the 2018 Code).
Among the various novelties introduced by the new Code[13] is also the one concerning the post-term-office which has been extended to two years (previously 18 months) for former Commissioners and three years for the former President of the Commission, during which they are prohibited from lobbying Commission members or staff (Article 11). Additionally, Article 7 mandates that Commissioners and their cabinet members disclose meetings with entities listed in the Common Transparency Register, a decision taken in 2014.[14] Article 13 provides for reprimands and public disclosure of violations not severe enough to warrant referral to the Court of Justice.
The European Parliament, often targeted for lobbying, was the first EU institution to adopt measures promoting transparency in its interactions with lobbyists, albeit though largely soft rules. Following the “Cash for Amendments” scandal[15] involving four MEPs, it swiftly and nearly unanimously, adopted the “Code of Conduct for Members of the European Parliament on Financial Interests and Conflicts of Interest”. This Code requires members to submit a declaration of financial interests to the Parliament President, with failure to comply resulting in ineligibility for certain roles or exclusion from delegations. MEPs must also decline significant gifts or similar benefits, disclose participation in third-party events and adhere to rules governing lobbying for former members. Penalties for violations range from reprimands and suspension to removal from key roles.
To this body of rules, in response to the 2022 “Quatargate” corruption scandal[16], the Parliament amended its Rules of Procedure[17] in September 2023, introducing stricter lobbying regulations and increased penalties for breaches of the Code of Conduct.
Despite its key role in EU decision-making, the body representing member states has consistently been reluctant to adopt transparency measures. In fact, following an Ombusdsman inquiry, which revealed significant issues such as closed-door debates, inconsistent document classification[18] and limited public access to legislative documents, the Parliament, Council and Commission adopted an Interinstitutional Agreement on a Mandatory Transparency Register[19] for interest representatives, which entered into force on 1st July 2021.
The first Transparency Register was established in 2011, containing a list of registered organizations that undertook to comply with its Code of Conduct, publicly accessible as an online database via the EU Commission’s website. However, as the register was non-binding, many significant lobbyists were not listed and even the registered entities often failed to provide accurate or updated information due to the lack of stringent sanctions. In 2016, the Commission initiated a revision of the Interinstitutional Agreement, culminating in a 2021 decision to make the Transparency Register mandatory[20] under the conditionality principle[21], requiring registration for lobbying activities across EU institutions.
Nonetheless, the Interinstitutional Agreement contains a significant number of objective and subjective exclusions that undermine its purpose.[22] Transparency International EU[23] points out that while registration is mandatory for organizations, it is not required for Members of the European Parliament and that the system remains voluntary for the Council of Europe because the application of the conditionality principle grants each Member State the discretion to decide on the matter, raising concerns about the comprehensiveness of disclosed information. Without mandatory registration for key actors, critical lobbying efforts may escape public scrutiny, undermining the effectiveness of the transparency initiative. The 2024 Special Report by the European Court of Auditors[24] reinforces these concerns, citing frequent omissions of disclosures for spontaneous meetings, a lack of coordination among institutions regarding lobbying disclosures and insufficient enforcement measures to ensure compliance by lobbyists.
Environmental, Social and Governance (ESG) criteria within the EU
On one hand, while it is essential that the European Union institutions regulate lobbying activities, on the other, it is equally crucial that companies, the main organizations lobbying within these institutions, report all their correspondent lobbying activities. Transparency on both sides is fundamental to safeguard that corporate influence aligns with the public interest and supports the EU’s broader sustainability goals.
Environmental degradation and climate change have become an existential threat to Europe and the entire world. To counteract the problem of climate change, the European Union has introduced the so-called “European Green Deal”. The aim of this project is to make Europe the first climate-neutral continent and to create a transition to a modern, resource-efficient and competitive economy. In this context, the goals for the European economy are to generate no net greenhouse gases by 2050 and to reduce them by half by 2030. Other objectives include decoupling economic growth from resource use and to leave neither the population nor the environment in the lurch.[25]
An important aspect that contributes to the implementation of sustainability goals is the application of Environmental, Social and Governance (ESG) criteria, which heavily influence corporate ethics. By setting ESG standards, the EU has the opportunity to become a global leader in the sustainability agenda. Part of the package of measures includes the European Sustainability Reporting Standards (ESRS)[26] for use by all companies subject to the Corporate Sustainability Reporting Directive (CSRD)[27], obliging more and more companies to provide increasingly detailed sustainability reporting, which not only increases transparency for investors, stakeholders and the public, but also promotes more sustainable corporate governance and strategy.[28]
The CSRD significantly expands the scope of sustainability reporting compared to its predecessor, the Non-Financial Reporting Directive (NFRD). Under the CSRD, approximately 50,000 companies, including large enterprises and listed SMEs, are required to report on sustainability metrics, representing a substantial increase from the less than 12,000 companies covered by the NFRD. By mandating detailed reporting on the environmental and social impacts of business activities, the CSRD plays a crucial role in aligning corporate behavior with the EU’s sustainability priorities. Moreover, the CSRD adopts a double materiality approach, requiring companies to assess both how sustainability risks affect their financial performance and how their activities impact the environment and society.[29]
Building on the CSRD’s framework, a key component of the ESRS is the ESRS G1, which focuses on the Governance dimension of ESG. This standard is intended to enable readers of sustainability reporting to understand the business conduct of companies in terms of their strategies, approaches, processes, procedures and performance. The actions of a company are broadly diversified within these behaviors and should essentially reflect sustainable business activities for the benefit of all stakeholders.
A distinctive element of the ESRS G1 standard is the disclosure requirement G1-5, which focuses specifically on political influence and lobbying activities. This requirement imposes several obligations on companies. Companies must provide detailed information on their political involvement and lobbying efforts, including their significant lobbying activities and political engagement. They are required to disclose information concerning the persons in the executive, management and supervisory bodies of the company responsible for overseeing these activities. Additionally, companies must report their financial and material contributions to politically active entities.
This requirement also includes detailing the main areas and topics covered by the company’s lobbying activities, along with the company’s primary positions on these issues. Companies must indicate whether they are registered in the EU Transparency Register or an equivalent transparency register in a member state and must disclose whether members of their executive, management, or supervisory bodies held similar positions in public administration, including regulatory bodies, in the two years prior to their appointment, promoting greater transparency concerning the “revolving door” between politics and civil service.
Despite the CSRD representing a major step forward in the European Union´s legislative efforts to broaden and improve ESG reporting requirements for the private sector, there remains room for strengthening. The directive is crucial for promoting transparency as it emphasizes assessing the effects of all business activities on both people and the environment. It aims to standardize and streamline ESG reporting across different industries, helping companies implement sustainable practices and tackle climate-related financial risks. However, some areas still require improvement, particularly regarding the qualitative information required on indirect lobbying strategies.
As outlined earlier, indirect lobbying can take forms such as sponsoring academic research that aligns with a company’s interests, funding think tanks to shape policy debates or participating in public consultations to subtly influence regulatory outcomes. These practices, while less visible, can have significant impacts on policymaking, making it crucial to guarantee that corporate lobbying activities genuinely align with ESG principles and sustainability goals.
A concrete example of this challenge is illustrated in the Good Lobby Tracker Report[30], an initiative designed to increase transparency, accountability and usefulness of the major corporate political responsibility reporting initiatives. The report scored the world’s leading providers of ESG data and ratings based on the quality of the activity related information they collect from companies, including the EU ESRS G2 Exposure Draft version[31], making it possible to analyze and compare ESG rating frameworks around responsible political business activity for the very first time.
After evaluating all major initiates related to corporate political responsibility and sustainability, the EU ESRS G2 Exposure Draft version was ranked 6th among 26 rating agencies assessed in the Tracker. While this ranking reflects the progress made – having received points for their policies on the employees and internal policy governance of the standards Tracker categories – it also underscores areas for improvement. The report recommends that the EFRAG should provide more detailed guidance on corporate political activities, which includes contributions to, among others, hearings and consultations, government expert groups or academic institutions and think tanks. Additionally, it calls for more thorough disclosure regarding employee participation and internal policy.
While the ESRS G1 standard imposes significant disclosure obligations, there remains a risk of misalignment between corporate lobbying activities and public ESG commitments. Companies often present themselves as committed to sustainability goals, but their lobbying behavior behind the scenes does not always align with these public statements. By aligning lobbying activities with ESG principles, corporations can promote not only their business interests but also contribute to broader societal goals, such as reducing environmental impact. However, the opacity of current lobbying practices often leads to contradictions between a company’s public commitment to sustainability and its behind-the-scenes efforts to delay or weaken environmental regulations.
Conclusion
In conclusion, the intersection of corporate ethics, ESG criteria and lobbying within the European Union reveals the critical importance of implementing stringent regulatory measures that ensure sustainable and ethical corporate behavior. While the EU has made significant steps in establishing transparency and accountability through regulations such as the Transparency Register and the European Sustainability Reporting Standards (ESRS), gaps persist, and current regulation on lobbying remain inadequate to effectively align with public interest goals and ESG criteria.[32]
To strengthen the alignment of lobbying practices with ESG criteria, concrete regulatory measures are indispensable. The EU should consider mandatory disclosure of all lobbying activities, including indirect forms such as sponsorships of think tanks or policy-driven research. Stricter enforcement of the Transparency Register should be prioritized, including making registration mandatory for all actors involved in lobbying at EU institutions, with requirements to provide granular data on their lobbying activities and expenditures. Finally, penalties for non-compliance should be established, guaranteeing that regulatory measures achieve their intended purpose.
At the corporate level, governance reforms are equally crucial. Companies should be required to integrate lobbying oversight into their ESG strategies, maintaining consistency between lobbying efforts and public commitments to sustainability. As Alberto Alemanno has proposed, this involves disclosing all political activities, including the amounts spent and the positions advocated, ensuring the same level of accountability as is required for human rights and environmental impacts. Moreover, corporate boards should play an active role in overseeing political activities by establishing clear principles and processes for political engagement, which would not only help align lobbying efforts with the company’s values but also mitigate reputational risks associated with inconsistent or opaque lobbying practices.[33]
Ultimately, this dual commitment – on the part of both regulators and corporations – can transform lobbying into a tool that supports transparency through the application of ESG criteria, reinforcing the EU’s leadership in advancing global standards for ethical and sustainable business practices, paving the path toward a resilient, sustainable and transparent future.
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Footnotes
[1] Numerous studies from early on support this concept. Carroll, Archie B. (1991). The Pyramid of Corporate Social Responsibility: Toward the Moral Management of Organizational Stakeholders. Business Horizons, Vol. 34, Issue 4, p. 39-48. Garriga, Elisabet, Melé, Domènec (2004). Corporate Social Responsibility Theories: Mapping the Territory. Journal of Business Ethics.
[2] Clark, Gordon L., Feiner, Andreas, Viehns, Michael (2015). From the Stockholder to the Stakeholder: How Sustainability Can Drive Financial Outperformance. University of Oxford and Arabesque Partners. This study evidences a number of case studies that demonstrate that companies focusing on ESG criteria can achieve better financial results, concluding that sustainable business practices lead to lower costs, improved corporate performance and enhanced stock prices. Therefore, responsibility and profitability are not opposed to each other but rather go hand in hand.
[3] From 2014 to 2024, the Transparency International EU database has provided detailed information about meetings between European Commission officials and interest representatives. The data reveals that companies and groups are the most frequent participants in lobbying meetings, particularly on topics such as energy, green initiatives and digital affairs. The database can be accessed here: https://www.integritywatch.eu/ecmeetings.php.
[4] See in this respect paragraph 7 of the Agreement between the European Parliament and the European Commission on the Transparency Register for organisations and freelancers whose activities contribute to the formulation and implementation of European Union policies’, in OJ, 19.9.2014, L 277/11.
[5] Jenkins, Matthew, Mulcahy, Suzannev (2018), Businesses’ lobbying practices. Transparency International Anti-Corruption Helpdesk Answer.
[6] Alliance for Lobbying Transparency and Ethics Regulation in the EU (ALTER-EU) (2018), Corporate capture in Europe – When big business dominates policy making and threatens our rights. Access here https://www.alter-eu.org/sites/default/files/documents/corporate_capture_web_1.pdf.
[7] OECD (2021), Lobbying in the 21st Century: Transparency, Integrity and Access, OECD Publishing, Paris, p. 29-79. Access here https://doi.org/10.1787/c6d8eff8-en.
[8] Communication from the Commission of 25 July 2001 European governance – A white paper [COM(2001) 428 final – Official Journal C 287 of 12.10.2001].
[9] Communication from the Commission, Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission, COM(2002) 704 final, Brussels, 11.12.2002.
[10] Green Paper European Transparency Initiative (presented by the Commission), COM(2006) 194 final, Brussels, 3.5.2006.
[11] Coen, David, Richardson, Jeremy (2009). Lobbying the European Union: Institutions, Actors, and Issues. Oxford University Press.
[12] Commission Decision of 31 January 2018 on a Code of Conduct for the Members of the European Commission (2018/C 65/06).
[13] European Commission Press release, New Code of Conduct strengthening ethical rules for Members of the European Commission enters into force. Brussels, 31 January 2018.
[14] Commission Decision of 25 November 2014 on the publication of information concerning meetings between members of the Commission and organisations or self-employed individuals (2014,839/EU, Euratom), in OJ 343 L 343/22. According to Article 1.2, the information to be disclosed is: “date of the meeting, the location, the name of the Member of the Commission and/or member of the Cabinet, the name of the organisation or self-employed individual and the subject of the meeting”.
[15] https://corporateeurope.org/en/2011/03/cash-amendments-scandal-tip-iceberg.
[16] https://eucrim.eu/news/ep-reinforced-its-anti-corruption-rules/.
[17] European Parliament decision of 13 September 2023 on amendments to Parliament’s Rules of Procedure with a view to strengthening integrity, independence and accountability.
[18] Ombusdsman strategic inquiry OI/2/2017 on the transparency of legislative discussions in the preparatory bodies of the Council of the EU considered their classification a violation of the case law and makes reference to may CJEU cases: Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECLI:EU:C:2008:374, para 34; Case C-280/11 P Council v Access Info Europe [2013] ECLI:EU:C:2013:671, para 27; and Case T-540/15 De Capitani v Parliament [2018] ECLI:EU:T:2018:167, para 80. You can access it here: https://www.europarl.europa.eu/doceo/document/TA-8-2019-0045_EN.html.
[19] Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register. OJ L 207, 11.6.2021, p. 1–17.
[20] The timeline of agreements on a transparency register can be accessed on the Special report 05/2024: EU Transparency Register – provides useful but limited information on lobbying activities. European Court of Auditors. Page 7, Figure 1.
[21] Article 5 of the Interinstitutional Agreement of 20 May 2021. OJ L 207, 11.6.2021, p. 1–17.
[22]Pierewoj, Justyna, Lobbying in the European Union
and Interinstitutional Agreement on a Mandatory Transparency Register for Lobbyists. Studies in European Affairs, 1/2022, p. 37-41.
[23] Kergueno, Raphaël, Lobby transparency across the EU. 2024.
[24] Special report 05/2024: EU Transparency Register – provides useful but limited information on lobbying activities. European Court of Auditors.
[25] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions. The European Green Deal. Brussels, 11.12.2019. COM/2019/640 final.
[26] European Parliament and of the Council as regards sustainability reporting standards. C/2023/5303. OJ L, 2023/2772, 22.12.2023.
[27] Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting (Text with EEA relevance). PE/35/2022/REV/1. OJ L 322, 16.12.2022, p. 15–80
[28] At the same time, the Draghi Report (2024) highlights the potential challenges posed by the Corporate Sustainability Reporting Directive (CSRD), particularly the increased regulatory obligations for companies. It raises concerns about the feasibility of compliance, especially for small and medium-sized enterprises (SMEs), which may lack the necessary resources to meet the directive’s demanding requirements. The report underscores that the administrative complexity and potential costs associated with the CSRD could disproportionately affect smaller businesses, potentially hindering their competitiveness in the market.
[29] KPMG (2024), Hot topic: ESG in Europe: Global implications of EU sustainability reporting.
[30] Alemanno, Zinnbauer and Stewart (2023), The Good Lobby Tracker Report, The Good Lobby, Brussels, October 2023, available at https://www.thegoodlobby.eu/initiatives/tracker/.
[31] Available at https://www.efrag.org/sites/default/files/sites/webpublishing/SiteAssets/ED_ESRS_G2.pdf.
[32] Lobby Control (2024), EU-Lobbyreport 2024: Brüssel im Fadenkreuz von
Machtinteressen corroborates the concept that the best rules are useless without enforcement, identifying that, within the European Union, this constitutes a structural failure, proposing that EU Institutions set an independent lobbying body that can actually monitor and enforce the existing rules. Available here https://www.lobbycontrol.de/wp-content/uploads/eu-lobbyreport-2024-lobbycontrol.pdf.
[33] World Economic Forum (2022), 4 ideas on how businesses can be responsible for political lobbying. https://www.weforum.org/agenda/2022/02/four-ideas-on-how-to-make-business-responsible-for-its-political-lobbying/
