The parliamentary debate on the first Draft Law on Lobbying in Serbia is expected to commence at the end of October 2018. This Draft Law - the likes of which Serbia never had before - is one of the latest anti-corruption regulations, and it is expected to be adopted 18 years after the beginning of the anti-corruption legislation reform. The adoption of the Law has been planned in the national strategic documents relating to the fight against corruption - those for 2005 as well as 2018.
It has also been the subject of the recommendations provided by the Group of States against Corruption (GRECO) after the fourth round of evaluations, which Serbia has failed to fulfil within the set time limit (by the end of 2016). The extended deadline expires on 31 October 2018.
The analysis, prepared within the framework of the joint project of the prEUgovor coalition by the Centre for Applied European Studies and authored by Nemanja Nenadić, Programme Director of Transparency-Serbia, which will be published soon, will present the history of attempts to regulate the area of lobbying, the position of this topic within the strategic framework of the fight against corruption and European integration, the analysis of the provisions contained in the current Draft Law, and the suggestions that have been submitted for the purpose of its significant amendment and supplementation. In this document, the readers will also learn about interesting things that occurred whenever the questions of lobbying and the need for its regulation had been raised in the course of the past few years.
The Draft Law that has been submitted to the MPs will not resolve some of the key problems concerning the transparency of work of the authorities and the procedure relating to the preparation of general acts. Nevertheless, the fact that the Law is about to be adopted at all, and that the anti-corruption legislation in Serbia will finally be completed, is commendable.
Although the Draft Law contains some useful solutions - e.g. it covers all levels of government, places emphasis on integrity in lobbying, introduces supervision by the Anti-Corruption Agency, and prohibits the appearance of current and former public officials as lobbyists two years after the termination of office - their range is very limited.
A live public debate on the Draft has been organised, but the Law’s reasoning fails to mention the consideration of suggestions that were not included in the Draft. The Ministry of Justice did not publish a special report on the public debate, although it was obliged to do so pursuant to the Government’s Rules of Procedure.
Some of the following are among the problems that will remain unresolved after the adoption of the current version of the text of the Law:
- The Law does not regulate attempts to influence individual decisions of the authorities and public officials; instead, it concerns exclusively laws and other general legal acts;
- Attempts to influence the adoption of general acts coming directly from interested parties are not regulated, only situations when such influence is attempted by professional intermediaries, i.e. lobbyists;
- The Law prescribes the obligation to submit a report to the Anti-Corruption Agency on the conducted lobbying, but fails to prescribe the obligation to publish such data, rendering the lobbying process insufficiently transparent;
- There is no obligation to report “unofficial” lobbying, i.e. the influence attempts that take place prior to the submission of official written lobbying communication;
- The Law does not deal with the resolution of a serious problem, that is, the fact that state authorities remain silent in the face of reasoned initiatives submitted by the citizens, associations and companies urging the adoption of or amendment to some regulation, or that they arbitrarily choose which of these initiatives to take under consideration.
In comparison to the first draft from the beginning of this year, the Draft Law has been corrected by addressing the issue of lobbying directed to include, in addition to public officials and civil servants, also some of the public officials’ advisers, since they were covered by the term “persons employed” in the authorities. However, the fact that lobbying directed at individual members of the working groups charged with drafting laws, who were not employed by a specific authority to participate in the working group but instead work as independent experts or are employed elsewhere will remain outside the scope of the Law is quite illogical.
Another controversial and illogical solution contained in the Draft Law prescribes mandatory training for lobbyists, to be conducted by the Anti-Corruption Agency, while state authorities should in fact supervise the application of the law and control compliance with set rules. On the other hand, as lobbying is performed for the benefit of interested clients, the state has no reason to protect said clients from their own bad decisions concerning the selection of lobbyists. It is sufficient to make information on potential lobbyists and their qualifications available to clients.
The Draft Law explicitly stipulates that public communication of views and submission of proposals, expert opinions and regulatory initiatives shall not be considered lobbying, although they represent ways to influence decision making; consequently, the public should be able to obtain information on whether a lobbyist has been engaged to also provide the above services.
The Law recognises registered lobbyists, as well as natural and legal persons who work as unregistered lobbyists. The latter are allowed to engage in lobbying activities if they are legal representatives or employees of “users of lobbying services”, or if they represent the interests of an association or company whose member is a user of lobbying services. In practice, however, it may prove to be difficult to discern whether someone is lobbying for a contracting party or presenting one’s own proposals and initiatives.
All these problems could be solved by the application of the approach contrary to the one that was used by the Serbian legislators. Instead of specifying who is allowed to carry out lobbying activity, it would be better to place the emphasis on the actions of the authorities, public officials and civil servants, their duty to make a record of and provide information about who has contacted them, and what they have proposed, as well as their duty to consider and respond to any well argumented suggestion aimed at improving the regulations and practice, whomever they might have come from.