Strengthening the Transparency and Integrity of Foreign Influence Activities in France

4. Reinforcing integrity standards applicable to foreign influence activities in France

Abstract

This chapter examines the French integrity framework from the point of view of interactions between public officials and foreign influence actors. First, it makes recommendations on strengthening the integrity framework applicable to public officials and civil servants as part of a framework for foreign influence, and to persons acting on behalf of foreign state interests. The chapter also suggests ways in which the control of public/private mobility can be better adapted to the risks associated with foreign influence.

4.1. Introduction

In addition to a transparency mechanism for foreign influence, policies relating to the integrity of public officials must take the risk of foreign interference into account. Promoting a culture of integrity in the interactions between public officials and those engaged in foreign influence activities is also an important complementary element of the response to this risk. Transparency laws and regulations will never be able to cover all the grey areas and practices of influence. Interactions between representatives of foreign interests and public officials must therefore also be approached from the perspective of ethics and integrity on the part of both representatives and public officials.

In this respect, the HATVP plays an essential role in disseminating a culture of integrity in the public sector, particularly with regard to interactions between public officials and employees and interest representatives, and in the movement of public officials and employees between the public and private sectors.

First, the High Authority monitors the application of the ethical obligations applicable to interest representatives and set out in article 18-5 of the Law of 11 October 2013.

Second, since its creation, the HATVP has monitored the professional mobility of former ministers, presidents of local executive bodies and members of the State's independent administrative authorities (article 23 of Law 2013-907 on transparency in public life). The law of 6 August 2019 on the transformation of the civil service also gave the HATVP new responsibilities for monitoring the mobility of certain civil servants (Law 83-634 on the rights and obligations of civil servants). While the vast majority of civil servants are subject to ethical control by the administration itself, some cases may require the involvement of the HATVP, in accordance with the principle of subsidiarity, except for certain civil servants for whom referral to the HATVP is compulsory. This concerns more than 15 000 people occupying the highest positions in the three civil services, such as members of ministerial cabinets and directors of central administrations.

However, with regard to the risks associated with foreign influence, this system has several limitations. There is no specific rule to limit or prohibit an activity in a foreign structure or representing foreign interests after public employment, unless the HATVP considers that there is a criminal or ethical risk (HATVP, 2023[1]). In addition, the adoption of a system on the transparency of foreign influence could also include specific ethical obligations for both interest representatives and public officials.

4.2. Reinforcing the ethical obligations applicable to public officials and interest representatives with regard to foreign influence

4.2.1. The foreign influence framework could clarify the responsibility of public officials and civil servants to enforce the legal framework

The current framework for interest representation does not confer any specific responsibilities on public officials and civil servants with regard to interest representation activities. The legal framework does not require them to check whether or not those seeking to influence them are registered in the lobbying register.

While it is not the responsibility of public officials and civil servants to monitor the application of the legal framework on interest representation in general, and rightly so, it would nevertheless seem conceivable to require due diligence verification on their part, particularly in the context of a specific scheme on foreign influence. They could be required to ensure that the persons contacting them are in fact registered as interest representatives - or are covered by exemptions - including for a scheme governing foreign influence. For example, EU Commissioners and members of their cabinets must refuse to meet lobbyists who are not on the European lobbying register. This verification on the part of public officials could be specified in the standards of conduct expected within a foreign influence regime. The effective application of such standards of conduct would require dedicated awareness-raising, training and guidance for public officials.

In all cases, it would be useful for the ethical obligations applicable to public officials to include guidelines relating to the risk of undue influence and foreign influence. For example, public officials should be reminded of the need to be vigilant with regard to lobbying and influence activities, particularly when these come from a representative of foreign interests, by means of dedicated awareness-raising initiatives, as instructed by the Prime Minister's circular of 11 October 2021 on increasing the transparency of foreign influence actions carried out in relation to public officials.

4.2.2.  The ethical rules applicable to interest representatives could be extended to actors covered by a framework for foreign influence

Article 18-5 of the Law of 11 October 2013 stipulates that “interest representatives shall carry out their activity with probity and integrity” and lists the ethical obligations they are bound by, including declaring their identity and the interests they represent, refraining from giving remuneration, gifts or benefits, not using fraudulent means or monetising information obtained from public officials.

When the High Authority finds, on its own initiative or following a report, that a breach of the rules of professional conduct has occurred, it sends the interest representatives concerned a formal notice, which it may make public, to comply with the obligations to which they are subject, after giving them the opportunity to present their observations. After a formal notice, and for a period of three years thereafter, any further breach of ethical obligations is punishable by one year's imprisonment and a fine of EUR 15 000. However, these provisions do not apply to relations between interest representatives and members of parliament.

To ensure the overall coherence of the system for regulating interest representation activities and foreign influence activities, the same ethical rules could be applied to foreign interest representatives, regardless of the scenario envisaged.

4.3. Enabling tighter controls on the professional careers of former public officials in foreign entities

4.3.1. The HATVP could be given greater powers to monitor the new professional careers of former public officials and civil servants within entities linked to foreign powers

Another particularly important issue to consider in the context of foreign influence is the “revolving door” between the public and private sectors. As noted in the report by the European Parliament's INGE Committee of 9 March 2022 (European Parliament, 2023[2]) as well as that of the National Assembly's Committee of Inquiry (French National Assembly, 2023[3]), the employment of former public officials and civil servants in companies controlled directly or indirectly by foreign states may entail a risk of interference. The knowledge they may have acquired during their time in office or while carrying public functions, their network of influence within the administration or among elected representatives, or more broadly in society, may constitute valuable sources of influence for a foreign power carrying out interference activities. This risk currently appears to be poorly controlled within the European Union and its Member States.

In France, the HATVP is currently responsible for monitoring the post-public employment activities of former ministers, presidents of local executive bodies and members of independent authorities (article 23 of Law 2013-907 on the transparency of public life). For a period of three years, any person who has held one of these positions must refer the matter to the HATVP so that it can examine whether the new private activities he or she plans to pursue are compatible with his or her former positions. The HATVP is also required to monitor the career transition of a certain number of civil servants, the list of whom is set out in legislation, and can be called upon to examine any case in which the administration has serious doubts (Act 83-634 on the rights and obligations of civil servants). However, this control is essentially carried out under the prism of the potential conflict of interest, if the manager in question is likely to allow the entity he or she intends to join to benefit from his or her knowledge, previous decisions or networks.

The High Authority will therefore check whether the activity envisaged by the official or public servant leaving office poses difficulties: (i) of a criminal nature and/or (ii) of an ethical nature. This applies to self-employed activities or remunerated private activities within a public or private company, as well as those carried out within a public establishment of an industrial or commercial nature or within a public interest group of an industrial or commercial nature. When it identifies such difficulties, the HATVP may issue an opinion of incompatibility, which prevents the person from carrying out the envisaged activity, or of compatibility with reservations, in which the HATVP imposes precautionary measures to prevent the criminal or ethical risk.

To complete this system, the report of the National Assembly's Committee of Inquiry in 2023 recommended “more specific controls on the new professional careers of former senior civil servants, high-level politicians and certain categories of military personnel, possibly targeting certain powers that are not part of the same alliances as France, or that engage in forms of interference in our country” (French National Assembly, 2023[3]).

While new provisions have since strengthened the obligations for former military personnel, this is not yet the case for other public officials and civil servants. The Military Planning Act 2024-2030 and Decree no. 2023-1171 of 13 December 2023 relating to the performance by a member of the armed forces or a civilian employee of the State and its public establishments of an activity for the benefit of a foreign State, a foreign local authority or a company or organisation based outside France or under foreign control have tightened the rules for members of the armed forces: a declaration must be made to the Ministry of the Armed Forces, which has the power to prevent the post-public employment activity of military personnel who have held positions in strategic areas.

For other public officials and civil servants, it could be envisaged that the HATVP's remit be extended beyond the criminal and ethical risks to include the risk of foreign interference. The National Assembly's commission of enquiry recommended “providing a framework that excludes certain geographical areas or countries, reserving the possible professional development of senior public officials to countries that are members, for example, of the European Economic Area or alliances of which France is also a member”. However, consideration of the exact scope of such an exclusion list should also take into account France's alliances beyond the European framework. The attractiveness of the senior civil service in a globalised employment market also needs to be taken into account, as do the skills needed for the State to function properly in a globalised economy. For example, it might be useful to specify by decree a list of foreign powers for which stricter control would be necessary, and in some cases a ban. This echoes the two-tier system in force in the United Kingdom for a list of foreign principals/foreign powers established by decree and whose activities have been determined to pose a risk to the interests of the Nation.

4.3.2. Control over the new professional careers of former public officials could be extended beyond three years for influence activities within entities linked to foreign powers

With regard to the post-employment activities of former public officials in foreign entities, the French system does not currently provide a framework for their mobility beyond three years and does not include any specific provision on the representation of interests. The HATVP was able to stress, during the discussions organised as part of this report, that the introduction of generalised cooling-off periods, which would apply to activities of influence and interest representation carried out on behalf of foreign interests, would be contrary to the logic of the current system. This system is based on a case-by-case examination of the proposed professional activities of public officials and civil servants.

Given the specific risks associated with interest representation activities, or more broadly influence activities, carried out on behalf of foreign interests, another option could be to extend the period of control beyond three years in the case of professional reconversion within a foreign entity, particularly for certain specific public officials, for example former members of the Government.

Proposals for action

In order to strengthen the integrity standards applicable to foreign influence activities, the OECD recommends that France consider the following proposals.

Reinforcing the ethical obligations applicable to public officials and interest representatives with regard to foreign influence

• The foreign influence framework could clarify the responsibility of public officials and civil servants to enforce the provisions of the legal framework.

• The ethical rules applicable to interest representatives could be extended to actors covered by a framework for foreign influence.

Strengthening controls on the professional careers of former public officials and civil servants in foreign entities

• The HATVP could be given greater powers to monitor the new professional careers of former public officials and civil servants in entities linked to foreign powers.

• Control over the new professional careers of former public officials could be extended beyond three years for influence activities within entities linked to foreign powers.

References

[2] European Parliament (2023), Resolution of 9 March 2022 on foreign interference in all democratic processes in the (2020/2268(INI)), Official Journal of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52022IP0064.

[3] French National Assembly (2023), Rapport fait au nom de la Commission d’enquête relative aux ingérences politiques, économiques et financières de puissances étrangères visant à influencer ou corrompre des relais d’opinion, des dirigeants ou des partis politiques français, https://www.assemblee-nationale.fr/dyn/16/rapports/ceingeren/l16b1311-t1_rapport-enquete.

[1] HATVP (2023), Rapport d’activités 2022, https://www.hatvp.fr/wordpress/wp-content/uploads/2023/05/HATVP-RA2022-pages-1.pdf.