This independent administrative authority controls the assets and declarations of interest of elected officials. But its power in this area is limited, at the risk of seeing its action easily circumvented.
It was born ten years ago, from a presidential will of “to moralize political life”. On April 10, 2013, François Hollande announced the creation of the High Authority for Transparency in Public Life (HATVP), in the wake of the Cahuzac affair. The HATVP, an independent administrative authority, was then to replace the Commission for the Transparency of Financial Life, in particular by compensating for its lack of resources. Stated objective: assume a function of control of political life and of certain people in charge of public service missions (ministers, parliamentarians, certain senior civil servants and local executives, etc.).
Ten years later, other scandals have made people cringe. One of the latest concerns the former Minister Delegate for SMEs, Alain Griset, sentenced on January 4 following an incomplete declaration of assets. On December 20, the surprise resignation of Jean Rottner from the presidency of the Grand Est region to join the consulting firm and real estate developer Réalités was also emotional. This move from the public to the private sector, sometimes referred to as “revolving door”, has raised fears of conflicts of interest. But the HATVP, in particular responsible for preventing these conflicts, nevertheless gave a favorable opinion, despite reservations, to the retraining of the former elected official. In addition to its mission of “control of mobility between public and private sectors”, the Authority must also, in detail its activity report, “ensure control of the assets and interests of public officials”, And “regulate the representation of interests”, i.e. lobbying. A colossal work, which comes up against several limits.
“If a declaration is incomplete, she cannot realize it”
At the start and end of their mandate, the HATVP is responsible for validating and verifying the declarations of assets of members of the government, then making them public. One of the objectives is in particular to verify that no illicit enrichment has taken place during the exercise of the function. To prevent conflicts of interest, it also examines declarations which must include information such as the profession of the spouse or the various activities carried out throughout life. Seventeen thousand public officials are affected by these reporting obligations.
But how to make sure that the declarants give him a declaration “exact, sincere” and above all, as required by law, “exhaustive” ? For heritage, it can rely on its links with the tax authorities. Concerning the declarations of interests, which are sent to him at the start of his function or term of office, “its control is only carried out on what has actually been declared. If a declaration is incomplete, it does not really have the means to realize it”, deplores Jean-François Kerléo, professor of law and vice-president of the Observatory of public ethics.
In the event of breaches noted, it cannot impose a direct sanction, but may request the judiciary. The HATVP took legal action on November 29 on suspicion of tax evasion, after spotting “minorations” in the declaration of the former Minister Delegate in charge of Territorial Communities, Caroline Cayeux, who has since resigned. Could she have noticed it sooner? “We can only deplore that it took all this time to bring a situation to light. Caroline Cayeux does not come from civil society: regional councilor, senator, mayor, minister, she has been in the political machine for a long time. “, writing Tris Acatrinei, founder of Project Arcadia, a media devoted to the observation of parliamentary life. The journalist believes that the body “does not always afford the means” necessary to verify declarations.
“Of course, there may be holes in the racket at the legislative level, but the HATVP could also pull its hands out of its pockets!”
Tris Acatrinei, founder of Project Arcadiaat franceinfo
“A vast majority of elected officials and public officials respect their reporting obligations”, answers the president of the HATVP, Didier Migaud. For a “minority” of cases, 55 out of 15,574 reports received in 2021 according to his activity reportwho do not submit their declarations on time, the HATVP would like to have “the possibility of inflicting administrative fines, in the same way as a contravention for the Highway Code”. “We could go further, and impose a fine in the event of an incomplete declarationsuggests Tris Acatrinei. Are the unemployed who do not correctly declare their situation at the job center not worried?
“Perhaps it is necessary to question the fact of extending the scope of the transparency requirements to allow the HATVP to operate a fairer control”, abounds Béatrice Guillemont, researcher at the Center for Comparative Studies and Research on Constitutions, Freedoms and the State (Circle) of Bordeaux and author of a thesis on the law of probity.
A former Minister of Transport in the service of a manufacturer of hydrogen cars
For public officials, the end of a term can also be an opportunity to move from government service to the private sector, like Jean Rottner, often with the prospect of a higher salary. Concerning these mobility, the HATVP can examine the case of 20,000 public officials, the other civil servants being controlled by their own hierarchy. In the event of a change of sector, it is responsible for verifying “if the planned activity poses difficulties of a criminal or ethical nature” and then give a favorable response, or not.
Some of his opinions question. If she refused that Jean-Baptiste Djebbari, ex-Minister of Transport, convert to the shipowner CMA-CGM, she accepted “with reservations” that he joins the Hopium company, which manufactures hydrogen cars. This last “has not benefited from public subsidies allocated by the Ministry of Transport, explains Didier Migaud. On the other hand, in the case of CMA-CGM, it considered that the ethical risk was much higher, the company in question being a very important player in the sector, and in view of the many meetings that took place between the Minister and the general director”.
The opinion of the HATVP also asks Jean-Baptiste Djebbari to abstain any approach to members of the government or administrations in charge of transport for three years. Only, how can she ensure that her decisions are respected? “We regularly question the people affected by a reservation”, assures Didier Migaud. It also details several ways to control probity: exchanges with the professional entourage, access to the diary and to certain confidential information, on-site checks, monitoring unit on social networks, etc.
Limited slipper control
However, its control can quickly come up against limits. If a former senior civil servant does not take direct action himself with former colleagues, how can the High Authority ensure that he does not pass on his contacts to his collaborators and that the latter join them to his place ?
“The HATVP has more powers to control public-private mobility than the public service ethics commission, which it has replaced since 2019, but there are many ways to circumvent its reservations.”
Jean-François Kerléo, vice-president of the Observatory of public ethicsat franceinfo
In some situations, contact even seems inevitable. How can you imagine that Jean Castex, new boss of the RATP appointed less than two years from the 2024 Olympic Games in Paris, cannot talk to the Prime Minister, Elisabeth Borne, when transport will be one of the central questions of the event ? “Not taking steps with former collaborators does not mean having no contact, tempers Didier Migaud, this does not mean that the president of the RATP should not be accountable to the Prime Minister.” But how to assess the content of their exchanges, for example, in the informal moments before or after a meeting?
“We cannot go beyond what the law asks us to control, we base ourselves on a strong criminal or ethical risk to make our decisions”, argues Didier Migaud, adding that “Professional retraining from the public to the private sector is not prohibited by law”. Emmanuel Macron’s five-year term is even marked by a high proportion of revolving door, as the newspaper recently analyzed The world. UA hundred ministerial advisers have joined the private sector since the re-election of Emmanuel Macron, figures the daily. “The important thing is that this mobility is regulated”, continues Didier Migaud.
“In reality, she can’t control them, Judge Tris Acatrinei. She can’t put an employee behind every ex-public official.” to check his communications and appointments. “But the public-private back and forth goes beyond the HATVP, this raises the question of what activity to carry out when you leave politics. It’s a social subject”, she believes.
An “under-resourced” structure in relation to its missions
The HATVP has 67 members. “It’s a fair bit”, admits Didier Migaud, even if an increase in the workforce to 71 people is planned for 2023. “At present, it is unfortunately under-resourced to follow all the opinions given, particularly in terms of mobility and compatibility opinions with reservations”, observes Béatrice Guillemont. In 2021 alone, according to his activity reportthe HATVP issued 307 opinions on public-private mobility projects, in addition to processing the 15,500 declarations of assets and interests received.
A lack of resources in view of the mass of files to be processed which sometimes leads civil society to rest. “In the absence of a power of administrative sanctions, it enjoys a power known as ‘reputational sanction’, says the researcher. We can consider that making these decisions public, in particular through the publication of special reports in the Official Journal, is a form of warning to the public officials concerned, as well as a way of activating citizen monitoring. she analyzes.
“The interest of transparency is in particular that civil society can take up the declarations of interest that we publish and alert us.”
Didier Migaud, President of the HATVPat franceinfo
The omission to declare about ten mandates of the former high commissioner for pensions Jean-Paul Delevoye to the HATVP had thus been revealed by the press. A statement that leaves Tris Acatrinei “perplexed”. “It amounts to delegating the power of control to what they call civil society. But what are we talking about? Associations, journalists, ordinary individuals? It’s a bit like saying ‘get your shit together’.”