Deliberation of February 4th, 2003
(Official journal of February 23rd, 2003)
The Superior council of audio-visual is an independent administrative authority, whose mission is to guarantee the exercise of the freedom of audio-visual communication under the conditions defined by the law. This independence, so much with regard to the political powers than of the economic actors, is translated for the members of the Council by an ethics and particular obligations. Exits of those applied to all the public agents - that are the members of the Council throughout their function, whatever their professional origin -, they are adapted to the missions of the CSA and necessary to his authority.
I. Recall of the principles of deontology
applying to any public agent
I.1 - the respect of the professional secrecy
The revelation of information in secret matter by a person who in is agent, either by state, or by profession, or because of a function or a temporary mission, is liable to a penal sanction (article 226-13 of the Penal code). This rule is recalled to article 26 of the law of the bearing July 13th, 1983 rights and obligations of the civils servant and to article 8 of the law of September 30th, 1986 relating to the freedom of communication: “The members and the agents of the Council are compelled with the professional secrecy for the facts, acts and information of which they could be informed because of their functions”.
It is advisable to recall that knowledge by other people of the revealed facts is not likely to remove their confidential and secret character to them. Within the Council, the professional secrecy relates in particular to the transmitted financial elements and the contents of the instruction of the files, and a general way, on any information concerned with the professional secrecy.
It can be derogated from the professional secrecy only in two cases:
- when a right of access to the information covered by the secrecy is acknowledged to thirds (law of July 17th, 1978 relating to the access to the administrative documents), or that a duty of information is essential on the Council on the respect by the operators of their obligations (article 18 of the law relating to the annual report of the CSA);
- when a law prohibited that it is opposite, in particular with certain authorities (the Council of competition, magistrate or jurisdiction, European Commission) or when the law makes obligation to draw aside it (article 40 of the Criminal procedure code, which makes obligation with any public agent having, in the performance of its duties, knowledge of qualifiable facts penally, to inform the public prosecutor).
Any member of the CSA which is aware, in the exercise of its functions, facts likely to receive a penal qualification, into formless the president, who makes known the continuation that it gives to this information. On the assumption that the president decides not to transmit to the prosecutor, the member of the college remains free, under his own responsibility, to inform the Parquet floor.
I.2 - obligation of discretion
The obligation of discretion is envisaged in the statutes of the civil service (article 26 of the law of the bearing July 13th, 1983 rights and obligations of the civils servant). It is essential for all the facts, information or documents, in particular the content of deliberated and the result on this last before its notification or its publication, whose people are aware at the time of the performance of their duties.
This obligation of discretion is pointed out and reinforced, for the members of the CSA, by article 5 of the law of 1986: “Throughout function and one year as from their suspension, the members of the CSA are held to abstain from very public standpoint on the questions whose CSA has or had to know or who are likely of him to be subjected in the exercise of its mission”.
I.3 - the duty of reserve
This obligation results from the jurisprudence which forces the public agents not to harm the reputation of their administration or that to which they belonged.
Each member of the Council avoids, in his external expression, to expose contrary positions to those of the Council.
I.4 - received gifts of third in the exercise of the functions
Vis-a-vis the proposals and offers of gifts, the attitude of the members must be inspired by the transparency and prudence.
- The travel (transport and accommodation) is normally taken charges some by the CSA. They can the being by an external organization when the member is one of the official guests of the demonstration to which it goes. The Council is informed.
- The gifts and invitations can be accepted if they remain of a reasonable value.
I.5 - offset
When a member of the Council estimates in conscience that its last occupations or its current relations can question its impartiality, it takes part neither in the debate nor with the vote.
I.6 - personal liabilities
The members of the CSA do not profit from any particular immunity. They are responsible penally for their acts if they commit an offence.
In the event of criminal prosecutions for facts related to the performance of their duties, the member profits from the protection provided by article 11 of the law n° 83-634 of the bearing modified July 13th, 1983 rights and obligations of the civils servant, who lays out that “the community is held to grant its protection to the civil servant or to the former civil servant if it is the object of criminal prosecutions at the time of the facts which do not have the character of a personal fault”.
I.7 - the prohibition of the illegal catch of interests
Under article 432-12 of the Penal code: “The fact, by a person agent of the public authority or in charge of a public service mission or by a person invested with a public electoral mandate, to take, receive or preserve, directly or indirectly, an unspecified interest in a company or an operation of which it has, at the time of the act, in whole or part, the responsibility of ensure the monitoring, the administration, liquidation or the payment, is punished five years of imprisonment and 75,000 euros fine”.
The members of the CSA, even if they make up their minds collégialement, each one are personally subjected to the prohibition posed by article 432-12.
The offence of illegal catch of interests is taken again by the law of September 30th, 1986 which, in its article 5, states prohibitions which go beyond article 432-12 and whose failures are explicitly sanctioned by the sorrows of article 432-12.
II. Provisions applicable to the members of the Council throughout their function
Article 4 of the law of September 30th, 1986 ensures the members of the Council of the warranties aiming at ensuring their personal independence. This independence is translated in particular by:
- nonrenewable character (except for the members named to finish a started mandate and it remains less than two years to run) and nonrevocable of the mandate;
- the fact that the age limit cannot be opposite to the members during their mandate.
To ensure the independence of the CSA, with respect to the political power like economic sectors that it controls, the law subjects the members of the Council, throughout their mandate, to obligations which result essentially in a mode of incompatibilities and prohibitions.
II. 1 - Incompatibilities
Article 5 of the law of 1986 lays out that the function of member of the CSA is incompatible with:
- “Any electoral mandate”. The incompatibility relates to not only the national electoral mandates but also that of European deputy and the local mandates, which it is about an election by the direct suffrage or indirect.
- “Any public employment, any other occupation”. Any member of the Council can carry on voluntary associative activities, even important, since they are stripped of any bond with the activity and the field of competences of the CSA. In the contrary case, it must ask the approval of the Council. It is also possible for him to ensure a teaching not remunerated, in the respect of the principles of deontology pointed out above. It is also possible for him, as with all the public agents, to charge copyrights under a literary activity, scientific or artistic within the meaning of the Code of the intellectual property.
II.2 - Prohibitions
Article 5 of the law of 1986 poses moreover a particular prohibition to carry on an activity or to hold interests in certain economic sectors close to the missions of the CSA. Indeed, under the second subparagraph of this article, the members of the CSA “can, neither directly neither indirectly, to exert functions, to receive fees, except for favours done before their entry in function, nor to hold interests in a company of audio-visual, cinema, edition, press, publicity or telecommunications”.
The field of application of this prohibition is very broad since it aims all the sectors of the communication, all the companies, that they public or are deprived and whatever their nature (company, association, grouping…), finally all forms of bonds (functions remunerated or voluntary, honorary, detention of interests). Article 5 of the law of 1986 thus poses prohibitions much broader than those of article 432-12 of the Penal code: the prohibited sectors are not only those on which the CSA exerts his competence, and prohibition is worth even if the member did not take part in the decisions (which it was absent or did not take part in the vote).
Only the scientific, literary and artistic activities (copyrights) are authorized.
As regards the detention of interests, following interpretation can be given:
What is what the detention of interests?
The detention of interests in these companies is generally consisted the simple possession of securities of these companies. The concept of catch of interest covers also the participation “by work, council or capital” within the meaning of article 432-13 of the Penal code and jurisprudence on this point (old 175-1).
Which are the companies concerned?
The law enumerates six economic sectors: audio-visual, cinema, edition, press, publicity, telecommunications. The parliamentary debates show the will of the legislator to pose a broad but relatively precise prohibition: the concept was isolated of “company related to the sectors of… ”, which would have covered all the economic sectors and whose contours would have been vague. It is necessary thus to be questioned if the held interests are it in a company which one can attach to the one of the six sectors. The succession of these terms shows the will of the legislator to include the whole of the activities raising, of near or by far, of the fields of competence of the CSA. Are compared to these sectors the activities of contents concerned with the public communication online.
The need for ensuring the independence and the authority of the CSA result in recommending prudence, i.e. to avoid any detention of interests likely to be included in the field of prohibition, even with its periphery. Its members should not thus hold securities of companies which control, within the meaning of the L.233-3 article of the Code of the trade, those included in the six sectors mentioned in article 5 of the law.
All are the ways of managing concerned?
It does not matter that the titles are managed directly or by a financial institution: it is the only detention which is in question.
How to consider OPCVM (SICAV, CPF in particular) and SOFICA?
The shares of CPF or titles of SICAV do not enter the field of prohibition since they are not specialized in one of sectors aimed to article 5. The detention of shares of Soficas is analyzed by the Revenue court like outcome with an indirect detention of interests in these companies.
Is the family circle concerned?
The terms of the law apply only to the member himself. However, the terms “directly or indirectly” which appear in article 5 could result in applying prohibitions beyond the only person of the member of the CSA.
It is pointed out that the couple married under the mode of the community of goods are regarded (except, in the case of the community property, for the clean goods) as joint owners of the whole of their goods.
The assemblies carried out with an aim of circumventing the prohibition posed in article 5 of the law, for example, the acquisition of titles in the name of its spouse or a child, or the constitution of a company-screen which would hold titles, are prohibited, in accordance with jurisprudence relating to article 432-12 of the Penal code.
If titles, aimed by the prohibition of article 5 of the law of 1986 such that interprets here, have suddenly been held by marriage, succession, or in consequence of strategic evolutions of companies hitherto absent from the sector, it is requested from the members concerned to carry out their transfer within a period of three months, in accordance with the declaration on the honor which they signed at the beginning of mandate and must, under article 13-1 of the rules of procedure, to renew on each date birthday of this nomination.
The member of the CSA which would be in one of these prohibited situations has a three months deadline as from his nomination to put itself in accordance with the law.
The failures with this obligation can be sanctioned with a double title:
- by an administrative sanction: the revocation of one member on the initiative of his pars. The member of the CSA which failed to fulfil these obligations is declared outgoing of office by the CSA ruling in the majority of two thirds of his members.
- by penal sanctions: sorrows envisaged in article 432-12 of the Penal code, relating to the illegal catch of interests (5 years of imprisonment and 75,000 euros of fine).
Are attached to this code of conduct the applicable rules after the suspension of the functions.
Applicable rules after the suspension of the functions
A1. General rules
A1.1 - the opinion of the commission of deontology is not necessary
The former members of the CSA do not seem to be subjected to the provisions of the decree n°95-168 of February 17th, 1995 applicable to the public agents wishing to carry on an activity in the private sector. Indeed, explicit fault of reference by the law of September 30th, 1986, the members of the CSA did not come out from this commission, but therefore are not exempted respect of article 432-13 of the Penal code.
A1.2 - Article 432-13 of the Penal code
Any civil servant or public agent who was charged:
. “is to ensure the monitoring or the control of a private company”,
. “is to conclude from the contracts of any nature with a private company”,
. “is to express its opinion on the operations carried out by a private company”,
cannot, under the terms of article 432-13 of the Penal code, during a five years deadline following the suspension of its functions:
- nor “to take or receive a participation by work, council or capital, in one of these companies”;
- nor to take part “by work, council or capital, in a private company which has at least 30% of common capital or concluded a contract comprising an exclusiveness in right or fact with one of the companies” defined in the three initial topics.
At a private company any public enterprise is comparable carrying on its activity in a competitive sector and in accordance with the rules of the private law.
Are concerned with the prohibition posed in article 432-13 neither the “participation in the capital of listed companies” nor the participation in the capital “when the capital is received by successional devolution”.
The violation of these prohibitions is liable 2 years of imprisonment and 30,000 euros fine.
Taking into account the collegial structure of and the level Council Decisions of responsibility for its members, are thus concerned the whole of the companies of audio-visual communication subjected to authorization, conventionnement or being able to be sanctioned by the CSA, and not the only companies coming under the field more particularly followed by the member during his mandate. Within the limits posed by jurisprudence, these provisions prohibit in particular the members from occupying an employment in one of the above mentioned companies during the five years which follow the suspension of their functions.
A2. Additional prohibitions applicable to the members of the CSA:
A2.1 - Maintenance during one year of exclusions from public-sector employment
Article 5 of the law of 1986 imposes to the members of the CSA, at the conclusion of their mandate, of the constraints which concern primarily - in addition to the duty of reserve, which is essential during one year on the expiry of the mandate the exercise activités professionnelles the or private ones.
The members are thus subjected, for one one year period as from the suspension of their functions, with prohibition “to exert, directly or indirectly, of the functions, to receive fees, except for favours done before their taking up the duties, to hold interests in a company of audio-visual, cinema, edition, press, publicity or telecommunications”.
As for the incompatibilities in the course of mandate, the only exception to the rule relates to the collection of copyrights and the violation of prohibition is penally liable to the sanctions envisaged by article 432-12 of the Penal code.
A2.2 - Maintenance of the treatment during the year which follows the expiry of the mandate
On the other hand constraints and prohibitions which are binding to the members at the conclusion of their mandate, the law of 1986 opens the possibility to them of profiting from the maintenance of their treatment for one one year period to the expiry from their mandate. The benefit of this provision is however subjected to precise conditions.
The last subparagraph of article 5 lays out indeed that “With the expiry of their mandate, the members of the Superior council of audio-visual continue to perceive their treatment for one length of time maximum one year. However, if the interested parties go back to a remunerated activity, perceive a retirement or, for the civils servant or the magistrates, are reinstated, the payment of this treatment ceases. It also ceases on Council Decision ruling in the majority of two thirds of its members, after the interested parties were put capable to present their observations, if those miss with the obligations envisaged with the second subparagraph “.
The maintenance of the treatment at the conclusion of the mandate:
- must be the object of a request written in this direction by the member who wishes to profit from it;
- applies only to the members having carried out their mandate until his term and could not thus profit with the outgoing members. In an opinion of January 29th, 2002, the Council of State confirmed this interpretation;
- does not apply to the members resulting from the civil service or the magistrates since they are, at the conclusion of their mandate, either reinstated in their body and administration of origin, or, having the age required, placed at the retirement of office;
- is incompatible with perception by the member of a retirement, or a remuneration of activity. The members subjected to the provisions of the Labor Code and the code of the social security, which do not envisage starting obligation to the retirement nor of fixing of an age ceiling of activity, will be able at the conclusion of their mandate to profit from the maintenance from their treatment on condition that not taking advantage of their rights to a retirement.