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The scope of the laws of 11 October 2013 was initially covering about 10 000 public officials. That scope has incrementally expanded to reach about 17 000 public officials on 1 January 2022.
_ Members of the Government, a pre-vetting procedure may take place before their nomination ;
_ Members of the Parliament ;
_ Candidates to the presidential election (declaration are published at least two weeks before the first round) ;
_ French Members of the European Parliament ;
_ Major local elected officials (president of regional or departmental councils, mayors of towns of 20 000 inhabitants and more, etc.) ;
_ High-ranking civil servants nominated by the Council of Ministers (ambassadors, prefects, central administration directors, Secretaries general, etc.) ;
_ Advisors to the President of the Republic, Ministers, Presidents of the National Assembly and Senate, but also directors, deputy-directors and heads of cabinets of major local elected officials, etc. ;
_ Members of the Supreme Council of the Judiciary: in France, there is no dedicated institution in charge of controlling declarations of assets and interest of judges. Provisions regarding such obligation and control were included in the Law n° 2016-1090 of 8 August 2016 relating to statutory guarantees, ethical obligations and the recruitment of magistrates and to the Supreme Council of the Judiciary but were censored by the Constitutional Council in its decision n° 2016-732. The Constitutional Council considered that by submitting only the most important magistrates to a declaration of asset, the law disregarded the principle of equal treatment between all judges. Nonetheless, all members of the judiciary have to file a declaration of interests to the President of their court or to their Prosecutor ;
_ Members of independent administrative authorities ;
_ Heads of publicly owned entities ;
_ Some civil servants and military officials ;
_ Chairpersons of sports federations, sport professional leagues and organizing committees of major sports events (like the 2024 Olympics) ;
_ Members of the Commission for the remuneration of private copying.
These public officials must submit to the High Authority, in the two months following their entry into functions or the beginning of their mandate, two declarations : a declaration of assets and a declaration of interests.
The declarations of interests are a major innovation of the laws of 11 October 2013 and a key instrument of prevention of conflicts of interests.
The declarations aim at providing a precise photography of the assets and interests held by a public official at a given time. Filing guidelines published by the High Authority detail practical modalities, delays to file declarations, the exact content of each field of the declarations, the modalities – if applicable – of publication of these declarations, how they should signal any evolution in their assets or interests or how to obtain support for filling the declaration.
Public officials falling within the scope of these obligations must fill in a declaration of interest in the first two months after their election or nomination. In case of a substantial modification of the public official’s interests (new activities or involvements, change in the spouse or partner’s professional activity, substantial change in the action portfolios, etc.), he or she must update the declaration of interests.
The objective is to prevent conflicts of interests.
The declaration of assets includes :
Public officials submitting an asset declaration to the High Authority need to do so in the two months following their nomination or election. They must also submit an end-of-term or end-of-office declaration at the latest two months after termination of their functions or before the end of term for elected officials. In between, they must update their declaration of assets in case of substantive change (inheritance, acquisition of a property, etc.). If they did it in the previous year however, they do not have to issue a new declaration of assets, except in case of substantial modification of the assets.
The objective behind the declaration of assets is to verify that the exercise of a mandate or functions has not been an opportunity for an unexplained variation of wealth. The High Authority controls the variation of assets during the mandate or the functions.
Since October 2016, all declarations have been filed online. Filers may contact the dedicated hotline (phone or mail) should they have questions, and explanations are provided online for each step of the process.
The number of declarations submitted to the High Authority largely depends on the electoral calendar. In 2019, 5 360 declarations of assets and interests were received, concerning 2 688 public officials. 2 116 declarations of assets; 954 declarations of assets at end of term of office or service; and 2290 declarations of interests.
In the absence of a submission in the legal timeframe or in the case of an incomplete declaration, the High Authority sends a reminder. The fact that a public official falling within the scope of the High Authority does not file a declaration as mentioned in articles 4 and 11 of law n°2013-907 is a criminal offense. It is punished with a 3-year imprisonment sentence and a 45 000 € fine. The reminders respect the following procedure :
_ A formal notice is sent to the public official for submission in an 8-day period,
_ In the absence of an answer meeting this deadline :
1 – For the public official mentioned in article LO 135-1 of the electoral code (members of parliament), the president of the High Authority refers to the assembly office concerned, based on article LO 136-2 of the electoral code.
2 – For the public official mentioned in articles 4 and 11 of the 11 October 2013 law, the Board adopts an injunction to submit the declaration.
In 2019, 682 reminders were sent to public officials for non-submission or incomplete declaration. After the timeframe expired, 165 of them received an injunction as they had not rectified their situations.
Upon reception of a declaration, a first formal check of the disclosed data is operated. It is a double check, making sure on the one hand that public officials submitting a declaration fall within the scope of the High Authority (eligibility check) and on the other hand that declarations are complete (completeness check).
After reception and the first formal systematic verification of both the declarations of assets and the declarations of interests, the completeness, accuracy and consistency of the content is later checked to ensure that there are no omissions, misevaluations or shortcomings.
The monitoring of a declaration of assets fulfills three objectives: verifying the coherence of the declaration, detecting any important omissions or inexplicable variation of assets and preventing illicit enrichment.
The monitoring of a declaration of interests aims to prevent conflicts of interest. The identification of such potential situations in the control process can lead to several outcomes depending on the type of conflict of interest.
The Board of the High Authority defines and adopts a yearly control plan. It is based on risk exposure, occupied functions and seniority of the different categories of public officials. Control priorities are also bound to legal publication deadlines for the public officials whose declarations are made public on the website of the High Authority. All declarations are checked but some of them are controlled more thoroughly.
_ A specific exposure;
_ The fact that, upon formal verification, the declarations are visibly incomplete, sent after the timeframe or erroneous;
_ Red flags (civil society organizations, citizens, other administrations, etc.);
_ Abnormalities revealed in controlling assets variation during the mandate or time in office.
A very important partner of the High Authority in its control missions is the tax administration. In 2016, the High Authority and the tax administration signed a protocol to clarify their relations. Since January 2017, the High Authority staff members are allowed to connect directly to some of the tax administration databases and applications to carry out routine checks, especially to value real estates, to access the list of registered bank accounts or to access cadastral information. But the tax administration remains a powerful partner to check public officials’ income, access and gather other information (bank or notarial information, international assistance for assets held abroad, etc.).
In addition, cooperation between the National anti-money laundering service and the High Authority has been subject to legislative developments in December 2016. The anti-money laundering service and the High Authority can now share relevant information to their respective controls and investigation procedures. A protocol between the two institutions was signed in September 2017. Regarding cooperation with courts, a memo of the Directorate for Criminal Matters and Pardons and an instruction of the Attorney General for financial magistrates have been signed to formalize information sharing procedures with prosecutors and audit courts.
The High Authority also signed a protocol with the French Anticorruption Agency (AFA) in 2019 to ensure better coordination of actions between the two institutions with complementary missions.
The High Authority also uses a number of publicly available databases (open or upon subscription) such as commercial registries, etc. An internal software has been designed and is currently being used to centralize all information (news, social media, databases, etc.) on public officials falling in the scope of the missions entrusted to the High Authority.
In the contradictory phase of the control procedures, public officials are allowed to justify the content of their declarations and to update their declaration of interest if needed.
Information sources, interinstitutional partnerships and results of the control procedures
At the end of the monitoring procedure, the High Authority is entitled to :
_ Close the review ;
_ Make a public assessment, in other words an observation, if deemed relevant regarding the “exhaustiveness, accuracy and sincerity” of the declaration, after giving the person the opportunity to send its comments ;
_ In the most problematic cases, refer the case to the public prosecutor’s office, who will then decide whether or not to pursue a criminal investigation. Regarding members of Parliament, the file must be referred to the Bureau of the relevant assembly.
If the board of the High Authority identifies potential infractions, several sanctions apply :
Article 26 of the Law of 11 October 2013 provides that “if one of the persons referred to in Articles 4 or 11 of this Act does not file one of the declarations provided for in said Articles, fails to declare a substantive part of their assets or their interests or provides an untruthful evaluation of their assets, they shall receive a three-year prison sentence and a 45 000 € fine”.
Additional penalties may be handed down in the form of loss of civic rights, in accordance with Articles 131-26 and 131-26-1 of the Criminal Code, as well as the prohibition of holding public office, in accordance with Article 131-27 of the same Code.”
Moreover, if nominated public officials that are listed in section III of article 11 of the Law n° 2013-907 of 11 October 2013 do not submit a declaration after the two month-periody, their nomination is considered null.
If the conflict of interest meets the criteria of the criminal offence provided at article 432-12 of the criminal code (taking an illegal advantage), it can lead to a 5-year prison sentence, a 500 000 € fine and a disqualification for any public office for a maximum of 10 years.
In other cases, when a conflict of interest arises during office, the law provides that the High Authority has an injunction power and can ask a public official to put an end to a situation of conflict of interest. This injunction can be made public and if it is not followed by actions, the concerned public official may be sentenced with up to one-year imprisonment and a 15 000 € fine.
In practice, the control procedures resulted in the transmission of a declaration to prosecutors for inaccurate submission in 102 cases since 2014.
The pre-existing administrative commission had transmitted 12 files to courts in 25 years of existence but only one resulted in a conviction.
In the contradictory phase of the verification process or when they face ethical questions in the exercise of their public functions, public officials ask the High Authority for advice and decide to take arrangements (mostly abstention or recusal, financial management mandate but also to a small extent abandonment of an interest) in order to avoid such situations and sanctions.
Overall, control of assets through submission of declarations of assets and prevention and control of conflicts of interest through submission of declarations of interests are closely intertwined. For instance, the High Authority transmitted to the Prosecutor both declarations for a public official who had forgotten to declare a bank account both in his declaration of interests and of assets. Moreover, the declaration of interests may shed light on the control of the variation of assets in the declaration of assets (parts in societies, peculiar interests or remunerated activities, etc.) and may allow to detect criminal offences, like taking an illegal advantage which is a felony referred to in article 432-12 of the French criminal code. Such tools may also bring more evidence to ongoing judicial procedures related to fraud for instance or money laundering. They may thus be used in closer cooperation with the judicial authorities.
All cases referred to competent public prosecutors have so far resulted in systematic judicial investigations and proceedings. The first definitive sanctions were pronounced in 2016 and examples include :
_ April 2016 : six-month suspended sentence and 60 000 € fine for a senator ;
_ September 2016 : a 1-year ineligibility and 2-month suspended sentence and a 5 000 € fine for a former Minister ;
_ November 2016 : 45 000 € fine for a member of the National assembly ;
_ October 2017 : four-month suspended sentence and a 30 000 € fine for a former Member of the National Assembly.
_ October 2020 : a 3-year ineligibility sentence and a 10 000 € fine for a local elected official.
Under Article 5 and article 12 of the law n°2013-907 of 11 October 2013 on transparency in public life, the content of the declarations of assets and the declarations of interests of the members of the Government and members of the Parliament are made public in the three months following the reception of the opinion of the tax administration on their declarations. Yet, in peculiarly demanding periods (renewal of the National assembly, Senate, etc.), considering the human resources of the High Authority and the implementation of a contradictory approach allowing filers to justify or complete the information transmitted, delays have been faced or are to be expected. The High Authority publishes the declarations once they have been checked in order to allow access to all to complete and accurate information and to accompany the declarations of a public statement in case the High Authority identifies an irregularity.
The declarations of interests of French members of the European Parliament and mayors of big cities and towns, but also of regions are also available on the website. In addition, the declarations of assets of parliamentarians can be accessed in certain governmental buildings, though not published on the internet. The High Authority cannot publish declarations of others public officials.
The published declarations remain online until the end of the mandate or the functions. When the declaration is filed after termination of the mandate or the functions, its content remains accessible for six months after that date.
In 2019, 2 395 declarations were published on the High Authority’s website and in prefectures.
To prevent conflicts of interest, the High Authority collects and controls declarations of interests. The scope is broad and allows to list all current and past activities, financial investments, positions in public or private organizations, professional activity of the spouse, and volunteer activities.
For the first time in French Law, the law of 11 October 2013 on transparency in public life defined the notion of conflict of interest as “a situation in which a private or public interest interferes with a public interest in such a way that it influences or appears to influence the independent, impartial and objective performance of a duty”.
This definition highlights three criteria about the conflict of interests. Firstly the public official holds an interest which can be direct or indirect, private or public, material or moral. Secondly, this interest must interfere with the exercise of a public duty, this interference can be material, geographical or temporal. And finally, this interference may influence, or appear to influence the “independent, impartial and objective performance of a duty”, it implies the examination of the intensity of the interference : there is a conflict of interest when the interference is sufficiently strong to raise reasonable doubts as to a public official’s capacity to carry out his or her functions objectively.
When a situation of conflict of interest is detected, the High Authority has different levers of action :
The High Authority can suggest to a public official an appropriate solution to prevent or to stop a conflict of interest. The options include the publicity of the problematic interest, a recusal mechanism (to avoid handling a subject linked to the public official’s interest) or the abandonment of the interest.
If the situation continues, the High Authority can issue injunctions against public officials (except members of Parliament) requiring them to cease the activity causing the conflict of interest. The injunction can be made public, and it can be transfered to a prosecutor. Any non-compliance is a criminal offense liable to a year of imprisonment and a 15 000 € fine.
_ Accumulation between a public function and another activity, like a business activity, a voluntary activity, or participation to managing committees in companies or civil society organization ;
_ The profession of the public official’s spouse or partner ;
_ Precedent business activities in regards to the new public function ;
_ Holding financial instruments.
The High Authority monitors the revolving door of certain public officials and civil servants between the public and private sectors (appointment of a private-sector employee to a civil service job, combination of activities, professional retraining of a civil servant in the private sector).
The High Authority must be referred to whenever the job concerned is among the most strategic in the three public functions, or on an optional basis when the ethical monitoring of the civil servant is the responsibility of their administration.
The High Authority then examines whether the civil servant’s career plan is likely to compromise the functioning, independence and neutrality of the public service, to disregard its principles of dignity, impartiality, integrity and probity or to place the person concerned at risk of unlawful acquisition of interests.
The Act of 6 August 2019 abolished the Civil Service’s Etics Committee and transfered several of its missions to the High Authority. It gave the High Authority new ethical control and advice competences with regard to civil servants and public officials, significantly redefining its scope of action.
Such controls first and foremost concern plans for combining other activities with public offices and transition to the private sector. A new mechanism was also introduced: the so-called pre-nomination control. This preventive mechanism concerns the return of (seconded or available) public officials and recruitment of contract staff in the civil service, when the individuals concerned have engaged in gainful private activities in the three years prior to their nomination.
Binding opinions for the former public official
For a period of three years, anyone who has held one of these positions must refer to the High Authority to examine whether the new private activities that they plan to exercise are compatible with their former functions. Liberal activities (for example the exercise of the legal profession) or paid private activities within a public or private company (salaried activity, creation of a company, etc.) as well as those exercised within a public industrial and commercial establishment or within a public interest grouping of an industrial and commercial nature, are also included in the scope of the control.
The High Authority verifies whether the envisaged activity poses difficulties of a criminal or ethical nature. When it identifies such difficulties, it can issue an opinion of incompatibility, which prevents the person from carrying out the envisaged activity, or of compatibility with reservations, in which it imposes precautionary measures likely to prevent the criminal and ethical risk.
The law provides that the High Authority may make public the opinions it grants after having collected the observations of the person concerned and having withdrawn the references which infringe a secret protected by law.
The control operated by the High Authority
When seized by a former public official, the High Authority engages in a double check.
First, it examines whether the planned activity does not expose the person concerned to a criminal risk. Indeed, article 432-13 of the penal code prohibits a former public official from working, in the broad sense, for a company which was subject to his power of surveillance or control when exercising public functions, with which he has entered into contracts or in respect of which it has taken or proposed decisions. If the High Authority considers that the envisaged activity would necessarily lead the former public official to commit this offense, it can issue an opinion of incompatibility and the activity cannot be carried out. If there is a criminal risk but this risk can be avoided by the implementation of certain precautions, the High Authority issues a compatibility opinion by formulating the necessary reservations: for example, when it is seized of the creation of a consulting company, it will ask not to take as clients companies with which the person concerned concluded contracts when he was in office or in respect of which he made decisions.
Second, from an ethical standpoint, the High Authority ensures that the envisaged activity does not undermine the dignity, probity and integrity of previous functions. The control also relates to the obligation to prevent conflicts of interest: exercising this new activity must not reveal the existence of a situation of conflict of interest when the person concerned was exercising his public functions. Such a risk is more frequent when the new activity is carried out in the same economic sector. As such, a public official cannot use his functions to prepare his professional retraining.
Finally, the High Authority checks that the planned activity does not call into question the independent, impartial and objective functioning of the public institution in which the person concerned has exercised his functions. Depending on the risks identified, the High Authority may declare the activity incompatible or make reservations.
The law of 6 August 2019 on the modernization of the public service makes a profound change in the ethical control of public servants as part of their mobility between the private and public sectors, now based on three principles:
1) Internalization of control
The ethical control of the vast majority of public servants is now the responsibility of the administration itself. This control is internalized, insofar as it is carried out by the hierarchical superior of the agent concerned, who can consult the ethics officer if there is a difficulty. The hierarchical superior himself makes the decision as to the feasibility of the public servant’s project (professional retraining or combination of activities) or the appointment of a public servant, from the private sector, in a high-ranking civl service post.
2) Optional referral to the High Authority according to a principle of subsidiarity
The internalized ethical control may require the intervention of the High Authority, according to a principle of subsidiarity: if the hierarchical authority has serious doubts about the project in question, even after having referred the ethics officer, it can refer the matter to the High Authority. This referral is optional and subsidiary: it can only relate to the professional retraining of public servants, their plans to create or take over a business, and appointments to certain positions listed in Decree 2020-69 of January 30, 2020 relating to ethical controls in the public service.
3) Compulsory referral to the High Authority in certain strategic cases
For some agents, referral to the High Authority is compulsory. These are generally the people appointed to the most senior positions in the three public functions. This compulsory competence of the High Authority is restricted to the following strategic jobs:
> For professional retraining in the private sector, the creation and takeover of a business :
The jobs listed in a decree 2020-69 of January 30, 2020 relating to ethical controls in the public service
> For appointment to certain posts :
_Directors of central administration and directors of a public establishment whose appointment is made by decree in the Council of Ministers ;
_The directors general of the services of the regions, departments, municipalities with more than 40,000 inhabitants and public inter-municipal cooperation establishments with their own taxation of more than 40,000 inhabitants ;
_Directors of public hospitals with a budget of over 200 million euros ;
_Members of ministerial cabinets and collaborators of the President of the Republic.