Consequences for local elected representatives of the law n ° 2013-907 of 11 October 2013 relating to the transparency of public life
Law No. 2013-907 of 11 October 2013 on the transparency of public life is intended to prevent conflicts of interest. Article 1 states that "members of the Government, persons holding local elective office and those entrusted with a public service mission exercise their functions with dignity, probity and integrity and ensure that they are prevented or prevented from doing so". immediately stop any conflict of interest. ".
Measures relating to the prevention of conflicts of interest
Conflict of Interest is defined as any interference between a public interest and public or private interests that is likely to influence or appear to influence the independent, impartial and objective exercise of a function. "
In order to prevent conflicts of interest, persons holding local executive positions who consider themselves to be in a situation that meets this definition "shall be compensated by their delegate, to whom they shall refrain from sending instructions". It should be noted that the law of 11 October 2013 does not call into question the derogations to situations of illegal capture of interest provided by Article 432-12 of the Penal Code for municipalities with a population of up to 3500.
A decree in Council of State is being drafted to clarify the articulation of the provisions of the law of 11 October 2013 on the replacement of elected officials in a conflict of interest with those of the general code of local authorities (CGCT) delegations.
The repression of situations of illegal taking of interest after the cessation of functions
Local elected officials were previously excluded from the scope of Article 432-13 of the Penal Code, which prohibits "the act by a person who has been appointed, as an official or agent of a public administration, in the exercise of the functions that it has actually exercised, either to supervise or control a private enterprise, or to conclude contracts of any kind with a private company or to formulate an opinion on such contracts, or to propose directly to the competent authority of the decisions relating to operations carried out by a private enterprise or to formulate an opinion on such decisions, to take or receive a participation by work, advice or capital in one of these enterprises before the expiry of three years after the termination of these functions. ".
This situation created an asymmetry with the scope of the repression of the illegal taking of interest during the exercise of the functions (article 432-12 of the penal code being applicable to the elected officials).
The amendment of Article 432-13 of the Penal Code by the Law of 11 October 2013 (Article 28) has the effect of extending to the holder of a local executive function the scope of the so-called "pantouflage" three years after the termination of service.
Measures relating to the transparency of public life
The heads of the executive bodies of the local authorities and the elected representatives holding a delegation of the latter will have to send to the President of the High Authority for the Transparency of Public Life (independent administrative authority), on the one hand, a declaration of patrimonial situation, on the other hand, a declaration of interests.
With regard more particularly to municipalities and public institutions of inter-municipal cooperation (EPCI), the law of 11 October 2013 (Article 11) limits the scope of this obligation:
- mayors of municipalities with more than 20,000 inhabitants;
- the presidents of EPCI with own taxation whose population exceeds 20,000 inhabitants or whose operating revenue in the last administrative account exceeds 5 million euros;
- presidents of EPCI without own taxation or whose operating revenue in the last administrative account exceeds 5 million euros;
- deputies to mayors of communes with more than 100,000 inhabitants holding a delegation of signature;
- EPCI Vice Presidents with own tax of more than 100,000 inhabitants holding a delegation of signature.
The model and the contents of the declarations of patrimonial situation and the declarations of interest, as well as the conditions in which the declarations of interests will be made public, will be specified by decree in Council of State.