Protect Against Conflicts of Interest (FR0026)

STAKES The importance given to public officials’ exemplary behavior in their day-to-day actions for the general interest is an eminent element of the French republican model. The transposition of measures on the transparency in public life, to public agent, will further expand exemplarity within the civil service and obligations contained in the general statute of civil servants. A system will also be introduced to protect civil servants acting in good faith to report the existence of a conflict of interest.

CONTEXT & AIM
More than thirty years after the enactment of the July 13th 1983 Bill, the bill on ethics and the rights and obligations of officials36 , when adopted, will update and complement the main fundamentals of the general statute of officials. In particular, it aims to apply to civil servants and members of administrative and financial jurisdictions, mechanisms on the prevention of conflicts of interests detailed in the bill on transparency in public life. The most exposed officials and administrative and financial magistrates will thus be required to complete declarations of interests before their appointments. Information on their assets will be passed on to the High Authority for Transparency in Public Life. An obligation to prevent and to resolve any conflict of interest will also be instituted. An offset mechanism has been put in place and a “management mandate” system will become mandatory for agents particularly concerned. Finally, a protection mechanism has been introduced in the general statute of officials to allow an agent acting in good faith to report the existence of a conflict of interest without fear of reprisals. The bill thus consecrates the active role to be played by each official and non-permanent agent under public law in the prevention of conflicts of interest: each agent is to act as the first guardian of ethical principles inherent to a civil servant position. This accountability of each public agent in the prevention of conflicts of interest complements an approach which, until now, has been under the sole responsibility of higher authorities of agents exposed to risk.

ROADMAP
• Appoint an official, a service, or a legal entity under public law to provide agents under their authority with all relevant advice in respect of ethical obligations and principles
• Introduce legal provisions to better prevent conflicts of interests and to protect civil servants
- Put in place a system for agents responsible for certain functions to declare their interests
- Reinforce and widen the area of competence of the ethics committee, which will be expanded to include the prevention of conflicts of interest and reinforced in the area of the control of civil servant’s transitions to the private sector
- Introduce a protection mechanism in the general statute of officials, so as to allow an agent acting in good faith to report the existence of a conflict of interest without fear of reprisals

✪23. Empowering and protecting public officials in preventing conflicts of interest

Commitment Text:

ROADMAP

§ Appoint an official, a service, or a legal entity under public law to provide agents under their authority with all relevant advice in respect of ethical obligations and principles

§ Introduce legal provisions to better prevent conflicts of interests and to protect civil servants

- Put in place a system for agents responsible for certain functions to declare their interests

- Reinforce and widen the area of competence of the ethics committee, which will be expanded to include the prevention of conflicts of interest and reinforced in the area of the control of civil servant's transitions to the private sector

- Introduce a protection mechanism in the general statute of officials, so as to allow an agent acting in good faith to report the existence of a conflict of interest without fear of reprisals

Responsible Institution: Ministry of Public Action and Accounts

Supporting Institution(s): N/A

Start date: Not specified 

End date: Not specified

Commitment Aim

This commitment aimed to update the ethical rights and obligations of civil servants and to strengthen preventive measures against conflicts of interests. The commitment builds on recent efforts to reinforce transparency, such as the laws on the transparency in public life adopted 11 October 2013. The commitment has three main objectives: (i) assisting civil servants with ethics advice; (ii) extending interest and asset declaration obligations; and (iii) introducing a whistleblower protection mechanism. The commitment creates an ethics advisor in all ministries and expands the ethics commission's authority to ensuring stability in these new positions and creating a new advisory role regarding codes of conduct for public services. This commitment promises legal innovation: modifying the statute for civil servants to emphasise six core values (dignity, fairness, integrity, probity, neutrality, and separation of church and state); introducing preventive measures against conflicts of interest; and widening whistleblower protection over officials reporting conflicts of interest.

Status

Midterm: Complete

This commitment was complete by the midterm. The promulgation of Law n°2016-483 in April 2016 on the ethics, rights, and duties of civil servants contains provisions on: (i) the definition of a conflict of interest and civil servants' duties to prevent them; (ii) the extension of whistleblower protection over conflicts of interest; (iii) the mandatory declaration of assets and interests for certain high-level civil servants; (iv) the extension of the ethics commission's authority to ensure stability in ethics-code advising to public services; and (v) the creation of an ethics advisor position in all national and local administrations. The midterm report could not assess the implementation of the law since it fell outside its timeframe. Decrees n° 2016-1967, n° 2016-1968, n° 2017-105, and n° 2017-519 specify how the law will be implemented. For more information, please see the IRM midterm report.^{[Note164: Independent Reporting Mechanism, France Rapport D'ètape (OGP, 2017), https://www.opengovpartnership.org/wp-content/uploads/2001/01/France_Progress-Report_2015-2017.pdf.]}

According to the government self-assessment, the government considers the first milestone of its roadmap (ethics advisors) to be complete. The second milestone, comprising civil servants' declarations, the extended authority of the ethics commission, and the protection of whistleblowers to be substantially implemented. The government issued four decrees detailing how the law will be implemented.

Decree n° 2017-519, introducing ethics advisors in national and local administrations, specifies that the ethics advisor can be (i) one or several individual(s) presently or formerly working for the administration; (ii) a committee of individuals internal or external to the administration whose prerogatives are set by the head of the administration; or (iii) a sharing of the function between several administrations. The IRM researcher did not find sufficient public information to assess if these ethics advisors were nominated by the time of this report (September-October 2017).

Decrees n° 2016-1967 and n° 2016-1968 provide a list of targeted civil servants, such as managing directors of national administrations, ministerial procurement officers, and general secretaries for regional affairs, who are required to declare interests and assets.^{[Note165: Decree 2016-1967, chapter 1 and articles 1 – 5 of Decree 2016-1968.]} The High Authority for the Transparency of Public Life (HATVP) notes that the key change in the April 2016 law is the establishment of obligations and control mechanisms proportional to the degree that civil servants are exposed to conflicts of interest. The 11 October 2013 law requires elected officials to file their declarations with the HATVP; the 20 April 2016 law makes the requirement more personal, requiring officials to file their declarations with their superior and are only to be sent to the HATVP in case of doubt.^{[Note166: Gabriel Poifoulot, Probité de la vie publique : vers une harmonisation du cadre déontologique applicable à l'ensemble des responsables publics (HATVP, 28 Jul. 2016), http://www.hatvp.fr/presse/vers-une-harmonisation-du-cadre-deontologique-applicable-a-lensemble-des-responsables-publics/ (accessed 11 Sept. 2017).]} The law also authorised the HATVP and the Ethics Commission to exchange information, and leaders of these agencies signed a protocol to reinforce their collaboration on 27 September 2017.^{[Note167: HATVP, La Haute Autorité et la Commission de déontologie renforcent leurs relations (HATVP, Sept. 2017), http://www.hatvp.fr/presse/la-haute-autorite-et-la-commission-de-deontologie-renforcent-leurs-relations/.]}

Decree n° 2017-105 extends the responsibilities and competences of the Ethics Commission and modifies its composition. As a result of this decree, the Ethics Commission is now authorised to examine public official leaving public service to work in the private sector, the competitive public sector (service public concurrentiel), or to start their own company. The examination of these cases by the Ethics Commission is now mandatory, following which, the commission gives a judgment within two months.^{[Note168: Commission de déontologie de la fonction publique, Rapport d'activitié 2015 Accès des agents publics au secteur privé Rapport au Premier minister (accessed 11 Sept. 2017), https://www.fonction-publique.gouv.fr/files/files/publications/coll_outils_de_la_GRH/deontologie/2015-rapport-deontologie.pdf.]} This judgement is mandatory if the commission expresses reservations or judges the case to be incompatible with ethical standards.^{[Note169: Les centres de gestions de la fonction publique territoriale de Bretagne, Analyse détaillée de la loi déontologie Impacts statutaires – FPT (10 Oct. 2016), https://portail.cdg35.fr/beacdf17e90166e1ba64332030865eexy/iedit/11/76162_105288_fi_deontologie_Mutualisee_V6.pdf (accessed 11 Sept. 2017).]} The new law also prolongs the timeframe for direct referral (auto-saisine) by the commission. In addition, the commission is now allowed to request from private and public persons all the documents and information it deems necessary for its work. In its 2015 annual report, the Ethics Commission comments on the new law and regrets that certain lucrative activities undertaken by civil servants remain out its realm of control, namely those with micro-enterprise status (formerly auto-enterprise).^{[Note170: Commission de déontologie de la fonction publique, Rapport d'activitié 2015 Accès des agents publics au secteur privé Rapport au Premier minister. Since 2016, full-time civil servants cannot be involved in micro-enterprises, with a few exceptions like consulting projects or teaching.[Note171: More information can be found here: https://www.legalstart.fr/fiches-pratiques/autoentrepreneur/fonctionnaire-autoentrepreneur/.]}

Regarding whistleblower protection, the new 2016 law states that no measures can be taken as reprisal against an official who reports facts that could constitute a conflict of interest – a protection that previously only concerned the reporting of criminal offenses.

Did It Open Government?

Access to Information: Did not change

Public Accountability: Major

When France joined OGP, the government initiated a series of reforms to increase transparency in public life but the ethical rights and obligation of civil servants required updating. There was no definition in the general statute of civil servants of what constituted a conflict of interest and whistleblowers reporting conflicts of interest were not protected.

Adoption and implementation of Law n° 2016-483 on the ethics, rights and duties of civil servants clarified ethical standards in the public sector and, as such, contributed to opening government regarding public accountability, but the developments remain limited in scope. There is now a definition of “conflict of interest” and the new legal framework creates obligations and control mechanisms proportional to the risk that civil servants are exposed to conflicts of interest. Through ethics advisors, a mechanism is legally provided to help civil servants understand and deal with ethical problems. However, the absence of information on the mechanisms proposed to protect whistleblowers, the vagueness as to the prerogatives and training of ethical advisors, and the obscure modification of the Ethics Commission make it difficult to assess implementation at this stage. The IRM researcher did not find any information on how these developments specifically affect the composition and resources allocated to the commission which could represent a risk of undermining the work of the commission. Therefore, this commitment is considered to have contributed to a major, rather than an outstanding, opening of government practice in this area.

The commitment was also coded as relevant to access to information. However, most activities constituted internal reforms with no additional information available to the public. Though some civil servants will be required to declare their interests and assets, this information will not be published as the declarations are addressed to their superiors and to the HATVP only if necessary. Therefore, the IRM researcher finds government practice, in terms of increasing access to information in this area, was not changed.

Carried Forward?

This commitment was not carried over to the next action plan. The new action plan however contains a commitment on increased transparency of lobbying.

Theme V: Open Government for Climate and Sustainable Development