The penetration of Community law in the European citizens’ every day life converges to the conclusion that legal expertise in Community law has already become indispensable for the legal treatment of most cases. Be it, by way of example, in the competition field or in public procurement, environment or agriculture, even health that is not a Community competence, legal problems may find their solution at the European level quicker, in a binding or guiding manner, depending on the policy field. Legal tools such as complaints lodged with the European Commission, preliminary rulings by the Court of Justice of the European Communities or direct applications to it, and public debates in the European Parliament may prove to be either definitive or influential ways to attaining a satisfactory result.

The policy element that is inherent in the legal advice at the European level brings lawyers close to the lobbyists. In an effort to enhance public confidence and trust, the European Commission established a voluntary register to bring more transparency to interest representation, its actors and their activities. In its original proposal for a code, it proposed to “exclude activities performed by independent members of the professions providing legal advice, such as lawyers, insofar as such activities relate to the exercise of the fundamental right to a fair trial of a client, including the right of the defence in administrative proceedings”. The Council of Bars and Law Societies of Europe (CCBE), representing the European lawyers, found this exemption far too narrow and proposed that the following are excluded from the definition of ‘interest representation’: “a. all activities carried out by a lawyer in the sense of Directive 77/249/EEC and Directive 98/5/EC in connection with any representation of a client in judicial, quasi-judicial, administrative, disciplinary and other proceedings; b. all activities concerning legal advice in the context of the political and decision making processes of the European institutions; and c. all responses following a request by the European institutions....”

In fact, it is common ground in all member states that client confidentiality is a core value of the professional code of deontology for all lawyers in the EU as this is also recognised by the case law of the Court of Justice of the European Communities (C-309/99). However, an oral amendment during the debate of the Commission’s proposal before the Committee on Constitutional Affairs of the European Parliament led to the inclusion of giving legal advice under the definition of lobbying. That caused another reaction by CCBE that urged the European Parliament to exclude legal advice from the definition of lobbying. An amendment tabled by the EPP-ED and the ALDE groups to the report changed the definition of lobbying to include lawyers only when their purpose is to “influence policy rather than to provide legal assistance and defence in legal proceedings or to give legal advice”. The final communication from the Commission on the European Transparency Initiative (SEC(2008) 1926/27.5.2008), excluded from it “activities concerning legal and other professional advice, in so far as they relate to the exercise of the fundamental right to a fair trial of a client, including the right of defence in administrative proceedings, such as carried out by lawyers or by any other professionals involved therein”.

The fact that the Commission felt the need to propose a register shows that there is a public problem of how to safeguard objectivity in the definition and formulation of Community policies. The problem is new in Europe and coincides with the practice of lobbying. However, it would be unfair to say that the problem emerged exclusively because of the lobbyists’ activism. Isn’t it the Commission itself that proclaimed in the white paper on the European governance and favoured a participatory decision making it an effort to prove its democratic legitimacy? Lobbyists just went on the carpet opened to them. Hence, the question is whether this new phenomenon constitutes a problem that is caused by the outsiders trying to influence the institutions, namely the Commission, or rather by the insiders who cannot manage themselves vis à vis the outsiders? Isn’t this after all an internal managerial problem that has been addressed by recommending external measures (registration)? Will registration of lobbyists ‘lato sensu’ resolve the problem? Probably not. Even if there is improvement, there will always be ways to escape. What matters is internal culture and openness. In any event, what is certain is that lawyers exist since ever, whereas the phenomenon is new. Consequently, they are not part of it.

More importantly, lawyers have always been considered to be parts of the system of justice performing in a public mission. Therefore, they are trained accordingly, checked for a long time before they take their professional oath, registered with a bar, bound to strict deontology codes and continuously accountable. Belonging to a bar is already an honor and commitment that is more binding than any law. Putting lawyers under the obligation to declare their cases/clients as if they were assumed to manoeuvre contrary to their professional obligations, irrespective of the incompatibility with the confidentiality barrier, downgrades their public contribution and might ultimately have negative results. Wouldn’t it be more opportune instead to upgrade lobbyists by letting them get organised likewise lawyers are?

(*) Attorney-at-law, founder of the Pappas & Associates Law firm, former director-general in the European Commission and judge in the Hellenic Supreme Court