- Control of the professional retraining of former ministers, local exectuive chairmen and members of an AAI/API (art.23 of Law 2013-907 on the transparency of public life)
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may make public the opinions it grants after having collected the observations of the person concerned and having withdrawn the references which infringe a secret protected by law.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.
- Control of the professional retraining of civil servants (law 83-634 on the rights and obligations of civil servants)
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.