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Emily O’Reilly
Lobbyists do a very straightforward job. They try to influence legislators to do things, or not to do things, that affect the bottom line of the people who pay them.
In 2012, the European Commission did something likely to affect the bottom line of the tobacco industry. It proposed a new Tobacco Products Directive aimed at reducing smoking rates across Europe, especially among young people.
And that was the starting pistol for hundreds of tobacco industry-hired lobbyists to fan out across Brussels and the member states, in a bid to curtail the potential commercial damage the new law could cause them worldwide.
Brussels is now a legislative powerhouse, and thus a hive of lobbying activity. Every morning, dozens queue for access passes in the European Parliament, while across the town, formal meetings fill diaries and countless informal meetings take place over coffee, lunch and dinner, as they seek a toehold on some part of the legislative ladder that will enable them to effect some change favourable to their clients.
Most of the biggest corporations in the world, from Google to British American Tobacco, to Shell and BP, have established a presence in the cobblestone streets around the EU quarter. With that has come an increasing stream of former EU officials going through the public service door and into a frequently lucrative private one. Highly prized insider intelligence and access is the currency that seeps through much of the legislative work of the EU.
By the time the Tobacco Products Directive finally passed into law two years later, the European Parliament, Commission and Council had been subjected to one of the most intense lobbying campaigns witnessed by the three institutions. It was, one commentator said, “the most lobbied dossier in the history of the EU institutions”.
And while the directive that emerged was generally well received as a significant contribution towards tobacco control and the safeguarding of public health, due to the hard work of many working on the issue, it was also clear that the lobbyists had won some victories along the way.
A softening of a plain packaging clause – meaning that it was left to member states to introduce such a measure if they chose – led to the current case taken by Japan Tobacco against the Irish Government’s decision to do just that.
The UK is being similarly sued by Philip Morris and British American Tobacco, and it in turn has brought a case to the ECJ to get clarity on certain aspects of the directive. Issues such as intellectual property and the right to free speech form part of the legal challenge.
The intent of the lobbyists was twofold. One, obviously, was to water down the original commission proposal, the other was to delay its passage to a point where perhaps a more favourable political climate might further dilute the bottom line impact of the proposed measures.
Now publicly available tobacco industry documents and evidence from MEPs and officials, testify to a massively well-funded and highly sophisticated campaign.
The approach was tailored, with bespoke approaches for individuals, institutions or ministers depending on cultural or political sensitivities and susceptibilities.
No argument was either too alarmist or too cynical to be discarded, whether wholesale unemployment of French tabac owners, or the cost to creaking health services of people actually living longer. The sophisticated use of “front groups” was another favourite tactic.
Strange things happened along the way, including the sudden and strange departure of the then EU health commissioner John Dalli. This threatened to derail the whole process ahead of the strongly anti-tobacco Irish presidency. Even stranger were break-ins to the Brussels offices of three anti-smoking NGOs which had material swiped from their databases.
As European Ombudsman, my involvement began when I received a series of complaints claiming that the European Commission had not been as transparent as it should be when it came to its dealings with tobacco lobbyists.
The complaints alleged that details of certain meetings had not been proactively published and that this was not in compliance with the 2003 UN Framework Convention on Tobacco Control, which the EU had signed up to in 2005. Indeed the commission itself played a leading role in pushing for this convention under then EU health commissioner David Byrne.
That convention is strikingly clear in its refusal to see the tobacco industry as a “normal” commercial interest to which “normal” rules of commercial engagement and commercial protection should apply.
Using highly-charged vocabulary, including the words “epidemic” and “devastating”, the industry is characterised as a pernicious one, severely damaging to global public health, and one to which as little quarter as possible should be given by governments and regulators.
Alongside other non-binding guidelines, the UN convention instructs all member states who signed up to it, and all EU institutions, to limit their interactions with the tobacco industry and to make any such interactions as transparent and as accountable as possible.
There is no doubt but that the commission was heavily lobbied and by extremely smart people – including lawyers – who used a belt and braces approach when it came to attempts to dissuade it from certain lines of action.
An examination of documents which outlined the industry approach showed that one tactic was to – in effect – shake the commission’s confidence when it came to the legality of certain crucial directive elements.
No institution relishes a trip to the courts to account for its work, and the lobbyists were well aware that this was a potentially fruitful tactic.
It would appear that, at the very least, it may have worked to slow down the passage of the directive.
My inquiry included an inspection of the commission’s files. We found that the Barroso Commission had not sought to conceal meetings, but that details of certain meetings were revealed only when an access, or FOI, request was made.
We further found that while the lead commission department, the directorate general for health, did proactively release details of all its contacts with the tobacco lobby, other directorates general did not.
The most interesting finding perhaps was that officials, when asked, revealed that they did not consider contacts with lawyers representing the industry to be meetings with lawyers acting potentially as lobbyists.
At the very least, this failure to see lawyers as potential lobbyists was naïve.
The most cursory examination of lobbying methodology, and particularly when it comes to regulatory affairs, shows how valuable lawyers are to the process.
Most websites of the more influential lobbying firms in Brussels demonstrate a proud – and far from hidden – showcasing of their hiring of former commission and other EU-insider lawyers, clearly valued for their knowledge of how the system works, and, no doubt, of how it can be tweaked in their new employer’s interests.
This so called “revolving door” phenomenon has been the basis of another ongoing inquiry by my office.
My recommendations to the commission, published earlier this week, are simple: that all of the directorates general should proactively release details of contacts with the tobacco industry, just as the directorate general health does, and should recognise lawyers as potential lobbyists and not as a separate caste.
It must be noted that the EU Commission in power since November 2014 under the presidency of Jean-Claude Juncker has made several positive steps towards more lobbying transparency. This is an example to other EU institutions, and indeed is now at a level of transparency better than most EU member states.
However the commission is the EU executive, it has great responsibilities and must lead by example.
To some observers, all of this might appear either abstract or high-minded. But recent revelations, for example, about Volkswagen’s deliberate concealment of the actual emission rates of their cars, shows the real-world cost of regulatory failure.
Over time, details may well emerge of how lobbyists for the car industry also worked to try to water down public-interest initiatives to safeguard the environment and public health.
How many more lives might be saved or public health further safeguarded if the Tobacco Directive had been even stricter, if clever lobbyists hadn’t been able to nibble around its edges?
The commission says that it believes it has been faithful to the UN convention and that in any event, the guidelines are not legally binding.
The former, in my view, is not the case, and the latter should not matter.
I do believe the commission has the best interests of citizens at heart and, while full of intelligent, hard-working people, I also believe it needs to engage those citizens more fully in its work by alerting them to the forces that seek to steer the commission in a direction in which perhaps it should not go.
The more transparency there is around lobbying, the more that an engaged civil society can work with dedicated public servants in the EU, to ensure that clever, well-resourced industry agents do not upset the balance between the safeguarding of a public interest and the right of an industry to safeguard its profits.
Emily O’Reilly is European Ombudsman
