The new lobby register for more transparency - who does it affect and what needs to be done?
The lobby register is coming! The German Bundestag is introducing it on 1 January 2022, after which all lobbyists vis-à-vis the Bundestag and the Federal Government will have to register without delay. What exactly is a lobby and who does it affect? Could my company also be affected?
The Lobby Register Act (Lobbyregistergesetz - LobbyRG), enters into force on 1 January 2022. It provides for a certain grace period for registrations. Accordingly, registrations made within two months of entry into force are deemed to have been made without delay.
Who is affected?
The term "lobbying" is defined very broadly in Sec. 1 (3) LobbyRG as
“any initiation of contact for the purpose of directly or indirectly influencing the opinion-forming or decision-making process of the organs, members, parliamentary parties or groups of the Bundestag or the Federal Government".
The term Federal Government also includes (parliamentary) state secretaries, heads of departments and heads of sub-departments.
Lobbyists are all natural or legal persons, partnerships or any other organisations that engage in lobbying activities themselves or commission others to conduct such activities. These can be individuals, companies and associations, but also networks or platforms.
According to the broad statutory definition, it should also include the initiation of contact in connection with individual reviews or decisions by federal ministries. Although the law is not clear in this respect, we understand the provisions to mean that administrative activities, such as approval procedures, do not fall under it.
The LobbyRG provides for various exemptions from the registration obligation, e.g. for natural persons who formulate exclusively personal interests with their petition, employers' and employees' associations, municipal umbrella organisations, petitions, the assertion of statutory claims to access information (e.g. under the German Freedom of Information Act [Informationsfreiheitsgesetz – IFG]), churches or for the free press (Sec. 2 (2), (3) LobbyRG). Lawyers are also exempt from the registration obligation, unless their activity is aimed at the enactment, amendment or hindrance of legal norms by the Bundestag or the Federal Government.
What has to be entered, what will be published?
The LobbyRG stipulates which contents are to be entered in the register. This includes, in particular, information on status, activity and – optionally – funding-related information. This concerns, for example, the name, the field of interest and project concerned, a description of the activity, the registered seat of the company and the composition of the management, the number of members and memberships, clients for whom lobbying work is being conducted and the number of employees involved in the lobbying.
Funding-related information is voluntary, e.g. annual expenditure on lobbying work, grants or annual accounts and statements of accounts. However, a refusal will result in a corresponding note in the lobby register and a public listing. Insofar the Lobby Register follows the principle of “naming and shaming”.
The information must be updated at least once a year. For certain information, a shorter deadline applies; for example, changes in the identity of the client for whom lobbying is being carried out must be entered without undue delay.
Date of birth, place of birth, address and electronic contact details of natural persons are not published. In exceptional cases, the publication of information may be partially or completely waived upon request in case of overriding interests that merit protection.
What needs to be done?
To determine whether a company is subject to the obligations of the LobbyRG, one should first of all check whether its actions can even be classified as lobbying activities. Only if this is affirmed can further obligations follow from the LobbyRG.
The next step is to check whether the lobbying takes place on a regular basis, is designed to be permanent or is carried out on a business basis for third parties, and no exception applies. This does not affect voluntary registrations.
If a registration obligation exists, the relevant contents are to be transmitted to the Registry for entry in good time.
Lobbyists must comply with the Code of Conduct adopted by the Federal Government and the Bundestag. According to this, lobbyists conduct their activities "on the basis of openness, transparency, honesty and integrity". In every contact they initiate, they must disclose their identity and the concern of their client or service provider. Furthermore, no contingency fees may be agreed or information obtained in an unfair manner.
Potential violations of the LobbyRG should be counteracted by adapting the company's internal compliance system.
A violation of the LobbyRG can be punished as an administrative offence with a fine of up to 50,000 euros in cases of intent and up to 20,000 euros in cases of negligence. It constitutes an offence if a person (i) fails to register or to register properly, (ii) fails to register properly in case of a voluntary registration, and (iii) fails to update the entry properly.
Violations of the Code of Conduct may be recorded in the Lobby Register. Furthermore, in the event of violations, lobbyists may be denied access to the German Bundestag and participation in public hearings of the committees of the Bundestag.
Further amendments are planned
Under the new Federal Government, a tightening of the regulations of the LobbyRG can be expected. The coalition agreement envisages stricter provisions, e.g. contacts by lobbyists to sub-levels in federal ministries are also subject to registration and the legislative footprint shall be implemented. It remains to be seen what form the concrete legislative amendments will take.
Further information on the coalition agreement of the new Federal Government can be found on our news page.