Introduction
Scope of power
Key guarantees of independence
Effectiveness subject to doubts


Introduction

A new independent institution, the High Authority for Transparency in Public Life, was created by an organic law(1) and an ordinary law,(2) both enacted on October 11 2013. It aims to strengthen financial reporting requirements for ministers, parliamentarians, other elected representatives and non-elected high-ranking officials.The high authority replaces the Commission for Financial Transparency in Political Life, which was created 25 years ago. It is designed to receive, review and publish declarations submitted by national elected representatives and other public officials in accordance with new disclosure requirements.

Scope of power

The high authority is composed of nine members, who are appointed according to the principle of gender parity and include six high-level magistrates from the Civil Supreme Court, the Administrative Supreme Court and the Court of Auditors.

The high authority is designed to examine financial submissions and statements of interests which public officials(3) submit at the beginning and end of their term. A large number of individuals are subject to these disclosure requirements. The new legislation primarily targets individuals elected in regional, national and European elections. Its scope extends to individuals holding non-elective office who are regarded as active participants in public life, including:

  • all members of the government;
  • collaborators of the president of the National Assembly;
  • the president of the Senate;
  • the president of the republic; and
  • members of independent national authorities.

The high authority will publish declarations of interest online. Financial statements which were initially intended to be published will be available for consultation at the relevant prefecture only by individuals registered on electoral lists.

Compared with the former commission, the high authority has been granted extensive powers to carry out its oversight mission. The high authority can:

  • request assistance from tax authorities, which have extensive power to request and collect financial information, including from banks;
  • receive ethical questions from government members and issue opinions;
  • seek information directly from public officials and issue injunctions in case of delayed or incomplete statements, or when public officials fail to answer requests for further information; and
  • issue injunctions against public officials to end a contentious situation when a conflict of interest has been established.

In the event of unjustified variation in a public official's financial situation, the high authority is entitled to and must refer the case to the public prosecutor's office.

Further, the new legislation provides that a public official who neglects to report a substantial part of his or her assets or interests, or who reports a false valuation of assets, is criminally punishable. A violation of the reporting obligation is subject to three years' imprisonment and a €45,000 fine.

Regarding members of Parliament specifically, the high authority is obliged to communicate the file to the managing office of the relevant assembly at the time that it transfers the file to the public prosecutor.

The prime minister, president of the Senate, president of the National Assembly and anti-corruption organisations also have the right to refer allegations to the high authority. Anti-corruption organisations will first need to be habilitated by the high authority, according to criteria set by the authority in its internal regulations.

The high authority also has self-referral power, which contributes significantly to establishing its independence. When the high authority receives evidence of a public official violating his or her obligations regarding conflicts of interest and financial reporting, it may review the situation without waiting for the prime minister or another competent authority to refer the case.

The high authority is set to publish a special report in the Official Gazette about the economic situation of public officials subject to the new legislation. Certain information will not be included in the report as a matter of privacy protection (particularly, personal information relating to the families of public officials).

Key guarantees of independence

The high authority presents some of the generally recognised features of independent bodies, particularly regarding composition and financial procedures. The executive, judiciary and legislature all participate in the appointment of high authority members through collegial votes to avoid individual allegiances. The following rules of appointment apply:

  • members serve a non-renewable six-year term; and
  • individuals who have been subject to the financial reporting requirements set out in the new legislation within the past three years may not be appointed;

The high authority also:

  • has its own budget;
  • defines its own internal regulations and organisation; and
  • may hire staff.

Nonetheless, the president of the high authority, the only full-time member and the key figure of the institution, is appointed directly by the president of the republic, subject to no specific legal criteria. Additionally, while the high authority has financial autonomy, its chief accountant responsible for reviewing and executing expense orders also serves in the prime minister's office, thus subjecting the authority's budget to a level of oversight by the executive.

Effectiveness subject to doubts

Overall, the creation of the high authority complements the new ensemble of transparency mechanisms recently adopted in France. Nevertheless, its effectiveness is yet to be proved.

In its last annual report,(4) the Commission for Financial Transparency in Political Life highlighted a number of shortcomings in how the high authority has been designed. The commission stressed that the high authority's access to information held by tax authorities is unnecessarily restricted. In fact, the high authority may only submit requests for information to tax authorities, which may exercise discretion regarding the information that they provide in response. Additionally, such requests may be made only for government and Parliament members and not other public officials.

The commission also noted that the high authority would have gained efficiency in its investigating powers if it had been given the ability to access documents kept in professional premises, with the consent of public officials, as is sometimes the case for other independent administrative authorities.

More generally, sufficient human and financial resources, as well as the willingness of tax authorities to cooperate, will be essential to the high authority's success in carrying out its mission.

For further information on this topic please contact Philippe Blaquier-Cirelli or Sârra-Tilila Bounfour at DLA Piper by telephone (+33 01 40 15 24 84), fax (+33 01 40 15 24 03) or email (philippe.blaquiercirelli@dlapiper.com or sarra-tilila.bounfour@dlapiper.com).

Endnotes

(1) Organic Law 2013-906, October 11 2013. See www.legifrance.gouv.fr/affichTexte.do;jsessionid=E21E5CA640CFB630738955187E9C5553.tpdjo06v_1?cidTexte=JORFTEXT000028056223&dateTexte=20140604 (in French).

(2) Ordinary Law 2013-907, October 11 2013. See www.legifrance.gouv.fr/affichTexte.do;jsessionid=B239611D9D40D455F71361FE92012882.tpdjo06v_1?cidTexte=JORFTEXT000028056315&dateTexte=20140604 (in French).

(3) Id, Articles 9 to 11.

(4) Sixteenth report by the Commission for Financial Transparency in Political Life, December 12 2013. See www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000028320470 (in French).