The conflict of public interests, a French exception

As set out in Article 2 of Law No. 2013-907 of 11 October 2013 on the transparency of public life, a conflict of interest is, in France, “any situation that causes interference between a public interest and public or private interests, which could influence or appear to influence the independent, impartial and objective performance of a duty”. Public interests thus seem to be potentially plural and likely to conflict in such a way that a public official would no longer seem to be independent, objective and impartial.

This possibility of a “conflict of public interests” does not appear to exist in most other legal systems.

National provisions in force

Numerous countries, such as Germany (GRECO, Fourth Evaluation Round Report on Germany 2015, p. 15.), Denmark (GRECO, Fourth Evaluation Round Report on Denmark 2014, p. 13.) and Italy (GRECO, Fourth Evaluation Round Report on Italy 2017, p. 15.), do not define the concept of conflict of interest. In Sweden (GRECO, Fourth Evaluation Round Report on Sweden 2013, p. 15.), there is also no general definition of the concept, but the Riksdag (Parliament) Act states that no one may be present at a meeting of the Chamber when a matter is being deliberated which personally concerns her/himself or a close associate. This provision applies to conflicts of interest arising from private interests or activities of others with whom the MP has a close association (relatives, business associates, etc.).

In the United States, a conflict of interest is generally defined (GRECO, Fourth Evaluation Round Report on the United States 2017, p. 14.) as a situation in which an official’s private financial interests conflict or appear to conflict with the public interest. According to the House of Representatives Ethics Manual, the term “conflict of interest” denotes a situation in which an official’s conduct of his office conflicts with his private economic affairs. For the executive branch, the Office of Government Ethics (OGE) establishes similar provisions: public employees shall not hold financial interests that conflict with the conscientious performance of duty (OGE, Standards of Ethical Conduct for Employees of the Executive Branch 2017, p.1.). In addition, they shall not engage in outside employment or activities that conflict with official government duties and responsibilities (OGE, Standards of Ethical Conduct for Employees of the Executive Branch 2017, p. 2.). The OGE standards of ethical conduct are based on the U.S. Code (United States Code, Title 18, § 208 “Acts affecting a personal financial interest.”), which prohibits public officials of the executive branch from personally and substantially participating in a particular government matter that will affect their own financial interests, or those of their relatives and associated individuals or organizations.

In Canada, the 2006 Conflict of Interest Act sets out that a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests. However, the definition does not cover decisions or matters of general application, or affecting a public office holder as one of a broad class of persons, or concerning the remuneration or benefits received by virtue of being a public office holder. Financial activities are an important source of conflicts of interest but other causes are also envisaged. In this sense, the Canadian conception of conflict of interest is broader than the American one. Nevertheless, it does not provide for conflicts of public interests.

In the United Kingdom (GRECO, Fourth Evaluation Round Report on the United Kingdom 2013, p. 11.), potential  conflicts  of  interest  for  MPs are  addressed  by  the codes  of  conduct  pertaining to each  House. MPs should be guided by the public interest, and resolve any conflict between their personal interest and the public interest in favor of the latter. Public interest is considered indivisible. Therefore, conflicts between diverging public interests are not foreseen. Moreover, there is a code of conduct for ministers, which enounces that members of government must ensure that no conflict arises, or appears to arise, between their public duties and their private interests (Cabinet Office, Ministerial Code 2016, p. 1.).

Finally, in Brazil, the 2013 Conflict of Interest Act defines the term as a situation, created by the confrontation between public and private interests, which undermines the collective interest or improperly influences the performance of a public duty. In Spain, following the recommendations issued by GRECO (GRECO, Fourth Evaluation Round Report on Spain 2014, p. 14.), a law on conflicts of interest was adopted in 2015. The law defines the concept and details problematic situations. Nonetheless, the possibility of a conflict between public interests was not included (Boletin Oficial del Estado, Ley 3/2015, de 30 de marzo, reguladora del ejercicio del alto cargo de la Administración General del Estado, article 11.).

In all the countries reviewed, despite very different legal traditions, the possibility of a conflict between public interests is not envisaged.

Definitions and standards at the international level

Definitions of the concept of conflict of interest have also been developed by international organizations, European institutions and non-governmental organizations. According to the OECD (OECD, Managing Conflict of Interest in the Public Sector: A Toolkit 2005, p. 13.), a conflict of interest involves a conflict between the public duty and the private interest of a public official, in which the official’s private-capacity interest could improperly influence the performance of their official duties and responsibilities. This definition is considered as a standard for the fight against corruption.

The European Parliament (European Parliament, Code of Conduct for Members of the European Parliament with respect to financial interests and conflicts of interest, Article 3.) determines that a conflict of interest exists where a MEP has a personal interest that could improperly influence the performance of his or her duties. It underlines that a conflict of interest does not exist where a MEP benefits only as a member of the general public or of a broad class of persons.

In its “anti-corruption glossary”, the NGO Transparency International defines a conflict of interest as a situation where an individual or the entity for which he or she works, whether a government, business, media outlet or civil society organization, is confronted with choosing between the duties and demands of their position and their own private interests. In the above-mentioned three cases, potential conflicts between public interests are not envisaged.

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