Forum for EU/US Legal-Economic Affairs

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The Forum for EU/US Legal-Economic Affairs was established in 1989 by The Mentor Group, an American organisation established in 1983 “to conduct legal and economic studies and research for scholars and officials of the United States of America and Europe”.[1]

The Forum describes itself as “a peer group of EU and US Supreme Court Justices, European Union Commissioners and their US counterparts, and corporate Chief Legal Officers” which meets bi-annually to discuss “concrete legal-economic developments between the European Union and the United States”.[2]

In practice, as outlined below, internal British American Tobacco (BAT) documents show that the Forum has served as a platform for large corporations to access senior European Union (EU) decision makers, and attempt to influence EU legislation and regulations that have the potential to harm their business interests.[3][4]

Membership

Image 1: Screenshot of Member Organisations of the Forum of EU-US Legal-Economic Affairs, as listed in the Mentor Group EU Transparency Register Entry, accessed March 2017

The Forum is funded through corporate membership, with corporate members charged a joining fee and an annual membership fee.

The Mentor Group’s 2016 entry on the EU Lobbying Transparency Register listed 26 corporate Forum members, including BAT and non-tobacco corporations like Facebook, Apple, and Google (see image 1).[2]

The Forum has claimed to have access to the European Commission at the highest level,[5] and Forum events have attracted high profile speakers and participants:

  • In April 2017, Giovanni Buttarelli, the European Data Protection Supervisor spoke at a Forum event.[6]
  • In September 2016, speakers included EU Commissioner of Competition Margrethe Vestager, and the President and a judge from the European Court of Justice (ECJ). Participants included French ministers and judges, two Directors of the European Commission’s Legal Service, the US Ambassador to the EU, the US Federal Trade Commissioner, and large corporations, including BAT.[7]
  • In September 2015, Commissioner Margrethe Vestager spoke at the Forum event.[8]
  • In April 2015, Maroš Šefčovič, European Commission Vice President of Energy Union, was a speaker at a Forum event.[9]
  • In September 2011, Lorenzo Bini Smaghi, Member of the Executive Board of the European Central Bank, was a speaker.[10]

Relationship with the Tobacco Industry

BAT has been a Forum member since 1992, when it became “one of only two British corporate [Forum] members” following an introduction from Unilever.[11][12][13][14]

BAT paid a joining fee of US$15,000 and the 1992 membership fee of US$30,000.[15]

In an internal BAT memo addressed to the Forum Chairman Patrick Sheehy dated 2 March 1992, BAT’s General Counsel Stuart Chalfen suggested that the Forum would offer:

“a truly unique opportunity for corporations such as ourselves to have an influence, through informing them of our experiences, concerns and viewpoints, on the thinking of the justices who will be making decisions of key economic importance to us”.[11]

BAT played a key role in recruiting other British multinational corporations to join the Forum.[16][17] In October 1994, Chalfen wrote to several corporations (including food wholesaler Booker, Rolls-Royce, Associated British Foods, Hanson, Marks & Spencer, and United Biscuit) urging them to join the Forum, claiming that “the Forum is now proving itself an objective, influential resource for high policy makings in the European Community”.[18]

Shell UK, represented by Jacques Schraven, re-joined the forum following BAT’s intervention.[5]

Promoting Risk Assessment in the EU in the 1990s

In the 1990s, BAT used the Forum to promote its risk assessment agenda, which aimed to get policy makers to prioritise policy risks to business over other policy objectives, to senior European Commission officials and ECJ judges. It also aimed to discredit health protection regulation. Although corporate members did not set the agenda for Forum meetings (at least in the 1990s), they were asked to provide input into draft agendas, in particular provide “nuts-and-bolts issues/comments….which will inform the jurist and scholars members”.[19]

In 1993, US Supreme Court Judge Stephen Breyer initiated Forum dialogue on risk assessment reform, which continued in July 1994 with a roundtable discussion on ‘Risk assessment at the EC Level Interacting with Risk Regulation at the National Level: Exercising the Principle of Subsidiarity through Business Affairs’.[20]

BAT commissioned Human Rights barrister Peter Duffy to draft a ‘Proposal for a Case Study on Risk Assessment in Europe’, which BAT presented at the roundtable.[21][22][23][24]

As part of the proposal, BAT suggested that a risk assessment authority at EU Level might help restrain “improperly based regulation or legislation”, and ensure the protection of (corporate) freedom of speech, and the principles of subsidiarity and proportionality. BAT further proposed “It is to be hoped and anticipated that the ECJ will be willing to exercise its review powers described above in assessing the proper basis of proposed regulations and legislation, whether or not a risk regulation authority is created”.

Following the meeting, Thomas Kosmo, President of the Mentor Group, wrote to Chalfen thanking him for his input which “were right on the mark” and that “the ‘quality of regulation” will now become a theme in the further dialogue on risk assessment”.[25]

BAT funded Peter Duffy to prepare a further paper, ahead of the September 1995 Forum session in London, titled “the Protection of Commercial Free Speech under European Community Law”.[3] The paper, which was presented by Duffy himself, explored the protection of commercial free speech when restrictive regulatory action is proposed at EU level without access to a risk assessment body. The proposed Tobacco Advertising Directive was used as an example of supposed inappropriate and unlawful legislation. According to Duffy, it “would have been seriously insufficient simply to rely upon health risks associated with tobacco consumption to justify the freedom of expression restrictions that were contained in the proposed EC tobacco Directive”. Furthermore, Duffy said “The legal message for the competent EC institutions is that objective and specific justification are needed and that sweeping restrictions should not be adopted in the absence of a specific and sufficiently compelling case being made out”.[26][27]

BAT’s role in driving the Forum’s risk assessment agenda, is in line with evidence that BAT intended to use risk assessment as part of its broader, successful efforts to covertly shape the EU policy making architecture to make it harder to pass public health policies.[28] The regulatory reforms it successfully lobbied for (later known as Better or Smart Regulation) would help achieve this by furthering business interests while side-lining social and environmental interests and concerns.[29][30]

From 1996 onwards, BAT appears to have shifted its lobbying efforts on risk assessment & Better Regulation to the Brussels-based think tank European Policy Centre.

  • For more information on how BAT and other corporations shaped Better Regulation principles to favour business outcomes, go to our page on EU Better Regulation.

TobaccoTactics Resources

TCRG Research

Notes

  1. Unknown, The Mentor Group – Institute for Intercultural Education- Annual Financial Statements for the Years Ended December 31, 1992 & 1991, undated, Truth Tobacco Industry Document, Bates no: 202319731-202319737, accessed March 2017
  2. 2.0 2.1 The Mentor Group, EU Transparency Register, last modified on 17 November 2016, accessed March 2017
  3. 3.0 3.1 P. Duffy, Mentor Group, 22 September 1995, Truth Tobacco Industry Document, Bates no: 321923820-321923839, accessed March 2017
  4. S. Chalfen, Mentor Group: Proposal for a Case Study on Risk Assessment in Europe, undated, Truth Tobacco Industry Document, Bates no: 202319139-202319162, accessed March 2017
  5. 5.0 5.1 T. Kosmo, Letter from Thomas Kosmo to Jacques Schraven regarding US/EC economic and business affairs, 19 January 1994, Truth Tobacco Industry Document, Bates no: 202319816-202319817, accessed March 2017
  6. European Data Protection Supervisor, Agenda, 4 April 2017, accessed April 2017
  7. The Mentor Group, Forum for EU-US Legal-Economic Affairs. Paris Forum Agenda, Cercle de l’Union Interalliée, 14-17 September 2016
  8. Calendar of Commissioners’ weekly activities 12-18 September, 2015, Irish Farmers Association website, accessed March 2017
  9. M. Sefcovic (@MarosSefcovic). “About to address the Mentor Group’s Forum for EU-US Legal Economic Affairs on #EnergySecurity and Tackling #Climate Change”. 21 April 2015, 3:41 PM. Tweet
  10. L. Bini Smaghi, Text of speech at Forum event in Rome, European Central Bank website, 15 September 2011, accessed March 2017
  11. 11.0 11.1 S.P. Chalfen, Note from SP Chalfen regarding prompt payment, 31 March 1992, Truth Tobacco Industry Document, Bates no: 202319992-202319998, accessed March 2017
  12. S.G. Williams, Letter from SG Williams to JM Murphy regarding legal economic problems, 13 May 1992, Truth Tobacco Industry Document, Bates no:202319977-202319984, accessed March 2017
  13. D.I. Gans, Letter from David I Gans to Stuart P Chalfen regarding forum for US-EC legal-economic affairs, 15 December 1993, Truth Tobacco Industry Document, Bates no: 202319826-202319841, accessed March 2017
  14. D.I. Gans, Letter from David J Gans to Stuart P Chalfen regarding forum for US-EC legal economic affairs, 6 December 1994, Truth Tobacco Industry Document, Bates no: 202319782, accessed March 2017
  15. S.P. Chalfen, Note from SP Chalfen to M McGraw regarding Mentor Group charges for 1994, 22 December 1993, Truth Tobacco Industry Document, Bates no: 202319823-202319824, accessed March 2017
  16. S. Chalfen, Letter from Stuart P Chalfen to Andrew Ferguson regarding transmission, 21 February 1995, Truth Tobacco Industry Document, Bates no: 202319755, accessed March 2017
  17. E. Becker, Letter from Eugene Becker to Stuart P Chalfen regarding list of corporate, 29 September 1994, Truth Tobacco Industry Document, Bates no: 202319776, accessed March 2017
  18. S. Chalfen, Letter from SP Chalfen to RMJ Andrews regarding forum for US-EC legal economic affairs, 28 October 1994, Truth Tobacco Industry Document, Bates no: 202319763, accessed March 2017
  19. T. Kosmo, Letter from Thomas Kosmo to Stuart P Chaffen regarding Berlink working session, 23 September 1992, Truth Tobacco Industry Document, Bates no: 202319947-202319952, accessed March 2017
  20. The Mentor Group, The Forum for US-EC Legal-Economic Affairs: Working Agenda for Forum Cycle 1994-1995, 1994, Truth Tobacco Industry Document, Bates no: 202319491-202319521, accessed March 2017
  21. S. Walzer, Note from Stephen Walzer to Peter Duffy regarding agenda for Chalfen, 7 June 1994, Truth Tobacco Industry Document, Bates no: 202319525-202319526, accessed March 2017
  22. P. Duffy, Mentor Group Paper, 19 June 1994, Truth Tobacco Industry Document, Bates no: 202319532-202319549, accessed March 2017
  23. P. Duffy, Mentor Group Paper, 30 June 1994, Truth Tobacco Industry Document, Bates no: 202319550-202319551, accessed March 2017
  24. Essex Court Chambers, Mentor Group Paper, 5 July 1994, Truth Tobacco Industry Paper, Bates no:202319573
  25. T. Kosmo, Letter from Thomas Kosmo to Stuart P Chalfen regarding quality of regulation, 21 July 1994, Truth Tobacco Industry Document, Bates no: 202319785, accessed March 2017
  26. Unknown, Draft Speech for Mentor Group, unknown, Truth Tobacco Industry Document, Bates no: 321923842-321923855
  27. Unknown, The Forum for US-EC Legal-Economic Affairs: Transitions Towards the European Union, 23 September 1995, Truth Tobacco Industry Document, Bates no: 700337672-700337829, accessed March 2017
  28. K.E. Smith, G. Fooks, J. Collin, et al, “Working the System”- British American Tobacco’s Influence on the European Union Treaty and Its Implications for Policy: An Analysis of Internal Tobacco Industry Documents. PLoS Medicine, 2010,7(1):e1000202
  29. K.E. Smith, G. Fooks, A.B. Gilmore, et al,[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4668595/ Corporate coalitions and policy making in the European Union: how and why British American tobacco promoted “better regulation”], Journal of Health Politics, Policy and Law, 2015, 40 (2), pp. 325-372
  30. K.E. Smith, G. Fooks, J. Collin, et al, Is the increasing policy use of Impact Assessment in Europe likely to undermine efforts to achieve healthy public policy?, Journal of Epidemiology and Community Health, 2010; 64 (6), 478-487