L'evolució de la regulació dels grups d'interès i els instruments per al control de la seva activitat. Especial referència a la normativa catalana (CA-EN)
| Autor | Clara I. Velasco Rico |
| Cargo | Clara I. Velasco Rico, associate professor (temp.) of administrative law at Pompeu Fabra University (UPF). B.A. and Ph.D. in law and B.Sc. in political science and administration. Departament de Dret, edifici Roger de Llúria (Campus de la Ciutadella), c. de Ramon Trias Fargas, 25-27, 08005 Barcelona. clara.velasco@upf.edu, @claravelascoric. |
| Páginas | 102-121 |
THE EVOLUTION OF LOBBYING REGULATION AND THE TOOLS TO CONTROL
LOBBIES’ ACTIVITIES. SPECIAL REFERENCE TO THE CATALAN REGULATIONS*
Clara I. Velasco Rico**
Abstract
This article provides a doctrinal approach to the concept of lobbies and discusses the evolution of the main regulatory
models tested at comparative level. Subsequently, this theoretical background is applied to the current situation of
Key words: regulation; interest group; lobbies; register; transparency.
L’EVOLUCIÓ DE LA REGULACIÓ DELS GRUPS D’INTERÈS I ELS INSTRUMENTS
PER AL CONTROL DE LA SEVA ACTIVITAT. ESPECIAL REFERÈNCIA A LA
NORMATIVA CATALANA
Resum
Aquest article ofereix una aproximació doctrinal al concepte de grup d’interès i analitza l’evolució dels principals
models reguladors assajats en l’àmbit comparat. Posteriorment, s’aplica aquest bagatge teòric a la situació actual de
la regulació dels grups d’interès a l’Estat espanyol i es fa una valoració de la normativa catalana en la matèria.
Paraules clau: regulació; grup d’interès; lobbys; registre; transparència.
* This article is a translation of an original version in Catalan.
** Clara I. Velasco Rico, associate professor (temp.) of administrative law at Pompeu Fabra University (UPF). B.A. and Ph.D. in
law and B.Sc. in political science and administration.
Ramon Trias Fargas, 25-27, 08005 Barcelona. clara.velasco@upf.edu, @claravelascoric.
Article received: 1.02.2020. Blind review: 28.02.2020 and 04.03.2020. Final version accepted: 09.03.2020.
Recommended citation: Velasco Rico, Clara I. (2020). The evolution of lobbying regulation and the tools to control lobbies’
activities. Special reference to the Catalan regulations. Revista Catalana de Dret Públic, 60, 102-122. https://doi.org/10.2436/rcdp.
i60.2020.3416
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Summary
1 Introduction: the current situation regarding lobbying regulation
4.1 Regulatory options
4.2 A brief chronology of lobbying regulations passed: with special attention to pioneering regulations
5 The lack of a general regulation and the current fragmentary regulation of lobbies in Spain
Good Governance
6.1 Main aspects of the Catalan regulation: special reference to the Register of Interest Groups
6.1.1 The Catalonia Register of Interest Groups
6.1.2 The Register of Interest Groups of the Parliament of Catalonia
6.2 Expected evolution
Reference list
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1 Introduction: the current situation regarding lobbying regulation
“lobbies” and refers to the situation in Spain and, in particular, Catalonia concerning the matter. The paper
also explains the role that has been reserved for lobbies in certain democratic systems in accordance with
the social valuation of their activity. It also outlines a chronology of the regulations approved concerning
lobbying regulation in Spain, this paper highlights its fragmentary nature, which has allowed the systems in
autonomous communities, such as Catalonia, to have more advanced regulations concerning this issue. The
text thus focuses on analysis and assessment of the regulations concerning the Register of Interest Groups
of the Public Administration of Catalonia, and the regulations concerning the Register of Interest Groups
approved by the Parliament of Catalonia.
The methodology used to produce this study is based on a review and bibliographical selection of reference
works on the questions dealt with, while developing critical analysis of the Catalan lobbying regulations. The
are some absolutely essential citations from political scientists. In the author’s opinion, the use of hybrid
biographical sources concerning issues such as this enriches the discourse.
The reason behind this article lies in the current political and doctrinal interest in studying and implementing
measures that ensure greater transparency in public decision-making procedures, while also aiding in the
adopted by the United Nations General Assembly on 25 September 2015, includes cross-cutting measures
1
their forms. The Government of Catalonia shares this goal and has recently presented the
2
and actions 15 and 16 focus on lobbies.
Thus, on the one hand, action 15 in the Strategy focuses on “[d]etermining the minimum contents of diaries
that must be made public, as well as publishing the regulatory proposals made by lobbies”, which would
to ensure homogeneity, accessibility and understanding by the public. As a supplement to this, all of the
Catalonia and the public sector will be published”. On the other hand, action 16 in the Government of
Catalonia project seeks to “[e]xpand the scope of the obligations arising from the action protocol in relation
to lobbies to subdirectors general and the like”. It is thus necessary to publish “[...] in the public diary of the
Government of Catalonia lobbies, the relationships of subdirectors and subdirectors general and the like with
lobbies and, consequently, establish the obligation for prior registration of lobbies in such cases”.
Apart from the actions envisaged, which we will comment on below, the Strategy presented by the Catalan
executive is intended to ensure that lobbies’ actions are known to society as a whole in order to increase
the transparency of the entire public decision-making process and thus give visibility to the way in which
These measures will also make it possible to create a trace or footprint of lobbies’ actions in the regulatory
process (Ponce, 2019). These actions are clearly intended to break the relationship that exists in the collective
imagination between lobbies, the defence of private interests—in a manner that neglects the public interest—
and political and administrative corruption (Rubio, 2017: 400).
and defence of special or private interests in the decision-making process. The former seeks legitimacy in
democratic interplay as a “partner” of the public powers or an “interest conveyor”, while the latter ends up
1 UN. 2030 Agenda. (Retrieved: 31.01.2020).
2 Government of Catalonia (2020). Estratègia de lluita contra la corrupció i d’enfortiment de la integritat pública. (Retrieved:
31.01.2020).
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in Europe and around the world (Sourice, 2015).
is analysed. In the social sciences, basically in political science and sociology (Solís, 2017), there have been
., 2004). Firstly,
with shared attitudes (Truman, 1951: 37).
Secondly, a variant of this doctrinal view adds that the characteristic feature of these associations is the
voluntary participation of their members (whether individual or collective members, i.e. other organisations)
lobbies’ functions, a third doctrinal position has been developed concerning these political actors, which are
those in positions of political authority and public authorities (Key, 1964: 18).
on three characteristics (Solís, 2017): 1) organisation, which implies the aggregation of individuals’ or
organisations’ concerns; 2) political interests, which refers to those organisations’ attempts and desire to
informality, i.e. the associations are not seeking to hold public positions
or stand for election but are instead pursuing their objectives through informal interactions with politicians
or bureaucrats (Beyer et al., 2008). In this regard, Bernadí & Cerrillo point out that “lobbies are just another
actor in governance networks in which there is interaction between interdependent actors, public authorities
and private and social organisations that share the resources they provide” (Bernadí & Cerrillo, 2017: 3).
Moreover, Rubio characterises lobbies as any autonomous and organised union of individuals that performs
account that the actions of a lobby may also be performed through an individual and that the most up-to-
political participation apart from elections; contributing their members’ knowledge about the situation to the
political process; setting the public agenda and monitoring the government’s activity to verify the status of
their interests” (Rubio, 2017: 401-402).
The main NGOs in the sector—Access Info Europe, Open Knowledge, Sunlight Foundation and Transparency
3
natural or legal persons who actively participate in public policies or decision-making processes in Catalonia
provisions of the Green Paper - European Transparency Initiative
part of the democratic system, regardless of whether it is carried out by individual citizens or companies,
3 Access Info Europe, Open Knowledge, Sunlight Foundation and Transparency International. (2015). Estándares internacionales
para la regulación del lobby: Hacia una mayor transparencia, integridad y participación. (Retrieved: 02.02.2020).
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lobby is entirely neutral, since they imply, from the very beginning, a certain positioning concerning the
appropriateness and rightness of their actions in putting pressure on those with political responsibilities and
managers in the public administration (Rubio, 2017: 400-401). Up until very recently (the middle of the
1990s), our administrative law tradition, with clear roots in the French tradition, tended to identify the public
administration with the public interest. Consequently, this has caused a regulatory and doctrinal rejection of
Nevertheless, the majority of administrative law doctrine clearly evolved in the second half of the 1990s.
Basically, the “ritual” invocation (García de Enterría, 1989: 47) of the public interest has been set aside and the
focus is now on respecting, safeguarding and defending the rights of citizens in relation to public authorities.
During that period, the value of the constitutional principle of social and political pluralism came to the fore,
constitutional grounds that allow lobbying to be channelled through regulations. This activity comes under
the general right to participate in regulatory processes that “society” is recognised as holding (Ridao, 2019:
96). There is a part of doctrine that considers lobbying activity to be covered by that stipulated in articles 7,
9.2 and 105 of the Spanish Constitution, as well as the regulations concerning citizens’ legislative initiatives
(art. 87.3) (Ridao, 2019: 98). It has also been considered that, from a democratic viewpoint, the activity
performed by lobbies should be linked to the achievement of certain principles and constitutional rights such
as the sovereignty of the people (art. 1.2 CE), political equality and personal dignity with regard to a set
of civil rights such as freedom of expression (art. 20 CE), assembly (art. 21 CE), association (art. 22 CE),
From the point of view of public management, it is said that lobbies perform essential tasks for our democratic
systems. Firstly, they are necessary in order to understand the extent to which the existing regulations are
capable of adapting and responding to the real needs of the public, which are constantly evolving alongside
public may have concerning certain problematic situations to be made visible (Chaqués, 2015). Furthermore,
since the end of the twentieth century, thanks to the development and extensive spread of information and
communication technologies throughout all levels of society, new participatory movements have arisen in
civil society. These movements or groups are often organised online or through the internet and the new
communication tools are capable of questioning the public powers more rapidly and directly than in previous
eras (Bartlett & Vèrnia, 2015: 195).
In other legal systems, the participation of lobbies in the process of deciding and implementing public
policies is also not an undisputed issue from the viewpoint of both society and doctrine. This is also the case
in the cradle of lobbying regulation, the United States (Chari et al., 2019). Part of doctrine considers that
the prototypical characteristics of the way lobbies operate in this country are, on one hand, commonplace,
that this is constitutionally protected from restrictive or robust regulation or legislation, and that it is wildly
unequally distributed across the population (Feldman, 2014: 493). Due to these characteristics of lobbying,
factual and informational basis for governmental action, lobbying promotes “stupidity”; secondly, lobbying
popular contributions to representative governance, lobbying “delegitimises putatively democratic
governments” (Feldman, 2014: 494). This statement is connected to the view of certain political scientists
who argue, based on the statist tradition, that lobbies are a danger to the full sovereignty of the State. In
this regard, one should recall that “[a]mong these, the German political scientist Theodor Erschenburg has
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said that ‘egotistical interest groups’ of associations delegitimise ‘the State’s authority’, at the same time
as undermining the necessary conditions for political consensus in democratic systems” (Pont Vidal, 1998:
265).
In addition to this potential harm for democratic systems, one must add the fact that lobbying commonly
takes place on two levels (Rubio, 2017: 402). On the one hand, through unstructured participation inside or
outside of the relevant administrative procedures (preliminary questions, hearing, public information) and,
furthermore, one must take into account that their action is not necessarily performed at either of these two
levels through formal mechanisms or procedures established in law. In other words, there is informal activity
is subject to the constitutional principles that apply to any administrative activity, although the traditional
guarantees of the rule of law were not put in place to tackle these kinds of situations (Cerrillo, 2011: 87).
It has been argued that the fact that there are pressure groups reveals a lack of participation channels provided
by a particular legal system and/or institutional system. According to some authors, the “best way to eliminate
pressure groups is to acknowledge the fairness of the private interests and claims of interest or promoting
groups and to establish means and institutions through which they can assert their legitimate interests or
causes, i.e. to bring about good organisation of public life” (Ferrando, 1977: 12).
In this context, although informality and illegality are not synonymous concepts, as Ponce emphasises “[...]
the informal decision-making process brings with it the danger of disregarding (and therefore restricting) the
legal positions of third parties”, which implies “the danger of a possible trend towards illegal administrative
action” (Ponce, 2015: 39). In the same way, Villoria highlights that the risks of corruption and unethical
practices related to lobbying may materialise at any stage in the process of producing public policies and,
voluntarily create loopholes in order to avoid establishing real controls; passing regulations as a way of
debilitating restrictions on certain behaviours or actions in order to make laws mere window dressing;
weakened enforcement of controls and application of laws; and hindering the application of penalties by
putting pressure on decision-makers (Villoria, 2020). According to the cited author, “in all of these cases,
interests, harming the public interest or, at least, disregarding it” (Villoria, 2020).
Among other objectives, such as seeking transparency in the actions of the public powers, lobbying
conduct that may be subject to criminal penalties (prohibited negotiations, perversion of the course of justice,
255). Moreover, the fact of passing a lobbying regulation makes it possible to set limits on the phenomenon
of revolving doors and prevent regulatory capture, which may be brought about by the material and human
United States, where the constitutional foundation of lobbying is in the First Amendment to the Constitution
(Chari et al., 2019), Feldman states that while any given position advanced by a particular lobby or the style
in which it is conveyed may well be unethical, it is neither legally nor practically feasible to regulate the
content of the positions taken by lobbyists (Feldman, 2014: 494). It seems to us that this option has not been
neither legally nor practically feasible to impose too many rules on the various methods used by lobbyists
where lobbying is part of the right to petition enshrined in the First Amendment to the Constitution. In any
case, in spite of these precautions, many legal systems have opted to establish more or less strict regulations
concerning lobbying and the tools to control it, as we will explain in the following pages.
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4 Lobbying regulation models
4.1 Regulatory options
directly regulate lobbying and require lobbies only to comply with the regulations generally applicable to
any other natural or legal person (such as the Criminal Code, the administrative procedure regulations, the
based on two arguments: “on the one hand, it is thought that the response to fraudulent decision-making by
hand, it is considered that regulating pressure groups would imply granting them a seal of approval within
the democratic system” (Rubio, 2017: 404). Nevertheless, the fact that the legislature decided not to pass
this situation, as the national legislature has not yet passed a general regulation governing lobbying and the
obligations, rights and duties of lobbyists.
The second regulatory option is to allow the lobbying industry to self-regulate. According to Darnaculleta
(2002), self-regulation has been suggested as an alternative or a supplement to state deregulation and as a
transfer of duties and responsibilities to society. According to the self-regulation model, establishing and
subsequently monitoring the requirements to perform the activity would be the responsibility of associations
or groups of lobbyists (Rubio, 2017: 404). The potential of the self-regulation system lies in allowing
professional associations of lobbyists to adopt codes of conduct with very strict levels of ethical requirements,
as a way of being accountable to society and ensuring that their actions are in accordance with the law.
This is the case, for example, in the United Kingdom, where any organisation that wishes to be part of the
professional association of lobbyists is bound by the obligations stipulated in its code. It has been argued that
it is “[...] reasonable to give free rein so that this raising of the bar may take place through self-regulation and
regulation” (Bartlett & Vèrnia, 2015: 207).
The self-regulation model has often coexisted with the third regulatory model, i.e. the model of non-
compulsory registration, with some exceptions, as we will see below. This combination is the most widespread
and Canada and although this kind of regulation has spread to some other countries, Chaqués emphasises
that “the majority of advanced democracies do not have a lobby register”. In this model, in addition to
registration, there is an obligation on lobbyists to adopt a code of conduct governing the organisation’s
regulation of this kind was passed in 1946. It is also the model that has been followed in the European Union
and the OECD and, with some nuances, it has been adopted in countries with political and legal traditions as
Chile and the United Kingdom, for example (Rubio, 2017: 405; Chari et al., 2019). According to doctrine,
the setting up of lobby registers is a measure that can help make the motivations of the public powers more
transparent, as well as make it possible to better monitor corruption and, at the same time, encourage “a
closer connection between the public’s preferences and the actions of the public powers” (Chaqués, 2015).
Finally, the last of the models we will analyse in this section switches the focus of regulation from the active
those being lobbied. The fundamental tool in ensuring control of lobbying in accordance with this regulatory
model is publishing diaries. Based on the information that the diaries must contain, the public and other
not fall on the lobbyists but instead on the members of the public powers who are lobbied (Rubio, 2015: 405).
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As one can see, there are various methods to control the activity performed by lobbies. Unfortunately, none
of these has proven to be infallible and to completely prevent unethical or outright illegal conduct, whether
see below, legal systems have clearly been evolving—albeit slowly (Chari et al., 2019)—and, in some cases,
through trial and error, increasingly sophisticated regulations have been passed. Systems have been crossed
with one another, even by adopting supplementary tools that come from or were created in other regulatory
structures, in order to ensure that lobbying does not exceed the legally stipulated thresholds.
4.2 A brief chronology of lobbying regulations passed: with special attention to pioneering regulations
In addition to the substantive objectives mentioned above to mark out the lawful conduct under these
of public policies” (Chaqués, 2015). Consequently, in the comparative sphere, many examples of countries
that have passed lobbying regulations can be found. Nevertheless, the author argues that “[...] only a third of
OECD countries regulate lobbying and the majority of these have only done so since 2005” (Chaqués, 2015).
If one analyses the panorama for national lobbying regulations, one can monitor the passing of such regulations
over the years. First are the states or supranational organisations that pioneered lobbying regulation. These
were the ones that approved such regulations between 1900 and 1999. This group includes the United States,
Canada, the EU and Germany (Chari et al., 2019).
in the regulation of the register, especially in relation to those who had an obligation to register and whose
information had to be recorded (Bartlett & Vèrnia, 2015: 198). Under the current regulations, the information
initially recorded by lobbies must be updated quarterly.
As far as Canada is concerned, its federal regulation concerning lobbies dates back to 1989. This model was
used by other states and countries when they passed their own regulations (in the case of the United Kingdom
compulsory. The regulation of this followed the same structure as the United States (Chari et al., 2019;
Bartlett & Vèrnia, 2015; Rubio, 2017). This act was amended on several occasions in 1995, 2003 and 2008,
lobbies and stricter penalties for lobbyists that breach them. Updating of information registered by lobbies
must be updated monthly.
The EU is also one of the pioneers (Chari et al., 2019). It has been calculated that around 15,000 lobbyists
weak and lacking, as it did not make it compulsory for lobbies
to register. Moreover it only regulated lobbying performed in the European Parliament buildings, but
not lobbying performed outside, so lobbying and its legal scope were hidden from the public (Chari &
O’Donovan, 2011).
It was not until 2008 that the Commission set up a voluntary lobbyist register, which was a temporary
measure until a general regulatory framework common to all EU institutions was approved. Since 2011, the
EU has implemented a common transparency register for the Parliament and the Commission. It is currently
moving towards the consolidation of a compulsory lobby register, although the pertinent regulation has not
yet been passed (Ponce, 2019: 96). Furthermore, the importance of regulation in the EU is based on its great
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included in such registers that may be set up (Chaqués, 2015; Chari et al., 2019).
regulation governing lobbying or any regulations approved by the Länder. The only regulation in force
legislative chamber to register annually (Chari et al., 2019).
Apart from the cases we have mentioned so far as the initial innovators in lobbying regulation, and although
Finally, more recently, a third group of countries has passed lobbying regulations, some of which are very
innovative. Chile is one example of this. This last group is made up of Austria (2012), the United Kingdom
(2014), Ireland (2015), the Netherlands (2012), Slovenia (2010), Mexico (2010-2011) and Chile (2014).
One can conclude from the foregoing chronological overview that in the last decade concern regarding
lobbying regulation has accelerated. One of the causes that may explain this increase in regulations globally
in the management of public services. There was also an almost simultaneous emergence of multiple cases
of corruption and client networks in various public authorities and at all levels of government. It has been
promote and encourage citizen participation in the process of public decision-making” (Velasco, 2014: 67).
Nevertheless, these social concerns and regulatory initiatives have not led the national legislature to introduce
lobbies in this country is negative, which makes the legislature reticent to give them a status of their own in
lobbies has a positive reputation, as it is seen as a way of channelling the public’s preferences and participating
in the decision-making process, provided there is a system of transparency that makes it possible to verify
the interests defended by each party involved, in other countries public opinion is the very opposite. In
societies imbued with the Rousseauian conception of the exercising of legislative power (which can only be
a monopoly of state institutions) there is almost congenital distrust in the intermediaries between the public
powers and society, as mentioned previously (see section 3 above). In the words of Martín Mateo (2001),
“[...] in Continental Europe, where the revolution in ideas took place that made it possible historically to
overcome the Ancien Régime, there is greater resistance to eroding the dogma of popular sovereignty, setting
the stage for social groups that could be considered heirs of an old corporatist order that had been overcome,
and opening the doors of the parliamentary chambers to powerful economic organisations”.4
4
nature of the provision makes it advisable, trade union and other organisations that, by law, represent or defend public or corporate
term of ten days from referral of the draft, except when there are opposing public interest reasons duly stated in the draft provision”.
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common legislation throughout the country regulating lobbies , although in our opinion one cannot
rules. Along these lines, Ponce states that, for example, formal participation through the various bodies is
envisaged in more than six hundred regulations (Ponce, 2019: 101).
of the phenomenon is the informal activity by these pressure groups, as in some cases this has resulted
in malpractice or even cases of corruption.5 This concern has been felt since before the approval of the
Spanish Constitution of 1978, as highlighted by doctrine (Álvarez & De Montalvo, 2014: 254), and on
2015; Rubio, 2017; Ponce 2019: 100).
If there is any feature that characterises the regulation of lobbies in Spain at present it is its fragmentation. In
the absence of a nationwide regulation, certain central institutions and autonomous communities have passed
regulations of their own recently. On the one hand, the chairman of the Spanish Securities and Exchange
Commission (CNMC) issued a decision in March 2016 implementing its own voluntary lobby register as a
register which, as if it were just another organisational aspect, was stipulated in a lower-ranking provision.
included rules concerning lobbies in their respective laws on transparency, access to public information and
good governance or in their rules concerning integrity and public ethics (Ponce, 2019: 104). Special mention
6 and envisages the possibility of non-
binding negotiation of rules7 produced by the regional government (Ponce, 2019: 104).
administrative body processing the procedure for the production of regulations based on appropriateness criteria and provided there
here (retrieved: 05.03.2020).
5 See the report by Transparency International España Una evaluación de lobby en España. Análisis y propuestas. (Retrieved:
03.02.2020).
6 According to Martini (2013), the legislative footprint is a document that details the time, person and issue of contact or the meeting
by a future regulation. The data or documents collected in the legislative footprint, published as an annex to the legislative/regulatory
in the debate concerning lobbying and transparency, although there are now some regulations concerning the matter, as mentioned
above.
7 This way of approaching the production of regulatory texts has existed in the United States since 1990, when the Negotiated
Rulemaking Act was passed (Ponce, 2019: 104). Under this act, in some cases American federal agencies do not develop their
regulatory proposals internally but instead opened themselves up to the outside through a procedure of negotiated rulemaking.
This procedure is formally a way of producing regulatory proposals rather than passing regulations as such. All those who have
objectives (avoiding challenges and speeding up the process) do not appear to have materialised with their full potential according
to the empirical studies that have been conducted on this question (Coglianese, 1997). The structure stipulated in the Negotiated
of interests and a committee representing those interests can participate in good faith negotiation, whenever a consensus proposal
can be passed within the envisaged time period, the agency can establish a committee for that purpose, but is not obliged to do so
a proposed rule. If the committee reaches consensus, the agency typically adopts the consensus rule as its proposed rule and then
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In short, one can say that the autonomous communities have overtaken the central government in regulating
national legislature because when it decides to pass a bill concerning this matter, it will be able to lean on
6 The regulation contained in the Catalan Law 19/2014 on Transparency, Access to Public
which is the regulation that has had the most practical application and development to date (Ponce, 2019:
century, which regulated the obligations of transparency, access to information and necessary measures
to ensure good governance, as a reaction to the social pressure concerning this (Cerrillo & Ponce, 2015).
Although the Catalan regulation has been the subject of various analyses, it is necessary to highlight the main
characteristics concerning the legal framework for lobbies that it contains. Before outlining this, it is worth
lobbies and their activity (Bartlett & Vèrnia, 2015: 194; Ponce, 2019: 105). One merely needs to read the
preamble to see this: “The development of political and administrative activity highlights the existence of
but it can be made more transparent by adopting legal measures”.
In order to make the pressure exerted by these groups more transparent and determine who they are and the
Groups. Doctrine has paid particular attention to this element of the Catalan Transparency Act, from the
viewpoint of both political science and legal discipline, in recent years (Chaqués, 2015; Bartlett & Vèrnia,
connected with so-called “policing” or limiting activity) has been revived recently through regulations
concerning the transparency of public information (simply see, among others, the regulations concerning
access to environmental information, which pivot on access to the data contained in public registers). It is
certainly true that “[...] Public Registers in general arise with the intention of providing the public with the
registers” means and the functions they have been assigned are questions still disputed by doctrine (Rams,
2009: 295 et seq.). There has been much debate concerning whether it is possible to unify the regulation of
all public registers. Salas denies this due to the fact that not all registers are intended to ensure legal publicity
as a means of providing certainty in trade, nor do all of them have a certifying function in terms of playing
the role of verifying facts (Salas, 1975). On the contrary, one could state that “the purpose of many registers
is to serve as an instrument of information and control for the administration itself and, on some occasions,
they have even been used, through the information and control they provide, as an instrument of power over
the activity and rights of citizens [...]” (Rams, 2009: 300).
In our opinion, registers of interest groups (which are administrative registers that are free of charge in
decision-making processes. Secondly, they make it easier for that public interest information to be known by
the general public and, in turn, the latter may exercise social control over interactions between administrations
and lobbies. Thirdly, as Salas (1975) points out, the Register of Interest Groups is also a tool for power over
the activity of pressure groups and the exercising of the rights that the legal system attributes to them. Below
we will clearly highlight these three functions after analysing the Catalan regulations concerning registers
of interest groups.
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6.1 Main aspects of the Catalan regulation: special reference to the Register of Interest Groups
6.1.1 The Catalonia Register of Interest Groups
a) General characteristics
and Good Governance concerning lobbies is the establishment of a register regulated by articles 46 to 52
of Interest Groups of the Government of Catalonia, local bodies and other public bodies and organisations
that must create a lobby register in order to make it a Register of Interest Groups for all public authorities in
Catalonia.8 It is worth highlighting that this measure was implemented through a decree-law, among other
reasons due it having been found that there was widespread non-compliance with the obligation to create
.9
is the registration and control of all people who work on their own behalf and participate in the defence of
the interests of third parties or organisations in producing and applying public policies through contacts with
procedures. Furthermore, this register—which is electronic (art. 9 of Decree 171/2015) and managed by the
department with powers over legal bodies (art. 4 del Decree 171/2015)—is to be included in the Government
19/2014 and art. 3 of Decree 171/2015). These provisions ensure that the public can know this public interest
information.10
b) Compulsory nature
that “in spite of the absence of an explicit obligation to register in the Register, registration of lobbies in
of the parliamentary procedure that makes it possible to deduce the legislature’s desire to make registration
registrations in the register was very low and it did not begin to pick up until the approval of the Code of
Currently, there is little discussion about the compulsory nature of the register, especially in view of the
8 Access to the Register of Interest Groups we are commenting on is available here (retrieved: 06.03.2020). Currently, on 6 March
2020, 3,650 lobbies are registered and 42 registrations are in progress.
9
occasion and for all Catalan administrations to provide an institutional solution for the registration of lobbies. This measure is not
merely organisational but has the primary aim of ensuring the transparency of lobbying of the public authorities. The register has
thus become an essential element of the public integrity system adopted in order to deepen and regenerate the democratic system
larger and have greater capacity, and the cooperation formulas envisaged in the regulatory framework for lobbies, in which various
10 In fact, article 8 of Decree 171/2015 stipulates that: “1. The Register of Interest Groups of the Government of Catalonia and its
public sector includes: a) A list, ordered by categories, of the people and organisations referred to in article 6. b) Information provided
by people and organisations concerning the activities listed in article 7.1. c) The common code of conduct and, when applicable, the
stricter conduct undertakings referred to in article 18.1 . d) The information about the control and investigation system in the
point 1(a), (b) and (c) is public with the scope stipulated in article 16.4 and point 1 of this article, except for the personal data subject
to the system arising from the personal data protection regulations”.
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public-sector bodies, and other measures concerning transparency, lobbies and public ethics. One should also
and creates an obligation to provide proof of the registration, application or undertaking to register lobbies
c) Subjective scope
Another of the aspects that initially hindered the successful implementation of the register was the vagueness
Register of Interest Groups is very broad in the Catalan regulations and does not follow the criteria used in
must register in the Register of Interest Groups: a) People and organisations that, irrespective of their form
of legal status, acting in their own interest or that of people or organisations, carry out activities that may
application of public policies. b) Platforms, networks or other forms of collective activity that, while not
having legal personality, constitute de facto
in the scope of the Register”. Article 6 of Decree 171/2015 contains the same provision.
It is often stated that one of the weaknesses of systems based on the establishment of a register to regulate
For that very reason, it has been claimed that it is necessary to amend this aspect of the Catalan regulations
categories of people who must register if they wish to perform pressure activity in relation to administrations
and the public-sector in Catalonia.11
they participate in public decision-making processes, do not have the same characteristics.
According to article 11 of Decree 171/2015, registration in the register creates, on the one hand, the right
as to be part of the distribution lists to receive automatic alerts concerning procedures, actions and public
consultations regarding the activities or initiatives of the Government of Catalonia administration and its public
sector concerning matters of interest to the declarant that have been stated in the statements of compliance
can clearly see that registration is an element that constitutes (attributes) these rights, which do not pre-
exist and cannot be exercised before the interest group is included in the register. In addition to these rights,
registration involves undertaking particular duties concerning the provision of information to the register and
the Catalan regulation—by attributing rights—provides, on the one hand, a positive assessment of lobbying
and, on the other hand, encourages registration in the register through measures that protect such activity.
In our view, this regulation clearly shows that the register has been implemented as an instrument of power
over the activity of pressure groups.
11 Art. 13 of Decree 171/2015: “[...] Category I. Consulting and advisory services sector. Subcategories: a) Professional consultancies.
groups of companies. b) Public-law corporations. c) Professional, business and trading associations. d) Other organisations: d.1.
Event organisers. d.2. Media connected to companies and research organisations. Category III. Non-governmental organisations.
Subcategories: a) Foundations and associations. b) Platforms and networks, coalitions, temporary structures and other forms
research institutions. b) Think tanks and research institutions linked to parties, business organisations and trade unions. Category V.
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Although the Register of Interest Groups is the main tool in the Catalan regulations, it is certainly not an
Governance has created what could be called an “ecosystem of public transparency and integrity” (Bernadí
& Cerrillo, 2017: 19). Indeed, the register is accompanied, as in other comparative legal systems, with a
Catalonia and the obligation on lobbies to accept the minimum code of conduct stipulated in the Decree of
denominator, which may be strengthened by the codes approved by each of those that register. Obviously,
this entire integrity ecosystem is rooted in the foundations provided by the well-known constitutional and
legal principles that govern the actions of public powers and servants.
et seq. of Decree 171/2015), which goes hand in
hand with penalties—which may be imposed on the initiative of the authorities themselves, although reports
can also be submitted—in the case of breach (Chaqués, 2015; Bernadí & Cerrillo, 2017). Article 52 of the
give rise to temporary suspension of registration in the Register of Interest Groups (this provision is in
accordance with article 12 of Decree 171/2015). This penalty will be published in the register itself. If the
breach is serious, that will result in cancellation of the registration. Once cancellation of registration in the
bodies.
In short, it can be concluded that the Catalan regulations govern the actions of pressure groups basically
described as a pure register system, as there are also other supplementary measures that make it possible
to guide lobbying. Thus, the establishment of the register is accompanied with an obligation on lobbies to
accept a minimum code of ethics. Furthermore, this entire regulation is linked to the obligations stipulated
The indirect or direct objective of this whole regulatory framework is to control and publicise lobbying.
Although these provisions are a good starting point for lobbying regulation, other tools that make it possible
to shed further light on the rulemaking system, such as the legislative footprint, are lacking.
by the Committee for Guaranteeing the Right of Access to Public Information (GAIP) in Decision 151/2018
Catalonia are merely soft law rules, which greatly weakens their position in the regulatory framework and,
as a result, their binding force and the consequences arising from their breach.12 In the event of amendment
of the current Catalan Transparency Act, it would be good to consider including this obligation to actively
12
concerning meetings with lobbies” (section 5.5), and, secondly, the appropriateness of “including the contacts established [with
Government, exercising the powers conferred on it by Decree 233/2016 of 22 March, concerning the establishment of strategies and
guidelines to ensure compliance with the transparency and open government regulations by the Government of Catalonia and its
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publicise the diaries in order to give this the relevance it deserves as a tool that makes it possible to guarantee
transparency in the government’s actions.
6.1.2 The Register of Interest Groups of the Parliament of Catalonia
One of the elements characterising the regulation of lobbies in Catalonia is the establishment of a double
for Parliament, which included the creation of its own Register of Interest Groups.
This register has been regulated, following an amendment, in the Parliamentary Regulations. Articles 220 et
seq.
to the data it contains by publishing it on the Transparency portal (art. 222 of the Regulations).13
The Board of the Parliament of Catalonia is the body responsible for determining the people who must
any case, publicising of lobbying must compulsorily include both the diary of contacts with Members of
Parliament, their advisers and parliamentary civil servants, as well as information about the events to which
representatives have been invited. It is noteworthy that the participation of lobbies in procedures concerning
bills and contributions made to legislative initiatives addressed to the Parliament and parliamentary groups
must also be included. This latter provision is close to but not fully in line with the concept of the public
legislative footprint in the manner in which it is regulated in the aforementioned Valencian act, for example.
In addition to access to the parliamentary premises and contact with representatives and personnel of the
chamber and personnel working for parliamentary groups, according to Bernadí & Cerrillo the “Regulations
as organising and cosponsoring events on the Parliamentary premises with the authorisation of the Board
or appearing before committees, in accordance with that stipulated in those Regulations (article 219.1).
also envisage express recording of the contributions made to parliamentary procedures and obtaining a
transparency quality stamp or seal issued by Parliament” (Bernadí & Cerrillo, 2017: 13). Once again, one
details provided to the Parliament are made public and they must be correct, complete and trustworthy. There
is also an undertaking to follow the code of conduct and accept the consequences arising from breaching it
(art. 224 of the Parliamentary Regulations). Breach may be determined by the Board on its own initiative
and anyone may also report breaches. These consequences are detailed in article 225 of the Regulations,
which stipulates that breach “of the obligations stipulated in these Regulations and in the Code of Conduct
for Interest Groups will give rise to the Board of the Parliament adopting measures to suspend or cancel
registration in the Register of Interest Groups, based on the seriousness of the breach, in accordance with that
stipulated in the internal rules of said register”.
In short, after examining the regulations of the two Registers of Interest Groups existing in Catalonia, one
the government and administration.
13 350 lobbies are currently registered in the register and 5 applications are in process (see the data). (Retrieved: 07.03.2020).
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6.2 Expected evolution
regulatory obligations established for lobbies. In some cases these measures have been called for by doctrine
for some years (Bernadí & Cerrillo, 2017; Ponce, 2019). One of the actions envisaged in the Strategy thus
focuses, on the one hand, on making lobbies’ diaries transparent and accessible (the minimum contents of
this is to be determined by the Government) and, on the other hand, a compulsory public legislative footprint
system similar to that set up in the Valencian Community will be established, creating an obligation to publish
is not considering giving a seal of approval to non-binding negotiated regulation, as was performed in the
Valencian regulations just mentioned.
In addition to this measure, the document recently presented considers it necessary to expand the scope of the
in subdirector general or equivalent positions. This measure was also considered necessary by some authors
such as Bernadí & Cerrillo, who stated that “[...] supervision and transparency should be progressively
not carried out face-to-face” (Bernadí & Cerrillo, 2017: 20).
These proposals can only be given a positive valuation: all measures are welcome that increase the
transparency expected of public decision-making processes as well as all those that allow the traceability of
regulatory initiatives to be approved. Nevertheless, the situation in Catalonia still lags far behind that in other
countries (the United States or Canada), which have a far longer history of regulating these issues and have
corrected imbalances that have arisen in practice.
the trend towards developing regulations similar to those passed in the United States and other common
law countries (Villoria, 2020). These regulations are characterised by establishing a compulsory register of
pressure groups and establishing complementary codes of conduct. A pluralistic understanding of relationships
between the State and society is thus beginning to be imposed. More cautious and reluctant statist positions
concerning the role of stakeholders in our democratic systems are progressively being abandoned.
connecting with other provisions concerning transparency and public integrity and, above all, the development
perception that many societies have regarding lobbies.
Such regulation must also go hand in hand with measures that allow the general public to clearly know who
lobbies are, how they operate and the impact they have throughout the entire cycle of public policies. These
public powers must promote knowledge by society of the pressure groups that operate in their environment,
since knowing this is an essential requirement in also being able to submit them to public scrutiny.
some autonomous communities have overtaken the central government and developed their own regulations
within the scope of their powers. Although it has arrived late in comparison with other regulatory systems
we have shown, the Catalan regulations have become somewhat outdated.
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regulatory foundations in the legal sphere concerning the register, those that have an obligation to register,
the publishing of the registered data, the obligation to accept a code of ethics and the consequences of
that have been completed and reinforced by adopting soft law measures. In our view, it would be a positive
step, as we have stated throughout this paper, for some of the provisions contained in the Code of Conduct for
example, to be elevated to the status of law. Comparing the Catalan system with the most advanced systems
public servants (up to the level of subdirector, as stipulated in the strategy presented by the Government of
Catalonia), so that the diary accessible electronically by the public matches the exact, daily reality of visits to
to comply with a provision of this kind without insurmountable problems.
Moreover, the Catalan regulations governing lobbies pivots on the obligation on groups seeking to develop
Catalonia to register. There was initially doubt as to whether registration was compulsory, which can be seen in
rules of the Government of Catalonia Administration itself. The lack of legal clarity concerning this point (in
on Transparency should make it perfectly clear that registration is compulsory and that it confers the rights
that the law attributes to lobbies.
It should also be emphasised that the regulation of lobbies in Catalonia is moving towards a hybrid system in
which, in addition to the register and the provision for a minimum code of conduct for pressure groups, other
of diaries but also to the legislative footprint tool envisaged in the Strategy approved by the Government of
Once again, we believe it is essential for regulation of the public legislative footprint to be included in a
regulation with the status of law.
order to systematise all of the provisions that, up until now, have been dispersed among various regulations,
as we have seen, and also to elevate the regulatory rank of those measures considered key to the system.
could be amended for the same purpose.
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Access Info Europe, Open Knowledge, Sunlight Foundation, Transparency International. (2015). Estándares
internacionales para la regulación del lobby: Hacia una mayor transparencia, integridad y
participación. (Retrieved: 02.02.2020).
Álvarez Vélez, María Isabel, & De Montalvo
Teoría y realidad constitucional, 33, 353-375.
el control de las actividades desarrolladas por grupos de interés. Revista Vasca de Administración
Pública, 106, 249-293.
Revista
Catalana de Dret Públic, 51, 91-208. http://dx.doi.org/10.2436/20.8030.01.61
Bernadí i Gil, Xavier, & Cerrillo i Martínez, Agustí. (2017). Transparència, integritat i grups d’interès. Deu
Revista Catalana de Dret Públic,
55, 1-22. http://dx.doi.org/10.2436/rcdp.i55.2017.3017
elsewhere: much we study, little we know? West European Politics, 31(6), 1103-1128.
Bolaño Piñeiro, María del Carmen. (2014). Registros administrativos e inventarios. Revista Vasca de
Administración Pública. Herri-Arduralaritzako Euskal Aldizkaria, 98, 17 et seq.
Transparència, accés a la informació i bon
govern a Catalunya. Comentaris de la Llei 19/2014, de 9 de desembre. Barcelona: Editorial UOC -
Revista
Vasca de Administración Pública, 90, 67-99.
Solé (Coords.), Transparència, accés a la informació i bon govern a Catalunya. Comentaris de la Llei
19/2014, de 9 de desembre
Chari, Raj et al. (2019). Regulating lobbying (2nd ed.). Manchester: Manchester University Press.
Socialism and Democracy, 25(2), 104-124.
Coglianese, Cary. (1997). Assessing consensus: the promise and performance of negotiated rulemaking.
Duke Law Review, 46(6), 1255-1349.
Darnaculleta i Gardella, Mercè. (2003).
regulada. Girona: Universitat de Girona.
European Union. (2006). Llibre verd sobre la transparencia europea
Georgetown
Journal of Law & Public Policy, 12 (special issue), 493-504.
Revista de Estudios Políticos, 213-214, 9-44.
García de Enterría, Eduardo. (1989). Hacia una nueva justicia administrativa. Madrid: Civitas.
Clara I. Velasco Rico
The evolution of lobbying regulation and the tools to control lobbies’ activities. Special reference...
Revista Catalana de Dret Públic, Issue 60, 2020 120
Government of Catalonia. (2020). Estratègia de lluita contra la corrupció i d’enfortiment de la integritat
pública. (Retrieved: 03.02.2020).
for new distinctions? , 6(2), 1-8.
Key, Valdimer Orlando. (1964 [1956]). Politics, parties and pressure groups. New York: Thomas Y. Crowell.
Corts:
, 10, 141-160.
Martini, Maíra. (2013). Legislative footprint
Gestión y
Análisis de Políticas Públicas, 5-6, 189-192.
OECD. (2009). Lobbyists, governments and public trust (Vol. 1). .
Paris: OECD.
informalidad. Cizur Menor: Thomson Reuters Aranzadi.
Negociación de normas y lobbies. Cizur Menor: Thomson Reuters Aranzadi.
Papers, 56, 257-272.
. Madrid: Editorial Reus.
Bielsa (Dirs.), La corrupción en España. Ámbitos, causas y remedios jurídicos (p. 409-434). Barcelona:
Atelier.
Transparencia, profundización democrática y
(p. 93-106). Cizur-Menor: Thomson Reuters-Aranzadi.
corrupción. Cizur-Menor: Thomson Reuters-Aranzadi.
jurídica más allá del registro. Teoría y Realidad Constitucional, 40, 399-430.
Los grupos de interés. Madrid: CEPC.
Registros de empresas periodísticas y editoriales. Seville: Instituto García Oviedo.
,
25(50), 83-101.
Hermès, La
Revue, 73, 81-82.
Transforming administrative procedure (p.
Truman, David. (1951). political interests and public opinion. New York: Alfred
A. Knopf.
Clara I. Velasco Rico
The evolution of lobbying regulation and the tools to control lobbies’ activities. Special reference...
Revista Catalana de Dret Públic, Issue 60, 2020 121
Activitat Parlamentària, 26(1), 66-90.
Villoria Mendieta, Manuel. (2020). . In
Economy Journal. (Retrieved: 01.02.2020).
La corrupción
en España. Ámbitos, causas y remedios jurídicos. Barcelona: Atelier.
