Today (March 2016) in France, the only existing instruments to control lobbying activities by private interests groups with decision makers are the National Assembly and Senate voluntary lobby registers. Those registers, besides being only used on a voluntary basis, are totally independent of each other, that is, no harmonization efforts have been made between the two chambers, making them totally ineffective.
The draft bill to fight against corruption and for the transparency of economic life, submitted by the Minister of finance Michel Sapin, is to be presented to the Council of Ministers on 23 March. This vast undertaking tackles issues of corruption within businesses, the creation of a status for whistle-blowers and the control of lobbying activities. It finally deals with the issue of lobby influence on public decision making, which has been too often set aside.
Therefore, this draft bill is the first substantial initiative with regard to lobby control. The proposal recognises, by being mandatory, that voluntary registers for lobbyists are utterly inefficient.
One of the objectives of this law is to control lobbyist activities with the executive (ministers, cabinets, high level civil servants, the Elysée), by means of a mandatory register and good practice rules to respect, upon pain of formal notices and fines. The High authority for public life transparency (HATVP) will be in charge of the application of such rules.
Lobbyists will have to make the identity of their clients public as soon as they get in contact with a policy maker. They will have to refrain from offering significant gifts, reselling government documents, organising conferences with paid speeches inside administrative buildings, encouraging decision-makers to break their ethical codes etc.
On the other hand, requirements for decision-makers are considerably lighter: they will only be asked to refrain from meeting non-registered lobbyists, except for in cases of “emergencies”. It is also worth noting that the presidency (Elysée) is exempt from those rules. Similarly, members of the Constitutional and State Councils, despite their great influence, escape those obligations.
One of the big weaknesses of the law is the absence of mandatory transparency on the amount of money spent on lobbying activities, which runs counter to National Assembly, Senate and Brussels rules. This lack of financial transparency prevents the possibility to shed light on inequalities of means between public and private interest defenders. In a law against corruption, it is all the more serious as there is just a short step between influence and corruption, as many scandals have shown.
Considering the current difficulties faced in condemning corruption, the HATVP would be able to send a formal notice to the lobbyists suspected of rules violations and impose fines of up to €30,000. Nevertheless, such a fine is ridiculously weak when one knows the financial issues at stake in the search for influence, and would not dissuade illicit lobbying practices.
As for state officials, sanctions are limited to the public disclosure of the infringement, and in case of serious allegations, the HATVP could prosecute. Unfortunately, we know too well the inefficiency of trials against policy-makers in cases of corruption, diversion of public money etc. Hence, we can legitimately consider those sanctions as too weak, and that responsibility of decision-makers is not considered sufficiently in this draft law.
Another important missing element in the draft bill is the traceability of people participating in hearings, consultations and sending policy contributions. No trace of exchanges or meetings would be available, which prevent any analysis of private influence on this or that decision-making process. This latter point is decisive, without which this law can only be a timid start towards real public life transparency.
An effective law would include the following elements:
- Disclosure of the approached decision-makers, date of exchanges, subjects of discussion, contributions made
- Disclosure of the amount of money spent on lobby activities.
Code of conduct:
- In order to avoid “revolving doors”, disclosure of private activities of civil servants or temporary agents whom have ceased their occupational activity temporarily or permanently
- Prevention of conflict of interests: incompatibility of a, possibly-salaried, business management or consultancy job with an elected office.
- Prohibition of access to administrative buildings to any lobbyist who received an official notice of infringement.
Unfortunately, none are currently included in Sapin's draft proposal.
For more information contact: Lala Hakuma Dadci, firstname.lastname@example.org Association Internationale de Techniciens, Experts et Chercheurs (AITEC)
UPDATE November 2016
The French Parliament passes the Sapin II law: a step forward?
The Sapin II law on economic transparency was voted by the French National Assembly on Tuesday 8 November 2016. The law contains certain steps forward regarding the regulation of lobbying: It provides for the establishment of a mandatory register for those representing interests before legislative bodies and the government; the High Authority for public transparency has evaluation and sanction powers in the event that lobbyists break the law. Breaking the rules is punishable by up to a year in prison and a fine of 15,000 euros.
But the law is missing several elements, and far from being sufficient, the laws failings almost outshine its positives.
Firstly the definition of interest representative poses a problem. In the text of the law, professional employers organisations will not be considered as lobbies, while associations defending human rights associations will be. This terminological difficulty creates a major flaw in lobby regulation, as some employer organisations, who are often listened to during the elaboration of public policy, outside of the meetings dedicated to social dialogue, will be able to convey their positions in complete opacity.
Furthermore, the transparency requirements of the register make it clear that they are very limited. For example, it is not required that lobbyists publish their positions or the arguments the used towards decision-makers or the interventions made which influence the drafting of rules. Additionally, the proposed register only covers the past activities of lobbyists (those of the preceding year), and not those in progress, which does not allow citizens or civil society as a whole to react in time. Finally, the origins of the finances of lobby groups do not form part of the register’s transparency requirements, which poses a large transparency problem.
On another note, the Sapin II bill, under Title II, transfers the responsibility of defining the rules relating to the regulation and conduct of parliamentarians to the offices of the two chambers, the National Assembly and the Senate, (linking with the Compliance officer put in place in 2011). This is a problem in several regards:
- There is an obvious conflict of interest in that parliamentarians define the rules which will be applied to them, and that it falls to the National Assembly, and not to an independent entity such as the HATVP, to adjudicate on situations of compliance failures on the part of the parliamentarians themselves;
Particularly, the rules should provide precise and restrictive elements regarding the functioning of the parliamentary clubs: interest groups which are external to the Parliament and public relations firms should not be authorised to create or drive them.
It is also worth noting that a fine of just 15,000€ is a ridiculous amount if the aim is to force lobbying firms whose financial figures are in the hundreds of thousands of euros, and even millions, to respect the law.
For citizens to be able to know the arguments and information sent by lobbies to their representatives and other decision-makers, and for the influence circles to come out of the shadows, it is imperative that citizens have access to this information, know which dossiers have been the object of third-party interventions, the budgets at their disposal, which decision-makers they meet and to say what. However the Sapin II law, as voted, still does not allow for real transparency in the activities of interest groups.
In addition to these limitations, nothing guarantees that the Sapin II law will lead to the implementation of the few steps forward that it seeks to introduce. Effectively, the application of the law requires relevant implementing decrees, for which the drafting process will take place after the May 2017 presidential elections. The political uncertainty allows for the prediction that the vote will not lead to implementation, and that the Sapin II law will remain just words on a page.
The need for lobbying regulation is therefore far from being resolved in France, which is why we must keep paying attention to what happens to Sapin II so that the meagre improvements that it represents are not widdled down to nothing. It is also necessary so that the debate continues in order that the system of public decision-making works in favour of the public interest, and not just in favour of industrial and financial lobbies.
See also our report on the influence of lobbying by the agricultural industry in TAFTA-CETA
You can also read the original article in French here: http://aitec.reseau-ipam.org/spip.php?article1590