Paris, 9 June 2016
After the ‘Sapin II’ Bill was examined by the French National Assembly from 6 to 9 June, some progress was made towards ensuring better protection for whistleblowers, fighting corruption and regulating lobbies. However, the text does contain a number of gaps which will need to be filled when the Bill is examined by the Senate. In particular, the rapporteur has opposed any provisions which would ensure the transparency which the President of the Republic promised regarding the influence of lobbies on public decision-making.
Anticor, BLOOM and Sherpa welcome the following improvements:
– Guarantees of independence have been introduced concerning the French Anticorruption Agency (irremovability of its head and non-renewal of the Sanction Commission’s mandate). The Agency’s members will have to submit a declaration of assets and interests, which will ensure the new Agency’s legitimacy. Moreover, thanks to the action of the Members of the National Assembly, approved associations will now be able to bring corruption cases before the Agency.
– A global protection status for whistleblowers has been created, whose efficiency will be guaranteed by the French ombudsman.
– Concerning lobby regulation, the Members of the National Assembly have added the President of the Republic, the Conseil d’Etat and the Constitutional Council to the list of public decision-makers targeted by lobbying. Lobbyists will now have to submit to the High Authority for the Transparency of Public Affairs a half-yearly activity report stating the amount of expenses incurred in their activity, as well as their ‘main’ sources of funding, although this adjective entails a subjective assessment of what falls within the scope of this provision. The Members of the National Assembly have also tightened the net around lobbying firms and individual lobbyists, against the rapporteur’s opinion. They will now have to report each of their clients’ budget.
Nevertheless, although these changes are a significant improvement, others are disappointing:
– A new definition of whistleblowers was introduced, but it does not cover all whistleblowers. Cases such as that of Antoine Detour remain outside its scope.
-The French Anticorruption Agency remains under the authority of the Ministries of Finance and of Justice, which constitutes a major risk to its independence raised by many Members of the National Assembly. Moreover, no ethical rules concerning the use of experts by the Agency are included in the Bill, when this could lead to revolving doors or conflicts of interest cases.
– A negotiated justice procedure was reintroduced. Such a mechanism cannot provide an appropriate response to the lack of efficiency of the justice system, which mainly stems from the prosecution’s lack of independence or from the insufficient human and financial means allocated to the fight against international corruption.
– Our organisations regret the frame of mind in which the debate on Article 13, concerning lobby regulation, was carried out. Although the rapporteur had stated that he would be open to his colleagues’ proposals, the discussions proved otherwise: out of 150 amendments examined during this reading, 126 received an unfavourable opinion from the rapporteur, and only 33 were passed (including 7 which had been put forward by the rapporteur himself, and one by the government). As a consequence, the system set up to regulate interest representatives resembles a Gruyere cheese which will allow lobbies to hide their activities, notably their influence over normative action, their arguments or certain sources of income.
The Bill does not include the MEDEF or trade unions among interest representatives, which will allow them not to declare their lobbying activities.
Moreover, it does not require interest representatives to report their normative proposals (including proposals for amendments, bills, decrees, etc.). Such measures were rejected by the rapporteur on the basis that ‘too much information would kill information’, or even create ‘opacity’. However, the aim of our proposals was to ensure that the workload fell on interest representatives instead of the Members of Parliament.
Lastly, the control and sanction system set up is too weak. One key improvement would be to make sanctions public.
Several aspects of the Bill should be reinforced by the Senate if it is to meet the ambitious aims of transparency, exemplarity and probity which it has set itself.
Anticor : Eric Alt, firstname.lastname@example.org
BLOOM : Claire Nouvian, email@example.com, 06 13 40 50 43
Sherpa : Lisa Rieux, firstname.lastname@example.org, 01 41 21 33 25 / 06 60 29 59 64
Notes for journalists:
BLOOM’s detailed analysis of the measures concerning lobby regulation : http://www.bloomassociation.org/loi-sapin-2-lanalyse-de-bloom/
Sherpa and Anticor’s positions on the French Anticorruption Agency and Negotiated Justice: https://www.asso-sherpa.org/nos-actions/projet-de-loi-sapin-ii-lutte-contre-corruptionLast modified: 17 December 2019