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‘Mr Smith Goes To Brussels’: Third Country Lobbying and the Making of EU Law and Policy

  • Emilia KORKEA-AHO (a1)
Abstract
Abstract

The EU’s openness towards stakeholders is central to the legitimacy of its law-making. With the rapid globalisation of EU legislative activities, openness towards actors from third countries requires analysis. With reference to the notion of ‘lobbying’, this article outlines a framework for identifying the role of third country actors in EU policy processes. The two arguments brought forward suggest that third country lobbying is facilitated by the openness of Union law- and policy-making, and that third country actors contribute to EU decision-making at all stages. The article concludes with a set of questions that third country lobbying raises concerning the EU’s legitimate law-making authority in Europe and beyond.

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Helpful comments were provided by Samo Bardutzky, Elaine Fahey, Päivi Leino-Sandberg, Panu Minkkinen, Seita Romppanen, Joanne Scott and Ilaria Vianello as well as the anonymous reviewer(s). All remaining mistakes and inconsistencies are, of course, of my own making.

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1 The two are often conflated in the literature. See eg Curtin D, Executive Power of the European Union (Oxford University Press, 2011), p 205 ; Mendes J, Participation in EU Rulemaking (Oxford University Press, 2011), p 113 .

2 Alemanno A, ‘Unpacking the Principle of Openness in EU Law, Transparency, Participation and Democracy’ (2014) 39 (1) European Law Review 72 , 89 & 90. For transparency and participation, see Leino P, Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’ (EUI Department of Law, 2014), Research Paper 3/2014.

3 For democratic legitimacy and interest groups, see Saurugger S, ‘Interest Groups and Democracy in the European Union’ (2008) 31 (6) West European Politics 1274 .

4 Among others see: Evans M and Koutrakos P (eds), Beyond the Established Legal Orders: Policy Interconnections between the EU and the Rest of the World (Hart Publishing, 2011); Jørgensen KE, Laatikainen KV (eds), Routledge Handbook on the European Union and International Institutions: Performance, Policy, Power (Routledge, 2013); Van Vooren B et al (eds), The EU’s Role in Global Governance: The Legal Dimension (Oxford University Press, 2013); Kochenov D and Amtenbrink F (eds), The European Union’s Shaping of the International Legal Order (Cambridge University Press, 2014); Zeitlin J (ed), Extending Experimentalist Governance? The European Union and Transnational Regulation (Oxford University Press, 2015).

6 The search was conducted on 28 January 2016. A search for non-EU actors captures only those entities with a head office outside the EU. For instance, the American Chamber of Commerce (AmCham), which represents US interests in EU policymaking, has an office in Belgium, thus not being included in the number of registered non-EU entities.

7 Coen D, ‘Empirical and Theoretical Studies of EU Lobbying’ (2007) 14 (3) Journal of European Public Policy 333 ; Beyers J et al, ‘Researching Interest Group Politics in Europe and Elsewhere: Much We Study, Little We Know?’ (2008) 31 (6) West European Politics 1103 ; Coen D and Richardson J (eds), Lobbying the European Union: Institutions, Actors and Policy (Oxford University Press, 2009); Klüver H, Lobbying in the European Union. Interest Groups, Lobbying Coalitions, and Policy Change (Oxford University Press, 2013).

8 There is a handful of descriptive case studies on lobbying from non-EU member states: Cowles MG, ‘The EU Committee of Am Cham: The Powerful Voice of American Firms in Brussels’ (1996) 3 (3) Journal of European Public Policy 339 ; Pang CR, ‘Policy Networks and Multiple Lobbying Strategies in EU Trade Policy-Making: A Korean Perspective’ (2004) 2 Asia Europe Journal 429 ; Hamada Y, ‘The Impact of the Traditional Business–Government relationship on the Europeanization of Japanese firms’ (2007) 14 (3) Journal of European Public Policy 404 ; Miard K, ‘Lobbying During the Revision of the EU Emissions Trading System: Does EU Membership Influence Company Lobbying Strategies?’ (2014) 36 (1) Journal of European Integration 73 .

9 COM (2006) 194 final, European Transparency Initiative, Green Paper.

10 Vogel D, The Politics of Precaution: Health, Safety, and Environmental Risks in Europe and the United States (Princeton University Press, 2012).

11 ‘US pushes for greater transparency in EU business regulation’ (The Financial Times, 23 February 2014) http://www.ft.com/intl/cms/s/0/6e9b7190-9a65-11e3-8e06-00144feab7de.html [accessed 28 January 2016].

12 Ibid. The then trade commissioner Karel De Gucht called it ‘impossible’.

13 The reference is to a film, a 1939 political comedy ‘Mr. Smith Goes to Washington’. Here Mr Smith is a generic title, encompassing all non-EU actors. For an argument that a special relationship exists between the EU and the US, see eg Jones E, ‘Debating the Transatlantic Relationship: Rhetoric and Reality’ (2004) 80 International Affairs 595 . The special role of the US in EU policy-making was also confirmed in the study analysing foreign interests in Commission consultations. It appeared that most ‘foreign actors that participate in Commission consultations come from North America’, see Rasmussen A and Alexandrova P, ‘Foreign Interests Lobbying Brussels: Participation of Non-EU Members in Commission Consultations’ (2012) 50 (4) Journal of Common Market Studies 614 , p 622.

14 Bradford A, ‘The Brussels Effect’ (2012) 107 Northwestern University Law Review 1 , p 6.

15 Ibid p 4. See also Atikcan E and Chalmers A, ‘The Business of Internet Privacy: Interest Group Lobbying and the European Union’s General Data Protection Regulation’ (Paper presented to European Consortium of Political Research General Conference 26–29 August 2015, Université de Montréal) p 4 (on file with author).

16 Flues F, ‘Dirty deals: How trade talks threaten to undermine EU climate policies and bring tar sands to Europe’ (‘Dirty Deals’) (Friends of the Earth Europe, July 2014), https://www.foeeurope.org/dirty_deals_170714 [accessed 28 January 2016].

17 http://www.cefic.org/About-us/Our-Members/ [accessed 28 January 2016].

18 Whilst the CEFIC represents third country firms towards the EU, it also provides the Commission with input to conduct reciprocal trade negotiations with third countries. See Poletti A et al, ‘WTO Judicial Politics and EU Trade Policy: Business Associations as Vessels of Special Interest?’ (2015) British Journal of Politics and International Relations, doi: 10.1111/1467-856X.12071 [first published online 1 June 2015].

19 For multinationals and EU lobbying see Hadjikhani A and Ghauri PN, ‘Multinational Enterprises and their Lobbying Activities in the European Union’ in L Oxelheim (ed), Corporate and Institutional Transparency for Economic Growth in Europe (Elsevier, 2006).

20 According to data collected in the early 2000s, consultants ‘service national clients from within the EU (50.2%), as well as non-European customers, i.e. non-European nationals and global actors (70.9%)’. See Lahusen C, ‘Moving into the European Orbit. Commercial Consultants in the European Union’ (2003) 4 (2) European Union Politics 191 , p 199.

21 That EU studies on lobbying do not sufficiently address the questions that arise in connection with non-EU lobbying is acknowledged but not explicitly spelt out in the existing literature. When studying Japanese lobbying in the EU, Hamada, for instance, places Japanese lobbying ‘in the context of transnational relations’, Japanese lobbyists hence being the ‘prime example of transnational actors and an important element in the process of internationalization’, see note 8 above p 406.

22 European Parliament and Council Regulation (EC) No 1907/2006 [2006] OJ L 396/1.

23 Kogan L, ‘REACH Revisited: A Framework for Evaluating whether a Non-Tariff Measure Has Matured into an Actionable Non-Tariff Barrier to Trade’ (2013) 28 (2) American University International Law Review 489 , pp 501 & 663.

24 In addition to the literature mentioned in notes 4 & 14 above, see also Scott J, ‘From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction’ (2009) 57 American Journal of Comparative Law 897 ; Biedenkopf K, ‘Assessing Possibilities for Enhanced EU-South Korea Cooperation on Chemical Regulation’ in A Marx et al (eds), EU-Korea Relations in a Changing World (Leuven Centre for Global Governance Studies, 2013); Rousselin M, ‘Constraint and Consent in the Transfer of European Rules: The Case of China’ (2014) 19 (1) European Foreign Affairs Review 121 ; Naiki Y, ‘Assessing Policy Reach, Japan’s Chemical Policy Reform in Response to the EU’s Reach Regulation’ (2010) 22 (2) Journal of Environmental Law 171 ; Bradford A, ‘Exporting Standards: The Externalization of the EU’s Regulatory Power Via Markets’ (2014) 42 International Review of Law and Economics 158 .

25 Eising R, ‘Interest Groups in EU Policy-Making’ (2008) 3 (4) Living Reviews in European Governance, doi: 10.12942/lreg-2008-4 .

26 See Eising R, ‘Institutional Context, Organizational Resources and Strategic Choices: Explaining Interest Group Access in the European Union’ (2007) 8 European Union Politics 329 ; Cram L, ‘The EU Institutions and Collective Action: Constructing a European Interest?’ in J Greenwod and M Aspinwall (eds), Collective Action in the European Union: Interests and the New Politics of Associability (Routledge, 1998).

27 Damro C, ‘Market Power Europe: Exploring a Dynamic Conceptual Framework’ (2015) 22 (9) Journal of European Public Policy 1336 .

28 Bradford see note 14 above p 3.

29 Ibid p 17.

30 Ibid p 54.

31 Ibid p 9.

32 The extraterritorial element was subsequently endorsed by the Court in Zuchtvieh-Export GmbH v Stadt Kempten, C-424/13, EU:C:2015:259.

33 For the FTT see Scott J, ‘The New EU Extraterritoriality’ (2014) 51 Common Market Law Review 1343 . See also Van Vooren B, ‘Global Implementation of the Financial Transaction Tax: Utopia or Opportunity to Reform the International Financial Legal Order’ in D Kochenov and F Amtenbrink (eds), The EU and the International Legal Order (Cambridge University Press, 2013).

34 Ibid (Scott).

35 Scott calls these ‘contingency’ and ‘contextuality’ mechanisms. Ibid pp 1365–1370.

36 Scott J, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 American Journal of Comparative Law 87 , 88. See also Scott J, ‘The Geographical Scope of the EU’s Climate Responsibilities’ (2015) 17 Cambridge Yearbook of European Legal Studies 92 . Vedder refers to the same phenomenon as the ‘extraterritorial protective level’, see Vedder H, ‘Diplomacy by Directive? An Analysis of the International Context of the Emissions Trading Scheme Directive’ in M Evans and P Koutrakos (eds), Beyond the Established Legal Orders (Hart Publishing, 2011), p 115 .

37 Note also that with the coming into force of the Lisbon Treaty, EU external action as a whole is now expressly linked to environmental protection and sustainable development, see Article 21 TEU.

38 Directive (EC) No 28/2009 [2009] OJ L 140/16.

39 Durán GM and Morgera E, Environmental Integration in the EU’s External Relations: Beyond Multilateral Dimensions (Hart Publishing, 2012), p 269 .

40 Sadeleer N, EU Environmental Law and the Internal Market (Oxford University Press, 2014), p 303 .

41 See United States International Trade Commission, ‘Trade Barriers That U.S. Small and Medium-sized Enterprises Perceive as Affecting Exports to the European Union’, (March 2014) Investigation No. 332-541, USITC Publication 4455.

42 Hix S, The Political System of the European Union (Palgrave Macmillan, 2005).

43 COM (2001) 428 final, European Governance, White Paper, p 22 (emphasis added).

44 See COM (2002) 704 final, Towards a reinforced culture of consultation and dialogue – general principles and minimum standards for consultation of interested parties by the Commission, p 4 (emphasis added).

45 Initiatives include legislative proposals, non-legislative initiatives that define future policies or implementing measures and delegated acts.

46 COM (2015) 215 final, Better Regulation Guidelines, pp 23 & 32.

48 Ibid p 97.

49 Ibid p 47.

50 Ibid p 155.

51 For third country lobbyists, the most important institutional targets are the Commission and the EP. In this respect, the patterns of external lobbying do not differ from those of domestic lobbying. Research has shown that the national profile of Council policy-making weakens its attractiveness for third countries. That the actor outside the EU does not have its own Member State with which to work on EU matters – lack of a political patron – explains the early interest by US firms in direct organised interest representation in the EU. See also Cowles note 8 above.

52 C(2014) 9048 final, COM Decision of 25.11.2014 on the publication of information on meetings held between Directors-General of the Commission and organisations or self-employed individuals.

53 The EP supports registration by issuing access badges to registered lobbyists to parliamentary premises.

54 Article 7 of the Interinstitutional Agreement between the EP and the Commission on the transparency register for organisations and self-employed individuals engaged in EU policy-making and policy implementation [2014] OJ L 277/11.

55 Ibid Article 15. When discussing concrete examples of third country lobbying below, I indicate whether or not the actor (company, NGO) has registered with the TR.

57 COM (2003) 644 final, Proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (Reach), establishing a European Chemicals Agency and amending Directive 1999/45/EC and Regulation (EC) on Persistent Organic Pollutants.

58 COM (2001) 88 final, Strategy for a future Chemicals Policy.

59 Article 5 REACH.

60 Pesendorfer D, ‘European Environmental Policy Under Pressure: Chemicals Policy Change Between Antagonistic Goals’ (2006) 15 (1) Environmental Politics 95 ; Persson T, ‘Democratising European Chemicals Policy: Do Consultations Favour Civil Society Participation?’ (2007) 3 (3) Journal of Civil Society 223 ; Montfort JP, ‘The Commission White Paper on a Strategy for a Future EU Chemicals Policy: The View of European Companies of American Parentage’ (2003) 23 (2) Risk Analysis 399 .

61 Fisher E, ‘“The ‘perfect storm” of REACH: charting regulatory controversy in the age of information, sustainable development, and globalization’ (2008) 11 Journal of Risk Research 541 , p 547. Interestingly, it is suggested that foreign opposition to REACH helped Europeans to stick to it and gave the EU an opportunity to defend its authority and legitimacy as a global regulator. See Heyvaert V, ‘Globalizing Regulation: Reaching Beyond the Borders of Chemical Safety’ (2009) 36 (1) Journal of Law and Society 110 , p 113.

62 Other third country governments besides the US were Australia, Canada, China, Israel, Japan, Mexico, Singapore, Switzerland and Thailand.

63 A Special Interest Case Study: The Chemical Industry, The Bush Administration, and European Efforts to Regulate Chemicals (April 1, 2004), prepared for Rep. Henry A. Waxman. US House of Representatives Committee on Government Reform – Minority Staff. Special Investigations Division; Scott J, ‘REACH and the Evolution of EU Administrative Law’ (2009) Paper presented to Comparative Administrative Law Conference May 79 , 2009 Yale Law School (on file with author).

64 Ibid (‘Waxman Report’) p 14. See also Smith KE et al, ‘“Working the System” – British American Tobacco’s Influence on the European Union Treaty and Its Implications for Policy: An Analysis of Internal Tobacco Industry Documents’ (2010) 7 (1) PLos Medicine 1 , p 9.

65 ‘Could Try Harder’. A mid-term report on the European Commission’s environmental record, a review produced by the Green 10, a group of leading environmental NGOs active at EU level, http://www.env-health.org/IMG/pdf/24-_G10_-_Could_Try_Harder_-A_mid-term_report_on_the_European_Commission_s_environmental_record_REPORT.pdf [accessed 28 January 2016].

66 Persson see note 60 above, p 229.

67 ‘Waxman Report’ see note 63 above, p 15.

68 See also Berman A, Taking Foreign Preferences into Account: The Rulemaking Processes in the United States and the European Union (GlobalTrust, 2015), Working Paper WPS 2015-03.

69 Note that the focus here is on centralised implementation, where the Commission adopts either delegated or implementing acts pursuant to Articles 290 and 291 of the TFEU. The transposition of EU directives into national legislation is not considered here.

70 Korkea-aho E, ‘Laws in Progress? Reconceptualizing Accountability Structures in the Era of Framework Laws’ (2013) 2 (2) Transnational Environmental Law 363 .

71 This is due to the technical issues handled by the committees and the derived need for expert knowledge. See Nørgaard RW et al, ‘Lobbying in the EU Comitology System’ (2014) 36 (5) Journal of European Integration 491 .

72 This may well change soon as the Commission has proposed a four-week public consultation period for both delegated and implementing acts. See COM (2015) 215 final, Better regulation for better results – an EU agenda.

73 For EU agencies’ international activities, see eg al Ott et, ‘European Agencies on the Global Scene: EU and International Law Perspectives’ in M Everson et al (eds), EU Agencies in Between Institutions and Member States (Kluwer Law, 2014); Groenleer M and Gabbi S, ‘EFSA in the International Arena: Caught in a Legal Straightjacket – Or Performing an Autonomous Role?’ in A Alemanno and S Gabbi (eds), Foundations of EU Food Law and Policy: Ten Years of the European Food Safety Authority (Ashgate, 2014).

75 See eg Committee for Socio-economic Analysis (SEAC) Response to comments on the SEAC draft Opinion on the Annex XV dossier proposing restrictions on Lead and its compounds (European Chemicals Agency, 13 March 2014), http://echa.europa.eu/documents/10162/48628bb4-c419-4663-a1af-59d6b97ae360 [accessed 28 January 2016].

76 Scott see note 24 above, p 929.

77 For agency guidance more generally, Vaughan S, ‘Differentiation and Dysfunction: An Exploration of Post-Legislative Guidance Practices in 14 EU Agencies’ (2015) 17 Cambridge Yearbook of European Legal Studies 66 .

79 Both citations are from ‘Biocides stakeholders want further clarification on treated articles’ (Chemical Watch, 17 March 2014) http://chemicalwatch.com/18734/biocides-stakeholders-want-further-clarification-on-treated-articles [accessed 28 January 2016].

80 ‘Apec seeks answers on SVHC notification’, (Chemical Watch, 10 February 2012) http://chemicalwatch.com/9932/apec-seeks-answers-on-svhc-notification [accessed 28 January 2016]. For the controversy, see Korkea-aho note 70 above. The disagreement over the interpretation of an ‘article’ has recently been decided by the Court of Justice. See FCD and FMB v Ministre de l’Écologie, du Développement durable et de lʼÉnergie (SVHC case), C-106/14, EU:C:2015:576.

82 Article 8(1) REACH.

83 For association see http://www.onlyrepresentative.org/about-oro [accessed 28 January 2016]. The ORO has registered with the TR.

84 Air Transport Association and Others v Secretary of State for Energy and Climate Change, C-366/10, EU:C:2011:864. American Airlines and United Airlines have registered with the TR, unlike the Air Transport Association of America and Continental Airlines.

85 Note though that AG Kokott explicitly rejected claims of extraterritoriality on the basis that no concrete rule exists regarding the conduct of flights outside EU airspace. See Opinion of Advocate General Kokott in Air Transport Association, C-366/10, EU:C:2011:637, point 147.

86 See ‘Reducing emissions from aviation’ (European Commission) http://ec.europa.eu/clima/policies/transport/aviation/index_en.htm [accessed 28 January 2016].

87 In another high-profile case involving non-EU interests being affected by EU legislation, a group of product manufacturers and traders of various nationalities as well as an association representing the interests of Canadian Inuits, challenged the EU regulation that permits placing seal products on the European market only where they result from hunts traditionally conducted by Inuit and other indigenous communities contributing to their subsistence. EU courts dismissed the challenge on formal grounds that the applicants did not satisfy the requirement of individual concern. See Inuit Tapiriit Kanatami and Others v Parliament and Council, T-18/10, EU:T:2011:419; Inuit Tapiriit Kanatami and Others, C-583/11 P, EU:C:2013:625 as well as Inuit Tapiriit Kanatami and others, T-526/10, EU:T:2013:215. In June 2014, WTO dispute settlement appellate body ruled that the EU import ban for seals was justified on moral grounds. Subsequently the EU adopted a new proposal that took into account the WTO decision. See, COM (2015) 45 of 6 February 2015, Commission Proposal for a Regulation to amend Regulation 1007/2009 on trade in seal products.

88 Order of the President of the Fifth Chamber of the GC in Hitachi Chemical Europe GmbH and others v ECHA, T-135/13, EU:T:2013:716, para 11. New Japan Chemical is not registered with the TR.

89 See eg Decision of 25 June 2013 in case OI/3/2013MHZ.

90 In addition to the cases discussed in Part IV.C.2 above, as well as in notes 32, 84 & 87 above; see also Poulsen and Diva Navigation Corp., C-286/90, EU:C:1992:453; Ebony Maritime SA, C-177/95, EU:C:1997:89, or Leonid Minin, T-362/04, EU:T:2997:25.

91 Since the publication of a White Paper on European Governance, discussion on the question has grown exponentially. See COM (2001) 428 final, see note 43 above. For the literature, see eg Kohler-Koch B and Quittkat C, De-Mystification of Participatory Democracy: EU-Governance and Civil Society (Oxford University Press, 2013); Smismans S, ‘New Modes of Governance and the Participatory Myth’ (2008) 32 West European Politics 874 .

92 Coen D, ‘Business Lobbying in the European Union’, in Coen and Richardson (eds), Lobbying the European Union: Institutions, Actors and Policy (Oxford University Press, 2009), p 146 .

93 Further research is also needed on lobbying patterns of different third country actors, eg whether governments are active in law-making but less so in implementation and enforcement.

94 Fisher note 61 above, p 547.

* Helpful comments were provided by Samo Bardutzky, Elaine Fahey, Päivi Leino-Sandberg, Panu Minkkinen, Seita Romppanen, Joanne Scott and Ilaria Vianello as well as the anonymous reviewer(s). All remaining mistakes and inconsistencies are, of course, of my own making.

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