Hello Jean-Baptiste JUSOT. Can you briefly introduce yourself to our readers… Who are you?
With a degree in law, political science and geopolitics, I then followed the HEC executive education program for local public company managers. A former journalist and specialist in defense and security issues, I also have experience in advising and supporting local elected representatives and local authorities. After taking my oath of office in 2021 to join the Lyon Bar, I created SELARL CONVICTO legal in order to develop a lobbying activity, as permitted by article 6.3.4 of the National Internal Regulations of the legal profession.
How do you define interest representation?
Lobbying can be defined as “all influence activities carried out directly or indirectly with those who have the power to make public decisions, and which make it possible to expose the issues, explain the problems and promote the Group’s interests”.
Representing interests is therefore a very broad concept, which can take many different concrete forms, such as, for example, finding out about decision-making circuits, informing decision-makers, establishing high-level contacts, providing political and legal expertise, taking part in study groups, organizing meetings and conferences, drafting amendments to a bill, etc. This non-exhaustive list shows that any political, legal or economic player is by nature predisposed to exert influence above and beyond any legal considerations.
However, the legislator wanted to give it a legal definition. Thus, article 18-2 of law no. 2013-907 of October 11, 2013 on transparency in public life, created by the Sapin 2 law, sets out the conditions under which a person may be qualified as an interest representative. Under the terms of the law, interest representatives are defined as “persons whose main or regular activity is to influence public decision-making”.
Since the Sapin II Act, additional provisions have been inserted into Article 18-1 of the Act of November 11, 2013 to make this definition more effective. All interest representatives are now required to register in a digital directory published by the Haute Autorité pour la transparence de la vie publique. Interest representatives are required to declare to the HATVP their identity, the scope of their activities, the interest representation activities they carry out (specifying the amount of expenses incurred), the number of people they employ and their sales figures for the previous year, as well as the professional or trade union organizations or associations to which they belong and which are related to the interests they represent. The aim of this digital directory is to provide citizens with information on relations between interest representatives.
How can lobbying help public players?
When interest representation is exercised with transparency and probity, it can be a tool at the service of democracy. Indeed, influencing a decision is a perfectly noble act when its purpose is to bring home realities from the field. The aim is to give a voice to those working in the field – contractors, consumers, users, victims…
The law is in a perpetual state of flux, creating a degree of legal instability that is detrimental to citizens and businesses alike, and often ends up in the courts. The aim of interest representation is to adapt the legal rule to avoid litigation. Thus, by influencing the public decision-maker, the interest representative works for the benefit of all those closely or remotely linked to the legal problem he or she has solved. If we want to take this line of reasoning to the extreme, we could say that lobbying is actually extremely modern. In fact, the purpose of its action is in line with a logic of participatory democracy, whereby public decision-making is influenced by the organization of a consultation with the local community. We call it subsidiarity. The lobbyist enables the creator of a standard to bring it as close as possible to those who are affected by it.
Representing interests is therefore an essential prerequisite for any public authority wishing to make its decisions meaningful for the general interest.
Lobbying has a very pejorative image, unlike in the United States or England. How do you explain this?
There is indeed a major difference between the French and Anglo-Saxons in their relationship to interest representation. This can be explained by the different context in which this activity was born.
In France, lobbying or interest representation has a sadly pejorative image due to its revolutionary history. Under the Ancien Régime, many actors played the role of intermediary bodies to those in power, an ancestral form of interest representation. With the aim of putting an end to this tradition, a law passed in 1791, known as the “Loi Le Chapelier”, outlawed guilds in the spirit of the Enlightenment doxa of strictly separating general and particular interests.
The French legislator has always kept a tight lid on the existence of this activity, in keeping with the revolutionary tradition that was very hostile to the idea of inserting intermediary bodies between the people and public action. Until recently, interest representatives were subject to a rather weak legal regime, since the domestic legal system pretended not to be aware of their existence.
Numerous players have thus unknowingly (voluntarily or involuntarily) exercised an interest representation activity within a virtually non-existent legal framework. The relationship between certain business units and the public decision-maker has thus been subject to major abuses. However, these vices were gradually brought to light by a wave of media investigation and legal accusation, reinforcing the public perception of an immoral and obscure profession.
On the other hand, in the American and Anglo-Saxon conception, representation of interests is a necessary democratic guarantee of the general interest. This phenomenon is illustrated by the promulgation of the First Amendment to its Constitution, which enshrines the right to assemble and express one’s point of view to those in power. This is a legitimate form of action, used by many companies to transparently influence public decision-making.
Thus, in the American conception, the public interest can be reconciled with private interests, provided the latter carry out their activities with probity and transparency.
For just a few years now, we have been trying to integrate the culture of lobbying and public affairs to adapt to the influence of European Union practices and the phenomena of globalization. France is attempting to make up for lost time in improving the status and image of the interest representative, by introducing an increasingly stringent legal framework for the representation of interests.
Isn’t interest representation a legal form of corruption?
There is a real red line between corruption and interest representation. To understand it, all you have to do is define corruption. Strictly speaking, this action refers to the fact that a person vested with a specific function obtains advantages or special prerogatives of any kind with a view to performing, or refraining from performing, an act falling within the scope of his functions.
Corruption is therefore an act aimed at controlling public action. This is where we differ from interest representation, which is merely a tool for influence.
The interest representative, on the other hand, does not coerce the public player; he convinces him, persuades him, but does not oblige him to do anything. The idea of interest representation is therefore to influence in order to reconcile the general interest with particular interests.
When he makes his decision, influenced by an interest representative, the public player perceives nothing.
What are the legal tools available to prevent lawyers from crossing the red line into corruption?
In addition to the declaratory obligation relating to registration in the National Directory of Interest Representatives (RNRI), see above, interest representatives are, under the terms of Article 18-3 of the 2013 Act, subject, since the Sapin II Act, to a declaratory obligation to present their activities. This is carried out under the conditions laid down in a decree issued by the Conseil d’Etat, following a public opinion issued by the Haute Autorité pour la Transparence de la Vie Publique (HATVP), which specifies the terms and conditions of the communications and publication of the corresponding information. In this case, Decree No. 2017-867 of May 9, 2017 on the digital directory of interest representatives provided for the obligation for any interest representative to communicate within a period of three months after the close of its accounting period to transmit :
What’s more, the law of December 9, 2016 has also forced interest representatives to submit to new ethical rules in the exercise of their profession. Ethical obligations are now to be found in Article 18-5 of the 2013 law on transparency in public life, and almost all of them require abstentions (e.g. 2° “Refrain from offering or giving these people any gifts, donations or advantages of any significant value”).
In summary, since July 1, 2017, interest representatives are subject to three obligations:
What’s special about you is that you represent interests as a lawyer. What’s your advantage over other players in this field?
In recent years, lawyers have seen their profession open up to the practice of interest representation. Prior to 2010, the ethical rules of their profession were perceived as incompatible with interest representation. However, in 2011, the Conseil national des Barreaux (CNB), under the influence of the Paris Bar, triggered a minor revolution by including the practice of lobbying in the Règlement intérieur national des avocats (RIN).
However, one point remained in a grey area: the transparency requirements set out in the regulations described above, designed to break down the negative connotations of the profession. In 2015, an amendment was therefore made to Article 6 of the RIN, which aims to define the scope of lawyers’ professional activity. This has now been supplemented by the following provisions: “A lawyer who represents the interests of a public, European or international administration must, where appropriate, after informing his clients, mention in the registers of these institutions or administrations their identity and the amount of fees relating to his mission. The fees charged for this mission are the subject of an agreement and invoicing that are separate from any other mission or service carried out on behalf of the same client”.
This problem of transparency, solved by the obligation to provide information, has made it possible to endorse the possibility of representing interests as a lawyer. However, in 2020, only 1% of entries in the directory of interest representatives concern law firms. And yet, he is undoubtedly in the best position to carry out this activity. On the one hand, as we have seen, the professional code of ethics is reinforced by the RIN, with its requirement of professional secrecy. Secondly, because the skills he possesses as a lawyer are useful to him as an interest representative.
Public affairs lawyers are therefore bound by their professional code of ethics, which is governed by the Sapin2 law and, above all, by the code of ethics of their Bar Association. The relationship between the lobbying lawyer and the public player is always based on freedom and transparency. No constraints, no opacity!
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