08.04.2025

Legal considerations on lobbying

In a context where the fulfilment of the NRRP milestones[1]makes the absorption of funds conditional on the adoption of rules on how members of government interact with lobbyists and other third parties seeking to influence the legislative process, the discussion on lobbying is once again topical. This article aims to review the US, EU and national regulations and then to propose some legislative policy solutions on lobbying.

In essence, lobbying is the influencing of the decision-making process by a person (lobbyist) acting on behalf of a client under a contract with that client in transparent and legally permissible ways. The earliest regulation of this activity was in the United States of America in 1938 by the Foreign Agents Registration Act[2]which had the stated purpose of protecting the national security, internal security and foreign relations of the United States by requiring public disclosure persons engaged in political propaganda and other activities on behalf of foreign governments, foreign political parties or other foreign entities, so that the government and people of the United States could be informed of the identity of such persons and could evaluate their statements and actions in light of their associations and activities

The Foreign Agents Registration Act was later succeeded by the Federal Regulation of Lobby Act[3](1946). The latter Act was repealed in 1995 by the Lobby Disclosure Act[4]("LDA"), which is currently in force, as supplemented by the Honest Leadership and Open Government Act[5](2007). The LDA defines a lobbying contact as "any oral or written communication (including an electronic communication) to a current executive branch official or a current legislative branch official that is made on behalf of a client concerning: (i) the formulation, amendment, or adoption of federal legislation (including legislative proposals); (ii) the formulation, amendment, or adoption of a federal regulation, executive order, or any other program, policy, or position of the United States government; (iii) the administration or execution of a federal program or policy (including the negotiation, award, or administration of a federal contract, grant, loan, permit, or licence); or (iv) the nomination or confirmation of a person for an office subject to Senate confirmation"[6] . The LDA also defines inter alia the notions of "lobbying"[7] , "client"[8], "lobbying firm"[9]and "lobbyist"[10] .

In the US legislation, the obligation to register and fulfil the publicity formalities in order to make the activity transparent is incumbent on the lobbyist or the entity within which he or she operates, and the rules are enforced by dissuasive sanctions. It can be seen that the American legal system has adopted a detailed and predictable regulation of lobbying in terms of its application and, as stated in the preamble to the LDA, the main purpose of this primary legislation is to increase public confidence in the integrity of government (Sec. 2. (3) of the LDA).

At European Union level, after numerous soft-lawinitiatives[11], the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a Transparency Register[12]("the EU Agreement") was adopted. According to Art. 3, the EU Agreement covers activities carried out by lobbyists with the aim of influencing the formulation or implementation of policies or legislation or the decision-making process of the signatory institutions or other institutions, bodies, offices and agencies of the Union (these are the "covered activities") such as, inter alia: "(a) organising or participating in meetings, conferences or events, as well as establishing any similar contact with the Union institutions; (b) contributing to or participating in consultations, hearings or other similar initiatives; (c) organising communication campaigns, platforms, networks and local initiatives; (d) preparing or commissioning policy and position papers, amendments, opinion polls and surveys, open letters and other communication or information materials, as well as commissioning and conducting studies.". The EU Agreement defines an interest representative as "any natural or legal person or any formal or informal group, association or network which carries out covered activities"[13]and an intermediary as "any interest representative who promotes the interests of a client by carrying out covered activities"[14] . It is important to note that Art. 4 para. (1) of the EU Agreement excludes from the scope of application activities specific to the legal profession, relating to the exercise of the rights of the defence and the right to a fair trial, as well as advice given to clients to assist them in complying with the applicable legal framework

For several years, the EU Transparency Register has been operating at EU level[15] , where information is published on: the financial information of registered entities, the main legislative proposals or relevant EU policies in which the entity has participated and their associated communication activities, the list of all meetings held with Commissioners, members of their cabinets or Directors-General and other officials of the European Parliament and whether the registered entity is bound by any other codes of professional conduct. Registered entities, including intermediaries, shall declare the amount and source of any EU grant contributing to their operating costs. According to the statistics on the website[16] , as of 18 March 2025, there were 13,776 entities registered in the European Register, of which 9,346 entities promote their own interests (or the collective interests of the members that make up the entity), 3,943 entities do not represent commercial interests and 561 entities promote the interests of their clients. Romania has 145 registered entities. Also, according to the main categories of registered entities, the following can be identified: companies and groups of companies, NGOs and platforms, think tanks, trade or business associations, trade unions and professional associations, research or academic institutions, including law firms.

In Romania, there is currently no law that regulates the activity of lobbying (or interest representative) in relations with national public law entities, although lobbying could be carried out by traders who have in their articles of association the CAEN code (Rev.3) 7330 - Activities in the field of public relations and communication[17] . As has been pointed out in the legal literature[18] , there have been numerous uncounted legislative initiatives, the last bill rejected by the Parliament being PL-X no. 129/2019[19] , and the last draft of the Government's 2018 emergency ordinance[20]being a copy of the Austrian model[21]

However, at the national level there is a regulation in force, namely the Order of the Secretary General of the Government no. 1056/2022 on the minimum transparency rules regarding the recommended framework of collaboration between decision-makers at the level of central and local public administration authorities and civil society stakeholders, with a view to promoting public policy initiatives[22]("Order no. 1056/2022) establishing the Single Register of Transparency of Interests[23]("RUTI"). The RUTI sets out the minimum transparency rules for the recommended framework of cooperation between decision-makers at the level of central and local public administration authorities and civil society stakeholders, i.e. specialised groups, in order to promote public policy initiatives, and registration is optional

Decision-makers are defined by Order no. 1056/2022 as "Prime Minister, Deputy Prime Minister, Head of the Chancellery of the Prime Minister, Secretary General of the Government, Minister, State Counsellor, State Secretary, Secretary of State, assimilated to these categories of public functions, head with the rank of dignitary of other authorities of central and local public administration" [art. 2 lit. b)]. It can be noted that, unlike the American regulation, this definition does not cover relations with the legislative power (parliamentarians, parliamentary counsellors, etc.). At the same time, the category of specialised groups includes the following entities: "a company with legal personality, association, foundation, federation, religious organisation/faith or associated with a faith, trade union organisation, employers' organisation, chamber of commerce, local public administration associative structure, other types of legally constituted organisations, authorised natural person, sole proprietorship, family business, sole practice, associated practice, professional society, with or without legal personality, or any formal or informal group/network having an interest in a particular area falling within the regulatory competence of a public institution, with a view to promoting a public policy initiative" [Art. 2 lit. c)].

Meetings between decision-makers and specialised groups are posted online and the onus is on the decision-makers to publish them in the RUTI. By joining the RUTI, specialised groups commit themselves to transparent, ethical and responsible conduct by accepting the provisions of the Code of Conduct (Annex No. 2 to Order No. 1056/2022). The Code of Conduct imposes, among other things, an obligation on specialised groups to declare the interests, objectives or aims that they are promoting and, where applicable, to specify the clients or members that they represent at the meeting. It is also an important obligation that these entities are prohibited from obtaining or attempting to obtain information or to persuade public decision-makers by unlawful means, and that their representatives in management positions (board of directors or executive structure) may not simultaneously hold positions of public dignity in the executive. This latter obligation is intended to prevent possible conflicts of interest in the event that persons in public office adopt positions contrary to the public interest in the exercise of their mandate.

The specialised groups undertake that the following information will be publicly available information such as: the total turnover (including public funds received) for the last completed financial year, the amount allocated to activities influencing public decisions and projects including objectives related to persuading public decision-makers, with the name of the funder.

It follows from the above that a possible legal regulation of lobbying activities should define very clearly the concepts used: what activities (individualised in concrete terms) lobbying entails, the mandatory terms of the contract for lobbying services, the criteria for being qualified as a lobbyist, who are the decision-makers with whom lobbyists may interact, the sanctions for failure to comply with the obligation to be registered in advance for lobbying purposes in dedicated public registers or to register meetings with decision-makers, etc. From this perspective, the American model may be a source of inspiration for the Romanian legislator, including the inclusion of the obligation for ambassadors or representatives of other states to register in public registers for lobbying purposes, to declare in a transparent manner the meetings held with Romanian decision-makers in relation to legislative acts of interest to the citizens of the country they represent, of course only insofar as these activities are compatible with the special regulations in the field of foreign relations and do not constitute interference in the internal affairs of the Romanian state.

Lobbyists interact with decision-makers lato sensu in vertical relations. On the one hand, there may be a question of the need to regulate lobbying, since mechanisms for public consultation and social dialogue are already legislated for by actors such as NGOs, federations, trade unions or employers' organisations. In this respect, the legislator will have to harmonise with these legislative acts in order to avoid legislative parallelism, without eliminating or hindering in any way the activity of these actors, who are primarily pursuing a public interest and are not acting for profit (as lobbyists normally do), while still guaranteeing the constitutional right to petition.

On the other hand, the categories of dignitaries, civil servants, contract staff and other categories of staff established by law at central and local public administration level who may come into contact with lobbyists must be very clearly demarcated, and I therefore believe that an exhaustive list drawn up by the legislator is preferable. At the same time, it should be expressly stipulated that lobbying can only be carried out in relations between lobbyists and representatives of the legislative or executive powers (at local and national level) responsible for adopting legislative acts. It is debatable whether lobbying should be allowed for the purpose of the adoption of an individual administrative act - it is possible that in this case 'influencing' could turn into a real negotiation, which could open the way for circumvention of the legal procedures in force.

As a corollary, it should be expressly prohibited to influence the courts and arbitral tribunals, the Public Prosecutor's Office, the Superior Council of Magistracy, the Constitutional Court, the Court of Accounts, the special administrative jurisdictions and other public entities in relation to their jurisdictional, control and sanctioning powers, including in relation to the resolution of petitions, complaints and authorisation or licensing procedures, which already benefit from specific procedural channels for presenting the client's position (e.g.: settlement of the preliminary complaint by the issuing authority; issuance of an operating authorisation; settlement of petitions by the Ombudsman and its decision to refer the matter to the Constitutional Court; settlement of appeals by the National Appeals Council; adoption of the decision to authorise a merger by the Competition Council, etc.)

In these ways, it will draw a clear, predictable and legally prescribed dividing line between lobbying, as a lawful economic activity, and the offence of trading in influence .[24]

Last but not least, in order to avoid "Quatargate"[25] , the lobbying law should establish a temporary (e.g. 5 years) or indefinite[26]ban on former decision-makers lato sensu (parliamentarians, ministers, etc.) from lobbying after leaving office ("closing the revolving door") and the incompatibility of being a decision-maker and a lobbyist at the same time. This will avoid situations in which, before or after leaving office, the decision-maker is remunerated (apparently legally) for the services provided as a lobbyist, while in reality the remuneration is paid by the client for the vote 'sold' and cast in the exercise of the office, thus revealing the illicit cause of the lobbying contract or the act of association within the lobbying firm and thus eroding the legitimacy of the executive or legislature. I believe that the decision-makers in office should not even be able to have the status of clients of lobbyists (and therefore a special incapacity to use them), since they have all the institutional levers for promoting and defending the public interest, within the limits and powers laid down by law and the Constitution.

From all the lobbying regulations analysed above, it follows that the lobbyist must be fully transparent about: (i) the identity of the client; (ii) the amounts paid by the client for lobbying services (declared nominally or between certain thresholds); (iii) the public acts or policies for which the lobbyist has acted on behalf of the client (the subject of the lobbying contract). The declaration of this information takes into account the public interest at stake: citizens' trust in the institutions and in the legitimacy of the decision-making process. In this respect, the imperative provisions of Article 2 of the republished Constitution of Romania  must also be respected: "(1) National sovereignty belongs to the Romanian people, which exercises it through its representative bodies, constituted by free, regular and fair elections, as well as by referendum. (2) No group or individual may exercise sovereignty in their own name. Thus, although the law would allow these lobbying activities, the final decision will still rest with the members of the representative bodies, vested (directly or indirectly) with power and legitimacy by the Romanian people at the time of the elections, who may or may not, depending on the arguments put forward by the lobbyists, follow up on their proposals. As an additional element of transparency, it would be desirable for draft legislative acts in which lobbyists participate in any way to include this statement in the explanatory memorandum or in the approval report or other similar instrument, which should be annexed to the legislative act voted on.

In conclusion, there is no doubt that lobbying is currently practised in Romania, and the existing legislative vacuum presents disadvantages for the actors involved. In addition to fulfilling the NRRP's benchmarks (with all the financial benefits that this entails), a law that treats this activity in a uniform manner would increase citizens' trust in the institutions and public officials by making the decision-making process more transparent and making it easier for citizens to know who is 'honing' the vision of decision-makers. All lobbying activities, as long as they are carried out legally and 'out in the open', must in no way usurp the sovereign judgement of the decision-maker, who will always have the final say on whether it is appropriate and who should not be bound either by the obligation to consult lobbyists beforehand or by their proposals.

 An article signed by drd. Ștefan Călin, Associate - STOICA & ASOCIAȚII

 [1] See National Recovery and Resilience Plan, Part II. Component 14 - Good Governance, C14. Milestones and Targets Table, p. 21, Sequential No. 432: "- will introduce rules on how members of government interact with lobbyists and other third parties seeking to influence the legislative process", available at https://mfe.gov.ro/pnrr/(accessed 23 March 2025).