#67: The line between lobbying and corruption

The Netherlands doesn’t score good on the compliance ladder of anti-corruption. A compliance report from the anti-corruption body GRECO states that ministers in the Netherlands are vulnerable to the influence of lobbyists and corruption. What are the risks and recommendations?

GRECO, which stands for the Group of States against Corruption, is a Council of Europe body that investigates corruption, more specifically its prevalence within (the top of) European central governments and public bodies. GRECO came up with no less than sixteen recommendations for the Netherlands at the end of 2018 in relation to the prevention of corruption within governments, including some recommendations in relation to lobbyists such as the adoption of a ‘code of conduct’.

Furthermore it was recommended to introduce rules and guidance on how persons entrusted with top executive functions engage in contacts with lobbyists and other third parties who seek to influence governmental processes and decisions, and to increase the transparency of contacts and subject matters concerning lobbying of persons who are entrusted with top executive functions. Lobby groups could in fact influence unilaterally and improperly, with the risk of conflicts of interest and corruption, or the appearance thereof. Although GRECO already recognized in 2018 that the work of lobby groups also has advantages (e.g. a good exchange of information between the public and private sector; in addition, lobbying contributes to broad public support for government policies) GRECO recommended that these practices be regulated. After all, there is plenty of policing in the Netherlands and the presence of lobby groups in the public domain is growing.

The July 6, 2021 report is critical. Only eight of the sixteen recommendations were partially adopted and implemented. According to GRECO, nothing has been done with the other half of the recommendations. This applies, among other things, to the recommendations in relation to lobby groups.

Incidentally, this is not the first time that the Netherlands takes inadequate measures in the combat against corruption. In October 2020, the non-governmental organization Transparency International concluded in a two-year evaluation that the enforcement of corruption in the Netherlands was only “limited,” particularly in relation to foreign officials. GRECO’s report now puts the spotlight on lobbying, which the reports say, at the very least, carries integrity risks and can also lead to corruption. This raises the question of where the line is drawn between lobbying and corruption. At what point does legitimate lobbying work turn into punishable conduct?

This question has not yet been answered in Dutch case law, probably because lobbying has no fixed (legal) definition. This observation was also one of GRECO’s criticisms in 2018. In the Netherlands, the criminalization of official bribery is regulated in Article 177 of the Criminal Code. A civil servant who allows himself to be bribed is punishable under article 363 of the Dutch Criminal Code. It follows from these articles that bribery can take place by (briefly put) intentionally offering or, in the case of a civil servant, accepting a gift, promise or service with the intention of inducing the civil servant to do or refrain from doing something in his ministry. Nevertheless, these penalty provisions are fairly broad and do not create a lot of clarity. The question is therefore where the boundary lies with lobbying. What is clear, is that the purpose of lobbying is precisely to exert influence on the administrative and/or political decision-making process. Whether and to what extent this leads to corruption seems to be a matter of how one tries to bring about that influence. But what is acceptable remains unclear.

The position of lobbying in relation to the enforcement of corruption is thus uncertain at this point. In our opinion, it would be a good idea for the Netherlands to clarify this by responding to the GRECO report and to substantiate how these recommendations will be implemented in practice. GRECO has given the Netherlands until 30 September 2022 to do so. We look forward to this response with interest.

Do you have any questions about the above or would you like to exchange views with us? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

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