Decree No. 2020-69 of January 30, 2020 with the amendments of February 4, 2020 substitutes previous Decree No. 2017-105 of January 27, 2017 and is aimed at regulating the restrictions provided for by articles 25.7 (secondary job) and 25.8 (moving from the private sector to the public one and from the public sector to the private one) of Law No. 83-634 of July 13, 1983 “On the Rights and Obligations of Public Servants” (Loi n°83-634 du 13 juillet 1983 portant droits et obligations des fonctionnaires, hereinafter referred to as the Public Service Law).
The Decree applies to:
- the public servants and municipal employees, the employees of public entities, listed in article 2 of the Public Service Law;
- the individuals who are agents of a public body, an organization or an entity in accordance with a contract as stipulated in part II of article 25.9 and in article 32 of the Public Service Law;
- the members of the Cabinet of Ministers, employees of the Executive Office of the President and the employees of the offices of the territorial governments;
- the employees of the health organizations listed in parts 1-4 of article L.6152-1 of the Code of Public Health.
The document includes three main parts: the first one is focused on the control before the appointment, the second one is dedicated to the engagement in other remunerated activities at the time of employment and the third one is about the restrictions applicable after the resignation.
According to Part I, the individual who was engaged in commercial activities for a period of three years before the appointment to a position that requires the submission of the declaration of assets, to the managerial positions listed in part V of article 25.8 of the Public Service Law, to the positions of the members of the Cabinet of Ministers and the employees of the Executive Office of the President, is subject to the verification of a possible conflict of interest. To this end, the respective body should measure the risk that the engagement in such an activity would jeopardize a diligent, independent and impartial performance of duties by the indicated individual, would induce him/her to violate the ethical norms provided for by the law or to commit a crime stipulated by article 432-12 of the French Criminal Code (present or continued interest, whether direct or indirect, of an individual, holding a position in the public service, in a commercial entity or a specific contract). In the follow up to this analysis a decision on whether the appointment to the position may be made (proper or with temporary restrictions after the appointment such as a ban on engaging in a commercial relationship with the organization that was an employer of the individual) or not due to the conflict of interest.
Part II provides the public servants with the opportunity to engage in other remunerated activities at the time of their employment: in spite of the fact that the Public Service Law prohibits this kind of activity, article 11 of the Decree provides for an exhaustive list of the cases when a public servant can get permission to have a secondary job. Among the permitted activities there are, in particular:
- educational and training activities;
- sports and cultural activities, including the organization of events in the realm of sports, culture and public education;
- agricultural activities;
- joint partnerships in the area of craft business, trade or the profession mentioned in article R.121-1 of the Commercial Code;
- sale of personally produced goods and others.
In order to get the permission a public servant should notify the competent body. The notification should include the information about the potential employer, the character of activity, nature, duration, frequency of and conditions for getting the remuneration for this activity. A decision on whether to permit the engagement in such an activity with possible reservations and recommendations is to be taken within a month.
Part III of the Decree provides for the obligation of the individuals that intend to get an employment in the private sector after their resignation from the public service to accordingly notify the competent body prior to the start of that activity. In the event that there are serious doubts that the planned activity is compatible with the functions that the official has been performing for the last three years (i.e. if there is evidence of a conflict of interest), he/she may be denied the movement to the respective commercial organization.
The individuals that have got an employment in the private sector are obliged to notify the respective body (the former employer) about their every new employment within three years after having resigned prior to the start of each activity.
The control over the compliance with the set restrictions and the relevant decision-making functions are granted to:
- the High Authority for Transparency in Public Life (Haute Autorité pour la Transparence de la Vie Publique, HATVP) in the case of managerial positions listed in part V of article 25.8 of the Public Service Law, the members of the Cabinet of Ministers and the employees of the Executive Office of the President. The HATVP substituted the Public Service Ethics Commission (see Law No. 2019-828 of August 6, 2020 “On the Transformation of the Public Service”, Loi n°2019-828 du 6 août 2019 de transformation de la fonction publique);
- the respective body or organization that may consult the HATVP if needed in the case of other categories of officials.
The movement from the public sector to the private one, the so call pantouflage (from the French pantoufle meaning slipper), and the subsequent return from the private sector to the public service - rétro-pantouflage – are common practice in France. For instance, the 2018 report on Revolving Doors and the Fossil Fuel Industry, commissioned by the Greens/EFA Group in the European Parliament, cites multiple examples of the movement of French officials from the public sector to the private one and the other way round (see pp.60-73). There is an example of Ahlem Gharbi who was working for Total, a major French company, between 2015 and 2017 where she was Deputy Vice-President for International Affairs and after that she became the Advisor for North Africa and the Middle East to French President Emmanuel Macron. In 2019, a year and a half later, Ms Gharbi left the Executive Office of the President and took up the post of the Director for Partnerships in the French Development Agency, which finances the development projects in the least developed countries also in Africa and the Middle East.
At the same time the control over such movements remains insufficient. The Senate stressed in its 2019 report on the reform of the public service that the control over the “revolving door” in the country is regular but inefficient and 62 per cent of the notifications of the individuals who intend to engage in commercial activities is automatically approved because of the lack of time for their processing and comprehensive assessment. The fact that this problem exists is proved by a series of big scandals linked to the movement of high-level officials to high-wage positions in commercial organizations. For instance, last January some activists organized a protest outside the Ministry of Economy and Finance against the appointment of Jean-François Cirelli, a former high-level official of the Cabinet of Ministers, to the position of the President of the BlackRock investment fund, symbolically throwing slippers at the ministerial palace.
It is assumed that the transfer of the control functions in relation to the high-level officials to the HATVP, as per the Decree, will permit to pay due attention to each case of their movement between the public and the private sectors. In addition, the Public Service Ethics Commission was subject to the authority of the Prime-Minister and the Directorate General for the Administration and Public Service (Direction Générale de l'Administration et de la Fonction Publique, DGAFP) meanwhile the HATVP is an independent body, which will ensure greater impartiality of its decisions.