LOBBYING IN FRANCE

Authors: Jean- Luc Soulier and Geoffroy Lacroix (Soulier AARPI)

Constitution : France is a civil law system, which means it places a greater emphasis on parliamentary laws and regulations, as found within various codes, than on case law. The primary source of law is the laws passed by Parliament. There are also regulations that are issued by the executive branch. Parliament can only legislate on a limited number of subjects that are primarily listed in article 34 of the Constitution. All matters that are not explicitly reserved to Parliament fall within the responsibility of the executive branch. Regarding the regulation of lobbying and government relations, Parliament has the power to pass laws and the government has the power to take implementing measures. In any case, parliamentary laws and regulations must comply with the Constitution (which includes the 1789 Declaration of the Rights of Man and of the Citizen) and international treaties, including the European Convention on Human Rights. French law ensures the right to petition the National Assembly and the Senate, the Economic and Social Council and the territorial collectivities.

Legislative system: The Parliament is made up of the National Assembly and the Senate, and both chambers pass laws. Each chamber conducts legislative sessions at a separate location in Paris. The National Assembly (the lower house) includes 577 members who are elected by direct universal suffrage with a two-round system by constituency, for a five-year mandate, subject to dissolution. The Senate (the upper house) includes 348 senators who are elected by indirect universal suffrage by a panel of ‘electors’, for a six-year mandate. Regulatory power is generally exercised by the Prime Minister, who may delegate the exercise of this power to his or her ministers. Regulatory agencies and territorial collectivities are also vested with regulatory powers.

National subdivisions: France is divided in territorial collectivities, which include regions (divided into departments and then into communes), overseas collectivities and other collectivities with a specific status. They have regulatory power in specific areas (mainly urbanism, housing and environment for the communes, social welfare for the departments, and economic development, planning and transport for the regions). They also collect local taxes.

Consultation process: There are several consultation processes available under French law, the most significant being the referendum requiring the public to vote on a draft law or regulatory act (either at the national level for legislation or the local level for regulation), the consultation (the government, the territorial collectivities and the public institutions have the possibility to organise a public consultation on www.viepublique.fr prior to the adoption of a regulatory act) and receiving public enquiries on any major project in order to collect comments.

Judiciary: The judiciary is deemed independent. The courts in France are divided into two types: the judicial courts (those dealing with criminal and civil law); and the administrative courts. Procedures for the appointment, promotion and removal of judges vary depending on whether it is for the judicial or the administrative courts. As an exception, there are elections for some specific courts, such as the commercial and labour courts, for which there is no significant campaign activity.

General: Lobbying activities towards public authorities are subject to transparency and control regulations under the Law on Transparency in Public Life (No. 2013-907 dated 11 October 2013), as amended by the Law on Transparency, Anti-Corruption and Modernisation of Economic Life (No. 2016-1691, known as Sapin II, dated 9 December 2016). An independent administrative authority, the High Authority for Transparency in Public Life (HATVP) is in charge of enforcing ethical obligations, preventing conflicts of interests, counselling and advising public officials or administrations, and promoting transparency in public life. Upon request of an association, a public official, a representative of interests (ie, a lobbyist) or, on its own initiative, the HATVP, has powers to force the production of any relevant document to accomplish its objective. Upon request to the liberty and custody judge of the Paris Court of First Instance, the HATVP may also carry out verifications on-site. Whenever it finds that a representative of interests has violated its obligations (reporting, integrity, etc), the HATVP may summon the representative of interests to respect its obligations. The HATVP may also address to any public official who has been in contact with the breaching representative of interests a confidential opinion advising him or her of the situation.

Definition of lobbying: Under the Law on Transparency in Public Life, as amended by Sapin II, the notion of lobbying derives from the definition of ‘representatives of interests’, which means any private legal person, public entity or public group exercising industrial and commercial activities, or any craftsperson, whose executives’, employees’ or members’ main or recurring activity consists in influencing public decisions, in particular the content of a law or of a regulatory act, by making contact with any of the public officials listed in the Law on Transparency in Public Life .

Registration and other disclosure: A representative of interests must register to a unique register (the Register) established by the HATVP, within two months of the date it fulfils at least one of the conditions set by the Law on Transparency in Public Life (ie, when lobbying accounts for more than half of its activity or when it has had at least 10 instances of contact with a public official over the past 12 months). If any of its information changes, the representative of interests shall update it on the Register within a month. The Register is common to the government, the Senate, the National Assembly and the territorial collectivities.

Activities subject to disclosure or registration: The scope of activities subject to registration covered by the Law on Transparency in Public Life applies to any representative of interests who attempts to influence a public official mentioned in the list of specific persons, including, without limitation, government members, members of ministers’ offices, Members of Parliament, collaborators of the President, political advisers and administrative entities’ directors, and local public servants. Pursuant to Decree No. 2017-867 on the Electronic Register of Representatives of Interests dated 9 May 2017, any representative of interests must disclose to the Register all the actions it has taken to influence a public official, in particular:

• organising informal discussions or face-to-face meetings;
• arranging an interview with a public officer at the request of a third party;
• inviting people to or organising events, meetings or promotional activities;
• establishing a regular correspondence (by email, mail, etc);
• sending petitions, open letters and leaflets;
• organising public debates, marches and strategies of influence on the internet;
• organising hearings, formal consultations on legislative acts or other open consultations;
• providing suggestions to influence the drafting of a public decision; and
• communicating information and expertise to public officials with the aim of convincing them.

Entities and persons subject to lobbying rules: A representative of interests is considered to be any private legal person, public entity or public group carrying out industrial and commercial activities or any craftsperson, whose executives’, employees’ or members’ main or recurring activity consists of influencing public decisions, including the content of one or more legislative or regulatory measures, by making contact with a public official listed in the Law on Transparency in Public Life . The representative of interests may either lobby for itself or for a third party. The Decree on the Electronic Register of Representatives of Interests further clarifies the practical scope of the representation of interests by providing that a representative of interests is considered as having a main or recurring lobbying activity when lobbying accounts for more than half of its activity or when it has had at least 10 instances of contact over the past 12 months with a public official mentioned in the Law on Transparency in Public Life. The above-mentioned Law also applies to non-profit organisations, associations and professional unions. However, the Law excludes from its scope of application any elected persons, political parties, specific professional unions and any religious associations.

Lobbyist details: Any representative of interests must disclose specific information to the Register, including its identity if it is a natural person, or when it is a legal person: the identity of its executives and of the people in charge of the representation of interests within the entity; the field of its representatives of interests’ activities; the actions taken towards the public officials mentioned in the Law on Transparency in Public Life and the amount of expenditure dedicated to these actions; the number of persons employed in the representation of interests; its sales revenue for the previous year; the professional federations or associations in relation to the interests represented and of which the representative of interests is a member; and, if it is representing a third party, the client’s identity.

When the representative of interests is a natural person he or she must register on the HATVP’s website. Whenever the representative of interests is a legal person, a natural person must be appointed as the operational contact to proceed with the registration. Upon the initial registration, the operational contact may then designate one or more other contacts responsible for the production of the relevant information required by the HATVP.

Content of reports: Any representative of interests must provide, at the latest three months after the end of its fiscal year by electronic means to the HATVP, specific information concerning the previous year, including:

• the nature of the public decisions that its actions were targeted towards;
• the type of actions taken;
• the subjects of the actions, identified by their object and field of intervention;
• the categories of public officials mentioned in the Law on Transparency in Public Life with whom it had contact;
• if applicable, the identity of the third parties for whom the actions were performed;
• the amount of expenditure it dedicated to representation activities for the year; and
• if applicable, the amount of the sales revenue of the previous year derived from its representation activities.

Financing of the registration regime: The Register is the responsibility of the HATVP, which is an independent administrative authority (ie, it acts on behalf of the state but is not subject to the government’s authority). As such, it is affiliated to the government for budget matters but has financial autonomy. The registration system depends on public funding.

Public access to lobbying registers and reports: The Register is freely accessible on the HATVP’s website to any user. For each representative of interests, the HATVP makes a document available that includes all the information the representative of interests has provided. The information provided by a representative of interests to this Register remains public for five years.

Code of conduct: The Law on Transparency in Public Life provides guidelines that any representative of interests must commit to respecting during the course of its activity. In particular, it provides that it shall, in all circumstances, behave with probity and integrity, and, in particular, it must:

• declare its identity, the organisation for which it works and the interests or entities it represents in its relations with the public officials mentioned in the Law on Transparency in Public Life;
• refrain from proposing or giving to public officials any presents, gifts or benefits of any significant value;
• refrain from paying any remuneration to employees of the President, members of ministers’ offices and employees of a member of the National Assembly, senator or parliamentary group;
• refrain from inciting these persons to violate the ethical rules applicable to them;
• refrain from engaging in any action with these persons to obtain information or decisions by fraudulent means;
• refrain from obtaining or attempting to obtain information or decisions by deliberately communicating to these persons erroneous information or by resorting to manoeuvres designed to deceive them;
• refrain from organising colloquia, demonstrations or meetings, in which the methods of speaking by public officials mentioned in the Law on Transparency in Public Life is linked to the payment of a remuneration in any form whatsoever;
• refrain from using, for commercial or advertising purposes, the information obtained from a public official mentioned in the Law on Transparency in Public Life;
• refrain from selling to third parties copies of documents from the government, an independent administrative or public authority, or from using the letterhead and the logo of these public authorities and administrative bodies; and
• strive to comply with all the rules provided by the Law on Transparency in Public Life in their relations with the direct entourage of public officials.

According to the Law on Transparency in Public Life, guidelines related to the conduct of representatives of interests may be further detailed within a code of deontology issued following a Decree of the Council of State. At the time of writing, no code of deontology has been set.

In addition, pursuant to the Law on Transparency in Public Life, on 31 May 2017, the Senate adopted a new code of conduct applicable to the relations between the representatives of interests and senators. The National Assembly’s 2016 Code of Conduct applies to the relations between representatives of interests and a member of the National Assembly.

Media: The French media is diversified, primarily because of the end of the state monopoly in 1982. Most media outlets are owned by private economic interests.

The independence and the pluralism of the media are principles of French law. However, the law strictly regulates the advertising and communication developed in the media around products from specific industries, including tobacco, alcohol and medicine.

General: In France, political parties are funded by private and public resources. Private resources include subscriptions of political parties’ members and private donations. These donations can only be made by individuals and are capped at €7,500 per individual (€15,000 per tax household) per year. Public resources are subject to certain conditions, in particular to a certain amount based on the votes expressed for each political party whose candidates reach at least 1 per cent of expressed votes in a legislative election, as well as to a certain amount based on the number of parliamentarians from the relevant political party sitting in the National Assembly and the Senate (around €40,000 per elected representative).

Elected representatives’ revenues (which include benefits in kind) are capped, no matter how many mandates they hold. In practice, elected representatives usually grant between 10 per cent and 30 per cent of their revenue to their political party.

Registration of interests: In France, members of the National Assembly and senators, ministers and elected representatives must solemnly, exhaustively and sincerely declare their financial situation, as well as the financial situation of their spouse and all assets held in joint tenancy. They must also disclose their interests, which may arise in relation to their own or to their spouse’s professional activity, to the shares they hold in any company, to the board of a company or to any volunteer activities likely to cause a conflict of interest. This declaration is reviewed and published by the HATVP.

Contributions to political parties and officials: Political contributions to parties and political officials are regulated and limited .

Source of funding of political campaigns: In France, funding comes from individuals’ donations, political parties’ donations and personal loans. Individuals’ donations are capped at €4,600 per individual and per election. Political parties’ donations are capped at €7,500 per year and per political party. Only personal loans are not capped. For all elections, each candidate has to name a financial agent, who will hold an account register that lists every source of funding. This account register is then certified by a chartered accountant and verified by the French National Commission for Campaign Accounts and Political Financing.

Lobbyist participation in fundraising and electioneering: French law forbids any lobbyist participation in fundraising and electioneering. According to the Electoral Code, legal entities, except political parties or groups, may not contribute to the financing of a political campaign by providing grants in any form or by providing goods, services or other direct or indirect benefits at prices lower than those usually applied.

Independent expenditure and coordination: In France, individuals or groups not directly related to or controlled by a candidate or political party may operate a parallel media advertising or grass-roots campaign to support (or oppose) a candidate, either by speaking online, writing a book or talking on a radio show. They can be political analysts, researchers, authors or journalists. The main limitation results from the French Superior Council of Audiovisual, which regulates the amount of broadcast time that is provided to each candidate, and the speaking time of candidates and parties during the election period.

Gifts, travel and hospitality: According to the National Assembly’s Code of Conduct, gifts that may cause a conflict of interest and whose value exceeds €150 received by members of the National Assembly must be disclosed to the Compliance Officer of the National Assembly, who may decide to put them in escrow. According to the Senate’s Code of Conduct, gifts, donations, benefits in kind and externally funded invitations whose value exceeds €150 received by senators must be disclosed either to the delegation in charge of the conditions governing the exercise of the mandate of the senator or to the delegation in charge of international activities. All gifts received by the President during his or her term of office are kept in Paris, in a facility called Alma Storage. At the end of his or her five-year term, the pieces of art are disseminated in French museums. Each gift is registered with the name of the donor, the place where it was given and the circumstance of the gift.

Anti-bribery laws: French anti-bribery regulations have been significantly strengthened by Sapin II, which provides for the expansion of French jurisdiction over acts of corruption committed abroad, the creation of an anti-corruption agency, whose role is to monitor the implementation of anti-corruption compliance programmes (now mandatory for certain companies), and the extension of whistle-blower protection. Regarding the activity of representatives of interests, Sapin II has amended the Law on Transparency in Public Life by introducing guidelines that any representative of interests must commit to following during the course of its activity. These guidelines stipulate that a lobbyist shall refrain from proposing or giving to public officials any presents, gifts or benefits of any significant value and refrain from paying any remuneration to employees of the President, members of ministers’ offices and employees of a member of the National Assembly, deputy, senator or parliamentary group. In France, government contracts are strictly regulated. A transparent, fair, equitable and non-discriminatory process must be followed to select a government contractor. Depending on the purpose and estimated value of the contract, public procurement is subject to a specific process and advertising, in order to avoid bribery and comply with competition rules.

Revolving door: The Law on Transparency of Public Life forbids any former government member to join private companies he or she worked with during his or her term of office. The HATVP ethically controls any departure to the private sector. Working in the private sector after having served as a public agent for years is strictly regulated in France and controlled by the Ethics Commission of Public Service, which must first give its opinion on the compatibility of such career change. Former public agents may not carry out a private activity, if the activity jeopardises the dignity of their previous functions, if it may call into question the regularity, independence and impartiality of the public service, if it does not comply with the ethical principles of public service, and if it can lead to illegal acquisition of interest.

Prohibitions on lobbying: According to the Electoral Code, legislative representatives are barred from lobbying during their term of office. There is no specific prohibition for senators, but they are barred from any consulting activity and from running certain companies (including those linked to the state) during their term of office.

Recent cases: No recent, relevant high-profile decisions.

Remedies and sanctions: As of 1 January 2018, any violation of the reporting obligation may be sanctioned by a fine of up to €15,000 and one year of imprisonment.