Sapin II Law - Lobbyists (Article 25 et seq.)

Article 25 et seq. of the “Sapin II” Law has created numerous provisions within Law No. 2013-907 (11 October 2013) regarding the transparency of public life, particularly Articles 18-1 et seq. of this law.

Under the latter provisions, lobbyists include legal entities of private law, individuals, public companies or groups undertaking commercial or industrial activities, chambers of commerce and industry, where an officer, employee or member has for principal or regular activity, or has exercised at least ten times during the preceding twelve months, an activity of which purpose is to influence the public decision in particular on the content of a law or a regulatory act when in contact with a member of the Government, a ministerial cabinet member, a collaborator of the President of the Republic, a deputy, a senator etc.

In this regard, it is noteworthy that Article 18-4 regarding the transparency of public life created by the “Sapin II” Law specifies that the rules applicable to parliamentarians, with regards to lobbying, are determined by the assemblies themselves.

Article 2 of the Law states that any lobbyist must, within a timeframe of two months, once Article 1 has been fulfilled, communicate to the High Authority (i) their identity, in the case of an individual, or that of its managers and individuals responsible for lobbying within a legal entity, (ii) the domain of activities, (iii) the name of the professional organisations, trade-unions or associations they belong to. Furthermore, anyone acting as a lobbyist on behalf of a third party must communicate to the High Authority for the transparency of public life the identity of these third parties.

Article 18-3 of Law no. 2017-867 regarding the transparency of public life also states that any lobbyist must eventually disclose to the High Authority its turnover for the previous year and its total expenditure relating to its activities from the previous year which is not covered by this Decree.

Article 3 of the Decree adds that, in a timeframe of three months, starting from the closure of the financial year, all lobbyists must disclose to the High Authority for the transparency of public life the type of public decisions brought about by their actions (subject matter and scope), the type of lobbying actions committed, questions brought about by these actions, people with whom contact was made, particularly public entities, the identity of third parties by whom the actions would have been led, and the total expenditure linked to these activities.

Article 6 states that the High Authority for transparency of public life unseals the repertoire of lobbyists. The information regarding the actions of the lobbyists will remain available for five years subsequent to the publication by the High Authority.

Article 8 focuses on the powers of the High Authority for the transparency of public life, and in particular on the formal notice that the High Authority is likely to address to a lobbyist whilst the latter does not fulfil the obligations imposed upon it. Under these circumstances, a lobbyist has one month within which to present his observations and two months to contest this, following its receipt.

Finally, it is worth reminding that Article 18-6 created by “Sapin II” Law creates an obligation for the High Authority to ensure that lobbyists fulfil their obligations. To that end, the High Authority may proceed to carry out site checks in the lobbyists’ places of work, under the authorisation of a judge from the Paris Court of First Instance who must then, under the provisions of the Decree, reach a judgment within a timeframe 48 hours.

The ruling reached is legally binding with immediate effect, that is to say there is no need to await notification. This provision explains why the judge’s ruling, which authorises the on-site checks carried out by the High Authority, is notified at the time of the visit to the manager or to its representative. In the absence of the latter, the ruling is notified after the visit by registered letter with acknowledgement of receipt. In the event that the letter is not received, it is followed by a notification from a bailiff. It is noteworthy that the judge having authorised the visit may file a suspension request or a request to stop the said visit.

The judge’s ruling may be appealed before the President of the Paris Court of Appeal, within a fortnight of its declaration. As for the ruling reached by the President of the Paris Court of Appeal, it can be appealed in cassation.

Lastly, Article 11 specifies that the President of the Paris Court of Appeal has jurisdiction for the appeals regarding the running of the visits led by the High Authority for the transparency of public life.

The decree comes into force in its first stages by 01 July 2017 at the latest. However, with regards to the transmission of the information by a lobbyist to the High Authority, the provisions come into effect as of 30 April 2018. Regarding the provisions concerning the information that must be transmitted to the High Authority once a lobbyist is in contact with someone who holds a mandate or someone employed following a nomination by the French Administrative Supreme Court, they come into effect as of 01 July 2018.