COMPLIANCE BULLETIN: Should you register as an interest representative? December 2017
Law no. 2016-1691 of 9 September 2016, referred to as the "Sapin II Law" has created a register of interest representatives for the purpose of ensuring transparency in the public decision making process. This register is maintained by the High Authority for Transparency in Public Life (HATVP), and was opened on 1 July 2017. Interest representatives must register themselves before 31 December 2017. In addition, once listed in the register, interest representatives are required to submit an annual report on their lobbying activities and must comply with ethical obligations.
With less than a month to go before the deadline for interest representatives to register, this information notice will help you to determine whether or not you are concerned by this obligation and, if yes, to prepare the information which must be provided to the HATVP.
Who are interest representatives?
Article 25 of Law no. 2016-1691 of 9 December 2016 on transparency, the fight against corruption, and the modernization of the economy (known as the "Sapin II Law") provides a definition of interest representatives.
An interest representative is a person who meets the four following conditions:
A natural person or legal entity, acting on his/her/its own behalf or on behalf of a third party,
having as a main or regular activity,
the influencing of the public decision-making process, in particular the content of a law or regulation,
by entering into contact with government officials.
- A natural person or legal entity, acting on his/her/its own behalf or on behalf of a third party
An interest representative can be a natural person or a legal entity. Legal entities include private law entities, public industrial and commercial establishment, or chambers of commerce or craft trades.
For natural persons, only those who engage on a professional basis in representing interests can be considered as interest representatives.
Certain persons are excluded from the definition of interest representative, such as elected officials during the performance of their duties, political parties and groups, trade unions, or associations with a religious purpose.
- Main or regular activity
The time spent on representing interests by the persons in question includes not only the duration of the contacts themselves, but also the time spent on preparation, organization, and follow-up. However, time spent on activities unrelated to interest representing, e.g. monitoring activities, is excluded from this count.
A person's main activity is interest representation where he/she/it devotes over half of his/her/its time to it. This criterion is assessed per six month period.
A regular interest representation activity exists where a natural person or a manager, employee or other member of legal entity has entered into contact with the government officials mentioned in the decree, at his/her/its own initiative at least ten times during the past twelve months. The twelve-month period is evaluated in a continuous manner and does not necessarily cover a calendar year.
For legal entities, this criterion is assessed individually: a legal entity is only an interest representative if at least one person within it has, by his or herself, performed over ten acts of interest representation during the year.
- Influencing the public decision making process
The list of the types of public decisions is set out in annex to the decree of 9 May 2017 and includes: laws; ordinances issued on the basis of Article 38 of the Constitution; regulatory instruments; decisions made on a case by case basis (declarations of public utility in the framework of expropriation proceedings or the decision to classify facilities for environmental protection purposes); procurement contracts, where the estimated pre-tax value is greater or equal to EU thresholds; concession contracts, where the estimated pre-tax value is greater or equal to EU thresholds; agreements authorizing the temporary occupation of public space; administrative long-term leases; contracts for the sale of private State property or public institutions; deliberations of local authorities approving the creation of a semi-public companies made for only one operation.
The annex also mentions "other decisions" which are described in the HATVP guidelines.
In addition, entering into contact means that contact is made with a government official at the initiative of the interest representative. Thus, participating in a working group or a public consultation, at the invitation of a public official, is not classified as interest representation.
- Entering into contact with government officials
The definition of contact is set out in the HATVP guidelines which state that it can be a physical meeting, a telephone conversation, or the sending of an email or a text message.
The list of government officials is set out in Article 18-2 of the Sapin II Law, it includes: members of Government; members of ministerial offices and staff of the President of the French Republic; deputies, senators and their collaborators (National Assembly – Senate); the President of the National Assembly, the President of the Senate and members of their offices; National Assembly and Senate staff; members of administrative authority and independent public sanction commissions and boards; managing directors, general secretaries, and their assistants, of these same authorities; persons holding a position by decision of the Government appointed by Council of Ministers.
If you meet these four conditions, you are subject to the following obligations.
The obligations of interest representatives
Interest representatives must:
register on the digital register for interest representatives run by the HATVP;
comply with an ethics code (set by law and, where relevant, the Senate and the National Assembly);
provide the HATVP each year with information on his/her/its activity as interest representative.
Depending upon the type of information, it is submitted by interest representatives to the HATVP either at the time of registration on the register and then updated each month, or in the framework of the yearly activity report.
- Interest representatives must register on the HATVP digital register via le HATVP site before 1 January 2018
In order to ensure that citizens are informed of the relationships between interest representatives and public officials, the HATVP will publish the list of interest representatives and the information submitted in the register.
The interest representatives must provide the HATVP, before 1 January 2018, with the following information:
The identity of the interest representatives: the interest representative provides his/her/its identity, and where relevant its SIREN number or its registration number in the national association register (RNA).
The identity of the interest representatives' senior management: the identity of those who have the prerogatives necessary to act in the name of the entity and to represent it with respect to third parties must be provided, whether or not they carry out interest representation services.
The identity of the persons who engage in interest representation: The list of these persons is limited to those who devote over half of their time to interest representation, or persons who have performed over ten acts of interest representation over the past twelve months.
The sphere of interest representation activities: A list of major activity sectors is proposed on the HATVP register. For reasons of simplicity and consistency, interest representatives must choose between one and five sectors at the time of registration, corresponding to the main sectors in which they carry out interest representation activities.
Interest representatives must also indicate the level of their interest representation: local, national, European or worldwide.
Organizations to which interest representatives belong: interest representatives must indicate membership in professional or union organizations or other associations related to the interests represented, in the register.
The identity of the third parties on whose behalf the interest representation is done: this section concerns consulting firms, lawyers, professional organizations and federations and, possibly, associations.
As from 1 January 2018, sanctions enter into force for failure to comply with the HATVP reporting obligations set out in the Sapin II Law (Article 18-9). It is an offence punishable by imprisonment of one year and a €15 000 fine.
As from 1 July 2018, reporting obligations are extended to interest representation activities involving the local officials and certain senior officials in the central or decentralized administration.
- Interest representatives must comply with a code of ethics
The Sapin II Law states that interest representatives must carry out their activities with probity and integrity.
As such, he/she/it must, in particular:
refrain from offering or giving public officials gifts, donations, or any benefits whatsoever having significant value and from any actions with respect to these persons for the purpose of obtaining information or decisions through fraudulent means;
refrain from obtaining or trying to obtain information or decisions by deliberately transmitting erroneous information to these persons or employing misleading tactics;
refrain from organizing conferences, events, or meetings where the arrangements for speaking by public authorities are tied to payment of compensation in any form whatsoever;
refrain from using information obtained from public officials for commercial or advertising purposes;
refrain from selling copies of documents from the Government or from administrative or independent public authorities to third parties and from using the letterhead paper and the logo of these public authorities or administrative bodies.
If, on its own or after having been informed, the HATVP discovers a violation of the ethical rules, it will send official notice to the interest representatives in question, which can be made public, to comply with the obligations he/she/it is subject to, after having requested him/her/it to present his/her/its comments.
After official notice, and for the three following years, a repeated failure to comply with the ethical rules is punishable by imprisonment of one year and a €15 000 fine.
- Interest representatives must submit activity reports
If you are an interest representatives, between 1 January 2018 and 30 April 2018, you must submit a report on the interest representation activities carried out during the second half of 2017.
For following years, this annual report must be sent to the HATVP within a period of three months from the end of the financial year.
For each act of interest representation, the activity report must include the following information:
the type of public decision concerned by the interest representation activities,
the type of interest representation activities performed,
the issues targeted by these activities, identified by their purpose and focus area,
the categories of public officials that the interest representative entered into contact with,
the identity of the government officials,
the amount of expenditures devoted to interest representation activities for the past year and if relevant, the amount of turnover for the preceding year for interest representation activities.
The publication of information by the HATVP
Pursuant to Article 6 of the implementing decree of 9 May 2017, the register of interest representatives is made public by the HATVP via an online public communication service.
The HATVP takes the technical measures necessary to ensure the integrity of the service and informs interest representatives on the collection and publication of data concerning them.
Information concerning acts of interest representation remains public for a period of five years from the date it is published by the HATVP.