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more eu transparency January 8, 2015

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European Commission publishes TTIP legal texts as part of transparency initiative.

eu commission transparency November 19, 2014

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A step in the right direction:

As of 1 December 2014, all Members of the Commission are expected to make public on the Commission’s website all contacts and meetings held with stakeholders and lobbyists.

uk register of beneficial ownership to be publicly accessible October 31, 2013

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There has been a dramatic contrast between the US and the UK with respect to transparency of public corporations/companies. The SEC’s Edgar system is searchable, and has generated initiatives such as LawInsider’s contracts database (the founder, Preston Clark, is a UM Law alum). Although the UK’s Companies House even has a mobile app which provides free access to some information, the information is limited. Now the UK announces that it proposes to enhance transparency by establishing a publicly accessible register of beneficial ownership of UK companies (a July 2013 discussion paper introduced the idea, but the decision to make the register publicly accessible is new, and is being announced before the UK’s Department for Business Innovation and Skills issues its formal response to comments on the discussion paper, seemingly because the Open Government Partnership Summit is currently happening in London). So, more corporate transparency to come in the UK, although there will continue to be differences in transparency between the US and the UK.

critique of uk proposals to regulate lobbying July 23, 2013

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The Alliance for Lobbying Transparency describes the new UK proposals in the “Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill 2013-14” as plans to set up a “fake register.” As the Alliance points out, the proposals to regulate lobbying are to apply to “consultant lobbying” which is defined to occur where in the course of a business and in return for payment, the person makes communications “personally to a Minister of the Crown or permanent secretary” on behalf of another person or persons relating to legislation, government policy, contracting, grants, licensing and authorizations and governmental functions. The complexity of this definition and what it covers and doesn’t cover is quite dramatic. I don’t know what making communications “personally” means (written and oral communications are covered). You have to look at Schedule 1 to the Bill to see that consultant lobbying does not include people and firms whose “business .. is mainly a non-lobbying business” (firms of solicitors, for example). Nor does it include people and firms which act “generally as a representative of persons of a particular class or description” where “the income of the person .. derives wholly or mainly from persons of that class or description”, and “the making of communications within section 2(3) on behalf of those persons is no more than an incidental part of that general activity” (trade associations, environmental groups etc.). But the transparency word in the Bill title isn’t really apt here.

From the Government’s perspective it looks as though the really important lobbying-related issue is to do with Trades Unions: there’s a consultation paper about how to create more transparency with respect to trades unions which states:

As membership organisations, it is important that trade union decisions reflect the will of all their members. Knowing who their members are and being able to engage them is intrinsic to a union’s democratic accountability.

What about other membership organizations that take positions on policy? Why not make trade associations disclose who all their members are and how the positions they take on policy issues reflect the interests of their members?

transparencies: spying and trade negotiations July 2, 2013

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Henri Malosse, President of the European Economic and Social Committee said he was “shocked by the level of naiveté on the part of the European institutions” which objected on revelations of US spying. It’s difficult to believe that the objections were down to naivete rather than an act. But Malosse does make some very good points about who is granted seats at the tables where policies are worked out:

I am even more shocked by the fact that concerning trade negotiations, the European Commission applies the policy of blackout on its entire mandate on the draft transatlantic market, for example, by denying access to some meetings to legitimate representatives of trade unions, to civil society, to small and medium-sized enterprises, to the European Economic and Social Committee, the second assembly of the EU, and even the European Parliament itself.
While at the same time, the Commission maintains no secret with regard to certain lobbies – particularly those of large companies, but also apparently … for the “big ears” of our American cousins​​!”

lough erne declaration June 18, 2013

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The G8 made a declaration about tax transparency and trade. In addition to a number of statements about improving the ability of governments to impose and collect taxes, the declaration states:

Private enterprise drives growth, reduces poverty, and creates jobs and prosperity for people around the world. Governments have a special responsibility to make proper rules and promote good governance. Fair taxes, increased transparency and open trade are vital drivers of this….
Governments should roll back protectionism and agree new trade deals that boost jobs and growth worldwide.
Governments should cut wasteful bureaucracy at borders and make it easier and quicker to move goods between developing countries.
Governments should publish information on laws, budgets, spending, national statistics, elections and government contracts in a way that is easy to read and re-use, so that citizens can hold them to account.

This is a very limited version of what transparency might mean, and not nearly all of what citizens should be able to expect in order to hold governments to account.

announcement of eu-us trade negotiations June 17, 2013

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Happened today. The Council of the EU approved the beginning of negotiations on Friday. Regulatory convergence is an important aspect of the proposed FTA, and, although SIFMA worried recently that financial services regulation wouldn’t be part of the negotiations, that doesn’t seem so clear. The EU Commission says it’s not just about regulation of goods:

The need for regulatory convergence is not limited to trade in goods. With regards to financial services, for instance, negotiations should consider creating common frameworks for prudential cooperation. Stakeholders on both sides have provided guidance on where the most significant barriers lie.

I have been examining the consultations that produced “stakeholder” comments. Unsurprisingly the “stakeholders” most concerned to comment in the lead-up to the decision to begin negotiations were businesses and trade associations. And the official narrative is relentlessly positive about the advantages of these negotiations and ignores the discomfort of a range of groups concerned with issues of privacy, extravagant IP protections, the lives of workers, and the environment.

fairness? transparency? June 14, 2013

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The European Council’s press release about the forthcoming G8 summit states:

Promoting fairness and sustainable growth, jobs and development will be at the heart of the EU’s ambition for this G8 summit under UK with a special focus on the three T’s: trade, tax and transparency.

A quotation from José Manuael Barroso in the press release elucidates (?):

The European Union is coming to this G8 summit to promote global fairness: through unimpeded international trade as a vital engine for growth, jobs and development; by stepping up the global fight against tax evasion and avoidance, through automatic exchange of information; and through stronger transparency on revenue streams from extractive industries and forestry, on land governance and on government data.

I think they have a different understanding of fairness and transparency from mine, especially when it comes to the linkages between transparency and trade. A week ago the EU’s General Court held in Stichting Corporate Europe Observatory v Commission (Case T-93/11) that the Commission was entitled to respond to a request for access to documents by withholding documents relating to trade negotiations between the EU and India which were shared with trade associations which had participated in meetings as experts with respect to market access. Corporate Europe Observatory claimed:

that the documents at issue were sent, in full and without indication that they were in any way of a confidential nature, to trade associations with very large memberships and, therefore, to a very large, possibly indeterminate, number of persons, which effectively amounted to publishing or releasing those documents into the public domain.

The General Court adopted a rather formalistic approach. For example:

the Commission’s dissemination of the documents at issue cannot be regarded as having been intended to, and liable to, make those documents known to the public, that is to say, to an indeterminate group of persons, considered in general and in the abstract..Nor can the group of putative recipients of the documents requested, namely the members of the trade associations participating in the work of the advisory committee and of the working groups on market access, be treated as synonymous with the ‘public’. Those members also represent a specific group of persons defined according to a predetermined criterion, in this case membership of a trade association whose expertise is required in connection with the provision of assistance to the Commission for the purpose of deciding upon a strategy for access to the markets of a third State.

Not fair. Not transparent.

eu access to documents May 16, 2013

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Advocate General Cruz Villalón opined today that the Court of Justice should follow the General Court’s judgment in Access Info Europe v Council: where the Council acts in its legislative capacity “the identity of the Member States submitting ‘amendments’ in a ‘legislative procedure’” does not “constitute information that may be refused under the exception provided for in Article 4(3) of Regulation No 1049/2001.” The Advocate General wrote:

‘Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, and this term must apply to the EU, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate…Inconvenient though transparency may be, when carrying out legislative as well as non-legislative functions, it must be said that it has never been claimed that democracy made legislation ‘easier’, if easy is taken to mean ‘hidden from public scrutiny’, as public scrutiny places serious constraints on those involved in legislating… to hide from public view the identity of those making the proposals being discussed during one of the stages in the legislative procedure is to deprive the citizen of an item of evidence that is necessary for the effective exercise of a fundamental democratic right, namely the ability effectively to hold politically accountable the participants in the process of shaping the public will into the form of a piece of legislation…. Democratic political debate involves, above all, accountability; and to have accountability it is essential to know the identity of those participating in the debate and, in particular, the terms on which they are doing so.

This is all good stuff, but he also makes some comments about the difference between EU states co-operating to legislate through the Council (where they are acting like a national legislature) and other circumstances where sovereign states negotiate and where a “mind-set of discretion and even secrecy… is justified.”

sec transparency: advisory committee on small and emerging companies January 17, 2013

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The SEC has published draft recommendations from the advisory committee on small and emerging companies to be considered at a meeting on February 1. As with the investor advisory committee’s meeting tomorrow public comment is invited. But in this case the public can actually see in advance what the committee plans to discuss at the meeting. Some of the recommendations (addressed to Congress, rather than to the SEC) relate to conflict minerals:

Congress should not use the federal securities laws and the Commission’s disclosure requirements as a vehicle to further humanitarian, social or foreign policy objectives.

Meanwhile, this week the Derivatives Project took the opportunity to reiterate its September 2012 submission to the investor advisory committee (so far the only public statement posted since the announcement of tomorrow’s meeting).