Opinion of the European Central Bank of 31 may 2024 on the extension of the register of lobbying (CON/2024/18)

OPINION OF THE EUROPEAN CENTRAL BANK of 31 May 2024 on the extension of the Register of Lobbying (CON/2024/18) Introduction and legal basis

On 2 May 2024 the European Central Bank (ECB) received a request from the Irish Minister for Public Expenditure, National Development Plan Delivery and Reform (hereinafter the ‘Minister’) for an opinion on the Regulation of Lobbying Act 2015 (Designated Public Officials) Regulations 2024 (hereinafter the ‘draft regulations’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union (TFEU) and the third indent of Article 2(1) of Council Decision 98/415/EC , as the draft regulations relate to the Central Bank of Ireland (CBI). In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

1. Purpose of the draft regulations

1.1. The purpose of the draft regulations is to expand the scope of the Regulation of Lobbying Act 2015 (hereinafter the ‘2015 Act’) to include certain members of the CBI as designated public officials (DPOs). In this respect, under the 2015 Act, the Minister may prescribe descriptions of public servants by reference to their roles, levels of remuneration, grades or similar factors who are then designated as DPOs under the 2015 Act. In determining whether or not to prescribe any description of public servants the Minister must have regard to the public interest and any recommendations made under the 2015 Act . 1.2. Under the draft regulations, persons holding the following roles in the CBI are prescribed as DPOs: the Governor, Deputy Governor, Chief Operations Officer, Director, Chief People Officer, Chief Information Officer, Registrar of Credit Unions, and the Chief of Staff/Advisor to the Governor . 1.3. Under the 2015 Act, where a person subject to the 2015 Act makes, manages, or directs the making of any relevant communication to a DPO in the circumstances outlined in the 2015 Act (hereinafter

a ‘lobbyist’), the lobbyist is required to report that interaction to the Standards in Public Office Commission (hereinafter the ‘Commission’) , which maintains a Register of Lobbying. As noted by the Minister in the consultation request, the objective of introducing the Register of Lobbying was to make information available to the public on the identity and intentions of those communicating with DPOs. 1.4. As communications by or on behalf of Union institutions are excepted communications under the 2015 Act, such communications do not have to be registered . 1.5. The 2015 Act does not impose any obligations on DPOs with regard to the registration and reporting of lobbying. DPOs are, however, subject to certain restrictions on post-term employment as a lobbyist and may, from 1 June 2024, be sanctioned for breaching these restrictions . 1.6. The designation of certain members of the CBI as DPOs in accordance with the 2015 Act formed part of the Irish Government’s Programme for Government. In its Programme for Government, the Government committed to expanding the scope of the Register of Lobbying so that the lobbying of senior officials in bodies like the CBI, which have significant policymaking or development functions, would be reported on the same basis as the lobbying of DPOs of central and local government . The draft regulations also seek to bring similarly senior members of other public bodies within the scope of the 2015 Act.

2. Observations

2.1 This opinion addresses the designation by the Minister in the draft regulations of certain members of the CBI as DPOs in accordance with the 2015 Act. In particular, the members of the CBI designated in the draft regulations include members of the ECB’s Governing Council, General Council, and Supervisory Board, who take part in the ECB’s decision-making process, as well as alternate members of these bodies and certain CBI staff members. 2.2 Article 130 TFEU requires that, when exercising the powers and carrying out the tasks and duties conferred upon them by the TFEU, the Treaty on the European Union and the Statute of the European System of Central Banks and of the European Central Bank, neither the ECB nor a national central bank (NCB) nor any member of their decision-making bodies shall seek or take instructions from Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The aim of Article 130 TFEU is to shield central banks from political pressure and to enable them to effectively pursue the objectives attributed to their tasks through the independent exercise of the specific powers conferred on them for that purpose. However, the recognition that central banks have such independence does not have the consequence of exempting them from

every rule of law and to shield them from any kind of legislation . Moreover, the ECB has itself put in place measures with a purpose similar to those of the 2015 Act. 2.3 First, in view of Article 130 TFEU and to avoid conflicts of interest, the ECB has a Code of Conduct for high-level ECB Officials (hereinafter the ‘Single Code’) . The Single Code requires members and alternates of the ECB’s decision-making bodies (hereinafter ‘high-level ECB officials’) to sign upon their appointment, a declaration of adherence to the Single Code. The Single Code provides good governance safeguards for relations with interest groups and also includes guiding principles regarding communication with external parties. High-level ECB officials commit to safeguarding confidential information in accordance with their obligations and to avoid any appearance that potentially market-sensitive information may not be available to the widest possible public audience at the same time. To enhance transparency and accountability, members of high-level ECB bodies must, as a general rule, include information on their meetings with external parties in their published meeting calendars to the extent that such information relates to their role as high-level ECB officials . While these measures aim to ensure independence and avoid conflicts of interest, they do not exclude regular contact and interaction with external stakeholders who can provide relevant input and information that helps to understand the dynamics of the economy, the financial markets and the banking sector, and the broader societal context . 2.4 Second, high-level ECB officials are also subject to post-employment notification obligations and are required to make a request to the ECB’s Ethics Committee to issue an opinion on the applicable cooling-off periods prior to the taking up of a specific prospective gainful occupational activity . The Single Code also states that high-level ECB officials may only engage in a gainful occupational activity with any entity engaged in lobbying in relation to the ECB after the expiry of the relevant time period following the end of their term of office or from the date of cessation of their function as a member of a high-level ECB body . In this regard, an application for consent made to the Commission by a DPO where applicable under the 2015 Act would be in addition to the concurrent obligation of the high-level ECB official to consult the ECB’s Ethics Committee. Recommendations of the ECB’s Ethics Committee pertain only to a DPO’s former role as a high-level ECB official and are also in addition to further ethical rules applicable to high-level ECB officials under national law . 2.5 Finally, the ECB, NCBs and national competent authorities (NCAs) participating in the Single Supervisory Mechanism are required to take the necessary measures to ensure that their members of staff and members of their bodies act independently and maintain neutrality when meeting with

external parties, in particular with representatives from the financial services industry . The ECB, NCBs and NCAs are also required to have a mechanism in place to assess and avoid possible conflicts of interest arising from post-employment occupational activities undertaken by their members of staff and the members of their bodies, including appropriate notification requirements and cooling-off periods . 2.6 In view of the above considerations, the ECB considers that the draft regulations, including the postterm employment restrictions, would not impair the independent performance of the CBI’s ESCBrelated tasks .

This opinion will be published on EUR-Lex.

Done at Frankfurt am Main, 31 May 2024.

[signed]

The President of the ECB

Christine LAGARDE