Following two separate appeals against three decisions of the High Authority for Transparency in Public Life (Haute autorité pour la transparence de la vie publique – HATVP), the Litigation Assembly of the Conseil d'État has ruled for the first time on the scrutiny of a minister's declaration of interests and clarified the rules governing the scrutiny of public officials’ plans to move into the private sector.
1) When scrutinising ministers’ declarations of interests, the Conseil d'État rules firstly that the HATVP must ascertain whether the combined weight of a minister’s interests is of sufficient significance to influence, or appear to influence, the impartial exercise of their governmental duties. However, the Conseil d’État also rules that is not for the HATVP to rule on the existence of a criminal risk, as such an assessment falls solely within the remit of the criminal courts.
Decision No. 505836 of 29 October 2026
The Law of 11 October 2013 provides that members of the Government must submit to the HATVP, within two months of their appointment, a declaration setting out the interests they hold or have held during the preceding five years. Where appropriate, the French Prime Minister draws the necessary conclusions by issuing a decree of ‘recusal’ (déport), specifying the responsibilities that he or she will exercise in place of the minister concerned.
The Conseil d'État was called upon, for the first time, to rule on a decision of the HATVP concerning a minister's declaration of interests, following the Prime Minister’s appeal against the decision relating to the Minister for the Economy, Finance and Industrial and Digital Sovereignty, who was appointed on 23 December 2024.
The Conseil d'État reiterates that the law entrusts the HATVP with the task of verifying whether there is any interference between the interests of the State and other interests held by the minister that is sufficiently significant to be liable to influence the independent, impartial and objective exercise of their governmental duties, or to give rise to a legitimate doubt in this regard. In this context, it specifies that the HATVP must take account of all interests held by the member of the Government during the five years preceding their appointment, which is the period for which the law requires them to declare their interests.
However, the Conseil d’État rules that, in the absence of any legislative provision empowering it to do so, the HATVP is not competent to assess whether the exercise of the minister’s duties could expose him or her to the risk of committing the criminal offence of unlawful conflict of interest as set out in Article 432-12 of the French Criminal Code. Such an assessment falls exclusively within the remit of the criminal courts.
In the present case, the HATVP therefore correctly applied the law in the challenged decision by examining whether the minister’s previous role as chief executive officer of the Caisse des dépôts et consignations (CDC) was liable to give rise to a conflict of interest in relation to his ministerial responsibilities. However, it exceeded the powers conferred upon it by law by ruling on the existence of a potential criminal risk to which the minister might be exposed in the performance of his duties. The HATVP also misapplied the law by considering that the minister would be exposed to a conflict of interest if he were to make decisions relating to the CDC Group as a whole or to subsidiaries on whose board of directors he had served, solely on the grounds that a subsidiary operating in the competitive sector would necessarily have interests that diverged from those of the public institution that controls it. To assess whether the interests of a public administrative body and those of its subsidiaries may diverge, it is necessary, in particular, to take account of the company’s purpose, its articles of association, the composition of its share capital, its resources, its governance arrangements and the conditions under which it operates.
2) The Conseil d’État rules that, when examining whether a public official’s proposed move into the private sector exposes them to the risk of committing the criminal offence of unlawful conflict of interest, the HATVP is not required to determine whether all of the constituent elements of this offence are actually present, but must assess the risk that they may be, subject to review by the administrative tribunals and courts.
Decision No. 514106 of 29 October 2026
A public official who intends to leave the civil service to take up gainful employment in the private sector must inform their line manager, so that the latter can ensure that this activity is compatible with their duties. For public officials holding the highest or most sensitive positions, this scrutiny is carried out by the HATVP which, pursuant to Article L. 124-12 of the French General Civil Service Code, must examine three aspects: whether the activity is liable 1° to compromise or undermine the normal functioning, independence or neutrality of the public service, 2° to breach a principle of professional conduct, or 3° to place the person concerned in a position where they may commit the criminal offence of unlawful conflict of interest referred to in Article 432-13 of the French Criminal Code, commonly known as the ‘revolving door’ (the offence of moving from public service to the private sector in certain circumstances). This article specifically penalises the act of accepting, within a period of three years following the official’s departure from their government body, an interest in a company over which they previously exercised control or supervision.
The Conseil d'État has reformulated the guidelines for assessing the existence of a criminal risk, building on its previous case law of 4 October 2020 (No. 440963, A) in order to clarify what an administrative authority’s assessment of such a risk entails. When examining whether a public official’s proposed private gainful activity must be regarded as exposing them to the risk of committing the offence provided for in Article 432-13 of the French Criminal Code, the HATVP is not required to determine whether all the constituent elements of the offence are actually present, but must assess the risk that they may be, subject to review by the administrative tribunals and courts.
In the challenged decision, the HATVP opposed the proposal by the former chief executive officer of the CDC to serve as a member of the board of directors of a subsidiary of this public body, whose board of directors he had previously chaired, on the grounds that he must be regarded as having, in that capacity, exercised control or supervision over the subsidiary and would therefore be exposed to the risk of committing the criminal offence of unlawful conflict of interest under Article 432-13 of the French Criminal Code.
The Conseil d'État, to which an appeal against this decision had been submitted by the person concerned, first rules that serving as a member of the board of directors of a French public limited company (société anonyme) operating for a profit must be regarded as a gainful activity in a private enterprise, within the meaning of, and for the purposes of, the provisions of the French General Civil Service Code. The HATVP was therefore indeed competent to rule on this proposed move into the private sector.
However, the Conseil d’État reiterates that, for the purposes of applying Article 432-13 of the French Criminal Code, it is for the HATVP to determine, in the light of the company’s articles of association, the arrangements for appointing the person concerned and the conditions under which they carried out their duties, and particularly the mechanisms put in place to prevent any risk of conflict of interest, whether the chief executive officer of a public body who chairs one of its subsidiaries should be regarded as having exercised control or oversight of the subsidiary in their capacity as chief executive officer of the public body, i.e. as a public official, or whether they acted as the representative of the majority shareholder in accordance with the corporate interests of the subsidiary in question. The Conseil d'État rules that, in the present case, the chief executive officer of the Caisse des dépôts et consignations cannot be regarded as having chaired the board of directors of the Grand Théâtre des Champs-Elysées in the capacity of a public official.
For these reasons, the Conseil d'État quashes HATVP decisions Nos. 2025-172, 2026-12 and 2026-60.